author: BOOKOUT, Judge.

text:
    Charles Lee BUFFORD v. STATE.
    2 Div. 231.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      J. L. Chestnut, Jr. of Chestnut', Sanders & Sanders, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., J. Anthony McLain, Spec. Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

The appellant was indicted and tried for the capital felony of robbery when the victim was intentionally killed by the defendant. The jury found him guilty and fixed punishment at death. After a separate hearing on aggravating and mitigating circumstances, the trial judge accepted the penalty as fixed by the jury and sentenced him accordingly.

On Saturday, April 30,1977, the appellant was a state prisoner in the Wilcox County Jail and was classified as being on “work release” status. Between 7:00 and 7:30 that morning, he was released into the custody of the victim, Roland Cooper, the Probate Judge of Wilcox County. The appellant worked around the Cooper home most of the day, cutting grass and doing other minor jobs. Late that afternoon Cooper and the appellant drove to a garden located about a mile from the residence. They were in Cooper’s blue station wagon, commonly known as a Jeep Wagoneer. Cooper’s son saw his father and the appellant driving to the garden around 5:00 p. m.

Deputy Sheriff Bobby Young and Walter Sheffield discovered the body of Cooper some time after 8:00 p. m. on that date. They had gone to the garden looking for the missing victim and had found blood and “drag marks” in the freshly plowed ground. They followed the marks and found the body of Cooper in a wooded area, “face down with his. hands tied behind him.” The body was partially covered with leaves and limbs.

There were several wounds to the head of the body, and it was determined that death was caused by “acute intercranial hemorrhage . . . subsequent to massive fracturing of the skull.” The wounds were described by Richard Roper, a State Toxicologist, as having been made by “an instrument which would have some type of cutting edge . . which could also deliver a substantial blow of crushing force to the skull.” The death weapon was an 18-inch iron or steel bar normally used as a depth gauge on the rear of a garden tiller and described as a “tiller guide bar.”

The victim’s billfold was found about midway between where the blood stains were and the garden entrance. Three of the victim’s credit cards were found about twenty feet from where the billfold was found. The victim usually carried $150 to $200 in his billfold, according to his wife. His post office box key, which he kept in his billfold, was found on the front seat of the jeep the next day when his son retrieved the vehicle from the Selma Police Department.

Around 6:00 p. m. on May 30, Chester Gregory, an acquaintance of Cooper, saw the appellant driving the victim’s jeep toward Selma. Joy Snell, another witness, observed a young black male driving the victim’s vehicle toward Selma at approximately the same time. Neither witness saw Cooper in the vehicle. Later Selma Police Officer Joseph McGrew stopped and arrested the appellant for driving while intoxicated at about 8:20 p. m. in Selma. The appellant was driving the blue Jeep Wagoneer registered to the victim. The vehicle was taken to the police station and locked, and the appellant was placed in the rear seat of the police car and taken to jail.

Officer McGrew testified that he read the appellant the Miranda warning upon taking him into custody. After laying a proper Miranda and voluntariness predicate, the witness testified that upon radioing the vehicle tag number to headquarters and receiving a reply that it was registered to Roland Cooper, the appellant volunteered that Cooper was his “boss man.” The appellant further stated that Cooper was out at the Selma mall, and he was trying to find his way back there to pick him up.

Selma Police Officer Ernest Dufour was on duty the night in question. He drove the Jeep Wagoneer back to the police station and turned the keys over to his captain. He observed the appellant in the patrol car and at the scene of the arrest as well as at the police station. After proper Miranda and voluntariness predicates were laid, a statement made by the appellant to Officer Dufour that night was admitted into evidence:

“Q. While you were getting the information before Mr. Chestnut stopped us, on the face Exhibit No. 24, the yellow sheet there, you said you asked him for his driver’s license, what did he tell you. “A. He didn’t have any.
“Q. And you said you asked him his name?
“A. Right.
“Q. And what did he tell you?
“A. Stated his name was Charles Lee Burford (sic).
“Q. All right. Did he make any statements to you after he told you his name, without you asking him any questions? “A. Before I could say anything else, he asked me could he call his boss.
* * * * * *
“Q. All right. What did you say to him? “A. I asked him who was his boss.
“Q. What did he say?
“A. Said it was Judge Cooper.
“Q. Did you know who Judge Cooper was at that time?
“A. No, sir, I didn’t know who he was. “Q. All right. Now, did you ask him anything about Judge Cooper?
“A. I asked him where was the Judge at.
“Q. All right. And what did he say? “A. He said he left him in a garden.
* * * * * *
“Q. All right. Did he say anything else about leaving him [in] the garden?
“A. Well, he stated that the Judge asked him to go get some fertilizer, to take the jeep and go get some fertilizer. He said he done what the Judge asked him to do, but he kept going.
* * # * * *
“Q. Did he say anything else?
“A. He stated to me that he had wanted to run for a long time and this was his chance and he took it.
* * * * * *
“Q. And did he say anything about where he was going.
“A. He said he was going to Selma. * * * * * *
“Q. Did he ever say anything to you what his final destination was going to be?
“A. Well, then, he told me that he was going to catch a plane, go to Birmingham to catch a plane.
* jft * sk * *
“Q. Did he ever say anything to you about his relationship with the Judge when he was talking to you?
“A. Yes. He said the Judge was his best friend; that he liked him a lot. “Q. The Judge was his best friend and he liked him a lot. Did he say anything about working for the Judge?
“A. He said the Judge always used to use him when he needed any work done.”

At 11:00 p. m. on the date in question, Selma Police Officer Larry Hart took over the police car which Officer McGrew had used to transport the appellant to jail. As he was going off his shift at 7:00 a. m. the next morning, he discovered on the rear floorboard $106, a black comb, and a silver key. The key was identified by the victim’s son as being to the county radio system used in the victim’s vehicle. At the time of the appellant’s booking, he had in his possession $40.35 and a set of keys to the Jeep Wagoneer.

At 10:15 p. m. on April 30, the appellant signed a “Statement of Rights Form” in the presence of Captain James Foster of the Selma Police Department. After laying proper predicates as to the voluntariness of the appellant’s statement and as to the Miranda warning, Captain Foster testified concerning his questioning of the appellant. He said that the appellant told him Cooper was “at the cabin.” The appellant said Cooper came to the jail and picked him up that morning to cut grass at his cabin. That afternoon they went to the garden to plant some corn. He said Cooper cursed him for planting the corn wrong and began showing him how to plant it properly. From the record:

“Q. All right. What did he say happened then?
“A. He said that he had — he was ahead of Mr. Cooper. He had walked on out to the end of the row and turned around facing Mr. Cooper. Mr. Cooper was bent over "dropping corn.
“Q. What did he — did he — what did he say happened then?
“A. Said that he noticed this piece of metal that had come off of the tiller, laying on the ground. He reached down and picked it up'.
“Q. What, if anything, did he say he did with it?
“A. Said when Mr. Cooper walked up to the edge of the row, bent down planting the corn, that he hit him.
“Q. What else did he say, if anything? “A. Said that Mr. Cooper fell that he was making a racket, moaning and he hit him again while he was on the ground. “Q. What did he say he did then, if anything?
“A. Said that he then got him by the feet, pulled him out of the garden, over toward some woods.
“Q. What did he say he did, then, if anything?
“A. Said when he got over toward the woods that he got his billfold, that he attempted to cover Mr. Cooper up with some leaves and branches.
“Q. Okay. Was that everything he told you about on that occasion on the night of April the 30th, 1977?
“A. It is.”

The shirt and trousers which the appellant was wearing on April 30 were turned over to the state crime lab on May 1, and human blood was found on both garments. A latent thumbprint of the appellant was found on the left rear door handle of the jeep. Two brown paper bags found inside on the front floorboard of the vehicle contained fingerprints and a palmprint of the appellant.

When the State rested its case in chief, the defense announced “Charles Bufford rests,” whereupon both sides commenced closing arguments to the jury. No motion to exclude the State’s evidence was filed at that time, and no request for the affirmative charge was made.

I

The Alabama capital felony statute is constitutional. Jacobs v. State, Ala.Cr. App., 361 So.2d 607 (1977), affirmed, Ala., 361 So.2d 640 (1978), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83 (1979); Clements v. State, Ala.Cr.App., 370 So.2d 708, affirmed in part, reversed in part on another ground, Ala., 370 So.2d 723 (1978); Watters v. State, Ala.Cr.App., 369 So.2d 1262, reversed on other grounds, Ala., 369 So.2d 1272, on remand, 369 So.2d 1275 (1978); Colley v. State, Ala.Cr.App. [Ms. September 4,1979]; Evans v. State, Ala.Cr. App., 361 So.2d 654, affirmed in part, reversed in part on another ground, Ala., 361 So.2d 666 (1977); Evans v. Britton, 472 F.Supp. 707 [S.D.Ala., 1979].

