author: BRADLEY, Judge.

text:
    Charley H. HOLCOMB v. HENDERSON NATIONAL BANK, now known as First National Bank of Alabama-Huntsville.
    Civ. 2539.
    Court of Civil Appeals of Alabama.
    March 18, 1981.
    Rehearing Denied April 22, 1981.
    Charles G. Spradling, Jr. of Legal Services of North-Central Alabama, Huntsville, for appellant.
    William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellee.
   BRADLEY, Judge.

On September 21, 1970 appellee, Henderson National Bank, filed a three count complaint against appellant, Charley Holcomb, in the Circuit Court of Madison County, Alabama. The complaint alleged that appellant had executed three separate promissory notes in favor of appellee, that these notes were due and payable, that appellant had defaulted on same, and that he was thereby indebted to appellee for a total sum of approximately $1,000. Appellee obtained a default judgment against appellant for $1,058.50 on October 21, 1971. On October 22, 1979 appellee served a writ of garnishment upon appellant’s employer, Automatic Electric Company. The writ ordered Automatic Electric to retain twenty-five percent of appellant’s future earnings “or the amount by which his disposable earnings exceed thirty times the Federal minimum hourly wage per week, whichever is less” until it had accumulated $1,605.74. That same day appellee notified appellant that it had served the writ upon his employer.

On June 25,1980 appellant filed a motion to amend the writ of garnishment and for a stay of garnishment in the circuit court alleging that, because the loans on which he had defaulted were consumer loans, his wages should be garnisheed in accordance with § 5-19-15 of the 1975 Code of Alabama rather than according to §§ 6-6-370 et seq. and § 6-10-7 of the Code. Appellant did not file any documents with this motion tending to substantiate his allegation that the aforementioned loans were, in fact, consumer loans.

On August 13, 1980, two days before the motion was scheduled to be heard, appellee served by mail a “response” to the motion upon appellant declaring that “the garnishment instituted against defendant [i. e. appellant] is properly governed by the general garnishment statutes found in Alabama Code § 6-6-370 et seq.’’ On August 15, 1980 appellee served an amendment to its August 13 response upon appellant repeating, but in greater detail, its contention that § 5-19-15 did not govern the garnishment of appellant’s wages. The circuit court overruled appellant’s motion on August 15, 1980. On August 19, 1980 appellant filed a sworn affidavit in support of his motion with the court alleging therein that:

All of the proceeds from each of the three loans with Henderson National Bank which form the basis of their judgment against me in this action were used by me solely for personal, family, and/or household purposes.

Seven days after the denial of the motion by the circuit court, appellant filed a notice of appeal to this court from its ruling.

Appellant contends in brief that his earnings should have been garnished in accordance with § 5-19-15 of the Code and not in accordance with §§ 6-6-370 et seq. and § 6-10-7. This contention is correct only if two other conditions are satisfied. First, it must be found that § 5-19-15 applies to consumer loans made before this section of the Code became a part of the law of this state; second, the loans upon which appellant defaulted must have been, in fact, consumer loans.

It is undisputed that the loans defaulted upon were made before October 1,1971, the date on which § 5-19-15 became part of the laws of Alabama. Moreover, the default judgment entered against appellant and the garnishment of his earnings pursuant to the writ of garnishment both occurred subsequent to this date.

In the recent ease of Street v. City of Anniston, Ala., 381 So.2d 26 (1980), our supreme court observed that:

It is true as a general rule that statutes will not be construed to have retrospective effect unless the language of the statute expressly indicates the legislature so intended. Baker v. Baxley, 348 So.2d 468 (Ala.1977); Mobile Housing Board v. Cross, 285 Ala. 94, 229 So.2d 485 (1969). “Remedial statutes,” or those relating to remedies or modes of procedure, which do not create new rights or take away vested ones, are not within the legal conception of “retrospective laws,” however, and do operate retrospectively, in the absence of language clearly showing a contrary intention. Sills v. Sills, 246 Ala. 165, 19 So.2d 521 (1944); Harlan v. State, 31 Ala.App. 478, 18 So.2d 744 (1947) ....

Appellant quite naturally argues that § 5-19-15 is a “remedial statute” which should be applied retrospectively so as to exempt a greater portion of appellant’s earnings from garnishment than are exempt under the current writ of garnishment, whose wage exemption provisions parallel those of § 6-10-7. Conversely, appellee argues that its rights under the loan agreements vested when they were executed by appellant and appellee, and appellant should not be allowed to vary the consequences of his default in repaying same in the absence of a clear expression of legislative intent to the contrary. We agree with appellee’s position and hold that § 5-19-15 may not be applied retrospectively in the present case.

Act 2052, Acts of Alabama 1971, presently codified as § 5-19-1 through § 5-19-31, Code of Alabama 1975, was enacted by the legislature to provide a comprehensive consumer finance law. Section 11 of said Act, now codified as § 5-19-15, provides for the amount subject to garnishment after judgment arising from defaults on consumer loans, consumer credit sales and consumer leases. In other words, the legislature provided a particular remedy by garnishment in those instances where there was a default on a consumer loan; a specific remedy for a new right, not a new remedy for an old right. Street v. City of Anni-ston, supra. Prior to Act 2052 there was no particular category of loans denominated as consumer loans. In the absence of a category of consumer loans at the time the loans in question were made, § 5-19-15 would not apply, unless it was made clear in Act 2052 that it was to have retrospective application. After a careful examination of Act 2052, we are unable to find any indication that the legislature intended that said Act have retrospective effect. In the absence of such a clear expression, § 5-19-15 applies only to loans to consumers as defined by § 5-19-1(2) and to actions brought according to § 5-19-11.

Inasmuch as Act 2052 is to be applied prospectively, the trial court correctly denied appellant’s motion seeking to have his wages garnisheed pursuant to § 5-19-15 rather than § 6-6-370 et seq., Code of Alabama 1975.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex parte Charley H. HOLCOMB. (Re Charley H. HOLCOMB v. HENDERSON NATIONAL BANK, etc.).
    80-534.
    Supreme Court of Alabama.
    June 19, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: WRIGHT, Presiding Judge.

text:
    William J. WYNN v. Amos THOMASON.
    Civ. 2745.
    Court of Civil Appeals of Alabama.
    May 6, 1981.
    Rehearing Denied June 3, 1981.

      Joseph W. Adams, Birmingham, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

This case involves the statutory attorney’s lien found in § 34-3-61(c), Code of Alabama (1975). That section, in pertinent part, reveals the following:

Upon all actions for the recovery of real ... property, and upon all judgments for the recovery of the same, attorneys-at-law shall have a lien on the property recovered, for their fees....

The sole issue on appeal is whether the action in which the appellant-attorney represented the appellee-client, and upon which the lien is asserted, was an action for the recovery of real property as envisioned by the statute. The facts, as they pertain to that issue are as follows:

Amos Thomason employed William J. Wynn as his attorney. Wynn filed suit on Thomason’s behalf seeking declaration that the interest rate on a note and mortgage executed by Thomason to one James Brown be declared usurious and that the amount of money owing to Brown under the note and mortgage be determined. The note and mortgage had been executed in an attempt to refinance the sale of certain real property purchased by Thomason from Brown. Thomason occupied the property as a home, was having trouble making his mortgage payments and feared foreclosure. Under the contract of employment, the attorney was to receive as a contingent fee a percentage of any sum saved by Thomason resulting from a finding of usury.

The trial court found the refinancing transaction usurious and fixed the amount owing from Thomason to Brown. Both parties filed post-trial motions which were denied. Having heard that Thomason had contracted to sell the property, Wynn filed a petition to intervene, requesting that the trial court determine the amount of attorney’s fee owed him by Thomason and declare the fee to be a lien upon the property. The trial court denied the attorney’s petition and refused to declare a lien upon the property. The attorney appeals and we affirm.

Section 34-3-61(c) provides for an attorney’s lien, in actions for the recovery of real property, upon the property so recovered by the plaintiff. Appellant-attorney’s argument is that the usury action in which he represented appellee was an action for the recovery of real property. The cases cited by the appellant fail to convince us that the attorney’s lien statute should extend to such a case. Neither do we find it persuasive that the transaction found usurious involved refinancing a purchase of real property. There was no recovery of property; there was only a determination that the interest rate applicable to the refinancing arrangement exceeded that allowed by law. The result was a reduction in the amount payable under the note and mortgage. Ap-pellee already had exclusive possession of the property; his right, title and interest in the property were established prior to the litigation and were not recovered as a result thereof. See, King v. Acuff, 218 Ala. 619, 119 So. 833 (1929).

The services rendered by the appellant resulted in no judgment or decree for the recovery of real property, and hence, neither created nor occasioned any lien under the statute. The judgment of the trial court is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Charley Vernon FALLS v. WARRIOR DRILLING & ENGINEERING COMPANY, INC.
    Civ. 2442.
    Court of Civil Appeals of Alabama.
    June 3, 1981.
    Slade G. Watson, Tuscaloosa, for appellant.
    Olin W. Zeanah and Larry Bradford of Zeanah, Donald & Hust, Tuscaloosa, for ap-pellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Charley Vernon Falls, an employee of Warrior Drilling & Engineering Company, injured his back while wrapping a metal chain around a drill pipe. Subsequently, he filed a complaint against his employer seeking workmen’s compensation benefits and medical expenses. After a hearing the trial court found that Falls had injured his back while employed by Warrior, determined that he had a twenty percent permanent partial disability and awarded benefits commensurate with such finding. Falls appeals.

