author: HARRIS, Judge.

text:
    Danny Ray MILES, alias v. STATE.
    6 Div. 222.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.

      No brief for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant, Danny Ray Miles, AKA Danny Ray Mylar, was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. Throughout the trial proceedings appellant was represented by the widely known law firm of Wilkinson, Purvis, Pick-ard & Parsons of Birmingham. All of these lawyers are experienced in trial work and are noted for their resourcefulness, ingenuity and astuteness in protecting the constitutional rights of their clients.

This is one of the most bizarre cases to find its way to this Court in a long time. It involves a double murder, robbery, kidnapping and rape. The victims were Mrs. Clarice Knabe and Ronald Harvel White. Appellant was indicted for killing White with a .38 caliber pistol and one Samuel “Bud” Yarber was indicted and convicted in the shooting death of Mrs. Knabe and he, too, was sentenced to life imprisonment. This is a classical case of two murder suspects, each trying to put the blame on the other and thus exculpate himself from a murder conviction. Their efforts backfired and justice still reigns supreme.

This tragic episode began on the late afternoon of November 3,1975, when appellant went to the apartment of Yarber around 6:30 p. m. About 45 minutes later they left in Yarber’s car to go out drinking. They went to several bars and drank beer at each. Appellant asked Yarber to accompany him to K-Mart’s Sporting Goods Department in order to purchase some ammunition for Yarber’s .38 caliber pistol which appellant had previously asked to borrow. They went to K-Mart, where appellant purchased a box of ammunition around 9:00 p. m. that night. This purchase was recorded in a book which the manager of the Sporting Goods Department testified he was required by law to keep.

The two men then returned to Yarber’s apartment where Yarber gave appellant his pistol. As appellant was loading the pistol the pistol discharged and the bullet lodged in the wall or ceiling of the living room. Yarber became provoked at appellant for discharging the pistol in his apartment for fear he would be evicted. Appellant apologized to Yarber and carried the pistol out of the apartment and put it in his car.

A short while later the two men left in appellant’s car and went to the 2010 Lounge in downtown Birmingham, arriving there around 9:30 p. m. They parked in the rear parking lot and entered the lounge through the back door. There were a number of customers in the place at the time. They were all drinking and watching a football game on television. The football game was over just before 11:00 p. m. and everyone left except the bartender, Mrs. Clarice Knabe, Mr. Ronald Harvel White, appellant and Mr. Yarber. At this time, according to the testimony of Mr. Yarber given at a preliminary hearing, appellant pulled out the pistol he had borrowed from Yarber and ordered Mrs. Knabe and Mr. White to put their hands up and said, “This is a stick-up.” Appellant ordered Yarber to lock the front door and then demanded all the money from Mrs. Knabe and Mr. White. Mrs. Knabe protested that the owner of the lounge did not leave any money in the place. Appellant walked behind the bar to check for himself. Appellant ordered White to empty his pockets on the counter and White put his wallet on the bar. At this time there was a knock on the front door and appellant ordered Mrs. Knabe and Mr. White out the back door and into the back seat of his car. Appellant ordered Yarber to drive the car. Yarber asked appellant where they were going and appellant told him to drive to the place where they had zeroed Yarber’s deer rifle a few weeks previously. Yarber began traveling south on 1-65 toward Hoover, Alabama, and turned south on Highway 31. They traveled south on Highway 31 to Highway 150 going toward Bessemer. During the entire trip from the 2010 Lounge appellant kept asking Mrs. Knabe what she was going to tell the owner of the lounge and she said, “We’re going to tell him that two colored men came in and robbed us.” Appellant asked White what he was going to say and White told him he was going to say the same thing that Mrs. Knabe was going to say.

Appellant pointed the pistol at Mrs. Knabe and White in the back seat and told them to take off all their clothes. After they had completely disrobed appellant told Mrs. Knabe to get in the front seat between him and Yarber and she did. When they arrived at the appointed place appellant ordered Mrs. Knabe out of the car and told White to keep his hands up inside the car. Appellant then proceeded to have sexual intercourse with Mrs. Knabe on the trunk of the car while Yarber and White remained inside the car. He then ordered White out of the car and told Mrs. Knabe to lie on her back on the ground. Appellant ordered White to get on top of Mrs. Knabe. While they were in that position, according to sworn testimony given by Yarber at the preliminary hearing, appellant shot and killed both Mrs. Knabe and Mr. White. Appellant then reloaded the pistol, and he emptied it again into the bodies of the two victims. Yarber saw appellant standing over the two victims with the pistol in his hand and said he did not know how many shots were fired but thought there were ten to fifteen. Appellant then got back in the car and told Yarber to return to Highway 31, and to find some deep water so that he could dispose of the gun.

As they drove along appellant directed Yarber to throw the clothes of the victims out of the car at different places and intervals along the highway. He then had Yar-ber drive to Lake Purdy off Highway 119 where appellant got out of the car and threw the pistol as far into the lake as he could throw it, and threw two unspent cartridges several feet out into the lake.

While in the car on the way back to town appellant pressed Yarber to take some of the money that he had obtained in the robbery of Mrs. Knabe and Mr. White. Yarber told appellant that he did not want the money but he got around fifty dollars anyway, and appellant coached Yarber as to their alibi on this fateful night.

Yarber was called as a State witness during appellant’s murder trial but he refused to answer a single question posed to him by the trial court or the District Attorney. Yarber would not even state his name. The trial court ruled that it would serve no useful purpose to hold him in contempt of court and sentence him to jail. The trial court, over appellant’s objection, admitted into evidence Yarber’s testimony given at appellant’s preliminary hearing at which time Yarber was subjected to an extensive, vigorous, withering, thorough and searching cross-examination by appellant’s lawyers.

It is noteworthy that appellant testified at his own trial and his testimony as to all the details, places, and circumstances leading up to and culminating in the robbery, kidnapping and killing of Mrs. Knabe and Mr. White, in the main, pigtracked the testimony of Yarber with one exception: Appellant claimed that Yarber was the leading actor in the entire drama and it was Yarber who did all the things that Yarber accused appellant of doing.

Appellant objected to the introduction of Yarber’s testimony given at the preliminary hearing on the ground that the proper predicate had not been laid for his former testimony, viz., (1) that the witness was not absent from the State permanently, (2) that he was not dead, (3) that he could not be found after diligent effort, (4) that he was not under any disability, and (5) that he was not available by reason of a claim of privilege. These were the common-law rules governing the admissibility of a witness’s testimony, given under oath, at a former trial, or preliminary hearing, when the witness was cross-examined or the opportunity was afforded for cross-examination.

These rigid common-law rules have been relaxed in many states in the interest of insuring a full measure of justice. These rules have been relaxed in this state for this reason and it is now settled law. Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837; Bridges v. State, 26 Ala.App. 1, 152 So. 51.

In Bridges v. State, supra, this Court said:

“The witness Gilpin, when called, refused to testify, claiming his constitutional right not to be forced to give evidence which would tend to incriminate him. He thereby placed himself where he was not available to the state to be used as a witness. Thereupon, over the objection and exception of defendant, the state was allowed to make preliminary proof that this witness had been examined and cross-examined as a witness for the state on the former trial of this same case in the circuit court of Jefferson county, and over objection and exception of defendant the state was then allowed to read to the jury the testimony of the witness Gilpin given on such former trial. This is not now an open question in this state, and while there are some decisions to the contrary, this court and the Supreme Court have spoken on the question and we see no reason to reopen the subject. The witness Gilpin having testified on a former trial of this case, with full opportunity for cross-examination and when called to testify on this trial he rendered himself incompetent as a witness without fault on the part of the state, the trial court properly allowed his testimony on the former trial to be read in evidence. Woodward v. State, 21 Ala.App. 417, 109 So. 119; McCoy v. State, 221 Ala. 466, 129 So. 21.”

Oliver Clark was driving on Highway 150 around 7:00 a. m. on November 4, 1975 and discovered the nude bodies of the victims. He went to a telephone and called the office of the State Troopers. State Trooper Jim Wallace responded to the call. After viewing the bodies Trooper Wallace secured the scene and notified all State, County and City law enforcement agencies.

J. F. Helton, Deputy Coroner of Jefferson County, came to the murder scene and pronounced the victims dead.

Jay Glass, an Assistant Pathologist, with years of experience in performing autopsies to determine the cause of death, came to the murder scene and performed autopsies on both victims. He stated that the cause of death of both the male and female was due to multiple gunshot wounds. The bodies were removed to a local morgue where more definitive autopsies were performed. He took a vaginal smear and by a microscopic examination determined evidence of spermatazoid. Mr. Glass also found numerous penetrating and perforating gunshot wounds to the head and body of both victims and he was able to remove several projectiles or slugs from each body. He further testified there were seven entrance wounds in the body of the female and nine entrance wounds in the body of the male.