II

The appellant contends he was denied a speedy trial in violation of Article I, § 6, Constitution of Alabama 1901 and the Sixth Amendment to the United States Constitution.

The record reveals that the appellant was arrested on the instant charge on May 4, 1977. He was indicted at the next regular session of the grand jury on November 7, 1977. The trial began on March 6, 1978, with hearings on various motions and ended on March 10 with a jury verdict of guilt.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), sets out four factors to be considered in determining whether there has been a denial of a speedy trial: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. There is no fixed length of time that is considered to be per se unreasonable. Andrews v. State, Ala.Cr.App., 370 So.2d 1070 (1979), cert. denied, Ala., 370 So.2d 1075.

In the instant case we find (1) the length of delay from arrest to trial date to have been ten months. From arrest until arraignment, nine months elapsed.

(2) The reason for the delay was due to the fact that no regular grand jury met from the date of arrest until November 1977. The appellant was indicated by the first grand jury impaneled after his arrest. Several intervening factors also influenced the delay.

On May 10 Charles H. Sims, III, and C. W. Blackwell, Jr., were appointed as attorneys for the appellant. Each filed a motion for recusal from the appointment. Sims withdrew because this case would have been his second recent appointment in a major, notorious criminal case requiring many hours of preparation and trial work. As he was a single practitioner, the hardship to his practice would have been excessive. Blackwell was excused because he was a personal friend of the victim, having had “political and social and business connections” with him and, therefore, could not in good conscience represent the appellant adequately.

On July 28, 1977, P. H. Pitts and J. W. McDowell were appointed to represent the appellant. Both likewise filed motions to withdraw as counsel. McDowell had not had “five years prior experience in the active practice of criminal law” as required by § 13-11-8, Code of Ala. 1975. Pitts was a personal friend of the victim and had political contacts with him, and McLean Pitts of the same law firm was a close personal friend of the victim and on occasion represented him and members of his family.

The December 12, 1977, term of criminal eases in Wilcox County was cancelled by the circuit judge on November 30,1977, because only one case was on the docket. Arraignment of appellant was set for February 1, 1978. On that date however the trial judge allowed attorneys Pitts and McDowell to withdraw and appointed J. L. Chestnut, Jr., appellant’s present counsel, to defend him. Arraignment was then set for February 8. On that date appellant entered a plea of “not guilty,” and trial was set for March 6. On February 9 the Chief Justice assigned Retired Circuit Judge Eris F. Paul of Elba to try the case.

As to the point (3) of Barker, supra, the defendant failed to assert his right to a speedy trial until the denial of such was alleged in a “Motion to Quash the Indictment” filed March 3, three days before his trial. Evidence was taken on that motion on March 6, and it was denied.

As to (4) we find no prejudice to the defendant in the delay. He was at all times serving time on another felony conviction. His freedom was not therefore unnecessarily impaired. As pointed out in the testimony on the motion to quash, it was to his benefit to let tempers in the county cool down before going to trial. The victim had served Wilcox County in the State Senate and as Judge of Probate. He was a well-known and respected public servant, and a speedy trial under those circumstances would certainly not have benefited the appellant. The untimely motion to quash on that ground was therefore properly denied.

Ill

Appellant alleges that it was error to allow evidence of his oral confession to a police officer because he was intoxicated at the time and had been arrested less than two hours earlier for driving while intoxicated.

The rule is that intoxication amounting to mania or such impairment of the will and mind as to make the accused unconscious of the meaning of his words renders his confession inadmissible. However, proof of a lesser degree of intoxication will not render the confession inadmissible. Balentine v. State, Ala.Cr.App., 339 So.2d 1063, cert. denied, Ala., 339 So.2d 1070 (1976); Medders v. State, Ala.Cr.App., 342 So.2d 49 (1977); Scott v. State, Ala.Cr.App., 333 So.2d 619 (1976).

At trial the appellant challenged three statements on the intoxication issue. One was noninculpatory in nature, but proved to be false. It was made to Officer McGrew at the time of the appellant’s arrest stating that the victim was at the Selma mall waiting for the appellant to pick him up. There, the intoxication issue was raised by the appellant after the statement had already been admitted into evidence. The second statement was made to Officer Duf-our, set out in the facts herein and tended to prove motive. Both officers were subjected to full cross-examination or voir dire examination by counsel for the appellant.

Officer McGrew was questioned by the court and by both counsel. He maintained that the appellant was driving under the influence of alcohol, but was not “drunk.” The witness testified that the appellant walked all right, replied to questions, appeared to know where he was and what was being asked him, and made intelligent replies. However, the appellant’s statement about his “boss man” was a spontaneous and volunteered statement, not in response to any question propounded by Officer McGrew. Furthermore, a PEI test for blood alcohol administered to the appellant registered only 0.16 percent (0.10 percent by weight of alcohol in the blood being the minimum reading to support a charge of driving while intoxicated, § 32-5-193(a)(3), Code of Ala.1975).

Officer Dufour observed the appellant at the scene of the arrest and at the police station. He testified that the appellant’s speech was not slurred, that he appeared to know where he was and what was happening around him, and that he answered his routine questions intelligently.

Captain James Foster testified as to the voluntariness of the appellant’s inculpatory statement to him and as to a proper Miranda warning given the appellant. On cross-examination counsel elicited that Foster smelled the odor of alcohol on the appellant, but did not notice “any slurring in his speech. ’ The defense then called the appellant as a witness, in camera, to refute Captain Foster’s testimony. The appellant stated that he remembered being arrested. He remembered the date and the time. He likewise remembered being taken to jail and being locked up. He remembered someone coming to his cell and taking him to a room in the building. He remembered staggering, but from then on he remembered nothing. He did not remember his rights being read, questions being asked, nor signing anything.

Before Captain Foster related the appellant’s statement to the jury, he was again taken on cross-examination by the defense, and he stated that the appellant was not drunk at the time of questioning. The appellant was again called in rebuttal in the presence of the jury and related the same testimony as in camera. Foster then took the witness stand again and, over objection of the appellant, related the confession to the jury.

Each of the three officers testified as to a proper voluntariness and Miranda predicate which, if believed by the trial judge, would require a ruling that the statements were admissible.

Whether a confession is voluntary is a question to be determined by the trial judge. Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967). The trial judge need only to be convinced from a preponderance of the evidence to find a confession to have been voluntarily made. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Baldwin v. State, Ala.Cr.App., 372 So.2d 26, affirmed, Ala., 372 So.2d 32 (1978).

The evidence presented by the three officers was sufficient therefore to support the ruling that the appellant was not intoxicated to the degree that his statement would be considered, in the legal sense, as being involuntary.

IV

Appellant contends that it was error to admit into evidence a tape recording of a confession he made on May 5, 1977, to Investigators C. H. Webber and E. V. Hedley.

The appellant’s confession on that occasion was tape-recorded and was later transcribed into a typewritten statement which he signed. Certain words were unintelligible to the secretary typing the transcript and were indicated therein by parentheses. No deletions occurred in the portion of the statement where the appellant gave the details of how the actual killing occurred. Most deletions occurred in portions dealing with routine work or activities during the day of April 30, 1977. However, the defense counsel objected to the deletions and specifically contended that such typewritten transcript from the tape recording was not the best evidence. He contended that the tape recording itself was the best evidence. The trial judge ruled the typewritten transcript to be inadmissible.

After playing the tape-recorded confession outside the presence of the jury, the trial court held it to be admissible. We note that both Webber and Hedley testified as to proper voluntariness and Miranda predicates prior to the trial court’s ruling. We likewise note that the court reporter transcribed the entire statement from the tape recording without deletion during the trial.

Tape recordings are not per se inadmissible because some parts are inaudible. They became inadmissible only where the unintelligible portions are so substantial as to render the recording untrustworthy as a whole. United States v. Greenfield, 574 F.2d 305 (5th Cir. 1978). The admission of tape recordings into evidence is within the sound discretion of the trial judge. Here, the tape recording was authenticated by both officers. The trial judge listened to it outside the presence of the jury with both counsel present. They had a right to question portions of the tape, to make objections, or to explain away any ambiguities. We find the recording to be admissible for whatever weight the jury might accord it. Hammond v. State, Ala.Cr.App., 354 So.2d 280 (1977), cert. denied, Ala., 354 So.2d 294 (1978). Additionally, we have listened to the recorded confession and find it to be audible and understandable.