Plaintiff’s contention here is that there is no evidence in the record to support the finding that he has a twenty percent permanent partial decrease in his earning capacity. He says the evidence would support a finding of eighty percent to one hundred percent permanent partial disability to earn.

It is well settled that the scope of review in workmen’s compensation cases is limited to questions of law and examination of the evidence to determine if there is any legal evidence to support the trial court’s findings. Farmers Gin Co. v. Rose, Ala.Civ. App., 374 So.2d 351 (1979). If there is any evidence to support the trial court’s findings, this court must affirm. Haney v. Dunlop Tire & Rubber Corp., Ala.Civ.App., 373 So.2d 334 (1979). Plaintiff’s sole contention here is that there is no evidence to support the finding that he has a twenty percent permanent partial decrease in earning capacity.

The evidence shows that the plaintiff is a twenty-eight year old male with a tenth grade education. Prior to being employed by Warrior he had engaged in a number of jobs, some of which were driving a truck, operating a front-end loader, pushing a wheelbarrow, and using a shovel and jackhammer.

At the time of his injury in November 1977, plaintiff was working on a drill rig for Warrior. After being injured plaintiff was treated by several doctors. The diagnosis was either a pinched nerve or a ruptured disc. Treatment was by traction and medication. No surgery has been performed on Falls.

The last physician seen by plaintiff prior to trial was Dr. Fernandez. He found that Falls was suffering from a “herniated lumbar disc, which had been irritating the nerve roots that compose the sciatic nerve.” The doctor prescribed muscle relaxants and pain medication.

Plaintiff testified that he could not stand for very long without experiencing pain. Dr. Fernandez stated that heavy lifting, repeated stooping and bending would contribute to plaintiff’s pain.

Dr. Fernandez said that plaintiff had a fifteen percent physical impairment to the body as a whole and that this rating would not change significantly in the foreseeable future. Dr. Fernandez also said that in arriving at this percentage of physical disability he did not consider plaintiff’s age, education, job experience or training.

A purported vocational rehabilitation specialist testifying for plaintiff said that Falls would be qualified to perform only twenty percent of the jobs he would have been qualified to perform prior to his injury. On cross examination he conceded, however, that he was not aware that Dr. Fernandez had released Falls for work when he evaluated Falls’s job prospects.

A circuit court is not bound by expert opinion testimony regarding the extent and permanency of a workmen’s compensation claimant’s disability in determining the percentage of permanent partial loss of ability to earn which the claimant has sustained by virtue of a disabling injury. Hester v. Ridings, Ala.Civ.App., 388 So.2d 1218 (1980); City of Enterprise v. Herring, Ala. Civ.App., 372 So.2d 358 (1979); Carroll Construction Co. v. Hutcheson, Ala.Civ.App., 347 So.2d 527 (1977). On the contrary, “the determination of the proper percentage of permanent partial disability rests with the trial court.” Hester v. Ridings, supra. In Hill v. J. P. Stevens & Co., Ala.Civ.App., 360 So.2d 1035 (1978), we said:

[T]his rule prevails where some testimony at trial indicates that the percentage of disability may be greater than the percentage ultimately determined by the court while other testimony indicates that it may be less.

The evidence in the present case is in conflict. The plaintiff stated that he had difficulty stooping, bending and picking up heavy objects due to severe pain. The vocational rehabilitation specialist testified that Falls had a job disability of eighty percent but then said that if he had known plaintiff’s doctor had released him for work, his estimation of Falls’s job disability would have been . less. On the other side was the testimony of Dr. Fernandez. He stated that Falls had a fifteen percent disability to the body as a whole. Falls was released for work with the admonition not to lift over twenty-five pounds.

The resolution of the conflict in the evidence was for the trial court, and we believe that its judgment is supported by some evidence. It is, therefore, affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    Hanna J. TURNER, who sues individually and as surviving spouse of Hal Turner, v. BIRMINGHAM CLAY COMPANY, a corporation.
    Civ. 2614.
    Court of Civil Appeals of Alabama.
    June 3, 1981.
    James N. Brown, III, and John F. Kizer, Jr., Birmingham, for appellant.
    Charles F. Carr of Rives, Peterson, Pet-tus, Conway, Elliott & Small, Birmingham, for appellee.
   BRADLEY, Judge.

This appeal is from the granting of a motion for summary judgment in a workmen’s compensation case.

The facts are as follows. Hal Turner was an employee of Birmingham Clay Company on October 30,1975 when he sustained serious injuries to his back and pelvis while operating a lift. Turner was paid temporary total benefits, hospital expenses, and medical expenses up until his death on August 24, 1977. At that time all workmen’s compensation benefits ceased. Birmingham Clay Company and its insurer informed the widow of Hal Turner, Hanna J. Turner, that no further workmen’s compensation benefits would be paid and that she would not be entitled to recover any money.

On December 13,1979 the deceased’s widow filed an action against Turner’s employer and its insurance carrier claiming, in essence, that she had been falsely informed that she was no longer entitled to further benefits and that she was entitled to recover additional compensation benefits. The employer answered the complaint and then filed a motion for summary judgment. At the hearing on the summary judgment motion the court received the deposition of Mrs. Turner, the death certificate for Mr. Turner and certain stipulations of the parties. The motion was granted and Turner appeals.

Mrs. Turner’s first contention is that § 25-5-57(a)(5), Code 1975, which provides for benefits to be paid to dependents of a disabled employee who dies after a disabling injury, is violative of the equal protection clauses of the Alabama and United States Constitutions. This issue was not raised in the trial court and is, therefore, not properly before this court for review. Hutchins v. Shepard, Ala. 370 So.2d 275 (1979).

Mrs. Turner’s final contention is that the trial court committed reversible error by granting the motion for summary judgment. We disagree and affirm.

As noted above, the controlling Code section for the factual situation presented by this case is § 25-5-57(a)(5), Code 1975. Said section provides:

(5) DEATH FOLLOWING DISABILITY. — In case a workman sustained an injury occasioned by an accident arising out of and in the course of his employment and, during the period of disability caused thereby, death results proximately therefrom, all payments previously made as compensation for such injury shall be deducted from the compensation, if any, due on account of death. If a workman who has sustained a permanent partial or permanent total disability, the degree of which has been agreed upon by the parties or has been ascertained by the court, and death results not proximately therefrom, the employee’s surviving spouse and/or dependent children shall be entitled to the balance of the payments which would have been due and payable to the workman, whether or not the decedent employee was receiving compensation for permanent total disability, not exceeding, however, the amount that would have been due the surviving spouse and/or dependent children if death had resulted proximately from the injury. Except as provided in this subdivision, no benefits shall be payable on account of death resulting, proximately or not proximately, from an injury on account of which compensation is being paid to an employee.

This section provides that all payments made to an employee who is disabled due to a job-related injury prior to his death shall be deducted from the death benefits his dependents are entitled to receive if his death was proximately related to the disability. The section also provides that if the death is not proximately related to the disability but the degree of disability had been agreed upon by the parties or had been ascertained by the court prior to death, the employee’s dependents shall be entitled to the balance of the payments he would have received.

As to the first situation provided for by § 25-5-57(a)(5), i. e. benefits to be paid where death proximately related to disability, the death certificate shows that Mr. Turner died as a result of metastatic renal cell carcinoma. Mr. Turner’s disability resulted from injuries to back and pelvis.

Mrs. Turner argues that a summary judgment may be granted only when the pleadings, affidavits, depositions, etc., show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974). She says that if there is a scintilla of evidence supporting the position of the party against whom summary judgment is requested, the granting of such judgment is improper. Coggin v. Starke Brothers Realty Co., Ala., 391 So.2d 111 (1980).

Mrs. Turner submits that the following evidence set out in her deposition created a scintilla of evidence that Mr. Turner’s death was job related and, therefore, the summary judgment is erroneous:

Q. What was the cause of Mr. Turner’s death, do you know?
A. Termination bleeding inside.
Q. Bleeding in his artery?
A. Inside, he was changing — terminating bleeding inside.
Q. Do you know whether this had anything to do with the injury at work?
A. Doctor said it did.

A trial court is not bound to consider inadmissible hearsay statements made by a party in a deposition offered in support of or in opposition to a summary judgment. Whatley v. Cardinal Pest Control, Ala., 388 So.2d 529 (1980). Mrs. Turner’s statement in her deposition is hearsay and the trial court was not bound to consider it. Consequently there was no evidence before the court that Turner’s death was proximately related to his disability.

As to the second category of situations provided for in § 25-5-57(a)(5), i. e. death not related to disability but the degree of disability was agreed upon by the parties or ascertained by a court prior to death, there is no evidence in the record upon which a finding could have been made that the degree of disability was either agreed upon by the parties or ascertained by a court prior to death.

For the foregoing reasons, the summary judgment is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: HOLMES, Judge.

text:
    Philip MAULDIN v. Carolyn Ann MAULDIN.
    Civ. 2621.
    Court of Civil Appeals of Alabama.
    June 3, 1981.
    Stanley E. Munsey of Rosser & Munsey, Tuscumbia, for appellant.
    Murray W. Beasley, Tuscumbia, for ap-pellee.
   HOLMES, Judge.

This is an appeal from the denial of an apparent rule 60(b)(6) motion filed below. We find no abuse of discretion and affirm the trial court’s action.

