author: TYSON, Judge.

text:
    Tommy TAYLOR v. STATE.
    2 Div. 295.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    Rehearing Denied April 21, 1981.

      J. L. Chestnut, Jr. of Chestnut, Sanders & Sanders, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Tommy Taylor was indicted for the first degree murder of Hayward Norfleet by unlawfully killing him with a shotgun. The jury returned a verdict of “guilty as charged” and the appellant was sentenced to life imprisonment. The trial court denied appellant’s motion for a new trial.

Early in the evening on July 27, 1979, appellant and his brother, Joseph Taylor, left their mother’s home to visit appellant’s girl friend and then go have a few beers. After a short visit with his girl friend, appellant and Joseph Taylor went to Buster Brown’s Place Over the Hill, a local night club in Perry County, and each purchased three beers. At some time either just before or just after their visit to Buster Brown’s (at approximately 9:00 p. m.) appellant and his brother also visited the Sportsman Club just long enough to get into a scuffle with another customer whom they pushed out of the building. Daisey Norfleet, a nurse’s aide who was working part time as a waitress that night in the club, and Hayward Norfleet, the victim, both witnessed this shoving incident.

Appellant and his brother left without further trouble but returned to the Sportsman Club later that evening (i.e. at approximately 11:00 p.m.). Appellant’s brother, Joseph Taylor, entered the club and during a short, private conversation between the two, he persuaded Hayward Norfleet to follow him outside.

Daisey Norfleet, a distant relative of Hayward, warned him not to go outside with appellant’s brother. Nevertheless, the two men left through the front door and walked outside to the end of the building. Daisey testified that she peeped outside and saw the two men standing at the end of the building where a third man, whom she could not see clearly, held a gun pointed at Hayward’s face. Before Daisey Could run back to report what she saw to the manager of the club, she heard the shotgun blast which killed Hayward Norfleet.

There was conflicting evidence as to this shooting incident. Several witnesses saw appellant’s brother enter the club and leave with the victim. In a pretrial statement made to police, Joseph Taylor, appellant’s brother, confirmed Daisey’s account of the shooting and added that appellant shot the victim when the victim put his hand in his pocket. However, during the trial, Joseph testified that he and appellant never even went to the Sportsman Club. Appellant’s mother and another brother testified that appellant was home in bed by 10:00 p. m.

After hearing all of the evidence, both direct and circumstantial, the jury apparently chose not to believe appellant’s alibi witnesses, and instead found him guilty of first-degree murder.

I

Appellant contends that the evidence was insufficient to support a prima facie case of murder in the first degree. Having carefully reviewed the entire transcript in this case, we disagree.

As § 13-1-70, Code of Alabama 1975, defines it, first degree murder requires an act that is willful, deliberate, malicious and premeditated. Cosby v. State, 269 Ala. 501, 114 So.2d 250 (1959). The last three adjectives in this definition caused some early uncertainties which have now been clarified by our Alabama cases.

It is now well settled that “deliberate” and “premeditated” insert the requirement of time to think, if only for an instant, before acting. Cosby v. State, supra. This was quite clearly stated in Daughdrill v. State, 113 Ala. 7, 21 So. 378 (1897), where the court stated that:

“[I]f the slayer had any time to think before the act, however short such time may have been, even a single moment, and did think, and he struck the blow as the result of an intention to kill produced by this even momentary operation of the mind, and death ensued, that would be a deliberate and premeditated killing, within the meaning of the statute defining murder in the first degree.” (Citations omitted)

It is also well settled that “malice” will be presumed if the slayer uses a loaded gun or any other deadly weapon, unless the presumption is properly rebutted by the circumstances involved. Miller v. State, 38 Ala.App. 593, 90 So.2d 166 (1956); Young v. State, 47 Ala.App. 674, 260 So.2d 406 (1972); Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973); Holcey v. State, 52 Ala.App. 664, 296 So.2d 750, cert. denied, 292 Ala. 723, 296 So.2d 753 (1974). Said another way, malice may be inferred by the character of the assault after analyzing the circumstances and amount of force used to inflict injury. Flint v. State, Ala.Cr.App., 370 So.2d 332 (1979).

In this case the murder victim was led outside of the nightclub by Joseph Taylor and was shot at close range and killed with a shotgun by someone who had sufficient time to think before acting. The vie-tim was unarmed and no evidence was produced to dispute the fact that the killing was other than a willful, malicious and premeditated act or that it was justified. Therefore, it is our opinion that the state produced sufficient direct evidence to convince a jury that the killer was guilty of first degree murder.

The remaining element necessary to the State’s case was proof that the appellant was the perpetrator of the killing. Appellant argues that the State offered only circumstantial evidence to support the contention that the appellant shot the murder victim. Therefore, he contends that the conviction was based on mere speculation and must be reversed. We agree with the often stated Alabama rule that a murder conviction cannot be based on surmise, speculation, suspicion, conjecture or probability alone. Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967); Harnage v. State, 49 Ala. App. 563, 274 So.2d 333, rev’d on other grounds, 290 Ala. 142, 274 So.2d 352 (1972).

This rule is used to preserve the presumption of innocence and favors the principle that many guilty must go free to prevent the conviction of one innocent man. Harnage v. State, supra. However, we do not agree with appellant’s contentions that only circumstantial evidence was produced and that circumstantial evidence is always insufficient to support a murder conviction.

The prosecution introduced into evidence the written statement of Joseph Taylor, an eyewitness to the shooting. In the statement, Joseph Taylor related that he saw the appellant shoot the victim at close range with a shotgun. Except for the identity of the party with the weapon, the facts in the statement were corroborated by another witness, who possibly could have identified appellant, but for darkness. It is true that Joseph Taylor told a different story on the witness stand. He said that he and appellant were not at the scene of the crime. This testimony was countered by the testimony of other witnesses that identified both Joseph Taylor and appellant a few hours before the shooting and who saw Joseph Taylor and the victim leave the club just moments before the fatal shot. All of this evidence, including the direct evidence identifying appellant, was presented to the jury for their consideration in determining its weight and the credibility of witnesses who testified. These jury determinations are not to be examined by this court. Tooson v. State, 56 Ala.App. 613, 324 So.2d 327, cert. denied, 295 Ala. 426, 324 So.2d 333 (1975); Cumbo v. State, Ala.Cr.App., 368 So.2d 871, cert. denied, Ala., 368 So.2d 877 (1978).

Moreover, the Alabama rule is that circumstantial evidence by itself is often satisfactory proof of the corpus delicti of a murder, if the totality of the facts presented would allow the jury to “reasonably” infer the crime. In such eases the questions of a defendant’s guilt must be submitted to the jury for their decision. Johnson v. State, 247 Ala. 271, 24 So.2d 17 (1945); Phillips v. State, 248 Ala. 510, 28 So.2d 542 (1946); Hoback v. State, Ala.Cr.App., 338 So.2d 439, cert. denied, Ala., 338 So.2d 444 (1976); Scroggins v. State, Ala.Cr.App., 341 So.2d 967, cert. denied, Ala., 341 So.2d 972 (1977).

The factors to be considered in reviewing a conviction based on circumstantial evidence are well developed in Cumbo v. State, Ala.Cr.App., 368 So.2d 871, 874, cert. denied, Ala., 368 So.2d 877 (1978), where this court stated that the test is:

“not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. . . . Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court. “If all the material circumstances in evidence point to guilt and exclude any reasonable hypothesis except that of guilt a conviction is warranted.” (Citations omitted)

In the case before us, all of the evidence presented was properly before the jury. The jury chose not to believe the appellant’s alibi witnesses but rather to believe the State’s witnesses in conjunction with Joseph Taylor’s written statement. The evidence before the jury was sufficient.

II

Appellant further asserts that the trial court improperly allowed the jury to separate during the course of the trial, thus exposing the jurors to outside influences. This issue was first raised on motion for new trial.

The determination of this issue depends upon whether or not appellant and his counsel consented to the jury separation. If they did consent, it is presumed that the accused was not prejudiced by the separation. Section 12-16-9, Code of Alabama 1975; Wright v. State, 57 Ala.App. 401, 328 So.2d 650 (1976). However, without consent, there is a presumption of prejudice to the accused and the burden is on the prosecution to affirmatively show that each and every juror was free from outside influence. Arnett v. State, 225 Ala. 8, 141 So. 699 (1932); Lynn v. State, 250 Ala. 384, 34 So.2d 602 (1948); King v. State, 266 Ala. 232, 95 So.2d 816 (1957); Beauregard v. State, Ala. Cr.App., 372 So.2d 37, cert. denied, Ala., 372 So.2d 44 (1979).

The record below shows that outside the presence of the jury the trial court properly addressed the question of allowing the jury to separate. The proceedings at Page 14 of the record are as follows:

“THE COURT: Now, as I mentioned to you gentlemen earlier we need to discuss the matter of either keeping the jury together or allowing them to separate during lunch and at recesses and so forth during the trial of this case. I’m sure y’all have had an opportunity to explain that to your client. We’ve got to know now what y’all want to do as it is very close to lunch time. Do you want them kept together for lunch?
“MR. BARNES: Judge, could we have a second, please?
“THE COURT: Yes, sir.
“(Whereupon an off-the-record discussion took place between counsel and client.)
“MR. BARNES: Judge, we don’t have any objection to the jury going to lunch and going home this evening when we conclude court for the day provided that the Court give them proper instructions concerning the discussion of the case. We would like to reserve the bight that if the case is still going tomorrow at lunch that they be kept together since by then we’ll be in full swing in the case.
“THE COURT: All right. Do you understand what your lawyer has just said about the jury separating?
“MR. TAYLOR: Right.
“THE COURT: And is what he said satisfactory with you?.
“MR. TAYLOR: Right.
“THE COURT: All right, sir. I’ll give them an instruction and if at any time y’all are not satisfied with what I instruct them then let me know and I’ll add to it.”

