author: TYSON, Judge. CIRCUIT JUDGE

text:
    Billy Ray WILLIAMSON v. STATE.
    8 Div. 3.
    Court of Criminal Appeals of Alabama.
    April 4, 1978.
    Rehearing Denied May 2, 1978.

      Julian D. Butler and Steven R. Berryman of Butler & Potter, Huntsville, for appellant.

      William J. Baxley, Atty. Gen. and Jack M. Curtís, Asst. Atty. Gen. for the State, appellee.
   TYSON, Judge.

Billy Ray Williamson was indicted under Alabama’s Death Penalty Statute (Act No. 213, General Acts of Alabama, 1975, Title 15, Sections 342(3)-342(ll), Code of Alabama 1940, as amended) for the kidnapping and first degree murder of one Jessie Davenport. The jury found the appellant guilty as charged, and the trial court thereafter conducted a post-conviction hearing on the aggravating and mitigating circumstances, as required by law. The trial judge then set punishment at death by electrocution.

Mary Ann Griffin testified that on April 25, 1977, she was employed by Dr. Felton Davenport as a receptionist. Miss Griffin stated that on this date, around 7:40 a. m., she arrived at work. As she got out of her car, Mr. Jessie Taft Davenport (the deceased) called her over to his truck. She walked over to Mr. Davenport’s truck and noticed that the appellant was seated with him. Mr. Davenport asked her to tell his son, “Doc” Davenport, that he would be at the Kimberly Trailer Court with the appellant, working on a little problem which had arisen. Williamson, according to Miss Griffin, was resident manager at the trailer park.

June Knox stated that she lived at the Kimberly Trailer Park in Decatur, Alabama, on April 20,1977. She stated that on this date she saw “Pop” Davenport, along with the appellant and another man, around 8:30 a. m., working at the park’s treatment plant.

Judy Smith indicated that she was a dental assistant, employed by Dr. J. Felton Davenport. Miss Smith stated that on April 25, 1977, around 10:45 a. m., she received a telephone call at the dental office. When she answered the phone, the caller asked to speak with “Doc” Davenport about his father. According to Miss Smith, she buzzed “Doc” Davenport back in the lab and he answered the call.

Dr. J. Felton Davenport testified that he had known the appellant since 1971 and that the appellant had been employed by him and his father for several years as a “handy-man” before he became the resident manager of the trailer park. Dr. Davenport stated that he received the phone call on April 25,1977. He stated that the caller was holding his father for ransom and told him if he contacted the police he would never see his father again. Dr. Davenport related that the caller said he would give further instructions to him later and then hung up the phone. Dr. Davenport testified that he notified the police.

Dr. Davenport indicated that around 7:20 p. m. that same day he received a second phone call at his residence. The voice sounded to him as if it were the same man with whom he had spoken earlier in the day. Dr. Davenport related that he was told by the caller to go to a cabin at River-mont Oaks (a new subdivision) and place $100,000.00 in a brochure box, then wait. According to Dr. Davenport, the voice on the phone was not that of the appellant.

Mrs. Doris Seibert testified that she was employed as a bookkeeper for Dr. Davenport. She stated that on April 25, 1977, around 11:00 a. m., she and Marie Aldridge (her assistant) left the office to look for Mr. Davenport. They found his truck in the Southland Plaza Shopping Center parking lot in Decatur, Alabama, around 11:45 a. m.

Andrea Jane Loosier testified that she lived at Lot No. 22, Kimberly Court, in Decatur, Alabama. Mrs. Loosier stated that on April 25, 1977, around 8:00 p. m., she went to the appellant’s trailer to dry some clothes. While there Mrs. Loosier indicated that the following occurred (R. pp. 582-585):

“Q. Would you relate to the ladies and gentlemen of the jury the facts and substance of this conversation that you had with the defendant there in his trailer on the night of Monday, April 25, 1977?
“A. Well, I was sitting there while my clothes dried and I had made a phone call, had used their phone to make a phone call and the television was on and Mr. Williamson said to me ‘Would you do me a favor’ and I said, T will if I can,’ and he said, ‘Would you pick up a package for me?’ You know, I thought the post office or something is all that run through my mind at the time and I said, ‘Where do I have to go?’ He said, ‘A little ways out of town.’ You know, then that confused me and I said, ‘What is it?’ He didn’t give me no answer then and so I asked him why he didn’t go after it and he said that his car and truck had already been seen around town too much and I said, well, I didn’t know where to go or anything and he said he would tell me where to go. I said, ‘Well, if I go is there anything in it for me?’ And he said, ‘A hundred dollars.’ So, immediately my mind related to drugs, narcotics being in a package that would be out in the woods some place is what came to my mind and so I said to him, I said, ‘Well, is it drugs in there? Is it drugs what it is?’ He never really said yes, but he — during the conversation he let me believe that it was narcotics in the package until the time that I heard it on the radio I—
“MR. BUTLER: We object, Your Honor.
“THE COURT: All right. Stop at that point.
“Q. Tell us the substance of the conversation.
“A. Well, I thought it was — like I said, I thought it was narcotics in a package. So, I told him, I said, ‘Well, can you get any time for it,’ and he said, ‘About twenty years in the pen,’ so that made me even more believe it was narcotics. So I told him, I said, ‘Bill, man, that ain’t no way to go, not drugs,’ and he said, ‘Well, I got to pay these bills'some way or got to have some money some way.’ I am not really sure exactly of the words, and so he said, ‘Would you do it for two hundred dollars?’ Then at this time he said that he would go with me and that all I would have to do is just drive the car, back it up and he would get out and get this package and get back in the car. For two hundred would I go for the two hundred dollars. I said, ‘No, I need the money but I can’t use no twenty years in the penitentiary for getting caught,’ and I said, ‘What if you got caught out there,’ and he said, ‘Well, if you go and we get caught, I have never seen you and I don’t know who you are and run like hell.’ So, at that time I refused. I still wouldn’t go and I got up and left at this time.”

Mrs. Loosier indicated that she telephoned a woman friend who worked for the Police Department on April 28, 1977. Two detectives came to see her. Mrs. Loosier advised that she informed the two of them of what had transpired between the appellant and herself.

Bobby Ray Albrecht testified that on April 25, 1977, the appellant came to his trailer around 10:00 p. m. Albrecht stated that the appellant told him that he wanted to take a ride, so the two of them got in Albrecht’s car and drove off. The appellant gave directions, and this ride ended near Rivermont Oaks. The appellant stated that he was going to take a walk and for him to be back within twenty minutes. Albrecht stated that he drove about for twenty minutes and upon his return the appellant got in the car and told him to hurry up and drive. He did so, and they went back to the trailer park.

Albrecht testified that on Tuesday, April 26, 1977, around lunch time, Williamson came to his trailer while he was playing cards with some friends. The appellant sat down for a few minutes and then left. Albrecht stated that around twenty-five minutes later his friends left and he went to appellant’s trailer to find out what he wanted. Albrecht indicated that Williamson was outside his trailer and the following conversation took place (R. p. 597):

“A. He asked me if I wanted to make twenty-five thousand dollars. Said all I had to do was make a telephone call and tell him where to deliver the money and pick it up and bring it back to him and he would count me out twenty-five thousand dollars then.”

Albrecht testified that he told the appellant he would think about it and he never saw him again.

Wallace L. Higgins testified that he was employed as a special agent with the Federal Bureau of Investigation, Gadsden, Alabama, Division. Higgins stated that on Wednesday, April 27, 1977, he went to the home of Bradley Eugene Jackson in Fort Payne, Alabama. There Higgins conducted a search of a 1969, bronze colored Dodge Charger at this residence. In searching the vehicle, Higgins indicated he found a paper bag which contained a light blue shirt and two sport coats.

