text:
    Ronald Ray ANDERSON v. STATE.
    4 Div. 657.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      Guy F. Gunter, III of Maye, Melton & Gunter, Opelika, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

For the second time Ronald Ray Anderson was convicted of the second degree murder of Mrs. Rudene Edwards of Phenix City, Alabama. A jury set imprisonment at one hundred years and one day. His first conviction was reversed and remanded in Anderson v. State, 354 So.2d 1156 (Ala.Cr. App.), cert. denied, 354 So.2d 1161 (Ala. 1977).

The testimony adduced at Anderson’s second trial was essentially that presented at his first. For this reason we will treat only those facts which concern the issues raised on this appeal. Two other persons have also been convicted for Mrs. Edwards’ murder. Conley v. State, 354 So.2d 1172 (Ala.Cr.App.1977) and Austin v. State, 354 So.2d 40 (Ala.Cr.App.), cert. denied, 354 So.2d 44 (Ala.1978).

I

Initially Anderson contends that the trial court erred in denying his motion for a change of venue. He argues that juror assurances of impartiality are not always dispositive and contends that the allegedly inherently prejudicial nature of the material, coupled with knowledge of its wide dissemination in the community, required the granting of relief without elaborate soundings of community sentiment.

Section 15-2-20, Code of Alabama 1975, authorizes a defendant to have his trial removed to another county if he cannot receive a fair and impartial trial in the county in which the indictment is found. Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973). However the existence of widespread publicity alone does not indicate that a defendant will not get a fair trial. The law focuses on the impartiality of the trial jury. Turk v. State, 348 So.2d 878 (Ala.Cr.App.1977); Mathis v. State, 52 Ala.App. 668, 296 So.2d 755, cert. quashed, 292 Ala. 732, 296 So.2d 764 (1973), cert. denied, 419 U.S. 1106, 95 S.Ct. 777, 42 L.Ed.2d 802 (1975). Actual prejudice directed toward the accused resulting from the extensive publicity must be shown. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835 (1974), cert. denied, 293 Ala. 745, 309 So.2d 844 (1975); Annotation, 33 A.L.R.3d 17 (1970).

On motion for a change of venue in a criminal case, the defendant has the burden of showing, to the reasonable satisfaction of the court, that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Boutwell v. State, 279 Ala. 176, 183 So.2d 774 (1966); Godau v. State, 179 Ala. 27, 60 So. 908 (1913).

Newspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).

Except in the situation where there is a showing of “inherently prejudicial publicity which has so saturated the community, as to have a probable impact upon the prospective jurors”, the trial court’s primary responsibility in dealing with allegedly prejudicial pretrial publicity is whether, as a result of such publicity, it is reasonably unlikely that the defendant can secure a fair and impartial trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); United States v. Jones, 542 F.2d 186 (4th Cir. 1976); McWilliams v. United States, 394 F.2d 41 (8th Cir. 1968).

In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), the United States Supreme Court recognized that:

“Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
“ ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ ” (Citations omitted)
“At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality’.”

Recently the Supreme Court affirmed the principles expressed in Murphy.

“Petitioner’s argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But under Murphy, extensive knowledge in the community of neither the crimes nor the putative criminal is sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a ‘trial atmosphere utterly corrupted by press coverage’.” Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977).

The proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.

In his motion for change of venue defense counsel listed seven grounds in support of his request: (1) The “enormous amount of adverse and prejudicial publicity”, (2) the newspaper articles which stated that the defendant was found guilty of the crime charged and sentenced to 125 years in the penitentiary, (3) the articles referred to the convictions and sentences of the co-defendants, (4) the articles contained accounts wherein the District Attorney labeled the defendant “garbage” and a “sadistic killer”, (5) articles linked the defendant and other co-defendants with separate and distinct criminal offenses, (6) one newspaper editorially praised and commended the citizens of Russell County for their conviction of Ronald Ray Anderson, and (7) articles referring to “investigations within the Columbus Police Department and the Phenix City Police Department that serve to keep the convictions and sentence of this defendant before the public”.

Here there was no showing that any prospective juror read the editorial. The District Attorney’s reference to Anderson was made in his closing argument to the jury on Anderson’s first trial. Generally newspaper articles which objectively report the commission of a crime, do not carry inflammatory headlines, and do not editorialize on the facts in a manner to inflame the community or create an atmosphere of prejudice are an insufficient basis on which to grant a motion for a change of venue. Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975).

Of the fifty prospective jurors, thirty-nine admitted that they had read articles about Mrs. Edwards’ murder at one time or another. However only two veniremen expressed any doubt that they would be able to return a fair and impartial verdict. Considering the answers of each prospective juror on voir dire examination we believe that the jury was impartial and adhered to its sworn duty to base its verdict upon the evidence adduced and the law as expounded by the court’s instruction. Foy v. State, 43 Ala.App. 524, 194 So.2d. 856 (1966); Bowen v. State, 274 Ala. 66, 145 So.2d 421 (1962). The fact that jurors knew of the case did not establish that at the time of empaneling they were biased against the defendant where they swore that their knowledge would not affect their judgment. Hale v. United States, 435 F.2d 737 (5th Cir. 1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). Also we find that the circumstances in this case giving rise to the probability of prejudice are not “inherently suspect”. McWilliams, 394 F.2d 44.

“Despite appellant’s suggestions to the contrary we do not believe that the pretrial publicity in the case at bar even remotely resembles the magnitude of prejudicial publicity recently condemned by the Supreme Court. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). We are cognizant that neither a showing of prejudice nor actual exposure of individual members of the jury panel to adverse publicity is required for reversal where outside influences have so infiltrated the community at large as to render the existence of community prejudice against the defendant highly probable.” McWilliams, 394 F.2d 44.

Absent inherently prejudicial publicity which has so saturated the community as to have a probable impact upon the pro-

spective jurors, there must be some showing of a connection between the publicity generated by the news articles, radio and television broadcasts, and the existence of actual jury prejudice. McWilliams, 394 F.2d 44. The evidence before us reveals that the jury was not prejudiced against Anderson. Therefore we find no error in the refusal of the trial judge to grant the motion for a change of venue.

II

The transcribed testimony of Deborah Vella given at Anderson’s first trial was admitted into evidence at his second trial over the objection that the state had failed to prove her unavailability as a witness.

To support the claim of unavailability the state introduced a subpoena which had been mailed to Ms. Vella at 5353 Delray Drive, Columbus, Georgia. The return indicated that the witness had not been found at that location which was the address of Mrs. Sarah Rezek where Ms. Vella had been living at the time of the crime. As defense counsel specifically pointed out to the trial court, Ms. Vella testified at Anderson’s first trial that she no longer lived at that address and was presently living at 1335 Spring Street in Columbus. Therefore the subpoena was utterly without value in attempting to prove that the witness was unavailable to testify.

The state also introduced an affidavit of the District Attorney of the Chattahoochee Judicial Circuit in Columbus, Georgia. In pertinent part the statement revealed that Ms. Vella was “currently incarcerated in the Muscogee County Jail (Georgia), being held under a felony criminal charge for which no bond is allowed”.

This affidavit also constitutes no evidence that Ms. Vella was unavailable to testify. There was never any showing that the Georgia authorities would not release this witness into the custody of the prosecution or its agents. The trial judge appears to have reasoned that, because Ms. Vella was being held without bond, the Georgia authorities would not release her. However “the possibility of a refusal is not the equivalent of asking and receiving a rebuff”. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968).

Defense counsel repeatedly and specifically objected to the introduction of Ms. Vella’s former testimony because the state made no attempt to subpoena the witness through use of the “Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings”. Section 12-21-280, Code of Alabama 1975. It is noted that four witnesses for the defense were subpoenaed under the provisions of this act.

The accused has a constitutional right of confrontation and cross examination which is an essential and fundamental requirement of a fair trial. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

The traditional exception, arising from necessity, to the confrontation requirement is where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross examination by that defendant. Barber; Mattox.

The general rule regarding the use of former testimony is stated in Gamble, McElroy’s Alabama Evidence (3rd ed. 1977) § 245.07(1).

“The testimony of a witness, in a former trial or action, given (1) under oath, (2) before a tribunal or officer having by law the authority to take testimony and legally requiring an opportunity for cross examination, (3) under circumstances affording the party against whom the witness was offered an opportunity to test his credibility by cross-examination and (4) given in a litigation in which the issues and parties were substantially the same as in the present cause, is receivable as evidence in the present trial (5) when the personal attendance of the witness to testify in the present trial is not feasible.”

In laying a predicate for the introduction of former testimony, the proponent of the statement must show that he has exercised due diligence in seeking to procure the attendance of the witness. Pope v. State, 183 Ala. 61, 63 So. 71 (1913); Harwell v. State, 12 Ala.App. 265, 68 So. 500, cert. denied, 192 Ala. 689, 68 So. 1019 (1915).

In 1977 the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings was adopted and became effective in Alabama. Georgia has adopted a similar act in Ga. Code Ann., Section 38-2001a. The Georgia statute, unlike Alabama’s, has a specific provision for summoning a prisoner in Georgia to testify in another state. Ga. Code Ann., Section 38-2004a.

Prior to the United States Supreme Court decision of Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), in the cases in which the witness is located but is outside the state, the traditional rule required no evidence of an attempt to bring him back. Pruitt v. State, 92 Ala. 41, 9 So. 406 (1890). Prior to Barber it was held in a state which had enacted the Uniform Act that the prosecution need not make use of the Act but could simply show that the witness was outside the state’s jurisdiction. State v. Martin, 73 Wash.2d 616, 440 P.2d 429, 434-435 (1968). However, in Barber it was held that “a witness is not ‘unavailable’ for purposes of the foregoing exception to the [right of] confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial”.