Soon after this exchange with appellant and his counsel outside the presence of the jury, the court gave a lengthy and comprehensive instruction to the jury in which he properly cautioned the jurors against discussing any aspect of this case with anyone and against receiving any information regarding the case from any outside source. Appellant made no objections and had no additions to these instructions. The trial court reminded the jury of these instructions when the court adjourned for the day, and the next day the jury was kept together until a verdict was reached. Thus, there has been no showing of any error committed by the trial court regarding the separation and no evidence of any outside influence upon a juror was offered.

Appellant’s contention is that he did not understand what he was doing when he consented to separation. While we recognize that trial procedures may sometimes be beyond the common knowledge of the average defendant in a criminal case, the record before us shows that this appellant was properly instructed by his counsel and by the trial court as to his rights regarding the separation and that his consent was knowingly and intelligently given. Therefore, in the absence of any showing of outside influence on the jury, it is presumed that there was no prejudice to the appellant. (Cases cited).

Ill

Appellant’s contention that the court erred in allowing witnesses to co-mingle is not supported by the record and is without merit. In addition, appellant fails to point out and we cannot find in the record any evidence of undue influence on the appellant’s witnesses.

We have searched the record and found no error. This case is due to be and is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex Parte: Tommy TAYLOR. (Re: Tommy Taylor v. State of Alabama).
    80-532.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   PER CURIAM.

Writ Quashed as Improvidently Granted — No Opinion.

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


text:
    Kelley TATUM v. STATE.
    7 Div. 792.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    J. Louis Wilkinson, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Kelley Tatum was indicted for assault in the first degree pursuant to § 13A-6-20, Code of Alabama 1975, as amended 1979. The jury found the appellant guilty of assault in the second degree and the trial court set punishment at ten years’ imprisonment. From that conviction, the appellant now appeals.

This appeal grew out of an offense which was committed on July 1, 1980 between the appellant and one Greg Bolling, both employees of Aeseo Steel Company, located in Calhoun County, Alabama.

Because, in our examination of this record, such fails to establish conclusively that the appellant’s right to be heard and tried as a youthful offender under Alabama law was explained prior to trial, we must remand this cause to the circuit court for a hearing pursuant to Morgan v. State, 291 Ala. 764, 287 So.2d 914 (1973); Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975) and Cooks v. State, 55 Ala.App. 537, 317 So.2d 504 (1974).

It is true that the State of Alabama has attempted to supplement the record of the circuit court by filing certain records from a purported hearing before a Calhoun County District Court under ARAP rule 10(f). The appellant’s attorney has filed a motion to strike this record of the district court proceedings since such was never filed with and made a part of the records in circuit court. Thus, the appellant’s motion to strike this supplemental record is due to be granted. American Benefit Life Insurance Company v. Ussery, Ala., 373 So.2d 824 (1979); See also Southern Haulers, Inc. v. Martin, Ala., 382 So.2d 491 (1980); McGee v. State, Ala.Cr.App., 383 So.2d 200, reversed, Ala., 383 So.2d 205 (1980); White v. State, Ala.Cr.App., 378 So.2d 239, cert. denied, Ala., 378 So.2d 247 (1979); Ballou v. State, Ala.Cr.App., 365 So.2d 352 (1978).

It is the general rule that an appellate court will not consider matters not submitted at trial and which are therefore outside the record of the proceedings, cases cited.

We remand this cause to the trial court with directions to conduct a hearing with the appellant and his counsel present to determine whether the appellant, prior to trial, was apprised of his right to be considered as a youthful offender, pursuant to Morgan and Clemmons, supra. Thereafter, the trial court shall make written findings of fact and conclusions of law and enter same, together with a copy of the record of the hearing, and such shall be filed with the Office of the Circuit Clerk. The trial court is further instructed that such hearing be held speedily and that the complete transcript of these proceedings under the seal of the circuit clerk then be transmitted to this court for our review. Authorities herein cited.

REMANDED WITH DIRECTIONS.

All the Judges concur.


text:
    Kelley TATUM v. STATE of Alabama.
    7 Div. 792.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      J. Louis Wilkinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Following the remandment of this cause for a hearing, with counsel present, on the merits of the appellant’s Youthful Offender Petition, the trial court then proceeded in accordance with the mandate of this court, and has sent this court a return to the remand showing full compliance.

I

The record as shown in the return discloses that a hearing was conducted in the district court under the directions of the circuit court requiring an investigation by the probation officer and report to the district court.

The order of the circuit court discloses that the district court did in fact advise Kelley Tatum in open court, prior to trial, of his right to be tried as a youthful offender and Tatum waived this right and did not request youthful offender treatment. The return as filed in this court discloses that Kelley Tatum was fully advised of his rights under the Alabama Youthful Offender Act, and waived same. Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975) and Cooks v. State, 55 Ala.App. 537, 317 So.2d 504 (1974).

II

We will now review the merits of Tatum’s original appeal.

The indictment for first degree assault for which the appellant was tried and convicted grew out of an offense which occurred on July 1, 1980 between the appellant and one Greg Bolling. The record discloses that Tatum and Bolling were both employees of Aesco Steel Company, located in Oxford in Calhoun County, Alabama. The two men fought over the use of a cutting torch and Tatum sustained a cut lip as a result of the fight. After the fight was over, the appellant later went to his automobile and obtained a shotgun and some shells from his car and returned to the plant.

Tatum followed Greg Bolling and one Greg Jennings, another co-worker who had helped separate the two men, and encountered them near the plant foreman’s office. Tatum then loaded the shotgun, pushed open the office door and shot Bolling, wounding him in the head. Tatum then left the plant, got into his automobile and drove away. About eight o’clock that evening appellant, Tatum, accompanied by his attorney, surrendered himself to the Oxford police.

The appellant, through his own witnesses, sought to contradict the testimony of the victim, Greg Bolling, and other state witnesses. The trial court overruled the appellant’s motion to exclude the state’s evidence in this cause. The state did properly present a prima facie case against the appellant. Section 13A-6-20 and Section 13A-6-21, Code of Alabama, 1975 as amended. Baldwin v. State, 342 So.2d 940 (Ala.Cr.App.1977) and Smith v. State, 344 So.2d 213 (Ala.Cr.App.1977) and authorities therein cited. The ten year sentence of the appellant was proper.

This judgment is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Kelley TATUM. (Re: Kelley Tatum v. State of Alabama).
    80-819.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


author: DeCARLO, Judge.

text:
    Glen GAMBREL v. STATE.
    1 Div. 181.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Glen Gambrel was charged with an unlawful sale of Phencyclidine to Ubirajara Cavalin. After a jury trial, the appellant was convicted and sentenced to two years with ninety days to be served in the county jail and the remaining twenty-one months to be suspended and served on probation. In addition, the appellant was fined one thousand dollars.

The State’s evidence showed that Ubira-jara Cavalin was employed as an undercover officer with the ABC Narcotics Department. On February 3, 1979, he went to the appellant’s house in Mobile. Cavalin was accompanied by two persons, a male on his right in the front seat, and a female in the back seat. On their arrival at the appellant’s house, the male passenger left the car, went to the appellant’s house, and knocked on the door. He went in and stayed for about fifteen minutes, then came out and stood on the front lawn about ten to fifteen feet away from the car where Cavalin was seated with the female passenger. Approximately fifteen minutes passed before another car drove up and parked in front of Cavalin’s car. At that time the appellant went over to the car and talked to the driver and sole occupant of the car, a male whom Cavalin identified as Fred Myers.

According to Cavalin, the only person who went over to Myers’ car was the appellant. The male passenger who had been in Cavalin’s car remained on the front lawn about ten to fifteen feet away from the car. The appellant remained at Myers’ car for about five minutes, then walked over and talked to the male standing on the front lawn, and then turned and walked toward Cavalin’s car. When the appellant arrived, Cavalin asked the female passenger seated in the back of the car to leave. Then Cavalin asked the appellant if he had “PCP” and the appellant handed Cavalin a small plastic bag containing “white-yellowish powder.” Cavalin then handed the appellant ninety-five dollars. The appellant left the car and went to talk to the male standing on the front lawn. The female passenger returned to Cavalin’s ear, then the male passenger returned, and Cavalin drove away. The State’s evidence showed that the plastic bag contained 58 grams of Phencyclidine.

At the end of the State’s case, the appellant reiterated his earlier motion to disclose the identity of the allegedly material witnesses, the two passengers in Cavalin’s car. The appellant also moved to exclude the State’s evidence based on the ground that the State failed to show that he had knowledge of, or possession and control over the prohibited substance. He also maintained that the motion to exclude should be granted because of the State’s failure to disclose the identity of the material witnesses. The motion was denied and the appellant took the stand in his own behalf. He denied both touching or accepting any of the money, and taking or handling any of the drugs. He also said Officer Cavalin lied when he said the appellant had given him drugs in return for ninety-five dollars.