Some sixteen witnesses testified for the State and we see no reason to detail the testimony given by each of them. Mrs. Alma Vest was the last person to see appellant, Yarber, Mrs. Knabe and Mr. White together at the 2010 Club on November 3, 1975, just before 11:00 p. m. She knew Mr. White as he was her immediate supervisor at the Post Office where both of them were employed. At the time she left the 2010 Club with her companion no one was at the club except Mrs. Knabe, Mr. White, appellant and Yarber.

After these brutal killings were discovered the law enforcement officials in Jefferson County began an extensive manhunt to track down and apprehend the killers. Evidence technicians found fingerprints on glasses and beer bottles and Mrs. Knabe’s purse on the night that they were missing from the club. These latent fingerprints were turned over to an expert technician whose qualifications were admitted by counsel for appellant. According to her testimony she was able to identify the latent prints left on the various items in the club with the known fingerprints of appellant and she testified that they were identical.

Other evidence technicians removed a .38 caliber bullet from the wall of the 2010 Club and from the home of Yarber. They also found spent cartridges at the scene of the double murder. A .38 caliber pistol was recovered from Lake Purdy along with two unspent .38 cartridges. The autopsy surgeon recovered three slugs from the body of Mr. White. All of these cartridges and slugs together with the .38 pistol were turned over to an expert to test-fire the pistol and make a microscopic comparison of the slugs removed from the club, from Yarber’s home, and from the body of Mr. White. He testified that the microscopic comparison showed beyond doubt that each of these slugs was fired from this particular .38 caliber pistol.

In short, the evidence adduced by the State weaved a web around appellant from which he was unable to extricate himself from his connection with this double murder.

As we have pointed out the testimony of appellant and the testimony of Yar-ber given at the preliminary hearing were conflicting in the extreme. It was solely within the province of the jury, and not this Court, to determine the credibility of these two felons. Snipes v. State, 50 Ala.App. 139, 277 So.2d 413; Pugh v. State, 51 Ala. App. 164, 283 So.2d 616; Waters v. State, 55 Ala.App. 646, 318 So.2d 342. Hail v. State, 50 Ala.App. 666, 282 So.2d 104.

In Stokley v. State, 254 Ala. 534, 49 So.2d 284, the Supreme Court held:

“It is well established that when, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act. Such community of purpose or conspiracy need not be proved by positive testimony. It rarely is so proved. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Morris v. State, 146 Ala. 66, 41 So. 274, and cases cited; Jones v. State, 174 Ala. 53, 57 So. 31; Teague v. State, 245 Ala. 339, 16 So.2d 877.
“When two or more persons enter upon an unlawful purpose, with a common intent to aid and encourage each other in anything within their common design, they are each responsible, civilly and criminally, for everything which may consequently and subsequently result from such unlawful purpose, whether specifically contemplated or not.”

This was a cold-blooded murder without any mitigating or extenuating circumstances. Two helpless and defenseless victims were robbed, kidnapped and shot to death. It does not matter which of the two men actually pumped the bullets into the bodies of Mrs. Knabe and Mr. White, they were both equally guilty of murder and must pay the penalty of the law.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte Danny Ray MILES, alias Danny Ray Mylar.
    SC 2410.
    Supreme Court of Alabama.
    April 1, 1977.
   EMBRY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES and ALMON, JJ., concur.


author: TYSON, Presiding Judge. BOOKOUT, Judge,

text:
    Paul Marion SWICEGOOD v. STATE.
    6 Div. 299.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 8, 1977.

      Robert L. Shields, III, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
   TYSON, Presiding Judge.

The appellant was indicted for the robbery of one Claxton Carter by taking some $7,000.00 in currency, one tape recorder, one leather suit bag, a pair of eyeglasses, two thirty-eight caliber pistols, four eight-track tapes, and some clothing from his person and by putting him in fear. The trial jury found the' appellant guilty as charged, and fixed punishment at twenty years imprisonment. The trial court then entered judgment, setting sentence in accordance with this verdict, and following a hearing on the motion for new trial, which challenged the lineup identification and the weight and sufficiency of the evidence, the motion was denied.

On the early morning of May 4, 1975, Mrs. Pauline Carter returned to her home at 620 Lisa Lane in Roebuck Forest, Birmingham, from the New Spot Lounge, a night club, which she owned and operated along with her husband, Claxton Carter. Upon entering her home and proceeding to a back room, which was being utilized as an office, she was seized by two men and carried into her bedroom where she was bound, gagged, and blindfolded, then laid across the bed. She testified at trial that the two men wore ski masks, and after tying her up began to ransack her home, but she realized from statements which they made to each other that they were waiting upon her husband’s return as they wanted the proceeds of their operations from the night club. She overheard the two men make such statements as they knew the Carters had had a “good night” at the club, that they knew Mr. Carter had heart trouble, and that she had a bad hip. They also said that friends referred to her husband as “Carter.”

Mr. Carter arrived at his residence about two hours later, where he, too, was bound, gagged, and blindfolded, and the proceeds of the night’s operations at the club were taken from him. Mr. Carter stated that he did not see the faces of the two men, but he overheard them talking and felt that he could recognize their voices. Mr. Carter stated that the men continued to threaten him and stated that they would kill him if he did not tell them where the “money box” was. He stated that he asked them several times where his wife was. He told them after repeated questioning, “That’s all the money I have, it is in the desk and that is all I brought back home.” He stated that the men wore ski masks and had on gloves, that because of this he did not get- a good look at their faces. He was asked on cross-examination if either of the men had a mustache, and he replied that he did not know, that he did not see one.

Mrs. Carter stated on cross-examination that because the two men removed her blindfold so that she could identify the automobile keys, she got a fleeting glance at one of the men’s face as he had removed his ski mask at this time. Mrs. Carter testified that after the men fled, she was able to struggle and free herself, that she then telephoned the police.

Birmingham Detective Sergeant Lavon Coleman testified that he investigated the robbery of the Carter home in May, 1975. He testified that he also arrested the appellant on May 22, 1975, and that he did not have a warrant at this time. He testified at trial that he had received information from a confidential, reliable informant that he had used over a period of six or eight years that Paul Marion Swicegood had participated in the robbery of the Carter home. Coleman stated that his informant had proven reliable' many times over a several year period, that information received from this informant had led to many trials and convictions. He estimated that he had made at least a dozen convictions in the past four to five years on information from this informant.

Officer Coleman stated at trial that he went to the appellant’s home and advised him that he was under arrest from suspicion of a robbery, and also told him that he was under arrest because he had a prior felony record and was in possession of a pistol.

The appellant was placed in a lineup at police headquarters the following day, May 23,1975, where he was represented by counsel, the Honorable James Jolly. The appellant was one of five in a lineup, and each of these men were required to make an appearance in ski mask and speaks certain words, then to make a second appearance without the mask and to speak certain words.

Mrs. Carter identified the appellant on his second appearance by his voice and by his appearance, and Mr. Carter recognized him, also on his second appearance by his manner of speaking and the way he answered certain questions which were asked of him. Both Mr. and Mrs. Carter testified that they did not communicate with each other between the appearances of the appellant in the lineup, nor did they communicate with Sergeant Coleman or any of the other officers present at this time.

Upon cross-examination Officer Coleman did state that after both Mr. and Mrs. Carter had selected the appellant from the lineup he could have stated to them, “That’s the suspect we had.”

Birmingham Police Officer P. T. Hurst testified he participated in the lineup which was conducted May 23,1975, at police headquarters in which the appellant appeared. Officer Hurst stated that there were five males placed in the lineup, all of them between five feet seven and five feet ten, and between 155 and 170 pounds. He testified the ages varied from the mid twenties to the mid thirties. He testified the appellant did have a mustache at the time of the lineup. He also testified that he did not communicate with either Mr. or Mrs. Carter between the two appearances of the appellant at the lineup. In fact he stated he had no conversations with either of them during the lineup procedures.

At the close of the State’s case, the appellant made a motion to exclude, which was overruled. The appellant did not testify at trial. He did, however, present the testimony of Elaine Spurlin Walters, Jackie Spur-lin, and Jean Sadler, all of whom testified that they were with the appellant on May 4, 1975, and drove with him to the Winston 500 Race at Talladega, Alabama, that they were not in Birmingham on the date in question.

The appellant also presented the testimony of one John Ryan, who testified that he passed the appellant on May 4, 1975, that appellant told him that he was going to the races at Talladega that day.

Larry Todd also testified for the appellant and stated that he had seen him on the morning of May 4, 1975, as he was getting ready to go fishing, and that appellant asked him to go to the races at Talladega with him.

The State called Larry Todd in rebuttal, and he admitted to a burglary conviction in 1969. The State also called John Ryan, and he admitted to a conviction in 1970 for buying, receiving, and concealing stolen property.

I

The appellant first contends that he was denied the effective assistance of counsel at the lineup identification because the attorney who represented him at this time was an acquaintance of Mr. and Mrs. Carter. Counsel also urges this Court to adopt more stringent standards with reference to representation by counsel at a lineup identification than is presently required under the opinion of the Supreme Court of the United States in Kirby, v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

This Court is fully committed to the position that where, as here, the lineup identification took place prior to indictment, representation by counsel is not required. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Havard v. State, 50 Ala.App. 147, 277 So.2d 421; Hall v. State, 50 Ala. App. 666, 282 So.2d 104.