Brent Wheeler testified that he was employed as criminologist by the State of Alabama for the Department of Toxicology and Criminal Investigation. Wheeler advised that he participated in the search of a 1969 Dodge Charger in Fort Payne, Alabama, on April 27, 1977. He stated that one white canvas shoe, one blue shirt, one three-quarters by eighteen and one-half inch pipe, one R. C. drink bottle, one brochure map of Rivermont Oaks, and one piece of a trunk mat, all of which had blood stains on them were found in the automobile. Wheeler stated that he also removed some hair from the trunk of the automobile. He indicated the hair in the trunk matched that of Jessie Davenport. All of these items were later turned over to Toxicologist Martha Odom.

James Wayne Kyker, a detective with the City of Decatur, testified that he participated in the investigation of Jessie Taft Davenport’s disappearance. This investigation led him to a wooded area in Cullman, Alabama, where he found the body of Jessie Taft Davenport.

James M. Buttram, State Toxicologist, testified that on April 28, 1977, he conducted a post-mortem examination of Jessie Taft Davenport. Buttram related that Davenport’s death was the result of multiple blunt force blows delivered to the head which caused multiple breaks or fractures, resulting in hemorrhaging within the skull.

Martha Odom, State Toxicologist, testified that she examined the tennis shoe, blue shirt, piece of pipe, R. C. drink bottle, and trunk mat found in the 1969 Dodge Charger belonging to Bradley Eugene Jackson. Mrs. Odom stated that the blood type found on the items matched that of deceased.

Dr. J. Felton Davenport was recalled and stated that the piece of pipe found in the 1969 Dodge Charger was the same pipe used to shut off sewage drainage from Kimberly Court at the treatment plant.

Kenneth D. Collier testified that he was a police officer with the City of Decatur. Collier related that he took Williamson’s confession on April 30,1977, at Police Headquarters. Detective Robert Clark assisted Collier by reading the appellant his “Miranda” rights. The appellant responded that he understood them. The appellant, according to Collier, then read over and signed a voluntary waiver of these rights. Collier related that there were no threats, coercion, intimidation, or inducement made or offered the appellant in order to obtain this statement or to sign the waiver of rights form. Williamson, according to Collier, never mentioned wanting a lawyer. Collier stated that Williamson admitted hitting Davenport with a pipe on the head and that Bradley Eugene Jackson was his partner in the kidnapping of Davenport.

Mrs. Coralee Williamson, mother of appellant, testified that her son came to her home in Fort Payne, Alabama, on Saturday, April 30,1977. Mrs. Williamson stated that the appellant was wet, muddy, unshaven, and acted as if he were in “a shock of mind.” The appellant, according to his mother, left with his brother, Jim Williamson, a deputy sheriff of DeKalb County, after he drank a cup of coffee.

Jim Williamson, Deputy Sheriff of De-Kalb County, testified that he placed his brother under arrest on April 30, 1977, at his mother’s home in Fort Payne, Alabama. Jim Williamson stated that he took the appellant to DeKalb County Sheriff Abies’ home. In route, the appellant told Jim Williamson that he needed a good lawyer. While at Sheriff Abies’ home, Jim Williamson indicated that the Sheriff advised the appellant, of his “Miranda” rights also. Jim Williamson indicated that the three of them then drove to Decatur, Alabama, stopping only to eat dinner at a small cafe in Scottsboro, Alabama.

After their arrival at Decatur City Hall, Jim Williamson was allowed to talk with the appellant privately in the narcotics room for a few minutes. Jim Williamson testified that when he came out of this room he told Detective Ward that the appellant wanted a lawyer and that Ward stated that they would read his brother his rights again. Ward did not testify at trial.

Billy Ray Williamson, the appellant, testified at the suppression hearing. He indicated that he could read and write a few small words and was blind in one eye. The appellant said that he had only a few hours sleep during the three days before he was taken into custody by his brother. Also, he stated that he had spent the two previous nights before his arrest in the woods. The appellant stated that Detectives Collier and Clark did not read him his rights until after he had signed a piece of paper that they directed him to sign. The appellant said he asked for a lawyer and was told by Detectives Collier and Clark that he did not need one and that all he had to do was to sign the paper, then he could get some rest. The appellant testified that when he signed the paper he did not understand that he was giving up his rights against self-incrimination or to have a lawyer present under the United States Constitution. Also, the appellant denied making the statement which he signed.

I

The appellant contends that the Alabama Death Penalty Statute is unconstitutional because the trial jury could not consider the aggravating or mitigating circumstances, thus the death penalty is mandatory and therefore violative of the Eighth and Fourteenth Amendments to the United States Constitution.

The constitutionality of the present Alabama Death Penalty Statute was upheld by this Court in Jacobs v. State (Ala.Cr.App.), 361 So.2d 607 (1977); and subsequently upheld in Jacobs v. State (Ala.Cr.App.), - So.2d - (1977), remanded for further proceedings; Ritter and Evans v. State (Ala.Cr.App.), 361 So.2d 654 (1977); Cook v. State (Ala.Cr.App.), 369 So.2d 1243 (1977); and Wilson, alias Wilks v. State (Ala.Cr. App.), - So.2d- (1978). The appellant has not asserted any grounds for invalidating the statute in question which this court has not previously considered, thus we adhere to the views heretofore expressed on this issue.

II

The appellant contends that the trial court erred in granting the State’s challenge for cause as to two prospective jurors.

The pertinent statute covering these challenges provides:

“57. Additional ground of challenge in certain cases in favor of state. — On the trial for any offense which may be punished capitally, or by imprisonment in the penitentiary, it is a good cause of challenge by the state that the person has a fixed opinion against capital or penitentiary punishments, or thinks that a conviction should not be had on circumstantial evidence; which cause of challenge may be proved by the oath of the person, or by other evidence.” Title 30, § 57, Code of Alabama 1940, Recompiled 1958, now § 12-16-152, Code of Alabama 1975.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, and recently in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), the United States Supreme Court held that unless a venireman is “irrevocably committed, before the trial has begun, to vote against the penalty of death, regardless of the facts and circumstances that might emerge in the course of the proceedings,” 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, he may not be excluded.

In his examination, the district attorney asked the following questions of Jimmie Atkins (R. pp. 51-52):

“MR. MOEBES: Mr. Jimmie Atkins, do you feel that you would never under any circumstances vote as a juror for a death penalty?
“MR. MOEBES: Would you refuse to apply the death penalty no matter how strong the evidence and under all circumstances in any case?
“JUROR: Yes, sir.
“MR. MOEBES: Would you automatically vote against the death penalty without regard to any evidence that might be developed at the trial of the case before you as a juror?
“JUROR: Yes, sir.
“MR. MOEBES: Would your attitude toward the death penalty prevent you from making an impartial decision as to the defendant’s guilt?
“JUROR: Yes.”

As to the prospective juror Jacky L. Snow, the trial judge asked the following questions (R. pp. 404-405):

“THE COURT: That’s not the question. The United States Supreme Court says people that don’t believe in the death penalty can serve on the jury but there is a question of whether or not you are so strongly against it you are not going to listen to the evidence and not going to inflict it regardless of what the evidence is. Now, do you fit into that category? “JUROR: I would listen to the evidence given.
“THE COURT: What?
“JUROR: I would listen to the evidence given. '
“THE COURT: Well, after you heard the evidence and it proved — I am not saying it will by any means, but if it proved without a doubt that the defendant was guilty would you vote for the death penalty?
“JUROR: No.
“THE COURT: Pa. don?
“JUROR: No.
“THE COURT: Would you vote to convict if you knew that the inevitable result would be the death penalty?
“JUROR: No.
“THE COURT: All right.
“MR. MOEBES: We challenge for cause.
“THE COURT: I will grant the challenge. You can be excused unless you are called for another case.”

