text:
    BANK OF GADSDEN, A Corporation v. DIXIE HEATING & COOLING COMPANY, INC., A Corporation.
    Civ. 3432.
    Court of Civil Appeals of Alabama.
    Jan. 5, 1983.

      Jim L. Wilson of Wilson & Hudson, Gadsden, for appellant.
    Jack W. Torbert, Jr. of Torbert, Turn-bach & Warren, Gadsden, for appellee.
   BRADLEY, Judge.

This is an appeal from a summary judgment involving the validity of a mortgage.

In early December 1979, Robert E. Beaube and wife, Carey G. Beaube, negotiated with the Bank of Gadsden for a construction loan. The loan was to be used for the construction of a house on lot number twenty-two in Western Hills Subdivision, second addition, plat “I,” page 147, Probate Office, Etowah County, Alabama. On December 12, 1979 a mortgage was executed purporting to convey this lot to the Bank of Gadsden. The mortgage to the bank listed Robert Beaube Construction Company as the mortgagor and the mortgage was signed as follows:

“Robert Beaube Construction Co. By: (s) Robert E. Beaube (s) Carey G. Beaube”

At the time the mortgage was executed, Robert E. Beaube and Carey G. Beaube owned this property individually. Nowhere in the body of the instrument was the individual ownership of the property reflected. The mortgage was filed for recordation in the Etowah County Probate Office on January 15, 1980. This instrument was indexed under the firm name Robert Beaube Construction Company and under the names of the individuals, Robert E. Beaube and Carey G. Beaube.

At the request of Robert and Carey Beaube, the plaintiff, Dixie Heating and Cooling Company, expended labor and materials on the property described in the mortgage. This work was done between March 11, 1980 and August 27, 1980. The plaintiff, on February 27, 1981, filed a verified statement of the claim of a lien. On the same day, plaintiff filed a complaint against Robert and Carey Beaube seeking to establish and enforce its lien and seeking a judgment for goods and services rendered. Soon thereafter, plaintiff amended its complaint adding Bank of Gadsden as a defendant and claiming that plaintiff’s lien has priority over the bank’s mortgage. Dixie Heating recovered a judgment against the Beaubes on April 23, 1981.

On December 29, 1981 Robert E. Beaube and wife, Carey G. Beaube, executed a mortgage conveying the aforementioned property to the bank. This instrument was filed for the purpose of correcting the prior mortgage executed by Robert Beaube Construction Company to the Bank of Gadsden.

Both plaintiff and Bank of Gadsden filed motions for summary judgment and memorandum briefs. After a hearing, the court granted plaintiff’s motion for .summary judgment. The judge found that the judgment against defendants Robert E. Beaube and Carey G. Beaube constituted a valid lien on the real property and that this lien was entitled to priority over the mortgage of the bank. The bank filed a motion to alter, amend or set aside the judgment and this motion was denied. The bank brings this appeal.

This court in reviewing summary judgments looks at the same factors which the court below considered in ruling on the motions. Chiniche v. Smith, 374 So.2d 872 (Ala.1979). The ultimate question in determining whether a summary judgment is proper is whether there remains a genuine issue of material fact. Myles v. Marine Engineering, Inc., 383 So.2d 189 (Ala.Civ.App.1980). Such a judgment is appropriate where it appears that the nonmoving party could not prevail under any set of conceivable circumstances. Whitehead v. Davison Oil Co., 352 So.2d 1339 (Ala.1977).

It appears from the briefs that the only factual issue in dispute is whether L.D. Boyd, the president of Dixie Heating, had knowledge of the mortgage instrument of December 12, 1979. Section 35-4-51, Code 1975, provides that filing of a mortgage constitutes notice of its contents. However, if the mortgage was void, as is argued by the plaintiff, constructive knowledge of the mortgage is immaterial and the court could properly grant a summary judgment. Defendant argues in brief that Dixie Heating had actual knowledge of the mortgage. This issue was not raised until after summary judgment had been granted. “The trial court can consider only that material before it at the time of submission of the motion.... Any material filed after submission of the motion comes too late.” Guess v. Snyder, 378 So.2d 691 (Ala.1979). Hence, the dispositive issue on appeal is whether the mortgage of December 12, 1979 was valid.

Section 35-11-211, Code 1975, provides for the priority of a lien as follows:

“Such lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the building or improvement; and as to liens, mortgages or incumbrances created prior to the commencement of the work, the lien for such work shall have priority only against the building or improvement, the product of such work which is an entirety, separable from the land, building or improvement subject of the prior lien, mortgage or incumbrance, and which can be removed therefrom without impairing the value or security of any prior lien, mortgage or incumbrance; and the person entitled to such lien may have it enforced by a sale of such buildings or improvement under the provisions of this division and the purchaser may, within a reasonable time thereafter, remove the same.”

Plaintiff takes the position on appeal, as it did at trial, that the December 12, 1979 mortgage is void. If the mortgage is void, plaintiffs lien has priority since the work was commenced prior to the execution of the valid mortgage on December 29, 1981.

Plaintiff contends the earlier mortgage is invalid since the property owners’ names do not appear in the body of the mortgage. In support of its contention, Dixie Heating cites several older Alabama cases which hold that for an instrument to convey title, not only must the instrument bear the grantor’s signature, but the owner must also be named as the grantor in the body of the document. Adams v. Teague, 123 Ala. 591, 26 So. 221 (1898); Johnson v. Goff, 116 Ala. 648, 22 So. 995 (1897); Gaston v. Weir, 84 Ala. 193, 4 So. 258 (1887). When a conveyance is subscribed by more than one person and one of the signer’s names is not shown in the granting clause or body of the instrument, such conveying instrument is void as to that person. Sheldon v. Carter, 90 Ala. 380, 8 So. 63 (1889).

Defendant, Bank of Gadsden, argues that the earlier mortgage is valid. Although the parties to the mortgage should be specifically set out in the body, if the description of the parties is sufficiently certain that their identity can be determined, then the instrument is valid. Sherrod v. King, 226 Ala. 522, 147 So. 600 (1933). “The requirement of the rule is met if, from the deed in its entirety, enough is shown from which, by the aid of extrinsic evidence, the names of the grantors can be made certain.” Sloss-Sheffield S. & I. Co. v. Lollar, 170 Ala. 239, 54 So. 272 (1910). When from the whole instrument it appears that the mortgage was made by the persons whose names are subscribed thereto, the instrument is valid. Frederick v. Wilcox, 119 Ala. 355, 24 So. 582 (1898).