V

For the first time, in his reply brief, counsel for the appellant challenges the sufficiency of the evidence going to prove that the intentional killing occurred during the course of a robbery. Counsel contends that the appellant, in his confession, admitted killing the victim in anger because the victim verbally abused him. Counsel contends that it was after the killing that the appellant thought of taking the billfold and the vehicle and fleeing.

In the appellant’s earlier statement to Officer Dufour, he stated that he had been thinking of escaping for some time, and the occasion of working in the garden and going for fertilizer appeared to be the right opportunity. The jury had a right to weigh the appellant’s version against all the circumstances presented by the evidence. A jury is not bound by the testimony of the only eyewitness, otherwise it would be impossible to obtain a conviction where an accused is the only witness to a crime. Circumstantial evidence will support a conviction as strongly as direct evidence provided it points to the guilt of the accused. Kelsoe v. State, Ala.Cr.App., 356 So.2d 735 (1978).

The jury could have reasonably inferred from the circumstances of the case that the appellant decided to rob and kill the victim and to use his vehicle and money to escape. They could consider the fact that the body was found with hands tied behind it, hidden by leaves and limbs, bludgeoned to death, the victim’s empty wallet and credit cards discarded and the appellant in possession of a large amount of money and the victim’s vehicle in another county. These facts support the inference that the appellant robbed and killed the victim with the intention of escaping confinement and with the further intention of going on to Birmingham and flying out of the state. The appellant’s statement to Officer Duf-our as to his prior intentions to escape would reinforce the jury’s conclusion that this was not merely a killing in the heat of anger followed by a larceny of the wallet and vehicle as a mere afterthought. A jury question was presented by the evidence, and we cannot say their conclusion was palpably unjust or wrong.

VI

On March 10, 1978, the jury rendered its verdict and was dismissed. On March 15 the appellant’s counsel learned through an anonymous telephone call that one juror, Sadie Lee Moore, was not a resident of Wilcox County and had not been for approximately seven years. On March 24 the appellant filed a motion for a new trial setting out five grounds. The first ground alluded to the nonresident juror. That motion was not brought to the attention of the trial judge until the start of the aggravation and mitigation hearing on March 27 at which time counsel attempted to go into the motion rather than the subject scheduled for the hearing. The trial judge reset the date for the aggravation and mitigation hearing and allowed defense counsel to proceed with a hearing on the motion.

After some discussion with the court, the defense counsel moved to strike all grounds in his motion for a new trial except the first ground relating to the nonresident juror. He then restyled his pleading as a “Motion for a Mistrial.”

The court records and the evidence adduced at the hearing on the appellant’s motion indicated that the prospective jurors were examined in groups of twelve. Each group, including that in which juror Moore was questioned, was asked by the court: “Are" you a resident householder or freeholder of Wilcox County, Alabama, and have you been such for the last preceding year?” The juror made no response to that question.

The evidence taken at the hearing indicated that juror Moore at one time resided in Wilcox County, but moved in late 1970 or early 1971 to Dallas County. She last voted and bought her last automobile tag in Wilcox County. She owned land in Wilcox County, sent her child to school there, and received her mail there. However, she testified that she considered herself a resident of Dallas County. Mrs. Moore stated that she did not recall the trial court’s question concerning residency and if it was asked, she did not understand it. Furthermore, she stated that at the time of the trial she was not concerned with her residency for that was her first time to be summoned to serve, and she was not told that she had to be a resident of Wilcox County at that time.

It appears that as Mrs. Moore was a registered voter in Wilcox County and the jury lists were prepared from lists of registered voters pursuant to a federal court order, it naturally appeared that she was a resident of that county. A Wilcox County mailing address would fortify such a conclusion in the absence of evidence to the contrary. Therefore, until the matter was brought to the attention of defense counsel after the trial, no one suspected that Mrs. Moore was a current resident of the adjoining county.

The trial court denied the appellant’s motion finding in pertinent part, the following:

(1) Juror Moore had twice been questioned (once with the venire en banc and once in a group of twelve) by the court concerning her residence in Wilcox County without her responding. Her failure to respond was not deliberate, nor intentional, but was probably from a lack of understanding concerning the meaning of “resident householder or freeholder.”

(2) The juror was a resident of Dallas County at the time of the trial and claimed a homestead exemption there.

(3) She last voted and bought her automobile license tag in Wilcox.

(4) At the time of the trial, the juror presently owned land, received her mail, and sent her child to school in Wilcox County.

(5) There was no evidence that the district attorney nor any of his assistants had any knowledge that the juror was a resident of another county.

(6) There was no evidence that the appellant nor his counsel had any knowledge of the juror’s disqualification until several days after the trial had ended.

(7) There was no evidence that the juror was interested in the outcome of the trial, or was “anything other than a fair-minded citizen.”

(8) There was no evidence that the defendant was prejudiced in any way by juror Moore serving on the jury.

The instant issue is whether the judgment of the trial court should be reversed and a new trial ordered for the sole reason that one of the jurors who sat on the case was not a resident of Wilcox County. This is not a case in which the appellant gambled upon the verdict only to later attack it upon a ground which is normally raised before the reception of the evidence. Brown v. State, 52 Ala. 345 (1875); Ball v. State, 252 Ala. 686, 42 So.2d 626 (1949). There is no contention that the appellant or his counsel had prior knowledge of the juror’s residence in Dallas County, neither was there a lack of diligence on their part in not discovering that fact prior to the end of the trial. McHenry v. State, 279 Ala. 30, 181 So.2d 98 (1965); Taylor v. State, 222 Ala. 140, 131 So. 236 (1930); Little v. State, Ala.Cr.App., 339 So.2d 1071, cert. denied, Ala., 339 So.2d 1073 (1976).

Under the code sections in force at the time of the commission of the offense, the nonresidence of a juror would be a disqualification. See: Title 30, §§ 6, 52, 55, 64, Code of Ala.1940, Recompiled 1958; Maund v. State, 254 Ala. 452, 48 So.2d 553 (1950). We note that under Title 30, § 20, Code of Ala.1940, Recompiled 1958, Supp.1973, in composing the jury roll from which the jury box is filled, it is incumbent upon the jury commission to select “the name of every citizen living in the county who possesses the qualifications herein prescribed,” with one such qualification being that the person must be a resident of the county in which he is subpoenaed to serve. See also: Title 30, § 21.

Although a defendant has a right to have questions answered truthfully by prospective jurors, the failure of a juror to make a proper response to a question regarding his qualifications does not automatically entitle a defendant to a new trial. The proper inquiry by this court in such cases is whether the appellant’s rights were prejudiced by the juror’s failure to respond properly. Beauregard v. State, Ala.Cr. App., 372 So.2d 37 (1979), cert. denied, Ala., 372 So.2d 44, and cases cited therein. In Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970), our supreme court stated:

“We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant. This appears to be the general rule throughout the country [see Annotations, 38 A.L.R.2d 624, and 63 A.L.R.2d 1061],

The supreme court in that case likewise held that the trial court’s application of the probable prejudice test is subject to review only for abuse of discretion.

Had the juror made a truthful answer to the court’s question on voir dire, she would have been subject to challenge for cause. However, the mere fact that she resided in an adjoining county does not per se require a reversal of this cause. Nonre-sidency in such a case does not impute prejudice per se. In fact there are times when nonresident jurors would be less likely to bear prejudice or bias against a defendant. A notorious case where feelings are high and tempers hot within a community is a prime example. A case where a well-known and highly regarded public official of the county is brutally murdered by a convict would lead one to think that residents of the county would be more likely to bear ill will toward the accused than would the resident of another county. The most glaring analogy is in the case of a change of venue. Although the appellant did not request a change of venue in the instant case, our statutes nevertheless allow for such a procedure. Section 15-2-20, et seq., Code of Ala.1975. In those eases where change of venue has been granted, an accused would be tried by a jury composed entirely of persons who were not residents of the county from which the case was transferred. Therefore, there is no inherent prejudice attributed to a trial by a nonresident or nonresidents of the county in which the offense was committed.

A full hearing was held on the issue of the nonresident juror, both sides had an opportunity to put on evidence, and the trial judge wrote an extensive order overruling that motion. We are unable to say that the trial judge abused his discretion or that prejudice to the appellant was shown by the evidence presented at that hearing.