It thus appears from the record that both Atkins and Snow were irrevocably committed to vote against the death penalty regardless of the facts and circumstances that might emerge during the trial. Therefore, the trial court did not err in granting the State’s challenges for cause as to these two prospective jurors.

Ill

The appellant contends that the trial court erred in refusing to grant a motion for a continuance based on some allegedly highly prejudicial newspaper articles appearing in The Decatur Daily.

One hundred jurors were summoned for jury duty in the trial of this case. The jurors were divided into groups of twelve and each- group was interrogated on voir dire as a group, while the remainder stayed in a jury lounge. After voir dire of the fourth group of these jurors, the court recessed until the following day and each prospective juror was allowed to go to his or her home. The next day, Tuesday, August 30, 1977, the appellant made a motion for a continuance based upon the allegedly highly prejudicial newspaper articles appearing in The Decatur Daily on August 29, 1977.

The trial court, before ruling on the motion, recalled the forty-six prospective jurors remaining and questioned them in regard to the newspaper articles. Twenty of the forty-six prospective jurors stated that they had read the articles. The trial court then asked the following questions after which the trial court asked additional questions of the jurors submitted by appellant’s counsel to the trial judge (R. pp. 527-528):

“THE COURT: All right. Now, the ones who read or saw or heard anything about this case in the news media, please tell me if you saw anything which would affect your opinion or your ability to sit in fair judgment on this case. If you saw anything that would affect your opinion the way that you would judge the evidence under the law, please raise your hand.
“(No answer from venire.)
“THE COURT: Did any of you see anything which you did not already or had not already heard or did not already know about this case in any of these news reports that you might have seen or heard? If so, raise your hand.
“(No answer from venire.)
“THE COURT: Do each of you feel that you could sit in fair judgment on the evidence in this case and decide it according to the law as given you by the Court after seeing the news reports or hearing the news reports since you were qualified yesterday. If you could not, please raise your hand. If you have been adversely affected by that or by anything else since you were qualified yesterday, please raise your hand.
“(No answer from venire.)
“THE COURT: Have you had any contact with any — I will ask all members of the group, have you had any contact or come into contact with any information whatsoever of any kind which would change your thinking in regard to how you could sit and judge the evidence in this case?
“(No answer from venire.)
“THE COURT: Has there been anything adverse to the defendant which has come to your attention by the news media or anything else since you were qualified which would make it detrimental to the defendant in any manner if you sat in judgment on this case?
“(No answer from venire.)
“THE COURT: Will you be able to give a fair and impartial judgment according to the instructions of the Court at this time if you are selected to serve on the jury?
“(No answer from venire.)”

The trial court has wide discretion in whether or not to grant a continuance and such discretion will not be revised in the absence of a clear abuse of discretion. Jenkins v. State, Ala.Cr.App., 337 So.2d 72 (1976), and authorities cited. Further, the appellant has the burden of showing a prejudicial influence which the publicity has caused before a trial court will be held in error. Mayola v. State, Ala.Cr.App., 344 So.2d 818 (1977); Botsford v. State, 54 Ala. App. 482, 309 So.2d 835, cert. denied 293 Ala. 745, 309 So.2d 844 (1974). Here, the appellant failed to show what, if any, prejudicial effect the newspaper articles had on the prospective jurors. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589; Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

Each juror indicated that he would render a verdict based solely on the evidence at trial.

Therefore, the trial court did not err in denying appellant’s motion for a continuance.

IV

Appellant next contends that the trial court erred in allowing appellant’s signed written confession into evidence. According to appellant, his constitutional rights, as established by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, were violated.

The appellant was taken to the Decatur City Hall by his brother, Deputy Jimmy Williamson, and DeKalb County Sheriff Abies. Williamson testified that before leaving for the Decatur City Hall the appellant told him that he needed a good lawyer after he advised him of his rights (R. p. 816). Also, Sheriff Abies advised the appellant of his rights.

Jim Williamson was allowed to talk with the appellant (his brother) for ten to fifteen minutes in the narcotics office (R. p. 757). Deputy Williamson stated that when he came out of the narcotics office he told Sergeant Ward that the appellant wanted an attorney (R. p. 817).

Detective Kenneth Collier testified that he and Detective Robert Clark entered the office where the appellant was located after Deputy Williamson came out. There is no evidence that either Ward or Williamson informed Clark or Collier that the appellant wished to speak with an attorney. The appellant was read his constitutional rights once again, this time by Detective Collier (R. p. 758). After Detective Clark asked the appellant if he understood what he had read him and understood his rights, the appellant stated he did and then signed a waiver of rights form (R. p. 759). Also, Collier testified that no one in his presence threatened, intimidated, coerced, or made any promise or inducement to get appellant to sign the waiver form. According to Clark, the appellant at no time expressed any desire to speak with an attorney.

When a person is arrested and asserts his right to counsel, he can change his mind for any reason satisfactory to himself and submit to questioning. United States v. Hodges, 487 F.2d 945 (Fifth Cir. 1973); Jennings v. United States, 391 F.2d 512 (Fifth Cir. 1968). The State still has the heavy burden to prove that a person in custody “knowingly and intelligently” waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We hold that the State here met this burden in the instant case. The appellant was advised of his constitutional rights on three occasions; he told his brother (Deputy Williamson) that he needed a good lawyer after the first warnings were read to him. It also appears that the interrogating officers, Collier and Clark, were not aware of this request or desire.

There is no contention here that the appellant was denied either food or rest. This is not a ease of a long or protracted examination of an accused being held incommunicado and subject to threats or abuse. The record in this cause is entirely to the contrary. The trial court so understood and determined, and such is borne out by the record itself. We are of the opinion that the trial court’s determination as to the voluntariness of the appellant’s statement was correct. Luschen v. State, 51 Ala.App. 255, 284 So.2d 282; Crowe v. State, 54 Ala. App. 121, 305 So.2d 396; and Bass v. State, 55 Ala.App. 5, 312 So.2d 576.

Our careful review indicates that the confession here admitted into evidence was not induced by any type of threat or promise, express or implied, nor was there any inducement which would operate to produce hope or favor, or coercion which would render such confession inadmissible. See Guenther v. State, 282 Ala. 620, 213 So.2d 679; Gamble v. State, 48 Ala.App. 605, 266 So.2d 817; and Johnson, alias v. State (Ala. Cr.App.), 355 So.2d 1160 (1978).

The appellant’s confession was properly admitted into evidence.

V

The appellant contends that the trial court committed reversible error by misper-ceiving its function in the post-conviction hearing under Alabama’s Death Penalty Statute.

Title 15, Section 342(6), Code of Alabama 1940, Recompiled 1958, provides:

“Determination of sentence by court; court not bound by punishment fixed by jury — Notwithstanding the fixing of the punishment at death by the jury, the court after weighing the aggravating and mitigating circumstances may refuse to accept the death penalty as fixed by the jury and sentence the Defendant to life imprisonment without parole, which shall be served without parole; or the court after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the Defendant to death. If the court imposes a sentence of death, it shall set forth in writing as the basis for the sentence of death, findings of fact from the trial and the sentence hearing which shall at least include the following:
“(a) One or more of the aggravating circumstances enumerated in section 342(8) of this title, which it finds exists in the case and which it finds sufficient to support the sentence of death, and
“(b) Any of the mitigating circumstances enumerated in section 342(9) of this title, which it finds insufficient to outweigh the aggravating circumstances. (1975, No. 213, § 4, effective March 7, 1976.)”

At the beginning of the aggravation — mitigation hearing, as required by the Death Penalty Statute, the trial court stated (R. p. 977):

“THE COURT: All right, we will proceed now with the case of the State against Billy Ray Williamson on the statutory hearing to determine whether or not a sentence fixed by the jury will be altered. Any witnesses that either of you would like to have sworn?”