I

The sole issue raised by the appellant is the court’s refusal to order the State to disclose the identity of the allegedly material witnesses.

In support of his contention appellant has cited Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Gonzales, 606 F.2d 70 (5th Cir. 1979); McElroy v. State, Ala.Cr.App., 360 So.2d 1060, cert. den., Ala., 360 So.2d 1067 (1978); Kenny v. State, 51 Ala.App. 35, 282 So.2d 387 (1973).

In each of the cases appellant has cited the informer was either (1) an active participant in the actual transfer of the drugs or money, Roviaro, supra; McElroy, supra; or (2) a physically present eyewitness to the actual transfer, Kenny, supra; or (3) the only witness, other than the defendant, who could possibly controvert the State’s witnesses or support the defendant’s asserted defense, Gonzales, supra.

In order to decide whether disclosure should have been made this court must apply the test enunciated in Roviaro v. United States, supra; we must balance the public interest in protecting the flow of information against the accused’s right to prepare his defense. 353 U.S. at 62, 77 S.Ct. at 629.

The Fifth Circuit Court of Appeals in United States v. Gonzales, supra, observed that “two factors are of primary importance in striking that balance. First is the degree of participation exercised by the informant. .. . [S]econd ... is the directness of the relationship between the defendant’s asserted defense and the probable testimony of the informant.” 606 F.2d at 75.

Applying these factors to the present case, we find, first, that the informants were not active participants, nor were they physically present eyewitnesses to the actual transfer of the money or the drugs. The State’s evidence indicated that neither informer was in a position to see what actually transpired between Cavalin and the appellant. Even though they were present at the time of the sale, they were not eyewitnesses or participants in the actual criminal activity. Although they may have assisted in setting up the actual sale, they did not play a prominent part in it. United States v. Alonzo, 571 F.2d 1384 (5th Cir.) cert. den., 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978). McDaniel v. State, Ala. Cr.App., 389 So.2d 524.

Applying the second factor outlined above, we note that appellant’s defense, unlike the asserted defense of entrapment in Gonzales, supra, was that he had no knowledge of the occurrence, and no possession or control over the substance. Briefly stated, the appellant’s defense was that he did not do it. Under these facts, the relationship between the appellant’s defense and the probable testimony of the informants is mere conjecture. Taking the evidence in the light most favorable to the prosecution, as we are bound to do under the law in Alabama, Kent v. State, Ala.Cr. App., 367 So.2d 508, cert. den., Ala., 367 So.2d 518 (1978), the informers were not in a position to observe the actual transfer of the drugs and it is pure supposition that their testimony would have shed light upon the issue of appellant’s possession and control over the drugs.

Mere supposition or conjecture about the possible relevancy of the informant’s testimony is insufficient to warrant disclosure. United States v. Hare, 589 F.2d 242 (5th Cir. 1979).

In addition, the record demonstrates that the informants were not the sole witnesses who possibly might have controverted the State’s evidence or aided in appellant’s defense. The man identified as Fred Myers was also present at the time.

We believe it is also well to note that the appellant testified he had met one of the alleged “material witnesses” named “Keith” at a friend’s house, and prior to this criminal occurrence appellant had spoken with “Keith” on the telephone on several occasions.

The appellant also called the other informant by name, “Amanda,” and said that she was one of his girl friend’s best friends. These facts indicate to us that the appellant had substantial knowledge of the identity of those persons whom he asked the circuit court to disclose. See McElroy, supra at 1065.

In the present case, we do not believe that the balance can be struck in favor of disclosing the identity of the “material witnesses.” The evidence indicated that the “material witnesses” did not play a significant or prominent role in the criminal activity, and by no stretch of the imagination can it be said that they were the sole participants besides the appellant in the particular criminal occurrence. Roviaro, supra. Therefore, the order of the circuit court in denying the disclosure was proper under the circumstances, and the judgment of conviction by the Mobile Circuit Court is hereby affirmed.

AFFIRMED.

All Judges concur.


author: JONES, Justice.

text:
    Ex Parte Glen GAMBRELL. (Re Glen Gambrell v. State of Alabama).
    80-818.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: BOOKOUT, Judge.

text:
    Tommy Lee CARTER, alias v. STATE.
    3 Div. 262.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      Bob E. Allen, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Nancy E. Perry, Asst. Atty. Gen., for appel-lee.
   BOOKOUT, Judge.

Rape; sentence: thirty years’ imprisonment.

During the early morning hours of July 27, 1979, the prosecutrix was awakened in her Montgomery apartment by a man on top of her. He covered her mouth with his hand and called her by name saying that she would not be harmed if she did not scream. The attacker tore away the prose-cutrix’s nightgown and raped her. After-wards he exited the apartment through a broken window in an adjacent room. The prosecutrix followed her attacker to the window and saw that he was a white man and completely nude. However, she could not identify him. She immediately called the Montgomery Police Department. Shortly thereafter the appellant was found asleep in the nude in an adjacent apartment and was arrested.

I

Appellant asserts that the search of his apartment was illegal and the evidence discovered therefrom should have been suppressed.

At a hearing on the appellant’s motion to suppress, the search warrant and a supporting affidavit of Montgomery Police Detective J. T. Hankins were admitted into evidence without objection. In the affidavit Detective Hankins stated that he found the apartment next door to the prosecutrix’s apartment open and a pair of “vice-type” pliers lying outside in front of a door. Suspecting that that apartment had also been burglarized, Hankins knocked on the door. Receiving no response, he entered the apartment and found the appellant sleeping in the nude. A screwdriver was' seen in plain view as Hankins awakened the appellant, who appeared to be in a “semi-intoxicated state.” Detective Hankins ran an identification check on the appellant and found that he was wanted in Florida for escape from prison.

In addition to the above, Detective Han-kins testified that a key was found in the back door of the apartment wherein the appellant was found. He also found the pliers lying on the porch outside the back door. The back door and pliers were in close proximity to the point of entry of the prosecutrix’s apartment. Hankins had viewed the point of entry, a window, prior to entering the appellant’s apartment. He stated that the window had markings on it indicating that some instrument had been used to open it. The screwdriver seen by Hankins was on top of a dresser in the appellant’s bedroom and appeared to be “bent somewhat.” Detective Hankins testified that he knocked several times before entering the apartment. Upon entering he had to awaken the appellant from a sound sleep. He learned the appellant’s identity when, after asking for identification, the appellant handed him his wallet which contained both his driver’s license and birth certificate. Detective Hankins testified that upon his entry to the apartment he did not search it, but rather merely walked through it.

Montgomery District Judge Mark Kennedy testified that he issued the instant search warrant. Judge Kennedy testified that there were certain facts not contained in Detective Hankins’s affidavit that he testified to prior to the issuance of the search warrant. He stated that he was told that the attacker had called the prosecutrix by her name during the course of the attack.

The appellant testified that around 8:00 a. m. on July 27, 1979, he was awakened by about six police officers who identified themselves and asked if he had heard anything during the night, to which he negatively replied. The appellant stated that he had been drinking heavily the night before and was “hungover.” He denied handing them his wallet and did not consent to the search of the apartment.

For a search warrant to be sufficient and satisfy the constitutional requirement of probable cause, the affidavit upon which it is based must state specific facts or circumstances which support a finding of probable cause. Otherwise, the affidavit is faulty and the warrant may not issue. Alford v. State, 381 So.2d 203 (Ala.Cr.App. 1979), cert. denied, 381 So.2d 206 (Ala.1980).

Probable cause deals with probabilities, not legal technicalities. It is grounded upon those practical, factual considerations of everyday life upon which reasonable and prudent men act. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed.2d 1879 (1948). Thus, probability and not proof necessary to convict for criminal activities is the standard for determining probable cause. Yielding v. State, 371 So.2d 951 (Ala.Cr.App.), cert. denied, 371 So.2d 962 (Ala.1979).

The failure of the magistrate, or as in the instant case the district judge, to reduce to writing oral evidence given by the affiant prior to the issuance of a search warrant will not vitiate an otherwise valid search warrant. Oliver v. State, 46 Ala.App. 118, 238 So.2d 916 (1970). See also Mitchum v. State, 384 So.2d 1193 (Ala.Cr. App.), cert. denied, 384 So.2d 1205 (Ala. 1980).

Property which is not particularly described in a search warrant may nevertheless be seized if (1) it is reasonably related to the offense in question, (2) the searching officer at the time of the search has a reasonable basis for connecting the property to the crime, and (3) the property is discovered in the course of a good faith search conducted within the authorized perimeter of the search warrant. Satterwhite v. State, 364 So.2d 345 (Ala.Cr.App.1977).

Detective Hankins was not illegally in the appellant’s apartment when he saw the bent screwdriver and made his other observations critical in forming probable cause to obtain the search warrant. He was not a trespasser and did not initially enter the apartment intending to arrest the appellant or conduct a search. He entered on probable cause that the appellant’s apartment had been burglarized. Hankins had ample reason to so believe and to investigate based on the following circumstances:

(1) The apartment was immediately next door to the apartment where a known burglary and rape had just occurred;

(2) He observed vice-type pliers lying in front of the door to the apartment;

(3) He found a key in the door;

(4) He found the door unlocked;

(5) On knocking several times, no one replied; and

(6) On announcing his presence, no one replied.