Although numerous motions and petitions were filed and many proceedings were had in the court below, we do not deem it necessary to detail them here. Suffice it to say that the Circuit Court of Colbert County divorced the parties and awarded custody of their minor child to the husband in February of 1980. In September of 1980, the court granted the wife’s petition to modify the decree; the court awarded custody of the child to the wife and ordered the husband to make certain child support payments.

The husband later filed a motion styled as follows: “MOTION PURSUANT TO RULE 60(b)(6) OF THE ALABAMA RULES OF CIVIL PROCEDURE: MOTION FOR NEW TRIAL AND MOTION THAT THE JUDGE RECUSE HIMSELF FROM FURTHER PROCEEDINGS IN THIS CASE.” That motion alleges certain errors and acts of impropriety on the part of the judges who heard various matters relating to the divorce of the parties.

The husband’s motion contains many allegations, including the following: (1) that the trial court erred in making certain changes in the parties’ written agreement prior to its incorporation into the divorce decree; (2) that the trial court erroneously reinstated the husband’s motion to reconsider the divorce decree, which motion had been withdrawn; (3) that the court held a hearing on the wife’s petition to modify the decree on September 5,1980, in the absence of the husband and his attorney ; and (4) that the wife and her attorney participated in certain “side bar conferences” with the trial judge in the absence of the husband and his attorney.

The trial court denied the husband’s motion and the husband appealed from the denial of the motion.

In considering the action of a trial court upon an ARCP rule 60(b) motion, this court looks only to determine if there has been an abuse of discretion. McSween v. McSween, Ala.Civ.App., 366 So.2d 293 (1979). Furthermore, this court must look only to the record for the evidence and cannot consider evidence outside of the record. United States Fidelity & Guaranty Co. v. International Brotherhood, 40 Ala. App. 452, 115 So.2d 42 (1959). In other words, errors, if any, committed below must be affirmatively demonstrated by the record before the Court of Civil Appeals. Summerlin v. Bowden, Ala.Civ.App., 353 So.2d 1175 (1978). If the record does not disclose the facts upon which the alleged error is based, such error may not be considered on appeal. Clevenger v. State, Ala. Civ.App., 369 So.2d 563 (1979).

As stated above the husband through able counsel has made many allegations of error and acts of impropriety on the part of the judges below. Clearly, such allegations must be supported by a factual presentation if the husband is to prevail. However, the record before this court reveals that the husband presented no evidence to support his allegations. In fact, no evidentiary hearing was held; no supporting affidavits or depositions were presented and the husband made no oral argument to the trial court. We particularly note that the husband withdrew his request for a hearing and specifically submitted the motion to the trial court for a “ruling.” The only portion of the record which purports to disclose any error is the husband’s motion itself; but that motion contains no more than unsupported allegations, we find no error by the trial judge in denying the motion.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.

      . We note, however, that the husband’s rule 60(b) motion states that both the husband and his attorney “chose not to appear before the Court” on September 5.


author:
BOWEN, Judge.
      BOOKOUT, Judge,

text:
    Anthony O’Hara JOHNSON v. STATE.
    6 Div. 915.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Rehearing Denied June 26, 1979.

      Robert W. Gwin, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The defendant was indicted and convicted under the Alabama Death Penalty Act for robbery when the victim is intentionally killed. Alabama Code Section 13-ll-2(a)(2) (1975). Punishment was fixed at death by electrocution. Both at trial and on appeal the defendant is represented by court appointed counsel.

In sentencing the defendant the trial judge made written findings of fact from the trial. Those findings are correct and accurately state the evidence introduced against the defendant. There was no defense presented. The trial judge found:

“The indictment in this case charges the defendant, Anthony O’Hara Johnson, with having committed a robbery wherein William Albert Farmer was the victim, and with having intentionally killed William Albert Farmer in the course of this robbery. The evidence taken on the trial of this case showed that the defendant, who was twenty years old at the time of the robbery, and a companion, who was twenty-four years old at the time of the robbery, had robbed William Albert Farmer on March 30, 1978, in downtowil Birmingham and killed him.
“William Albert Farmer owned and operated a jewelry store located at 1902 First Avenue, North, Birmingham, Jefferson County, Alabama, and it was at this location that the robbery took place.
“Just before the robbery, the defendant and his companion went into the store next door where a record player and stereo were being played and asked the clerk to turn the music up. This request was made by the defendant.
“Very shortly thereafter, the defendant and his companion proceeded into the Farmer Jewelry Store and robbed and killed Mr. Farmer, and ransacked the jewelry store of watches, rings and other items of jewelry.
“The companion proceeded out on the sidewalk and offered the occupant of an automobile, which was parked at the curb, ten dollars to drive him and his friend away from that location, and the occupants of the automobile refused and left.
“There was a witness there on the sidewalk, who was talking to the occupants of the automobile, who heard and reported the conversation. She saw the defendant then come out of the store and proceed behind his companion who had walked around the corner and was boarding a bus. The defendant also boarded the bus which proceeded north on 19th Street.
“The witness on the sidewalk summoned a policeman who appeared nearby on a three-wheel motorcycle, who came to the scene and put out a police call which resulted in the bus being stopped and the defendant removed from the bus. The proceeds of the robbery were found nearby, on the bus, and they, as well as the gun, were removed by the police.
“There was a witness seated on the bus who identified the defendant as the man who sat in a particular seat with the two bags of loot under his arm and who reported the conversation between the defendant and his companion wherein the companion suggested that the defendant put his arm over the bags so that no one could see what they had. One of the bags had one or more holes in it. This witness further reported that the companion had a billfold and was counting money in the billfold, and was instructed by the defendant not to be counting the money until they got where they were going.
“A billfold with the victim’s identification, as well as driver’s license, were found in the two bags of loot. When the police stopped the bus some six blocks north of the scene of the robbery, the defendant and his companion jumped up and ran to a seat in the back of the bus, leaving the bags of loot unattended where the defendant had originally kept them.
“When the police boarded the bus, asking questions generally as to who had the bags of loot, no one would reply, but from the direction of the eyes of the people seated nearby, as well as the fact that the defendant was perspiring heavily, the officer was led to arrest the defendant. His companion was not apprehended.
“The scene of the robbery was properly secured by the police and was turned over to the evidence technicians who made pictures and lifted a number of fingerprints from within the jewelry store, which were found to be the fingerprints of the defendant.
“The body of William Albert Farmer was laying on the floor. He was lying on his stomach and on the right side of his face. His right arm was doubled back under his head as if he was using it for a pillow. His left arm was in a raised position, joining the right hand with the hand and fingers of the left hand lying over the right hand. His hands were placed in such a manner as to appear as if he had been using his right hand as a partial pillow. There was a twenty-two caliber bullet wound in the center of the back of his neck at the base of the brain.
“An autopsy was performed and fragments of the bullet were removed and were examined by the toxicologist, but were not sufficient on which to base a ballistics comparison with the gun found in the bag with the loot, which had been in the possession of the defendant.”

I

Initially, the defendant maintains that from the record it cannot be determined whether he was tried in accordance with Alabama Code Section 13-11-8 (1975). That statute dictates the requirements for appointed counsel in death cases and reads as follows:

“Each person indicted for an offense punishable under the provision of this chapter who is not able to afford legal counsel must be provided with court appointed counsel having no less than five years’ prior experience in the active practice of criminal law.”

Nowhere in the record or in the defendant’s brief on appeal is it alleged that his counsel was not qualified. The defendant simply contends that the record does not prove or show he was qualified, and that absent such proof his conviction cannot stand. We disagree.

The record discloses that the trial judge determined that the appointed counsel, Hon. Robert W. Gwin, Jr., was qualified to represent the defendant.

“THE COURT: ...He (Gwin) complies, both in experience and ability, as well as legally and technically with the requirements for such a representation.
“So, I am going to ask Mr. Gwin to accept that appointment.
“I have discussed it with you. Squire, and I understand that you are willing to take this appointment, is that correct?
“MR. GWIN: Yes, sir.
“THE COURT: So, the Court does, at this point, rule the defendant to be indigent, under the circumstances, and appoints Mr. Gwin.” (Emphasis added).

The language of the statute does not require the record to show that appointed counsel has at least five years’ prior experience in the active practice of criminal law; it simply requires that the indigent accused be provided such counsel. Alabama Code Section 13-11-8 (1975). That the defendant in this matter was, in fact, provided with counsel meeting the statutory requirements is not questioned. Absent some tangible indication that the requirements of the statute were not met this Court cannot summarily rule, as a matter of law, that the statute was not complied with. Though not controlling, we deem it significant that appellate counsel was the defendant’s appointed trial counsel.

This Court remanded the case of Jacobs v. State, 371 So.2d 429, Ala.Cr.App., (1977) for an evidentiary hearing to determine whether appointed counsel met the statutory requirements for appointed counsel in a death case. There appointed counsel testified on motion for new trial that he was not qualified. Those facts and that issue are not presented in this case.

II

The defendant next alleges the trial court erred to reversal by admitting at the sentencing hearing, over objection, the grand jury testimony of Sergeant Howard Felts and Marie Merrill, the victim of a prior robbery committed by the defendant. The defendant further objected to certain portions of Sergeant Felts’ testimony at, the hearing concerning what Mrs. Merrill had told him about the facts of the prior robbery. The defendant submits that both the grand jury testimony and Sergeant Felts’ testimony relative to what Mrs. Merrill said concerning the past offense are violative of the hearsay rule. He further contends that the State did not show Mrs. Merrill’s unavailability to appear at the hearing as a witness and maintains that his opportunity for cross examination was thwarted.