According to appellant, the trial court’s use of the word “alter” and also “change” in a latter part of the proceedings is indicative of the fact that the trial court perceived its function as a reviewer of the jury’s determination and not as the sentencing authority.

Judge Harris stated in Jacobs v. State (Ala.Cr.App.), 361 So.2d 607 (1977), as follows:

“. . . Before a death penalty can be imposed in Alabama, the trial judge is compelled to hold a separate hearing and make written findings of one or more of the aggravating circumstances set forth in the Act. If the trial judge fails to find one or more aggravating circumstances, supported by the evidence, he is empowered to alter the verdict of the jury and sentence the defendant to life imprisonment without parole. Since the verdict of the jury is not binding on the trial court the Act cannot under any construction be classed as mandatory.”

In the instant ease the trial judge found three aggravating circumstances to exits (See Appendix A). The only mitigating circumstance found to exist by the trial court was that the appellant had no history of prior criminal activity. The trial court determined, after reviewing all the evidence presented at the post-conviction hearing, that the death sentence should be imposed. There is nothing in the record to indicate that the trial court did not conduct the hearing in the manner as required by the statute. The mere usage of the words “alter” and “change” in no way contravenes the meaning or purpose of the post-conviction hearing under the Alabama Death Penalty Statute. Jacobs, supra.

VI

The appellant contends that the trial court committed reversible error by charging the jury on the law of aiding and abetting. Under the Death Statute, the appellant asserts the killing must have been by the defendant and the jury must be so charged in order for the Death Penalty to be applicable.

In Jacobs v. State, supra, Judge Harris stated:

“Appellant’s counsel contend that though he participated in the robbery of the victim he took no part in the actual shooting death of Mr. Knight and, therefore, the death penalty was undeserved. We would remind counsel for appellant that one of the aggravating circumstances in Alabama’s new death penalty law is a section which provides:
“ ‘The capital felony was committed while the Defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit rape, robbery, burglary, or kidnapping for ransom . . . ’ [Emphasis supplied].
“The above quoted section squarely fits this case in every respect. Appellant received a fair and impartial trial and that is all that he was entitled to under the law. Death is the penalty of the law, and the penalty is just.”

Thus the trial court did not err in its charge to the jury on the applicable law covering aiding and abetting.

In closing, we wish to commend the attorneys representing the appellant and those representing the State of Alabama in this cause. This record indicates a diligent and conscientious defense during trial. This case was hard-fought, but the record shows a fair and impartial trial. We also wish to note the excellent briefs and argument made in this Court by these attorneys.

We have carefully examined this record and find no error therein. This case is due to be and the same is hereby

AFFIRMED.

All the Judges concur.

APPENDIX

The defendant has been convicted by a jury after trial of his case on a charge of intentional killing of a human being during the commission of a kidnap for ransom; the punishment was set by the verdict at death. The crime is one of the crimes set forth in Title 15, Section 342(4) of The Code of Alabama, 1975 interim supplement. Under the mandate of Title 15, Section 342(5) the court proceeds to a hearing to aid in a finding of facts on which to base a judgment as to whether or not the penalty of death will be allowed to stand, or the defendant will be sentenced to life imprisonment without parole. The hearing was held on September 14, 1977 at 9:00 A.M. at the Morgan County Courthouse. The defendant with his employed counsel were present in open court; the District Attorney for the 8th Judicial Circuit of Alabama was present representing the State of Alabama. Both the State and the defendant were given an opportunity to introduce evidence. The defendant introduced two witnesses who gave evidence tending to show that the offense in question was committed while the defendant was under the influence of emotional stress by reason of his concern over a serious physical ailment of his wife, and his need for a large sum of money to pay for her medical and hospital bills. It was stipulated and agreed by and between the State of Alabama and the defendant through his attorney that the defendant has no significant history of prior criminal activity. The State offered no evidence. Both the defendant’s attorney and the District Attorney argued the case.

The court finds that the defendant, Billy Ray Williamson, was 42 years old at the time of the offense. He had little formal education, but he was a reasonably intelligent and well oriented individual and was not demented. He was well known to the victim, Jessie T. Davenport, and was a trusted employee of Felton Davenport. Felton Davenport was a son of the victim, Jessie T. Davenport. Felton Davenport owned and operated a trailer home park in Decatur, Alabama, and he was developing a subdivision outside the City of Decatur. He was engaged in the practice of dentistry, and the victim, Jessie T. Davenport, worked in a supervisory capacity in the trailer home park. The defendant was employed as a superintendent of the park, and he worked almost daily with the victim, Jessie T. Davenport. Their relationship was on a very friendly basis; it appears that each considered the other as a close friend. About one week before the crime the defendant devised a plan to kidnap the victim and secure a ransom of $100,000.00 from Felton Davenport, the victim’s son. The motivation for the offense was the desire to obtain the ransom money. He needed a large sum of money to pay the medical and hospital expenses for his wife, but in his statement which was introduced into evidence he did not give this as the reason for the commission of the offense, but stated in general that he wanted the ransom money. There is no explanation throughout all of the record of this case of why he determined to make an apparent good friend the victim of his crime.

The defendant conspired with another person to execute his plan. The two drove to the vicinity of the victim’s home early one morning and sat in their car in view of the victim’s house until the victim drove away from the house apparently on his way to work. The two stopped the victim, and the defendant got into the victim’s truck to ride to the trailer Park where both worked. They went by the dental office of Felton Davenport and talked for a short time with another employee of Felton Davenport, who testified that the defendant and the victim were together at this time. The victim drove to the Trailer Park, and went to the sewage processing plant of the park to perform some work on this small plant. The co-defendant was seen in this area shortly after the defendant and the victim arrived. After a few minutes at this sewage disposal plant the defendant without words with the victim wilfully struck the defendant a violent blow on the side of the head with an instrument which the jury could have found was a three quarter inch iron pipe about eighteen inches long. The victim was immediately knocked unconscious, and the defendant either alone or being assisted by another, threw the victim into the trunk of the automobile of the co-defendant. The defendant drove the truck of the victim to a shopping center near the office of Felton Davenport and abandoned it there. He got into the automobile with the co-defendant, and the automobile was driven by the co-defendant while the defendant and the co-defendant searched for a place to dispose of the body. The body was eventually taken to an isolated wooded area in Cullman County several miles from the trailer Court where the first blow was struck. There was evidence that more than one blow was struck to the head of the victim. The victim died from numerous blows to the head; there were fractures of the skull, lacerations at several places on the scalp, and masses of blood on the brain resulting from the blows. The body was dropped from a rock formation and was abandoned. There was evidence that the automobile in which the body was transported to the scene where it was abandoned was partially cleaned by the removal of several articles from it; these articles were found in the vicinity of the body.

After the body was abandoned the defendant directed that a telephone call be made to Felton Davenport, the son of the victim, and that he be advised that the victim had been kidnapped and that he should not notify law enforcement officers, but that he should await for further instructions. Several hours after the first call was made the defendant directed another telephone call be made to Felton Davenport demanding that he leave $100,000.00 at a designated spot, and advised directly or implicitly that this would be necessary in order for the victim to be safely released. At the time of the telephone call the victim was already dead. The defendant attempted to secure two other persons to pick up the ransom money promising to pay them, but not advising them what would be in the package. Each declined. The body was found, and the defendant absconded. After an intensive search for the defendant was under way he surrendered himself at the home of his parents where he had been for only a short time to Sheriff’s Deputy of DeKalb County; the Deputy was the defendant’s brother. On being questioned by law enforcement officials in Morgan County he voluntarily detailed his plans for the kidnap for ransom and the execution of it.

