
    Jemmie WATFORD v. STATE.
    CR-90-1099.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 1992.
    Rehearing Denied, Rule 39(k) motion denied, and special concurrence modified Nov. 25, 1992.
    
      Kathleen Nemish, Dothan, for appellant.
    James H. Evans, Atty. Gen., and Robert Ward, Asst. Atty. Gen., for appellee.
   McMILLAN, Judge.

The appellant was charged in two separate indictments with the unlawful distribution of cocaine, in violation of § 13A-12-211, Code of Alabama 1975, and the unlawful possession of cocaine, in violation of § 13A-12-212, Code of Alabama 1975. The appellant pleaded guilty to the possession charge and was tried and subsequently convicted the following day for unlawful distribution. The appellant was sentenced to 10' years’ imprisonment on the distribution conviction and 2 years’ imprisonment on the possession conviction, with the sentences to run concurrently. The appellant was ordered to pay a $500.00 fine, $20.00 restitution, and $50.00 to the Victims Compensation Fund.

The appellant argues that the trial court committed reversible error by denying his motion to dismiss the charge of unlawful distribution of a controlled substance on grounds of double jeopardy. More particularly, he argues that he should not have been tried for unlawful distribution because he had pleaded guilty to unlawful possession, which he contends is a lesser included offense of unlawful distribution. He bases his argument upon the assertion that both charges stem from the same transaction.

The record indicates that the undercover officer who made the purchase observed the appellant pull several rocks of cocaine from his left front shirt pocket. The officer then purchased one of these rocks and left the scene. He had been monitored by other officers during the transaction. Within close to one minute of the purchase time, this officer notified the monitoring officers of the appellant’s description and a description of his whereabouts and actions. Other officers shortly thereafter approached the appellant and, finding the additional crack cocaine on his person, arrested him for possession of the narcotic. During the appellant’s trial concerning the unlawful distribution of the cocaine, the State introduced evidence from the officer as to the time, location, and circumstances of the purchase. The State then ascertained that the officer had called in a description of the appellant and his location. During the cross-examination of this witness, defense counsel elicited testimony that this officer told the “receiving officers,” who were listening on the monitor, that the appellant had several pieces of crack cocaine remaining in his pocket. The State thereafter presented the testimony of a monitoring officer who testified that he received information from the purchasing officer concerning the appellant’s description and whereabouts and information that he was entering a car and proceeding in a certain route. The officer also testified that the purchasing officer informed him that the appellant had 10 or 11 pieces of crack in his pocket.

The trial court had previously denied the appellant’s objection based on double jeopardy and, following the evidence presented, again denied the appellant’s motion, stating:

“I think that the — for the purpose of double jeopardy issue that the evidence seems fairly clear that it was the same collection of controlled substances that the Defendant exhibited to Officer Wheeler. The time factor, the distance factor, lack of opportunity to get other controlled substances and so forth mandates that conclusion. I don’t think any other conclusion is possible. Nonetheless, I find that they are distinct offenses, the sale offense and the possesso-ry offense, because it is also I think impossible not to conclude that the actual controlled substance sold to Officer Wheeler was not the very same controlled substance in his pocket after he sold it. I think that conclusion is also impossible to avoid under the facts. That is, that he sold presumably one piece to Officer Wheeler, gave it to him, left, and then was arrested in possession of the remaining pieces, and I find that as a matter of fact. Under those circumstances I find that double jeopardy does not bar the sale offense and I find the Defendant guilty of unlawful distribution of controlled substances.”

In this case, the offenses of distribution and possession have neither the identical statutory elements, nor is one a lesser-included offense of the other. See Buice v. State, 574 So.2d 55, 57-58 (Ala.Cr.App. 1990) (“ ‘Possession of marijuana is not a lesser-included offense, but is a co-ordinate offense to the crime, and to a charge, of selling marijuana’ ”). Thus, there was no violation of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Moreover, factually the two charges concerned different rock cocaine, although the appellant had apparently been in possession of all of this illegal substance when he made the initial sale.

In Ex parte Darby, 516 So.2d 786 (Ala. 1987), the Alabama Supreme Court addressed a situation in which the defendant was arrested, after an informant, under police observation, had bought cocaine from him. Two indictments were brought against the defendant, one charging the unlawful sale of the cocaine, and the other charging the unlawful possession of cocaine. However, by footnote, the Alabama Supreme Court stated that the second indictment, which charged “possession,” actually charged a violation of § 20-2-80(2) (repealed), which created the felony of trafficking in cocaine. The jury returned its verdict in terms of trafficking. The Alabama Supreme Court, in Darby, defined “trafficking” as “ ‘to engage in commercial activity: buy and sell: trade; to engage in illegal or disreputable business activity.’ ” That court based its decision on the grounds that the appellant was convicted of both selling and trafficking in cocaine. The Court held that this violated the constitutional provisions regarding double jeopardy, stating:

“To punish a person for ‘regularly selling’ and for ‘selling’ when he has been arrested only once for selling some of what was then in his possession and retaining the rest is clearly to violate the constitutional prohibition against subdividing a criminal act and imposing multiple punishments for it.”