Basically, the evidence elicited at the sentencing hearing revealed that the prior robbery had been conducted in a similar manner to the present offense. The defendant, along with two others, entered the Spidel Gem Company, a jewelry store in downtown Birmingham, at 1:15 P.M. on October 23, 1973, and robbed Mrs. Merrill of assorted costume jewelry and rings. During the course of that robbery the defendant shot Mrs. Merrill in the head; however, she survived the wound. Sergeant Felts stated that Mrs. Merrill later “looked at him (defendant) and stated that he was the one that had had the gun and the one that did the shooting”.

Alabama Code Section 13-11-3 (1975) defines what evidence is admissible at the sentencing hearing to aid the court in determining whether to sentence the defendant to death or to life imprisonment without parole. In pertinent part it reads:

“In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary fules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements; provided further, that this section shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the State of Alabama.” (Emphasis added).

The evidence in question was not secured in violation of the United States or Alabama Constitution. The evidence was not illegal and the defendant’s constitutional rights were at all times protected. That the defendant had been involved in a prior robbery where great violence had been perpetrated against the victim in an almost identical fashion is certainly of probative value and a relevant factor for the trial court to consider at the sentencing hearing. According to Section 13-11-3 the trial court need not be concerned with whether this evidence would be admissible under the exclusionary rules of evidence. If the evidence has probative value it may be received, “provided the defendant is accorded a fair opportunity to rebut any hearsay statements”. Alabama Code Section 13-11-3 (1975).

The question this court must resolve is whether the defendant was given a fair opportunity to rebut the hearsay statements. Sergeant Felts’ testimony concerning what Mrs. Merrill said in his presence was hearsay evidence. Mrs. Merrill was not called by the State. The reason given by the district attorney for her absence was that he had called her and “(s)he stated to me that she was afraid to come in and testify because of — for several things which have occurred as a result of this incident .... She appeared to be quite upset and nervous about it, and I just thought that it would be best that — from what attitude she took and how upset she was, I did not pursue her attendance further.”

The record indicates that the defendant was given sufficient opportunity to rebut any hearsay statements made at the sentencing hearing. On two occasions during the hearing the trial court, in response to the defendant’s objections, offered to have an instanter subpoena served on Mrs. Merrill compelling her appearance, thus providing the defendant with the opportunity to cross examine Mrs. Merrill and in that manner to rebut any statement attributed to her. On both occasions the defendant declined the trial court’s offer. Defense counsel specifically stated that he had talked to Mrs. Merrill and did not have any intention of calling her as a witness in the sentencing hearing.

The trial court was not obligated to do more than provide a fair opportunity for rebuttal. It more than adequately complied with the statute. In addition, the defendant could have called other witnesses to rebut the hearsay or could have thoroughly cross examined Sergeant Felts himself concerning the hearsay. Neither of those routes was pursued.

Thus, we conclude that the trial court did not err in admitting the grand jury testimony and Sergeant Felts’ testimony concerning the prior robbery committed by the defendant. This information was relevant for the trial judge to consider in deciding what sentence to impose and the defendant was accorded a fair opportunity to rebut any hearsay statements.

Ill

The defendant alleges there was a fatal variance between the indictment and verdict. This allegation has no merit. The indictment, omitting its formal parts, is set out below:

“ANTHONY O’HARA JOHNSON, Alias ANTHONY O’HARRY JOHNSON, Alias ANTHONY O’HENRY JOHNSON, whose name is to the Grand Jury otherwise unknown, feloniously took one man’s wallet of the value of FIVE DOLLARS, one ladies diamond ring of the value of ONE HUNDRED EIGHTY-FIVE DOLLARS, one ladies wedding ring set of the value of TWO HUNDRED DOLLARS, one man’s diamond ring of the value of ONE HUNDRED NINETY DOLLARS, one ladies birthstone ring of the value of FORTY-FIVE DOLLARS, and one man’s ring of the value of ONE HUNDRED THIRTY-FIVE DOLLARS, the personal property of William Albert Farmer, from his person and against his will, by violence to his person or by putting him in such fear as unwillingly to part with the same, and the said defendant in the course of the aforesaid robbery, did intentionally kill William Albert Farmer by shooting him with a pistol, and that said offense took place subsequent to March 7, 1976, ...”

This indictment was read in its entirety by the court to the jury during the court’s oral charge. After deliberations the jury returned a verdict which read: “We, the jury, find the defendant guilty as charged in the indictment and fix his punishment at death.” Thus, there was no variance between the indictment and verdict. Lindsay v. State, 29 Ala.App. 25, 191 So. 474, cert. denied, 238 Ala. 374, 191 So. 475 (1939); Smith v. State, 35 Ala.App. 580, 50 So.2d 791 (1951). The jury, by bringing back the general verdict of guilty, in full compliance with the trial judge’s instructions, convicted the defendant of the very crime charged in the indictment. Ex parte Clements v. State, 370 So.2d 723, (Ala.1979).

IV

It is also maintained that the following portion of the trial court’s oral charge erroneously informed the jury that the defendant was charged with murder:

“Now, this defendant, Anthony O’Hara Johnson, is charged with murder under what is referred to as the Alabama Death Penalty Statute, which became effective March 7, 1976.”

Although the trial court’s instructions were not objected to, this Court is obligated to review the entire proceedings, including the court’s oral charge, for plain error. The new plain error rule, Rule 45A, ARAP, provides:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant. (Adopted 10-2-78, eff. 12-1-78.)”

In deciding whether the defendant’s substantial rights have been adversely affected we must look to the entire context of the court’s oral charge to determine whether plain error exists which would merit reversal. When reviewing the propriety of a trial court’s jury charge, this Court must consider the charge as a whole, in its totality, without isolating statements, which individually may appear prejudicial, from the context in which they were made. Gosa v. State, 273 Ala. 346, 139 So.2d 321 (1962); Johnson v. State, 81 Ala. 54, 1 So. 573 (1886); Van Antwerp v. State, 358 so.2d 782 (Ala.Cr.App.), cert. denied, Ex parte Van Antwerp, 358 So.2d 791 (Ala.1978).

After reading the indictment and explaining to the jury its duty of fixing the defendant’s punishment at death if it believed him guilty, the trial court read that portion of its oral charge which is now alleged to be error. Immediately after that portion, however, the court continued:

“Under this statute, there are several different categories which call for the death penalty if the jury verdict is guilty. “The category of the offense for which the defendant is being tried is this: That where the defendant, while in the course of committing a robbery intentionally kills the victim of the robbery, that is, the person who is being robbed, then there is but one punishment upon a finding of guilty, and that is death in the electric chair.
“The elements in this case that you must find from the evidence, beyond a reasonable doubt, in order to convict this defendant of this offense and fix his punishment at death are these: that he did commit a robbery against William Albert Farmer, and, while in the course of committing that crime of robbery, he did intentionally kill William Albert Farmer. If you believe that beyond a reasonable doubt from the evidence and so find, then you should find the defendant guilty of the charge in the indictment and fix his punishment at death.”

The court then explained the law concerning co-conspirators and the elements of robbery to the jury, after which the court further charged:

“In order for the jury to find the defendant guilty, you must find from the evidence, beyond a reasonable doubt and to a moral certainty that the defendant committed the robbery as charged in the indictment, and that in the course of such robbery he intentionally killed William Albert Farmer, not accidentally and not inadvertently, but intentionally.
“It is not sufficient if the death occurred incidentally in the commission, or the attempt to commit a robbery. The defendant must have committed the act of killing intentionally and willfully, and that means governed by the will and that he intended to kill William Albert Farmer and that he did kill him.
“To determine the intent, you are to take into consideration all of the evidence of all of the surrounding facts and circumstances in determining whether the necessary intent was present, and this is true as to any element of this offense where intent is a necessary ingredient.
“Now, if you are not convinced from the evidence beyond a reasonable doubt and to a moral certainty that the defendant robbed William Albert Farmer and that in such robbery he intentionally killed him, then you must find the defendant not guilty.
“The absence of your being convinced from the evidence beyond a reasonable doubt and to a moral certainty as to either of these elements of the offense would necessitate finding the defendant not guilty.
“On the other hand, if, after a full and fair consideration of all the evidence in the case, you are convinced from that evidence beyond a reasonable doubt and to a moral certainty that the defendant intentionally killed William Albert Farmer while he was robbing him, then it would be your duty to return a verdict finding the defendant guilty as charged in the indictment, and, in that event, it would be your further duty to fix his punishment at death.”

Thus, when the court’s oral charge is considered as a whole, it is clear the jury was properly instructed that the defendant was charged with a robbery where the victim was intentionally killed, as charged in the indictment. The court’s instructions were neither erroneous nor confusing. The use of the word “murder” in the instructions when viewed in the light of the entire charge could not have prevented the jury from understanding the crime with which the defendant was charged. Any error in its use was at most harmless. Rule 45, ARAP. None of the language condemned in Clements, supra, or Jacobs, supra, is present in the instant case. In summary, the court’s oral charge comported with the indictment and was proper.

V.