II

Appellant contends next that the lineup procedures were unduly suggestive, that Mrs. Carter only had a brief glimpse of one of the assailants’ face as she was being asked about the keys to the automobile, and that Mr. Carter did not, by his own admission, see either of the men, as they were wearing ski masks. He maintains also that because the men were required to appear twice at the lineup on May 23, 1975, and that because both Mr. and Mrs. Carter did not positively identify the appellant until his second appearance, there was opportunity for comparison and conversation between the Carters and the police officers.

Both Mr. and Mrs. Carter testified that they did not communicate with each other, or with any of the officers present at the lineup procedure when they identified the appellant. Each stated that they were positive because of the voice and the statements made about Mr. Carter’s heart condition and of the operations of the night club, and the monies which would be with them. Each stated that they recognized the appellant’s voice as being the voice they heard in their home on the night of the robbery. Each stated that their identification was based upon the voice they heard at their home on the night of the robbery, and each positively identified the appellant in court at trial. Moreover, Mrs. Carter stated that she positively remembered the appellant by viewing him on the night of the robbery, May 4, 1975, at her home.

The law governing a situation as is here presented is well stated by Judge Harris, speaking for this Court in Smith v. State, 53 Ala.App. 27, 296 So.2d 925, as follows:

“The law is that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain it, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. We are not so convinced. Bridges v. State, 284 Ala. 412, 225 So.2d 821; Jones v. State, 40 Ala.App. 419, 114 So.2d 575.
“A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Gray v. State, 38 Ala.App. 508, 88 So.2d 798; Nabors v. State, 82 Ala. 8, 2 So. 357.”

This Court is without warrant to disturb the verdict of the jury where the evidence, as here, is conflicting. Hines v. State, 260 Ala. 668, 72 So.2d 296; Oury v. State, 53 Ala.App. 240, 298 So.2d 661.

We are of the opinion that the trial court here properly admitted the in-court identification of the appellant, and also properly determined that the lineup was not unduly suggestive. Cannon v. State, 53 Ala.App. 509, 301 So.2d 272; and authorities herein cited.

Ill

We have carefully examined the record and determined from the testimony of Sergeant Coleman that there was sufficient information possessed by him upon which to arrest the appellant. He was aware that a felony had been committed, and that the appellant was a participant therein. He was also aware of the appellant’s past criminal record. Title 15, Section 154, Code of Alabama 1940; Duncan v. State, 278 Ala. 145, 176 So.2d 840; Bridges v. State, 52 Ala.App. 546, 295 So.2d 266.

We have carefully examined this record, as required by law, and find no error therein. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

All the Judges concur.

On Rehearing

Application Overruled.

TYSON, P. J., and HARRIS, DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., dissents.

BOOKOUT, Judge,

dissenting:

After review on application for rehearing, I am of the opinion that no probable cause is shown for the officer’s initial entry into appellant’s mobile home. Although the officer’s unidentified informant was shown to be reliable in the past, no basis is shown for his information. It is insufficient for an informant to merely state that he “just knows” who committed a crime. That is a bare conclusion on the part of the informant that will not support a search or a seizure. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Likewise, a valid consent to enter the mobile home was not established. The fact that a young boy admitted entrance to the officers, after they identified themselves as officers, does not show a valid consent to enter without a warrant and to chase the appellant into another room where they were then in a position to claim that the “plain view” doctrine justified their actions. The officers must be lawfully in the constitutionally protected area before they can claim benefit of the “plain view” doctrine.

Title 15, § 154, Code of Alabama 1940, authorizes an arrest without a warrant, (a) if a felony has been committed and, (b) the officer has “reasonable cause” to believe the person arrested committed the crime.

“Reasonable cause” is information from a credible source which, if presented to a magistrate, would require the issuance of a warrant. Berry v. State, 27 Ala.App. 507, 175 So. 407 (1937). In a more recent case where the facts of the arrest were similar to those in the instant case, a warrantless arrest was held to be legal because the officer’s informant was an eyewitness to the crime. This Court went on to restate the established principle that, if a warrant-less arrest is not based upon reasonable or probable cause, any evidence obtained thereby would be rendered inadmissible. Reese v. State, 49 Ala.App. 167, 269 So.2d 622 (1972). If the warrantless arrest is not based upon probable cause, then use of “forbidden fruit” obtained as a result of the arrest, such as fingerprints or a subsequent in-custody identification, would likewise be rendered inadmissible. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).


text:
    Ex parte Paul Marion SWICEGOOD.
    SC 2425.
    Supreme Court of Alabama.
    April 1, 1977.
   EMBRY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES and ALMON, JJ., concur.


author: PER CURIAM.

text:
    Ellie Fleming MARTIN, III v. STATE.
    8 Div. 807.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.

      Henry H. Self, Jr. and Ronald N. Hudson, Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen. and Jack Curtis, Asst. Atty. Gen., for the State, ap-pellee.
   PER CURIAM.

The appellant was indicted by the grand jury of Colbert County for burglary in the first degree, was found guilty as charged, was sentenced to thirty years in the penitentiary, and appeals to this Court.

This appeal was submitted to this Court on briefs. The appellant was represented in the trial court by counsel of his own choice, and is here represented by the same counsel under court appointment.

The appellant complains in his brief that the trial court erred in denying his motion to suppress evidence of two witnesses who identified him. One witness identified the appellant at 1820 Shade Avenue in Florence, Alabama, and at Muscle Shoals Police Headquarters, and in the courtroom during his trial; the other witness identified the appellant at Muscle Shoals Police Headquarters, and in the courtroom at the trial. The appellant claims that the identifications were initially made under circumstances which were unduly suggestive, or conducted in a police-dominated atmosphere, were attended with suggestions and assurances by those conducting the investigation and the identifications that the right person was being detained, were generally carried out in an atmosphere calculated to give the witnesses no other choice than to identify the appellant, all of which were in violation of the law and against the appellant’s rights and were without notification to him of his rights against self-incrimination and his rights to have the presence of an attorney.

We have searched the record, and it appears that the alleged burglary was committed at 1405 Burrow Avenue, Muscle Shoals, Alabama, on the night of April 12, 1975 between 9:00 and 10:00 P.M.; that state witness Gamel, a cab driver, picked up two men at the Shop-Rite Market about three-fourths mile from the scene of the alleged burglary at about 10:30 P.M. on that night, and took them to 1820 Shade Avenue, in Florence, Alabama; that one of the men rode on the front seat of the taxi with the cab driver, and talked with him during the trip about houses. That the trip took about fifteen or twenty minutes’ time; that the fare was $4.00, and each passenger paid him $2.00. At the request of the law enforcement officers, the cab driver went back to the house at 1820 Shade Avenue in Florence between 2:00 and 4:00 A.M. on April 13, 1975, and went up on the porch and looked through a window of the house and identified the appellant as being the person who rode on the front seat with him from Shop-Rite Market at No. 8, 2nd Avenue in Muscle Shoals to 1820 Shade Avenue in Florence. He also identified a Mr. Johnson as being the other fare. It appears that he made only one trip from Muscle Shoals to Florence that night. That the officers did not tell him why they wanted him to make the identification, or suggest to him in any way the person in the room that he was to identify, other than to ask him if he would look and see if he could identify the person who rode with him that night. There were about six people in the room which included four men and two women. He had seen the two women before. The cab driver identified the appellant again that morning about 4:00 A.M. at the police headquarters in Muscle Shoals. At this time about six men walked through a hall, one at a time, and the cab driver was in a room where he could see them. No suggestions had been made to him as to which one to identify. The appellant together with a friend and several other people, two officers and two firemen, and Mr. Johnson were in the walk through, all voluntarily.

State witness Lou Aldridge, a clerk on duty at Shop-Rite Market in Muscle Shoals, testified that about 10:30 P.M. on the night of April 12, 1975 two men came in the store and asked if they could stay in the store out of the cold until the taxi came. She told them they could. She sold one a magazine, had conversation with appellant. It was cold, and neither man had on a coat. One asked her if the taxi had called. She told him “yes,” and that the taxi company said it was on the way. That she had a conversation with the appellant about the taxi company not trusting them. That at 3:30 A.M., April 13, 1975 she was called by Muscle Shoals law enforcement officers and asked if she would come down to see if she could identify the men who were in her store that night at about 10:30. She went to Muscle Shoals Police Headquarters, and at about 4:00 o’clock, A.M. saw several persons walk through a hall. No suggestion was made to her by any person as to which one was suspected. She recognized, and identified, the appellant as soon as she saw him pass by in the hall. She also made a positive in-court identification of appellant at the trial.