The court further finds that the defendant committed the offense charged for pecuniary gain. The wilful killing of the victim was committed by the defendant while he was engaged in kidnapping the victim for ransom. The offense was especially heinous, atrocious and cruel. The court further finds that the aggravating circumstances associated with the commission of this offense are sufficient to outweigh the mitigating fact the defendant has no sufficient history of prior criminal activity. The defendant’s need for money for hospital and medical expenses for his wife is a need which is common in society; it was not sufficient to disable the defendant mentally or emotionally, and is not sufficient to reduce the punishment for the crime.

Therefore, the court finds that there is no legal basis for the court to change the punishment inflicted by the jury, and the punishment of death is hereby sustained.

This the 15th day of September, 1977.

(si Newton B. Powell

CIRCUIT JUDGE

      . Death Penalty Act is now 13-11-2 through 13-11-9, Code 1975.


source: Caselaw Access Project

author: MADDOX, Justice. JONES and SHORES, Justices

license: Public Domain

text:
    In re Billy Ray WILLIAMSON v. STATE of Alabama. Ex parte Billy Ray WILLIAMSON.
    77-610.
    Supreme Court of Alabama.
    Jan. 5, 1979.
    Rehearing Denied Feb. 9, 1979.
    Julian D. Butler and Steven R. Berry-man, for Butler & Potter, Huntsville, for petitioner.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State of Alabama, respondent.
   MADDOX, Justice.

AFFIRMED.

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

JONES and SHORES, JJ., concur in part; dissent in part.

JONES and SHORES, Justices

(concurring in part; dissenting in part).

We concur in the result to affirm the conviction. We adhere to the statements we expressed in Jacobs v. State, 361 So.2d 640 (Ala.1978), with respect to the sentence of death.


author: BOOKOUT, Judge.

text:
    John Cooke THOMAS v. STATE.
    1 Div. 905.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      Frank G. Taylor, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and L. G. Kendrick, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Burglary, second degree; sentence: eight years imprisonment.

On Saturday, May 7,1977, Carrie Jackson was at her home in Prichard, Alabama, gathering clothes together in preparation to take them to a neighbor’s house to wash. Appellant, an acquaintance of Mrs. Jackson, arrived at her house in a blue Cadillac automobile with two other men. He asked if he could use her telephone, which she allowed him to do. The two men in the Cadillac drove away during this telephone call. Mrs. Jackson testified she did not hear the substance of the telephone call, but heard enough to know appellant was talking with Carrie Bell Brown.

Mrs. Jackson informed appellant that the two men left him, and appellant said he knew they had. Mrs. Jackson told appellant she was about to go up the street to wash clothes, and appellant said he was leaving also. Both of them exited the house, and Mrs. Jackson locked the door behind them.

When Mrs. Jackson arrived at the neighbor’s house, some four houses down the street, she discovered she had left her washing powder at home. As she was returning to her house at approximately 6:30 p. m., she saw appellant running away from her house carrying her television set. She shouted for him to stop but he ignored her. She entered her house and discovered her Panasonic stereo equipment was missing also. She observed that a bedroom window, which had been held shut by a stick propped in it, had been broken. The stick had been removed and the window pushed open. All the doors and windows were locked before the burglary, except for this window, which had been secured by the stick. Mrs. Jackson notified the police who arrested appellant the following Tuesday.

Janice Chapman, a neighbor, testified she also saw appellant running from Mrs. Jackson’s house carrying a television. He ran down a path into a wooded area across the street from where she lived. She also heard Mrs. Jackson shouting at the appellant.

The defense presented two alibi witnesses who placed appellant at another house at the time of the burglary. One of these witnesses was the Carrie Bell Brown that appellant called from Mrs. Jackson’s house. On cross-examination, in a very confusing series of answers, she appears to have admitted and then again denied that appellant was at the Jackson house at the time he called her rather than at the alibi location.

I

The State attempted to introduce several identification cards found on appellant’s person at the time of his arrest. All of the cards were issued to names other than that of the appellant. Over objection to their admission as irrevelant, the trial court conditionally admitted the cards subject to the State subsequently proving their relevancy. At trial’s end, the court, on its own motion, excluded the documents as irrelevant. Only at that point did appellant move for a mistrial, which the judge denied. Appellant argues that the documents were admitted for the sole purpose of damaging the appellant’s character which had not been placed at issue by his taking the stand. Hence, appellant asserts the court erred in failing to grant his motion for a mistrial because of the prejudicial effect of the tardy exclusion of the irrelevant documents.

The trial court has discretion to conditionally admit evidence of a fact on the pledge that additional evidence will be introduced to make the first evidence competent. Gamble, McElroy’s Alabama Evidence, (3d ed.), § 13.01; Minto v. State, 8 Ala.App. 306, 62 So. 376 (1913). If additional evidence is not introduced to make the first competent, then error results unless the trial court excludes that which was conditionally admitted. Tennessee Coal, Iron, and R. Co. v. Kimball, 209 Ala. 466, 96 So. 329 (1923).

The cards excluded by the trial court appear to have had no relevance to the issue in this case and were properly excluded. The court committed no error in waiting until the end of the evidence, rather than excluding the evidence at mid-trial before hearing the remainder of the State’s case. Appellant neither renewed his objection nor moved to exclude the evidence because its relevancy was never shown. The incompetent evidence was excluded because of the trial court’s own prudent and judicial use of discretion. The trial court made it abundantly clear to the jury that such evidence was conditionally admitted subject to the State’s burden to subsequently prove its relevancy. Additionally, the judge’s thorough remarks excluding the documents covered two pages in the trial record and ended with the court interrogating the jury as to the jurors’ ability to disregard that evidence:

“THE COURT: All right. That is to be disregarded by you. You’re not to consider that and I believe we’ve covered the exhibit. Is there anybody in the Jury Box who thinks you can’t follow my instructions tell me now and I’ll declare a mistrial. (No Juror answered in the affirmative.) Nobody.”

The evidence was properly excluded, and we find no error on the part of the trial court in its ruling in this regard.

II

Leslie Nobles testified that, as a detective for the City of Prichard, he investigated the instant case. It was through Officer Nobles’ testimony that the State was able to have the false identification cards found in appellant’s possession conditionally admitted into evidence. During the course of the prosecution’s direct examination of Officer Nobles, the following occurred:

“Q. When the defendant, John Cooke Thomas, was arrested did he volunteer his name?
“A. No, he did not.
“Q. Did you ask—How many times did you have to ask him who he was?
“A. We talked to John for approximately an hour before he gave us his right name.
“Q. Did he give you any other name? “A. Alvin Harper.
“Q. Alvin Harper? Is one of these— Does one of these U. S. Social Security cards bare the name Alvin Harper?
“A. Yes, it does.
“Q. Did he give you any other name?
“A. After an hour—
“MR. TAYLOR: Judge, I object.
“THE COURT: Overrule. Go ahead.
“BY MR. DUMONT:
“Q. Did he give you any other name?
“A. William. He gave the name William. (Inaudible).”

From the above portion of the record, it is clear that in the course of custodial interrogation the appellant gave false names to the interrogating officer. The giving of a false name to police officers at the time of interrogation is a circumstance which may be looked upon by the jury as indicating a consciousness of guilt or an attempt to escape detection. The introduction of such a statement therefore would be prejudicial to the appellant. Harrison v. State, Ala.Cr. App., 358 So.2d 759 (1977), reversed and remanded, Ala., 358 So.2d 763 (1978).

The only semblance of a predicate laid by the State for introducing the statement of the appellant or the false identity cards was on direct examination of Officer Nobles:

“Q. Did you read the defendant his rights as per the Miranda decision?
“A. I did.”