The Supreme Court of Alaska noted that the effect of Barber was to change the traditional rule.

“In Barber v. Page, the United States Supreme Court held that, where a witness was incarcerated in a federal prison outside the state, the state could not use his preliminary hearing testimony at the petitioner’s trial without making a good faith effort through the federal authorities to bring him back to testify.”

Fresneda v. State, 483 P.2d 1011, 1017 (Alaska, 1971).

And in Eastham v. Johnson, 338 F.Supp. 1278, 1281 (E.D.Mich.1972):

“Barber v. Page discredited the old concept that a mere showing by the prosecution that a witness was in another state would constitute ‘unavailability’ so as to justify the use of a transcript at a defendant’s trial. Since Barber v. Page, the prosecution must do more than just show the witness is out of the jurisdiction of the state where the defendant is being tried. Where the prosecution knows the specific location of a witness who is out of the state, the prosecution must subpoena the out-of-state witness under the ‘Uniform Act to Secure the Attendance of a Witness from Without a State’ if such a statute is available.”

See also State v. Alexander, 108 Ariz. 556, 503 P.2d 777 (1972); People v. Joines, 11 Cal.App.3d 259, 89 Cal.Rptr. 661 (1970); State v. Kim, 55 Haw. 346, 519 P.2d 1241 (1974); Brooks v. State, 35 Md.App. 461, 371 A.2d 674 (1977); People v. Graham, 69 Misc.2d 567, 330 N.Y.S.2d 717 (1972).

In Barber, the Supreme Court noted: “For witnesses not in prison, the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings provides a means by which prosecuting authorities from one State can obtain an order from a court in the State where the witness is found directing the witness to appear in court in the first State to testify. The State seeking his appearance must pay the witness a specified sum as a travel allowance and compensation for his time. As of 1967 the Uniform Act was in force in 45 States, the District of Columbia, the Canal Zone, Puerto Rico, and the Virgin Islands. See 9 Uniform Laws Ann. 50 (1967 Supp.). For witnesses in prison, quite probably many state courts would utilize the common-law writ of habeas corpus ad testifi-candum at the request of prosecutorial authorities of a sister State upon a showing that adequate safeguards to keep the prisoner in custody would be maintained.” Barber, 88 S.Ct. 1321, n.4.

Here the state made absolutely no showing that Ms. Vella was unavailable. It is incumbent upon the prosecution to present such evidence before her former testimony could be read to the jury. Her testimony played a key role in the conviction of Anderson and the jury should have been given the opportunity to observe her demeanor and manner absent a showing that she was truly unavailable to testify.

Because the prosecution did not utilize the provisions of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings or a writ of habeas corpus ad testificandum or by any other means show that the witness was unavailable to testify, we cannot characterize the state’s efforts to produce the witness as having been made with due diligence or in good faith. The mere fact that a witness is incarcerated in another state does not constitute legal “unavailability” for purposes of the introduction of former testimony. Since the witness was not “unavailable” for purposes of the confrontation requirement, this case must be reversed and remanded.

Ill

The trial court admitted into evidence a .357 magnum pistol which was discovered approximately four months after the murder and four blocks from the murder scene. The only evidence touching its relevancy or materiality was that such a weapon “could” have been responsible for some of the injuries to the deceased and testimony that Andy Austin, a co-conspirator, was known to have often carried a similar weapon.

For purposes of this appeal we simply note that we fail to see why the pistol was admitted in the first place and how its admission, though erroneous, harmed Anderson. If Anderson be tried again, the weapon should not be admitted without some evidence connecting it to the crime charged.

REVERSED AND REMANDED.

All Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Jimmy Lee JONES, alias v. STATE.
    5 Div. 410.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      Joseph L. Dean, Jr. of Walker, Hill, Adams, Umbach & Herndon, Stanley A. Martin of Samford, Denson, Horsley & Pettey, Opelika, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The appellant was indicted for the murder of Phillip Walker by shooting him “with a gun.” The jury found the appellant guilty of murder in the first degree and fixed punishment at life imprisonment. Thereafter, the trial judge set sentence accordingly.

The appellant filed three pretrial motions: (1) Motion to produce exculpatory evidence; (2) Motion for investigation of the sanity of the defendant; (3) Motion to suppress illegal evidence. In response to the first motion, the trial judge requested the prosecuting attorney to produce any evidence in his possession or any information that he was aware of that was exculpatory in nature. The trial judge ultimately denied the motion when the prosecuting attorney stated that he was unable to make a determination of what was exculpatory until he knew the defense to be used in the case.

The trial judge granted the motion to investigate the sanity of the defendant. Accordingly, the appellant was examined by the East Alabama Mental Health Center.

The appellant’s request for a hearing on the motion to suppress illegal evidence was granted. The proceedings began with a hearing conducted out of the presence of the jury to determine whether certain evidence seized during the investigation would be admitted at trial or suppressed pursuant to defense counsel’s motion.

Auburn Police Detective Edwin D. Downing testified that on August 19, 1977, he participated in the investigation of the shooting death of Phillip Walker during the course of his employment with the Auburn Police Department. On this date, Detective Downing interviewed the appellant shortly after he had been taken into custody. Prior to obtaining a statement from the appellant, Detective Downing read to him from a standardized card his Miranda rights. Detective Downing stated that he knew the appellant could not read or write. Detective Downing explained to the appellant the meaning of a waiver form following which the appellant made his mark on the waiver form. In addition to Detective Downing, Detective Donovan witnessed the appellant’s “signature or mark” (R. p. 21). The appellant then proceeded to relate to the police the events surrounding the shooting of Phillip Walker. The appellant’s words were transcribed as he spoke by Detective Downing. After he finished dictating his statement, the appellant heard the statement read back to him before he made his mark on it. The statement of the appellant taken on August 19, 1977, was marked State’s Exhibit Two for identification purposes.

Detective Downing testified that on August 22, 1977, while the appellant was in custody, he made another statement to the police, again transcribed by Detective Downing. Prior to making the statement, the appellant was informed of his Miranda rights, which he waived. Detective Downing stated that no force, threats, promises, or other inducements were made or offered to the appellant in order to get him to make a statement. The statement taken on August 22, 1977, was marked State’s Exhibit Four for identification purposes. The trial judge withheld ruling on the admissibility of State’s Exhibits Two and Four until the defense had presented evidence in support of its motion to suppress.

On cross-examination, during the suppression hearing, Detective Downing testified that the appellant did not request to consult a lawyer while he was in custody. The witness could not recall whether the appellant had requested to see members of his family, nor did he recall whether the appellant had requested medication for his blood pressure condition. Detective Downing testified that he informed the appellant that he was charged with murder at the time that he waived his Miranda rights although the waiver form itself (State’s Exhibit One) was blank where the offense charged would have been noted in writing. The waiver form used in connection with the statement made on August 22, 1977, State’s Exhibit Three, properly showed the charge of first degree murder against the appellant.

The interview with the appellant on August 19, 1977, began at 7:45 p. m., approximately two hours after the appellant’s arrest. The second interview with the appellant on August 22 began at 9:50 p. m. and concluded at 1:15 a. m. on August 23. As a direct result of the second interview, the police located the barrel of a sawed-off shotgun which the appellant confessed was the murder weapon.

The appellant was called to the stand at the pretrial suppression hearing for the purpose of testifying as to the voluntariness of the alleged confession. The appellant testified that, after his arrest, the police took him to the police station and questioned him. The officers, Detective Downing, Detective Donovan, and Officer deGraffen-ried, read his Miranda rights to him, but, according to the appellant, they did not read the statement back to him after it was transcribed and before he made his mark on it. The appellant acknowledged the “X” marks on State’s Exhibits One through Four as being his “X” marks.

The appellant recalled that the officers who questioned him would not allow him to consult a lawyer or to see members of his family. According to the appellant, he was not informed of the charge against him prior to the interview on August 19. The appellant stated that, after the same interview, he requested his medication for his blood pressure condition. The medication arrived the next day, August 20.

Julian Woodhouse, Director of Screening, Evaluation, and Court Services for the East Alabama Mental Health Center, testified that he examined the appellant on October 5 and 6, 1977, at the Lee County Jail. Mr. Woodhouse, a psychologist, was shown to possess the necessary qualifications to express his opinion as to human intelligence, psychological development, and emotional stability, based on his interpretation of empirical data collected through evaluative testing. Mr. Woodhouse concluded that the appellant’s verbal intelligence quotient was approximately 58. The witness explained that this figure was within the range of mild mental retardation. Mr. Woodhouse’s written report continued (R. p. 505):

“. . . The client [appellant] is unable to read or write, cannot recite the alphabet or count to twenty, and cannot tell time. He has no useful arithmetic skills, cannot understand abstract concepts, and has limited practical skills. . . . ”

Mr. Woodhouse stated that the appellant would have difficulty understanding the meaning of a standard Miranda waiver form without having it explained to him in substantial detail.

On cross-examination, Mr. Woodhouse’s written report was admitted as State’s Exhibit Five for the limited purpose of determining whether the statements given by the appellant were voluntarily made. The witness’ report stated in conclusion (R. p. 505):

“Based on interview and test data, Mr. Jones is not psychotic at the present time. His reality orientation and reasoning processes are basically intact, and he gives evidence of having a rational and factual understanding of the charges against him. He is presently able to give an account of his thoughts, feelings, and actions at the time of the alleged offense. He is also aware of the possible consequences of being found guilty of the alleged offense and is motivated to defend himself against the charges made against him. In his present condition he may reasonably be expected to assist and cooperate in his defense.
“Based on interview and test data, Mr. Jones, in the examiner’s opinion knew the nature and harmfulness of shooting the victim and gives evidence that he was aware that his behavior would be severely condemned and considered ‘wrong’ by the community. At the time of the evaluation he gave no evidence of having been subject to defective perception, delusions, or other forms of thinking so disordered as to have grossly interfered with his ability to correctly perceive and evaluate the objective reality of his circumstances and behavior at the time of the alleged crime.”