At the time the appellant was identified by the cab driver at 1820 Shade Avenue in Florence, and at the police headquarters in Muscle Shoals, and by the clerk of Shop-Rite Market, at police headquarters, he was not under arrest for the burglary. He appeared voluntarily. No adversary judicial proceedings had been initiated against him for the burglary, and he was not represented by counsel.

We hold that the appellant was not entitled to have counsel present when he was identified at 1820 Shade Avenue in Florence, or at police headquarters in Muscle Shoals. Appellant insists that the manner in which the appellant was identified by the taxi driver and the store clerk was unfair and so suggestive as to taint the in-court identifications by the witnesses.

The trial court heard all the evidence given on the motion to suppress, and on the trial before it, with reference to the identification of appellant by the witnesses, and concluded that the motion to suppress should be overruled and the identifications admitted in evidence. Under the facts we hold that the trial court’s ruling was correct. When viewed in light of all the surrounding circumstances, the in-court identification of the appellant was in no way tainted by the manner in which the appellant was identified out of court. Matthews v. State, Ala.Cr.App., 333 So.2d 189 (1976); Doss v. State, Ala.Cr.App., 333 So.2d 173 (1976); Wright v. State, Ala.Cr.App., 333 So.2d 218 (1976); Jackson v. State, 56 Ala. App. 276, 321 So.2d 243.

Appellant complains that the trial court erred to his prejudice by refusing to allow him to make a showing when the court sustained state’s objection to a question propounded by appellant, on cross-examination, to state’s witness, Mr. Ridgeway. We find in the record the following:

“Q. Mr. Ridgeway, have you ever attended any seminars or schools conducted by the State or by Law Enforcement Officials concerning the handling of real evidence?
A. Yes, sir. The Police Academy.
Q. What is the cardinal rule about handling real evidence?
MR. PATTON: I want to object to it if it please the Court, it’s irrelevant and immaterial.
BY THE COURT: I sustain.
MR. SELF: Your Honor, I will make an offer of proof if I have to, I think this will be relevant as we go along.
BY THE COURT: The objection is sustained.
MR. SELF: Well, I’d like to make an offer or proof then.
BY THE COURT: Approach the bench.
(At this time counsel for the state and the defendant approached the bench)”

Nothing more appears in the record on the subject.

The burden is on the appellant to have the record presented to this Court. For us to review a ruling of a trial court for refusing to allow a showing to be made, the record before us must show what the expected answer of the witness was, and that it was material, or that the trial court refused to allow the appellant to make a showing. The showing could be made in the presence or absence of the jury. Dockery, alias v. State, 269 Ala. 564, 114 So.2d 394; Harvey v. State Department Of Public Safety, 56 Ala.App. 660, 352 So.2d 170; Edwards v. State, 274 Ala. 569, 150 So.2d 710; Jackson v. State, 56 Ala.App. 94, 319 So.2d 290.

We hold that the record before us does not show what the expected answer was, and that it was material, or that the trial court refused to allow the appellant to make a showing.

Appellant contends that his conviction should be set aside upon the grounds that the trial court erred in sustaining the state’s objection to a question propounded by him to his witness, Officer Aday. Officer Aday was called as a witness by appellant, and "testified on direct examination that he had been a law enforcement officer for five years; that he did not own a dog, but that his partner, Officer A1 Carter, owned a police dog that had been specially trained to pick up the scent of human beings; that it was a valuable dog to police work. On cross-examination the witness stated that he did not know what scent the dog picked up on the night of the burglary, that it could have been anybody’s. On redirect examination by appellant’s counsel the following occurred:

“RE-DIRECT EXAMINATION BY MR. SELF:
Q. Mr. Aday, in your opinion, based upon your experience with these type dogs, would you have an opinion as to whether or not the scent that was picked up was the scent that the dog had gotten from whatever it was that the Muscle Shoals Police provided you with?
MR. PATTON: I want to object to it unless this witness is qualified as an expert, I do not believe—
BY THE COURT: Sustained.”

We have searched the record for evidence showing how much knowledge, experience, or training, the witness had in the subject matter inquired about, and find none. As to whether a witness is qualified to testify as to his opinion is a matter for the trial court, in its discretion, to determine. Luckie, alias v. State, 55 Ala.App. 642, 318 So.2d 337, certiorari denied, 294 Ala. 764, 318 So.2d 341; Creel v. State, 42 Ala.App. 225, 159 So.2d 809, certiorari denied, 276 Ala. 702, 159 So.2d 812; Letson v. State, 215 Ala. 229, 110 So. 21.

We hold that the trial court did not abuse its discretion in sustaining the foregoing objection.

Appellant complains further that the court erred in allowing the state to offer in evidence, over appellant’s objection, the reason for his separation from the U. S. Marine Corps. Appellant called his mother as a witness in his behalf, and she testified that prior to April, 1975 she saw her son every two or three months; that his hair was bleached; that his hair was short because he was in the Marines. This evidence was offered for the purpose of contradicting the evidence of a State Toxicologist who had testified earlier for the state, and had given his opinion that appellant’s hair had not been bleached, and was similar to hairs found on a mask at the scene of the burglary.

On cross-examination appellant’s mother testified that appellant had enlisted in the U. S. Marines in July of 1972, and came out of the service in December, 1974. Over the objections of the appellant she was further allowed to testify that appellant was separated from the Marine Corps as being unsuitable, or unfit. This occurred shortly before the trial court recessed at 11:45 A.M. until 1:00 o’clock, P.M. for lunch. When the court resumed at 1:00 P.M., the following occurred:

“BY THE COURT: Court will come to order. Let the record show that the jury is in the box and the defendant is present in open court with his attorneys. Ladies and gentlemen, at this time I want to give you some instructions and I want you to listen to me and please listen to what I am saying. I, as the Judge, have made a mistake, I have admitted, allowed to be given to you evidence which I should not have done, and the only way I can correct my error is by instructing you to disregard that testimony and I do, at this time, request and instruct you as in strong a language as I know how, to all of you, to please disregard any testimony that has been offered in the matter of the separation of the Defendant from the service. I further instruct you to disregard any testimony that has been given to you concerning the Defendant being in any place when he was not on leave from the service. What I am asking you to do is, in essence, to when you deliberate this case, I want you to erase those facts from you mind and not to consider them in deliberation and in making up your mind. I ask you to do that in fairness to the Defendant and out of your obligation as jurors. Thank you. Mr. Self, do you have any further witnesses to call?”

Collier, C. J., of the Supreme Court of the State of Alabama, in the case of State v. Givens, 5 Ala. 747, at page 755 stated.

“But the error in the admission of this evidence, we think was cured by instructing the jury, that it was illegal and should be disregarded by them. .
The withdrawal of improper testimony, is not to be regarded as the privilege of the party merely; it is not only a right but the duty of the court, upon becoming convinced, pending the trial, that it has sanctioned the admission of illegal evidence, so to inform the jury, and direct them to discard it. A defendant can never be prejudiced by such a course, as it is calculated to expedite justice, and if perchance, the improper evidence has exerted an undue influence on the minds of the jury, the court should accord to the defendant another trial.”

And this Court, speaking through Sanford, J., in the case of Huckabaa v. State, 19 Ala.App. 11, 95 So. 587 stated.

“When the court during the trial of a cause commits error in admitting testimony, and afterwards excludes it, and clearly and emphatically instructs the jury to disregard such testimony, the error is cured, unless the error has so prejudiced the jury as to be impossible of eradication.”

State v. Givens, supra; Huckabaa v. State, supra; Coe v. State, 53 Ala.App. 457, 301 So.2d 223; Lumpkin v. State, 19 Ala.App. 272, 97 So. 171; Reaves v. State, 33 Ala.App. 296, 33 So.2d 376; Baker v. State, 43 Ala.App. 550, 195 So.2d 815. There is no set rule by which the prejudicial character of improperly admitted evidence can be ascertained in all cases. Much depends on the issues, how it arose, and all the circumstances surrounding each particular case. Holt v. State, 26 Ala.App. 223, 157 So. 449; Ayers v. State, 48 Ala.App. 743, 267 So.2d 533; Cooper v. State, 42 Ala.App. 170, 157 So.2d 125.

We have reviewed the entire record, and hold that under the facts in this case the trial court, by excluding the inadmissible evidence, and clearly and emphatically instructing the jury to disregard such evidence, cured the error.

We have carefully reviewed the entire record, and find sufficient evidence to sustain the jury’s verdict finding the appellant guilty as charged.

There being no other rulings of the trial court complained of in appellant’s brief, we have examined carefully the entire record, and find from such examination that there is no error in the record prejudicial to the appellant.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte Ellie Fleming MARTIN, III.
    SC 2413.
    Supreme Court of Alabama.
    April 1, 1977.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: ENGLAND, Justice.

text:
    Gus George BUTCHIKAS, Petitioner, v. TRAVELERS INDEMNITY COMPANY, Respondent.
    No. 47733.
    Supreme Court of Florida.
    June 30, 1976.
    Rehearing Denied April 7, 1977.
    Lefferts L. Mabie, Jr. and James F. McKenzie of Levin, Warfield, Middle-brooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, for petitioner.
    A. G. Condon, Jr. of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for respondent.
   ENGLAND, Justice.

