author: DeCARLO, Judge.

text:
    Billy MOTES v. STATE.
    8 Div. 980.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.

      Cecil Wayne Morris, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Billy Motes was tried on a two-count indictment charging him with the possession and sale of marijuana in the form of hashish in violation of the Alabama Uniform Controlled Substances Act. After pleading not guilty, he was tried, convicted and sentenced to three years in the State penitentiary.

The evidence presented by the State showed that on May 20, 1976, Glen Kilpa-trick, an undercover narcotics agent for the North Alabama Drug Unit, and Mike Eth-eridge went to a house occupied by the Appellant, Billy Motes, and his wife. It was about 7:00 P.M., when the two arrived at the house. In response to their knock, the appellant’s wife came to the back door, followed by her husband.

According to Kilpatrick, Etheridge asked appellant, “did he have anything to smoke.” The appellant replied that he did not have any “pot” but did have some “hashish.” They were invited in and Kilpatrick said they walked through the kitchen into the living room and sat down.

The appellant then went to the bedroom and returned with a small piece of tinfoil which he opened and handed to Kilpatrick. Kilpatrick, in turn, looked at it and handed it to Etheridge, who commented, “looks pretty good.” The package was returned to Kilpatrick, who placed it in his pocket and gave the appellant a ten-dollar bill. Kilpa-trick testified that the cost of the substance was seven dollars per gram and that the appellant gave him three dollars change. He went on to say, though, that there was only one-half gram in the tinfoil.

Kilpatrick recalled that after the sale they discussed making an additional purchase and were told to check back during the weekend. The two men left at the conclusion of the discussion and Etheridge drove Kilpatrick back to his car.

When Etheridge drove away, Kilpatrick placed the “hash” in a metal box which he kept in the trunk of his car. He stated that he alone had access to the metal box in his car and that the substance was later put in an envelope and turned over to Sgt. Bogus on May 25, 1976.

According to Kilpatrick, at the time he made the purchase, the appellant had hair over his shoulders and wore a beard. During the trial he made an in-court identification of the appellant and identified a picture depicting him with a beard and long hair, which he said accurately portrayed Motes as he appeared on May 20th when the sale was made.

Kilpatrick explained that the appellant’s “green shingles type house” was located about two or three miles from New Hope, Alabama, at a place called Big Tree on Paint Rock Road.

During cross-examination, Kilpatrick testified that he made a case report after the arrest was made and in that report he described the appellant at the time of the arrest as being approximately six feet, seven inches tall and weighing one hundred and ninety pounds. Further, he said he was approximately twenty-two years old, was tall and slim, had long brown hair and wore a mustache and beard.

Although appellant’s wife was not present during the sale, Kilpatrick described her as being about five feet, five inches tall and weighing approximately one hundred and twenty-five pounds, and having long, dark hair.

On further cross-examination, Kilpatrick described the living room and some of its contents, which was later contradicted by Motes’ wife. He said that after entering the house through the kitchen, they remained in the living room for approximately twenty or twenty-five minutes.

Michael Joseph Etheridge testified that he was twenty-two years of age and had known Motes in New Hope, Alabama, since about the ninth grade.

According to Etheridge, on May 20, 1976, about 7:00 P.M., he and Glen Kilpatrick went to the appellant’s house on Paint Rock Road. He described the house and stated that prior to that date he had gone there on numerous occasions but stated that he was not sure when Motes first began occupying the house.

Etheridge recalled that they knocked on the door of appellant’s house and his wife, Diane, responded. They asked for the appellant and Motes came to the kitchen from the living room. According to Etheridge, they asked Motes, “did he have anything we could get high on, or something like that,” to which Motes replied that “he didn’t have no pot, he had some hash to sell.” The appellant told them that the price was seven dollars per gram and went into a bedroom and returned with a gram of hash in a piece of tinfoil. Motes handed it to Kilpa-trick who turned it over to Etheridge for his examination. Etheridge returned the tinfoil and its contents to Kilpatrick who paid Motes ten dollars. The appellant gave Kilpatrick three ones in change and said, “wait a minute, we’ll smoke some.” Ether-idge testified that he said “no” that he had to pick up his wife and that they had to go.

Etheridge testified that during the time of the transaction the appellant’s wife was not present and did not participate.

Further, he recalled that he and Kilpa-trick remained in the house no longer than fifteen minutes. When they left they went out the back door and Etheridge drove Kil-patrick back to his car. Etheridge testified that he only looked at the substance in the living room and afterwards did not handle or touch it in any way.

On cross-examination, Etheridge testified that while in jail he had become acquainted with Officer Glen Kilpatrick. He was in jail on a charge of leaving the scene of an accident and he stated that he did receive some consideration on that charge for giving his assistance to the police. Etheridge said he was not sure whether the charge involved a misdemeanor or a felony but that the bond was three thousand dollars. Further, he related that he later plead guilty and received “60 days.”

Etheridge admitted that he had smoked “pot” but said that he was not using drugs at the time of the transaction. He would not classify himself as a regular user of marijuana and stated that he had never used any other drugs, even though he had smoked marijuana once or twice a week during the past couple of years.

Sergeant Howard Bogus, of the North Alabama Drug Unit, testified that on May 25, 1976, he received some evidence in a brown manila envelope from agent Kilpa-trick. Bogus said that he did not know what was in the envelope but made an in-court identification of the packet bearing his initials.

Bogus stated that at the time he received the packet it was sealed. He signed his name, put his initials on it and took it to the toxicology lab about 3:20 P.M. on May 25, 1976. There he gave it to Kim Gibson. According to Bogus, during the hour and twenty minutes that the envelope was in his possession, it did not leave his presence and no one else touched it.

Kim Gibson, employed by the State of Alabama, Department of Toxicology, as a Crime Laboratory Analyst II, in the Huntsville division, testified that on the afternoon of May 25, 1976, she received the manila envelope in question from Sgt. Bogus. She analyzed the material and determined the substance to be “the resin of marijuana.” She explained that the substance is classified a resin and is generally extracted from crushed marijuana plant material. Further, she said that the resin of marijuana contained cannabinoids and through testing she had identified the substance as tetrahy-drocannabinol.

Deputy Sheriff Terry Hutcheson worked in Madison County, and in November, 1976, was assigned to the intelligence unit. He testified that he had arrested the appellant on the present charge. At that time, Motes had a beard and shoulder-length hair. During the trial he identified a photograph that depicted the appellant on the day of his arrest. The arrest was made at the appellant’s residence, a green, shingled house located on Paint Rock Road outside of New Hope.

At the end of Hutcheson’s testimony, the State completed its case and, after the defendant’s motion to exclude the State’s evidence was overruled, the appellant testified in his own behalf.

Motes testified that on May 20, 1976, he lived in a house trailer approximately twenty miles from New Hope in Woodville, Alabama. Further, he said that a year prior to this time he and his wife had lived in Scottsboro.

According to Motes, he had moved to New Hope after his mobile home in Wood-ville was repossessed on June 28, 1976. He said that he and his wife had rented a “gray-siding house,” belonging to a Mrs. Henry Graves, and had moved into the house the third or fourth week of June.

Motes denied seeing Etheridge and Officer Kilpatrick on May 20, 1976, and denied selling the hashish. He admitted that Eth-eridge had been to his house on numerous occasions but said that he was never accompanied by Officer Kilpatrick.

Motes further denied threatening Ether-idge and said that he had never made any statement to Officer Kilpatrick or seen him before the day of the trial.

Motes testified that on May 20, 1976, he was at his trailer in Woodville, Alabama, and that his wife was working at Eckerds Drugs in Scottsboro. He said that he had never lived in a green shingled, house in New Hope, Alabama and that during May and June of 1976, his living room furniture was black vinyl.

Motes went on to testify that on May 20, 1976, he weighed about 150 pounds and had never weighed 190 pounds. The defendant indicated he could name at least ten people in the area that would fit his general description.

During cross-examination, Motes stated that in May of 1976, he owned a 1966 Nova automobile and that on November 20, 1976, he did not own an automobile.

Lorene Graves testified that in June, 1976, she rented a house to Billy Motes. She said that the appellant and his wife rented the house from her for about five months and that she had gone to the house on several occasions, sometimes at least three times a week unannounced.

During cross-examination, Mrs. Graves stated that she could not swear that it was June when the appellant moved in but that she did not really believe it was as early as May. She also testified that the house she rented to the appellant was a brownish-gray or something like that but was not green.

Willis Porter testified that he had known the appellant since February, 1974. He stated that in January, 1975, Motes’ employment at Halstead Industries had been terminated and the union, of which he, Porter, was president, was arbitrating the matter. Further Porter said that Motes lived in Woodville and that it was sometime after the first part of June that the appellant’s mobile home had been repossessed.

On cross-examination, Porter testified that from January, 1976, until May, 1976, while Motes was unemployed they had kept in touch by telephone. During this period Motes had said that he was living in Wood-ville but Porter said that he had never been to the appellant’s trailer.

Clayton Cross, called as a character witness, stated that he had known Billy Motes for twenty-four years and that he had a fine reputation.

Appellant’s wife, Diane Motes, testified that during 1975 and 1976, they were living in Woodville, Alabama and prior to that time they had lived in Scottsboro. She testified they were buying a trailer but after they had financial difficulties the trailer was repossessed in the latter part of June, 1976. She said it was after the trailer was repossessed that they moved to Mrs. Graves’ house in New Hope.

Mrs. Motes stated that the house they lived in was not green but that it was gray with gray siding. She also said that she knew Mike Etheridge and that he had been to the house on many occasions but accompanied by his wife each time. Mrs. Motes denied ever seeing Officer Kilpatrick prior to the trial and said that she had not seen the officer and Mike Etheridge on May 20, 1976.