Any police officer faced with these circumstances would have investigated to be certain there was no injured, disabled, or dying victim in the apartment or to determine if a vacant apartment had been burglarized. We cannot say therefore that Detective Hankins was illegally in the apartment when he saw the screwdriver and observed the nude appellant asleep.

After a careful examination of Detective Hankins’s affidavit and the testimony offered at the suppression hearing, we are convinced that sufficient probable cause existed for the issuance of the search warrant of the appellant’s apartment. Consequently, the trial court properly denied the appellant’s motion to suppress the evidence seized.

II

Appellant contends that the State failed to prove a prima facie case of rape. The State’s case is based primarily on circumstantial evidence.

In addition to the previously recited testimony, the prosecutrix stated that on July 27, 1979, both her front and back doors were locked. She thought that her windows were locked as they had been sealed prior to her husband’s death. The prosecu-trix stated that a person could not run to the left as he exited from the broken window because of the underbrush and a fence. She stated that her attacker ran to the right after exiting her apartment. The prosecutrix testified that she attempted to resist her attacker but failed and that he penetrated her private parts with his private parts. She was transported to a local hospital for treatment where a pelvic examination was performed and vaginal smears and washes were taken. The examination was witnessed by Montgomery Police Investigator Beverly Rambo who delivered the specimens to the evidence technician handling the case.

Detective J. T. Hankins testified that he arrived on the scene around 6:30 a. m. and viewed the point of entry. He stated that if a person exited the window and ran to the right, it would lead directly to the back door of the apartment wherein the appellant was found. Hankins repeated his earlier testimony given at the appellant’s suppression hearing concerning his entry into the appellant’s apartment. He added that initially the appellant gave his name as “Tony Conner.” The back door key was admitted into evidence as well as the screwdriver found on the dresser in the appellant’s bedroom. Investigator Hankins stated that the key also unlocked the back door of the prosecutrix’s apartment. He witnessed the taking of blood and saliva samples from the appellant at the jail and blood, saliva, and hair samples from the prosecutrix. He transported them to the state toxicologist.

Montgomery Police Detective W. T. Sheriff testified that he was called to assist in the investigation of the July 27 rape. He inspected the point of entry and removed several mechanical parts which operated the window. He delivered them to the evidence technician. He stated that the damage to the window parts was made from the inside of the apartment.

Tool and firearms examiner Lonnie Hardin testified that he examined the marks on the damaged window parts and the screwdriver recovered from the appellant’s dresser. He opined that the marks on the window parts were made by the screwdriver.

Alabama Corrections Investigator Thomas Totty testified that on July 27, 1979, he was senior evidence technician of the Montgomery Police Department and was in charge of the evidence discovered in the instant case. He lifted several latent fingerprints from the broken window and compared them with those of the appellant. Investigator Totty found that several latent fingerprints were made by the appellant. He stated that the latent fingerprints found on the inside of the window were in such a position that, in his opinion, entry into the apartment was made from the outside.

Forensic Serologist William Landrum analyzed the several biological specimens of the prosecutrix and the appellant. He found that the blood types of each were the same, but that the appellant was a secretor while the prosecutrix was not. Examination of the vaginal smears and washes of the prosecutrix indicated that a person matching the same secretion characteristics as the appellant had had intercourse with her.

In Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (1979), we stated:

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. . . . ” (Citations omitted.)

After a careful review of the State’s evidence, we find that it sufficiently established a prima facie case of rape. Further, it is sufficient for the jury to have reasonably inferred the appellant’s guilt. Thus, the trial court properly overruled appellant’s motions to exclude and for a new trial on this ground as well as denying his request for the affirmative charge. Smelcher v. State, 385 So.2d 653 (Ala.Cr. App.1980); Collins v. State, 364 So.2d 368 (Ala.Cr.App.), cert. denied, 364 So.2d 374 (Ala.1978); § 13-1-131, Code of Ala. 1975.

Ill

Appellant’s last contention concerns the trial court’s denial of his motion for a mistrial when the State asked appellant on cross-examination whether he had been convicted of the offense of possession of marijuana. We quote from the record:

“Q. All right. Now, also back in 1973, were you convicted of possession of marijuana?
“A. What amount are you talking about? Are you talking about a felony?
“Q. No, I’m just asking you if you were guilty of possession of marijuana?
“MR. ALLEN: Your Honor, we object.
“THE COURT: Okay. Wait. Don’t answer that. You all, approach the bench.
“THE COURT: Objection sustained.
“MR. ALLEN: Your Honor, we move that it be stricken from the record, even the question.
“THE COURT: Ladies and gentlemen of the jury, the question Mr. Wakefield just asked is to be stricken from the record. You are to strike it from your minds. You are not to consider it. It’s not to play any part when you weigh the evidence when you reach your verdict.
“MR. ALLEN: Your Honor, it’s so serious and so prejudicial I move for a mistrial.
“THE COURT: Motion denied.
“MR. ALLEN: Thank you, Your Honor.
“Q. Okay. Now, back in, you say you believe your first time — (interrupting)
“THE COURT: Wait one minute before we go any further. I want something for the record. I am going to ask each and every juror if you think Mr. Wakefield’s question would in any way bias your verdict in this case. I want each one of you to stand up and tell me whether it would or not.
“(AT THIS TIME, ALL TWELVE JURORS STOOD AND ANSWERED THE COURT’S QUESTION IN A NEGATIVE RESPONSE THAT IT WOULD NOT INFLUENCE THEIR VERDICT IN ANY WAY. WHEREUPON, THE TRIAL CONTINUED AS FOLLOWS, TO WIT:)”

Initially we note that no answer was given to the above question, thus the question was harmless. Kennedy v. State, 373 So.2d 1274 (Ala.Cr.App.1979); Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978); Calhoun v. State, 343 So.2d 1 (Ala.Cr.App.1977).

Furthermore, the trial court sustained the appellant’s objection, promptly instructed the jury that the question be stricken from its consideration, and polled the jury as to any prejudicial effect and found none. The trial judge was commendable in his swift action, and we find that his action eradicated any prejudice to the appellant. Thus, no error or abuse of discretion was committed in denying the appellant’s motion for a mistrial. Perry v. State, 371 So.2d 969 (Ala.Cr.App.), cert. denied, 371 So.2d 971 (Ala.1979); Donahoo v. State, 371 So.2d 68 (Ala.Cr.App.), cert. denied, 371 So.2d 74 (Ala.1979); Long v. State, 370 So.2d 354 (Ala.Cr.App.1979).

AFFIRMED.

All the Judges concur.


text:
    Ex Parte Tommy Lee CARTER. (Re: Tommy Lee Carter v. State of Alabama).
    80-866.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   JONES, Justice.

Writ Denied — No Opinion.

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


text:
    Paul Alexander FRANKLIN v. STATE of Alabama.
    3 Div. 355.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.
    C. Collier Carlton, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Paul Alexander Franklin was indicted on October 14, 1980, for attempted rape. The jury found him “guilty as charged” and the trial court sentenced him to 20 years’ imprisonment.

The prosecutrix testified that on April 30, 1980, she left her school, Cloverdale Jr. High School, around 2:30 p. m. and walked to her home. She arrived there, at_ Ponce de Leon Avenue, approximately five minutes later and entered through a living room window as she often did when she forgot her house key. As she walked into the bathroom of her home, someone broke an empty wine bottle and a “piggy bank” over her head and then pulled a pillow case down over her head and shoulders. This cut her and caused considerable bleeding. This assailant eventually led the prosecutrix to her parents’ bedroom where he made her lie down on the bed. He tied her wrists to the bedposts, removed the pillow case and blindfolded her with some of her father’s ties. It was during these events that the prosecutrix “got a glimpse” of her assailant and confirmed the fact that he was a white male.

After covering her face, the man pulled her clothes off, unzipped his pants, and tried to rape her. The fourteen year old prosecutrix did not know whether or not penetration occurred but positively felt the man try to penetrate “a couple of times.” After his unsuccessful attempts, the man left the house.

The prosecutrix was unable to identify the appellant as the man who had attempted to rape her. She could only testify that her assailant was a white male.

The appellant was definitely in the vicinity of the prosecutrix’s home between 2:15 and 2:30 p. m. He had solicited yard work from a neighbor of the prosecutrix just around the corner on Cloverdale Road. Appellant admitted that he had been in that neighborhood but stated that he had left before the attempted rape occurred.

The appellant’s father corroborated the appellant’s testimony, asserting that he picked up appellant on Magnolia Curve (several blocks from the prosecutrix’s house) at 2:35 or 2:36 p. m. to take the appellant to Air Base Boulevard where he had a 3:00 p. m. appointment with Mr. Steve Wooten. Mr. Wooten testified that appellant was in his office for about ten minutes shortly after 3:00 p. m.

Montgomery police officers arrested the appellant when, after the prosecutrix’s neighbor gave the police the address that appellant had left with her, they went to appellant’s home, took him to the police station for questioning, and found a spot of blood on his blue jeans and two crisp two-dollar bills in his pocket. The blood on his jeans matched the blood type of the prose-cutrix who had lost a considerable amount of blood from the cut on her head received during the rape attempt. The two dollar bills matched the description of two two-dollar bills taken from the prosecutrix’s residence, allegedly, at the time of the attempted rape.

The appellant stated that he won the two-dollar bills shooting pool a few weeks before this incident and that the blood stain on his jeans was an old stain.