This case is before us to review a divided decision of the First District Court of Appeal, reported at 313 So.2d 101, relative to jury awards for punitive damages and mental anguish in so-called “excess damage” suits against liability insurers. Conflict is demonstrated between the decision below and Campbell v. Government Employees Ins. Co., 306 So.2d 525 (Fla.1974), as a consequence of which we have jurisdiction under Article V, Section 3(b) (3) of the Florida Constitution.

The legal questions brought to us arise out of an automobile-motorcycle accident, the defense of a lawsuit against the driver of the automobile by his insurance carrier, a jury verdict against the driver in excess of his insurance policy limits, a lawsuit against the carrier by the insured driver, and a jury verdict awarding damages in favor of the insured for (i) his liability to the injured motorcyclist in excess of policy limits, (ii) mental anguish as a result of all the problems caused by the carrier, and (iii) punitive damages. A detailed recitation of the facts appears in the district court’s opinion.

The district court reviewed the evidence adduced at trial and concluded that the award of compensatory damages for the insured’s “excess” liability was supported by the evidence. A majority of the district court reversed the jury’s awards for punitive damages and mental anguish, however, finding the evidence insufficient to support the former and finding no legal basis to support the latter. Our review of the record discloses no basis on which to discuss or disturb the district court’s decision in regard to the award of damages for -the insured’s excess liability. The legal issues relating to the award of damages for mental anguish and for punitive damages, however, deserve full discussion.

1. Punitive Damages. Both the majority and dissent in the district court rely on our Campbell decision to support their diametrically opposed conclusions. This would seem to suggest that, as a rule of law, Campbell is not as clear as it might be. The rule of law announced in Campbell is not the least bit ambiguous, however. We merely held in Campbell that:

“[T]he trial judge was not in error in concluding the course of conduct of the insurer with the policyholder was such the question of punitive damages should be decided by the jury. And the jury found from the recited facts the policyholder was entitled to punitive damages. We cannot as a matter of law gainsay them. There was involved the elements of concealment and misrepresentation — a continued course of dishonest dealing on the part of insurer toward insured.” 306 So.2d at 532.

Applying that rule of law to this case would require an affirmance on this issue, since the evidence in no way supports misrepresentation or a continued course of dishonest dealing.

The confusion in application of the rule of law stems, we believe, from semantics. Justice Overton, dissenting in Campbell on this issue, argued for a more stringent test to support punitive damages — one which would involve at least maliciousness, an intentional course of bad faith conduct, or a very severe breach of duty. The majority below, apparently leaning more toward that test, suggested that an award of punitive damages in cases of this type requires “malice, wantonness, willfulness, gross bad faith or reckless indifference to the rights of its insured.” Judge Boyer, dissenting below, appears to have a less strict philosophical approach toward punishing insurance carriers with punitive damages in these kinds of cases.

The difference between the two views of Campbell below can be explained, we believe, on a wholly different basis; namely, that the present case is not like Campbell at all. Campbell involved active concealment and active misrepresentations. This case involves non-feasance and a complete lack of essential communication between the insurance company and its insured. Viewed in that light we can distinguish Campbell entirely and adopt a rule of law more suited to this class of cases.

The one fact of record which is critical to this issue, aspects of which appear in the district court’s opinion, is that counsel for the insurance carrier and others involved in handling the motorcyclist claim on behalf of the company wholly ignored their insured from the beginning to the end of the proceedings. The carrier defends this fact on several grounds:

(1) that the insured was plainly responsible for the accident;

(2) that pre-trial settlement offers by the injured motorcyclist, as well as the carrier’s own evaluation of the case, were below policy limits; and

(3) that the motorcyclist’s settlement offer made after trial was not communicated to the insured due to his inaccessibility and counsel’s reasonable belief that a pending motion for new trial was well founded.

Petitioner’s point with respect to punitive damages is that an insurance carrier has a fiduciary responsibility to its insured, and that a failure to honor that responsibility (no matter how labeled) should entitle a jury to punish the company as a deterrent to future misbehavior by it and by other companies similarly situated. (Petitioner’s position, of course, once more focuses attention on the conflict of interest which inheres for attorneys and insurers under Standard contracts of insurance which require the company, and their counsel, to defend claims under the insured’s policy.)

Obviously, we in no way condone the company’s conduct in this case. We do, however, view this class of case as less egregious than those involving deliberate, overt and dishonest dealing. In this class of case the insured can be made whole by a compensatory damage award and a recovery of attorneys’ fees. We find it hard to justify a policy for Florida which awards more.

The social policy for punitive damages, as articulated by Mr. Justice Ervin in Campbell, is a sound one, but its application here is misplaced. A potential award in excess of policy limits plus attorney’s fees should be stimulus enough for an insurer concerned with its financial liability to communicate with its insured that he or she may have personal; financial exposure.

As to punitive damages, therefore, we affirm the judgment of a majority of the district court.

2. Mental Anguish. Petitioner offers us no Florida precedent for awarding compensation for mental anguish in an ‘‘excess” case, and ' our independent research has revealed none. We are referred to World Ins. Co. v. Wright, 308 So.2d 612 (Fla. 1st DCA), cert. denied, 322 So.2d 913 (Ida.1975), however, as authority for an award of this type in a non-excess insurance case. We do not find that case persuasive by reason of its lack of factual analysis and different procedural context. Rather, we note that in Campbell, Mr. Justice Ervin commented that mental suffering is frequently not compensated by an award of compensatory damages, and for that reason punitive damages are well suited to fill that void. We are left to inquire, then, in situations where there is no basis for punitive damages as we have here ruled, whether there should exist a middleground for cases in which punishment is not appropriate as a deterrent to the conduct of the carrier but should be provided as a reward beyond recompense out of solicitude for the travail of the insured? We think not. The rule in Florida has been that, absent a physical injury, a plaintiff can recover damages for mental anguish only where it is shown the defendant acted with such malice that punitive damages would be justified. Crane v. Loftin, 70 So.2d 574 (Fla.1954). It would be far-reaching indeed to expand that notion to permit financial recovery for all of the emotional and mental strains which modern society inflicts on an individual by reason of its inevitable clashes.

We note the view expressed in the dissenting opinion in the district court that insurer-defendants should be distinguished from other defendants because liability insurance is obtained in the first instance to avoid mental distress resulting from the uncertain risk of financial liability at a future time. It is axiomatic, however, that in “excess” cases the fact and degree of financial exposure are brought about by the insured’s decision to risk the financial and emotional consequences which naturally flow from the insufficiency of coverage. It is, in our view, sufficient protection as a matter of public policy if recovery for mental distress is available through a punitive damage award whenever the insurer has acted with such malice that a jury should be given the discretion to impose financial punishment. In such cases, it can generally be said that the degree of mental anguish is beyond the norm which a complicated society, unfortunately, imposes upon us all.

For these reasons, the judgment below is affirmed in all respects.

OVERTON, C. J., and ROBERTS and BOYD, JJ., concur.

ADKINS, J., dissents.

      . 313 So.2d at 104.

      . AVant of care and inattention to the rights of another were held to give rise to a jury issue of punitive damages in Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957). That case, however, involved a tort action rather than a contract action. This distinction was emphasized in Griffith (see 94 So. 2d at 858) and has subsequently been relied upon to condition the availability of punitive damages awards. American Int’l Land Corp. v. Hanna, 323 So.2d 567 (Fla.1975).

      . The company suggests that there was no reason to investigate the accident since liability was so manifest, that there was good reason not to involve the insured in the trial because of his lack of fluency, and that the insured’s belligerence would, in the company’s opinion, hamper rather than aid its defense of the damage issue.

      . lilr. Uutchikas was in Greece, having notified the carrier of his previously-planned trip and secured their approval of his absence.

      . See Barter v. Royal Indemnity Co., 285 So.2d 652 (Fla.1st DCA 1973), cert. (Uncharged, 317 So.2d 723 (Fla.1975).

      . Cf. Southeast Title & Ins. Co. v. Caldwell, 320 So.2d 12, 10 (Fla.1975) (on rehearing).

      . The claim in World was based upon an intentional infliction of emotional distress. There is absolutely no evidence upon which it could lie concluded that the respondent-insurer in this case intended to cause the mental anguish whicli petitioner allegedly suffered.

      . 306 So.2d at 531.

      . Nothing in this decision in any way affects the possible recovery of punitive damages and damages for mental anguish which may be available in a non-contract lawsuit. See Kirksey v. Jernujan, 45 So.2d 188 (Fla.1950).


author:
SUNDBERG, Justice.
      OVERTON, Chief Justice, concurring. ROBERTS, Justice (Retired),

text:
    Monroe W. TREIMAN, as Judge of the County Court of Hernando County, Florida, Appellant, v. The STATE of Florida ex rel. Thomas Hamilton MINER, Jr., et al., Appellees.
    No. 49061.
    Supreme Court of Florida.
    Feb. 10, 1977.
    Rehearing Denied April 7, 1977.