Id. at 788. Thus, the Alabama Supreme Court held that the sale of cocaine was a lesser-included offense of trafficking in cocaine and, therefore, that the conviction for the sale violated the defendant’s rights against double jeopardy.

However, in the present case, these two charged offenses do not concern the same cocaine or the same criminal act. The appellant was not charged with the possession of the cocaine that he sold to the undercover officer. Moreover, his retention of the rest of the cocaine was not a part of the criminal act of the sale. Clearly the appellant could have subsequently sold this remaining cocaine or he could have used it himself, either of which would have constituted a criminal act separate from the original sale.

In Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), the United States Supreme Court expanded the Blockburger test to hold that, in order to determine whether the double jeopardy clause had been violated, a court must determine what conduct the State will prove, rather than the “actual evidence” that the State will use to prove it. Thus, in Grady v. Corbin, supra, because the prosecutor stated in his bill of particulars that he intended to prove all of the conduct that had constituted the basis for the appellant’s first conviction, in proving his violation of subsequent offenses arising from the same series of transactions, the State violated the defendant’s rights against double jeopardy. The United States Supreme Court further held that the subsequent prosecution would not have been barred had the State’s bill of particulars revealed that the prosecution would rely solely on the conduct constituting the subsequently charged offense, which did not include the conduct encompassing the prior convictions. Although the State had indicated it would prove all of the conduct supporting the prior convictions, this proof would have been unnecessary, as there was proof of other conduct by the defendant that would have supported the subsequent charges.

In the present case, the State’s allegations in the indictment did not violate Grady v. Corbin, supra; nor did the State’s ultimate proof of the offensive conduct introduced at trial. Any error in the State’s presentation of evidence that the appellant had retained 10 to 11 rocks of cocaine following the sale and that the arresting officers were informed of this fact, was harmless, because defense counsel initially elicited this testimony on cross-examination of the State’s first witness, the purchasing officer. Garrett v. State, 580 So.2d 58 (Ala.Cr.App.1991); Reuther v. State, 599 So.2d 1246 (Ala.Cr.App.1992).

Because the appellant’s convictions do not violate his rights against double jeopardy under the Blockburger test or the standard established in Grady v. Corbin, supra, we find no error by the trial court in this regard.

AFFIRMED.

All Judges concur.

BOWEN, J., concurs specially with opinion.

BOWEN, Judge,

concurring specially.

I agree with the majority that the possession of cocaine is not, under the particular facts of this case, a lesser included offense of the sale of cocaine. I do not reach that conclusion, however, on the basis of Buice v. State, 574 So.2d 55 (Ala.Cr.App.1990), the authority cited in the majority opinion, but on the basis of the legislative intent expressed by the passage of and the wording used in Ala.Code 1975, § 13A-12-211 (unlawful distribution of controlled substances) and § 13A-12-212 (unlawful possession or receipt of controlled substances), as well as the holdings in McKinney v. State, 511 So.2d 220 (Ala.1987), and Ex parte Jordan, 486 So.2d 485 (Ala.1986).

In Buice, and in Brisbon v. State, 378 So.2d 743 (Ala.Cr.App.), cert. denied, 378 So.2d 744 (Ala.1979) (the authority upon which Buice relied), the accused was prosecuted for the sale of marijuana under former Ala.Code 1975, § 20-2-70(a), now repealed. The issue in Buice and Brisbon was whether any lesser charges were warranted by the evidence. They were not. The proof in each case showed that the accused was either guilty of a sale or not guilty of any crime. There was simply no “rational basis for a verdict convicting the defendant” of any lesser offense. See Ala. Code 1975, § 13A-l-9(b). Nevertheless, the Buice court observed that under former § 20-2-70, the “[possession of mari- , juana is not a lesser included offense, but it is a co-ordinate offense to the crime, and to a charge, of selling marijuana.” Buice, 574 So.2d at 58 (quoting Brisbon v. State, 378 So.2d at 744). The conclusion that possession and sale were coordinate crimes under former § 20-2-70(a) was inescapable in view of the fact that that section provided, in pertinent part, that

“any person who possesses [or] sells ... controlled substances ... is guilty of a felony and, upon conviction, may be imprisoned for not less than two nor more than 15 years and, in addition, may be fined not more than $25,000.00.”

From the clear language defining the offense and setting the penalty in § 20-2-70(a), it was evident that the legislature considered the possession of and the sale of controlled substances to be different methods of committing the same, but comparable and equally culpable, offense.