She went on to describe her living room furniture as being “black Spanish” and that the only lighting in the living room was located in the ceiling. Further she stated that there was an early American rocker and a small television in the living room. She said that the television was sitting on a wood spindle similar to the ones used by the telephone company to carry cable.

I

Appellant alleges that the trial court erred in granting the State’s challenge for cause of a venireman when it had not been shown that he was biased, or if biased, that such bias would affect the verdict he would be required to render.

During the voir dire examination of the jury venire, the State challenged for cause one member of the venire, and, after a defense objection, the court made the following inquiry:

“THE COURT: Mr. Andrews, do I understand you to say that you will start out and count the witnesses per side and you are going to start out deadlocked and if there is three witnesses for each side at the end you are going to be deadlocked?
“A JUROR: There is a possibility.
“THE COURT: I understand that, but I am asking if that’s what you are telling us?
“A JUROR: Unless the three could prove to me something that — other than the Defendant could.
“THE COURT: Will you be able to listen to the testimony and listen to the evidence and weigh it and reconcile it and reach a decision based upon the evidence, that’s without regard to numbers one way or the other? You will have evidence presented by each side and it will be the jury, the duty of the jury to take the instructions given by the Court and to weigh the testimony and to reconcile it and to consider it in the manner as instructed by the Court. And what I am trying to find out is if you can do that in arriving at a fair, true verdict in the case?
“A JUROR: Well, depends on which one proves the most to me, which side.
“THE COURT: Well, you are telling me that you can listen to the evidence and you can evaluate it and you can weigh it and consider it and render a verdict based upon the totality of the evidence?
“A JUROR: It’s possible.
“THE COURT: No. In order to sit on the jury, Mr. Andrews, for both sides, you must be able to do that, not enter into it with the possibility that you can do it, because if there is a possibility you can’t do it you perhaps ought not to be on the case, you see.
“A JUROR: It’s a possibility that I could not do it, Judge.
“THE COURT: All right. There was another reason or previously stated that — what was that? Not by Mr. Andrews, not having to do with the witnesses.
“MR. ACARDI: He stated he would be strongly — stated he would be strongly against—
“THE COURT: There was some other reason that I had marked with a question mark and I have forgotten what it was.
“MR. ACARDI: Mr. Andrews stated that he was very strong against drugs.
“THE COURT: So, that it appears to be some reason why he might not be fair to the Defendant and also it may be that so based upon the possibility that he — I am going to grant that challenge for cause in fairness to both of you'. You and the other side, because I am not sure that he really understands what he enters into. And plus he has stated that he is opposed very hard on drugs.
MR. MORRIS: We object to the Court’s ruling. He also stated that possibly his sitting on this jury could be beneficial to the Defendant.
“THE COURT: He also said possibly he couldn’t even render a verdict in the case. He said he possibly could not listen to the evidence objectively in accordance with the instructions of the Court and I grant the challenge for cause.
“MR. MORRIS: We except to the Court’s ruling.
“THE COURT: I am going to excuse you from this panel.
“A JUROR: Thank you, Sir.”

The grounds for disqualification of jury veniremen for cause are enumerated in T. 30, § 55, Code of Alabama 1940, Recompiled 1958. However, these are not exclusive and any other ground which indicates probable prejudice will also disqualify. Pointer v. State, 24 Ala.App. 23, 129 So. 787.

The trial judge is given much discretion under T. 30, § 5, in an attempt to insure an unbiased jury. Such discretion is not confined to the grounds enumerated in T. 30, § 55, supra. Cooper v. Magic City Trucking Service, 288 Ala. 585, 264 So.2d 146; Mutual Building & Loan Association v. Watson, 226 Ala. 526, 147 So. 817. Where probable prejudice is indicated for any reason, a prospective juror is disqualified. Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391.

It is a fundamental rule that parties have a right to an impartial jury. Great care should be exercised to guarantee the accused constitutional right to a fair trial by an impartial jury. Wilson v. State, 243 Ala. 1, 8 So.2d 422.

Mr. Justice Waite, in writing for the United States Supreme Court, in Reynolds v. U. S., 98 U.S. 145, 25 L.Ed. 244, observed:

“A juror to be impartial must to use the language of Lord Coke, ‘be indifferent as he stands unsworn . . . ’ It is clear . that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and the strength of the opinion as such as in law necessarily raises the presumption of partiality. . . . The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest.”

The decision of a trial court to disqualify a venireman based on a challenge grounded on bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an erroneous abuse of discretion. Mims v. Mississippi Power Co., 282 Ala. 90, 209 So.2d 375; Acoff v. State, 50 Ala.App. 206, 278 So.2d 210; Smithson v. State, 50 Ala.App. 318, 278 So.2d 766.

Appellant asserts that the bias of the venireman was not supported by the foregoing portion of the record. We note that during the colloquy between the attorneys and the court that the prosecution stated that Andrews “was very strong against drugs” and “. . . granting the challenge for cause the trial judge stated that in fairness to both the defense and the prosecution he would excuse the venireman because he had stated, “it’s a possibility . . .” that he could listen to the evidence objectively and render a fair verdict.

The court did not abuse its discretion in granting the challenge for cause and that decision will not be disturbed on appeal. It cannot be said that from the record the venireman, as he stood unsworn, was indifferent.

II

It is next contended that the trial court was in error when it permitted a photograph of the defendant made at the time of the arrest to be placed into evidence. Appellant argues that the photograph had a prejudicial effect on the jury and no relevancy at all on the issue of identity of the defendant. The inflammatory nature of the photograph is alleged to be that it depicted the defendant with long hair and a beard at the time of the arrest, when at the trial he appeared with short hair and no beard. This, appellant claims, is highly prejudicial.

In support of this contention the appellant is relying on Van Nostrand v. State, 51 Ala.App. 494, 286 So.2d 903; Boyd v. State, 50 Ala.App. 394, 279 So.2d 565, and Chamberlain v. State, 46 Ala.App. 642, 247 So.2d 683.

Each of these cases is distinguishable from the case at bar on the issue of identity-

In Van Nostrand v. State, supra, the defendant’s identity was not in issue. Van Nostrand claimed that although he was present during the sale of the narcotics he never had the envelope in his possession prior to the time of the sale and he did not know that it contained heroin. In Boyd v. State, supra, defendant, charged with shooting the victim with a pistol, entered a plea of not guilty by reason of insanity. The facts in that case indicated that the defendant was a passenger in a car at the time the victim who was traveling in another car was shot. The occupants of the defendant’s car testified that a shot was fired from their car and that the defendant was the only one in possession of a pistol. Appellant himself confessed that he fired the gun in the direction of the victim’s car to scare him. Under these facts, no question of identity was presented.

We also distinguish Chamberlain v. State, supra, because the facts indicate that the question of identity was not presented. Chamberlain did not testify and two robbery victims positively identified him in an in-court identification. A lineup photograph introduced by the State without dispute had no tendency to prove or disprove any material fact in issue.

In this case the appellant’s identity was in issue. In his testimony he asserted that he had not sold the substance, was not living in the house where the sale took place and had never seen the undercover agent or the informant on the night in question. Further, he stated that he was in a mobile home in another city on the night of the sale and that there were at least ten other individuals that he knew of in the town of New Hope that met his general description. In our judgment, this is a classic case where the appellant’s identity was in fact an issue.

Dispositive of this issue by appellant is the opinion in Shiflett v. State, 52 Ala.App. 476, 294 So.2d 444. There this court was faced with a factual situation very similar to the one presented in the case at bar. Shiflett had been convicted for selling marijuana. The photograph introduced by the State was taken of him on the day of his arrest and he had emphatically denied selling the drug. This court said that, due to the appellant’s obvious change of appearance at the time of the trial from the date of the arrest, the photograph had a tendency to prove the material fact of identity.

Ill

During the trial, objection was made to the introduction of State Exhibit # 1, the package of “hashish,” on the grounds that a chain of custody had not been established.

A review of the testimony by Officer Kilpatrick reveals that after he received the hashish from the appellant, he placed the substance in a locked box that was then placed in the trunk of his car. Nothing else was in the box and Kilpatrick testified that only he had access to the trunk and the box. The hashish remained in their until it was turned over to Officer Bogus five days later.

The factual circumstances surrounding the handling of the physical evidence in the present case is very similar to the facts presented in Mullins v. State, 56 Ala.App. 460, 323 So.2d 109. There an undercover agent bought some marijuana from the appellant and placed it in his pocket and after returning to his motel room, sealed it in an envelope. The envelope remained in the motel room until noon the next day when it was turned over to another officer. That officer then placed it in another envelope which he locked in the trunk of his car where it remained for five days before it was delivered to a State toxicologist. This court in upholding the admissibility of the evidence determined:

“The evidence as to the custody and possession of the envelope and its contents sufficiently established there was no missing link in the chain of identification. The identification and continuity of possession were sufficiently shown, affording ample assurance of the authenticity of the envelope and its contents and the analysis conducted by the toxicologist.”

See Powell v. State, 47 Ala.App. 582, 258 So.2d 923; Green v. State, 42 Ala.App. 439, 167 So.2d 694; Dennison v. State, 259 Ala. 424, 66 So.2d 552; Oury v. State, 53 Ala.App. 240, 298 So.2d 661.

From the facts presented it is evident that the continuity of possession was sufficiently shown and the trial court properly admitted the exhibit.

IV

The appellant insists that the refusal of the following requested instruction on alibi was error.

“Ladies and gentlemen of the jury, the Defendant in this case has set up a defense of alibi, saying that he could not have committed this offense because he was somewhere else at the time the offense was committed. The Defendant has no burden of proof whatsoever in establishing his alibi.”