At the conclusion of Mr. Woodhouse’s testimony, no further evidence related to the voluntariness of the statements having been offered, the trial judge ruled State’s Exhibits One through Five admissible (R. p. 89). Thereafter, the trial judge ordered the jury back into the courtroom and the trial began.

Edward James Cobb testified that, on August 19,1977, he and Phillip Walker, the deceased, went to the home of Dorothy Mae Thomas. Mr. Cobb and the deceased customarily drove to and from work together. On the day in question, Mr. Cobb drove the deceased to Ms. Thomas’ home after work so that the deceased could pay Ms. Thomas for the meals she cooked for him. Ms. Thomas was not home so the two men drove to the home of Ms. Thomas’ mother, at 644 North Gay Street, hoping to find her there. Mr. Cobb parked in front of the house on the street, approximately twenty feet from the front porch. The deceased got out of the automobile and went into the house. Mr. Cobb waited in his automobile. A short time later, Mr. Cobb recalled that Clarence Vinson and the appellant arrived and parked in front of his automobile. The driver, Clarence Vinson, got out of the automobile and went into Ms. Thomas’ home, the same house the deceased had earlier entered. Then the appellant exited the passenger side of Vinson’s automobile, walked to Mr. Cobb’s automobile and asked where the deceased could be found (R. p. 104). Mr. Cobb told the appellant that the deceased was inside the house. The appellant then turned and walked toward the house. Mr. Cobb noticed that the appellant carried a sawed-off shotgun in his belt (R. p. 110).

As the appellant reached the front porch of the house, the deceased was coming out of the front door. At this point, the appellant and the deceased were approximately three feet apart. According to Mr. Cobb, when the two men met, the appellant pushed the deceased back through the doorway. The appellant continued to shove the deceased into the doorway. Mr. Cobb could not hear what the appellant was saying to the deceased during this time. After the second shove, the appellant drew his gun and shot the deceased once in the abdomen. The two men were approximately a foot apart when the shot was fired.

After the shot, the deceased fell to the floor inside the doorway of the house. The appellant ran from the house into the front yard, paused to eject the shell from his weapon, looked in Mr. Cobb’s direction and ran down the street away from the scene. Mr. Cobb told someone to call the police as he watched the appellant get into an automobile some distance down the street. The witness recognized the driver of the automobile as being Odessa Hill.

Clarence Vinson testified that he saw the appellant, his brother-in-law, on August 19, 1977, about 2:00 p. m. Mr. Vinson drove to the liquor store to buy some gin, which he shared with the appellant upon returning. After consuming the pint of gin, the two men drove in Mr. Vinson’s automobile to a bar where they hoped to drink on credit. When no credit was forthcoming, Mr. Vinson recalled that Phillip Walker, the deceased, owed him two dollars. Mr. Vinson found the deceased at Ms. Thomas’ home. The deceased told Vinson that he would pay him later. Shortly after Mr. Vinson had talked with the deceased, the fatal affray occurred at the front door of the house. Mr. Vinson did not see the shooting, nor did he hear any conversation before the shooting because, at the time of the shooting, he was in the back of the house talking with his wife. When he heard the shot, Mr. Vinson looked into the front room and saw the deceased lying on the floor just inside the front door. Mr. Vinson did not see the appellant after the shooting, nor did he see a gun or a knife near the deceased as he lay on the floor. Mr. Vinson testified that he had given the appellant the sawed-off shotgun used in the shooting about two or three months earlier. /

Julia Mae Thomas testified that she lived in the house at 644 North Gay in Auburn where the deceased was shot. Ms. Thomas recalled that on the afternoon in question, Phillip Walker came to her house, looking for her daughter, Dorothy Mae Thomas. When Ms. Thomas told the deceased that her daughter was not home, the deceased walked out the front door of the house. Ms. Thomas heard a shot and then saw the deceased fall back into the house. The deceased cried for help as he fell to the floor. From her vantage point in the back of the house, Ms. Thomas could not see who shot the deceased. Ms. Thomas stated that, pri- or to the shooting, she did not see the deceased with a knife or a gun in his hand (R. p. 182).

Elizabeth Askew testified that she lived at 644 North Gay Street and was present at that address at the time of the shooting. Ms. Askew went into the front room and saw the deceased fall to the floor. Ms. Askew did not see who shot the deceased. Ms. Askew recalled that she did not see a knife or gun in the deceased’s hand, or on the floor near the deceased.

After the shooting, Ms. Askew called the police from a telephone located in another room of the house. Ms. Askew noted that no one touched or moved the deceased prior to the arrival of the police.

Dorothy Mae Thomas, a daughter of Julia Mae Thomas, testified that she had been to the doctor on the afternoon in question. Upon returning to her mother’s house where she lived, Miss Thomas saw the appellant in front of her mother’s house as he ran from the scene. At this point the appellant had a sawed-off shotgun in his hand. According to Miss Thomas, as the appellant ran past her, he said, “I meant to kill the damn son of a bitch” (R. p. 205). Miss Thomas did not see a knife or gun in the deceased’s hand or near him on the floor.

On cross-examination, Miss Thomas admitted that she had been seeing the deceased socially for about a year prior to his death. Miss Thomas said that the deceased usually paid her twenty or twenty-five dollars each week for cooking meals for the deceased.

Odessa Hill testified that she was driving past Ms. Thomas’ house on the afternoon in question. Ms. Hill saw the appellant some distance from Ms. Thomas’ house. As she drove slowly past him, the appellant asked Ms. Hill for a ride to his home. Ms. Hill stopped, and after he got into the car, the appellant told Ms. Hill that he shot Phillip Walker. Ms. Hill drove the appellant home and told him to stay there. On cross-examination, Ms. Hill recalled that the appellant told her that he shot Walker because Walker had attempted to stab him.

John R. McDuffie, an employee of the Alabama Department of Toxicology and Criminal Investigation, testified that, on August 23, 1977, during the course of his employment, he received from Detective Ed Downing four sealed plastic bags. The bags contained a live shotgun shell, a spent shotgun shell, and the two halves of a sawed-off shotgun. These bags were assigned a case number and delivered by Mr. McDuffie to Mr. Tellis D. Hudson, a crimi-nalist at the Department of Toxicology. Mr. McDuffie stated that the bags were in the same condition when delivered to Mr. Hudson as when he received them from Detective Downing. Mr. McDuffie recalled that the bags were in his possession for about ten minutes.

Daniel M. Avery, a pathologist with the Department of Toxicology, testified that he performed the post mortem examination on the body of the deceased, Phillip Walker, on August 23, 1977. Mr. Avery was shown to possess the necessary qualifications to express his opinion as to the effect of injuries upon the human body. Toxicologist Van V. Pruitt assisted Mr. Avery in his examination.

Based on his examination of the body and his training and experience as a pathologist, Mr. Avery’s opinion was that the cause of the deceased’s death was massive hemorrhage, resulting from severe destruction of the liver and the right renal artery by virtue of a shotgun wound to the abdomen. Mr. Avery testified that he gave the pocketknife, found in the deceased’s right front pocket, to Coroner Norred.

Tellis D. Hudson, a criminalist with the Department of Toxicology, testified that he received evidence from two sources in connection with his investigation of the death of Phillip Walker. Mr. Hudson received from Mr. Avery several shotgun pellets, some wadding, and a bag of clothing worn by the deceased. These items were in the same condition at trial as when Mr. Hudson received them from Mr. Avery on August 23, 1977. The trial judge admitted these items into evidence over the specific objection of the defense to the introduction of the bloody shirt. The shirt was admitted into evidence after the State adduced testimony from Mr. Hudson, which showed that he had measured the powder residues found around the hole in the shirt in order to estimate the approximate distance between the deceased and the barrel of the shotgun.

Mr. Hudson received from Mr. McDuffie four bags containing a live shotgun shell, a spent shotgun shell, and the two halves of a sawed-off twelve gauge shotgun. These items were in the same condition at trial as when Mr. Hudson received them from Mr. McDuffie on August 23, 1977. Both shotgun shells were admitted without objection. The shotgun itself was admitted over defense counsel’s objection, which the trial judge had earlier overruled in the suppression hearing. Based upon a comparison of test-fired shells with the spent shell in evidence, Mr. Hudson concluded that the sawed-off shotgun in evidence could have fired the evidence shell. Mr. Hudson could not be certain because the particular shotgun in evidence did not reproduce characteristic breach block markings on every shell fired in the shotgun.

Captain John Lockhart of the Auburn Police Department, testified that, on August 19,1977, at 4:58 p. m., in response to a police radio broadcast, he went to 644 North Gay Street in Auburn to investigate a possible shooting. Upon arrival, Captain Lock-hart observed a male lying in the floor of the front room of the house. Captain Lock-hart learned from the females at the scene that the man had been shot and that the assailant was no longer present. Captain Lockhart radioed for assistance, secured the scene, and checked the victim for vital signs. Captain Lockhart recalled that the man was still alive at that point. Captain Lockhart found the victim’s wallet in his left rear pocket, and identified him as Phillip Walker. Captain Lockhart remained with the victim until Coroner Norred arrived. Captain Lockhart testified that he did not see any weapons in the room where the deceased lay.