Two sentencing hearings were conducted in this cause, the first on August 25, 1978, and the second on November 21, 1978. At the August sentencing hearing the trial court originally determined that one of the aggravating circumstances for this particular robbery when the victim was intentionally killed was that the capital felony was committed for pecuniary gain under Alabama Code Section 13-11-6(6) (1975). However, upon review of the Alabama Supreme Court’s decision in Ex parte Cook v. State, 369 So.2d 1251, (Ala.1978), the sentencing judge, in order to prevent error, withdrew that aggravating circumstance from his consideration in imposing the death sentence. The Supreme Court in Cook, supra, held that the aggravating circumstance of “a capital felony committed for pecuniary gain” was not to be applied to robbery, but was meant to “cover a variety of crimes committed with the hope of financial benefit, ranging from ‘murder-for-hire’ to an heir killing his benefactor to gain his inheritance”. Thus, the August 25th judgment and sentence were set aside, and the aggravating circumstance enumerated in Section 13-11-6(6) specifically removed from consideration.

At the November hearing the proceedings were reopened for further evidence and additional evidence was presented by the defendant. The sentencing judge considered this in addition to the evidence previously introduced at the August hearing. No further evidence was presented by the State. With the exclusion of the aggravating circumstance above stated, the sentencing judge adopted its original findings from the sentencing hearing.

“On the hearing held this date, to aid the Court in determining whether to sentence the defendant to death or to life imprisonment without parole, the Court finds from the evidence that the defendant was twenty years old at the time of the commission of this offense and that his companion was twenty-four years old.
“The Court finds that on the 23rd day of October, 1974, when this defendant was sixteen years old, the defendant and one or more black males, robbed the Spidel Gems Company, which was located at 119 Twentieth Street, North, Birmingham, Jefferson County, Alabama, approximately one block from where the Farmer Jewelry Company is located.
“The Court has examined the sworn testimony of witnesses before the grand jury in that case and finds that during this robbery, the defendant told the young, female clerk that ‘this is a stick-up’, and that when she turned to go to the back of the store he shot her in the head, but that the bullet did not break the skull. “Sergeant Felts who investigated that robbery testified that the bullet went under the skin and proceeded about one inch, and then exited without doing any serious damage.
“On August 22, 1974, the defendant pleaded guilty to the robbery and assault with intent to murder for the Spidel Gem Company robbery and shooting, and was sentenced to serve a term of imprisonment in the penitentiary for ten years in the robbery case, for two years in the assault with intent to murder case, and at this same time pleaded guilty to a burglary charge and was sentenced to a term of two years imprisonment in the penitentiary.
“Probation was denied and he served in the penitentiary on these charges until August 8,1977, which was approximately eight months before the robbery of the Farmer Jewelry Store at which time he was paroled, and was on parole when the present offense was committed.
“His fingerprints were also found at the scene of the Spidel Gem Company robbery.
“The defendant offered testimony from the defendant’s mother and grandmother, which indicates that the defendant was a product of a broken home and was shuttled back and forth between his mother and father until he was somewhere between the ages of nine and fourteen years, and that he was confined in a detention home for some reason which apparently stemmed from a fight which he had been in.
“At this present hearing, the defendant was present and was represented by an attorney, Honorable Robert W. Gwin, Jr., and the Court heard evidence offered by both the State and the defendant’s attorney, as well as arguments of the State and arguments of the defense counsel.
“The Court finds the following aggregating circumstances to be present in this case:
“1. This offense was committed by the defendant while he was on parole from a sentence of imprisonment for a crime of violence which was committed in a manner similar to the offense in the present case.
“2. The present capital felony was committed while the defendant was engaged in and accompanied by another person in the commission of the robbery.
“3. This capital felony was committed for the purpose of avoiding or preventing a lawful arrest for the purposes of getting rid of the victim so that he could not identify the defendant.
“4. This capital felony was committed for pecuniary gain. (This the trial court ‘ruled out and repudiated’ on August 25, 1978.)
“5. This capital felony was especially heinous and atrocious and appears to be an outright execution. The mitigating circumstances are as follows:
“a. The defendant was twenty years old and his alleged companion was twenty-four years old at the time of the commission of this capital felony. However, the Court further finds that the defendant is a person who has spent his life in the streets, which has been topped off by almost three years in the State penitentiary, and there is nothing to indicate that the defendant was a relatively minor participating partner. To the contrary, he appears to be the leader and the stronger of the two persons.
“b. Although no one saw which participant pulled the trigger on the gun which killed Mr. Farmer, the bag identified as the bag which the defendant carried from the store was the bag in which the only pistol was found, and, as stated before, the defendant appeared to be the dominant actor.
“The Court finds that the defendant, Anthony O’Hara Johnson, intentionally killed William Albert Farmer while the defendant was perpetrating a robbery and that he so killed his victim for the purpose of avoiding or preventing a lawful arrest.
“The Court further finds that this capital felony was especially heinous, atrocious and cruel, and that it was similar to a robbery and shooting committed by the defendant at the Spidel Gem Company in 1974. The Court further finds that this individual killed the victim in the course of this robbery with all the indications of an execution, since the evidence showed that the wound from the back of Mr. Farmer’s head was a loose contact wound, as well as due to the position of Mr. Farmer’s body, his hands, and his head immediately after the killing.
“After considering all of the evidence presented bn the trial of this case, as well as the evidence and arguments presented on the hearing this date, the Court finds no reason to change the verdict of the jury which fixed the punishment at death.”

The findings of the court are both proper and in accordance with §§ 13-11-4, 13-11-6, and 13-11-7 of the 1975 Alabama Code. Jacobs v. State, 361 So.2d 607 (Ala.Cr.App. 1977), affirmed, 361 So.2d 640 (Ala.1978).

A

The sentencing judge adduced that the defendant was “the leader and the stronger of the two persons” and was the dominant actor in the offense. This finding is supported by and may be inferred from the evidence of the defendant’s active and major role in the 1974 robbery and shooting, from the fact that it was the defendant who requested the neighboring store employee to turn up the music only minutes before Mr. Farmer was shot, from the fact that the pistol was found in the bag carried by the defendant, and from the fact that it was the defendant who told his accomplice not to count the money on the bus. Such a finding is not based on “total speculation” as the defendant argues.

B

Alabama Code Section 13-11-6 (1975) lists as an aggravating circumstance the fact that the capital felony “was especially heinous, atrocious or cruel”. These words were defined in State v. Dixon, 283 So.2d 1, 9 (Fla.1973); Alford v. State, 307 So.2d 433, 444 (Fla.1975).

“Again, we feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.”

These definitions were adopted by this Court in Jacobs v. State, 361 So.2d 607, 633 (Ala.Cr.App.1977), affirmed, 361 So.2d 640 (Ala.1978).

While this intentional killing was not cruel or atrocious within the meaning set forth above, we do find that the planned and deliberate execution of Mr. Farmer was shockingly evil and therefore heinous. Consequently the sentencing judge acted within his discretion in finding this aggravating circumstance present.

C

As another aggravating circumstance the sentencing judge found that:

“3. This capital felony was committed for the purpose of avoiding or preventing a lawful arrest for the purposes of getting rid of the victim so that he could not identify the defendant.”

Alabama Code Section 13-11-6(5) (1975) lists as an aggravating circumstance the fact that:

“(5) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.”

Although it has been argued, as does the defendant, that this aggravating circumstance has reference to and concerns only the protection of police officers rather than potential identification witnesses, Jacobs v. State, 361 So.2d at 638 (Judge Bookout in a specially concurring opinion), the Alabama Supreme Court has not specifically ruled on this issue. Jacobs v. State, 361 So.2d 607 (Ala.Cr.App.1977), was affirmed without reference to this issue in the majority opinion. Ex parte Jacobs, 361 So.2d 640 (Ala. 1978). Chief Justice Torbert, concurring in part, dissenting in part, noted that the facts did not support a finding that the “capital felony was committed for the purpose of avoiding or preventing a lawful arrest ... ”. “That circumstance applies only in the case where the defendant commits a capital felony to resist an actual, lawful arrest by an authorized individual.” Jacobs, 361 So.2d at 648.

The aggravating circumstances contained in Alabama’s Death Penalty Act are identical to those in the Florida Act. Jacobs, 361 So.2d at 633. In Washington v. State, 362 So.2d 658, 665-666 (Fla.1978), the Supreme Court of Florida found that the evidence justified the findings that the homicides were committed for the purpose of avoiding or preventing a lawful arrest (1) where one of the victims was buried in a shallow grave in the defendant’s backyard despite the fact that the defendant surrendered to the authorities (although only after his two accomplices were arrested at his residence and he had learned that he was also sought by the police); (2) where there was “every indication” from the evidence that the defendant attempted to kill the victim’s three sisters-in-law as well as the victim; and (3) where the participants, after killing a third victim, wrote matters on the walls of the house in order to leave the impression that the victim was murdered by a homosexual lover. The court found that the action described in this last circumstance “could only have been calculated to serve as a device to mislead police authorities and thereby avoid detection”. Washington, 362 So.2d at 666. The majority opinion further noted that although it is true that in some instances subsection (e) (Ala.Code § 13-11-6(5) (1975) — The capital felony was committed for the purpose of avoiding or preventing a lawful arrest) could apply to any robbery or murder situation where the victim was intentionally killed, the subsection would not be invariably applicable.