In Harrison, supra, this court was faced with almost the identical fact situation as the instant case. There, the police officers, after arresting Harrison, found a state employment card bearing the name of Johnny Smith. One officer asked who Johnny Smith was, and the appellant (Harrison) replied that he was Johnny Smith. Only then did the defense state, “I maintain that general objection.” The trial court overruled. This court held that the objection came too late, and no motion to exclude was made, therefore, no error resulted in the trial court’s ruling. On certiorari, the Alabama Supreme Court reversed this court stating:

“The Miranda Rule clearly mandates that the prosecution may not use statements, inculpatory or exculpatory, stemming from a ‘custodial interrogation’ of a defendant unless it proves that the Miranda warnings were given prior to questioning. The burden on the prosecution is heavy, Miranda holds, to prove that the defendant ‘knowingly and intelligently waived his privilege against self-incrimination.’ Miranda v. Arizona, supra; see also Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976).”

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court stated:

“. . . unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him [the appellant].” (Emphasis supplied.)

In Swicegood v. State, 50 Ala.App. 105, 277 So.2d 380 (1973), the prosecution attempted to lay a predicate for admission of the defendant’s inculpatory statement by asking the following question and receiving an answer as follows:

“ ‘Q. Did you advise him of his rights?
“‘A. Yes, sir.’”

This court, in reversing the conviction held:

“It does not appear in the appeal record before us that the defendant was effectively and fairly informed of his rights under Miranda, nor was he warned of the consequence accruing to him if he confessed or made inculpatory answers. Because of such failure of proof, the burden being on the State of Alabama to adduce the same, none of the confessory answers delineated in the testimony should have been admitted. It was the duty of the State to spell out with clarity and reasonable precision the warnings the officers gave the defendant, if any, as mandated in Miranda. A general question, as here, does not meet the requirements of law.”

The simple question, “Did you read the defendant his rights as per the Miranda decision,” does not indicate whether the rights were read before or after questioning, whether the defendant understood the rights and whether he made an intelligent waiver of those rights. Even in eases where officers have attempted to give a detailed Miranda warning, key elements have been left out or misstated, which required reversal. Square v. State, 283 Ala. 548, 219 So.2d 377 (1968).

For the reasons mandated in the Harrison case by the Alabama Supreme Court and the other authorities hereinabove cited, it is necessary that the case be remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: JONES, Justice.

text:
    In re John Cooke THOMAS v. STATE of Alabama. Ex parte: STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-239.
    Supreme Court of Alabama.
    May 4, 1979.
    Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
    Frank G. Taylor, Mobile, for respondent.
   JONES, Justice.

Writ quashed as improvidently granted.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


text:
    James ANDREWS v. STATE.
    4 Div. 670.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.

      Jerry E. Stokes, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with a deadly instrument on a peace officer engaged in active discharge of his lawful duties; sentence: twenty years imprisonment.

This is the second time this case has appeared before this court. On the original appeal to this court, the indictment was held to be insufficient because it failed to identify the person assaulted. Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977). Appellant was reindicted in June 1977 on the charge of assaulting Police Officers Hyrum W. Turner and Lawrence Nelson with a deadly instrument. The alleged assault took place at Pete’s Drive-In in Opp, Alabama, during the early morning hours of February 7, 1976. Appellant, while involved in an altercation with Donnis McDonald, discharged a shotgun into the ceiling of the building. When Officers Turner and Nelson arrived, they ordered the appellant to come outside unarmed. Appellant escaped via the front door firing his weapon in the direction of the police officers in the process and then sped away in his automobile. A chase ensued during which appellant wrecked his automobile and was apprehended by the police.

I

The appellant contends that he was denied his right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution. Appellant bases this contention on the fact that (1) he was not arraigned until approximately nine months after his indictment, and (2) as a result of this delay, he was prejudiced because a key defense witness, Donnis McDonald, was outside the state’s jurisdiction and was unavailable for trial. Appellant claims that McDonald’s testimony would have proven Officer Turner’s testimony unreliable. Turner testified that appellant fired at him with the shotgun as appellant ran out the front door of Pete’s Drive-In. Appellant claims that McDonald’s testimony at the first trial was that no shotgun blast was heard as appellant fled out the door of Pete’s Drive-In.

Under the holding of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the conduct of both the prosecution and the defendant must be weighed. There must be a balancing test. The United States Supreme Court in Barker, supra, set out four factors that should be considered in determining whether one has been deprived of a speedy trial: “length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” There is no fixed length of time that is considered to be per se unreasonable.

First, we do not think that the lapse of approximately nine months between indictment and arraignment was unreasonable since appellant was out of the state’s jurisdiction at the time of the indictment. Appellant was incarcerated in the Pinellas County Jail in Largo, Florida. Extradition proceedings were begun in December 1977, appellant was arraigned in March 1978, and trial was held on April 28,1978. It was not until the day of trial that appellant asserted that he was prejudiced by not being able to call McDonald as a witness. There is no indication in the record that appellant ever attempted to contact McDonald before trial or whether an attempt was made to subpoena him.

Second, McDonald’s testimony in the first-trial was directly contra to appellant’s contention on this appeal. McDonald stated twice in his testimony that he thought he heard a shotgun blast after the appellant ran outside the building, but that he was not absolutely certain. We cannot speculate that McDonald would have changed his testimony for the second trial, and the record discloses no -eason why he may have done so. It should also be noted that this court held on appellant’s first appeal that the State’s proof was sufficient to establish that appellant fired a shotgun in the general direction of the police officers. It therefore appears that it would have been to the advantage of the appellant not to have McDonald testify at the second trial. Thus, we find no prejudice to the appellant resulted from the delay.

II

Appellant’s second contention is that the trial court erred in sustaining objections to the testimony of Unie B. Gallops. A quick review of that portion of Mrs. Gallops’ testimony is in order:

“Q. All right. Well, let me ask you this. Do you remember an occasion back around February, of 1976, when you woke up one morning and discovered your mailbox had been knocked down?
“A. Yes, I remember that.
***** *
“Q. All right. Did you look around out there?
“A. Yes, I did.
“Q. Could you tell us what you found?
“A. The mailbox tore off, and — and the stob bent back, and the mailbox tore all to pieces and it drug up the road.
“Q. All right. Did you notice anything out there with reference to skid marks, or tire marks of an automobile?
“A. Yes, where they drug it across the drive. The mailbox was drug across the drive as it went on up the road.
“Q. All right. Now, Mrs. Gallops, from looking out there at your mailbox and driveway, and along side of the road, were you able to come to a judgment as to how many cars had been out there?
“A. Well ....
“MR. MCGILL: We object to that.
“THE COURT: Yes, I sustain.
“MR. STOKES: She has told us what she saw. A lay person certainly would ordinarily be able to make a judgment like that.
“THE COURT: Well, unless she saw some cars and all, I don’t see how it is relevant to this.
“MR. STOKES: Well, here is the relevancy of it. Officer Burdick testified that he never left Pete’s Drive-In, and her testimony will show that two automobiles — our offer is to show that two automobiles turned around right in front of her house, showing that he was not down there where he said he was.
“MR. MCGILL: We object, Your Honor.
“THE COURT: Yes, I am going to sustain.”