VI1

Pursuant to § 13-11-3, et seq., Code of Ala. 1975, the trial court held a hearing on aggravating and mitigating circumstances on May 11,1978. On May 19 the trial court issued its written finding of facts and sentenced the appellant to death. The trial court’s finding of aggravating and mitigating circumstances set out in that order are as follows:

“1. That the defendant, Charles Lee Bufford, did intentionally kill William Roland Cooper in the perpetration of a robbery, or attempt thereof, of the said William Roland Cooper.
“2. That the intentional death of William Roland Cooper was especially heinous, atrocious and cruel as these terms are understood by ordinary men and by this court, in' that the defendant struck said victim at least 2 blows on the back of the head with a metal bar (a garden tiller guide) which was about 17 inches long, almost 2 inches wide, and between Vi inch and Vz inch thick, resulting in massive fracture to the skull and brain hemmor-age. He then tied the hands of the victim behind him, covered his body with leaves and left him to die.
“3. That the defendant, Charles Lee Bufford, committed the capital felony with which he is charged for pecuniary gain.
“4. That the defendant, Charles Lee Bufford, was 23 years of age at the time of commission of the capital felony and was at the time serving a sentence of two years on a felony charge of grand larceny for which he had been convicted. The defendant was being held in Wilcox County Jail in custody of the Sheriff awaiting transfer to prison. He was released from the jail as a trusty on the day in question, to do some work for the victim, William Roland Cooper.
“5. In addition to the offense of grand larceny for which the defendant had been convicted, and was serving his sentence at the time of the offense, he had been convicted of assault and battery and abusive language, for which he served time. “The court finds no evidence of mitigating circumstances unless his age of 23 years should be so considered. The age of Charles Lee Bufford is insufficient to outweigh the aggravating circumstances of his pitiless acts enumerated herein. “Upon consideration of all the evidence, it is the opinion of the court that the death penalty fixed by the jury should be imposed.”

We find the aggravating circumstances enumerated in 1, 3 and 5, supra, to be improper in the instant case.

As to aggravating circumstance number 1, the appellant was found guilty of “robbery or attempt thereof when the victim is intentionally killed by the defendant;” therefore, the primary element of the instant charge, robbery, cannot be used to aggravate the same charge. The charge consisted of two elements (1) the robbery and (2) the intentional killing. After conviction § 13-11-3 requires the trial court to hold a hearing to determine the existence vel non of aggravating and mitigating circumstances. Since the crime of which the appellant already stands convicted is capital robbery, a hearing to determine whether it was committed while the appellant was engaged in a robbery is a useless and redundant procedure. A second evidentiary hearing to prove the key element already proved in the case in chief makes no sense legally or logically.

The rationale expressed in Cook v. State, Ala., 369 So.2d 1251 (1979), applies in the instant case. Robbery cannot be aggravated by robbery or else the appellant is punished twice for the same act. This court has so held in at least one case. Keller v. State, Ala.Cr.App., 380 So.2d 926 (1979). This issue has not been conclusively decided by our supreme court however. See: Thomas v. State, Ala.Cr.App., 373 So.2d 1149, and special concurrence thereto at 1160 (1979), and the supreme court opinion affirming that decision, but ignoring the instant issue (Ala., 373 So.2d 1167). In no ease so far has the supreme court been faced with an instance where the only aggravating circumstance listed by a trial court was that of robbery aggravating robbery.

Colley v. State, Ala.Cr.App. [Ms. January 22, 1980] presented that issue to this court when the trial court, in answer to our remand, found robbery as the only aggravating circumstance in that capital robbery case. A majority of this court held that circumstance to be adequate aggravation, but on rehearing we resolved that conflict by adhering to our prior position in Keller, supra, and again remanded the case to the trial court for resentencing [Ms. February 26, 1980]. Until the Alabama Supreme Court rules conclusively on the instant question, this court has resolved the issue in favor of our prior holding in Keller, supra.

Aggravating circumstance number two is a valid finding by the trial court. We find no error on the part of the trial court in finding that the crime was especially heinous, atrocious, and cruel. The appellant intentionally struck a vicious blow to the head of the unsuspecting victim. When the victim was on the ground moaning, the appellant continued bludgeoning him then dragged him to a secluded place, tied his hands behind him, concealed his body, and left him either for dead or to bleed to death. See: State v. Dixon, Fla., 283 So.2d 1 (1973); Baldwin v. State, Ala.Cr.App., 372 So.2d 26 (1978), affirmed, Ala., 372 So.2d 32 (1979); Coon v. State, Ala.Cr.App., 380 So.2d 980 (1979).

Aggravating circumstance number three listed by the trial court is improper. Pecuniary gain may not be used as an aggravating circumstance in a case of capital robbery. Cook v. State, Ala., 369 So.2d 1251 (1979).

Aggravating circumstance number 4 was proper. That the capital felony was committed by a person under sentence of imprisonment may be considered pursuant to § 13-11-6(1).

Aggravating circumstance number 5 is improper. That the appellant had prior convictions for assault and battery and abusive language are not convictions listed as aggravating circumstances in the capital felony statute. While the assault and battery charge did involve violence to the person, it was not a felony as required by § 13-11-6(2). The abusive language charge was neither a felony nor an offense involving violence to the person pursuant to that section of the statute.

As to the only possible mitigating circumstance considered, we find no error in the trial court’s finding that the age of the appellant (23) was insufficient to outweigh the aggravating circumstances enumerated. See: Baldwin, supra.

There has been some confusion as to whether a remandment and a new sentencing hearing is required where a trial court finds one or more proper aggravating circumstances, but likewise bases its sentence on one or more improper aggravating circumstances. Compare Mack v. State, Ala.Cr.App., 375 So.2d 476 (1978), affirmed, Ala., 375 So.2d 504 (1979), with Johnson v. State, Ala.Cr.App. [Ms. May 22, 1979], reversed, Ala. [Ms. December 7, 1979]. Johnson is the latest expression of the supreme court on this issue. In that case there were at least two aggravating circumstances which were valid and one which was found to be invalid by that court. A remandment to the circuit court for a new sentencing hearing was mandated by that decision.

The conviction of the appellant is hereby affirmed, but the cause is remanded to the trial court with directions to conduct a rehearing for the purpose of sentencing in accord with this opinion and cases cited herein.

AFFIRMED; REMANDED WITH DIRECTIONS.

All the Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte State of Alabama ex rel. Attorney General. In re Charles Lee BUFFORD v. STATE of Alabama.
    79-484.
    Supreme Court of Alabama.
    May 2, 1980.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


author: HARRIS, Presiding Judge.

text:
    James Earl SHELTON v. STATE.
    8 Div. 328.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Rehearing Denied April 22, 1980.
    James M. Dyer, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., George Hardesty, Jr., Sp. Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the court sentenced him to imprisonment in the penitentiary for a term of thirty-five years. Throughout the trial proceedings he was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel represents him on this appeal.

At approximately 9:00 p. m., on December 21, 1978, the Quick Service Beverage Store located at the intersection of Wall Triana Street and Highway 72 West in the City of Madison, Madison County, Alabama, was robbed by two masked and armed individuals. One of the bandits was black and the other was white. The white man was armed with a sawed-off shotgun and the black man was armed with a revolver. The robbery of the store netted the bandits about $500.00.

While the robbery was in progress a customer, Richard B. Watkins, Jr., entered the store to make a purchase. After walking about three feet toward the counter the white bandit placed the sawed-off shotgun to his head and he was ordered to “get on the floor.” After he was on the floor the white man ordered him to produce his wallet and Mr. Watkins gave him his wallet while the white man was still holding the shotgun on him. The wallet contained approximately $300.00.

Mr. Watkins testified that, at about the time he surrendered his wallet, a black individual whom he subsequently identified as appellant was coming out of the cooler with the night manager of the store, Mark Bailey. When Mr. Bailey denied having any more money appellant raised his voice, and when Mr. Watkins looked up he saw appellant shoot Mr. Bailey in the back of the leg. After the shooting Mr. Watkins was ordered to help Mr. Bailey into the cooler, whereupon the cooler door was closed.

After staying in the cooler for about ten minutes both robbery victims emerged from the cooler and Mr. Watkins called the store owner and told his wife about the robbery and to notify the police. Mr. Watkins further testified:

“Then I came back where Mark was and I was kneeling besides him behind the counter. Then we noticed that the money bag was still on the counter beside the cash register. We were kneeling behind there. At that time I heard somebody enter the store and I stood up. James Earl Shelton had come back with his ski mask fully up to retrieve the money bag. When I stood up he saw me and started to raise the gun again and at the same time he started bringing his ski mask down. I had a full view of his face. At that time I got back down on the floor. He grabbed the money bag and left. Then the police came.”