The case at bar differs from the cases relied on by the defendant in that this case does not involve a partial description of the mortgagor, i.e. “the undersigned.” The name of the mortgagor is clearly and completely, yet erroneously, listed as Robert Beaube Construction Company. Although the instrument was signed by the property owners, it was signed by them in their representative capacities rather than as individuals. The mortgage of December 12, 1979 does not convey the Beaubes’ interest in the property.

Defendant also says that if the first mortgage was invalid, then the error made in listing the mortgagor was corrected by the subsequent mortgage and the correction relates back. Section 35-4-153, Code 1975, provides as follows:

“When, through fraud, or a mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a deed, mortgage or other conveyance does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, insofar as this can be done without prejudice to rights acquired by third persons in good faith and for value.” (Emphasis added.)

Plaintiff, however, fits into that category of persons whose rights would be prejudiced by such a reformation.

This judgment is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Dorothy B. FULLER v. The ZONING BOARD OF ADJUSTMENT OF the CITY OF BIRMINGHAM, Alabama, and Southbridge, A Partnership.
    Civ. 3548.
    Court of Civil Appeals of Alabama.
    Jan. 5, 1983.

      Stanley A. Cash, Huie, Fernambucq & Stewart, Birmingham, for appellant.
    John D. Clements and Gary M. London of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal is from the granting of a zoning variance whereby an eight story hotel instead of one of only six stories in height could be validly constructed upon a lot owned by Southbridge.

When the variance was allowed by the zoning board of adjustment, Mrs. Fuller, a contiguous landowner, appealed to the circuit court, where a jury trial de novo ensued. The jury, likewise, permitted the zoning variance. Mrs. Fuller further appealed and those proceedings were recently transferred to this court by the supreme court.

1

During the course of the trial in Birmingham, a local newspaper printed an article in the February 18, 1982 issue which did not mention the court trial but which described some efforts by an association to fight the construction of the planned hotel in that neighborhood. The article generally described some prior actions taken by the association in that regard as well as its unsuccessful efforts on the date of the article to have the Southbridge property rezoned by the city so as to prohibit the building of hotels within that zone. Comments of neighborhood residents and of some city officials were contained therein.

In the trial judge’s chambers before the trial resumed on the morning of February 19, 1982, the trial court called the attention of the involved attorneys to the newspaper article. Its possible impact upon the jury was discussed, and the trial court and counsel each expressed concern as to any prejudicial effect which the article might have produced upon the jury and the action to be taken by the trial court to remedy the situation. Instantly upon the resumption of the trial the following transpired:

“THE COURT: Good morning to you, ladies and gentlemen of the jury. Before we get started this morning, ladies and gentlemen, I want to ask you if during the course of the week, if there is any one of you who has seen an article, one or more articles in the paper concerning either directly or indirectly the building of the hotel on the site that we have been talking about this week? Have you seen such an article or one or more of them? Raise your hands, please. Keep them up just a little bit longer, please. I want the record to show that every one on the jury, except Mr. Wesley and Mr. Gant have seen it, so we have an extra, and Mrs. Marshall has seen it also. So that’s eleven out of thirteen.
“Now, I know that you ladies and gentlemen of the jury know that we don’t try a lawsuit on something that is written in the newspaper. I’m going to ask you to just disregard anything that you may have seen or read in connection with this matter. In the first place, it could lead you to the wrong impression, either one way or the other, pro or con, and that just wouldn’t be right. You wouldn’t be serving as a juror and you wouldn’t be honoring your oath to try the case based upon the evidence that comes to you from this witness stand and upon the law that the Court gives you. That is what we are to try this case on, not something that’s written in the newspaper, because for one thing, about three-fourths of the article is incorrect, which is not unusual for newspapers, and I’m not trying to reflect upon the young lady that wrote the article. She feels like she is just doing her job. But it’s absolutely without a doubt about three-fourths of it is absolutely incorrect.
“MR. LONG: Your Honor, we would like to have an exception to the Court’s statement to the amount of the article that is incorrect.
“THE COURT: All right, sir. So what I’m saying to you, ladies and gentlemen of the jury, is disregard anything you have read about it, any impression that you may have formed. Just put it out of your minds. You try the case and render a verdict in this case based upon the evidence that comes to you from this witness stand and upon the exhibits that are in the case and upon the law that the Court gives to you. Do each of you feel like you can do that? Is . .. there anyone that feels like they can’t do it? All right. Thank you very much. All right. Next witness.”

Mrs. Fuller first contends that the trial court erred in its remark to the jury that three-fourths of the article was incorrect.

“The trial judge’s statement to the jury must be viewed within the context of the entire charge. Nixon v. State, 268 Ala. 101, 105 So.2d 349 (1958); Beckley v. State, 353 So.2d 542 (Ala.Cr.App.1977). ‘(I)solated statements which appear prejudicial when taken out of context may be innocuous when viewed in light of the entire trial.’ United States v. McCoy, 539 F.2d 1050, 1063 (5th Cir.1976).
“[I]f error existed in the comment it was cured by the court’s own instructions embraced within and immediately following the comment. Lowe v. State, 54 Ala.App. 280, 307 So.2d 86 (1974).
“Remarks by the trial judge may be open to criticism, but they are not error unless they may have affected the result of the trial. Thomas v. State, 126 Ala. 4, 28 So. 591 (1900). It is not every erroneous expression of opinion by a trial judge, during trial, that will furnish a ground for reversal. To do so it must, in some manner, influence the result of the cause, or be supposed to do so. Lang v. State, 279 Ala. 169, 182 So.2d 899 (1966); Parker v. City of Birmingham, 36 Ala.App. 234, 56 So.2d 348, cert. denied, 256 Ala. 633, 56 So.2d 352 (1952). Each case rests upon its own peculiar facts and circumstances. Lockett v. State, 50 Ala.App. 58, 276 So.2d 643 (1973).”

McCovery v. State, 365 So.2d 358 (Ala.Cr.App.1978).

The trial court’s prompt instruction, after the objection was made, cured any error occasioned by the comment upon the accuracy of the article. While that remark might well have been left unsaid, it does not appear to have been so grossly improper or highly prejudicial as to be ineradicable. Any effect which the statement of the trial court might have had upon the jury was eradicated by the instructions which were given before and directly after the remark. The entire charge, and not just that observation of the trial judge, must be considered.

This was not per se a comment upon the evidence, for the newspaper article was never before the jury as an exhibit nor were its contents described to them through the court proceedings. The remark was about the article. As to whether anything contained in the publication was in accordance with, or contrary to, any part of the trial evidence, we have no means of knowing, for the record furnished to us does not contain any of the trial testimony.