“Appellant additionally submits that Section 921.141(5)(e) should be taken in conjunction with the finding under subsection (d) [capital felony committed while defendant engaged in committing robbery and kidnapping] and subsection (f) [capital felony committed for pecuniary gain] of Section 921.141(5). He suggests that when the three subsections are read together it is apparent that under any kidnapping/homicide or robbery/homicide situation all these provisions would invariably be applicable. An analogy is sought to be drawn with Provence v. State, supra. Although it is true that in some instances the three analytical concepts could combine automatically in the described situations we cannot say as in Provence that circumstances (e) always occurs in a robbery/murder-kidnapping/murder situation. For example, a homicide can occur in connection with a robbery or kidnapping solely because the victim attempts to resist the crime which precipitates an altercation during which the victim is killed. In recognition of this we have heretofore affirmed death sentences in cases where the subsection (e) aggravating circumstance has been found in combination with a subsection (d) aggravating circumstance involving robbery as well as kidnapping. Meeks v. State, 339 So.2d 186 (Fla.1976) (robbery); Knight v. State, supra [338 So.2d 201, Fla.1976] (kidnapping).” Washington, 362 So.2d at 666. (Footnote added)

In Washington, only one concurring Justice argued that the “avoid or prevent lawful arrest” aggravating factor is reserved “for cases such as those in which the defendant participates in a ‘shoot-out’ with apprehending law enforcement officers, and possibly others in the same genre but not now as clearly identifiable”. Washington, 362 So.2d 667-668.

In Meeks v. State, 339 So.2d 186 (Fla.1976), the defendant and his accomplice, after robbing a Jr. Food Store employee, forced the employee and a customer to lie on the floor on their stomachs. Although the store employee did not die from her wounds, she was unable to say that the defendant actually fired the shots. The accomplice testified that the defendant fired all the shots into the bodies of the store employee and the customer.

In its findings of fact the trial judge stated:

The Court also finds, as an aggravating circumstance, that the capital felony was committed with the motive of avoiding and preventing arrest, was committed for pecuniary gain and to hinder the enforcement of law. Fla.Stat. 921.-141(6)(e)(f)(g).”
******
“Upon consideration, it was at the time of sentencing and is now, some hours later as the sentence of death is justified in writing, the inescapable conclusion of the undersigned that sufficient aggravating circumstances exist in the facts to justify the death penalty. The murder of the victim by the defendant was for the express purpose of executing the victim to prevent his identifying the defendant, so that the defendant could flee after having committed robbery at gunpoint for pecuniary gain which robbery was witnessed by the victim and to prevent the lawful arrest of the defendant and thus this conscienceless murder was designed to hinder the enforcement of laws.” Meeks, 339 So.2d at 190, 191. (Emphasis added).

In Meeks, although the Florida Supreme Court did not address the specific issue as it did in Washington, the court found that “the aggravating and mitigating circumstances surrounding the appellant’s commission of this truly senseless crime convince us that the death penalty is justified”. Meeks, 339 So.2d at 192.

Here the trial court found that the defendant executed Mr. Farmer “for the purpose of getting rid of the victim so that he could not identify the defendant”. This was justified under Florida’s construction of the particular aggravating circumstance under review. We adopt the construction of the Florida Court on its interpretation and meaning of the aggravating circumstance that “(T)he capital felony was committed for the purpose of avoiding or preventing a lawful arrest”. Hence the finding of the trial court was proper.

The record before this Court displays the conscientious and diligent efforts of the sentencing judge to consider any matter relevant or probative in sentencing the defendant. The defendant was given ample opportunity to present evidence in mitigation of the heinous crime he committed. We find no error in the sentencing procedures.

VI

The constitutionality of the Alabama Death Penalty Act was upheld in Jacobs, supra.

We have searched the record for any error which might have prejudiced the defendant. We have applied the “Plain Error Rule”. We are impressed with the cautious and watchful manner in which the trial judge conducted the trial and sentencing hearing. The defendant received a fair trial. The judgment of the trial court is affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT, J., concurs specially.

BOOKOUT, Judge,

concurring specially:

I concur in the result reached by the majority and likewise concur in most of what is stated in the majority opinion. However, I disagree on two points which do not affect the result reached in the instant case but which will probably affect other cases. Those two issues concern aggravating circumstances which I hope the Alabama Supreme Court will resolve.

The majority correctly states that the Alabama Supreme Court in Cook, supra, prohibits “pecuniary gain” from being used as an aggravating circumstance where the charge is robbery when the victim is intentionally killed by the defendant. As our Supreme Court said, this in effect condemns the defendant twice for the same act— stealing money. In my opinion, the same rationale expressed in Cook, supra, applies to using the circumstance that the “capital felony [was committed] in the course of a robbery” to aggravate the offense of capital robbery. The two are the same thing, and thus the defendant is being condemned twice for the same act — robbery. Therefore, aggravating circumstance number two listed by the trial court is inappropriate in the instant case, in my opinion. This in effect is finding that the crime charged was committed while the defendant was engaged in the crime charged.

I likewise believe that aggravating circumstance number three listed by the trial court is inappropriate. In this regard I do not concur with the majority opinion adopting the construction of the Supreme Court of Florida on the aggravating circumstance: “The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.”

That aggravating circumstance refers to avoiding or preventing a “lawful” arrest or “effecting an escape” from custody. In my opinion, that wording was added to the statute to protect peace officers. It is to deter “shoot-outs” with arresting officers or in escapes after arrests.

As stated in my special concurrence in Jacobs, supra, it appears that the words “lawful arrest” are significant in that a person in Alabama may resist, with force, an unlawful arrest. Green v. State, 238 Ala. 143, 189 So. 763 (1939). It should be noted that the legislature included escapes from custody along with the provision concerning lawful arrests. This reinforces my reasoning that the entire circumstance was an apparent attempt by the legislature to protect officers of the law from being murdered while attempting to make a lawful arrest or while having a prisoner in custody. If protecting potential witnesses was the intent of that section, the legislature would merely have said that killing a potential witness would be an aggravating circumstance.

It is elementary that criminal statutes are strictly construed in favor of the persons sought to be subjected to their operation. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). Such statutes reach no further in meaning than their wording. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952). The wording of the aggravating circumstance in question is clear and unambiguous to me. I do not believe that the wording concerning the preventing of a lawful arrest or effecting an escape from custody should be so broadened by construction as to include indirect or collateral effects. The indirect or collateral effect of many murders would be the lessening of the probability that the murderer would be identified and subsequently arrested. However, the problem the legislature was addressing in that section was the peril faced by peace officers in making lawful arrests or preventing escapes from custody. Such a peril is both immediate and direct during the course of an arrest or custody.

The continued broadening and expanding of aggravating circumstances to cover any and every situation which arises during the course of a murder will eventually lead the United States Supreme Court to find unconstitutional applications of the new death penalty statute. The judgment of the trial court is supported by aggravating circumstance number one and number five. The other aggravating circumstances listed in the trial court’s order were unnecessary to support its judgment and it is likewise unnecessary for this court to go on record adopting the very broad construction of the Supreme Court of Florida on an aggravating circumstance which is not crucial to the affirmance of the trial court’s judgment.

      . In stating its findings the trial judge noted: “Not only was the victim in this case stabbed and shot to death, but her three elderly sisters-in-law were also shot and stabbed in an effort by the defendant to eliminate all of the witnesses to his crimes. This was clearly for the, purpose of avoiding detection and thereby preventing his arrest for these crimes.” Washington, 362 So.2d at 663.

      . Provence v. State, 337 So.2d 783 (Fla.1976), held that in applying the statute which enumerates the aggravating circumstances in capital felonies to cases of robbery-murder, the fact that the defendant had a pecuniary motive at the time of the murder constitutes only one aggravating factor, despite the fact that the statute provides in separate subsections that the commission of a capital felony in the course of a robbery is an aggravating circumstance, West’s F.S.A. § 921.141(5)(d) and that the commission of a capital felony for pecuniary gain is also an aggravating circumstance. West’s F.S.A. § 921.141(5)(f). This is analogous to the Alabama Supreme Court’s holding in Ex parte Cook, 369 So.2d 1251 (Ala.1978), that the aggravating circumstance that the capital felony was committed for pecuniary gain does not apply to a capital offense of robbery wherein the victim is intentionally killed.

      . Fla.Stat. 921.141(5)(e) is identical to Ala.Code § 13-11-6(5) (1975): “The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.”
      Fla.Stat. 921.141(5)(f) is identical to Ala.Code § 13-11-6(6) (1975): “The capital felony was committed for pecuniary gain.”
      Fla.Stat. 921.141(5)(g) is identical to Ala.Code § 13-11-6(7) (1975): “The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.”


author: BEATTY, Justice. MADDOX, Justice

text:
    Ex parte Anthony O’Hara JOHNSON. (Re: Anthony O’Hara Johnson v. State of Alabama).
    78-670.
    Supreme Court of Alabama.
    Dec. 7, 1979.
    Robert W. Gwin, Jr., Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State, respondent.
   BEATTY, Justice.

The writ of certiorari was granted automatically in this case in which the death penalty was imposed as punishment. Rule 39(c), ARAP. We have carefully reviewed the record and the briefs of the parties on the points raised by the petition, and upon due consideration we affirm the conviction. We reverse and remand for a new sentencing hearing, however.