The law is well settled that where the substance of a charge was fairly and substantially covered by the oral charge the refusal of the special written charge was not error. Williams v. State, 21 Ala.App. 319, 108 So. 84.

We have reviewed the court’s oral charge and have found that it was substantially covered when the court gave the following instruction:

“The defendant has entered his plea of not guilty in the case and he has testified that he was not present and if the jury believes that he was not present then or if you otherwise have a reasonable doubt concerning his guilt, it is equally your duty to acquit him and in that event the form of your verdict would be, ‘We, the Jury, find the Defendant not guilty.’ ”

We have searched the record for error and having found none, the judgment is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex parte Billy MOTES.
    77-350.
    Supreme Court of Alabama.
    March 24, 1978.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Lee Edward FORD v. STATE.
    1 Div. 829.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.

      Lee R. Butcher, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Possession of heroin; sentence: fifteen years imprisonment.

At the beginning of the jury selection process, the following occurred:

“(Whereupon, on April 19, 1977, a jury venire was brought in, sworn by the Clerk, and during the qualifications, the following objection was made:)
“THE COURT: I will give you both a couple of minutes now before we start. When the State is ready, let me know.
“MR. PIERSON: Judge, are we going to identify the jury?
“THE COURT: We have already identified them.
“MR. BODIFORD: I don’t believe we have, Your Honor.
“THE COURT: I have already had the jury stand to be identified. I think you were late for that, Mr. Bodiford.
“MR. BODIFORD: Your Honor, you had the jury identified before I came?
“THE COURT: You were not here, Mr. Bodiford, and you were not present when the jury was identified. I am not going to have them re-identified. You may note your exception to the Court’s ruling for the record.
“MR. BODIFORD: Yes, sir, I do.
“THE COURT: It will be so noted by the Court Reporter.
“(Whereupon, a jury was struck; and sworn by the Clerk; and the following proceedings were had and done:) . . .”

Appellant is an indigent represented at trial below and on appeal by court-appointed counsel.

Counsel for appellant contends, in brief, that the trial court’s refusal to have members of the venire identified forced him, “to strike a petit jury from a list of names without knowing which names belonged to the individual sitting in the jury panel.” He contends this violated the appellant’s right to effective assistance of counsel as guaranteed by Article I, § 6, Constitution of Alabama 1901, the Sixth Amendment, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We agree.

The Sixth Amendment right to effective counsel as set out in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), applies to the states via the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). That right applies to all criminal prosecutions where a defendant’s loss of liberty is at stake. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The right to counsel attaches, “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The right to effective representation of counsel applies at all critical stages of a trial, including arraignment, White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and preliminary hearing, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). The Alabama Constitution affords no less protection to its citizens than that afforded by the United States Constitution.

Alabama law provides that the defense and the prosecution be furnished with a list of all regular jurors impaneled for the week from which they shall strike a jury. Section 12-16-100,- Code of Ala.1975. In many counties, especially in rural areas, attorneys are familiar with every prospective juror listed and no identification of the venire is usually requested. However, in more heavily populated urban areas, identification of the venire is a customary and normal part of the jury selection process.

Although identification of the individual veniremen is not specifically required by statute, we know of no way counsel can effectively and intelligently strike from a list of prospective jurors without being able to identify by sight the individuals listed.

The State contends that since it is not mandated by statute, identification of the venire is merely a courtesy extended by the trial courts to the parties. That argument seems analogous to the State’s contention in Coleman v. Alabama, supra, that since a preliminary hearing after indictment was not statutorily mandated, there was no error in refusing counsel to the defendant at such a hearing. The United States Supreme Court did not agree with that argument in Coleman, and neither do we in the instant case. We would define the issue here the same as the United States Supreme Court did in the Coleman case. The issue is not whether a statutory provision was violated, but whether the appellant was required to participate in any critical stage of his trial without counsel or without effective assistance of counsel.

There is hardly a more critical stage of trial than the process of striking a jury. For that reason, the trial court’s refusal to have the venire identified for defense counsel amounts to a denial of effective assistance of counsel in this instance. To strike from a list of faceless names, without knowing which individual was being stricken, renders the process of striking a jury ineffective and defeats the whole purpose of the struck jury system. But more importantly, we find that the trial court initially proceeded to identify the venire prior to the defense counsel’s arrival in court. This caused the defendant to enter into a critical stage of his trial without the benefit of counsel whatsoever. The appellant is therefore entitled to a new trial in which he must be represented by counsel during all critical stages.

Reversed and Remanded.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-387.
    Supreme Court of Alabama.
    March 31, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: BOWEN, Judge.

text:
    Lawrence GRIFFIN v. STATE.
    1 Div. 838.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.

      Andrea P. Pennington of Pennington & Pennington, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Montgomery, for the State.
   BOWEN, Judge.

This appeal is taken from a conviction of robbery and jury sentence of thirty years’ imprisonment. The appellant is represented both at trial and on appeal by court appointed counsel.

Two issues are presented for review: (1) The suggestiveness of the preindictment line-up procedure and (2) the constitutionality of the manner in which the grand and petit juries of Mobile County were selected.

At approximately 6:30 on the evening of January 4, 1977, three men participated in the robbery of Tom’s Dairy Freeze in Pritchard, Alabama. Juanita Barron testified that the appellant came to the customer service window where she was working, grabbed her by the arm and placed a gun to her head. Responding to Ms. Barron’s cries for help, Debbie Sikes came out from the cooking area of Tom’s and asked the appellant what he wanted. The appellant then pointed his pistol at Ms. Sikes and demanded “the money”. After receiving it, the appellant and his two accomplices escaped on foot.

The Pritchard Police were immediately notified and, pursuant to a description of two of the suspects, apprehended the appellant and Ivan Robinson within forty-five minutes and approximately twelve to fifteen blocks from the robbery scene.

Ms. Barron and Ms. Sikes viewed a lineup about one hour after the robbery and each identified the appellant.

The appellant presented several witnesses to support his defense of alibi. Betty Whitfield, the girlfriend with whom he was living, testified that she and the appellant were watching the evening news and that he went out for cigarettes about ten minutes after the news came on, which was either at 5:30 or 6:00 P.M. Ms. Whitfield’s house was about four or five blocks from Tom’s Dairy Freeze.

Betty Whitfield’s mother, Georgia Edna Whitfield, testified that the news was on when the appellant came to her house. He left about five minutes after the next program began. Mrs. Whitfield’s house was one block away from her daughter’s.

Finally Ms. Louise Whitfield, Betty Whitfield’s sister, testified that the appellant and Ivan Robinson came to her house about 6:50 P.M. to sell a bicycle. After they talked a “long while” she bought the bicycle and the appellant left. Ms. Louise Whitfield lived about two or three blocks away from her mother’s house.

I

Initially the appellant contends that his motion to suppress the identification evidence was due to be granted because a pretrial line-up was unduly suggestive for the reason that he was the only person in the line-up wearing a long black coat.

An identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification violates due process. Stoval v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The standard for determining whether an identification procedure is unnecessarily suggestive involves a consideration of the totality of the circumstances in each particular case. Stoval, supra; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Caver v. State of Alabama, 537 F.2d 1333 (C.A.5, 1976); Dawson v. State, 47 Ala.App. 293, 253 So.2d 362 (1971).

In determining where a pretrial identification procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny due process of law, two related aspects of the totality of the circumstances must be considered. First, the court must determine whether the police procedures at issue were, in fact, suggestive. If suggestiveness is found, the court must examine the reliability of the identification, in spite of the suggestive nature of the confrontation. In such an examination, it is clear that the reliability issue is the determining factor, and unjustified, suggestive procedures may be overborne when there are present sufficient in-dicia of reliability. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976).

A.

In determining the suggestive nature of a confrontation, no single circumstance generally suffices to render evidence of a line-up identification inadmissible.

“Thus the fact that the lineup, as alleged by the defendant, was so composed that it made his identification unreasonably easy, has generally been held not sufficient to require exclusion of the identification evidence. And while the courts have generally taken into account the defendant’s physical appearance, compared to that of the other participants in the lineup, in determining whether the lineup was suggestive, they have not found justification for characterizing a lineup as suggestive, although there is authority to the contrary, on the basis merely of the defendant’s claim that when he appeared in the lineup, his clothing was distinctive enough to set him apart from the others, where the defendant was wearing his own clothing, or where the witnesses had other bases for identifying him.” 39 A.L.R.3d 487 at 491, Annotation: Admissibility of evidence of line-up identification as affected by allegedly suggestive line-up procedures.

The fact that the robber was described as wearing a long black coat, coupled with the fact that the appellant was the only participant in the line-up wearing a long black coat, no doubt served to inject an element of suggestiveness into the line-up and subject it to criticism. However, under the circumstances of this case, such taint was not unnecessarily suggestive and did not vitiate the line-up identification.