In 1987, however, the legislature enacted the “Drug Crimes Amendments Act of 1987,” of which §§ 13A-12-211 and -212 are a part. The amendments substantially altered both the substantive definitions and the penalty provisions of controlled substances offenses. See Pool v. State, 570 So.2d 1260, 1261 (Ala.Cr.App.), affirmed, 570 So.2d 1263 (Ala.1990); Watley v. State, 568 So.2d 852, 854 (Ala.Cr.App.1989), cert. quashed, 568 So.2d 857 (Ala.1990). The new code provisions obviously represent the legislature’s determination that the sale of controlled substances is a more serious offense than the mere possession of controlled substances. The former is a Class B felony and the latter is a Class C felony. Viewing that fact alone, one might conclude that possession is a lesser offense of sale. Under the particular facts of this case, however, I do not believe that conclusion would be correct.

Unlike § 20-2-70(a), which had prohibited the sale or possession of “controlled substances,” §§ 13A-12-211 and -212 now prohibit the sale or possession of “a controlled substance.” This subtle change in wording is significant because it signals a change in the legislature’s “ ‘description of the unit of prosecution within the substantive criminal law statutes.’ ” See McKinney v. State, 511 So.2d 220, 224 (Ala.1987) (quoting R. Owens, Alabama’s Minority Status: A Single Criminal Act Injuring Multiple Persons Constitutes Only A Single Offense, 16 Cum.L.Rev. 85, 104 (1985-86).

Section 20-2-70(a) had been construed to authorize one conviction and one sentence for the possession of controlled substances. See Vogel v. State, 426 So.2d 863, 882 (Ala.Cr.App.1980), aff’d on another ground, writ quashed as to instant issue, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983) (“[o]nce the presence of the first controlled substance is proven, the offense is complete, and the presence of other controlled substances at the same time does not act to split the possession”).

Under the new code provisions, however, it can be reasonably inferred that, because the legislature used the term “a controlled substance” to define the offense, it meant to “allow multiple convictions” based on transactions which would have been deemed a single offense under § 20-2-70. See McKinney v. State, 511 So.2d at 224-25. That is, under the 1987 amendments, the offense is not complete once the presence of the first controlled substance is found; instead, “the presence of other controlled substances at the same time” may “act to split the possession.” Vogel v. State, 426 So.2d at 882. Thus, a batch of cocaine may be “split,” both in actual fact as it was here, and in legal contemplation, into a portion which was transferred for consideration or “sold,” and into a portion which was retained or “possessed.”

Although, as an abstract matter, the possession of cocaine may be a lesser included offense of the sale of cocaine, we are not permitted, in making a lesser included offense analysis, to consider the relationship of the sale and the possession statutes in the abstract. Ex parte Jordan, 486 So.2d 485, 488 (Ala.1986). The lesser included offense determination requires that we do not consider “the potential relationship of ... statutes only in abstract terms.” Instead, we must analyze the relationship of , the statutes in light of the facts of the particular case and the indictments under which the accused was charged. Id.

Performing that analysis in this case leads to the conclusion that the act of selling one portion of a batch of cocaine does not include, either as a factual matter or as a lesser included offense in legal contemplation, the act of possessing the retained portion of the batch. In this context, an “act” is “a discrete event arising from a single criminal intent”, while a “transaction” is a “related series of acts.” Carawan v. State, 515 So.2d 161, 170 n. 8 (Fla. 1987). Here, the appellant performed two acts: the transfer of a controlled substance, and the retention of a controlled substance.

Therefore, because the appellant committed two discrete acts, each of which constituted an offense which the legislature has prohibited and neither of which was necessary in order to “prove” the other, he was not in jeopardy, during his trial for the sale of cocaine, of the “same offense” for which he had previously pled guilty, the possession of the “retained” portion of the cocaine. See Henderson v. State, 569 So.2d 925, 928 (Fla.App.1990) (finding separate acts, and therefore separate offenses, from proof that the accused “retained possession of cannabis other than the cannabis he sold”) (emphasis in original).

Each offense required proof, under these facts, of an element not required by the other. The sale offense required proof, not only of a delivery for consideration, but also of the transfer of a discrete controlled substance, not required for the possession offense. The possession offense required proof of the retention of a discrete controlled substance not required for the sale offense. Therefore, the appellant’s separate prosecutions pass the Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), test as it has been interpreted by the Alabama Supreme Court in Ex parte Jordan. The two prosecutions also pass the Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), test:

“To determine whether a subsequent prosecution is barred by the Double Jeopardy Clause, a court must first apply the traditional Blockburger test. If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. Brown [v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)], supra, at 166, 97 S.Ct., at 2225.
“[However], a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in [Illinois v.] Vitale [447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980)], the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.”

Grady v. Corbin, 495 U.S. at 516, 520, 110 S.Ct. at 2090, 2093.

The State did not have to prove, as an essential element in the sale case, the appellant’s conduct of retaining a portion of the batch of cocaine. As the majority points out, the State did not, in fact, elicit this information. The fact that it was brought out by the defense is immaterial for purposes of Grady v. Corbin because it was not “an essential element” of the offense of sale.  