Coroner Norred testified that, on August 19, 1977, at 5:11 p. m., he arrived at 644 North Gay in Auburn to investigate a shooting in his capacity as Deputy Coroner of Lee County. Coroner Norred checked the victim for vital signs and found none. Phillip Walker was pronounced dead. Coroner Norred did not find any weapons in the deceased’s hands.

Coroner Norred testified that the knife given to him by Mr. Avery, along with other personal belongings of the deceased, was turned over to the deceased’s sister, Bessie Kershaw. In response to questioning, Coroner Norred described the knife as being a pocketknife approximately three inches in length when folded. Coroner Norred stated that it was customary to return the deceased’s personal effects to the surviving relatives.

Officer Richard Jenkins, a patrolman in the Auburn Police Department, testified that, on August 19, 1977, at approximately 5:00 p. m., he went to investigate a shooting at 644 North Gay Street. Pursuant to information he received at the scene of the shooting, Officer Jenkins went to the East Park Apartments to find the appellant. Officer Jenkins went to the front door of one of the apartments at East Park while Officers Ingram, Jackson, and deGraffen-ried watched the exit from the rear of the apartment. Officer Jenkins could see the appellant through the screen door when he knocked. Officer Jenkins asked the appellant where he had been. “Nowhere” was the response received (R. p. 297). Outside, on the front porch, the appellant said, “I didn’t shoot that man. Somebody behind me shot him” (R. p. 297). Officer Jenkins then requested the appellant to accompany him to the Police Station for further questioning. The appellant proceeded voluntarily making it unnecessary to place him under arrest. At the Police Station, Officer Jenkins delivered the appellant to Detective Plant.

Officer Bartholemew Ingram, Jr., a patrolman in the Auburn Police Department, testified to substantially the same events leading up to the apprehension of the appellant on the afternoon in question. After Officer Jenkins left with the appellant, Officer Ingram obtained permission to search the apartment from the tenant in possession, Ms. Sally Pearl Macon. Ms. Macon voluntarily and intelligently executed a written form, giving consent to the police to conduct a search. The form used was identified by Officer Ingram and admitted into evidence. During the course of the search of Ms. Macon’s apartment where the appellant had been previously apprehended, Officer Ingram found the receiver end of a shotgun. Officer Ingram identified State’s Exhibit Ten as the same instrument he found at Ms. Macon’s apartment. Officer Ingram stated that the receiver of the shotgun was in the same condition when he turned it over to Detective Plant later that day as it was when he found it at Ms. Macon’s apartment.

Detective Ray Plant, assigned to the Vice and Narcotic Division of the Auburn Police Department, testified that on the afternoon in question he received from Officer Ingram the receiver end of a shotgun. Detective Plant identified State’s Exhibit Ten as the same item he received from Officer Ingram. State’s Exhibit Ten remained in Detective Plant’s exclusive possession for about ten minutes after which time he gave said exhibit to Detective Downing.

Officer Frank M. deGraffenried, IV, a patrolman in the Auburn Police Department, testified that he was assigned as duty officer on the night of August 19, 1977. Officer deGraffenried explained that the duty officer functions generally as a jailer. Officer deGraffenried first saw the appellant on the night in question when he searched him prior to admitting him to a jail cell. The search yielded a wallet, a plastic bottle of pills, a small pocketknife, and a live twelve-gauge shotgun shell. Officer deGraffenried put these items in an envelope, marked as appellant’s personal possessions, and turned it over to Detective Downing. Later, Officer deGraffenried locked the appellant’s possessions in the evidence locker in the property room of the Police Station.

Detective Edwin D. Downing was recalled to the stand to identify several photographs taken by him of the deceased and the surroundings at the scene on the afternoon in question. Each photograph was admitted over objection. Detective Downing identified State’s Exhibit Ten as being the receiver of a shotgun that he received from Detective Plant on the afternoon in question. Detective Downing identified State’s Exhibit Eleven as being the barrel end of a shotgun that fit together with State’s Exhibit Ten. Detective Downing testified over objection that the appellant showed Detective Donovan and him where to find the barrel in some tall grass behind the East Park Apartments on the night of August 22, 1977. Detective Downing placed the barrel in a bag, initialed the bag, and delivered it to John McDuffie at the Department of Toxicology on the next day.

At the close of Detective Downing’s testimony, the State rested its case. Outside the presence of the jury, the defense moved to exclude the State’s evidence. The trial judge denied the motion, whereupon the case for the defense commenced.

Defense counsel related to the jury the stipulation of the parties concerning the authenticity of a receipt, subsequently admitted into evidence as Defendant’s Exhibit One, given by Bessie Kershaw to Coroner Norred for the personal effects of the deceased.

The appellant testified that on the morning of August 19,1977, his boss did not pick him up for work. The appellant drove Ms. Sally Pearl Macon to his sister’s house, the home of Clarence Vinson. Then the appellant went to Opelika to look at some clothes. From there the appellant drove to Draketown to see Ms. Julia Mae Thomas. About noon, the appellant arrived back at the East Park Apartments where Ms. Macon lived. Clarence Vinson found the appellant at that location, and the two men agreed to contribute toward the purchase and consumption of a pint bottle of gin. According to the appellant, Vinson suggested later that they go to Julia Mae Thomas’ house for a beer. When they arrived, Vinson got out of the driver’s side of the car and went into the house. When the appellant got out of the car, he could hear loud voices inside the house. As he walked to the front porch of Ms. Thomas’ house, he met the deceased coming out of the front door. According to the appellant, the two men bumped each other. The appellant stated that the deceased appeared angry. The appellant said, “Excuse me” (R. p. 365). “Damn, son of a bitch, you going to knock me down,” was the reply from the deceased (R. p. 365). According to the appellant, the deceased reached into his pocket and approached him in a threatening posture. The appellant warned the deceased to get back but he persisted despite the warning. The deceased backed the appellant into a position- against the wall between two pieces of furniture in such a way that the appellant had no available avenue of retreat. The appellant recalled that he was extremely “scared” of the deceased. The appellant recounted the conclusion of the affray as follows (R. p. 369):

“A. And so I kept telling him to stop, stop and he wouldn’t stop and so I just hauled off and just shot him and then I run out the door.”

The appellant admitted using a sawed-off twelve-gauge shotgun to shoot the deceased. The appellant stated that he had taken the shotgun from Vinson earlier that day “to carry it home and put it up” (R. p. 366). After the shooting, the appellant was picked up by Odessa Hill and driven to the East Park Apartments where he hid the barrel of the shotgun before being arrested by the Auburn police.

On cross-examination, the appellant stated that he had no reason to kill the deceased other than to protect himself.

Julian Woodhouse testified at trial for the defense to substantially the same facts and conclusions as those to which he had previously testified at the pretrial suppression hearing.

Jessie Mae Jones, who lived with Clarence Vinson, testified that she was the appellant’s sister. Ms. Jones stated that the appellant’s reputation for truth and peacefulness in the community prior to the shooting was good. With respect to the deceased, Ms. Jones noted that his reputation for violence in the community prior to the shooting was bad. Ms. Jones testified further that the deceased was known to carry a knife concealed on his person. Ms. Jones confirmed that she was in a back room of Julia Mae Thomas’ house, talking to Clarence Vinson at the time of the shooting.

Nell Rothwein, records custodian in the Auburn Police Department, testified that, according to the arrest records regularly kept by the police, Phillip Walker had been arrested on two occasions for carrying a concealed weapon and for public drunkenness. The arrest records were admitted into evidence by the trial court over the State’s objection.

Sally Pearl Macon testified that the appellant was the father of their two children. Ms. Macon testified that, during the nine years of their relationship, the appellant’s reputation for peacefulness in the community was good. The defense presented the testimony of two additional witnesses, which substantially corroborated Ms. Macon’s testimony as to the appellant’s general reputation for peacefulness in the community. At the close of this testimony, the defense rested, the trial judge delivered the oral charge, and the case was allowed to go to the jury, notwithstanding a request for the affirmative charge by the defense.

I

The appellant argues on this appeal that he was denied his right to Due Process of Law, as guaranteed to him under the Fifth and Fourteenth Amendments to the United States Constitution when the prosecutor failed to produce at trial certain evidence claimed to be exculpatory in character. Specifically, the appellant asserts that the omitted evidence, a pocketknife found in the deceased’s pocket, creates a reasonable doubt as to the appellant’s guilt that did not otherwise exist. The prosecutor’s failure to produce, therefore, allegedly denied the appellant a fair trial.

The appellant cites this Court to United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), as support for his prayer for a new trial. In that case, the respondent was convicted of second degree murder, notwithstanding his plea of self-defense. In her motion for new trial, the respondent asserted that she had discovered that the deceased had a prior criminal record (including guilty pleas to charges of assault and carrying a deadly weapon, apparently a knife) that would have tended to support the argument that respondent acted in self-defense, and that the prosecutor had failed to disclose this information to the defense. In upholding the trial court’s denial of respondent’s motion, the United States Supreme Court, per Mr. Justice Stevens, discussed the prosecutor’s constitutional duty to disclose exculpatory evidence to the defense. In determining whether nondisclosure results in constitutional error, the Court noted that the character of the nondisclosed evidence, not the intent of the prosecutor, is the controlling factor. If the nondisclosed evidence meets the Court’s standard of constitutional materiality, a new trial is mandated.

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” United States v. Agurs, supra, at 112-113, 96 S.Ct. at 2401.