We cannot hold as a matter of law that the observation of the trial court influenced the result in the case. We have nothing in the record which indicates that the trial court’s remark influenced the jury, either favorably or adversely, as to any party. To the contrary, the record includes the court’s instructions whereby the jurors were told in no uncertain terms to totally disregard the entire publication and any impression which they might have formed from it. Without exception, the members of the jury indicated that they could follow that directive.

We deem the quoted law from the McCovery case, supra, to be decisive that no reversible error exists as to this particular issue.

2

The oral charge of the trial court instructed the jury, in part, as follows:

“Now, no variance shall be authorized unless the jury finds and is reasonably satisfied from the evidence that the following conditions exist, and there are some four conditions, ladies and gentlemen, that I am about to read to you.”

Immediately following that portion of the oral charge, the circuit court defined each of the four conditions. Mrs. Fuller duly excepted to the above quoted charge on the ground that it failed to instruct the jury that a11 of the four conditions must exist before a zoning variance is authorized.

The oral charge of the court was clear and to the point that, before the jury might grant a zoning variance, it must be reasonably satisfied from the evidence that the “following conditions exist, and there are some four conditions.” That charge means that each and every one of the four conditions must have been met before any variance would be authorized and was a correct statement of the law in that respect. The issue raised is without merit.

We affirm.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Michael E. WILLIAMS and Gussie Allegro Williams v. UTILITIES BOARD OF the CITY OF SYLACAUGA and City of Sylacauga.
    Civ. 3585.
    Court of Civil Appeals of Alabama.
    Jan. 5, 1983.
    James M. Sizemore, Jr., Sylacauga, for appellants.
    Margaret L. Fleming of McCrary & King, Talladega, for appellees.
   HOLMES, Judge.

The plaintiffs sued the defendants for breach of contract. After a trial by jury, a verdict was returned in favor of the plaintiffs. The plaintiffs’ damages were assessed at $1,000. The plaintiffs appeal, contending the trial court erred in refusing to charge the jury concerning certain elements of damages.

In view of rule 51, Ala.R.Civ.P., this court has no alternative but to affirm.

Plaintiffs in this case are the owners of a home in Sylacauga where they live with their two minor daughters. A problem with the sewer system resulted in sewage backing up inside their home, and raw sewage overflowing in their yard. Testimony indicated this problem occurred often — “every time it rains.”

In their complaint, plaintiffs alleged they had an agreement with defendants, the City of Sylacauga and the Utilities Board of the City of Sylacauga, that defendants would maintain and operate a sanitary sewer system to remove sewage wastes from plaintiffs’ property. In return, as part of the agreement, plaintiffs paid a monthly fee. The complaint stated defendants breached said agreement by failing to carry off sewage wastes which allowed raw sewage to collect in the front yard “endangering the health of themselves and their children.”

As indicated, the case was tried before a jury. At the close of plaintiffs’ evidence, the court granted a motion by one defendant, the City of Sylacauga, for a directed verdict in its favor. On December 7, 1981, the jury returned a verdict in favor of plaintiffs against the Utilities Board of the City of Sylacauga for $1,000.

Plaintiffs, through able counsel, appeal, contending that the trial court erred in not charging the jury about damages for mental anguish, and in charging the jury that “plaintiffs are not entitled to recover damages based on endangering the health of themselves and their children.”

In his exception, after the trial court’s oral jury charges, the plaintiffs’ attorney stated: “We except to the Court’s charge that the plaintiffs are not entitled to damages against the defendants for endangering the health of themselves and their children.”

Appellee-defendant contends the plaintiffs failed to preserve for appeal any alleged error in the jury charges because plaintiffs’ attorneys failed to comply with the requirements of rule 51, Ala.R.Civ.P.

The dispositive issue on appeal is whether the objection of plaintiffs’ attorney was sufficient to preserve the alleged error for review on appeal.

Rule 51 provides in pertinent part that: “No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.” (Emphasis added.)

The general rule to preserve error in jury instructions for appellate review is that in addition to objecting to the charge, the complaining party must have stated adequately specific grounds as a basis for the objection. Nelms v. Allied Mills Co., 387 So.2d 152 (Ala.1980); Pitts v. Hulsey, 344 So.2d 175 (Ala.Civ.App.1977). The purpose for requiring statement of grounds for an objection or exception to an oral charge is to allow the trial court an opportunity to correct the instructions and to avoid the waste of time and money for reversals resulting from oversight, technical omissions, or remediable mistakes. Nelms v. Allied Mills Co., supra; Pitts v. Hulsey, supra.

In the instant case, plaintiffs’ attorney stated no grounds for his exception, hence failing to meet the specific requirements of rule 51 or the general rule as stated by our supreme court in Nelms.

However, there are narrow and limited exceptions to the requirements of rule 51, and such exceptions are closely tied to the purpose of rule 51 as explained above. Objections which did not state grounds have been allowed where the objection satisfied the purpose of the rule by its specificity and by adequately informing the trial court of the alleged error. Nelms v. Allied Mills Co., supra.

In Gardner v. Dorsey, 331 So.2d 634, 636 (Ala.1976), our supreme court noted: “Several federal cases which have considered the question whether a particular objection was sufficient to preserve error under FRCP 51 have found that a specific objection alone, without stated grounds, is sufficient where it adequately informed the trial judge of his error and afforded him an opportunity to correct it. Haynes v. Coolidge, 118 U.S.App.D.C. 348, 336 F.2d 736 (1964).”

Such an exception to the general rule was, in that case, an exception in part because of the nature of the error. In Gardner, the trial judge’s instruction misstated a point of substantive law. “Federal courts, in narrow and limited circumstances, have held that misstatements of substantive law in jury instructions can be preserved for review without specifically stating grounds for objection.” Gardner v. Dorsey, supra, at 637.

A few years after the Gardner decision, our supreme court, in a per curiam opinion, wrote:

“Although in Gardner v. Dorsey, [supra,] and Hosey v. Seibels Bruce Group, South Carolina Insurance Co., 363 So.2d 751 (Ala.1978) the objections to the court’s oral charge were found sufficient notwithstanding the failure to state the grounds therefor, these cases hold that the grounds requirement is excused only in the limited circumstance where the party makes a specific objection and the charge involves a misstatement of substantive law.”

Louisville & N.R. Co. v. Garrett, 378 So.2d 668, 674 (Ala.1979).

Our reading of the cases indicates the narrow and limited exception to the rule 51 requirement of stating the grounds for the objection exists when the trial court is adequately informed of its alleged error by an objection which is both specific as to the charge objected to, and which deals with a misstatement of the law. See Nelms v. Allied Mills, supra; Louisville & N.R. Co. v. Garrett, supra; Pitts v. Hulsey, supra. Put another way, was the trial court sufficiently notified of the alleged misstatement of the law so that it could correct it at that time?