Montgomery Police Investigator, Steve Eiland, the arresting officer, testified that the blood stain on appellant’s jeans (on the right knee) “appeared to be a recent drop of blood.”

The jury found the appellant “guilty as charged.” They were apparently convinced that the circumstantial evidence, as presented, was sufficient.

I

Appellant contends that the evidence was not sufficient to sustain an “attempted rape” verdict against him.

It is true that the evidence against the appellant is largely circumstantial. Such facts as: that he was in the vicinity of the crime at the time when it was committed; that he had in his possession, shortly after the crime, two-dollar bills matching the description of those taken from the prosecu-trix’s residence; and that he had at the time of his arrest, on his blue jeans, a spot of “fresh” blood of the same blood type as the prosecutrix’s were countered by the appellant’s evidence that he was with his father when the incident occurred, that he won the money in a pool game, and that the blood stain on his jeans was an old one of the same blood type as at least “6,000 people in Montgomery.”

It is not this court’s obligation to weigh this conflicting evidence. Rather, this is within the province of the jury to make such determinations from the evidence based on the credibility of the witnesses and the strength of the physical evidence as presented.

The test for the legal sufficiency of evidence was recently outlined by Judge Bowen in Cumbo v. State, 368 So.2d 871 (Ala.Cr. App.1978), cert. denied, 368 So.2d 877 (Ala. 1979).

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.” (Citations omitted.)
“Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of defendant’s guilt is a question for the jury and not the court.” (Citations omitted.)

By the authority of this decision and cases cited therein, we hold that sufficient facts were presented from which the jury could “reasonably find that the evidence excluded every reasonable hypothesis except that of guilt.” Cumbo, supra. Since the evidence was legally sufficient the jury’s determination of guilt will not be disturbed. Van Pelt v. State, 356 So.2d 703 (Ala.Cr.App.), cert. denied, 356 So.2d 707 (Ala.1978); Harris v. State, 358 So.2d 482 (Ala.Cr.App.), cert. denied, 358 So.2d 487 (Ala.1978).

II

The appellant also asserts that the trial court erred in allowing a police officer to testify that the blood stain on appellant’s blue jeans was “fresh”. Appellant’s objection at trial that this testimony violated the “opinion evidence rule” was overruled.

Appellant cites Clemmons v. State, 167 Ala. 20, 52 So. 467 (1910), in support of this argument. Clemmons, supra, is not controlling in the instant case because there a lay witness was allowed to testify about blood coagulation, a subject properly reserved for an expert. Here, however, the witness, a police officer, merely gave his opinion as to the “freshness” of a blood stain, a matter of common knowledge, which stain he personally viewed.

Moreover, the appellant introduced counter balancing testimony that the blood stain was an old one. This conflicting evidence was left to the jury for their resolution.

Ill

Appellant further contends that it was error for the trial court to allow the prosecution on cross-examination to question the appellant, a seventeen year old juvenile, regarding a pre-trial statement which was inconsistent with his present testimony.

Specifically, appellant’s testimony on direct examination was as follows: (R. 140)

“Q. Was that blood spot on these jeans prior to April 30th?
“A. Yes, sir.
“Q. Do you know how that blood got on your pants?
“A. No.”

On cross-examination after appellant’s objection to the question had been overruled by the trial court, appellant answered as follows: (R. 153)

“Q. I will ask you, Mr. Franklin, if when Investigator Eiland talked with you down at the Police Department, you did not say to him that the reason blood was on your pants was because you cut yourself?
“A. Yes, sir, I did.
“Q. And here today you’ve testified to something different. You said you didn’t know why the blood was on your pants.”

After this exchange, appellant continued and gave an explanation for the apparent inconsistency in his two statements. This was done in the presence of the jury.

Appellant correctly asserts that as a general rule a juvenile’s statement, unadvised by counsel, is inadmissible in a criminal prosecution. Section 12-15-67, Code of Alabama 1975; Winstead v. State, 371 So.2d 418 (Ala.1979); Watts v. State, 361 So.2d 1200 (Ala.Cr.App.1978). However, as indicated above, the appellant’s pre-trial statement was introduced here for impeachment purposes only and thus fits the exception to the general rule expressed in Medlar v. State, 384 So.2d 1152 (Ala.Cr.App.), cert. denied, 384 So.2d 1158 (Ala.1980).

Appellant urges us to distinguish this case from Medlar, supra, because there the trial court “went thoroughly into the question of the voluntariness of appellant’s statement.” We do not find this to be a distinguishing factor. Though the “volun-tariness” of the statement may have been an issue in Medlar, supra, it was clearly not one in the instant case. There is nothing in the record to indicate that the Miranda rights were in any way violated as to this appellant. In fact the appellant here quickly admitted making the pre-trial statement and was allowed by the prosecution on cross-examination to give testimony which, if believed by the jury, would have explained away the apparent discrepancy between his prior statement and his present testimony.

IV

Appellant’s final contention is that the trial court erred in refusing all of appellant’s requested jury charges. He especially challenges the refusal of charges 14, 17 and 18.

We have reviewed all of these requested charges and have found that the pertinent and correct legal principles expressed by these charges were “substantially and fairly” covered by the trial court’s oral charge and its instructions to the jury prior to closing arguments.

Appellant’s requested charges 17 and 18 (at R. 179) dealt with the jury’s treatment of circumstantial evidence and the sufficiency of such evidence required for a conviction. These same charges were refused in two recent cases; Roy v. State, 375 So.2d 1289 (Ala.Cr.App.1979) and Mains v. State, 375 So.2d 1299 (Ala.Cr.App.1979). In Roy, supra, we reversed the conviction because the refused charges were not covered by the trial court’s oral charge, while in Mains, supra, we affirmed because they were “substantially and fairly” covered. The part of the oral charge dealing with circumstantial evidence (R. 163-164) given by the trial court here goes beyond the inadequate charge in Roy, supra, and is very similar to the oral charge given in the Mains case. In keeping with Mains, supra, we hold that the refusal to give appellant’s charges was within the discretion of the trial court and was not prejudicial error. Section 12-16-13, Code of Alabama 1975.

For the reasons stated this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex Parte Paul Alexander FRANKLIN. (Re: Paul Alexander Franklin v. State of Alabama).
    80-790.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   JONES, Justice.

Writ Denied — No Opinion.

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


author: BOWEN, Judge.

text:
    Gregory Dewayne WOODSON v. STATE.
    5 Div. 549.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.
    J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for rape. Sentence was forty years’ imprisonment. Two issues are presented on appeal.

I

It is argued that the admission into evidence of the defendant’s fingerprint record from the Opelika Police Department constituted error because (1) it indicated that he had a criminal record and (2) it violated his constitutional rights because the record was made when the defendant was a juvenile.

Fingerprints found at the scene of the crime were matched to those of the defendant through the use of a fingerprint record or card on file in the Opelika Police Department. This card was made in 1974 when the defendant was thirteen years old.

A

Before admitting the fingerprint card into evidence, the trial judge ordered that tape be placed over that portion of the card which indicated that charges were placed against the defendant in 1974. We have carefully examined the card itself and find that it does not indicate that it has any connection with any criminal charge against the defendant other than the fact that it is a fingerprint record made by a police department. The portions of the card that would indicate a prior arrest and disposition have been carefully covered with “State’s Exhibit” identification stickers in such a manner that it is not obvious that the stickers are concealing information.

During the trial, the prosecution never attempted to show or imply that the defendant had a criminal record. On direct examination, the defendant stated that he had no prior felony convictions. On cross examination the defendant again testified to this same fact. In laying the predicate for the admission of the fingerprint card the State had the police officer who took the defendant’s fingerprints in 1974 testify that he did so. None of the circumstances as to why the prints were taken was disclosed. Compare Ralls v. Manson, 375 F.Supp. 1271 (D.Conn.), reversed on other grounds, 503 F.2d 491 (2 Cir. 1974).

In Brown v. State, 369 So.2d 881 (Ala.Cr. App.1979), this Court held that reversible error occurred when the trial court admitted in evidence a fingerprint card which bore information which would permit the jury to infer that the defendant had committed prior offenses. That extraneous and prejudicial information which fostered such inference was the date of arrest, the list of five aliases and an F.B.I. number. Other “references to previous offenses” were deleted.

“We cannot ignore the possible prejudicial effect on the jury in this case from the admission of ... (the fingerprint card). The extraneous information contained on the exhibit reasonably implied the existence of a prior criminal record of the appellant.”
# * sfe * * sjs
“The mere existence of recorded fingerprints does not per se imply the existence of a criminal record. The error in this case was committed by showing the jury the additional extraneous and highly prejudicial information contained on the photostatic copy of the appellant’s master card.”
* * * * * *
“The admission of the master card with the prejudicial matter on it subtly suggested guilt of other offenses. Thus, error is shown.” Brown, 369 So.2d at 884.

The general rule, in accordance with what we have stated above, is that the admission of a defendant’s fingerprint identification card is not impermissibly prejudicial to the defendant where the card was altered prior to its introduction so that it did not disclose the defendant’s criminal record. See Annot. 28 A.L.R.2d 1115 at Section 12 (1953). No prejudicial error has been found where the card does not indicate any prior criminal record or where such has been deleted or obliterated. United States v. Mancini, 396 F.Supp. 75 (E.D.Pa.1975); State v. Ralls, 167 Conn. 408, 356 A.2d 147 (1974); Bradshaw v. State, 132 Ga.App. 363, 208 S.E.2d 173 (1974); Edmonds v. State, 5 Md.App. 132, 245 A.2d 618 (1968); State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (1973); Lester v. State, 416 P.2d 52 (Okl.Cr. 1966); Burton v. State, 471 S.W.2d 817 (Tex.Cr.App.1971).