In the case at bar, the evidence that the prosecutor failed to produce at trial, a pocketknife found in the deceased’s pocket, falls far short of the standard of constitutional materiality laid down in Agurs, supra. Although the jury did not have the knife itself during its deliberations, testimony of Coroner Norred vividly described the size and appearance of the knife. Coroner Norred, exhibited his own pocketknife to the jury, explaining how that of the deceased was comparable. It is hardly convincing to argue on appeal that the mere presence of the pocketknife itself in the jury’s deliberations would have created a reasonable doubt when such a vivid description of a commonly understood object did not. This is not a case in which the existence of exculpatory evidence was kept from the jury. Compare Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The record in this case reveals that the prosecutor intended to introduce the pocketknife into evidence, but learned at trial for the first time that it had been routinely returned to the deceased’s sister, along with other personal effects. The coroner’s descriptive testimony was then tendered as a substitute for the presence of the pocketknife, the existence of which was stipulated by the parties. It appears, therefore, that, in the context of the entire record, no error resulted from the prosecutor’s inability to produce the deceased’s pocketknife. See Giddens v. State, Ala.Cr.App., 333 So.2d 615 (1976); Cannon v. State, 53 Ala.App. 509, 301 So.2d 272 (1974). Moreover, a subpoena was issued at trial for the sister and for the pocketknife, but she could not be found.

A close examination of the record in this case reveals not only that the claim with regard to the pocketknife lacks merit, but also that the procedural aspects of the issue are flawed. Appellant filed a timely motion for new trial on November 9, 1977 (R. p. 494). This motion made no mention whatsoever of the pocketknife found in the deceased’s pocket. The issue was first raised by appellant in his motion for leave to appeal in forma pauperis on December 16, 1977, more than sixty days after the rendition of final judgment (R. p. 499).

“It has been uniformly held that after the expiration of thirty days from the rendition of a final judgment, no additional grounds can be assigned to a motion for a new trial filed within the thirty-day period that are not germane to, or merely elaborative of, grounds previously assigned.”
Lowery v. State, Ala.Cr.App., 340 So.2d 830, 834, cert. quashed, 340 So.2d 836 (1976)

We hold, therefore, that the issue is not properly presented to this Court for review. However, assuming arguendo that the issue had been properly presented, for the reasons hereinabove stated, we find no merit in the appellant’s contention. Authorities cited.

II

Appellant contends that the trial judge erred to reversal in failing to instruct the jury to disregard testimony concerning an alleged case against the appellant for assault and battery. It appears that, in instructing the jury to disregard testimony brought out concerning other offenses, the judge inadvertently excluded the assault and battery charge from his instruction (R. p. 379). Whether intentional or not, the trial judge’s action was proper.

It is well settled that prior offenses committed by the accused are inadmissible when offered solely for the purpose of showing the accused’s criminal propensity. Loggins v. State, 52 Ala.App. 204, 290 So.2d 665 (1974); Swicegood v. State, 50 Ala.App. 105, 277 So.2d 380 (1973); Neal v. State, 47 Ala.App. 68, 250 So.2d 605, cert. denied, 250 So.2d 608 (1971).

In McDonald v. State, 57 Ala.App. 529, 329 So.2d 583, cert. quashed, 295 Ala. 410, 329 So.2d 596 (1975), cert. denied, 429 U.S. 834, 97 S.Ct. 99, 50 L.Ed.2d 99 (1976), it was stated:

“It is well to note however, that although the general rule excludes evidence of similar offenses for the purpose of showing bad character of the accused, exceptions are recognized if relevant for any purpose other than to show a mere propensity by the defendant to commit the crime charged.”

In the instant case, the accused testified on direct that he had never been in “any trouble” with the law (R. p. 375). It was in this context that the State offered to prove a prior conviction for assault and battery. We consider the following discussion by Judge Clark in Hammonds v. State, Ala.Cr.App., 354 So.2d 345 (1978), to be dispositive of the issue here presented.

“In Vincent v. State, 231 Ala. 657, 165 So. 844, cert. denied, 298 U.S. 682, 56 S.Ct. 960, 80 L.Ed. 1402 (1936), the court upheld the admission in evidence of defendant’s participation in a robbery prior to and on the same day of the charged murder in the attempt to commit a robbery. It did so on two distinct grounds: (1) to rebut testimony of defendant, given on his direct examination, that he had ‘never taken part in any holdup or robbery before.’ and (2) as falling within the ‘motive’ exception to the rule of exclusion. There is little dissimilarity between Vincent and this case on the question of the admissibility of the evidence.” Hammonds, supra, at 349-350.

Ill

The appellant contends that error occurred when the trial judge admitted into evidence the bloody shirt worn by the deceased at the time of the shooting. Because of the similarity of the issues, we consolidate this discussion with our discussion of the appellant’s contention that error occurred in the admission of several black and white photographs taken of the deceased by investigators at the scene of the shooting shortly after it transpired.

In Flannagin v. State, 289 Ala. 177, 266 So.2d 643 (1972), it was stated:

“It is a long established rule of this State that demonstrative evidence, such as clothing worn by deceased at the time of the killing, is admissible if it tends to shed light on any material inquiry, even though such evidence is only cumulative of other evidence and tends to inflame the jury. Barbour v. State, 262 Ala. 297, 78 So.2d 328; Ray v. State, 253 Ala. 329, 45 So.2d 4. The rule regarding admissibility was set forth with clarity in Rollings v. State, 160 Ala. 82, 86-88, 49 So. 329, 331 as follows:
‘The clothing of deceased, as well as that of the accused, . . . are usually held admissible on trials of homicide. There are only a very few cases in which they have been excluded, when offered as evidence for the inspection of the jury, if tending to elucidate the transactions, to identify any of the parties, to connect the accused with the crime, or to show the character of the wound, motive or intent of the killing, or degree of the crime — whether the killing was in self-defense or not. If such objects tend to corroborate or disprove, illustrate or elucidate, any other evidence, they are admissible***
‘The wearing apparel of deceased, showing the location of the bullets, the character and nature of the wound, the blood stains, etc., were properly admissible under the rules stated above, and it is no reason to exclude them that these matters might be shown by other evidence, or that these objects might prejudice the jurors. * * * [Emphasis supplied.]

In the instant case, the deceased’s clothing clearly tended to show the character, location, and nature of the fatal wound. Therefore, there was no error in admitting the clothing into evidence. Gould v. State, Ala.Cr.App., 332 So.2d 402 (1976).

With respect to the photographs of the deceased, which were admitted, we find no merit in the assertion that such action was erroneous. We have carefully examined these photographs and conclude that they are corroborative, demonstrative evidence of the testimony of several witnesses who viewed the deceased after the shooting. Douglas v. State, Ala.Cr.App., 333 So.2d 880 (1976); Lewis v. State, Ala.Cr.App., 339 So.2d 1035 (1976); Brodka v. State, 53 Ala. App. 125, 298 So.2d 55 (1974); Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Smarr v. State, 260 Ala. 30, 68 So.2d 6 (1953).

IV

The appellant asserts on this appeal that it was error to deny the pretrial motion to suppress the barrel of the murder weapon, which was discovered as a result of a statement obtained in violation of the appellant’s rights under the Fifth and Fourteenth Amendments to the United States Constitution. Simply stated, the appellant asserts that the trial judge’s ruling on the evidence violates the so-called “fruit of the poisonous tree” doctrine first advanced in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). See also, Nardone v. United States, 308 U.S. 338, 60 S.Ct 266, 84 L.Ed. 307 (1939); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Although the doctrine initially developed as an extension of the Fourth Amendment’s exclusionary rule, it has been applied to situations involving coerced confessions. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). In the instant case, the thrust of the appellant’s argument is that the statement on August 22, 1977, which led to the discovery of the shotgun barrel, was not voluntarily and understanding^ given since the appellant had demonstrated an intelligence quotient within the range of “mild mental retardation.”

In Mitchell v. State, Ala.Cr.App., 338 So.2d 524 (1976), this Court, per Judge Bookout, addressed a similar argument.

“In order to hold that the appellant was incapable of voluntarily confessing, we would have to take judicial notice of a fact not in evidence, i. e., that a person with an I.Q. of 65 does not have the mental capacity to voluntarily confess. This we cannot do. The appellant’s expert witness testified that the appellant knew right from wrong and that an I.Q. of 65 indicated moderate mental retardation. There was no evidence as to what effect an I.Q. of 65 has on one’s capacity to make a knowing, intelligent, and voluntary confession.”

Mitchell, supra, at 525.

We have carefully examined the testimony given at the suppression hearing and conclude that the trial judge correctly ruled the statement admissible. We note specifically that the appellant, though illiterate, was sufficiently apprised of his Miranda rights by the police to execute a voluntary and understanding waiver of those rights. Furthermore, we find the record in this case totally void of any indication of improper inducements, threats, abuse, or promises made to the appellant in order to get him to make a statement. The appellant voluntarily led the police to the location where he had earlier hidden the barrel of the shotgun that he freely admitted using to shoot the deceased. The record reveals, through the appellant’s own testimony, that his nonprescription “nerve pills,” which he customarily took in the morning, were provided for him the day after his arrest, on the afternoon of August 19, 1977. Hence, the appellant has no basis for arguing that he was deprived of a “necessity” which contributed to the coercive atmosphere surrounding the taking of his statements. As soon as the police were made aware of the appellant’s need, his “nerve pills” were provided for him.

Having decided that no “poisonous tree” is rooted in the record of this case, it follows that there is no merit to the contention that the admission of the shotgun barrel violated the “fruit of the poisonous tree” doctrine.

V

The appellant contends that reversible error occurred in the denial of numerous written requested jury charges. The thrust of requested charges seven, eight, and eleven, is that the jury should acquit the defendant if they have a reasonable doubt as to the existence of the requisite specific intent or malice generated by the evidence relating to either the intoxication or mild mental retardation of the defendant.