The following then occurred outside the hearing of the jury:

“MR. STOKES: Your Honor, this affair that we have been talking about in the courtroom today happened two years ago. And the witnesses’ memories have broken down, as has been apparent throughout this case. These police officers have contradicted themselves a number of times. Officer Burdick testified that he had come down there and that very shortly after he got there, Mr. Andrews came out, and he ran up to his car, and he grabbed him, and he chased him up to the road, highway 34, and then Mr. Andrews pulled off from him, and that he then returned to his car and pulled out to the edge of the driveway and Mr. Andrews turned around and came back meeting him. But Officer Turner testified that Mr. Burdick got in his car and chased him up the road, and radioed back to him. Now, if Mr. Turner drove up the highway behind Mr. Andrews, then we fail to see how he could have run all the way from Andrew’s car back to his car, and gotten into his car and went up the highway and caught him up at Mrs. Gallops’ house, just up the hill. It goes to the credibility of the officers as to whether they have a good enough recollection of this thing to remember what they did, and what they saw.
“MR. MCGILL: May it please the court, in reply to that, the recollection of the witnesses and their credibility is up to the jury, and this is an immaterial point, and I don’t think he can even be impeached on it, something that is immaterial, and it is immaterial if he caught him or didn’t catch him. The main facts in this case is what happened right there through that window when he pointed that shotgun, and when he stepped through that door, and fired at him. What happened thirty minutes later is immaterial as far as the elements in this case.
“THE COURT: Just to show tracks out there and damage to the mailbox is purely speculative. It might have been two automobiles there, but it could have been any one of a thousand others and I sustain the objection to showing that.”

According to Gamble, McElroy’s Alabama Evidence, (3d ed., 1977), § 153.01:

“It is an accepted principle within the first-hand knowledge rule, that a witness can only testify to facts of which he has personal observation . . . .” (Emphasis supplied.)

Mrs. Gallops did not actually see what knocked her mailbox down. She can only speculate or draw a conclusion as to whether one of more cars, trucks, tractors, etc., knocked the mailbox down. “As a general rule, questions posed to witnesses must be in such form to elicit facts. Witnesses, certainly non-expert witnesses, must testify to facts, not conclusions, inferences or opinions.” Allen v. State, 55 Ala.App. 549, 317 So.2d 517 (1975). We agree with the trial court that questions calling for purely speculative answers are improper. Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973).

Ill

The appellant contends that his prosecution contravened the constitutional ban against double jeopardy. Appellant was previously convicted in the Municipal Court of Opp, Alabama, for aggravated assault of Donnis McDonald arising out of the altercation at Pete’s Drive-In. He argues that the aggravated assault is broad enough in scope to include the assault on the police officers and that to try the two offenses in separate prosecutions constituted double jeopardy. We find no merit to this contention. The two offenses may clearly be distinguished from each other. Assault with a deadly instrument upon a peace officer in performance of his duties must be committed against a peace officer or law enforcement officer while engaged in the lawful discharge of his duties. Title 14, § 374(20), Code of Ala.1940, Recomp.1958, 1973 Supp. [now § 13-1-42, Code of Ala.1975]. Appellant’s conviction of aggravated assault in municipal court was for assaulting Donnis McDonald who was not a law enforcement or peace officer. Even though both assaults occurred within minutes of each other and in the same general area, each required proof of an additional fact which the other did not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Colston v. State, Ala., 350 So.2d 337 (1977); Brown v. State, Ala.Cr.App., 367 So.2d 557 (1978).

IV

The appellant’s last contention is that the trial court committed reversible error by admitting into evidence two shell casings which were allegedly discovered at the scene of the incident. Appellant argues that there was no continuous chain of custody established from the time of the alleged incident up to the start of the first trial.

The appellant questions the fact that the two shell casings were not discovered until approximately thirty minutes after the incident occurred. As appellant fled from Pete’s Drive-In in his automobile, Officers Burdick and Turner joined in the chase. Appellant was captured after wrecking his automobile. After taking appellant to the police station, Burdick and Turner returned to Pete’s Drive-In. They were absent from the crime scene approximately thirty to forty-five minutes. There is nothing unreasonable or unusual for officers to leave crime scenes in pursuant of fleeing felons. Officers cannot be expected to stop during the commission of a crime to gather evidence for a successful prosecution and at the same time apprehend the perpetrator of the crime. We do not see this as a break in the chain of custody to return to the crime scene and gather evidence.

The appellant also argues that Officer Burdick did not have complete possession of the two shell casings until the first trial was held. Burdick found one of the shell casings inside Pete’s Drive-In. Turner found the other shell casing outside the building. Burdick gave the shell casing that he found to Turner. Turner took both shell casings to the police station, placed them in an envelope, and put them in his locker. The next day he turned the shell casings over to Burdick, who in turn placed them in his desk drawer. Burdick testified that the drawers on his desk were not kept locked at all times. He did not testify as to whether the drawer containing the evidence was locked during his possession of the evidence. We think the case of Blakely v. State, Ala.Cr.App., 344 So.2d 812 (1977) answers this contention:

“. . .To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain. . . ”

(Emphasis supplied.)

See also: Waters v. State, Ala.Cr.App., 360 So.2d 358, at 362 (1978), cert. denied, Ala., 360 So.2d 367. We believe the reasonable probability test has been met in this case.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte James ANDREWS.
    78-429.
    Supreme Court of Alabama.
    May 25, 1979.
   SHORES, Justice.

Writ denied.

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


author: BOWEN, Judge.

text:
    Frederick Douglas MEREDITH v. STATE.
    5 Div. 427.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.

      J. Tutt Barrett, of Samford, Denson, Horsley & Pettey, Opelika, for appellant.
    William J. Baxley, Atty. Gen. and Willis Isaac, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted of robbing John D. Lewis of eighteen dollars on March 18, 1978. Sentence was fixed at thirty years’ imprisonment. Immediately before trial the appellant withdrew his plea of not guilty and filed a single plea of not guilty by reason of insanity. The changing of the plea was properly within the discretion of the trial court. Knott v. State, 202 Ala. 360, 80 So. 442 (1918).

I

Initially the appellant contends that the verdict of the jury was against the great preponderance of the evidence which allegedly shows that he was insane at the time of the offense.

The general principles of law regarding the burden of proof and the defense of insanity were recently set forth in Christian v. State, 351 So.2d 623 (Ala.1977), and summarized in Herbert v. State, 357 So.2d 683, 688-689 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978). These principles were also applied in Woods v. State, 364 So.2d 1178 (Ala.Cr.App.), cert. denied, 364 So.2d 1186 (Ala.1978). In each of these cases the preponderance and weight of the evidence on the question of insanity were so clear and strong that the statutory presumption of sanity was overcome. With the addition of Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954), these four cases represent the only occasions where judgments of conviction have been reversed by an appellate court of Alabama because the jury verdicts were contrary to the preponderance of the evidence on the issue of insanity. Here the evidence of insanity falls far short of that presented in Christian, Woods, Herbert, and Pickett.

Prosecution witness Mattie L. Fears, who had known the appellant “ever since my brother married his sister”, testified that she asked the appellant to take her to the store. On the way the appellant asked her is she knew any banks they could rob and she told him to “quit talking crazy”. While she was in the store the appellant robbed Mr. Lewis who was waiting to put some gasoline into his automobile. The appellant drove off and left Ms. Fears. Upon learning that the appellant had committed the Ms. Fears exclaimed, “Oh, Lord! That nut.” On cross examination Ms. Fears testified that when the appellant has been drinking “he’s just not himself” and that he had been drinking the day of the robbery.

The appellant’s sister testified that the appellant’s character began to change around the first of February, 1978. The appellant told her that the “Indians” were coming to take over Alabama; that they had a “bounty” on him; that somebody was following him, trying to kill him; that the Mafia was taking over; and that he had signed the Panama Canal Treaty. In Ms. Cheryl Clark’s opinion the appellant was “unsound”.

The appellant’s mother noticed a “great change” in her son’s reactions beginning in January of 1978. The appellant was saying “weird things kinda like, you know, got on my nerves. You know talking about Indians and Moffits and things like that . . .” She testified that she thought it was a “dream ... or something that he was having”.

Dr. Chester Wright Jenkins, a psychiatrist, testified as an expert to the mental condition of the appellant. The appellant complained of dizziness, of “just feeling really bad and of being anxious and depressed and confused”. He told Dr. Jenkins that he had received several head injuries from fighting in the past.