Mr. Watkins stated that from a distance of five to ten feet appellant’s face was in full view. Three days after the robbery Detective Marsh of the Madison Police Department called Mr. Watkins and requested that he come to the Department and view a photographic array to see if he recognized anyone. He was presented with nine photographs and, without hesitation, identified appellant as the black bandit who was involved in the robbery, saying, “Yes, that’s him.” Over appellant’s objection Mr. Watkins made a positive in-court identification of appellant as one of the participants in the robbery. He testified that his identification was based on seeing appellant’s face in plain view when he came back into the store to get the money bag. Stated another way, Mr. Watkins’ in-court identification was independent of the photographic display. The series of photographs was admitted into the evidence as State’s Exhibit 1 without objection.

Appellant did not testify but offered the testimony of three witnesses who testified that appellant was continuously in their presence at the American Legion Club, some distance from the place of the robbery, from about 9:00 p. m. on the date of the robbery until the Club closed the next morning at approximately 2:00.

At the conclusion of the State’s case in chief appellant moved to exclude the evidence and discharge him for failure of the State to make out a prima facie case. This motion was overruled and denied.

Appellant was tried and convicted for the robbery of Mark Bailey, of lawful money of the United States which was the personal property of Levon Parcus, doing business as the Quick Service Beverage Store and sentenced to thirty-five years in the penitentiary. He appealed to this Court and his conviction was affirmed on February 26, 1980, in an opinion by Judge Bookout in which all the judges concurred.

On this appeal appellant asserts that the evidence was insufficient to convict him as it was based on the testimony of only one witness.

This Court has many times held that in our system of criminal justice we do not travel on the numerical number of witnesses. A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Godbee v. State, 56 Ala.App. 174, 320 So.2d 107; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Arnold v. State, Ala.Cr.App., 348 So.2d 1092, certiorari denied, Ala., 348 So.2d 1097.

Alibi testimony, like all other testimony in a criminal prosecution, raises issues for the jury’s determination. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Graves v. State, Ala.Cr.App., 364 So.2d 700.

Conflicting evidence in a robbery prosecution as to whether appellant committed the robbery presented an issue for the jury to resolve and a verdict rendered thereon will not be disturbed on appeal. Howell v. State, Ala.Cr.App., 369 So.2d 297, certiorari denied, Ala., 369 So.2d 303.

The refused charges stating correct principles of law were fairly and adequately covered in the court’s oral charge and those given at the request of appellant.

We have carefully examined the entire record for errors affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Porter GILES, Jr. v. STATE.
    3 Div. 168.
    Court of Criminal Appeals of Alabama.
    April 22, 1980.

      George E. Hutchinson of Kirk, Hutchinson & Carroll, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This case on appeal consists of three consolidated appeals by Porter Giles, Jr., from convictions in each of three separate cases of a violation of the Alabama Controlled Substances Act. One of the cases (No. 79-708) was tried on a two-count indictment charging possession of phencyclidine in one county and marijuana in the other; there was a jury verdict finding defendant guilty under each count, and the court sentenced him to imprisonment for ten years; the verdict was returned and judgment of conviction was rendered on August 24, 1979, but the sentence was not pronounced until September 10, 1979, at which time defendant’s petition for probation was continued to September 24, 1979. On September 10, 1979, defendant entered a plea of guilty in each of the other two cases (79-706 and 79-707), and the court sentenced him in each of said cases to imprisonment for ten years, the sentence in each to run concurrently with the sentence in the case which was tried (79-708), and defendant’s petition for probation in each of said cases was continued to September 24 for determination. On September 24, 1979, the court in each of the three cases denied defendant’s petition for probation. On October 1, 1979, defendant took an appeal in each case. He was represented on arraignment in each case, on the trial of Case No. 79-708, and in all proceedings in the other cases, by retained counsel. On appeal in each of the cases, as an indigent, he is represented by appointed counsel.

A major assertion of error, which in most respects is a pivotal one, is to the effect that the court should not have admitted in evidence some .items that appellant says were obtained in violation of defendant’s right to security in his “houses, papers, and effects, against unreasonable searches and seizures.” He first presented the question by a written pretrial motion to suppress which was heard before commencement of the trial in case No. 79-708. A motion to suppress was also filed in each of the other cases, but there is nothing in the record before us to indicate that either of them was ever submitted. The court denied defendant’s motion to suppress in No. 79-708. We now consider appellant’s contention that this particular ruling of the court was erroneous.

The motion to suppress was expressly directed to the following:

“Any and .all contraband or personal property obtained from the Defendant, Marijuana, and Phencyclidine.”

The grounds asserted were the following:

“1. Said Contraband was not obtained by the officers as a result of a lawful arrest.
“2. Said contraband was not obtained on the basis of a search warrant issued prior thereto.
“3. Said search was an unlawful, war-rantless search not incident to a lawful arrest, therefore rendering said alleged contraband inadmissible as a matter of law.”

On the hearing of the motion to suppress, testimony of two officers showed that a search warrant had been obtained on affidavit of one of the officers and appearance by him before a judge of the District Court 15th Judicial Circuit, Montgomery County, commanding an immediate search on the person and premises of Porter Giles Alias, 2939 Maryland Drive, Montgomery, Montgomery County, Alabama, for marijuana. According to the testimony of the officers, who were the only witnesses on the hearing on the motion to suppress, they and other officers went to the home of defendant at 2939 Maryland Drive on February 8, 1979, at 1:45 P.M. and there executed the search warrant. They first knocked on the front door and nobody responded; there was some noise or movement in the house which they afterwards learned was a dog; they went to the back door, opened the door and entered. No person was in the house at the time. After searching the house they left a copy of the search warrant therein. They found and took possession of a large amount of marijuana that was located at various places in the house. They also took possession of a safe that they afterwards took to a locksmith who opened it by drilling. There was some marijuana, as well as some money and jewelry in the safe.

On the trial, the same two officers who testified on the hearing on the motion to suppress again testified as to the search of the house and as to what was found therein. Other officers also testified as to the search and the fruits thereof. There was expert testimony showing that the contents of many of the bags found in the house consisted of marijuana. The only other identifiable controlled substance was that of phencyclidine contained in eight or nine packets that were found in the refrigerator in the house, which were offered m evidence without objection as State’s Exhibit No. 2.

After the State had rested on the trial of the case, defendant took the stand in his own behalf. He testified that he lived at 2939 Maryland Drive, where he had lived for the last ten years; a woman who had two children fourteen and nine years of age also lived in the house in the room with defendant; defendant’s son, seventeen years of age, lived in a back bedroom of the house. Defendant said he was disabled and received a disability check each month in the sum of $535.00.

According to further testimony of defendant, which was largely developed on direct examination of him by his counsel, he owned the safe that was in the house, it having been left to him by his father. The last time he had been in the safe was about two days before the execution of the search warrant. He kept his money and his watches in the safe. He said that he did not keep any drugs in the safe, that he had no knowledge of any drugs anywhere in the house. According to him, he did not engage in the selling of drugs and he knew nothing about any drugs being in his home on February 8, 1979. He said that there were several others that had a combination to the safe, including two brothers, his son and his sister.

Although appellant does not concede that any of the drugs found in the house the day of the search were admissible in evidence, he, on appeal specially insists that the seizure of the safe and having it opened by a locksmith and the contents thereof taken into possession by the officers constituted unconstitutional search and seizure. Neither party presents any definite authority on this particular issue. It is clearly a more serious issue than any issue as to the seizure of marijuana, phencyclidine, drug paraphernalia and several others items in the house that were not in the safe. The contention of defendant as made on his motion to suppress fails utterly as to such items. It does not necessarily follow, however, that the search warrant that was being executed by the officers authorized them to take a locked safe out of the house and have it opened by a locksmith and the contents thereof,- including the marijuana therein, seized. We would attempt to determine that issue at this time but for the fact that it appears that the specific issue was not presented to the trial court. As indicated above, the motion to suppress did not contain any special reference to the marijuana in the safe or the other contents thereof. The motion was grounded upon a claim that there was no warrant to search the house. There was a valid warrant to do so.