A number of courts have concluded that, although the defendant’s attire at the time he appeared in a police line-up was distinctive enough to set him off from the other participants, this did not affect the fairness of the proceeding and would not therefore render the identification evidence based on the line-up inadmissible, where the defendant was only wearing the same clothing he had on at the time of his arrest. People v. Jones, 44 Mich.App. 633, 205 N.W.2d 611 (1973); State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972); McCay v. State, 51 Ala.App. 307, 285 So.2d 117, cert. denied, 291 Ala. 788, 285 So.2d 122 (1973); People v. Sanders, 14 Ill.App.3d 826, 303 N.E.2d 552 (1973); People v. McMorris, 17 Ill.App.3d 364, 308 N.E.2d 291 (1974); Presley v. State, 224 Md. 550, 168 A.2d 510, cert. denied, 368 U.S. 957, 82 S.Ct. 399, 7 L.Ed.2d 389 (1961); Hernandez v. State, 7 Md.App. 355, 255 A.2d 449 (1969) and other cases cited in 39 A.L.R.3d 487, 499-503, §§ 9(6)-10. While no doubt this practice is suggestive, the courts have not found it to be unnecessarily suggestive or a violation of due process where the suspect is apprehended shortly after the crime wearing clothes matching the description given by the victim and is placed in the line-up wearing the same clothes. See also United States v. Ball, 381 F.2d 702 (6th Cir. 1967); State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969); Harris v. Turner, 466 F.2d 1319 (10th Cir. 1972); Childers, supra; Note, Pretrial Identification Procedures—Wade to Gilbert to Stovall: Lower Courts Bobble the Ball, 55 Minn.L.Rev. 779, 810-812 (1971); Sobel, Eyewitness Identification in Criminal Cases (1972), p. 105; Wall, Eyewitness Identification in Criminal Cases (1965, 1975 ed.), pp. 32-33, 55.

B.

Even the fact that the defendant may have been so clothed when he appeared in the line-up that he stood out from the other participants does not make the proceeding so suggestive as to warrant the exclusion of the identification evidence where the witness, in picking out the defendant from the line-up, had other bases for doing so. 39 A.L.R.3d 487 at 500, § 10. This is because the determinative factor in searching for the existence of unjustified suggestive pretrial identification procedures is the reliability of the victim’s testimony. Neil v. Biggers, supra; Childers, supra.

“(T)he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v, Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382.

Other factors may also be considered. See People v. Kachar, 400 Mich. 78, 252 N.W.2d 807 (1977).

On consideration of these factors we conclude that Ms. Barron’s and Ms. Sikes’ identifications of the appellant were sufficiently reliable to avoid the due process challenge.

The line-up was composed of six men of the same race and was conducted approximately one hour after the robbery. Ms. Barron testified that she observed the appellant’s face under “real bright” flood lights for approximately four minutes. During this time the appellant was holding her by the arm. She stated the appellant was wearing a long black leather coat with a cape around the shoulders and that the coat was “unusual” and “outstanding”. At the hearing on the motion to suppress she testified that she

“noticed his face and the way he did his hair, and especially the coat he wore, but I never will forget that face.”

She further testified that she could identify the robber even if she had never viewed the line-up; that she was absolutely positive in her identification; that when she looked at the line-up she focused on the man’s face rather than his coat, although she did consider the coat in making her identification. Cross examination of Ms. Barron both on voir dire and before the jury failed to reveal any hint that her identification was unnecessarily influenced by the coat.

Ms. Sikes also identified the appellant in the line-up after having observed him under substantially the same conditions as Ms. Barron at the time of the robbery. She testified that she thought someone was “playing” with Ms. Barron when she heard her scream and looked at the appellant’s face “trying to see who it was”. Two spotlights were centered over the service window and she “could see everything at the window” and could see as well as she could in the courtroom. Ms. Sikes observed the appellant from a distance of two to three feet and continuously looked at him from three to five minutes except for one time when the bag containing the money split.

She stated that her line-up identification of the appellant was based strictly on his face and that she wasn’t paying any attention to his clothing; that other than the fact that he didn’t have a toboggan on, she didn’t notice what he was wearing at the line-up. Other testimony and evidence convince us that the allegedly ubiquitous black coat played absolutely no part in her identification of the appellant.

A review of the testimony of both Ms. Barron and Ms. Sikes justifies the conclusion that the appellant’s distinctive clothing was not the pivotal identifying factor. A consideration of those other factors set forth in this opinion and which we are able to answer from the record confirms this conclusion. Under the totality of the circumstances, the identification testimony was reliable and the procedure was not so unduly suggestive that it was conducive to mistaken identification. However, had the two witnesses demonstrated some hesitancy or inability in identifying the appellant our conclusion and finding might very well have been different.

II

The appellant alleges that his motion for new trial was due to be granted on the grounds that the grand jury which indicted the appellant and the petit jury which convicted him were selected in an unconstitutional manner due to the exclusion of black persons from the jury rolls of Mobile County-

This objection was first raised by a motion for new trial filed after the appellant had been tried and convicted and notice of appeal given. This objection was therefore waived.

“(We hold that henceforth a failure by the defendant in a criminal case to raise proper objection to the composition of a grand or petit jury, including, but not limited to, the constitutional ground of the jury selection process, before entering upon the trial of the case on its merits, constitutes a waiver of his right to do so, subject, of course, to the recognized exceptions of fraud and as to matters which were not known, or by the exercise of due diligence, could not have been known, before trial.” Williams v. State, Ala., 342 So.2d 1328 at 1330 (1977).

See also Manson v. State, Ala.Cr.App., 349 So.2d 67 (1977).

The constitutionality of the jury selection process in Mobile County has been the subject of continuing litigation since 1970. Preston v. Mandeville, 428 F.2d 1392 (5th Cir. 1970); Preston v. Mandeville, 479 F.2d 127 (1973). Most recently, and three days before the appellant was tried, a consent decree was entered into in the United States District Court for the Southern District of Alabama ordering a temporary new jury roll for Mobile County. Preston v. Mandeville, Civil Action No. 5059-68-H, April 15, 1977. The appellant argues that because the issuance of this order was not “widespread” public knowledge at the time of the appellant’s trial, the appellant and his attorney had no reason to know of the unconstitutionality of the juries in Mobile County. We have already found a similar contention to be without merit. Malloy v. State, Ala.Cr.App., 357 So.2d 671, 1978. The exercise of due diligence could have discovered this constitutional objection to the jury selection process. See Malloy, supra.

We have carefully reviewed the entire record and have written to those objections raised by the appellant on appeal. Finding no error adverse to the substantial rights of the appellant we reach the conclusion that the judgment of the trial court is due to be affirmed.

AFFIRMED.

All Judges concur.

      .“Thus, factors which the court should use in determining whether an independent basis exists should include:
      1. Prior relationship with or knowledge of the defendant.
      2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.
      3. Length of time between the offense and the disputed identification. See Anderson [People v. Anderson], 389 Mich. [155] 214, 205 N.W.2d 461, for analysis of the curve of forgetting.
      4. Accuracy or discrepancies in the pre-line-up or showiip description and defendant’s actual description.
      5. Any previous proper identification or failure to identify the defendant.
      6. Any identification prior to lineup or showup of another person as defendant.
      7. Still another consideration, not mentioned in Wade, but essential to a determination of judging the reliability of the witness’s perceptions is the nature of the alleged offense and the physical and psychological state of the victim. ‘In critical situations perception will become distorted and any strong emotion (as opposed to mildly emotional experiences) will affect not only what and how much we perceive, but also will affect our memory of what occurred.’ 389 Mich. 211, 205 N.W.2d 489.
      Factors such as ‘fatigue, nervous exhaustion, alcohol and drugs’, 389 Mich. 213, 205 N.W.2d 490, and age and intelligence of the witness are obviously relevant. Levine and Tapp, The Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U.Pa. L.Rev. 1079, 1102-1103 (1973).
      8. Any idiosyncratic or special features of defendant.”


author: ALMON, Justice.

text:
    Ex parte Lawrence GRIFFIN.
    77-405.
    Supreme Court of Alabama.
    March 31, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Sammie Lee JONES and Jimmie Lee Jones v. STATE.
    6 Div. 433.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.

      Robert C. Sutton, Birmingham, for appellants.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellants, who are identical twins, were separately indicted for murder in the first degree involving the death of Dennis By-num in Blount County, Alabama. They were represented by court-appointed counsel at arraignment and pleaded not guilty. Prior to trial it was made known to the Court that the family of appellants had employed Honorable Robert C. Sutton of the Birmingham Bar to represent them. By agreement of the parties the cases were consolidated for trial. The jury returned a verdict finding appellants guilty of murder in the first degree and fixed their sentences at life imprisonment in the penitentiary. After the sentences were imposed, they each gave notice of appeal and requested a free transcript. A free transcript was furnished appellants and trial counsel represents them on appeal.

The victim of this crime owned and operated a combination grocery store and gas station north of Oneonta, Alabama on Highway 75. He was sixty-six years old.

Mr. Bynum and his wife had breakfast together on the morning of March 24, 1976. He left to open his store and 6:15 that morning. This store was just across the road from the Bynum’s house. Mrs. Bynum testified that when he left the house, Mr. Bynum carried a greenish-gray tackle box in which he had “in the neighborhood of five or six hundred dollars.” She further stated the box also had some silver they used to make change. This was the last time Mrs. Bynum saw her husband alive. On the afternoon of March 25, 1976, Mrs. Bynum saw her husband’s body at King Funeral Home.

Doris Long testified that on March 24, 1976 she was employed by the Oneonta Police Department as the Radio Dispatcher. On that day, Mrs. Long stated, she received a phone call from Dennis Bynum at 9:07 a. m. Mr. Bynum told Mrs. Long that he operated a service station on Highway 75 East and asked that an ambulance be sent there. Mrs. Long asked Mr. Bynum “what the trouble was” there and Bynum replied that he had been robbed and stabbed by two black men, who were driving a “light two-tone late model Chevrolet car which had a Jefferson County tag; and the numbers . . was 4261.” When asked by Long for a description of the two men, Bynum said, “Lady, Please send that ambulance, I’m hurt real bad.”

She further testified that Chief Earl For-tenberry of the Oneonta Police Department was present when she received the call from Mr. Bynum and he called the ambulance.