In the instant case, examination of the objection of plaintiffs’ attorney indicates the objection did not adequately inform the trial judge of the alleged error. In fact, it lacks sufficient specificity to inform the trial judge of the exact nature of the matter objected to. The objection speaks in terms of damages to the plaintiffs for endangering their health and their children’s health. Such language indicates a personal injury claim, and in fact, whether a personal injury claim was an element of the suit was discussed by attorneys of both parties and the judge immediately prior to the jury charges. However, the plaintiffs’ brief discusses the alleged error in terms of an omission to charge the jury as to mental anguish, i.e., the measure of damages. The brief cites to cases dealing with mental anguish as an element of damages in a breach of contract case. Therefore, it appears that the objections raised at trial may not be the grounds asserted on appeal. This is uncertain, however, in light of the discussion of the attorneys and judge prior to the charges since the danger to plaintiffs’ health was discussed both as evidence supporting a claim for mental anguish, and it was discussed in terms of a personal injury claim.

In view of the bench discussions where the danger to plaintiffs’ health was discussed in relation to two different legal theories, we clearly cannot say the language in plaintiffs’ attorney’s objection was “specific” nor did it adequately inform the judge of the alleged error in his charge, and afford him an opportunity to correct it.

Where the first element of the exception — that of sufficient specificity to inform the trial court of the alleged error to allow an opportunity to correct it — is not met, we need not address the second element, the requirement of a misstatement of law.

Where the true nature of the objection is unclear to this court after a full review of the charges, the objections, and the plaintiffs’ brief, we must conclude plaintiffs’ objection failed to preserve the alleged error for appeal. Although it is the policy of this court to review cases on the merits, plaintiffs’ failure to meet the requirements of rule 51 or to fall within the narrow and limited exceptions to that rule precludes our review of the merits.

This case is therefore due to be affirmed.

AFFIRMED.

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


author: BOWEN, Judge.

text:
    James Edward GWIN, alias Eddie Gwin v. STATE.
    7 Div. 895.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Rehearing Denied April 20, 1982.

      Loma B. Beaty, Fort Payne, and Terry T. Bush, Rainsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

On the 30th of May, 1980, the bullet-ridden bodies of Ralph Little and Donald Ray Faulkner, Jr. were discovered near the Little River Bridge on Highway 35 close to the Cherokee-DeKalb County line. The defendant was indicted and convicted for Little’s murder. Alabama Code 1975, Section 13A-6-2 (Amended 1977). Sentence was life imprisonment.

The defendant has raised sixteen separate reasons why his conviction should be reversed. Many of these major arguments contain subdivisions presenting additional grounds for reversal. We have carefully and conscientiously reviewed every issue and argument presented by the defendant. We have written to most but not all. Despite the fervor and vigor with which this appeal is presented, our review convinces us that the defendant received a fair trial with due and proper consideration for his fundamental rights.

I

The defendant argues initially that the trial court erred in refusing to quash the jury venire because of prejudicial pretrial publicity.

At the hearing on this motion, Ms. Virginia Brock, a reporter for The Gadsden Times, was the only witness to testify. A number of newspaper articles were introduced into evidence to support the claim of prejudicial pretrial publicity.

Although some of the articles described the killing of Ralph Little as a “gangland-style slaying”, the publicity was well within the confines of what may be termed generally acceptable journalistic reporting. The articles were non-inflammatory and of that class usually appearing in the public press in relation to somewhat sensational events and criminal proceedings thought to be of general interest. The articles expressed no positive opinion as to the guilt or innocence of the defendant. Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978). No venireman was called to testify.

“A motion to quash the venire should not be sustained or granted unless it is alleged and proved that the whole venire is tainted with prejudice.” Harris v. State, 394 So.2d 96, 98 (Ala.Cr.App.1981); Anno. 76 A.L.R.2d 678 (1961). This rule holds true even where some of the veniremen have been exposed to adverse newspaper publicity. Nickerson v. State, 283 Ala. 387, 217 So.2d 536 (1969).

There is no evidence contained in the record that even a single venireman read the allegedly prejudicial newspaper reports or had any knowledge of the facts of this case. Moreover, juror exposure to news accounts of the crime with which an accused is charged does not alone presumptively deprive the accused of due process of law. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). “Qualified jurors need not, ... be totally ignorant of the facts and issues involved.” Murphy, 421 U.S. at 799-800, 95 S.Ct. at 2036.

It is not the mere fact that a person has a personal or fixed opinion as to any of the issues involved in a criminal prosecution which renders that person incompetent to serve as a juror. However, a person is not qualified to serve as a juror where his opinion is so fixed that it would influence his decision so that he could not lay aside his opinion and try the case fairly and impartially according to the law and the evidence. Tidmore v. City of Birmingham, 356 So.2d 231, 234 (Ala.Cr.App.1977), cert. denied, 356 So.2d 234 (Ala.1978).

“To hold that the mere existence of any preconceived notion as to the guilt or innocence of the accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”
Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).

“(T)he burden is on defendant to show to the reasonable satisfaction of the trial court that a fair and impartial trial and an unbiased and unprejudiced verdict cannot reasonably be expected.” Nickerson, 283 Ala. at 390, 217 So.2d 536.

Where there is no record before this Court of any testimony taken in support of a defendant’s motion to quash, this Court is unable to determine whether the allegations of the motion are true and cannot charge error to the trial judge in overruling the motion. Taylor v. State, 32 Ala.App. 570, 28 So.2d 318 (1947).

As in Nickerson and Goldin v. State, 271 Ala. 678, 127 So.2d 375 (1961), “we are left unconvinced, nor was it made apparent to the trial court, that the appellant could not, on account of these newspaper articles, have received a fair trial.” Goldin, 271 Ala. at 680, 127 So.2d 375.

II

The defendant contends that the trial judge erred in denying his challenges for cause to eight jurors who allegedly had “a fixed opinion that this does constitute murder.” This statement is made by counsel in making the challenge for cause to the trial judge. The proceedings held on voir dire of the jury are not reported and the only “evidence” of counsel’s challenge is that which we have just quoted.

Again defendant’s allegations of error are not supported by the record. “Statements made by counsel are not evidence.” Hale v. State, 355 So.2d 1158, 1159 (Ala.Cr.App.1978).

III

The defendant alleges that the trial judge arbitrarily excused jurors. Again, the record does not support this contention. A trial judge is authorized to excuse veniremen for “undue hardship, extreme inconvenience or public necessity”, Alabama Code 1975, Section 12 — 16—63(b) (Supp.1981), outside the presence of the parties and their counsel. Alabama Code 1975, Section 12-16-74 (Amended 1981). In excusing jurors much is left to the discretion of the trial judge. The record before this Court does not clearly and plainly show any abuse of that discretion.