      Robert L. Shevin, Atty. Gen., Charles Corees, Jr. and Donna H. Stinson, Asst. Attys. Gen. and Fletcher N. Baldwin, Jr., Gainesville, for appellant.
    Frank McClung of McClung & Underwood, Brooksville, for appellees.
    Jerry Oxner of Reynolds & Marchbanks, Boca Raton, for Conference of County Court Judges of Florida, amicus curiae.
   SUNDBERG, Justice.

Appellant was at the time these’ proceedings were commenced a nonlawyer county judge in Hernando County. Appellees, re-lators below, were arrested on misdemeanor charges which could result in the penalty of imprisonment upon conviction. See' Sections 316.028, .029, .061, and 856.011, Florida Statutes. Defendants waived the speedy trial rule. Judge Treiman was the presiding judge in each case, and in each case appellees’ attorney moved to recuse or disqualify him. The motions were denied. Thereupon appellees filed a petition for writ of prohibition in the Fifth Judicial Circuit in and for Hernando County. On October 29, 1975, the petition was granted and the writ issued. In its order the circuit court concluded:

“The ruling of the United States Supreme Court in [Gideon v.] Wainwright, [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)] and Argersinger [v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)], giving a defendant who is charged with a criminal offense the right to an attorney logically and necessarily includes the right that such defendant’s case be presided over by a judge possessing at least the same legal qualifications of the attorney representing the State and defendant.”

Judge Treiman appealed from this judgment to the Second District Court of Appeal, which, on appellant’s motion, transferred the cause to this Court. We have jurisdiction under Article V, Section 3(b)(1), Florida Constitution.

In Florida there are three types of non-lawyer county judges. First, there are those who were “grandfathered in” when the people of this State adopted a substantial revision to Article V of our Constitution in 1972. Article V, Section 20(d)(7), reads:

“(d) When this article becomes effective:
(7) County judges of existing county judge’s courts and justices of the peace and magistrates’ court who are not members of bar of Florida shall be eligible to seek election as county court judges of their respective counties.”

A second group, covered under Article V, Section 20(c)(ll), consists of judges who hold office in counties of fewer than 40,000 people:

“(c) After this article becomes effective, and until changed by general law consistent with sections 1 through 19 of this article:
(11) A county court judge in any county having a population of 40,000 or less according to the last decennial census, shall not be required to be a member of the bar of Florida.”

Cf. Section 34.021, Florida Statutes (1975). Finally there are, of course, some nonlaw-yer county judges who hold their offices by virtue of both constitutional provisions. The appellant in this case was among them.

Appellees argue that the 40,000 population provision denies equal protection of the laws to those who live in smaller counties whose county courts may be presided over by nonlawyer judges. However, our reading of North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976), convinces us that such a classification passes constitutional muster. There the defendant was convicted of driving while intoxicated by a nonlawyer judge of the Lynch, Ky., City Police Court. The Supreme Court described the Kentucky statutory scheme as follows:

“Section 156 of the Kentucky Constitution requires cities to be classified according to population size. There are six classes of cities: fifth-class cities have a population of between 1,000 and 3,000; sixth-class cities have a population of less than 1,000. Lynch is a fifth-class city. A police judge in fifth- and sixth-class cities must by statute be a voter and resident of the city for at least one year and be bonded. . . [T]he police judge in such cities need not be a lawyer. Police judges in first-class cities, which have populations over 100,000, must have the same qualifications as circuit judges who must be at least 35 years of age, a citizen of Kentucky, a two-year resident of the district and a practicing attorney for eight years. . . . Police court judges have terms of four years. In fourth-, fifth-, or sixth-class cities police judges may be either appointed or elected.
“Police courts have jurisdiction, concurrent with circuit courts, of penal and misdemeanor cases punishable by a fine of not more than $500 and/or imprisonment of not more than 12 months. . Kentucky has a two-tier misdemeanor court system. An appeal of right is provided from the decision of a police judge to the circuit court where all judges are lawyers, and in that court a jury trial de novo may be had. . . . ” (Footnotes omitted) Id. at 2710-11.

The Court later rejected a contention that such a system violates the constitutional guarantee of equal protection, reasoning that “all people within a given city and within cities of the same size are treated equally.” Id. at 2714. With the applicable standard having been thus enunciated, we have no difficulty concluding that the division of county courts into two classes effectuated by Section 34.021, Florida Statutes, and Article V, Section 20(c)(ll), Florida Constitution, does not violate the equal protection guarantee of the United States Constitution.

The critical question in this case is whether a nonlawyer county judge can afford due process of law to a defendant charged with a crime which leads to possible imprisonment on conviction. North v. Russell, supra, is less than decisive in resolving this issue because there the Court laid great stress on the availability, at the request of the defendant, of a second, de novo trial before a lawyer judge — a feature which our system lacks.

Nor is the experience of other states determinative of the issue before us. While the language of other state appellate court decisions in this area can provide us with some guidance in deciding the merits of the instant cause, the wide variety in state court systems render such determinations mildly persuasive at best. Several state courts have upheld the constitutionality of using nonlawyer judges to try certain classes of cases. E. g., Crouch v. Justice of Peace Court, 7 Ariz.App. 460, 440 P.2d 1000 (1968); City of Decatur v. Kushmer, 43 Ill.2d 334, 253 N.E.2d 425 (1969); North v. Russell, 516 S.W.2d 103 (Ky.1974); Ditty v. Hampton, 490 S.W.2d 772 (Ky.1973).

In contrast, the California Supreme Court has held that due process requires that defendants be convicted and sentenced by lawyer judges even in the lowest courts (“justice courts”) in counties or districts with 40,000 or fewer residents. That court concluded:

“It has been suggested that our holding could cause serious practical problems in view of the asserted scarcity of attorney judges in certain rural areas throughout this state. We recognize that there will be problems and have sought to minimize them to the extent constitutionally possible. We do not abolish the existing system permitting the use of non-attorney judges in all matters within the justice court jurisdiction. Such judges may continue to function in civil cases, and in criminal cases not involving potential jail sentences. Moreover, even in criminal cases where a jail sentence may be imposed, the non-attorney judge may act so long as defendant or his counsel waives the due process right to have the proceedings presided over by an attorney judge. Such right may be voluntarily relinquished just as the right to counsel may be relinquished. In the event defendant or his counsel fails to so stipulate and no attorney judges are available in the district, then either the cause could be transferred to another judicial district in the same county (see Pen.Code, § 1035), or the Judicial Council could assign an attorney judge from another area to hear the matter.”

Gordon v. Justice Court, 12 Cal.3d 323, 115 Cal.Rptr. 632, 639, 525 P.2d 72, 79 (1974), cert. denied, 420 U.S. 938, 95 S.Ct. 1148, 43 L.Ed.2d 415 (1975). Yet this decision is not dispositive of our case because in California justice court judges must either (1) be a member of the bar or (2) have passed a qualifying examination prescribed by the Judicial Council or (3) have been an incumbent in such court or a predecessor court at the time of the 1950 judicial system reorganization and have retained the position continuously. 115 Cal.Rptr. at 634, 525 P.2d at 74. The California court noted that, under the second procedure

“a layman who is not an incumbent justice court judge may qualify as a.candidate for election to that court by passing the three-hour examination given by the Judicial Council. We have scrutinized the most recent Judicial Council examination and, although it extends over a wide area of the law, the examination is far less rigorous than the two-and-one-half days State Bar examination required of one seeking to become an attorney. We also note the absence of any requirement of college or law school education in order to qualify as a justice court judge.” (Footnote omitted) 115 Cal.Rptr. at 636, 525 P.2d at 76.

As will be seen, such a statement would be inaccurate with respect to the vast majority of our nonattorney county judges.

Appellees read the decisions of the United States Supreme Court in Gideon v. Wainwright, supra, and Argersinger v. Hamlin, supra, as necessarily leading to the conclusion that only a lawyer judge can afford a criminal defendant due process of law when incarceration is a possible result. The expertise of the professional attorney is wasted, they say, if his or her forensic efforts are directed at a judge who has no more educational background to absorb and appreciate such argument than any spectator in the courtroom gallery. As the Court recognized in Argersinger, legal and constitutional questions involved in a case actually leading to imprisonment for only a brief period (i. e., a misdemeanor prosecution) are frequently no less complex than those raised in the trial of a major crime. We agree with appellees, that, after Argersinger, it is clear that a judge who is ignorant of the law cannot afford due process of law to an individual facing imprisonment upon conviction. We do not agree that a judge who makes such a determination must necessarily be a member of The Florida Bar. Cf. Shadwick v. City of Tampa, 407 U.S.

345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). The people of this state through ratification of the revision to Article V of the Constitution in 1972 expressed their consent to a judicial system with limited utilization of nonlawyer county judges as explained above. It is not our function to thwart this decision by the people, provided the constitutional guarantee of due process of law is not abridged.