During the trial, there were repeated references to the search of the safe and the contents thereof, but we do not find that any solid objections, based on any claim of an unconstitutional search and seizure, were ever made to testimony relative to what was found in the safe. On the other hand, defendant was as aggressive as the State, if not more so, in presenting such evidence, either by defendant as a witness or on cross-examination of witnesses for the State. It is clear that considerable evidence relative to the safe and its contents was received in evidence without any objection whatever by defendant. The closest to a definite objection by defendant to the introduction of such evidence was in the latter part of the trial when the bag of marijuana found in the safe, constituting State’s Exhibit No. 5, was offered in evidence, at which time the following occurred:

“Q. All right. I’ll show you this item that’s marked as State’s Exhibit No. 14, excuse me, State’s Exhibit No. 5, and ask you if you recognize it. If you’ll take it and look at it, if you recognize what it appears to be?
“A. Yes, sir.
“Q. What does it appear to be?
“A. It appears to be the same marijuana and bag that was taken from the safe. “Q. Did you take these items from the safe?
“A. Yes, sir.
“Q. And after you took them from the safe, State’s Exhibit No. 11 [sic], what did you do with them?
“A. I gave them to Property Officer Charles Baugh, Charlie Braughum with the A.B.C.
“Q. Is it Baugh or Baughum?
“A. I don’t remember.
“Q. Do you see the gentleman here in Court, today?
“A. Yes.
“MR. BELL: Your Honor, at this time the State would offer in evidence the exhibit marked State’s Exhibit No. 5. “MR. PRICE: We object, Your Honor. May I reiterate the comments made on the motion earlier?
“THE COURT: All right.
“MR. PRICE: To support my objection earlier—
“THE COURT: It’s in.
“(Whereupon, marijuana, marked for identification State’s Exhibit No. 5, was offered and received into evidence.)”

No ruling of the trial court was ever invoked on the specific issue now raised, whether the bag of marijuana found in the safe was the product of an unconstitutional search and seizure and for that reason it was inadmissible in evidence. It is not within the province of this Court to determine the legality of the action of the officers in finding and taking possession of the marijuana in the safe in the absence of a challenge, by appropriate procedure or objection in the trial court, of the legality of the action of said officers. Woodward v. State, 52 Ala.App. 524, 294 So.2d 772 (1974); Hegmon v. State, 50 Ala.App. 486, 280 So.2d 192 (1973). Strikingly similar, and not materially distinguishable, in the facts as to rulings invoked in the trial court, are those found in State v. Desjardins, Me., 401 A.2d 165, 168 (1979), in which it was said:

“Absent, however, the presentation of this particular issue to the trial court for adjudication, either at the pre-trial hearing on the motion to suppress or at the trial itself, the defendant’s present theory of inadmissibility of the evidence, if advanced for the first time before the appellate tribunal, would come too late. It is a well established principle of appellate procedure in criminal proceedings that a foundation must be laid in the trial court for review of the claim of error by the appellate court. State v. Inman, Me., 350 A.2d 582 (1976); State v. Pike, Me., 306 A.2d 145 (1973); State v. Wheeler, Me., 252 A.2d 455 (1969).”

In Desjardins, there was an absence from the record of the motion to suppress, which is in the record in the instant case, but the court therein made it clear that if the motion to suppress had been in the record on appeal and had contained therein “grounds for relief in the broad and literal conclusory terms of the rule, that the marijuana and related drug paraphernalia were ‘illegally seized without a warrant,’ such, without more, would be insufficient to raise the question presently pressed before this Court . .” 401 A.2d at 169. The court then cited Rule 41(e), M.R.Crim.P., providing that “the justice [hearing the suppression motion] shall receive evidence on any issue of fact necessary to the decision of the motion.” and stated:

“. . This language implies that the suppression movant must articulate in his motion with sufficient particularity the specific reason on which he bases his claim that the seizure without warrant was illegal, so that the court will recognize the issue to be decided. See Cohen v. United States, 378 F.2d 751 (9th Cir. 1967), cert. denied, 389 U.S. 897, 88 S.Ct. 217,19 L.Ed.2d 215; United States v. One 1965 Buick, 392 F.2d 672 (6th Cir. 1968).”

It should be stated that it appears that failure to raise on the trial the precise issue as to the admissibility in evidence of the marijuana found in the safe that is raised on appeal does not constitute a mistake on the part of defendant or his counsel. On the contrary, it is obvious that there would have been little, if anything, to gain by an exclusion from the consideration of the jury of the existence of marijuana in the safe. Defendant’s counsel, realizing the mountain of evidence against defendant by the large quantities of marijuana and drug paraphernalia found in various places in the house, was working to the best interest of defendant in attempting to capitalize upon what was found in the safe, to which several, in addition to defendant, had the combination and ready access. It may have been a two-edged sword, but there is no basis for the conclusion that whatever edge there was against defendant was any sharper than the edge against the State.

Appellant strenuously insists that the evidence was not sufficient to support his conviction. In asserting a sound principle that “where the Defendant is in nonexclusive possession of premises on which drugs are found it cannot be inferred that he knew of the presence of such drugs and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference,” he relies upon authorities from other jurisdictions, which we have considered.

In Delgado v. United States, 327 F.2d 641 (9th Cir. 1964) nine marijuana cigarettes were found in a drawer of a night stand situated at the foot of the common bed in the bedroom of two defendants, each the common law spouse of the other. A small quantity of loose marijuana in a folded newspaper was also found. There was no evidence whatever that pointed the finger of guilt more directly to the one rather than the other of the defendants. There was hardly enough marijuana to justify a conclusion that both were guilty. Delgado is an entirely different kind of case from the instant case, in which there was enough marijuana and phencyclidine for a while for defendant, his seventeen-year-old son, and his common law wife, as well as for a large number of outsiders.

Appellant says that the instant case is analogous to Feltes v. People, 178 Colo. 409, 498 P.2d 1128 (1972), wherein a large number of persons were in a room in a chalet in which officers, acting pursuant to a search warrant, discovered marijuana, hashish, and narcotics paraphernalia in various locations. The Supreme Court of Colorado reversed the convictions of two defendants who were occupying a bedroom in which a box containing marijuana debris in the dresser drawer was found. Convictions of the other defendants were affirmed. Feltes is not analogous, in our opinion.

Baker v. State, 127 Ga.App. 403, 194 S.E.2d 122 (1972) is not helpful to appellant. It held that the presumption that the head of a household possesses contraband found on premises is not applicable where others, not members of defendant’s household, but living there, have equal access. It cannot be correctly said that defendant’s seventeen-year-old son was not a member of his household; nor can it be correctly said that his common law wife and her fourteen-year-old and nine-year-old children were not members of his household.

In distinguishing between cases which have held there was a probability that persons other than the defendant were the possessors of the controlled substance involved and cases to the contrary, the line is clearly drawn by Judge DeCarlo in Smith v. State, Ala.Cr.App., 351 So.2d 668, distinguishing that case holding the evidence sufficient from other cases in which the evidence was held insufficient, by reason of the fact that in Smith the contraband was found in appellant’s residence. In Williams v. State, Ala.Cr.App., 340 So.2d 1144, as well as in Cook v. State, Ala.Cr.App., 341 So.2d 183, the prohibited substance was not found in the residence of appellant.

Evidence in the instant case showed that the usual utility services for the residence were in the name of appellant. All of the circumstances, including appellant’s ten-year residence at the place and his relationship with others who occupied the residence, definitely point to him as the person having dominion over the premises. His blanket denial of any knowledge of the presence of controlled substances and apparent sales thereof was understandably incredible to the jury.