IV

There is nothing in the record to support the defendant’s charge that the State “initiated the prosecution through the media.” Also we find no evidence that the State, the trial judge or any of their agents authorized the release of the youthful offender conviction of the defendant. In view of the fact that there is no evidence that any prospective juror read any newspaper article containing such information or any article in which the defendant was accused of the arrest for or conviction of any crime, including the one now under review, the defendant’s argument is without merit.

V

It is argued that the circuit court lacked jurisdiction to try the defendant since the defendant was in the process of appealing the circuit court’s denial of youthful offender status.

Youthful offenders are covered in Alabama Code 1975, Sections 15-19-1 et seq. Juveniles are covered in 12-15-1 et seq. Rule 28, Alabama Rules of Juvenile Procedure provides for the appeal of any “final order, judgment or decree, including an order transferring a child for criminal prosecution, of the juvenile court.” There is no statute or rule authorizing an appeal directly from the order of a circuit court denying a defendant treatment as a youthful offender. Denial of youthful offender status is an issue which may be considered by this Court on appeal of a defendant’s conviction.

There is no inherent or inalienable right of appeal in a criminal case. State v. Gautney, 344 So.2d 232 (Ala.Cr.App.1977). The right of appeal is a creature of statute and such statutes are strictly construed. Wood v. City of Birmingham, 380 So.2d 394 (Ala.Cr.App.1980). Generally, appeals lie only from judgments of conviction. Thornton v. State, 390 So.2d 1093 (Ala.Cr.App.), cert. denied, Ex parte Thornton, 390 So.2d 1098 (Ala.1980). Thus there is no direct appeal from a ruling that an accused is not indigent for the purpose of appointing a free lawyer, Locke v. State, 333 So.2d 217 (Ala.Cr.App.1976); or from an order remanding a defendant to custody following the dismissal of the indictment, Ex parte Shirley, 39 Ala.App. 634, 106 So.2d 671, cert. denied, 268 Ala. 696, 106 So.2d 674 (1958); or from an order denying a defendant’s motion to withdraw his guilty plea. Dawson v. State, 37 Ala.App. 16, 66 So.2d 567, cert. denied, 259 Ala. 205, 66 So.2d 568 (1953).

Since there is no statute or rule providing for a direct appeal from the denial of an application for treatment as a youthful offender, the defendant had no right to appeal that denial directly to this Court. Consequently, the circuit court was not divested of jurisdiction pending this attempted appeal.

VI

In testifying, State’s witness Danny Smith, an Investigator for the District Attorney, used a transcript of the defendant’s tape recorded statement. The statement itself was neither offered nor introduced into evidence. Although the defendant filed a pretrial motion to produce the tape recording from which the written transcript was made, Smith testified that the tape recording had been erased and reused. Although the defendant alleges fraud and chicanery in the destruction of the tape recording, the record, even when viewed in a light most favorable to the defendant, shows only negligence on the part of the State’s investigators in the reuse of the tape.

In view of the fact that the transcript was not introduced into evidence, the holding of Bennefield v. State, 281 Ala. 283, 202 So.2d 55 (1967), is not violated. In Benne-field, the court held that the stenographer who took down the interrogation of the defendant by a detective was the person who should testify as to the authenticity of transcription made from her shorthand notes. Here, Smith interviewed the defendant and tape recorded that interview. Although Smith did not transcribe the tape recording, he testified that he had listened to the tape and read the transcript and that the transcript was accurate. Smith’s testimony established the authenticity of both the tape recording and the transcript.

Generally, sound recordings are admissible as corroborative of oral testimony if the parties who were present when the recording was made are available and testify as to the statements made. Voudrie v. State, 387 So.2d 248 (Ala.Cr.App.), cert. denied, 387 So.2d 256 (Ala.1980).

Under the doctrine of present recollection revived, Smith was properly allowed to use the transcript to refresh his memory. Generally, see C. Gamble, McElroy’s Alabama Evidence, Section 116.01 et seq. (3rd ed. 1977). Under this theory, Smith was not required to have made the writing used to refresh his recollection, Section 116.02(2), and the writing used did not have to be an original if properly authenticated. Section 116.02(8). “Negligent destruction of a document is no bar to its proof by secondary evidence. While its fraudulent destruction would exclude secondary evidence, a fraudulent destruction will not be presumed but must be made to appear.” Cofield v. State, 41 Ala.App. 469, 473, 136 So.2d 897, cert. denied, 273 Ala. 706, 136 So.2d 904 (1961).

Although the defendant maintains that the stenographer who transcribed the tape recording is the only person who could authenticate the transcript, the stenographer could only testify that the transcript accurately reflected what was on the tape recording. Smith, who was present during the interrogation, who listened to the tape recording, and who read the written transcription, could properly testify that the transcript accurately • reflected what was contained on the tape and that the tape recording accurately reflected that which was actually said during the interview.

Just as the oral testimony of a deputy sheriff with regard to the accused’s confession was admissible as primary evidence notwithstanding the contention that the written confession was the best evidence in Sperling v. State, 57 Ala.App. 583, 329 So.2d 641 (1976), so here, the oral testimony of Investigator Smith was admissible despite the destruction of the tape recording of the defendant’s statement.

VII

The defendant argues that the State did not lay the proper predicate for the admission of the results of the chemical analysis of the decedent’s blood and urine for the purpose of determining alcohol content. See Webb v. State, 378 So.2d 756, 757 (Ala.Cr.App.), cert. denied, 378 So.2d 758 (Ala.1979).

For the results of the blood and urine tests to have been admissible, it must have been shown either that the tests were taken in conformity with Section 32-5-193, or the proper foundation for their admission must have been laid under general evidence principles. McGough v. Slaughter, 395 So.2d 972, 977 (Ala.1981); Commander v. State, 374 So.2d 910 (Ala.Cr.App.1978), cert. quashed, 374 So.2d 921 (Ala.1979). Here the State failed to introduce “certified methods promulgated by the Board of Health for the administration of the test.” Webb, 378 So.2d at 757.

However, even if the results of the blood and urine tests were improperly admitted because of the State’s failure to lay a proper predicate, we fail to see how this evidence damaged the defendant. It was undisputed that the parties involved in this incident had been drinking. See Wiley v. State, 389 So.2d 604 (Ala.Cr.App.1980), holding that even if the admission of an autopsy report, which indicated that the cause of death was hemorrhage as a result of multiple stab wounds, was error, the error would not have resulted in any substantial injury to the defendant, in light of the fact that the coroner’s opinion that the stab wounds were the cause of death was undisputed. The defendant offered absolutely no evidence to show that the deceased was either more or less intoxicated than what was shown by the State (0.03 blood-alcohol and 0.04 urine).