As noted by the Court of Criminal Appeals, there were two sentencing proceedings in the lower court. At the second hearing that court applied our decision in Ex parte Cook, Ala., 369 So.2d 1251 (1978), interpreting the aggravating circumstance of “a capital felony was committed for pecuniary gain” as contained in Code of 1975, § 13-11-6, and eliminated his consideration of that factor in his determination of the sentence. The trial court then adopted his findings made in the original sentencing hearing. These included the following:

2. The present capital felony was committed while the defendant was engaged in and accompanied by another person in the commission of a robbery [Subsection 4].
3. This capital felony was committed for the purpose of avoiding or preventing a lawful arrest for the purposes of getting rid of the victim so that he could not identify the defendant [Subsection 5],

The Court of Criminal Appeals held that these findings accorded with the provisions of § 13-11-6 on aggravating circumstances. We disagree with that conclusion because we are convinced that subsection (5) of § 13-11-6 requires a more limited interpretation than either court has given it. Subsection (5) states:

The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;

One interpretation of this provision would enable it to be applied in all felony cases in which death has ensued, for it could be said that one of the purposes of inflicting any death would be to prevent identification by the victim. The language of the provision, grouped as it is with other specific circumstances of aggravation, cannot have been intended by the legislature to have such an expansive application. The requirement of strict construction of criminal statutes also augurs for a more restricted interpretation. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. den. 265 Ala. 700, 90 So.2d 238 (1956). Utilizing the clear language of the provision to determine the circumstances to which it is applicable we conclude that it applies to “lawful arrest” or “escape from custody" situations. Cf. the concurring opinion of Torbert, C. J., in Jacobs v. State, Ala., 361 So.2d 640 (1978). It should be kept in view that the offenses for which the death penalty may be invoked are aggravated offenses. Undoubtedly the legislature, by adopting the provision in question, placed special emphasis upon the protection of persons effecting lawful arrests or who would be endangered during escapes from lawful custody, and thus sought to deter such conduct by applying the extreme sanction to it. It was error, therefore, for the trial court to have applied this aggravating circumstance to this factual situation which was inappropriate for any such application. We must remand the case to the Court of Criminal Appeals with directions to order a rehearing in the circuit court for the purpose of sentencing in accord with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED TO THE COURT OF CRIMINAL APPEALS WITH DIRECTIONS.

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

MADDOX, J., dissents.

MADDOX, Justice

(dissenting).

It is perfectly clear that the sentencing judge found “at least one” aggravating circumstance to exist; therefore, I think the sentence should not be set aside. Judge Bookout, in his special concurrence, stated that “(t)he judgment of the trial court is supported by aggravating circumstances number one and number five.” (Emphasis added). The majority apparently finds that the trial court’s finding No. 3 “[t]his capital felony was committed for the purpose of avoiding or preventing a lawful arrest for the purposes of getting rid of the victim so that he could not identify the defendant” is not supported by the record.

I conclude the trial court’s finding that the intentional killing was committed during the course of a robbery is not inconsistent with his finding that the intentional killing was also done “for the purpose of getting rid of the victim so that he could not identify the defendant.”

I respectfully dissent.


author: BOWEN, Judge.

text:
    Anthony O’Hara JOHNSON v. STATE
    6 Div. 915.
    Alabama Court of Criminal Appeals.
    Jan. 22, 1980.
   AFTER REMANDMENT

BOWEN, Judge.

As commanded by the Alabama Supreme Court in Johnson v. State, 399 So.2d 873 (1979), this case is remanded to the Circuit Court of Jefferson County for a hearing of the aggravating and mitigating circumstances in accord with the Alabama Supreme Court’s opinion in Johnson, supra.

REMANDED FOR HEARING OF AGGRAVATING AND MITIGATING CIRCUMSTANCES.

All the Judges concur.

Appeal after remand, Ala.Cr.App., 399 So.2d 875.


text:
    Anthony O’Hara JOHNSON v. STATE.
    6 Div. 915.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied May 5, 1981.
    Robert W. Gwin, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for appellee.
   ON RETURN TO REMAND

BOWEN, Judge.

Reversed and remanded on the authority of Beck v. State, Ala., 396 So.2d 645 (1980, modified March 6, 1981).

REVERSED AND REMANDED.

All Judges concur.


author: HARRIS, Presiding Judge. DeCARLO, Judge,

text:
    Omar TAYLOR v. STATE.
    3 Div. 118.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 17, 1980.

      Robert M. Beno, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the trial court sentenced him to thirty years in the penitentiary. At arraignment, in the presence of his counsel, he interposed a plea of not guilty and not guilty by reason of insanity. Appellant did not testify in the case in chief and he offered no evidence under his special plea of not guilty by reason of insanity.

Appellant filed a pretrial motion seeking to have his confession suppressed and his arrest declared illegal. A full blown hearing was held on this motion and much testimony was taken. At the conclusion of the hearing the motion to suppress was overruled and denied.

On December 2, 1978, three black males entered Moseley’s Grocery Store located at the intersection of West Jeff Davis Street and Cleveland Avenue at approximately 7:00 p. m. They had previously entered into an agreement to rob the store. There had been a number of robberies in this area of the city of Montgomery in recent weeks and the police officers had initiated an intensive manhunt in an effort to apprehend the robbers. They interviewed a number of suspects in the course of which they learned that appellant might be involved in the robbery of Moseley’s Grocery Store. According to one of the investigating officers the information that appellant might have been involved in the robbery came from a jail inmate who was a suspect in the same robbery. Charles Martin was in custody charged with rape and robbery in an unrelated case.

At the suppression hearing Police Officer R. D. Mobley testified that he had numerous conversations with Martin in the course of which Martin told Mobley he had information that appellant was involved in the robbery of the Moseley Grocery Store. Mobley stated that Martin, “didn’t tell me how he got it. I don’t know how he got it. He did not go into any details or who told him or when or where he obtained the information, but only that he was involved in a robbery ... He said that he had heard that Omar Taylor was involved in the robbery of Moseley’s Grocery. What part he took, he doesn't know.”

The trial court was concerned about the credibility and reliability of Mobley’s informant and officer Mobley was questioned along this line and replied, “I do not know him that well. I know I arrested him. He has never given me any information before, so I do not know.”

From the record:

“Q. So, what you are saying, then, based on what he told you, he had no way of knowing other than what he had heard from someone else whether or not the defendant (Taylor) may or may not have been involved in this robbery? In other words, he had to believe his source in order to give you the information he had.
“A. Yes, sir, as far as I know. I don’t know how he knew. I don’t know if he was a party to the robbery his self, (sic) He was a suspect to me at that time ... He did not go into any details or who told him or when or where he obtained the information, but only that he was involved in a robbery.
“Q. Was there anything other than your personal suspicion and based on your conversation with him previously, was there any reason or foundation for which you could believe the defendant (sic)? Were there any — did he give you any places where you may be able to find the money or find any of the weapons or any other element which might give credibility to his statements?
“A. No, sir. He didn’t say anything else other than the fact that he knew that Omar Taylor was involved in the robbery. He didn’t know where the money, gun or anything else was.”

Officer Mobley did not arrest appellant. He referred the information which he had received from inmate Charles Martin to two other officers assigned to the Robbery and Homicide Division of the Montgomery Police Department. These two officers arrested appellant without a warrant on January 4, 1979, at approximately 3:00 p. m., as he emerged from a pool hall on Holt Street. The arrest was based solely on the information furnished them by Officer Mobley following his interview with Charles Martin as set forth above. Upon arresting appellant they informed him who they were and told him that he was being arrested in connection with the robbery that occurred at Moseley’s Grocery and Meat Market. They searched him for weapons prior to putting him in the patrol car and transported him to the station house and surrendered him to other detectives for questioning. After appellant was placed in the patrol car one of the officers, from memory, recited to him his constitutional rights. One of the arresting officers, Sergeant Ed Alford, testified that the arrest was made on information furnished by other investigators in the Robbery Division who had interviewed Charles Martin. Acting on this information appellant was arrested without a warrant as the officer felt that it was necessary to pick him up and check him out. He was asked if he felt the information was sufficient to arrest appellant and he replied, “Well, I did not know because I had never seen him.” He was asked if there was any basis on which the credibility of Charles Martin could be established and he answered, “I did not attempt to establish any credibility on him.” Officer Alford further stated that the arrestee was not asked if he understood the rights given him and he replied, “I did not ask him anything concerning his rights. I just advised him of his rights.”

Mr. and Mrs. John Moseley were in the store on the night of December 2, 1978, when the robbery occurred. Mr. Moseley was at the cash register checking out customers and Mrs. Moseley was in the office near the back of the store when she observed two black men enter the store. One of the robbers entered the office and pulled a pistol on Mrs. Moseley and said, “This is a stick up. Give me all the money in the safe.” She told him there was no money in the safe. He again demanded the money and she told him that the safe was old and was not in use any more. He grabbed her by the collar of her coat and forced her from the office and told her to go to the back of the store. As she was leaving the office she looked in the direction of the check-out register and saw her husband and an employee with their hands in the air and another black man pointing a pistol at them. Shortly thereafter she saw two black men exit the store.

Mr. Moseley testified that just before closing time a black man, approximately five feet, five inches tall, came to the checkout counter and placed on the counter a two pound bag of Domino sugar and a package of Zeigler hot dogs. He asked for some lighter flints and when Mr. Moseley turned back around the man was standing there pointing a pistol at him. Mr. Moseley was ordered to open the cash register and give him all the money. Mr. Moseley flipped open the register and the bandit got the money himself. The amount was $600.00. The bandit then asked for his wallet and Mr. Moseley told him he did not have a wallet. With the pistol still pointed at Mr. Moseley the man again ordered him to produce his wallet. Mr. Moseley then reached in his back pocket and got his wallet which contained eight or nine hundred dollars in large bills and handed the wallet to the man. The man immediately ran from the store. The packages of sugar and hot dogs remained on the counter where the robber had placed them. Mr. Moseley then called the Police Department to report the robbery.