The law of this State is well established that intoxication, voluntarily produced, is never a defense against a criminal charge unless it is so extreme as to render impossible some mental condition which is an essential element of the criminal act. The degree of intoxication necessary to negate the element of malice must be so excessive as to paralyze the mental faculties and render the appellant incapable of forming or entertaining the design to take life. Medders v. State, Ala.Cr.App., 342 So.2d 49 (1977); Sowells v. State, Ala.Cr.App., 339 So.2d 1090 (1976); Scott v. State, Ala.Cr.App., 333 So.2d 619 (1976); Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969).

In his oral charge to the jury, the learned trial judge covered the law relating to intoxication. The issue, having been before the jury, was resolved against the appellant in their verdict which was not against the weight of the evidence.

Similarly we hold that the evidence failed to prove, as a matter of law, that the appellant was so intoxicated that he lacked the requisite specific intent to support the jury’s verdict. Partial intoxication will not avail to disprove the specific intent; it must be of such character and extent as to render the accused incapable of consciousness that he is committing a crime. Green v. State, Ala.Cr.App., 342 So.2d 419 (1977).

In considering the issue of the appellant’s mental capacity, we rely in large part upon the conclusion of the report (hereinabove quoted) of Mr. Woodhouse. We cannot find any authority which speaks directly to the relationship in law between an accused’s intelligence quotient and his ability to form a specific intent. It is significant in this case that the appellant, at the close of all the evidence, withdrew his plea of not guilty by reason of insanity. Clearly, it is not error to refuse to instruct the jury on a proposition not yet resolved by the courts. In upholding the trial judge’s refusal to instruct, we reserve decision on the merits of the issue.

With respect to the remaining written requested instructions which were refused, we are satisfied after a careful examination of the trial judge’s oral charge on self-defense and the burden of proof that such refused charges were fully, fairly, and adequately covered by the oral charge. § 12-16-13, Code of Alabama 1975. Therefore, refusal was proper. Ingram v. State, Ala.Cr.App., 356 So.2d 761 (1978).

We have carefully reviewed this record and find same to be free of error. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Ralph Tillman TUCKER, Jr. v. STATE.
    6 Div. 620.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    W. Wilson Dinsmore of Dinsmore & Waites, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen. for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the grand jury of Jefferson County for buying, receiving, concealing or aiding in concealing one two-door Chevrolet automobile, the property of Travis Lynn Hanna. At arraignment, in the presence of counsel, he entered a plea of not guilty to the charge against him. A jury found the appellant guilty, fixing the value of the automobile at four thousand dollars and the trial court sentenced appellant to two years of imprisonment in the penitentiary.

The sole issue on this appeal is whether or not police officers were required to give appellant Miranda warnings prior to asking him a question at his home. The sufficiency of the evidence to sustain the conviction is not preserved for review as appellant did not move to exclude the State’s evidence; did not move for a directed verdict; did not request the affirmative charge; did not move for a new trial, and no exceptions were reserved to the oral charge. A brief recital of the facts, however, is necessary to put the question raised in proper perspective.

Travis Hanna testified that some time in August, 1976, he owned a 1974 Monte Carlo which disappeared from the parking lot of Western Hills Mall in Jefferson County, Alabama. This automobile was white with a half-vinyl white “Landau” roof. A few months later, Hanna identified his automobile at a wrecker service in the Southside district of Birmingham, Alabama. Hanna explained that his automobile had a bumper guard on it, which was “pinched off” when he struck a rail, and a spare tire which was kept in the trunk was “worn on the inside.” Hanna further testified that he got the serial number of the car, 1H57R4B558073, from Kenny Wilson to whom he had sold the vehicle.

Paul Couch testified that he was a Sergeant of Detectives in the Jefferson County Sheriff’s Office. On approximately October 10, 1976, Couch was conducting an investigation in the area of Hanover Circle in Birmingham, Alabama. On that occasion, Couch observed appellant, driving a white Monte Carlo, which was later parked at 2764 Hanover Circle. The license number on the vehicle was 1 C 11164. Subsequently, having talked with Sergeant Clyde Am-berson, attached to the auto theft department, Couch accompanied Amberson to that address on October 14, 1976. After observing the same Monte Carlo parked at the residence, and after serial numbers were checked, Sergeant Amberson had the automobile “towed in.” Couch further testified that he later went to the same address alone. At that time Couch saw a different white Monte Carlo of approximately the same description as the one which had been towed in. This particular Monte Carlo did not have a Landau top and was dented.

Clyde Amberson testified that he was a detective sergeant with the auto theft division of the Jefferson County Sheriff’s Office. On October 14, 1976, Amberson went to 2764 Hanover Circle with Sergeant Couch where he saw a Monte Carlo bearing the serial number 1H57R 4B558073. The license number on the vehicle was 1 C 11164. Subsequent to checking these numbers, Amberson had the car towed in. Am-berson further testified that on October 18, 1976, another white Monte Carlo was parked at the address in Hanover Circle. However, this car did not have a Landau roof, although it was the same model. A Ralph Tucker dealer sticker was on the back bumper of this car.

Edmond K. Steadman testified that he was a custodian of records for the Jefferson County Department of Revenue and that he kept registrations of vehicles in Jefferson County. Tag number 1 C 11164 was issued in 1976 to a 1969 Plymouth Fury III in the name of Charlie E. Tripp.

At this point the State rested.

Ralph Tucker, Sr., appellant’s father, testified that he found a 1974 white Monte Carlo for sale at American Finance, run by his cousin, James Allfred, in Birmingham, Alabama, in September or October of 1976. Tucker took this car to show his wife in Brundidge, Alabama. However, Tucker testified, he returned the car to Birmingham, because his wife did not want it and left it at his sister’s house “out in Central Park.” Appellant later picked up the car and drove it to his home in Hanover Circle.

James H. Allfred testified that the Monte Carlo was taken on consignment at American Finance from a man named Charlie Stiles. Allfred allowed Tucker, his cousin, and the father of appellant, to take the car to show to his wife.

Jack Baxley, an employee of American Finance, testified to substantially the same facts as did Allfred. Baxley further testified that Charlie Stiles had died of a heart attack some time after leaving the Monte Carlo at American Finance to sell for him.

In rebuttal the State called Detective Sergeant Robert L. Graham, who testified on voir dire that he accompanied Sergeant Amberson to appellant’s home on October 14, 1976. There Graham observed a white 1974 model Monte Carlo. Graham further testified that he and Amberson knocked on the door of the house; appellant opened the door. Having asked appellant his name, Amberson told him that he was investigating the theft of an automobile and asked appellant “what he knew about the car out in front, the white one.” Appellant replied that he “knew nothing on it.”

Graham further testified that appellant was not under arrest at this time and was not arrested that day; nor was appellant threatened, or offered a reward or hope of reward for making a statement. Appellant was not advised of his Miranda rights before he answered Amberson’s question.

The trial court then conducted the following examination of Graham:

“THE COURT: All right. When he said nothing, I don’t know anything about it, what happened then? What happened then?
“A. He towed the car in to O’Conner-Weill.
“THE COURT: For what purpose?
“A. It was a stolen vehicle.
“THE COURT: You know it was stolen? “A. Yes, sir.
“THE COURT: Then what did you do? You knew it was stolen before you went up there and knocked on the door?
“A. No, sir. When we had it identified by VIN number.
“THE COURT: When?
“A. We ascertained it was stolen.
“THE COURT: Before you went and knocked on the door is what I am asking.
“A. Yes, sir.
“THE COURT: You knew it was stolen when you went up there and knocked on the door?
“A. Yes, sir.
“THE COURT: And he wasn’t under investigation for it?
“A. We was trying to ascertain.
“THE COURT: I understand that, but were you zeroed in on him?
“A. We asked him about the car, yes, sir.
“THE COURT: Was he under investigation is what I am asking?
“A. Yes, sir.”

Graham further testified that appellant was not arrested until Monday, October 18, 1976. Appellant was not arrested until then because no identification had been made of the car by the owner.

Following this testimony, the Court allowed appellant’s statement to be admitted into evidence, over appellant’s objection that Miranda warnings had not been administered.

Appellant contends that the police officers’ question amounted to custodial interrogation which triggered the requirement that he be apprised of his constitutional rights. Appellant notes that it is especially important to discern whether or not an investigation had focused on him as a suspect. This is the central thesis found in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Thus appellant argues that the trial court erred to reversal.

We do not agree. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, “Custodial interrogation” is defined as:

. . questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

Appellant was not subjected to interrogation of the type found in Miranda, supra. Appellant was not under arrest, nor was appellant’s freedom of action impaired in any significant way. At the front door of his home he merely answered one question.

In Miranda, supra, the Court further held:

“General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.”
“. . . (O)ur decision does not in any way preclude police from carrying out their traditional investigatory functions.” See Wright v. State, 54 Ala.App. 725, 312 So.2d 417.

Although the officers may have “zeroed in” on appellant, as the trial court chose to phrase it, by asking him about the car; this does not establish that custodial interrogation existed. In Sims v. State, 51 Ala.App. 183, 283 So.2d 635, this Court wrote:

“It is equally plain that ‘focus’ alone does not trigger the necessity for Miranda safeguards. In the absence of actual arrest something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning. One thing that is undeniable in the Miranda decision is that focus means custody, not that custody means focus. United States v. Hall, 2 Cir., 421 F.2d 540.”

A careful search of the record reflects no error injuriously affecting the substantial rights of appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Lonnie Lamar FIELDS, alias Lonnie L. Fields v. STATE.
    6 Div. 650.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Darryl C. Hardin, of Hardin & Gordon, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen. for the State, appellee.
   BOWEN, Judge.