There was no evidence offered, or even implication present, that the deceased became violent or aggressive when under the influence of alcohol. There was, in fact, no evidence at all that drinking had any influence or effect upon the deceased’s personality or character.

The jury was not charged on the statutory presumption of intoxication, but only on intoxication as a defense.

After reviewing the circumstances of this case, we find that the admission of the results of the chemical tests for intoxication on the deceased did not harm the defendant. Rule 45, A.R.A.P.

VIII

The defendant alleges that the demeanor and behavior of the trial judge prevented him from receiving a fair trial and resulted in a denial of due process. Serious charges of intimidation and impartiality are leveled against the trial judge.

In particular, the defendant contends that the judge’s private reprimand of defense counsel was merely an effort at intimidation. From the record:

“THE COURT: Mr. Beaty (Defense Counsel), I feel like I have been pretty patient throughout the course of this trial in tolerating some of your uncivil outbursts and in tolerating your attitude of disrespect for the Court. You have a responsibility, as we all know, to represent your client to the best of your ability, but you also have a responsibility to this Court to be respectful of it and to conduct yourself in a civil manner in the trial of a ease. And I expect you to do that during the duration of this trial. There is just no reason for you to demonstrate such a disrespectful attitude toward the Court and I’m not going to tolerate it any longer.”

Defense counsel denied any intent to be disrespectful to the court and maintained that he was merely attempting to represent the defendant as best as possible.

The following portion of the record is also useful in deciding this issue.

“MRS. BUSH (Defense Counsel): For clarification, Judge, I would like to know specifically how he (Mr. Beaty) has been disrespectful so that we might know in the future.' I agree with Mr. Beaty he’s acted in this case like he’s always acted in the seven and a half years I have practiced law, and I’m not saying he would object in the same way I would, but I don’t see where he has displayed any disrespect for the Court.
“THE COURT: In my judgment the manner in which he has excepted to the Court’s rulings and the manner in which he has conducted himself at times during the trial has appeared disrespectful to the Court, and I’m asking you, Mr. Beaty, not to show that disrespect.”

In response to the request that the judge “spell out in the record in detail” what he was talking about, the trial judge replied, “I think we all know what I’m talking about.”

A trial judge has a duty to be thorough, courteous, patient, punctual, just and impartial. Yet he is not required to be a “Great Stone Pace” which shows no reaction to anything that happens in his courtroom. Allen v. State, 290 Ala. 339, 276 So.2d 583 (1973). A trial judge who uses language which tends to bring an attorney into contempt before the jury, or makes any intimation which tends to prejudice the attorney, commits reversible error.

The language of Dennison v. State, 17 Ala.App. 674, 88 So. 211 (1921), is instructive in deciding this issue.

“Occurrences of this character, as disclosed by the record, are very regrettable and are to be deplored. They could be obviated if all those connected with the trial would be careful to accord to every one, also so connected, the high degree of courtesy and respect expected, or desired, or demanded by himself. An attorney at law is an officer of the court, and as such is under the duty to deport himself with dignity and circumspection, and upon all occasions to manifest and exhibit a marked respect for the court in which he practices, and for the judge thereof, as well as for all officers of court, parties and their witnesses, and for the juries in attendance. The statutory requirement in this connection is that an attorney must maintain due respect to courts of justice and judicial officers. Code 1907, Section 2985, subd. 2. In return, he is entitled to similar treatment from the trial judge, and most certainly to the extent that the interests of his client will not be prejudiced. “The trial judge, as a natural consequence of his position and the many duties devolving upon him, is necessarily vested with much discretion in the conduct of the trial of causes, and, unless it clearly appears that there has been an abuse of this discretion, appellate courts will not interfere to control such discretion, but will presume that one occupying so important a position as that of circuit judge will accord to all litigants in his court the fair and impartial trial provided for in the Constitution of this state. That a trial judge wields a great influence upon the jury cannot be questioned, for it is their duty to follow his instructions as to the law. So, whenever he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of another, or uses language which tends to bring an attorney into contempt before the jury, or uses any language or makes any intimation which tends to prejudice them, he commits an error of law, which would, of necessity, effect a reversal of the judgment and a remandment of the cause.”

Dennison, 17 Ala.App. at 676, 88 So. 211. Our review of the record discloses that the trial judge cautioned both counsel for the State and counsel for the defendant during the course of the trial. The judge’s remarks to defense counsel in this ease were far from the character of those remarks and comments condemned in Dennison.

The record of the defendant’s trial, upon which our review must be based, is composed only of the words which were spoken by the participants in the proceedings. It does not contain a description of the manner or attitude in which those words were spoken and does not directly reflect the demeanor of the parties. The trial judge was in the best position to observe the conduct of the parties and we must indulge the presumed correctness of his judgments in this regard. Jolly v. State, 405 So.2d 76 (Ala.Cr.App.1981).

Both sides fought a hard and apparently emotional battle in the vigorous discharge of their respective duties. Under such circumstances the difficult task of the trial judge became even harder. After a careful review of the record, we find no error in his actions and comments.

IX

The photographs of the body of the victim were properly admitted into evidence. “The gruesomeness or inflammatory nature of a photograph is not grounds for exclusion, where it has a reasonable tendency to prove or disprove some material fact in issue, or which may be in dispute or material.” Braswell v. State, 371 So.2d 992, 998 (Ala.Cr.App.1979).

“Courts and juries cannot be too squeamish about looking at unpleasant things, objects or circumstances in proceedings to enforce the law and especially if truth is on trial. The mere fact that an item of evidence is gruesome or revolting, if it sheds light on, strengthens or gives character to other evidence sustaining the issues in the case, should not exclude it.” Baldwin v. State, 282 Ala. 653, 656, 213 So.2d 819 (1968).

A photograph which sheds light on the character and location of the wound on the body of the victim is admissible even though it constitutes cumulative evidence upon a matter not disputed. Turk v. State, 347 So.2d 588 (Ala.Cr.App.1977). Photographs are admissible to corroborate testimony. Palmore v. State, 283 Ala. 501, 218 So.2d 830 (1969); Grant v. State, 250 Ala. 164, 33 So.2d 466 (1948).