The date (even if it is before the offense involved in the trial) and the place of taking (the police department) need not be eliminated from the fingerprint record before the card is introduced into evidence. Parrish v. State, 366 So.2d 530 (Fla.App. 1979).

Each case of alleged error in the admission of a fingerprint record taken pursuant to another criminal offense and prior to the charge for which the accused is presently on trial must be judged upon its own merits. After carefully scrutinizing the fingerprint card in this case we do not find it as objectionable as the card introduced in Brown, supra. The card itself does not imply the existence of a past criminal record apart from the very fact that it is a fingerprint card taken at the Opelika Police Department. Under these very limited circumstances, we find no error in the admission of the fingerprint card.

B

Alabama Code 1975, Section 12—15— 102(a), governing the fingerprinting of a child and the disposition of those fingerprint records became effective on October 10, 1975, and thus did not operate to prevent the defendant from being fingerprinted in 1974—one year before the act became law. No prior act of this State governed this subject.

Neither In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), nor any other case of which we have knowledge, and we have been cited none so holding, states that a juvenile or a child has a constitutional right not to be fingerprinted. We find no authority or basis for such a holding and find that the admission of the fingerprint card was not error.

II

We have no difficulty in upholding the trial court’s decision on the voluntariness and admissibility of the in-custody statement given by the defendant to an investigating officer. The only conflict in the evidence concerning the voluntariness of the statement concerns the defendant’s exercise of his right to counsel. The State’s evidence was clear that, after having been warned of and after having waived his constitutional rights, the defendant stated that he wanted to make a statement but wanted a lawyer appointed “later on”. The defendant testified that he made the statement because the officer told him that as soon as he did so he would get a lawyer.

Even where there is credible testimony to the contrary, if the evidence as to the voluntariness of a confession is fairly capable of supporting an inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge that the confession was voluntary need only be supported by substantial evidence and not to a moral certainty. Thompson v. State, 347 So.2d 1371 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 347 So.2d 1377 (Ala.Cr. App.1977).

We have searched the record and found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Gregory Dewayne WOODSON. (Re: Gregory Dewayne Woodson v. State of Alabama).
    80-786.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   BEATTY, Justice.

WRIT DENIED—NO OPINION.

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


author: PER CURIAM. McDONALD, Justice,

text:
    STATE of Florida, Petitioner, v. Stephen W. PURWIN, Respondent.
    No. 59556.
    Supreme Court of Florida.
    Oct. 8, 1981.
    Jim Smith, Atty. Gen. and Barbara Ann Butler and Gregory C. Smith, Asst. Attys. Gen., Daytona Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Tat jana Ostapoff, Asst. Public Defender, West Palm Beach, for respondent.
   PER CURIAM.

We have for review the decision of the District Court, Fifth District, in Purwin v. State, reported at 385 So.2d 165 (Fla. 5th DCA 1980). The district court reversed the trial court’s imposition of sentence upon the ground that it should have ordered and considered a presentenee investigation report before sentencing Purwin to three consecutive life sentences for three convictions of murder in the first degree. We find that this decision expressly and directly conflicts with our decisions in Thompson v. State, 389 So.2d 197 (Fla. 1980); Jackson v. State, 366 So.2d 752 (Fla. 1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Hargrave v. State, 366 So.2d 1 (1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); and Thompson v. State, 328 So.2d 1 (Fla. 1976).

We adhere to our previous decisions and find that the trial court was not required by Florida Rule of Criminal Procedure 3.710 to order a presentenee investigation report. We hold that where there are multiple capital felony convictions, the trial court may, but is not required to, order a presentence investigation report before sentencing a defendant. This is true even in those eases where the death penalty is not available as a sentence alternative and where the defendant is a first felony offender. The decision of the district court is therefore quashed in part, and this cause is remanded with directions to reinstate the sentences imposed by the trial court.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.

McDONALD, Justice,

dissenting:

I would recede from Thompson v. State, 328 So.2d 1 (Fla. 1976).


author: ADKINS, Acting Chief Justice.

text:
    STATE of Florida, Appellant, v. Edward C. NEWMAN, Appellee.
    No. 57919.
    Supreme Court of Florida.
    Nov. 5, 1981.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellant.
    Melvyn Kessler, Miami, for appellee.
   ADKINS, Acting Chief Justice.

Defendant below, Edward C. Newman, (hereinafter defendant), was charged by information with the possession of cocaine in violation of section 893.135, Florida Statutes (1979). The trial court, upon motion by defendant, dismissed the information, ruling that section 893.135 is unconstitutional. Plaintiff, the state of Florida, now appeals the trial court’s ruling. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

We begin by finding that there is no merit to the state’s argument that defendant’s attack upon section 893.135 is premature and/or inappropriate. In State v. Benitez, 395 So.2d 514 (Fla.1981), the state argued that one charged with trafficking in cocaine in violation of section 893.135 had no standing to challenge the “penalty-oriented statute” until that person was convicted thereunder. The state reasoned that until the person charged was convicted, he did not have the personal stake in the outcome of the controversy which is necessary to confer standing. We disagreed, observing:

To state the assertion is to demonstrate its absurdity. A party subject to criminal prosecution clearly has a sufficient personal stake in the penalty which the offense carries. This is wholly unlike cases in which criminal defendants have challenged portions of a statute which have nothing to do with their prosecution.

Id. at 517.

The state explains that the issue which it raises in this cause, however, is “not one of standing per se, but rather relates directly to the standing doctrine of ripeness.” It argues that because defendant has not been tried or convicted, his attack upon section 893.135 is premature and/or inappropriate. We do not think that the new light in which the state attempts to cast the issue makes any difference. Once defendant was charged under the statute, the matter became one ripe for adjudication. Defendant’s attack on section 893.135 is not predicated upon unknown facts and hypothetical examples, the state’s assertions to the contrary notwithstanding. Rather, defendant has himself been charged with violation of the statute and could, as a result, be imprisoned. He, if anyone, has a personal stake in the outcome of the dispute over the statute’s constitutionality, and the matter is certainly ripe for consideration and adjudication.

Our opinion in State v. Benitez also resolves two other issues presented by this appeal. In Benitez, we held that the words “substantial assistance”, as used in the statute, are not impermissibly vague and do not violate the due process clause of the constitution. We also held that subsection 893.-135(3), Florida Statutes, providing for mandatory minimum sentences without parole, does not violate constitutional principles of separation of governmental powers.

Any questions regarding the use of the word “may” in subsection 893.135(3), i. e., whether it is unconstitutionally vague, were laid to rest by our recent decision in State v. Werner, 402 So.2d 386 (Fla.1981), in which we held that such concerns “do not provide a constitutional basis to invalidate the enactment.” Id. at 387.

Finally, we consider the question of whether the provision of subsection 893.-135(3) allowing, in certain cases, in camera review of a motion to reduce or suspend the sentence of one convicted under section 893.135 abridges the freedom of speech and of the press assured under the constitutions of the United States and Florida. In its order in this cause, the circuit court opined that such closed review “may” violate the First Amendment to the United States Constitution and article I, section 4, of the constitution of Florida. While this ruling did not actually hold the “in camera” provision unconstitutional, we, in the interest of judicial economy and to avoid needless litigation of the point upon remand of this cause, do now find that the subsection in question is constitutional, the trial court’s speculation to the contrary notwithstanding.

We need not discourse on the importance of open judicial proceedings; their value and benefit to society are beyond doubt and question. The right of access of the public and press to all phases of a trial is, therefore, accorded great deference. That does not mean, however, that said right supersedes all others, for, as the United States Supreme Court has observed:

The right of access to courtroom proceedings, of course, is not absolute. It is limited both by the constitutional right of defendants to a fair trial, see, e. g., Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and by the needs of government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants.

Gannet Co. v. DePasquale, 443 U.S. 368, 398, 99 S.Ct. 2898, 2915, 61 L.Ed.2d 608 (1979), Powell, J., concurring.

Justice Brennan observed likewise in another opinion concerning the closure of judicial proceedings:

[0]ur decisions must ... be understood as holding only that any privilege of access to governmental information is subject to a degree of restraint dictated by the nature of the information and countervailing interests in security or confidentiality.

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 586, 100 S.Ct. 2814, 2833, 65 L.Ed.2d 973 (1980), Brennan, J., concurring.

The courts of this state have also recognized that the rights of the public and press must be balanced against other considerations, and that the First Amendment does not invariably prevail, mandating open judicial. proceedings. In State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1976), we observed that “[i]n determining restrictions to be placed upon access to judicial proceedings, the court must balance the rights and interest of the parties to litigation with those of the public and press.” Id. at 908 (citation omitted).

The Second District Court of Appeal recognized that the right of access to court proceedings is not absolute when it noted as follows:

By virtue of its inherent power to control the conduct of its own proceedings, there is little doubt that under certain circumstances the courts may exclude the public and the press from its proceedings, but such authority must be cautiously exercised.