Earl Fortenberry testified that he was Chief of the Oneonta Police Department on March 24, 1976. He stated that he was present at the station when the call from Mr. Bynum was received. Fortenberry testified further that he arrived at Bynum’s station at 9:16 a. m. At this time Bynum was still alive, slumped in a chair near the cash register. Mr. Bynum told Fortenberry that he had been robbed and stabbed by “two colored men,” and they were traveling in a light tan Chevrolet with a Jefferson County tag. Fortenberry testified that By-num then appeared to go into deep shock.

According to Fortenberry there was a great amount of blood about the interior of the store. The drawer of the cash register was open and empty with the exception of some loose change. The door of the store was open. Chief Fortenberry said that a tackle box was not found in the store. He further testified that the station was locked by Gerald Maynor, Bynum’s son-in-law, at the direction of the officers.

Gerald Maynor testified that he was Dennis Bynum’s son-in-law. At about a quarter till nine a. m. on March 24,1976, Maynor stopped in at Bynum’s Store to visit. Maynor testified that he remained at the store, talking with Bynum until nine o’clock that morning.

Maynor stated that Bynum kept his charge tickets and money in a green tackle box. Maynor saw this box on March 24, 1976, while visiting his father-in-law. By-num took the box from underneath the counter to pay a milkman, and then put it back under the counter. Maynor testified that he did not notice a light tan Chevrolet as he was leaving the station that morning to go on his mail route.

About 9:20, Maynor received word that something had happened to Bynum. He stated that he then returned to the store. There he discovered that Bynum had already been taken to the hospital. Maynor testified that he locked the store in the presence of law enforcement officers. At noon, Maynor testified, he unlocked the store so that news media personnel could film the interior of the store. These cameramen did not go inside the store.

J. C. Carr testified that he was Sheriff of Blount County in March of 1976. Carr stated that, upon receiving a report of an incident at Bynum’s Store, he went to the emergency room of Blount Memorial Hospital. There he learned that Bynum was dead. Carr observed six stab wounds on Bynum’s body — three in front and three in back. Carr testified that he was present at Bynum’s store when Maynor locked it and that he returned to the store that night about ten o’clock. He was accompanied by Johnny Nesmith and Bob Hancock, both Sergeants with the Alabama Bureau of Investigation, and Buddy Howell, a Fingerprint Technician with the Jefferson County Sheriff’s Office. These three men “processed” the crime scene. Photographs were taken and fingerprints lifted. The photographs of the entire scene were introduced into evidence without objections.

Buddy Howell testified that he was employed by the Sheriff’s Office of Jefferson County as an Evidence Technician. Howell had been employed in that capacity for two years at the time of the trial. For six years previous to his present employment, Howell was employed by the City of Birmingham Police Department, as an Evidence Technician for three years. Howell also stated that he had attended the FBI’s latent fingerprint and photography school at Quanti-co, Virginia and that he worked for the FBI a year as a fingerprint technician.

On March 24, 1976, Howell testified, he investigated the scene of Bynum’s murder. There, Howell fingerprinted the store from “one end to the other,” lifting numerous prints. Howell explained the process of taking prints and stated that it took at least seven “points” to identify a print as belonging to a particular person.

Howell testified that a print lifted at Bynum’s Store was that of appellant Sammie Lee Jones. This print was lifted from the outside door of the store. When Howell first compared the latent print with the sample taken from Sammie Lee Jones, he found six points of identification. Subsequently Howell discovered three more points.

James Alfred Dunn testified that he resided in Cleveland in Blount County. On March 24, 1976, Dunn was employed by the Oneonta Police Department. He testified that he worked on the Bynum investigation and that on June 16,1976 he had occasion to be in Birmingham, Alabama.

Dunn had previously viewed two composite drawings of suspects in the Bynum case. These drawings had been made by a lab technician for the Police Department and by Phillip Duke. While in the Jefferson County Courthouse, Dunn saw someone resembling the person portrayed in the composites. He discovered that the person he saw at the courthouse was Jimmie Lee Jones. When asked to point out the person he had seen in Birmingham, Dunn stated it was hard to say and then noted that the two defendants were twins.

Phillip Roger Duke testified that on March 24, 1976 he resided in Oneonta, Alabama. Duke stated that he passed Bynum s Store every day. On his way to work that morning, Duke stated, he passed a tan automobile with a white or off-white top. This car was “just north” of Mr. Bynum’s store. Duke stated it was approximately 7:20 that morning when he observed the car. As the automobile passed him from the opposite direction, Duke looked at the driver of the car. He identified the driver as being one of the appellants. Subsequent to Bynum’s death, Duke drew a sketch of the man he had seen. He also examined between fifty and a hundred photographs, from which he picked two photographs that looked to him most like the driver of the car. These photographs were of the appellants.

Cecil Mangrum testified that he lived in Sneads Crossing in Blount County. On March 24, 1976, about nine o’clock in the morning, Mangrum and his wife were on their way to Blount Memorial Hospital to visit a friend. Two or three miles north of Bynum’s Store, Mangrum came up behind a car going at a slow rate of speed. Mang-rum passed this car shortly before Bynum’s Store. His wife noted that the car was from Jefferson County. As Mangrum passed the car, he got a look at the driver whom he identified as being one of the appellants.

Mangrum further testified that he later attended a lineup at the North Birmingham Jail. There, Mangrum identified Jimmie Lee Jones as the driver of the car. However, Mangrum was not positive in his identification, but testified that in his best judgment the driver was Jimmie Lee Jones.

Bill Young testified that he resided on Oneonta in Blount County, where he owned and operated a cycle shop. This shop was between a quarter mile and a half mile from Bynum’s Store. Young stated that a few minutes before nine o’clock on March 24, 1976, a beige 1971 Chevrolet two-door pulled up in front of the cycle shop. Two black males were in the car. These men parked the car, sat there three to four minutes and then pulled back on the highway, headed north in the direction of By-num’s Store. Young could not identify the occupants of the car. He did notice that the car had a Jefferson County tag.

Marvin Eugene Parrish testified that he lived in Oneonta, Alabama. On March 24, 1976 around nine o’clock Parrish was driving past Bynum’s Store, when a car turned across the lane in front of him and pulled into the service station. Parrish noticed that the occupants of the car were two black men with “Afros.” The car was a 68-70 gold Chevrolet. Parrish could not identify the occupants of the car.

Selman Morgan Knight testified he was an officer of the Birmingham Police Department. Knight testified that he knew both appellants and that he participated in their arrest on August 23, 1976. Knight, Sergeant Swatch of the Sheriff’s Office, and Sergeant Jones of the Birmingham Police Department located Jimmie Lee Jones in the 600 block of 32nd Street South in Birmingham. When Knight told him they were looking for Sammie and why they were looking for him, Jimmie Lee responded that he had never been in Blount County-

Knight recounted that Sammie Lee was arrested the following day.

From the record:

“Q. And tell the jury what, if anything, you said and what, if anything, he said— Sammie Lee Jones — at the time he was arrested?
“A. Yes, sir. We got out of the car and took hold of Sammie Jones by both arms and told him he was under arrest for robbery and murder.
“He asked, ‘Where?’ and I said, ‘Blount County.’ He said something — I don’t remember the exact words- — but, in substance, about his brother already had been picked up; and that neither of them had ever been in Blount County.
“Q. That neither one of them had ever been in Blount County?
“A. Yes, sir.
“MR. BAINS: That’s all.”

Thomas Swatch testified in substantially the same manner as Knight. He testified additionally, however, that appellants on different occasions told him “four or five different places they were supposed to have been.” None of these alibis checked out to be accurate.

Thomas Eugene Brown testified that he was incarcerated in the Blount County Jail and present when Sammie Lee Jones was “brought in.” Brown stated that he became aware of the charge against Sammie the day they were in the “bullpen.” This, Brown explained, is “a place where they carry you to take a shower and stuff like that.”

From the record:

“Q. Tell us in your own words, Thomas, what that conversation was.
“A. Well, I was telling Sammie about my case. I didn’t tell him the full details about it; and then he started telling me about this old man he had killed up here at the service station. And I said—
“Q. Is that the way he described it?
“A. Yes, sir.
“Q. The old man up at the service station?
“A. Yes, sir.
“Q. All right. Go ahead.
“A. He says, ‘My brother went in there to pay for some gas, and I walked in behind him.’ And his brother . he said he was holding him up and getting the money. And he said he just went wild when he seen the money, and pulled a knife and started stabbing the man.
“Q. Now, who did he have reference to as going wild?
“A. Sammie said he went wild. Sammie went wild.
“Q. Sammie went wild?
“A. Right.”

Further:

“Q. Now, during that conversation in that bullpen with Sammie Jones, did he mention a box to you?
“A. Yes, sir.
“Q. What kind of a box did he mention?
“A. A little green metal box.
“Q. Did he describe it to you?
“A. He showed me the length of it and all.
“Q. Well, show us that he did.
“A. He said it was about so high, and so wide. (Indicating with his hands.)
“Q. And what was the conversation in regard to that little green metal box?
“A. Sammie said he got it behind the desk ... at the desk at the station . the counter at the station . service station.
“Q. Got it behind the counter?
“A. Yes, sir.
“Q. All right. Go ahead.
“A. And he said he left the service station . . . him and his brother— Sammie and Jimmie — left the service station and went to Birmingham.
“Q. They left there on this particular day we’re talking about and went to Birmingham?
“A. Yes, sir.
“Q. Now, was there any mention of any money or anything?
“A. Yes, sir.
“Q. What was the discussion about money?
“A. He said there was . . . Sammie said there was approximately around six hundred dollars in the little box.
“Q. Talking about the little green box?
“A. Yes, sir.
“Q. Did they say whether they took the green box with them or not?
“A. Yes, sir.”