X

The defendant argues that the trial judge erred in refusing to require the State to produce the weapons and bullets for independent expert examination. The defendant relies upon the case of Barnard v. Henderson, 514 F.2d 744 (5th Cir.1975), to support his argument that the denial of the requested discovery denied his rights to the means necessary to conduct his defense. Barnard held that “(f)undamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.” 514 F.2d at 746 (emphasis added). Despite defendant’s argument, the simple fact is that the evidence sought was not critical to the defense presented. The defendant admitted shooting the victim — the issue was whether the defendant acted in self-defense, not whether or not the defendant actually did the shooting. In White v. Maggio, 556 F.2d 1352 (5th Cir.1977), it was noted:

“ ‘Critical evidence’, for purposes of the due process clause, is evidence that, when developed by skilled counsel and experts, could induce a reasonable doubt in the minds of enough jurors to avoid a conviction.” 556 F.2d at 1357-8.

In White and Barnard the bullets were the only tangible evidence connecting the accused to the murder. See also Hoback v. Alabama, 607 F.2d 680 (5th Cir.1979).

In response to the defendant’s charge that the State willfully withheld physical evidence which the trial court had ordered produced, the record fully supports the finding of the trial judge that ‘‘both sides assumed that there had been compliance with the motion (to produce) and the order of the Court .... ” There is nothing in the record to support a finding that the State deliberately withheld any evidence from the defendant which had been ordered to be produced.

XI

The purpose of establishing a chain of custody in a criminal proceeding is to show a reasonable probability that the evidence has not been tampered with. Williford v. State, 365 So.2d 1257 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1258 (Ala.1979). The chain need not be proved to an absolute certainty, but only to a reasonable probability. Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert. denied, 346 So.2d 1180 (Ala.1977); Murrell v. State, 377 So.2d 1102 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979).

Although the Attorney General argues that the chain of custody was properly established, even if the chain were broken we fail to see how it injured the defendant in view of the defense of self-defense. Strickland v. State, 269 Ala. 573, 114 So.2d 407 (1959); Vaughn v. State, 347 So.2d 582 (Ala.Cr.App.1977); Curtis v. State, 44 Ala. App. 446, 212 So.2d 689, cert. denied, 282 Ala. 725, 212 So.2d 692 (1968); Rector v. State, 11 Ala.App. 333, 66 So. 857 (1914). Where the defendant claims accident or self-defense the erroneous admission of the bullet allegedly taken from the body of the deceased is harmless error. Roberson v. State, 217 Ala. 696, 117 So. 412 (1928); Cain v. State, 33 Ala.App. 594, 35 So.2d 574 (1948); Jarrell v. State, 22 Ala.App. 304, 115 So. 146 (1928).

XII

We find no error in the trial court’s release of Dr. Santina as a witness after he had been thoroughly cross examined by defense counsel. The judge excused the witness after remarking: “I just don’t see any reason in keeping these folks here without a specific reason.”

Apparently the defendant expected to establish through Dr. Santina (1) that the deceased had not been shot with a shotgun, (2) the trajectory of the bullets which would show that the condition of the deceased was not inconsistent with the defendant’s testimony, and (3) that the blood taken from the deceased was contaminated. Each of these points could have been established on cross examination. The witness did testify to some extent about the second and third factors listed above. Whether the condition of the deceased was consistent with the defendant’s testimony was a question for the jury. “The trial court generally has the discretion to allow or disallow a witness to be recalled for further direct or cross examination for the purpose of asking the witness a question that might properly have been asked on his original call. McElroy, Section 440.01. From the record we find no evidence that the trial judge erred in releasing Dr. Santina as a witness and later in refusing to order his presence in court.

XIII

Under the State’s theory of the murder, Ronnie Gwin, the defendant’s brother, was present at the time and scene of the killing. The record reflects that he was charged with offenses growing out of this same transaction. Upon his lawyer’s advice Ronnie Gwin refused to testify and asserted his privilege against self-incrimination.

We recognize that generally a witness is not privileged from testifying unless it is apparent that his answer would tend to incriminate him. McElroy, Section 374.05.

When defense counsel called Ronnie Gwin as the defendant’s first witness, Gwin’s attorney made it known to the trial court that he had advised his client not to testify and to invoke his right against self-incrimination. The trial court honored the witness’s asserted privilege and did not compel him to testify even though Gwin had never been asked a single question. Defense counsel excepted without giving any ground or reason and made no proffer of what he expected to prove through his witness.

Error cannot be predicated upon the trial court’s refusal to compel the witness to testify unless the defendant made an offer of proof showing that the testimony he expected to elicit from the witness would not have been incriminating. Compare Murphy v. State, 108 Ala. 10, 18 So. 557 (1895); Patterson v. State, 37 Ala.App. 161, 66 So.2d 191, cert. denied, 259 Ala. 152, 66 So.2d 194 (1953). Since the witness only could have been required to answer any question which did not tend to incriminate him, but not others, the defendant should have made an offer of proof. To put the trial court in error in declining to allow a question to be answered, it must have been suggested what it was proposed to prove, and how it would be relevant and competent, unless the question in itself gave such information. Woods v. State, 18 Ala.App. 123, 90 So. 52 (1921); United States v. Wells, 525 F.2d 974 (5th Cir.1974). An exclusion cannot be reviewed in the absence of an offer of proof. Moore v. State, 16 Ala.App. 503, 79 So. 201 (1918). Here defense counsel only made a general objection to the court’s ruling and did not assign any ground. We find no preserved error in the action of the trial judge.

XIV

The trial judge refused defendant’s requested charge 15.

“I charge you, members of the jury, if the evidence convinces you that Margaret Hunter is a woman of bad character and unworthy of belief, then you may disregard her evidence altogether.”

Although this is a correct and proper jury charge, its refusal was not error because Ms. Hunter’s testimony in all material aspects, was fully corroborated. Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); Johnson v. State, 349 So.2d 110 (Ala.Cr.App.), cert. denied, 349 So.2d 113 (Ala.1977).

XV

The trial court properly refused the defendant’s written requested charge on criminally negligent homicide for the reason that the evidence would not support such a charge. The “imperfect defense” doctrine which provided that a person committed the offense of criminally negligent homicide if he intentionally or recklessly caused the death of another person in the good faith but unreasonable belief that he had grounds for justification (self-defense) has been rejected by the Alabama Legislature. Comments to Alabama Code 1975, Section 13A-6-A (Amended 1979).

We have carefully and fully considered every issue presented by the defendant. Our review convinces us that he received a fair trial and that his conviction and the judgment of the Circuit Court should be affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte James Edward GWIN. (Re James Edward Gwin, Alias Eddie Gwin v. State of Alabama)
    81-632.
    Supreme Court of Alabama.
    Jan. 7, 1983.
    Loma B. Beaty, Fort Payne, and Terry T. Bush, Rainsville, for petitioner.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Upon preliminary consideration, we granted the petition for a writ of certiorari to review the Court of Criminal Appeals’ affirmance of the trial court’s refusal of Defendant’s requested charge relating to the right of the jury to disregard the testimony of a State’s witness if the witness, under the evidence, were found to be a person of bad character. Citing Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973), and ARAP 45, the appellate court held that, while such refusal was error, in light of other corroborating evidence, the error was rendered harmless.