After finding what was first thought to be evidence of brain damage Dr. Jenkins examined the appellant “pretty completely”, conducting a brain wave test (EEG), brain scans and skull x-rays. Dr. Jenkins “did not find anything to prove . brain damage”.

“The main thing that was the matter with Mr. Meredith was that he had, really, periods of confusion. He had periods when it was very difficult for him to sort of keep track of his thoughts, to concentrate as he should, to make reasonable judgments and act upon them and so forth.”
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“The essence of what I saw was, as I said, the confusion, the difficulty in concentrating, the difficulty in forming accurate judgments and in making himself behave according to those judgments.”

Dr. Jenkins found the appellant to be “schizophrenic”. He stated that this condition is a mental illness which can be and was being treated with medication. At best Dr. Jenkins could only state that the appellant had the potential and it was entirely possible that he was unable to distinguish right from wrong on the day of the robbery.

The appellant testified in his own behalf and stated that he was famous because of the Panama Canal Treaty; that there was a contract out on him because he was famous; that if they killed him or if he killed one of them there was going to be a war; that he committed the robbery so he would go to jail and keep from killing anybody. The appellant’s entire testimony contained delusional responses characteristic of those set forth above.

We have carefully read and considered all the testimony in this case and taken in the light most favorable to the appellant it falls far short of establishing the appellant’s insanity at the time of the crime. The legal test for insanity as a defense to a criminal prosecution requires that

“at the time of the commission of the crime appellant was afflicted with a diseased mind to the extent that (1) she did not know right from wrong as applied to the particular act in question, or (2) if she did have such knowledge, she, nevertheless, by reason of the duress of such mental disease had so far lost the power to select the right and to avoid doing the act in question as that her free agency was at the time destroyed, and (3) that, at the same time, the crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely — which is the legal test. Parsons v. State, 81 Ala. 577, 2 So. 854; Barbour v. State, 262 Ala. 297, 78 So.2d 328.”
Hafley v. State, 342 So.2d 408, 410 (Ala. Cr.App.1976), cert, denied, 342 So.2d 412 (Ala.1977).

Unusual or weird behavior alone cannot be equated with mental insanity. Carey v. State, 361 So.2d 1176, 1179 (Ala.Cr. App.1978). Evidence that the accused had sometimes acted a little “peculiar” or testimony that “he was not normal”, “that he was not in his right mind”, “looked like he was insane”, or did not act “right” is not sufficient, in and of itself, to meet the test laid down by case law for establishing an insanity defense. Weeks v. State, 342 So.2d 1335 (Ala.Cr.App.1977). Also Gibson v. State, 49 Ala.App. 18, 268 So.2d 49 (1972) (nervous, unable to sleep, anger without cause, easily influenced); Lee v. State, 43 Ala.App. 400, 191 So.2d 239 (1966) (suicide attempts). The workings of a diseased mind are so variant that no rule as to the sufficiency of the evidence to prove insanity can be laid down in all eases, but each must depend more or less upon its own particular facts. Boswell v. State, 63 Ala. 307 (1880).

The evidence of insanity in this case is far from being conclusive. The testimony of the medical expert, even when taken in a light most favorable to the appellant, only shows that the appellant may or could have been legally insane when he committed the robbery. Dr. Jenkins testified that the appellant always had the “potential” for “getting the confusion” and if the “stress” was great enough it was “entirely possible” that he was unable to distinguish right from wrong. Dr. Jenkins could only state that the appellant’s “inpulsiveness, poor judgment, and so forth and so on could very likely have influenced such an action”.

“I don’t think that Mr. Meredith’s illness, per se, would have caused him to have committed that action.”
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“. . . I would be hard put to say that the illness caused him to act in that particular fashion.”

In conclusion, as there was only testimony that the appellant could have been insane when he committed the robbery and no conclusive showing that the appellant’s “confusion” or illness met the test of legal insanity, the issue of sanity was solely a question for the jury.

II

The appellant contends that the remarks of the prosecutor during closing argument were so prejudicial that they constitute reversible error. From the record:

“CLOSING ARGUMENT BY MR. MYERS:
“ — Mr. Barrett says that if this defendant is found not guilty by reason of insanity, that doesn’t mean he will go free. He’ll probably go on down to Bryce’s to be examined. Ladies and gentlemen, I’m going to tell you one thing — there’s no bars in the windows at Bryce. There is no walls down there, either—
“MR. BARRETT: Your Honor, I object to that. He doesn’t know what kind of facilities they have at Bryce for restraining people like that.
“THE COURT: Ladies and gentlemen of the jury, you will base your verdict, whatever it may be on the evidence as it came to you from the witness stand and the witness stand alone.”

Argument or comment regarding the possibility of release or escape of a defendant from a mental institution if found not guilty because of insanity has been often disapproved and condemned. Christian v. State, 351 So.2d 623 (Ala.1977), and cases cited at 351 So.2d 625. Such argument, especially where repeated, may be so grossly improper and highly prejudicial that an appropriate objection or motion invoking corrective instruction or action by the trial court is not required. Christian, 351 So.2d at 626; Allred v. State, 291 Ala. 34, 38, 277 So.2d 339 (1973). However the general rule is that prejudicial statements, even though improper, are considered capable of being eradicated by the trial judge in sustaining objections thereto or by appropriate instructions to the jury or both. Allred v. State, supra; Dunn v. State, 277 Ala. 39 at 44, 166 So.2d 878 (1964); Bachelor v. State, 216 Ala. 356, 361, 113 So. 67 (1927); Anderson v. State, 209 Ala. 36, 44, 95 So. 171 (1922).

From the remarks reported in this case it could be implied that the prosecutor was going to make an improper comment on the possibility of a release or escape from a mental institution. Clearly, however, the argument never got that far nor can we state with any degree of certainty that that is where the argument was directed. Even the objection does not make the point that it was.

Nothing is presented for this court to review where defense counsel objects to an anticipated argument, which was never made, and not to an existing argument to that effect. McCord v. State, 344 So.2d 207 (Ala.Cr.App.1977). Here the argument is fragmentary because defense counsel's objection interrupted the prosecutor’s argument. The prosecutor’s argument may have continued into the realm of ineradicable error or it may have maintained its present status leaving the entire comment as ambiguous as it now appears. At any rate it appears that no “sinister influence” crept into the record and we find no prejudice to the appellant. Additionally we note that the remarks under review nowhere approach the obviously prejudicial comments found in Christian and the cases cited therein. Under these circumstances the court’s instructions to disregard cured any possible error or prejudice contained in the remarks.

We have searched the record and found no error prejudicial to the appellant. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


author: PER CURIAM.

text:
    In re Frederick Douglas MEREDITH v. STATE of Alabama. Ex parte Frederick Douglas Meredith.
    78-432.
    Supreme Court of Alabama.
    May 4, 1979.
    J. Tutt Barrett, Opelika, for petitioner.
   PER CURIAM.

Petition for the writ is denied. Our declining to issue the writ, however, is not to be construed as agreeing with that portion of the Court of Criminal Appeals’ opinion which finds:

“From the remarks reported in this case it could be implied that the prosecutor was going to make an improper comment on the possibility of a release or escape from a mental institution. Clearly, however, the argument never got that far nor can we state with any degree of certainty that that is where the argument was directed. . . . ” (Emphasis theirs.)

Nor do we agree with language to the like effect in the subsequent paragraph of the opinion. Instead, the declination of the writ is based upon our concurrence with the holding to affirm the conviction for the following reasons: 1) The limited ground of the objection; 2) the immediate appropriate response by the trial Judge; and 3) the absence of any attempted repetition of the improper argument by the District Attorney. Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973).

Writ denied..

All the Justices concur.