At the behest of this Court, in August, 1974, a Non-Lawyer County Judge Training Program was begun at the Holland Law Center on the campus of the University of Florida, the sole purpose of which was to provide suitable training to allow nonlawyer county judges to be certified to sit only as county judges in those counties with over 40,000 population. Appellant, who is participating in this program, and amicus curiae provided brief information concerning the scope of this program in appendicés to their briefs. They argue that such special training qualifies a nonlawyer judge to hear misdemeanor cases punishable by imprisonment. Pursuant to our October 14, 1976, order to supplement the record in this cause, Professor James R. Pierce, the director of the Non-Lawyer County Judge Training Program, has furnished us with material describing in detail the program’s curriculum; hours of study, including duration of the course; and testing methods and grading. Professor Pierce’s statement and a summary of the curriculum are reproduced as appendices A and B hereto and we see no point in discussing these materials in detail herein. Based on careful scrutiny of the materials synop-sized in the appendices, we conclude that a nonlawyer county judge who completes the Non-Lawyer County Judge Training Program at the University of Florida can constitutionally sentence a defendant to a prison term for commission of a misdemeanor as specified in Section 775.082(4), Florida Statutes.

The program, which began in August, 1974, is designed to graduate its class of nonlawyer judges on June 30, 1977. It is possible that the program can be accelerated without sacrificing its scope and content. We hold that those judges who properly complete the educational program, including examinations to test their proficiency, may preside over criminal misdemeanor cases as described above. Our. ruling operates prospectively only, following' the date this opinion becomes final. .The use of recently elected nonlawyer county judges in criminal proceedings depends upon their being. properly trained and educated in the law. The completion by the newly elected nonlawyer county judges of a training program similar to the current program is constitutionally necessary for them to be able to discharge their criminal constitutional duties. Anything less fails to meet our construction of relevant due.process safeguards.

Of course, our holding here does not preclude a county judge not trained in law from presiding over a criminal misdemean- or trial where the accused makes a knowing and voluntary waiver of his right to a trial presided over by a law trained judge. See Gordon v. Justice Court, supra.

Accordingly, since at the time appellees came before his court, Judge Treiman had not completed the Non-Lawyer County Judges Training Program, the order of the circuit court granting the writ of prohibition is hereby affirmed.

ADKINS, BOYD, ENGLAND and HATCHETT, JJ., concur.

OVERTON, C. J., concurs with an opinion, with which ADKINS, J., concurs.

ROBERTS (Retired), J., dissents with an opinion.

APPENDIX A

I. INTRODUCTION

The Court on October 14,1976 entered its' order requesting, in essence," a cóiripléte^re-port on the structure and Conduct of the Non-Lawyer County Judge' Training Program. To place the data requested in the proper perspective, it is first advisable to provide a brief description of'the'origins of the program and its overall format.

The program commenced under the auspices of the University of Florida Division of Continuing Education in cooperation with the University of Florida- College of Law on August 15, 1974 with 25 participants all ’ of whom were the non-lawyer county judges who intended to continue in office past their then present term. Subsequently, one judge was withdrawn from the program and two recently élected non-lawyer county judges were added. The current number of judges participating is 26. The program originally was structured into two institutes per year. The summer institute involved a resident period of instruction of ■four weeks including weekends at the University ; of Florida College, of Law. - All courses commenced in this summer institute were concluded during the course of the institute. The remainder of the year was organized into an institute requiring resident instruction of four days of each month from October through June. Each institute provided 100 hours of classroom instruction covering three separate courses. The program was organized on this basis for both the 1974-75 and 1975-76 program years. The 1976-77 program year was restructured into a single institute involving a complete week (Monday through Friday) of resident instruction each month for eight months (November, 1976 through June, 1977). The 175 total instruction hours for the fifth institute is divided into five course blocks of 35 hours each.- One of the five blocks has been further subdivided into two separate courses.

The underlying philosophy of the program was to provide the participants with a substantial portion of a conventional law school education. Standard law school materials, teaching methodology, examinations and instructors have been used throughout the program in furtherance of this objective. The material covered in the various courses involved material for which approximately 100 quarter hours of credit would be offered in the ordinary curriculum of the University of Florida College of Law. This would calculate to 79% of the 126 hours required for graduation from the College of Law. Because of the rearrangement of the material into slightly different course structures with necessary omissions and instances of abbreviated coverage, 79% probably represents a slight exaggeration of actual coverage. Nonetheless, it should stand as a useful estimate.

II. COMPLIANCE WITH ORDER

1.Curriculum

Attached hereto is a listing of all courses offered during the program indicating the title of the courses, the law professors teaching the courses, and the University of Florida College of Law counterparts to the courses. Attached also is that portion of the College of Law Catalog describing the law school courses. Please be advised that because of a modest restructuring of the law school courses for program purposes, the catalog descriptions will contain slight inaccuracies. For this reason an appendix of exact course descriptions and examinations prepared by the program professors for use during the program has been submitted to the Court and counsel.

2. Hours of Study and Total Duration of Program

During the course of the program approximately 600 hours of resident instruction will have been offered to the participants at the University of Florida College of Law. 575 of these hours have been in the form of regularly scheduled classroom hours. An estimate of approximately 25 hours of instruction has been assigned to the legal writing program to account for the irregularly scheduled lectures and consultations required. .The method of instruction used in all courses additionally required literally hundreds of hours in reading, study, composition and preparation outside of the classroom on the part of each participant.

Generally, the total hours of instruction were divided into 32 to 35 hour blocks for each course taught. However, appropriate course coverage on occasion required reallocation of the time available among the courses in somewhat different configurations. The variations would not seem sufficiently significant to detail.

As previously indicated, the program commenced on August 15, 1974 and will be concluded on June 30, 1977.

3. Faculty and Teaching Methods

A complete listing of the program faculty is contained in the curriculum attachment referred to in section one. The program faculty were chosen from the faculty of the College of Law and all are experienced and considered well qualified in the areas to which they were assigned. A listing of the

College of Law faculty indicating degrees held and academic rank is attached for reference.

The teaching methodology for the program is identical to the methodology used by the various professors in their regular law courses. The specific methodology varied greatly from course to course, however, a basic familiarity with general law school teaching methods should suffice to provide an adequate insight as to the overall teaching conduct of the program.

4. Testing Methods and Grading

At the outset of the program a basic decision was made against the usual assumption of the absence of testing and grading underlying most other continuing legal education programs. It was thought that to maintain consistency with the philosophy of close replication of a conventional law school experience that some form of testing and academic incentives was necessary.

The basic method of law school examination was retained primarily for its intrinsic value as a substantial learning experience, both in the preparation for exams and in the analysis required in taking them. The examination methods actually used in the program varied widely as can be observed by.reference to the complete set of exams given to date contained in the appendix. All exams appear to be appropriate to the course material in each course and in aggregate constitute a fair cross section of conventional law school examination methods.

The grading method used in the program represents an attempt to preserve a system of incentives within a group of students as to which it was thought to be inappropriate to use conventional grading methods. From all observable indications, the system has operated to create the desired level of competition within the group.

The standard grade awarded in each course-is simply “complete”, which signifies that the student has regularly attended classes and has made a good faith effort in taking the exam. If it is determined that a good faith effort has not been made a grade of “incomplete” is established and an additional examination is scheduled. The system of incentives is predicated upon the ranking of the best ten examinations in each course in the order of accomplishment. The ten best students receive the numerical ranking as a grade in lieu of the standard “complete”. Only students who successfully complete the exams on the first taking participate in the ranking. •

5. Post Program Requirements

At the present time no further study requirements after graduation have been established.

Appendix B to follow.

Q CU « fe Q fí TÍ W Ul & •H *H*Ü S & H CL> d> rd hJ ti m W W ¿ *■3 ^ NfO'í' mu> 04 ro "5* m U3 T. Smith E. Maloney C.L. Moffat O. Weyrauch B. Deaktor D. B. Deaktor S. Rubin D. T. Smith W. Probert J. C. Quarles D. Delony G. T. Bennett J. R. Pierce J. J. Freeland W. E. Williams LW 600 - Sales LW 606 - Security in Goods LW 630 - Estates & Trusts X LW 671 - Remedies LW 610 - Jurisprudence LW 690 - Family Law LW 619 - Legal Ethics LW 601 - Commercial Paper LW 693 - Adversary Process LW 693 - Police Practices LW 602 - Business Organizations LW 603 - Corporations LW 531 - Property I LW 532 - Property XX LW 571 - .Torts I LW 572 - Torts II LW 581 - Criminal Law LW 626 - Evidence II LW 522 - Civil Procedure II LW 541 - Constitutional Law I LW 542 - Constitutional Law II LW 501 - Contracts I LW 502 - Contracts II LW 591 - Legal Writing I LW 592 - Legal Writing II LW 653 - Florida Constitutional Law LW 521 - Civil Procedure LW 625 - Evidence I Commercial Transactions II Estates & Trusts I Remedies Jurisprudence Domestic Relations Professional Responsibility Commercial Transactions Criminal Procedure Business Organizations Corporations Property Torts Criminal Law Evide'nce Civil Procedure •Constitutional Law Contracts Legal Writing Florida Constitutional Law Civil Procedure Evidence J. C. Quarles H. 0. Enwall J. R. Pierce Fifth Fourth Third Second First INSTITUTE COURSES OFFERED PROFESSOR COLLEGE OF LAW MATERIAL COVERED APPENDIX B CURRICULUM NON-LAWYER COUNTY JUDGE TRAINING PROGRAM

OVERTON, Chief Justice,

concurring.