News-Press Pub. Co., Inc. v. State, 345 So.2d 865, 867 (Fla.2d DCA 1977). See also Sentinel Star Co. v. Booth, 372 So.2d 100 (Fla.2d DCA 1979).

The foregoing clearly demonstrates that closed judicial proceedings are not banned absolutely. While the presumption in favor of openness is powerful, there are circumstances where closure is justified, i. e., when the rights of defendants to receive a fair trial or the government’s need to obtain just convictions and preserve the confidentiality of sensitive information and the identity of informants warrant such.

Section 893.135 recognizes the above limitations and makes provision therefor. It provides that the state’s motion to reduce or suspend the sentence of one who has provided substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals may be heard in camera upon a showing of good cause. Recognizing that the statute with which we are concerned is utilized to combat drug trafficking, and that many persons who aid the authorities in the manner described above would be endangering their lives, we are confident that closure would be justified in a number of the proceedings arising under said law. We are also confident that the trial courts of this state, in administering section 893.-135, and in considering motions for closure, will properly weigh the competing interests rather than automatically grant the motions. The provision of section 893.135 allowing closure is necessary and justified, and, if good cause is shown, is not an unjustified, unconstitutional infringement on First Amendment rights.

In light of the foregoing, the order of the trial court finding section 893.135 unconstitutional is reversed and the case is remanded for proceedings consistent herewith.

It is so ordered.

BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.


author: OVERTON, Justice.

text:
    STATE of Florida, Appellant, v. Robert James THEBEAU, Appellee. STATE of Florida, Appellant, v. Howard Matthew BILFORD, Eduardo Garcell, George Luis Gonzales, Frank Vincent Dicamillo, Alberto Araujo, Luis Carlos Perez, and Jeffrey Eliot Howard, Appellees.
    Nos. 57943, 57952.
    Supreme Court of Florida.
    Nov. 5, 1981.

      Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellant.
    Philip Carlton, Jr., Miami, for Thebeau.
    William Cagney, Miami, for Bilford.
    Eric B. Feldman of Robert A. Spiegel, P.A., Coral Gables, for Garcell.
    Frederick Robbins, Miami, for Gonzales and Perez.
    William Moran, Miami, for Dicamillo and Araujo.
    Robert Josefsberg, Miami, for Howard.
   OVERTON, Justice.

In State v. Benitez, 395 So.2d 514 (Fla. 1981), and State v. Werner, 402 So.2d 386 (Fla.1981), we held constitutional section 893.135, Florida Statutes (1979), Florida’s drug trafficking law. In addition to those arguments we found to be without merit in Benitez and Werner, appellees in the present consolidated appeals ask us to strike section 893.135 as unconstitutional on another ground. Appellees claim that their right to have a jury determine their guilt or innocence is infringed upon because the judge rather than a jury “may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.” We note that in most traditional sentencing proceedings in both federal and state courts, this discretionary authority is present in the trial judge, and not the jury, without specific statutory guidelines.

We find appellees’ assertions totally without merit, and uphold the constitutional validity of section 893.135. The instant causes are remanded for further proceedings.

It is so ordered.

SUNDBERG, C.J., and ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur.


text:
    Harold LEVENSON, Petitioner, v. MARKET FOODS DISTRIBUTORS, Respondent.
    No. 59427.
    Supreme Court of Florida.
    Nov. 5, 1981.
    Stephen Marc Slepin of Slepin, Slepin & Lambert, Tallahassee, and Albert E. Ha-rum, Jr., Coral Gables, for petitioner.
    H. George Kagan of Miller, Hodges & Kagan, Miami, for respondent.
   PER CURIAM.

We initially granted the instant petition for review on the basis of conflict with Southern Bell Telephone & Telegraph Co. v. McCook, 355 So.2d 1166 (Fla.1977). After argument, we have concluded that no conflict exists and that the Court is therefore without jurisdiction. The petition for review is denied.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


author: ALDERMAN, Justice.

text:
    Edward SOKOLSKY, Petitioner, v. Audrey M. KUHN, formerly Audrey M. Sokolsky, Respondent.
    No. 59688.
    Supreme Court of Florida.
    Nov. 5, 1981.
    Tyrie A. Boyer of Boyer, Tanzler, Blackburn & Boyer, Jacksonville, for petitioner.
    Elliot Zisser of Zisser, Robison & Spohrer, Jacksonville, for respondent.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, First District, in Sokolsky v. Kuhn, 386 So.2d 806 (Fla. 1st DC A 1980), which expressly and directly conflicts with Schwarz v. Waddell, 389 So.2d 210 (Fla. 4th DCA 1980). The determinative issue in Sokolsky is whether section 61.12(1), Florida Statutes (1979), permitting garnishment of wages of the head of a household “to enforce the orders of the court of this state for alimony, suit money, or child support,” applies where child support arrearages had been reduced to a final money judgment. We hold that where a money judgment has been obtained by the former wife, the provisions of section 61.12 do not apply to create an exception to the exemption from garnishment set forth in section 222.11, Florida Statutes (1979). Thus, we conclude that since Kuhn, Sokol-sky’s former wife, failed to comply with the requirement of section 222.12 by denying under oath the facts set forth in Sokolsky’s affidavit within two days after his notice, all proceedings for garnishment should have terminated. We quash the district court’s holding to the contrary.

The pertinent facts may be stated briefly. Kuhn filed a complaint to establish a foreign divorce decree as a Florida judgment. The trial court entered a final judgment establishing the foreign divorce decree and reduced the child support arrearages to a final money judgment. This judgment was not appealed. Kuhn then filed a motion for writ of garnishment of her ex-husband’s wages, seeking to collect the money judgment for support arrearages. A writ of garnishment issued to which the garnishee responded as to the amount it was presently indebted to Sokolsky. Prior to final judgment of garnishment, Sokolsky moved to dissolve the garnishment and filed an affidavit of exemption alleging that he is the head of a family residing in Florida and that the money attached by these proceedings is due for his personal labor and services. No controverting affidavit was filed by Kuhn. After hearing, the trial court entered a final judgment against the garnishee and specifically stated that Sokolsky was not exempt from garnishment due to section 61.12.

On appeal, the district court held that even though the support arrearages had been reduced to a money judgment, section 61.12 nevertheless applied and removed the section 222.11 garnishment exemption. Thus, the district court concluded, Kuhn’s failure to file a controverting affidavit had no effect on the proceedings.

We do not agree with the district court’s conclusion that the fact that the support arrearages had been reduced to money judgment in no way altered the applicability of section 61.12 to the present case to create an exception to the exemption established by section 222.11.

Section 222.11 establishes an exemption for a head of a family residing in Florida from garnishment of his wages. It provides:

No writ of attachment of garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.

Section 222.12, Florida Statutes (1979), sets out the procedure for claiming this exemption and provides:

Whenever any money or other thing due for labor or services as aforesaid is attached by such process, the person to whom the same is due and owing may make oath before the officer who issued the process that the money attached is due for the personal labor and services of such person, and he is the head of a family residing in said state. When such an affidavit is made, notice of same shall be forthwith given to the party, or his attorney, who sued out the process, and if the facts set forth in such affidavit are not denied under oath within 2 days after the service of said notice, the process shall be returned, and all proceedings under the same shall cease. If the facts stated in the affidavit are denied by the party who sued out the process within the time above set forth and under oath, then the matter shall be tried by the court from which the writ or process issued, in like manner as claims to property levied upon by writ of execution are tried, and the money or thing attached shall remain subject to the process until released by the judgment of the court which shall try the issue.

Section 61.12, which creates an exception for this exemption for head of a family, provides:

(1) So much as the court orders of the money or other things due to any person or public officer, state or county, whether the head of a family residing in this state or not, when the money or other thing is due for the personal labor or service of the person or otherwise, is subject to attachment or garnishment to enforce the orders of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support; when the money or other thing sought to be attached or garnisheed is the salary of a public officer, state or county, the writ of attachment or garnishment shall be served on the public officer whose duty it is to pay the salary, who shall obey the writ as provided by law in other cases. It is the duty of the officer to notify the public officer whose duty it is to audit or issue a warrant for the salary sought to be attached immediately upon service of the writ. A warrant for as much of the salary as is ordered held under said writ shall not issue except pursuant to court order unless the writ is dissolved. No more of the salary shall be retained by virtue of the writ than is provided for in the order.
(2) The provisions of chapter 77 or any other provision of law to the contrary notwithstanding, the court may issue a continuing writ of garnishment to an employer to enforce the order of the court for periodic payment of alimony or child support or both. The writ may provide that the salary of any person having a duty of support pursuant to said order be garnisheed on a periodic and continuing basis for so long as the court may determine or until otherwise ordered by the court or a court of competent jurisdiction in a further proceeding.

We hold that the final money judgment entered by the trial court in the present case in favor of Kuhn against Sokolsky in the amount of $15,635 is not an order “of the court of this state for alimony, suit money, or child support” within the purview of section 61.12. When a money judgment is entered providing for execution, the provisions of section 61.12 are not applicable. In seeking garnishment, Kuhn was therefore governed by the general law relating to garnishment after judgment which included the requirement of section 222.12 that she file a sworn denial to Sokol-sky’s affidavit. On the other hand, had the past-due child support not been reduced by Kuhn to a final money judgment subject to execution, the district court would have been entirely correct in holding that section 61.12 constitutes an exception to section 222.11 and that, therefore, it would not be necessary for an ex-spouse to follow the directive of section 222.12 and to file a controverting affidavit to the other ex-spouse’s affidavit claiming head of the family status. See Waddell v. Schwarz, 405 So .2d 978 (Fla.1981).