The appellant was convicted of robbery and sentenced to ten years’ imprisonment. The only question on appeal is whether the court improperly admitted evidence of a separate and distinct offense.

Jewell Thomas Swinney met Tommy Kent and the appellant in Barn’s Cafe in Bessemer, Alabama, during the evening of May 3, 1977. Swinney was carrying fourteen hundred dollars in his wallet. Around midnight, the three men left the cafe allegedly to go listen to the appellant play his guitar and sing. Kent drove Swinney’s car to the Sheraton Inn in Tuscaloosa where they met the appellant who had driven there in a different car. Prior to going into the motel Swinney placed his wallet under the car seat.

The three then left the motel in the appellant’s car to go listen to music at the appellant’s house. The appellant drove down a dirt road and stopped. Kent forced Swinney to completely undress and demanded his money. Both Kent and the appellant displayed knives. After Kent cut Swinney’s stomach three times, Swinney told them that he had left his money in his car at the motel. The appellant and Kent then left. When Swinney returned to the motel his car had been moved and his money taken.

The appellant was charged with robbing Swinney of his glasses, shoes, clothes, ear keys, and other various personal items. The appellant contends that the testimony concerning the burglary of Swinney’s automobile and theft of money from that automobile was inadmissible as evidence of a separate and distinct criminal offense.

While such evidence was evidence of another offense each offense was part of a scheme to accomplish a certain purpose, i. e., the theft of the money, and was therefore admissible into evidence. Hawes v. State, 88 Ala. 37, 7 So. 302 (1889). The jury could reasonably conclude that both offenses were connected and that the appellant and his accomplice only committed the initial assault and robbery of Swinney in order to accomplish their ultimate goal of unlawfully obtaining Swinney’s wallet and the large sum of money it contained.

The evidence that Swinney’s wallet was removed from his automobile was also properly admitted as showing the motive for the crime charged against the appellant. “Evidence of the accused’s commission of another crime is admissible if it tends to show a motive to commit the now-charged crime.” Fuller v. State, 269 Ala. 312, 113 So.2d 153 (1959); Goodman v. State, 52 Ala.App. 265, 291 So.2d 358 (1974); Gamble, McElroy’s Alabama Evidence (3rd ed. 1977), § 69.01(7). Remoteness of the time of the commission of the act does not alone render it inadmissible. Wilkins v. State, 29 Ala.App. 349, 197 So. 75, cert. denied, 240 Ala. 52, 197 So. 81 (1940).

We have searched the record on appeal and, finding no error adverse to the rights of the appellant, affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Larry Joe ARD, alias v. STATE.
    7 Div. 609.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      Kermit M. Downs, Gadsden, for appellant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen. for the State, appellee.
   BOOKOUT, Judge.

Robbery; sentence: sixty years imprisonment.

The evidence establishes that on November 23,1977, the appellant robbed the Quick Shop in Attalla, Alabama. During the course of that robbery, the appellant also robbed an employee of that business, Mildred Mae Brown. After taking the money from the cash register and from Mrs. Brown’s purse, he forced her into the back room of the store and attempted to rape her. During the course of the attempted rape, she was beaten severely and suffered a broken rib and a broken finger. Approximately $327 was taken in the robbery.

I

Appellant contends that a confession he made to police officers was erroneously admitted into evidence. On voir dire examination, the appellant testified that police officers threatened him and also promised him probation if he would confess to the crime. Thus, he contends that his statement to the officers was involuntary.

Where a threat is such that through fear an accused was likely to have told an untruth, a confession should be excluded. Likewise, any inducement of profit, benefit, or melioration held out (either collateral or directly relating to the offense under inquiry) is enough to render a confession inadmissible. Ex parte Holt, Ala. [Ms. August 4, 1978, SC 77-150]; O’Tinger v. State, Ala.Cr.App., 342 So.2d 1343 (1977).

Although the appellant testified that he had been threatened and that inducements were made to him in order to obtain the confession, other evidence to the contrary was admitted. Don Longshore, an investigator with the Etowah County Sheriff’s Office, testified that he read the Miranda warning to the appellant before the questioning began. The appellant signed a waiver of counsel, and Officer Longshore testified that neither he nor anyone in his presence promised the appellant or his family any hope of reward or anything of value to obtain the confession. He stated that neither he nor anyone in his presence threatened or coerced the appellant in any way and that the confession was freely and voluntarily given by the appellant.

On numerous occasions, this court has recognized that conflicting evidence is often presented on a question of the voluntariness of a confession. In each such instance where the trial judge found the confession .to have been voluntarily made, great weight was given to that finding. We have repeatedly said that such a finding will not be disturbed on appeal unless we are convinced that the conclusion reached by the trial judge was palpably contrary to the weight of the evidence. Smith v. State, Ala.Cr.App., 346 So.2d 382, cert. denied, Ala., 346 So.2d 385 (1977).

Likewise, this court stated in McNair v. State, 50 Ala.App. 465, at 470, 280 So.2d 171, 176 (1973) cert. denied, 291 Ala. 789, 280 So.2d 177:

“. . . Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and volun-tariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. . . . ”

In the instant case, we find the ruling of the trial judge in this regard to have been supported by substantial evidence. The appellant’s confession was therefore admitted into evidence without error.

II

After its deliberations, the jury returned the following verdict:

“We, the Jury, find the Defendant guilty as charged and sentence him to 60 years in the State penitentiary.”

After the trial judge asked the defendant if he had anything to say and received a negative response, the court stated:

“In accordance with the ruling of the Jury, you will be sentenced to the State penitentiary for a term of 60 years. . . ”

The judgment entry reads in pertinent part as follows:

“ . . . In accordance with the verdict of the Jury, it is therefore ordered and adjudged by the court, and it is the judgment and sentence of the Court that as punishment for this offense, the defendant, Larry Joe Ard, alias Larry J. Ard, alias Larry Ard, be and he is hereby sentenced to imprisonment in the penitentiary of the State of Alabama for a term of Sixty (60) years. . . . ”

The above excerpts from the record clearly show that the trial judge merely performed the ministerial duty of pronouncing the sentence which had been determined by the jury. Title 14, § 415, Code of Ala. 1940, provided:

“Any person who is convicted of robbery shall be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years.” (Emphasis supplied.)

However, § 13-3-110, Code of Ala. 1975, states:

“Any person who is convicted of robbery shall be punished by imprisonment in the penitentiary for not less than 10 years, or as otherwise specified by law.”

Section 15-18-20 of the new Code provides:

“When an offense is punishable by imprisonment in the penitentiary or hard labor for the county, the court must impose the term of punishment, unless the power is expressly conferred on the jury.”

Therefore, the 1975 Code fails to confer upon the jury the authority to set the punishment for the offense of robbery. Only the trial judge now has that authority.

Under the old system, the jury in effect wore blinders in fixing punishment. The jury was not allowed to hear evidence of a defendant’s prior criminal acts, nor did they have the benefit of presentencing reports and other information now available to a trial judge in determining what sentence to impose upon a defendant. The sentencing procedure under the new Code should be performed by the trial judge based upon his observation, deliberation, and investigation. He is not authorized to act in a ministerial capacity by submitting the question of punishment to the jury and then merely transcribing their decision into the judgment entry. Therefore, where a record clearly shows that the trial court did not consider the jury finding as a mere recommendation or as being advisory only, it will be necessary to remand the case to the trial court for proper sentencing pursuant to provisions of the 1975 Code. The conviction is hereby affirmed, but the case is remanded for proper sentencing by the trial judge.

AFFIRMED. REMANDED FOR PROPER SENTENCING.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Howard Luther DICKERSON v. STATE.
    8 Div. 64.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      Finis Royal, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen. and Eddie Hardaway, Jr., Asst. Atty. Gen. for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty of robbery and fixed his punishment at thirty years imprisonment. He was sentenced accordingly.

The only witness for the State was Eugene McCamy, who testified that about 5:00 P.M., July 16,1977, defendant came into the drug store of witness in Scottsboro and while asking about some articles of merchandise, grabbed McCamy, placed his left arm around McCamy’s neck and said, “If you do what I tell you, you won’t get hurt. I want all of your Class A.” He said defendant placed a gun in McCamy’s side, picked up a box off the floor, and instructed McCamy to fill it with some Class A drugs. McCamy did so, Dickerson left the store with the drugs and McCamy then called the police.

Appellant does not contend that the evidence does not present a jury issue, but he insists that the fact that there was only one witness against him emphasizes the likelihood of an unjust result by reason of various errors of the trial court either on the trial or in its denial of defendant’s motion for a new trial.

Defendant was represented on the trial by retained counsel. After his conviction, he was determined an indigent, and counsel was appointed for him on appeal. The motion for new trial was filed by his appointed counsel, which the court denied after a hearing thereon, in which evidence was taken.

Appellant urges that the trial court “abused its discretion when it refused to grant a continuance in this case.”

The record does not show that defendant ever unequivocally requested a continuance. When the case was called for trial, the State announced that it was ready, and defendant’s counsel said, “Judge, I need to call my witnesses.” Defendant’s witnesses were then called for the trial of the case, and defendant’s counsel then said:

“Judge, due to our defense in this matter, I couldn’t announce ready without those witnesses. I would like to find out if they were definitely served by calling the Sheriff down there and get a arrest order or something.”

The court was then recessed to allow defendant’s counsel time to make phone calls concerning these witnesses. Upon reconvening, defendant’s counsel said:

“Judge, it shows the Sheriff’s office reports Mr. George Echols was served yesterday, 3-20-78; Terry Haley has moved to Oklahoma; and they could not locate Mr. Ginn or Mr. Spurlin at the address, which, well, I can’t understand it because they run a business out on the highway there; it’s well known to everybody, just outside of Anniston; and they are material witnesses for the defendant.”