Mr. and Mrs. Moseley were unable to identify either one of the three black men engaged in the robbery at the lineup or in court. The officers were careful in picking up the packages of sugar and hot dogs to process them for latent fingerprints. The fingerprints turned out to be those of appellant and there is no contention to the contrary. The interrogating officers informed appellant that his fingerprints were found on the bags of sugar and hot dogs and he subsequently signed a waiver of rights form and executed a written confession. The proper predicates were laid and the waiver of counsel form as well as the signed confession were admitted into evidence.

Appellant does not question the voluntar-iness of his confession because it was shown without dispute that he was given the Miranda rights and warnings. It was also shown without dispute that no promises, threats, coercion, rewards or hopes thereof were made or held out to him to induce him to make and sign the confessions admitted into evidence. On the other hand appellant contends that he was illegally arrested without probable cause and without an arrest warrant and was involuntarily transported to the station house for interrogation which led to his confession. He urges this court to reverse his conviction on authority of the opinion of the Supreme Court of the United States in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). A careful reading of the opinion in Dunaway, supra, convinces us that it is controlling and this case must be reversed and remanded. We are left with no other choice.

The facts in this case leading to the arrest and detention of appellant and the facts leading to the arrest and detention of Dunaway are basically indistinguishable. In both cases the information was supplied by a jail inmate awaiting trial on unrelated unsolved crimes but the information supplied was insufficient to obtain an arrest warrant. Nevertheless, other detectives were ordered to pick up the suspects and bring them in for questioning. In each case the suspects were picked up and transported to the station house and placed in an interrogation room where each was questioned by officers after being given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Both waived counsel and eventually made statements that incriminated them in the crimes. Both filed motions to suppress the statements (and in Dunaway the sketches of the crime scene — and in appellant’s case the fingerprints he left on the packages of sugar and hot dogs) which were denied and both were convicted.

In Dunaway, supra, the court held:

“The central importance of the probable cause requirement to the protection óf a citizen’s privacy afforded by the Fourth Amendment’s guarantees cannot be compromised in this fashion. ‘The requirement of probable cause has roots that are deep in our history.’ . .. Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that ‘common rumor or report, suspicion, or even “strong reason to suspect” was not adequate to support a warrant for arrest.’ The familiar threshold standard of probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the ‘reasonableness’ requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary to the implementation of a workable rule.”

The court relied on some quotes from Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 and went on to say:

“These passages from Davis and Brown reflect the conclusion that detention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. We accordingly hold that the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause, they seized petitioner and transported him to the police station for interrogation.”

But there is more:

“There remains the question whether the connection between this unconstitutional police conduct and the incriminating statements and sketches obtained during petitioner’s illegal detention was nevertheless sufficiently attenuated to permit the use at trial of the statements and sketches. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
“The New York courts have consistently held, and petitioner does not contest, that proper Miranda warnings were given and that his statements were ‘voluntary’ for purposes of the Fifth Amendment. But Brown v. Illinois, supra, settled that ‘[t]he exclusionary rule, ... when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth,’ 422 U.S., at 601, 95 S.Ct., at 2260, and held therefore that ‘Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation.’ Ibid.
“ ‘If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted.... Arrests made without warrant or without probable cause, for questioning or “investigation,” would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings.’ Id., at 602, 95 S.Ct., at 2261.
“Consequently, although a confession after proper Miranda warnings may be found ‘voluntary’ for purposes of the Fifth Amendment, this type of ‘voluntariness’ is merely a ‘threshold requirement’ for Fourth Amendment analysis, 422 U.S., at 604, 95 S.Ct., at 2262. Indeed, if the Fifth Amendment has been violated; the Fourth Amendment issue would not have to be reached.
“Beyond this threshold requirement, Brown articulated a test designed to vindicate the ‘distinct policies and interests of the Fourth Amendment.’ Id., at 602, 95 S.Ct., at 2261. Following Wong Sun, the Court eschewed any per se or ‘but for’ rule, and identified the relevant inquiry as ‘whether Brown’s statements were obtained by exploitation of the illegality of his arrest,’ id., at 600, 95 S.Ct., at 2260; see Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Brown’s focus on ‘the causal connection between the illegality and the confession,’ 422 U.S., at 603, 95 S.Ct., at 2261, reflected the two policies behind the use of the exclusionary rule to effectuate the Fourth Amendment. When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts.
“Brown identified several factors to be considered ‘in determining whether the confession is obtained by exploitation of an illegal arrest[:] [t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct .. . And the burden of showing admissibility rests, of course, on the prosecution.’ Id., at 603-604, 95 S.Ct., at 2261-62. Examining the case before it, the Court readily concluded that the State had failed to sustain its burden of showing the confession was admissible. In the ‘less than two hours’ that elapsed between the arrest and the confession ‘there was no intervening event of significance whatsoever.’ Ibid. Furthermore, the arrest without probable cause had a ‘quality of purposefulness’ in that it was an ‘expedítion for evidence’ admittedly undertaken ‘in the hope that something might turn up.’ Id., at 605, 95 S.Ct., at 2262.
“The situation in this case is virtually a replica of the situation in Brown. Petitioner was also admittedly seized without probable cause in the hope that something might turn up, and confessed without any intervening event of significance. Nevertheless, three members of the Appellate Division purported to distinguish Brown on the ground that the police did not threaten or abuse petitioner (presumably putting aside his illegal seizure and detention) and that the police conduct was ‘highly protective of defendant’s Fifth and Sixth Amendment rights.’ 61 A.D.2d, at 303, 402 N.Y.S.2d, at 493, [People v. Dunaway, 61 App.Div.2d 299, 402 N.Y.S.2d 490]. This betrays a lingering confusion between ‘voluntariness’ for purposes of the Fifth Amendment and the ‘causal connection’ test established in Brown. Satisfying the Fifth Amendment is only the ‘threshold’ condition of the Fourth Amendment analysis required by Brown. No intervening events broke the connection between petitioner’s illegal detention and his confession. To admit petitioner’s confession in such a case would allow ‘law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the ‘procedural safeguards’ of the Fifth.’ ”

If the situation in Dunaway is virtually a replica of the situation in Brown, as noted by the Supreme Court, then the situation in the instant case is a replica of both Duna-way and Brown.

Section 200.08 of McElroy’s Alabama Evidence, Third Edition, Gamble, reads as follows:

“It has been said that the irrefutable rule in this state is that even if an individual is illegally detained, such detention in itself does not render a confession, obtained during such detention, involuntary and inadmissible. This holds true whether the accused was arrested without probable cause, without a warrant or whether he was detained beyond the time by which he should have been taken before a committing magistrate.”

Eleven cases from this court and the Supreme Court of Alabama are cited in footnotes under the above quotation. Doubtless there are many more such cases since this Third Edition was published in 1977. For the Bench and Bar to rely on such cases in the future will be extremely dangerous in the light of Dunaway v. New York, supra.

We are loath to reverse a case where the guilt of the accused is so clear and convincing and the guilt drips from the fingers of both hands, but our path is lighted in Duna-way and we are bound to follow this path.

The judgment of conviction is reversed and remanded on authority of Dunaway, supra.

REVERSED AND REMANDED.

All the Judges concur, except DeCARLO, J., who dissents with opinion.

DeCARLO, Judge,

dissents.

The United States Supreme Court in Dunaway v. New York, supra, reiterated the test laid down in Brown v. Illinois, supra, which articulates several factors that should be considered in determining the question; “[W]hether the connection between this unconstitutional police conduct and the incriminating statements and sketches obtained during petitioner’s illegal detention was nevertheless sufficiently attenuated to permit the use at trial of the statements and sketches.” Those factors are: (1) the temporal proximity of the arrest and the confession; (2) the presence of intervening circumstance; (3) and particularly, the purpose and flagrancy of the official misconduct.

The situation in the case involving the appellant, Omar Taylor, is distinguishable from that in the case of Dunaway v. New York, supra, because, in Dunaway, the accused made a statement within two hours after interrogation in the absence of an intervening circumstance which would have lessened the connection between his illegal detention and confession. In Dunaway, no “intervening circumstance” was present from the time the officers received the inmate’s hearsay information, to the time Dunaway rendered incriminating statements and sketches.

In the case involving Omar Taylor, the officers, prior to receiving any information from the inmate, did have in their possession fingerprints taken from the bag of sugar and the hotdogs present at the time of the robbery. Further, at the time the officers picked up Taylor, they had no other information from which an investigation could be commenced, other than the inmate’s allegation. The officers could not, at that time, determine the authenticity of the inmate’s statement concerning the appellant, Taylor, without a fingerprint comparison. Under these circumstances, it was reasonable for these officers to take Taylor into custody and to determine whether or not he was, in fact, the robber.

As the opinion reflects, prior to making any statement, Taylor was told by the interrogating officers that his fingerprints were found on the bag of sugar and on the bag of hotdogs, and it was after he had learned this information that he signed a waiver of rights form and executed a confession.

It was reasonable for the officers to investigate the information they had received because they were able to verify that information by comparison of fingerprints. The officers in Dunaway did not have an “intervening circumstance,” fingerprint evidence for comparison, which lessened the connection between the alleged misconduct by the police and the confession of the defendant.

Therefore, in my judgment based on the foregoing facts, it can not be said that the officers in the present case were engaged in an “expedition for evidence.” There existed in the case before us an intervening circumstance, that is, the fingerprint evidence. This “intervening circumstance” sufficiently attenuated any alleged unconstitutional conduct by the police so that the appellant’s inculpatory statements were admissible.

For the foregoing reasons, I respectfully dissent.