James M. Buttram testified that he conducted a post-morten examination of Dennis Bynum’s body, in his capacity as Director of the Laboratory for the Alabama Department of Toxicology. Defense counsel stipulated to Buttram’s qualifications. During the course of examination, Buttram observed “numerous penetrating wounds in the skin,” which he testified represented stab wounds. The locations of these wounds were left front chest, right front chest, left back, right back, left shoulder, left upper arm. Two of these wounds pierced the heart and liver, resulting in extensive internal bleeding. Buttram determined that Bynum’s cause of death was hemorrhage, in particular cardiac tampi-nade. This condition occurs where blood rapidly fills the pericardial sac surrounding the heart, which results in exertion of pressure on the heart. This pressure prevents the heart from filling with blood. In But-tram’s opinion either the wound which penetrated the heart or the wound which penetrated the liver would have been fatal. Buttram concluded that these stab wounds were made by a single edged blade in excess, of four inches in length and that very probably more than one knife was used in stabbing the deceased.

Sheriff J. C. Carr was then recalled by the State for purposes of identifying clothing worn by the deceased at the time of his death. This concluded the State’s case in chief. Defense counsel moved to exclude the evidence alleging that the State had not “established the burden of linking [appellants] with Dennis Bynum.” This motion was denied. At this time the appellants presented their defense.

Roger Beam testified that he was a Deputy and Investigator for the Blount County Sheriff’s Department. On August 17, 1976, Beam was assigned to the Bynum case. At that time he was informed that appellants were suspects in the case. In the course of his investigation, Beam stated, he talked with Mike Alexander, the manager of Fifty Minute Cleaners in Birmingham, Alabama. Alexander told Beam that Sammie Lee Jones had worked at the cleaners. However, he was not positive Sammie Lee had worked on March 24, 1976. Alexander stated that Sammie Lee might have been working for J. J. Vinson, Alexander’s father-in-law.

Beam later talked with J. J. Vinson. Vinson told Beam that Sammie Lee was working for him on March 24, 1976, he thought.

Beam further testified that he had the numbers of the car tag which Bynum had given Doris Long and Sheriff Carr and ran a check through a computer. He found a tag numbered 1-C 47162 registered to Julian Jones who was the alleged father of the appellants. No car with this license plate was ever found. He did not find a car belonging to either of the appellants. Beam further testified that Sammie Lee’s driver’s license was suspended on May 6, 1976.

J. J. Vinson testified that he owned Comet T.V. in Birmingham. He stated that Sammie Lee worked for him on March 24, 1976. Vinson’s wife also testified that Sammie Lee was working for her husband on March 24, 1976.

Mike Alexander testified that he managed Fifty Minute Cleaners in Birmingham, Alabama. He stated that he saw Sammie Lee Jones on March 24, 1976 at Comet T.V., at about nine o’clock that morning.

Gordon Burns testified that he owned Alabama Wholesale Company and that he subleased office space from J. J. Vinson. Burns stated that he saw Sammie Lee Jones working for J. J. Vinson on March 24, 1976, between 9:00 a. m. and twelve noon.

In rebuttal, Cletus Atkins testified that he worked at Comet T.V. for J. J. Vinson. He stated that Sammie Lee Jones did not work for Vinson before March 27, 1976.

Aubrey Classcock, an Investigator for the Blount County Sheriff’s Department, testified that Mike Alexander had told him he was not positive if Sammie Lee had worked for Vinson on March 24, 1976. Further, Glasscock stated that he had interviewed appellant Jimmie Lee Jones who told him he was working at Dixie Sprinkler Company on March 24, 1976. Glasscock contacted that company and discovered that, though Jimmie Lee worked at that business, he did not work March 24, 25, or 26, 1976.

Nina Mitchell, Office Manager for Dixie Sprinkler Company, testified that Jimmie Lee Jones was an employee of the company and that he did not work on March 24, 25, or 26, 1976. This concluded the evidence in this case.

In addition to moving to exclude the State’s evidence at the close of the case in chief, appellants also raised the sufficiency of the evidence in a motion for new trial. Arguments were made by counsel. However, no testimony was taken. This motion, including several other matters other than sufficiency of the evidence, was denied.

The evidence in this case is in sharp conflict. The State’s evidence places appellants at the scene of the crime. The appellants set forth an alibi defense.

It is well established that conflicting evidence always presents a question for the jury as to the guilt of the defendant unless the evidence palpably fails to make out a prima facie case. Lee v. State, Ala.Cr.App., 346 So.2d 31. A verdict rendered on such evidence is conclusive on appeal. Young v. State, Ala.Cr.App., 346 So.2d 509. Nor does alibi evidence present an exception to this general rule. Smith v. State, Ala.Cr.App., 346 So.2d 500; Freeman v. State, Ala.Cr. App., 350 So.2d 768.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, the Court of Criminal Appeals has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Woods v. State, Ala.Cr.App., 344 So.2d 1225; Williams v. State, Ala.Cr.App., 348 So.2d 1142. Here the evidence was more than sufficient for the jury to determine that appellants brutally murdered Dennis Bynum.

Appellants next contend that they were denied due process as a result of the State suppressing evidence favorable to them. Appellants rely on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

On October 19, 1976 appellants filed a Motion for Inspection and Discovery, a veritable scattergun, running five legal pages in length. One of the items requested by appellants was an “original sketch drawn by a witness named Duke as a representation of an individual he saw in a car in Blount County on the 24th day of March, 1976.” Duke did in fact draw such a sketch, and it was produced at time of trial. However, appellants allege that the District Attorney of Blount County and a Blount County Sheriff’s Deputy denied that such a sketch existed. This allegation does not have the support of any testimony in the record.

Trial of appellants commenced on October 25, 1976. During opening statement, counsel for appellants stated that it would be shown during the trial that appellants did not own a car and did not possess drivers’ licenses. Defense witness Roger Beam testified that Sammie Lee Jones’s driver’s license had been revoked. Counsel for appellants then moved that the State produce any record of conviction resulting in revocation of Sammie Lee’s license. The State complied with appellants’ request.

From the record:

“MR. BURTTRAM: Let the record show that, in open court, I’m handing counsel for the defense, for his inspection, a memo taken from N.C.I.C. showing that the subject in question — Sammie Jones’s —driver’s license was suspended January the 18th, 1975, for failing to appear in Court. I just handed him the memo.
“THE COURT: All right.
“MR. SUTTON: May the record just simply conclude on this point by saying that my motion was to produce a certified copy of the docket showing the conviction resulting in the suspension or revocation.
“THE COURT: Well, all right. It looks likq they have done the best they can in the limited time.
MR. BURTTRAM: Also, Your Honor, at this time I’d like for the record to show that counsel for the defense entered this himself into evidence — the question of his driver’s license. And what I just furnished him is a reply to his request.
“THE COURT: All right. It looks like they’ve complied the best they can, Mr. Sutton, on such short notice.
“MR. SUTTON: Thank you.”

Appellant now urges that, near the close of the trial, counsel was informed that Sammie Lee Jones never had an Alabama driver’s license and that an N.C.I.C. printout showed that his privilege to have a license had been suspended. Appellants raised this point on motion for new trial. However, no testimony was presented, only the bare assertions made by counsel.

Appellants complain that the testimony of Thomas Eugene Brown was a complete surprise and that the State did not comply with the October 19, 1976 motion to produce by failing to produce the statement of Thomas Eugene Brown. The record shows that Thomas Eugene Brown did not contact any law enforcement officer until two days before the trial commenced. He did not discuss his testimony with the District Attorney prior to the time he took the witness stand.

Brady, supra, is inapplicable to this case. All of the information sought by appellants was made available at trial. The testimony of Thomas Eugene Brown was not exculpatory or favorable to either appellant. It cannot be said that appellants have been denied due process where there has been no showing that any evidence was suppressed by the State. Guy v. State, 48 Ala.App. 293, 264 So.2d 214; Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678.

Appellants finally urge that their case is due to be reversed as a result of improper questions asked of two defense witnesses on cross-examination. The District Attorney asked J. J. Vinson if Sammie Lee Jones stole television sets for him. Counsel objected and the question, unanswered, was excluded. The District Attorney also asked Vinson’s wife if her husband fenced stolen merchandise. This question was also stricken upon objection by counsel. This question was never answered.

Nothing is presented for review as there was no adverse ruling. Stinson v. State, 56 Ala.App. 312, 321 So.2d 277. Secondly, improper questions which are not answered are deemed to be harmless. Woods v. State, Ala.Cr.App., 344 So.2d 1225.

A thorough search of the record reflects no error injuriously affecting the substantial rights of appellants. The judgment of conviction as to each appellant is affirmed.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Sammie Lee JONES and Jimmie Lee Jones.
    77-408.
    Supreme Court of Alabama.
    March 31, 1978.
   FAULKNER, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge. BOOKOUT, Judge,

text:
    Carson KELSOE v. STATE.
    3 Div. 619.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.

      Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the jury fixed his punishment at fifteen years in the penitentiary. At arraignment, in the presence of counsel, he entered a plea of not guilty and not guilty by reason of insanity. After sentence was imposed he gave notice of appeal. He was found to be indigent and a free transcript was furnished him. New counsel was appointed to represent him on appeal.

The evidence presented by the State tended to show that on June 6, 1973, the Pak-A-Sak store located on Narrow Lane Road, just south of the Southern By-Pass, was robbed and about eighty-three dollars was taken. The robbery occurred between 1:00 p. m. and 1:20 p. m. on that date. Three young white men were subsequently arrested and charged with this robbery. They were the appellant, Michael Hall and Paul Schoffield. Schoffield pleaded guilty and testified for the State. Michael Hall was convicted for this robbery but he testified for appellant claiming that appellant did not have anything to do with the robbery.