Appellant contends that there was error in the court’s permitting the introduction in evidence of some marijuana that was not in the residence of defendant at the time it was searched. Such marijuana identified as State’s Exhibit 13 was found in a 1972 Cadillac automobile being driven by defendant in the vicinity of the residence about five hours after the search, at which time defendant was arrested for possession of the phencyclidine and marijuana found in his residence. On the motion to suppress, there was no evidence pertaining to the marijuana found in the automobile. No evidence was offered on the trial with reference to such marijuana until defendant had taken the stand and had denied knowledge of the presence of marijuana and marijuana paraphernalia in his house, including a marijuana pipe found in the dresser drawer of the bedroom he occupied, and any connection with traffic in controlled substances. The following shows the first question as to the marijuana in the Cadillac:

“Q. Isn’t it a fact Mr. Giles that when they arrested you that you had some marijuana in your car?
“MR. PRICE: I object to that, Your Hon- or. It’s prejudicial, irrelevant, it has no appropriate value plus it’s prejudicial to the defendant and being brought open in plain view in front of the jury. Judge, may we approach the bench? “(Whereupon, there was an off-the-record discussion at the bench between Mr. Bell and Mr. Price and the Court.)
“THE COURT: You all step into the Jury Room for a while so I can see what the lawyers have to say.
“(Whereupon, the Jury retired to the Jury Room, and the following occurred outside the presence of the Jury.)
“MR. PRICE: Your Honor, that is a separate and distinct charge against the Defendant which he is indicted for and he has not been convicted on it. He has not established any particular time with reference to how soon after or whether or not it is upon hearsay it is prejudicial to the Defendant, Your Honor.
“MR. BELL: Judge, I can bring Deputy Elijah in here and he’ll testify that this man was arrested on the same day prior to 7:30 at night that when he arrested the Defendant that they had an arrest warrant for him and he had probable cause to believe that there was some more dope in his car and they looked in his trunk and there was a sack containing a pound and a half of marijuana in there and he has testified on the stand that he didn’t have any marijuana and never had any.
“THE COURT: I think that’s a—
“MR. PRICE: Judge, I think he would have to show that it was a continued investigation which it was not or that it was part of res-gestae and I submit that is not enough.
“THE COURT: How about a pattern? “MR. PRICE: Well, he’s going to have to establish that, I believe who the car belonged to, who had been in the car prior to Mr. Giles, driving the car—
“THE COURT: He just made the statement that he owned a 1972, Cadillac. “MR. PRICE: I think the evidence would show that he does not own that car, Judge, he was just driving that car. “THE COURT: I believe he testified to Mr. Bell about the Cadillac, I thought you asked him if he had one and he said he did. What did he say?
“MR. BELL: Judge, it would have to be read back. I thought he said that he had a ’72 Cadillac.
“THE COURT: I don’t need it read back. “MR. PRICE: Mr. Williams, Larry Williams, has investigated and knows that that ear belonged to his brother, Your Honor, the car does not belong to Mr. Giles.
“THE COURT: He was in possession of it and was driving it at the time. I think that is admissible.
“MR. PRICE: Judge, that was some five hours after the search alone.
“THE COURT: That’s admissible. Bring the Jury back.”

Thereafter, defendant was further cross-examined as to the Cadillac. He said he had borrowed it from his brother and had had it about a month and a half and that he was “going to keep it” as “long as I had to use it.” He denied having any knowledge of the marijuana that the officers testified in rebuttal was in the trunk of the Cadillac at the time. There were no objections to any questions asked defendant on such cross-examination. After redirect examination of defendant, defendant rested. We have quoted above objections of defendant in their entirety as to questions asked defendant relative to the 1972 Cadillac and the marijuana therein. None of the grounds stated is valid, except perhaps that which is contained in the statement of defendant’s counsel, “That is a separate and distinct charge against the Defendant which he is indicted for and he has not been convicted on it.” It appears, however, that the quoted statement was made mistakenly, for thereafter in arguing the question as to the admissibility of the evidence of the marijuana found in the Cadillac, counsel for defendant said:

“I object to any further questions along this line, I understand, Your Honor ruled on the first objection but I don’t contend that we are getting into a matter that involved perhaps a second charge of something like that and that we are getting further than I think, Your Honor, intended. [Emphasis supplied].”

Appellant does not now contend that possession of the marijuana in the 1972 Cadillac was a part of the marijuana that defendant was charged with possessing in some other case, particularly in the two other cases (79-706 and 79-707).

The State called two witnesses on rebuttal to show that marijuana was found in the 1972 Cadillac after defendant was arrested. The first witness, Officer Elijah, testified on direct examination, as to which there was no objection by defendant, that they found in the trunk of the Cadillac “a brown paper sack and approximately two pounds of substance that we felt like was marijuana” and that they then took defendant “and the car and the marijuana to the jail.” The witness said that he opened the trunk with a key to the trunk during the testimony of the witness. Defendant's counsel made the point that the particular automobile did not have a key to its trunk but that the trunk door was opened by means of a trunk release in the glove compartment of the automobile. The State then called Officer Larry Williams who was also present at the time of the defendant’s arrest. Officer Williams testified that the trunk was not opened by a key but by a trunk release in the glove compartment of the automobile and that this was not done until defendant and the automobile had been taken to the jail and thereafter, out of the presence of defendant, the marijuana, constituting State’s Exhibit No. 13, sworn to be marijuana by an expert witness, was found.

In objecting to testimony as to State’s Exhibit No. 13, defendant’s counsel was shown to be absolutely correct in contending that it was not correct that the trunk of the automobile was opened by a key, and defendant was right in his testimony that the trunk was not opened and marijuana therein found in his presence, but we find nothing in the objections made by defendant that constitutes a valid ground of objection to the admission in evidence of the testimony relative to the marijuana found in the trunk of the automobile. No error, prejudicial to defendant, resulted from its admission in evidence.

We find no error in the record of the trial and proceedings in case No. 79-708 prejudicial to appellant, and the judgment appealed from therein should be affirmed.

CASES NO. 79-706 AND 79-707

In these cases, as shown hereinabove, defendant entered pleas of guilty. The record shows affirmatively that every precaution was taken to safeguard the defendant against any infringement of his constitutional rights in entering such pleas. It shows affirmatively that before the court accepted defendant’s plea of guilt, he was fully informed by the court of all of his pertinent constitutional rights and that he and his attorney acknowledged in writing receipt of such information and that they were completely satisfied that he knew what he was doing and that he was entering the guilty plea knowingly, voluntarily and intelligently. There is no contention to the contrary. In fact, there is no contention whatever on this appeal that in any way challenges the validity of the judgment and conviction in either case No. 79-706 or case No. 79-707. The judgment of the trial court in each of said cases should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court in each of the cases consolidated on this appeal (Circuit Court Cases 79-706, 79-707 and 79-708) is hereby

AFFIRMED.

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

DeCARLO, J., not sitting.


author: BOWEN, Judge.

text:
    Willie Earl THOMPSON v. STATE.
    4 Div. 785.
    Court of Criminal Appeals of Alabama.
    April 22, 1980.

      Charles Rene Sowell, Headland, for appellant.
    Charles A. Graddick, Atty. Gen., J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted and convicted of grand larceny and sentenced to six years’ imprisonment. The only issue on appeal concerns the propriety of the prosecutor’s remarks in closing argument.

The comment objected to appears in the record.

“MR. WHIDDON [Assistant District Attorney]: —has anyone refuted that, I ask you?
“MR. CRESPI [Defense Counsel]: I object to that as an incorrect comment. “THE COURT: Sustained. Ladies and gentlemen, please disregard that remark — any reference to that remark made by the District Attorney. It is not necessary in a case to refute that. The burden of proof is on the State of Alabama.
“MR. CRESPI: The defendant moves for a mistrial.
“THE COURT: Come up here, please.’ The trial judge denied the motion for a mistrial. In its final instructions to the jury the court charged:
“The defendant is under no obligation to say anything, put on any evidence at all to prove that he is innocent.
“It’s up to the State to prove this guilt, and the fact that he has not testified in this case is not to be considered by you in any way as any evidence in this case. It is a right that he has.”

Initially, we note that the prosecutor’s remark is ambiguous. The trial judge heard the entire comment in the context in which it was made and was in a much more favorable position to judge the prejudicial qualities of the comment.

In this case the defendant did not offer any defense and the State’s evidence was uncontradicted. The rule in Alabama is:

“Where the State’s evidence does stand uncontradicted, the prosecutor does have the right to point this out to the jury. In that circumstance the prosecutor could say: ‘There has been no refutation of any of the evidence presented by the State,’ or more simply, ‘The State’s evidence stands uncontradicted,’ or other appropriate comment to like effect.”
Beecher v. State, 294 Ala. 674, 682, 320 So.2d 727 (1975).

There were six persons and the defendant in the automobile when the defendant stole the purse. The State called three of these people to testify. Thus there were others who could testify other than the defendant. See Robinson v. State, 352 So.2d 11 (Ala.Cr. App.), cert. denied, 352 So.2d 15 (Ala.1977).

“A statement by the prosecuting attorney to the effect that the evidence for the State is uncontradicted or undenied is not a comment on the defendant’s failure to testify unless the defendant himself is the only one who can contradict or deny the evidence.”
Diamond v. State, 363 So.2d 109,113 (Ala. Cr.App.1978).

“Where the trial court immediately charges the jury to disregard the prosecutor’s improper remarks, there is a prima facie presumption against error.” Nix v. State, 370 So.2d 1115, 1117 (Ala.Cr.App.), cert. denied, 370 So.2d 1119 (Ala.1979).

The trial judge did not abuse his discretion in refusing to grant the mistrial because of the prosecutor’s remarks in closing argument. We have searched the record and found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and BOOK-OUT, JJ. concur.