I fully concur in the opinion by Mr. Justice Sundberg.

It must be recognized that this opinion is based on what is constitutionally required and not what is administratively desirable. Our ruling today is necessary because of the dictates of the United States Supreme Court’s decision in North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976). It recognizes that a defendant in a criminal trial which may result in imprisonment may be tried by a nonlawyer judge if the defendant has an opportunity for a second trial where evidence will be received before a law trained judge. Although this decision of the United States Supreme Court basically approves the historical use of nonlawyer magistrates, it does so conditionally upon at least one of the historical checks on the judge’s authority being available to a defendant.

Under the historic English system magistrates have no authority to try a jury case. Checks on their actions include allowing either an appeal de novo (retrial) before a lawyer judge together with magistrates as fact finders or an opportunity for the defendant to ask for a high court jury trial with a law trained judge. In addition, the English system provides for a clerk who is a lawyer to advise the magistrates on the law. Further, the extent of punishments that can be imposed is more limited than in our present system and, in addition, the sentence is subject to review by a court presided over by a law trained judge. See The Legal Systems of Britain, British Information Services (March 1976), and English and American Criminal Law and Procedure, A Comparative Analysis (M. T. Sennett and B. J. George, Jr., American Bar Association Section of Criminal Justice, 1976).

We provide none of the foregoing checks in the use of nonlawyer judges in our judicial system. Such would require substantial revision in our present system.

ADKINS, J., concurs.

ROBERTS, Justice (Retired),

dissenting.

I respectfully dissent and it is my view that a nonlawyer County Judge in a county with a population of less than 40,000 persons has the constitutional power and duty to exercise the full jurisdiction of that office. It is elementary that the sovereign states have the right to prescribe the qualifications for their state and county officials. Section 6, Article V, Constitution of Florida, provides for a County Court with misdemeanor jurisdiction. According to legislative records, the matter of qualifications for County Judges in counties of less than 40,-000 was fully debated and the Legislature resolved that a County Judge in such counties would not be required to be á lawyer; see Section 20(c)(ll), Article V, Florida Constitution. Upon submission to the people, the electorate of Florida approved the amendment submitted by the legislative resolution; see Section 20(c)(ll), Article V, Florida Constitution. To interfere with that orderly process of establishing the qualifications of a county office would be an act of judicial activism with which I cannot agree. Furthermore, the Tenth Amendment to the Constitution of the United States provides:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

I am unable to find where the State of Florida ever submitted to the Washington government the power to interfere with the prescribing by the people of this state of the qualifications of its county officers, nor can I find any application of the Fourteenth Amendment to the Constitution of the United States in this situation. The answer to the question appears to me to be simple, viz., the Legislature had the right to resolve in a proposed constitutional amendment for a County Court to have jurisdiction over misdemeanors and to be presided over by a nonlawyer County Judge and the people of Florida had the right to adopt that amendment.

I, therefore, respectfully dissent.

      . “Unless otherwise provided by general law, a county court judge must be a member of the bar of Florida.” Art. V, § 8, Fla.Const.

      . As best we can discern, even the dissenting justices in North v. Russell, supra, would find that the Florida program we have described passes constitutional muster. As pointed out in the dissenting opinion of Mr. Justice Stewart:
      “The judge at North’s state habeas corpus hearing concluded:
      “ T think the fact has been established that [Judge Russell is] not a lawyer, he doesn’t know any law, he hasn’t studied any law.’ Judge Russell testified that he had only a high school education. He had never received any training concerning his duties as a lay judge. This is not a case, therefore, involving a lay judge who has received the kind of special training that several States apparently provide. See ante , at 2711-2712 n. 4.” [Reference to majority opinion listing Florida, among many other states, as having a “mandatory training program” for nonlawyer judges.]
      96 S.Ct. at 2715.

      . § 775.082(4), Fla.Stat., reads:
      “(4) A person who has beén convicted of a designated misdemeanor may be sentenced as follows:
      (a) For a misdemeanor of the first degree, by a definite term of imprisonment not exceeding 1 year;
      (b) For a misdemeanor of the second degree, by a definite term of imprisonment not exceeding 60 days.”.


text:
    THE FLORIDA BAR, Complainant, v. Ed DUFFEE, Jr., Respondent.
    No. 50786.
    Supreme Court of Florida.
    March 3, 1977.
    J. Klein Wigginton, Bar Counsel; and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    Sam Spector of the Law Offices of Sam Spector, Tallahassee, for respondent.
   PER CURIAM.

In this matter we are considering a complaint from The Florida Bar which seeks disciplinary action against respondent Ed Duffee, Jr.

The following pertinent findings and recommendations were made by the referee in his report:

“II. Findings of Fact as to Each Item of Misconduct of which Respondent is charged: .
“As To Count I
“1. The Respondent, Ed Duffee, Jr., is and was at all times mentioned in Count I, a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida
“2. The complaint was filed by The Florida Bar, by direction of the Board of Governors, and all conditions prerequisite to the filing of said complaint, required by the Integration Rules have been fulfilled ....
“8. In 1974, Respondent agreed to represent several defendants in a condemnation suit brought by the City of Tallahassee, Case No. 74-2006, Second Judicial Circuit, Leon County, Florida .
“4. On or about December 20, 1974, after an order of taking, Respondent as agent for his clients, withdrew $45,800.00 from the registry of the Court, without his clients’ knowledge or consent, and without notifying his clients that said funds had been received by him . . .
“5. This $45,800.00, the money of his clients, was placed by Respondent in his trust account but was converted by Respondent to his own use and personal expenses, rather than disbursed to his clients .
“6. On October 1, 1975, final judgment was entered in favor of Respondent’s clients in the amount of $69,615.00 less $565.39 for property taxes .
“7. Respondent was awarded $9,422.25 attorney’s fees by the court One-half of this fee was paid to Attorney W. George Allen of Ft. Lauderdale and the other half retained by Respondent
“8. On October 17, 1975, without clients’ knowledge or consent the Respondent withdrew the balance of the trial judgment in the amount of $23,249.61 from the registry of the court and failed to notify his clients that said fund had been received .
“9. That although Respondent received a total of $69,049.61 on behalf of his clients, he spent $68,970.40 (of said funds) for his own personal use .
“10. That Respondent’s clients, Willie Mae Thomas, et al., secured a final judgment against Respondent on September 8,1976, in the Circuit Court of the Second Judicial Circuit in Leon County, Florida, Case # 75-2757, for the sum of $69,-049.61 plus interest in the amount of $3,711.45 and costs of $39.50.
“11. That Respondent was indicted by a grand jury in Leon County, Florida, of five counts of grand larceny in connection with this matter charging larceny of over $100.00 in each count on different dates but the charge was later changed by the filing of an information by the state attorney only on one count of grand larceny ‘on January 30, 1976, and on diverse other dates within two years next preceding the filing of this information.’ .
“12. That Respondent entered a plea of nolo contendere to grand larceny on the one count as charged in the information on November 1, 1976, and was placed on probation, with adjudication of guilt withheld, for a period of three years with the regular provisions and on special condition that the Respondent ‘make full restitution to the victims as directed by the probation officer.’ .
“13. That Respondent has been temporarily suspended from the practice of law by the Supreme Court of Florida
“14. That Respondent has agreed to place all his property (except his home) in trust for liquidation for the payment of his former clients . . . The value of such property is not known at this time
“15. That partial restitution has already been made by Respondent in the amount of $10,500.00 received from friends
“HI. Recommendation as to whether or not the Respondent should be found guilty: I recommend that Respondent be found guilty of Count I and specifically that he be found guilty of the following violations of his oath as an attorney, the Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to wit:
“Disciplinary Rules 1-102(A)(4), 1-102(A)(6), 9-102(B)(l), 9-102(B)(3), and 9-102(B)(4) of the Code of Professional Responsibility and Integration Rule 11.-02(4).
“IV. Recommendation as to Disciplinary measures to be applied: I recommend that the Respondent be disbarred from the practice of law in Florida.”

The record supports the findings and recommendations of the referee and they are approved.

Accordingly, it is the judgment of this Court that respondent, Ed Duffee, Jr., is disbarred from the practice of law in the State, of Florida and shall, pay costs of $340.25.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and KARL, JJ., concur.