After further colloquy, the following occurred:

“[Defendant’s Counsel]: Defendant couldn’t announce ready until we could get those witnesses.
“THE COURT: Well, we passed the matter over from yesterday until today to try to get them line up and get them here. The circumstances of the case situation which you are aware of demands that that case be tried this term of court; and we’ll do everything within the power of this court to get these people here. Any suggestion that you have at this time or later on,—
“[Defendant’s Counsel]: I would like for the record to show that the defendant has made every effort, also.
“THE COURT: If you will, issue an attachment for the witness George Echols of Anniston, Alabama, please. All right; Ladies and Gentlemen of the Jury, well, would you like for me to call the jury and have them identify themselves? “[Defendant’s Counsel]: Yes, sir.”

We do not say that the request or motion for a continuance required any particular formality, but we think it should have been more definite than that shown by the record. There may be basis for some suspicion, at least, that, although counsel was sincere in stating that he wanted the missing witnesses, he chose for the trial to be commenced rather than to have it continued to a future date.

When the State concluded its testimony and rested, defendant moved to exclude the evidence. The motion was overruled, and defendant proceeded immediately, without referring to the absent witnesses, to present defendant’s witnesses and testimony. At the conclusion thereof, defendant again mentioned the matter of the absent witnesses and stated:

“Judge, those other two material witnesses, we haven’t been able to, I don’t feel like we can rest until we have the testimony of those witnesses. I realize they couldn’t find two of them; but Echols is material. Other than those, we would be able to rest.”

The court then stated,

“Well, I don’t know really anything further we could do unless we just held the case open forever, you know. And, of course, we can’t do that.”

Defendant’s counsel then stated,

“Could I recall Mr. Danny Dickerson?” And the court said,
“Yes, sir.”

After the testimony of Mr. Danny Dickerson on recall, defendant’s attorney announced, “defendant rests, Your Honor.” There was then no request for a continu-anee or any further time to obtain the absent witnesses. The State then announced that it had nothing further, and after a short recess, argument of counsel proceeded, the court charged the jury, and the jury commenced deliberations.

Aside from any question whether defendant sufficiently invoked a ruling continuing the case, the court cannot be held in error for not continuing it. A continuance of a criminal case by reason of the absence of some defense witnesses is left to the sound discretion of the trial court and is not reversible on appeal unless a clear abuse of discretion is positively shown. Hillyer v. State, Ala.Cr.App., 351 So.2d 646, cert. denied, Ala., 351 So.2d 648 (1977); Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976).

A Mrs. Davis, an employee of the Scotts-boro Police Department, was a member of the jury. In interrogating the jury venire from which the jury was selected to try the case, the court asked them, inter alia, whether (1) any of them had a fixed opinion as to the guilt or innocence of the defendant that would bias their verdict, and (2) if they knew anything about the facts of the case. It appears that the juror Mrs. Davis made no response to either question.

During interrogation by defendant’s counsel of the jury venire, he asked, “Do any of you know or are you related to Mr. Clarence Bolte, a policeman?” Mrs. Davis answered, “I know him; I’m Mrs. Davis.” Counsel for defendant then said, “Mrs. Davis, you work for the Police Department? Thank you.” Officer Clarence Bolte was not called as a witness for the State. He testified on call of the defendant. His testimony was to the effect that he investigated the robbery promptly after it occurred, talked with Mr. McCamy, attempted to make some fingerprint tests on the scene which were unsuccessful and that he did not find any witnesses to the robbery, other than Mr. McCamy.

Appellant relies largely upon the often cited case of Leach v. State, 31 Ala.App. 390, 18 So.2d 285, cert. denied, 245 Ala. 539, 18 So.2d 289, in which it was held:

“On their voir dire examination and at the request of defendant, the jurors were examined and qualified as to whether or not any of them were serving or had previously served as a deputy sheriff, constable, policeman or other law enforcement officer. Two of the veniremen answered in the affirmative and were duly stricken from the list by the defendant. One juror, later accepted on the panel, did not answer and failed to disclose that he had previously s.erved as a deputy sheriff of the county for about fifteen years. This fact was unknown to either the defendant or his counsel until after the trial, and, of consequence, defendant was denied the privilege of and failed in striking said juror from the panel selected to try the case, as he would have done had the juror disclosed his former official relations. Whether such concealment was deliberate or unintentional, on the part of the juror, need not be considered, insofar as the resultant prejudice to defendant be concerned. Hayne New Trial & Appeal, Vol. 1, Section 45, p. 144.
“Defendant urged the foregoing as prejudicial error in his motion for a new trial and renews the argument here. We think it well taken.”

On the motion for a new trial in instant case, defendant called Officer Bolte as a witness. He testified that Mrs. Davis was an employee of the Scottsboro Police Department. To the question whether the case was ever discussed in her presence, he replied, “I’m sure that it was because she typed my report.”

The case before us is distinguishable from Leach, supra, in several respects. There is nothing to indicate in instant case that defendant would have challenged or stricken Mrs. Davis as a juror even if defendant and his attorney had known that she had typed the report made by Officer Bolte. There is nothing to show that defendant and his attorney did not know or have good reason to believe, before the trial commenced or during the trial, that she typed the report. Whether the contents of the report were prejudicial to defendant is not shown. The one making the report found no evidence to indicate that defendant was guilty. The fact that defendant called Officer Bolte as a witness indicates, though it does not conclusively show, that defendant’s counsel thought that Officer Bolte’s information was more beneficial than detrimental to defendant.

In ruling on the motion for a new trial, the court indicated, but did not expressly hold, that there was no probable prejudice to defendant in any failure of Mrs. Davis to answer any of the questions addressed to the jury venire. In Freeman v. Hall, 286 Ala. 161, 238 So.2d 330, 335, (1970), it was held:

“Neither Sanders v. Scarvey [284 Ala. 215, 224 So.2d 247]; Leach, nor the original opinion in the instant case, is authority for the proposition that on voir dire any failure of any prospective juror to respond properly to any question regardless of the excuse or circumstances automatically entitles a party to a new trial or reversal of the cause on appeal.
“We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant... . "

We are of the opinion that there has been no showing of any probable prejudice to defendant by reason of any failure of Mrs. Davis to answer questions propounded to her and that there was no abuse of the discretion of the trial court in its ruling on the motion for a new trial as to the particular matter. Alabama Power Co. v. Hussey, 291 Ala. 586, 285 So.2d 92, 96, (1973).

The court was never apprised of exactly what defendant expected to show in evidence by the three missing witnesses, but it is clear that he proposed to show by them that they saw defendant in the area of Anniston, Alabama, on the afternoon of the robbery in Scottsboro, nearly one hundred miles away. Three witnesses for defendant so testified in support of his claim of an alibi. Each of them said that appellant was in the Anniston area then about an hour or an hour and a half before 5:00, the time of the robbery, and one of them said he was in the Anniston area before dark the day of the robbery. During the opening argument of counsel for the State, he said:

“. . .Iam questioning the fact they [the alibi witnesses for defendant] have come up here and asked you to believe this hogwash about them being down there at all these different times. As a matter of fact, even if you believe every one of them, I don’t think there’s anybody in here that could tell you the defendant wasn’t up here at 5:00 that afternoon robbing this store.”

Thereupon, counsel for defendant said:

“Judge, I’m going to make an objection to what the lawyer thinks; it’s not his province to think; it’s the jury’s. We move for a mistrial.”

The court replied:

“That is right; the lawyer can only argue inferences that he draws from the testimony, and that is the only thing he can argue; overrule your motion.”

The overruling of the motion for a mistrial was not error. Defendant’s counsel obtained from the statement of the court all of that to which defendant was entitled. The testimony of the witnesses, if true, indicated that it was hardly probable that defendant could have been at Scottsboro at the time of the robbery, but their imprecision as to the time defendant was out of their view the afternoon of the robbery constitutes a predicate for a reasonable, if not absolutely certain, conclusion that there was no irreconciliable conflict between their testimony and that of the victim of the robbery as to the time it occurred. The court was not in error in overruling defendant’s motion for a mistrial.

We think also that the court was not in error in overruling another motion for a mistrial based on argument of State’s counsel that the robbery was “cold-blooded.”

The term “cold-blooded” or “cold-blood” in criminal cases is usually associated with the crime of homicide, as to which it means “a willful, deliberate, and premeditated” homicide. Skeggs v. State, 24 Ala.App. 307, 135 So. 431, cert. denied, 223 Ala. 221, 135 So. 433 (1931). It is clear, however, that State’s counsel was not attempting to equate the crime of robbery with that of murder in the first degree or of injecting in any way real blood into the case, but was using the term “cold-blooded” in its generally accepted sense of lacking “insensibility, feeling, or consideration.” Webster’s New Second International Dictionary. The circumstances of the robbery from the standpoint of the prosecution justified the characterization given it by counsel. At any rate, there was nothing blood-curdling in the use of the word and nothing so ineradicably prejudicial as to justify a mistrial. The court was not in error in overruling defendant’s motion therefor.

Defendant’s motion for a new trial did not contain any grounds relative to any of the argument of counsel for the State or the court’s action with reference to such argument, but it did include grounds as to the absent witnesses and as to the presence on the jury of Ms. Davis, which the court, by its written order overruling the motion for a new trial, evinced its careful consideration. For the reasons stated in our consideration of the questions arising on the trial, there was no error in the court’s overruling defendant’s motion for a new trial.

We find no error in the record and the judgment appealed from should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.