DeCARLO, J., not sitting.


author: TYSON, Judge.

text:
    James Randy WHITE v. STATE.
    6 Div. 791.
    Court of Criminal Appeals of Alabama.
    April 22, 1980.
    Margie T. Searcy, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

James Randy White was charged by indictment with the robbery of Zippy Mart of Alabama, Inc., a corporation, in the possession of Dennis Victory by taking $38.48-in lawful currency from his person and against his will by putting him in fear, etc. The jury found the appellant guilty as charged in the indictment and fixed punishment at forty years imprisonment. The trial court set sentence in accordance with this verdict.

Because the oral charge of the trial court (R. pp. 126-138) did not cover the matter of the appellant’s right not to take the witness stand and testify at trial, we must reverse and remand this cause for a new trial. We, therefore, pretermit consideration of other assignments of error.

I

At the close of the trial court’s oral charge, appellant’s attorney tendered some thirty-five written requested charges, each of which was refused by the trial court (R. pp. 156-167). These charges were also called to the trial court’s attention in the motion for new trial, which was overruled by the trial court (R. p. 183). Refused charge number ten reads as follows (R. p. 159):

“The Court charges the jury that the fact that the Defendant did not testify in this case cannot be considered in determining the Defendant’s guilt or innocence. No inference or conclusion should be drawn by the jury from the fact that the Defendant was not sworn and put on the witness stand as a witness in his own behalf, nor should this fact have any weight with the jury in reaching a verdict.”

The above charge has been determined by this court to be a good charge requiring reversal if the same is not covered either by the oral charge of the trial court or by other given instructions. Swindle v. State, 50 Ala.App. 403, 279 So.2d 574 (1973). As in Swindle, the appellant did not testify; hence, the above charge is not abstract under the evidence in this cause.

For the error shown, this cause is reversed and remanded on the authority of Perry v. State (Ala.), 368 So.2d 310 (1979); and Swindle, supra, for a new trial.

Reversed and Remanded.

All the Judges concur.


text:
    Charles MORRISON v. STATE.
    8 Div. 333.
    Court of Criminal Appeals of Alabama.
    April 22, 1980.
    Terry Tumlin Bush, Rainsville, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Charles Morrison was charged by indictment with the second degree burglary of the Albertville Country Club. The jury found him guilty as charged and the trial court entered judgment which set sentence at three years imprisonment in the penitentiary.

The facts in this cause are as stated in the companion case of Trammell v. State, Ala.Cr.App., 377 So.2d 12 (1979). In the instant case, Billy Simpson, owner of Simpson’s Body Shop, stated that Mrs. Doris Nix drove up about 5:00 o’clock on the afternoon of September 25, 1978, and after a brief conversation with Robert Floyd and himself opened the trunk of her automobile and offered to sell some golf clubs and a bag which were in the trunk. Simpson testified that he recognized these clubs as being his own which he had left with Mr. Floyd at the Albertville Country Club for sale to someone else.

Terry Lynn Posey, a neighbor in a trailer adjoining that of Doris Nix, told of his conversation on the morning of September 24,1978, with the defendant, Charles Morrison, who opened the trunk of the automobile in which he had been riding the night before and discussed the possibility of selling some golf clubs and a bag which were in the trunk of the car. Mr. Posey indicated in response to a question (R. p. 86):

“Q. Describe what you saw in the trunk of the car.
“A. A red toolbox, gold clubs, golf bag, some little towels and some cigarettes, a pup tent and some sandwiches and a bottle of liquor and some beer.”

Posey stated that the defendant gave him a beer and offered him some sandwiches which were packaged and in the trunk of the car.

At the close of the State’s case, the defendant moved to exclude the State’s evidence on the ground of failure to present a prima facie case and also requested the affirmative charge. The trial court denied both.

I

Just prior to trial, the State called as its first witness the wife of the appellant, Doris Nix Morrison, and conducted a hearing out of the presence of the jury on whether or not she wished to testify against her husband (R. 17). The trial court advised her in detail that, pursuant to the provisions of § 12-21-227, Code of Alabama 1975, she had the right to testify and to make that decision herself, but that she could not be compelled to testify (R. pp. 18-21). Mrs. Morrison at first stated that she would testify (R. p. 17), then indicated that she was not sure and would rather not (R. p. 18). She then stated that she would prefer not to testify (R. p. 19) because “numerous threats” had been made by her husband against her with reference to her testifying (R. pp. 20-21), and therefore she would rather not testify (R. p. 21).

The trial court then granted a five minute recess at the request of the district attorney and allowed defense counsel to be present during the ensuing conversation between the district attorney and the prospective witness, Mrs. Morrison (R. p. 22).

The record then discloses the following colloquy (R. pp. 22-23):

“(WHEREUPON, the Defendant present in open court with his attorney, the following proceedings were had and done outside the presence of the Jury:)
“THE COURT: Ma’am, you have discussed the matter with the District Attorney and Ms. Bush, the Defendant’s attorney who was present with you.
“THE WITNESS: Yes.
“THE COURT: Have you decided whether you wish to testify?
“THE WITNESS: Yes, I will.
“THE COURT: You are going to testify? “THE WITNESS: Yes.
“THE COURT: All right. That is your choice.
“Was there any coercion or anything used against you that would make you testify? “THE WITNESS: No.
“THE COURT: This is a voluntary choice on your part?
“THE WITNESS: Right.
“THE COURT: All right. Bring the Jury in.
“We would like the objection still noted. “MR. THOMPSON: We would like to make sure that the record shows that during this recess Ms. Bush was present, the Defendant’s lawyer was present in our discussion.
“THE COURT: All right.
“MS. BUSH: Please instruct the witness not to answer if an objection is made.
“THE COURT: Now, Mrs. Morrison, if a question is asked and an objection is made, give me a chance to rule on it, and then you may answer when it is ruled on.
“THE WITNESS: Okay.
“(WHEREUPON, the Defendant present in open court with his attorney, the following proceedings were had and done in the presence and hearing of the Jury.)”

Appellant’s counsel asserts that the appellant’s wife was coerced or intimidated into testifying against the appellant, citing us to § 12-21-227, Code of Alabama 1975 (formerly Title 15, Section 311, Code of Alabama 1940), and asserts the trial court’s ruling as error.

We have carefully examined this record, including the colloquy above set forth, and are of the opinion that the trial court properly determined that Mrs. Morrison wished to testify, and that such a voluntary act on her part, after full explanation of her right not to testify against her husband, was in accordance with the Code section in question. While the appellant’s counsel asserts that such was not voluntary and was the result of intimidation, such as “mere argument in brief” and not substantiated by the record in this cause.

We believe the following statement by Mr. Justice Harwood, then Harwood, J., of the Court of Appeals, in Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837, cert. denied 254 Ala. 74, 46 So.2d 847 (1950), fully supports the ruling of the trial court and our determination here that Mrs. Morrison was properly advised of her privilege and voluntarily decided to testify in this cause:

“There is a duty on every person to testify in judicial proceedings, as the public has an interest in the proper and just conclusion of cases brought into the courts of a sovereign power. In the interest of certain policies certain classes of witnesses may be exempted from this duty, even though such exemptions may tend to interfere with full disclosure of facts. Among such classes of witnesses who may be exempted from testifying are attorneys who stand in relation of attorney and client to one of the parties litigant, priest in relation to confessor, etc., and since the enactment of Section 311, Title 15, Code of Alabama 1940, providing that husband and wife may testify either for or against each other in criminal cases, but shall not be compelled to do so, there may be added to this exempted class of witnesses, husband and wife. “This testimonial exemption is however a privilege, purely personal to the witness, and is solely a matter between the witness and the court.
“Thus even though Mrs. Wyatt had told the Solicitor she did not wish to testify against her husband, this was but an expression of her then existing intent, in no way binding on her and subject to being changed the next moment.”

There was no error in the trial court’s ruling on this question.

II

We have carefully examined this record and find that a prima facie case was properly presented against the appellant. His involvement with his companions, Trammell and Brown, at the Albertville Country Club on the night of September 23-24, 1978, was fully sustained by the evidence presented by the State through its witnesses. Though some of this evidence was circumstantial, nevertheless, it pointed to the guilt of the appellant. Trammell v. State, Ala.Cr.App., 377 So.2d 12 (1979).

We have carefully examined this record and find no error. The judgment is therefore

AFFIRMED.

HARRIS, P. J., and BOOKOUT and BOWEN, JJ., concur.

DeCARLO, J., not sitting.