According to Schoffield’s testimony he and Hall met with appellant at his trailer home on Monday before the robbery on Wednesday and appellant made the suggestion that they rob this store. The plan was for Hall to actually rob the store while appellant and Schoffield waited in the getaway car less than a block away.

According to the testimony of Mrs. Maxine Henderson, the manager of the store, appellant came into the store a few minutes before the robbery and asked her for a nickel in exchange for five pennies so that he could make a telephone call. She took the pennies and gave him a nickel and appellant stood around in the store for ten to fifteen minutes before leaving. He did not use the telephone in the store while he was there.

Lavirt Henderson, Jr., the husband of Maxine Henderson, testified that he was stationed at Maxwell Air Force Base in Montgomery but worked part time for the Pak-A-Sak Company. He arrived at the store that was robbed around noon on that date and was working the cash register. He stated that a white man entered the store and came directly to him at the cash register about 1:20 p. m. on June 6, 1973, and pulled a pistol, cocked it, pointed it at him, handed him a paper sack, and told him to empty the register; and that he (Henderson) obeyed the order. Henderson stated the man attempted to disguise his features by wearing a blond wig with a green headband around the wig. He further described the man as wearing sunglasses, a red and white striped shirt with an orange tank shirt over it and a gray coat covering the two shirts. After the robbery the man left the store and walked south on Narrow Lane Road.

Mr. Henderson’s young son was in the store at the time of the robbery, and, when the bandit left, Mr. Henderson and his son got in a van truck and followed him. They saw the bandit get in a green Chevrolet Nova and leave at a high rate of speed. There were two men in the front seat of this car and the robber got in the back seat. As the Nova was fleeing through a residential section and Mr. Henderson was in close pursuit the man who had just robbed the store stuck a pistol out of the car and pointed it directly at Mr. Henderson. Mr. Henderson slowed his truck but kept following the fleeing car until they got back on Narrow Lane Road. At the end of Narrow Lane Road, Mr. Henderson stopped his van and called the Police Department, and when the officers arrived they took over the chase. Mr. Henderson testified that appellant was not the man who came in the store, pulled the pistol and took the money.

Paul Schoffield testified that he was a friend of the appellant and that appellant planned the robbery of the Pak-A-Sak store. He further stated that he was sixteen years of age on the day of the robbery and that Michael Hall was involved in the same robbery. He said the plan was for Hall to rob the store while he and appellant waited in the car. He said that appellant went into the store about thirty minutes before the robbery to get some change. He stated that Hall had a .22 revolver which he had gotten from appellant and that Hall put the wig, shirt, sunglasses and pants on in the car just before the robbery.

After the robbery and while being chased by the van Schoffield said Hall took off the wig, shirt, sunglasses • and pants and put them in a bag which he gave appellant; that appellant took all of these items with him when he left the car at his sister’s home. Shortly after appellant left the car Schoffield and Hall continued to drive until the car ran into a ditch because of muddy conditions on the roadway, and they left the car. They started walking and were later picked up by the officers.

Oscar Wright testified that on June 3, 1973, he was working at the Tenneco Station at the intersection of Pairview Avenue and Gaston Street; that between 12:00 Noon and 1:00 p. m. on that date he saw appellant and three other white men when they drove to the service station and bought a dollar’s worth of gas and a six-pack of beer. They were in a green Chevrolet Nova. He stated that he knew appellant from waiting on him at the service station on previous occasions. He further stated that one of the men in the car was wearing a wig. He said that appellant was driving the car.

Sergeant L. D. Cox of the Montgomery Police Department testified that on June 6, 1973, he was on routine patrol when he received a radio dispatch about a robbery at the Pak-A-Sak store on Narrow Lane Road. He proceeded down Narrow Lane Road and found a green Nova automobile with a 5-tag on it and it had run into a mud hole and into a ditch. The car had been abandoned. He further stated that later that same day he participated in a lineup and Mrs. Maxine Henderson viewed the lineup and identified the appellant as the man who came in the store and asked her for a nickel in exchange for five pennies just shortly before the store was robbed. He further stated that Mrs. Henderson identified Michael Hall in a lineup as the man who robbed the store with a pistol.

Mrs. Maxine Henderson testified that she was the manager of the Pak-A-Sak store on Narrow Lane Road and that her hours of employment were from 7:00 a. m. until 3:00 p. m. She said that her husband and young son, David, were helping her in the store at the time of the robbery. Her husband was working the cash register on the day that appellant came into the store and asked her for a nickel change. She gave him a nickel for five pennies and the time was about 1:10 p. m. on June 6, 1973. She testified that after she made the change appellant stood around in the store for five to ten minutes. She stated that about 20 minutes later she heard a noise and when she looked up she saw a man with a pistol at the cash register and the man turned toward her and said, “Freeze.” The man got the money from the cash register and left the store. Her husband and son gave chase but did not catch the bandit.

Mrs. Henderson further testified that between 7:00 p. m. and 7:30 p. m. that same date, she attended a lineup where she viewed six or seven men and without hesitation or suggestions from anyone she identified appellant as the man to whom she gave a nickel for five pennies about 20 minutes before the store was robbed. She also made a positive in-court identification of appellant. She also identified Michael Hall in a lineup as the man who actually robbed the store.

Over appellant’s objections the trial court allowed the testimony of Lawrence Eggers, given under oath and cross-examination, to be read to the jury. The proper predicate was laid before this testimony was allowed into evidence.

It was established by the testimony of Mark Rouleau, an investigator for the District Attorney’s Office, that he had made a diligent search in his efforts to locate Lawrence Eggers. Rouleau stated, “All the information I had to go from was the 1973 police reports, and a transcript of the previous trial; and from that he gave, I had two addresses to go on, either 3030 Cleveland Avenue, or 917 Forest Avenue. The normal procedure for us to do was to check the power company first to see if they have an account in the individual’s name. There was no account for Mr. Lawrence Eggers, either at 3030 Cleveland Avenue or 917 Forest Avenue; in fact, 917 Forest Avenue has been vacant since 1974.”

He further stated that he checked with the water company and the telephone company and they did not have any listing for Eggers. He checked the City Directory and the telephone book all to no avail.

The Court ruled that the State had made a diligent effort to locate the witness and bring him to Court but that he could not be located and he would permit Eggers’ previous testimony to be read to the jury.

From the record:

“The Court: Now, Ladies and Gentlemen of the jury: testimony is being read to you by the Assistant DA, the testimony given by a witness on a former trial; and the Court has ruled that that witness can’t be located, can’t be found, and is not available to be brought in here as a witness; and under the circumstances I have ruled that he is allowed to offer the testimony of this in a former trial.
“Now you can read it, and get it in the record.”
“TRANSCRIPT
“LAWRENCE EGGERS
“The witness called by the State, and after having first been duly sworn to speak the truth, the whole truth, and nothing but the truth, took the stand and testified as follows:
“DIRECT EXAMINATION
“BY MR. THOMAS:
“Q. State your name, Mr. Eggers.
“A. Lawrence Eggers.
“Q. Where do you live?
“A. 917 Forest.
“Q. Do you know this man sitting over here?
“A. Yes, sir.
“Q. What is his name?
“A. Carson Kelsoe.
“Q. Do you know Hall and Schoffield?
“A. Yes, sir.
“Q. Do you know both of them?
“A. Yes.
“Q. All right. Did you have occasion to have a conversation with this man right here some time before June 6,1973, at your home?
“A. Yes, sir.
“Q. Did he in fact come to your house on a rainy day?
“A. To my house. I don’t know whether it was raining or not.
“Q. He did come to where you were staying?
“A. Yes, sir.
“Q. What did he ask you for, if anything?
“A. Well, he visited my house on several occasions. What particular one are you meaning?
“Q. I will show you what has been admitted into evidence as State’s Exhibit No. 4 and ask you if you recognize that?
“A. I do.
“Q. Whose is it?
“A. It is mine.
“Q. It is yours?
“A. It is.
“Q. I am speaking of the occasion of the last time that you saw that shirt. Was he there the last time you saw that shirt?
“A. Yes, but it wasn’t at my house.
“Q. Wherever it was, were you talking to him?
“A. Yes, sir.
“Q. All right. Where was the shirt the last time you saw it?
“A. In my car.
“Q. In your car, all right. On that occasion did this Defendant ask you for anything?
“A. Yes, sir.
“Q. What did he ask you for?
“A. Asked me for my pistol.
“Q. For your pistol?
“A. Yes.
“Q. What kind of pistol do you have?
“A. A six-shot twenty-two caliber.
“Q. Is that a long barrel pistol?
“A. Yes, sir.
“Q. All right. What, if anything else, did he take from your car?
“A. This shirt.
“Q. This shirt. Do you recognize that shirt?
“A. It is one I wore playing soft ball in Greenville.
“Q. He asked you if he could take that shirt?
“A. No, sir.
“Q. What did he ask you?
“A. He asked me for my pistol.
“Q. Did he take the shirt?
“A. Yes, sir.
“Q. He took it with him that day?
“A. Yes, sir.
“Q. And that is the last time you have seen it?
“A. Yes, sir.
“MR. THOMAS: That is all. Thank you.
“CROSS EXAMINATION
“BY MR. ROBERTS:
“Q. Mr. Eggers, you say the Defendant got this red shirt from you?
“A. Yes, sir.
“Q. You knew Mike Hall and Paul Schoffield, didn’t you?
“A. Yes, sir.
“Q. Mike Hall has testified under oath that he got the clothes, he got those items. He testified to this Court and to this Jury under oath that he got that red shirt.
“A. The best I can remember, he got it out of the front seat of my car.
“Q. We are not asking you for your best memory, we are asking you to testify under oath who got it.
“THE COURT: Were those two together?
“A. Which two?
“Q. Who was there when they got the shirt and gun?
“A. Paul, Mike and Carson.
“Q. Michael Hall, Paul Schoffield, and Carson Kelsoe?
“A. Say that again, please.
“Q. You are testifying unequivocally that Hall got that red shirt from you?
“A. No, I am not.
“Q. What are you saying?
“A. I said they were all there.
“MR. ROBERTS: I would like for the Court Reporter to read back his testimony as to how that red shirt left his automobile.
“THE COURT: My recollection is he said the Defendant got it.
“MR. THOMAS: That is my recollection, too.
“Q. (By Mr. Roberts) So now you don’t know who got the red shirt?
“A. Sir, I told you how the shirt got there.
“Q. Well, how did the shirt get away from you?
“A. Carson got it from the car.
“Q. Carson got it from the car. Are you positive of that?
“A. The best I can remember, yes, sir.
“Q. But you are not positive?
“A. It has been a long time ago.
“Q. And you are positive this pistol he borrowed from you was a six-shot?
“A. Absolutely.
“Q. I will ask you this, Mr. Eggers. Do you know where that pistol is now?
“A. No, I don’t.
“Q. I will ask you this, Mr. Eggers. Did anybody during the recess, during the lunch recess, tell you where your pistol was?
“A. No, sir.
“Q. I will ask you if anybody told you in the witness room there that your pistol was in good condition?
“MR. THOMAS: Your Honor, I object to this line of questioning. It all calls for hearsay, unless he is trying to get at what another Defendant told him. Well, go ahead and get at it.
“Q. Did Mike Hall tell you not to worry about your pistol, that it was in good condition?
“A. Yes, sir.
“Q. Did he tell you that it was wrapped up?
“A. He said it could be.
“Q. Did he tell you that it was in good condition?
“A. He said it should be.
“Q. Should be in good condition?
“A. The pistol had a good bluing and good finish on it and it should be in good condition.
“Q. And that it was wrapped up?
“A. It could be wrapped up.
“Q. He didn’t tell you that it was out in the pasture out behind the Broadway house on Narrow Lane Road?
“A. No, sir.
“Q. Out behind that house in a pasture?
“A. No.
“Q. Did Mike Hall tell you in the witness room during one of the recesses or during the lunch break that the gun was out in a pasture behind the Leonard’s house?
“A. It is not in a pasture anywhere.
“Q. He didn’t say that it was in a pasture?
“A. No.
“Q. How tall are you, Mr. Eggers?
“A. About six one.
“Q. About six one. And I notice you wear a band, and your hair is blond.
“A. Yes.
“Q. This was your pistol used in the robbery?
“A. I don’t know. I loaned my pistol, and that’s all I know. I don’t know whether it was used in any robbery or not.”