To the extent that Busot v. Busot, 354 So.2d 1255 (Fla.2d DCA 1978); Clemons v. Morris, 350 So.2d 519 (Fla. 4th DCA 1977); Hall v. Air Force Finance Center, Department of the Air Force of the United States, 344 So.2d 1340 (Fla. 1st DCA 1977); and DeCastro v. DeCastro, 334 So.2d 834 (Fla.3d DCA 1976), are inconsistent with this decision, they are disapproved.

Accordingly, we hold that the exception to the head of the family exemption from garnishment of an ex-spouse’s wages created by section 61.12 does not apply here where the ex-wife has reduced past-due child support to a final money judgment and that, therefore, in seeking garnishment the ex-wife must comply with the requirements of section 222.12 in order to succeed in her garnishment proceeding. In view of this holding, we find it unnecessary to resolve the remaining issues raised by Sokol-sky. The decision of the district court is quashed, and this cause is remanded for further proceedings consistent herewith.

It is so ordered.

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

ADKINS and McDONALD, JJ., dissent.

      . We note that because of our recent holding in Killian v. Lawson, 387 So.2d 960 (Fla.1980), and our present holding here, it is conceivable that where an ex-wife reduces to money judgment an order for past-due support payments and seeks garnishment of her ex-husband’s wages to collect this debt, the husband might attempt to claim the head of the family exemption in section 222.11 by claiming that he pays alimony or child support to his ex-wife. Killian v. Lawson involved the claims of a third-party debtor. In that case, we held that a divorced husband, who pays alimony which constitutes the sole support of his ex-wife, is entitled to the exemption of wages from garnishment under section 222.11 since, we decided, a wage earner need not reside in the same house with his wife or children to remain head of a family. In support of this holding, we said that alimony is to prevent the dependent party from becoming a charge or an object of charity and that these exemption statutes serve the same purpose and should be liberally construed so that the family of the debtor as well as the debtor would not become public charges. This holding, however, is limited to a situation where a third-party creditor seeks garnishment. If this type of exemption were available in cases involving past-due child support or alimony, an ex-husband would be able to defeat his former wife’s garnishment on the basis that he is the head of the family to which he is liable for child support or alimony and for which he is indebted. We do not intend such an absurd result. An ex-husband will not be able to avoid garnishment for past-due child support or alimony on this basis.


author: ALDERMAN, Justice. McDONALD, Justice,

text:
    Honorable Tom WADDELL, Jr., Judge of the Circuit Court, Eighteenth Judicial Circuit of Florida, Acting as Judge of the Circuit Court, Nineteenth Judicial Circuit in and for Martin County, Florida, by Temporary Assignment, Petitioner, v. Elton H. SCHWARZ, Respondent.
    No. 59926.
    Supreme Court of Florida.
    Nov. 5, 1981.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for petitioner.
    Elton H. Schwarz, in pro. per.
   ALDERMAN, Justice.

This case is before us to review the decision of the District Court of Appeal, Fourth District, in Schwarz v. Waddell, 389 So.2d 210 (Fla. 4th DCA 1980), which conflicts with Sokolsky v. Kuhn, 386 So.2d 806 (Fla. 1st DCA 1980). The Fourth District holds that although the ex-wife was seeking garnishment to satisfy an order of the trial court for child support which was encompassed by section 61.12, Florida Statutes (1979), the requirement of section 222.12, Florida Statutes (1979), that she controvert the head of the family claim made by her ex-husband, whose wages she sought to garnishee, applied, and therefore, upon her failure to file an affidavit denying the contents of her ex-husband's affidavit asserting head of the family status, all proceedings under the continuous writ of garnishment terminated by operation of law. We quash the decision of the district court granting the ex-husband’s petition for writ of prohibition and hold that under the facts of the present case where the trial court’s order awarding support had not been reduced to final money judgment subject to execution, section 61.12 applied to create an exception to sections 222.11 and 222.12, Florida Statutes (1979), and that therefore the garnishment proceedings to collect child support for the period of September 21, 1978, to January 26, 1979, should not have terminated as a matter of law because the ex-wife failed to file a controverting affidavit. We remand for further proceedings so that the district court may consider the other arguments made by Schwarz in his petition which the district court had found unnecessary to resolve.

On September 21, 1978, the trial court found Elton Schwarz to be in arrears for child support in the amount of $20,500 and entered judgment against him for that amount. The motion by his former wife for issuance of garnishment to collect child support which is the basis of the present review did not relate to this final judgment but rather was a motion for reissuance of garnishment to collect child support for the period of September 21, 1978, to January 26, 1979. Schwarz’s minor child reached her majority on January 26, 1979, and his former wife filed for reissuance of garnishment on May 7,1979. On June 28,1979, the trial court entered an order for continuing writ of garnishment for child support to the comptroller of this state garnishing $1,000 per month of Schwarz’s salary until all delinquent obligations are paid in full. This order expressly excluded all amounts due for child support prior to September 21, 1978, for which a money judgment had been entered. Thus, none of the previously adjudicated $20,500 was involved. The clerk, on July 10, 1979, issued a continuing writ of garnishment limiting the sum to be withheld to $1,000.

On July 20, 1979, Elton Schwarz filed an affidavit of exemption pursuant to section 222.12, claiming that he is the head of a family residing in Florida and that the money sought to be attached was due him for his personal labor and services. Then on July 24, 1979, he filed a traverse of the motion for reissuanee of a writ of garnishment, a motion to vacate the order for continuing writ of garnishment for child support and a motion to quash the writ of garnishment. The garnishee subsequently moved for dissolution of the writ of garnishment on the basis that neither Schwarz’s former wife nor her attorney had filed with the court a denial under oath of any of the matters set forth in the affidavit of exemption and that therefore all proceedings under the writ of garnishment terminate upon expiration of the time for filing a sworn affidavit of exemption.

Thereafter, Schwarz filed his petition for writ of prohibition with the district court and contended that all proceedings under the continuous writ of garnishment terminated by operation of law upon the failure of his former wife to file a controverting affidavit as required by section 222.12. The district court, agreeing with Schwarz, granted the petition for writ of prohibition on this basis and found it unnecessary to address the remaining three arguments made by Schwarz in his petition.

The pertinent statutory provisions involved are section 61.12(1) which permits garnishment of the former spouse’s wages, even if he is head of a family residing in Florida, to enforce “orders of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support”; section 222.11 which provides for exemption of a former spouse’s wages from garnishment where he is head of a family residing in this state; and section 222.12 which provides the procedure for claiming this exemption which includes the requirement that the former spouse controvert under oath the affidavit of the other former spouse claiming head of the family status.

We hold that section 61.12(1) creates an exception to the exemption provided by section 222.11 and that therefore the provisions of section 222.12 are not applicable where the former wife is seeking garnishment pursuant to section 61.12(1) to enforce child support “orders of the court of this state.” The fact that the former husband filed an affidavit claiming the status of head of the family has no legal significance in a garnishment proceeding instituted pursuant to section 61.12(1) because this provision allows garnishment of wages of the head of a family to enforce child support orders. Cf. Sokolsky v. Kuhn, 405 So.2d 975 (Fla.1981), which recognized that section 61.12 is an exception to the exemption provided the head of the family but held that, since a final money judgment subject to execution had been obtained on past-due child support, the former spouse was precluded from proceeding under section 61.12 to enforce her judgment.

The district court, in the present case, determined that it was compelled to hold that section 222.12 required termination of the garnishment proceedings despite the exception of section 61.12 in view of our opinion in The Miami Herald Publishing Co. v. Payne, 358 So.2d 541 (Fla. 1978). Although it does not clearly appear in Payne that we addressed the precise issue now before us, insofar as the language we used in Payne may appear to be inconsistent with our present holding, we recede from that decision.

Accordingly, having found that the former wife was not required to comply with section 222.12 by filing a sworn denial of Schwarz’s affidavit of exemption, we quash the district court holding that all proceedings under the writ of garnishment terminated by operation of law. We remand this cause to the district court for further proceedings consistent with this opinion and to resolve the other issues presented by the petition for writ of prohibition which it found unnecessary to address in light of its initial disposition of the cause.

It is so ordered.

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

ADKINS, J., dissents.

McDONALD, Justice,

concurs in result only:

I would hold that a person’s wages are never exempt from garnishment predicated upon nonpayment of child support. When the motion for garnishment shows that non-paid child support is the basis of the debt, it is not necessary to traverse the debtor’s affidavit.

      . The former wife had initially filed a motion for garnishment seeking to collect the past-due child support payments upon which a final money judgment subject to execution had been entered by the trial court. She subsequently filed a notice of voluntary dissolution of that writ of garnishment and motion for reissuance of garnishment for child support that had accrued subsequent to the entry of the money judgment.

      . The issues raised but not addressed by the district court were whether the trial court was without jurisdiction to garnish the wages of a head of a household under section 61.12 for collection of delinquent child support payments after the dependent child attains her majority and the obligation for payment of support terminates; whether the trial court had jurisdiction to enter its order for continuing writ of garnishment for child support on June 28, 1979; and whether garnishment may be obtained pri- or to entry of a judgment for alleged arrearag-es.