Detective B. J. Cleveland of the Montgomery Police Department testified that he went to the Pak-A-Sak store on Narrow Lane Road shortly after it was robbed; that he was present when Mrs. Henderson picked appellant and Mike Hall out of a lineup. He also testified that he was present at the home of appellant’s sister when the headband, orange T-shirt, a wig and a pair of sunglasses were discovered in a field behind her house.

Captain Grady Arnette testified that he arrested appellant the same day of the robbery and his appearance was one of disarray; that his pants were wet from his waist all the way down and had pull marks on them like he had been walking in briars. He further testified that appellant had streaks on his arms and that his boots were muddy and wet. He said it had rained real hard that day and he found fresh shoe or boot prints in the field behind appellant’s sister’s house.

Arnette identified State’s Exhibit 10 as the boots appellant was wearing at the time he was arrested and that they were the same boots he was wearing in the lineup. He stated he obtained a search warrant for appellant’s trailer home and he saw appellant walking toward the trailer. He arrested him around 4:15 p. m. the same date of the robbery and searched his person and found $55.00 in his pocket. A photograph was taken of the lineup of five white males. Appellant was number 3 in the lineup and he was still in this position at the time Mrs. Henderson identified him as the man who entered the store shortly before the robbery.

There was no marked disparity between appellant and the other four white males in the lineup as to ages, weight and height. They all were wearing brown colored shoes and blue or dark pants. A sketch was drawn of the lineup and the sketch and photographs of the lineup were introduced into evidence.

Also introduced into evidence were the wig, green headband ribbon, pair of sunglasses, one red and white shirt, one orange shirt, one gray coat, and photographs of the shoe or boot print leading to the place in the field of appellant’s sister where the officers found the wearing apparel worn by the bandit at the time of the robbery under some straw in this field.

Appellant filed a written motion to exclude the State’s evidence on the ground it failed to make out a prima facie case. This motion was overruled.

As above stated Mike Hall testified in appellant’s behalf to the effect that appellant was not involved in this robbery. On cross-examination it was shown that he gave a statement to the officers in which he said that appellant planned the robbery. He was thoroughly impeached by his prior inconsistent statements. He admitted that he told the officers one lie after another lie.

Under the statute requiring corroboration of the testimony of accomplices to authorize conviction of a felony, the corroborative evidence need not be strong, nor sufficient of itself to support the conviction, the criterion being that it legitimately tends to connect the accused with the offense. Bibb v. State, Ala.Cr.App., 339 So.2d 1108; Goodman v. State, 52 Ala.App. 265, 291 So.2d 358; Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62.

Nor need such corroborative evidence directly confirm any particular fact stated by the accomplice. Skumro v. State, 234 Ala. 4, 170 So. 776; Cameron v. State, 49 Ala.App. 482, 273 So.2d 242.

“Any circumstantial evidence is sufficient to corroborate if it proves that [the] accused was connected with the criminal act, or tends to connect him with the commission thereof, or if such connection may reasonably or clearly be inferred from the corroborative evidence; and-where the accomplice is strongly corroborated by facts and circumstances connecting accused with the crime, a conviction will be sustained,” 23 C.J.S. Criminal Law § 812(3), p. 109.

The trial court charged the jury they could not convict appellant on the uncorroborated testimony of Schoffield and Hall.

Schoffield told the officers where appellant hid the items worn by Hall at the time of the robbery. The officers found these items precisely in the field of the sister of appellant where Schoffield said appellant took them when they let him out of the car while they were fleeing after the robbery. This was clearly corroborative evidence of the testimony of Schoffield who was an admitted accomplice.

Moreover, there is strong evidence from an independent source that on the very day of the robbery appellant borrowed a pistol from a friend and also took the red and white shirt from him at the same time. This red and white shirt was worn by Hall during the robbery and was found by the officers in the field that Schoffield said appellant carried the shirt to, along with the other items after the robbery. This independent evidence certainly corroborated some of the testimony of Schoffield.

This is a strong case of circumstantial evidence. Circumstantial evidence is entitled to the same weight as direct evidence provided it points toward the guilt of the accused. Woods v. State, Ala.Cr.App., 344 So.2d 1225.

The circumstances surrounding appellant are that he borrowed a pistol and took the red and white shirt worn by his confederate during the robbery, from a friend on the very day of the crime; he was positively identified as being in the store not more than twenty minutes before the robbery occurred; he was picked out of a lineup around 7:00 to 7:30 on the night following the robbery about 1:10 p. m. that day; he was the number 3 man in the lineup and his clothes were wet from the waist down; his boots were wet and muddy and the area where he hid the items worn by Hall during the robbery was swampy.

Appellant objected to the introduction of the testimony of Eggers given at a former trial. This testimony was clearly admissible under Pope v. State, 183 Ala. 61, 63 So. 71; Miles v. State, Ala.Cr.App., 343 So.2d 801. See McElroy’s Alabama Evidence, Third Edition by Gamble, Section 245.07 et seq.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except BOOK-OUT, J., who concurs in the result with opinion.

BOOKOUT, Judge,

concurring specially:

I disagree with one point in the majority opinion, but concur in the result.

Schoffield, an accomplice, told the officers that appellant hid the items worn by Hall in a certain field. Officers found the clothing there, which the majority considers to be corroborative of Schoffield’s testimony. With that point, I disagree.

Evidence to corroborate the testimony of an accomplice must not merely recite the details of the crime, but must connect the accused with the offense. Senn v. State, Ala., 344 So.2d 192 (1977). Finding a still where an accomplice said an accused was making whiskey was insufficient corroboration to connect the accused to the crime. Alexander v. State, 20 Ala.App. 432, 102 So. 597 (1925). Also, finding stolen items where an accomplice said an accused hid them was insufficient corroboration to connect the accused to that crime. Lotz v. State, 23 Ala.App. 496, 129 So. 305 (1930). This is for the reason that the accomplice knows the details of the crime and can recite them whether or not the accused was a participant in the offense. Here, as in Alexander and Lotz, supra, the fact that items are where the accomplice says they are in no way independently connects the accused with the offense. The accomplice himself may have hidden the items worn by Hall. “This is why it is incumbent upon the State to present evidence independent of the accomplices’ which connects the defendant to the commission of the crime. Else, any guilty party is apt to implicate an innocent party in exchange for a grant of immunity from prosecution.” Lindhorst v. State, Ala.Cr.App., 346 So.2d 11, at 15 (1977), cert. denied, Ala., 346 So.2d 18.

However, I concur in the result with the majority in that other evidence presented did corroborate the accomplice’s testimony: (1) appellant’s borrowing the pistol and shirt used in the robbery; (2) appellant’s presence in the store minutes before the robbery; (3) lineup identification of appellant; and (4) the condition of appellant’s clothing.