Because the opinion states the fact of corroboration by way of conclusion, our review of that opinion may be invoked only through ARAP 39(k), which was not utilized in this case. Thus, this Court cannot be put to a search of the record to verify or disprove the factual conclusions stated by the Court of Criminal Appeals.

By quashing the writ for failure to comply with Rule 39(k), we are not to be understood as agreeing that Kennedy is authority for the abstract proposition that under all circumstances the corroboration of a witness’s testimony renders harmless the error for failing to give the jury instruction which was requested in this case. Kennedy must be construed within its narrow and peculiar factual context.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur.


author: HARRIS, Presiding Judge.

text:
    William Barry HOBSON v. STATE.
    2 Div. 319.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Jan. 28, 1983
    Alabama Supreme Court 82-42.

      Edwin L. Yates, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

This is a consolidated appeal by an indigent from the denial of his petitions for writ of habeas corpus and writ of error coram nobis to review eleven previous felony convictions.

In 1978, appellant entered guilty pleas to nine indictments in Perry County for the offenses of robbery, burglary and escape. At the time, he retained Mr. O.S. Burke of Marion, Alabama to represent him. That same year, appellant also pleaded guilty to two Dallas County indictments for robbery. Mr. Burke was not his attorney of record for the Dallas County cases, but he helped to negotiate an agreement between the district attorneys of both counties for concurrent sentences totalling forty years in all cases. Appellant was subsequently sentenced to forty years and sent to Draper Correctional Center in Elmore County. He did not appeal any of the convictions.

On September 4,1981, appellant filed pro se habeas corpus and coram nobis petitions in Perry Circuit Court attacking all eleven convictions. The petitions, including those arising out of the Dallas County convictions, were consolidated for a hearing on October 2, 1981, in Perry Circuit Court, by agreement of the parties.

The court appointed counsel to represent appellant at the hearing, but the attorney withdrew shortly before the date set and the court named another lawyer, Mr. Larry Leonard of Linden, Alabama, some three hours prior to the hearing.

Appellant’s petitions claimed, in essence, that he was “intimidated and coerced” by his first lawyer into pleading guilty by being told that unless he agreed to the proposed forty-year concurrent sentences, he would undoubtedly be tried separately, convicted and sentenced consecutively for all eleven offenses.

Appellant’s petitions also maintained that his attorney was incompetent because he neglected to investigate the cases, failed to discover flaws in the indictments or arrest warrants, and did not inform him of possible defenses to the charges.

At the hearing, the State introduced a letter from the appellant to his attorney stating, in substance, that appellant agreed to the negotiated pleas and forty-year sentence and was satisfied with the representation provided by his lawyer. Mr. Burke testified that he composed and typed the letter and then discussed it with the appellant. Appellant read and signed it in the presence of his father, who also signed as a witness.

Appellant acknowledged at the hearing that he had read and signed the letter, but he stated that when he did so he did not know the meaning of the word “coerced” in the sentence “The decision to plead guilty was my decision and I was not coersed [sic] or pressured to enter this plea by anyone, including you and my father.”

The trial judge denied all the petitions and the appellant appealed, now claiming that he was not afforded the effective assistance of counsel by his second attorney, the one who represented him at the hearing on his petitions.

Appellant’s petitions for writ of habeas corpus were correctly denied, first, because they were not filed in the proper circuit, and second, because they established no basis for relief under the writ. A petition for writ of habeas corpus by a state penitentiary inmate should be addressed to the nearest circuit judge, Ex Parte Goodwin, 283 Ala. 61, 214 So.2d 415 (1968); Ala. Code § 15-21-6 (1975), rather than to the court where the original conviction occurred. In addition, neither the alleged ineffectiveness of counsel nor the claimed involuntariness of a guilty plea entitles a petitioner to habeas corpus relief. See Argo v. State, 41 Ala.App. 347, 133 So.2d 201, cert. denied, 272 Ala. 699,133 So.2d 203 (1961); Ala.Code § 15-21-24 (1975).

In our judgment, appellant’s coram nobis petitions were also properly denied. Appellant offered no evidence to substantiate his allegation that he was intimidated into pleading guilty. Aside from his unfamiliarity with the single word “coerced,” his testimony indicates that he was aware of the import of the remainder of the letter he signed.

Furthermore, appellant’s attorney testified that before appellant’s pleas were received by the court, he (Mr. Burke) fully explained the contents of an Ireland form, See Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), to appellant and the judge conducted a full colloquy with appellant concerning the voluntariness of the pleas. Although the record before us contains neither the Ireland form nor the transcript of the colloquy on the guilty pleas, appellant offered no proof to dispute the existence or sufficiency of either.

Appellant also failed to carry the burden of proving that his first counsel was ineffective. In addition to the fact that appellant’s signature on the letter acknowledged his satisfaction with the job his attorney had performed, the testimony of appellant’s own witnesses undermined his assertion that counsel had neglected to investigate the cases or find defects in the indictments. In short, appellant established absolutely no proof that counsel had not ably represented him. See Clark v. State, 396 So.2d 1083 (Ala.Crim.App.1981).

Moreover, we do not believe that appellant was denied the effective assistance of counsel at his coram nobis hearing.

Initially we note that, even though a coram nobis petition seeks relief from a criminal judgment, it is a civil proceeding, Ex Parte Wilson, 275 Ala. 439, 155 So.2d 611 (1963), and an indigent petitioner is not entitled to appointed counsel as a matter of right. See Ala.Code § 15-12-23(a) (1975). The Sixth Amendment right to counsel does not guarantee the representation by an attorney to a criminal defendant beyond the first level of appellate review, Martin v. State, 277 Ala. 153, 167 So.2d 912 (1964); Juelich v. United States, 342 F.2d 29 (5th Cir.1965).

Generally, the decision whether to appoint counsel in a collateral procedure, such as a coram nobis petition, is discretionary, see Ex Parte Lott, 42 Ala.App. 484, 168 So.2d 265 (1964), and derives from the Due Process Clause rather than the Sixth Amendment. See United States v. Barnes, 662 F.2d 777, 780 (D.C.Cir.1980); Vandenades v. United States, 523 F.2d 1220 (5th Cir.1975); Cates v. Ciecone, 422 F.2d 926 (8th Cir.1970).

Appellant contends that because his counsel was named to represent him only three hours prior to the coram nobis hearing, and admitted to the trial judge that he was not fully versed in the facts of the case, appellant was denied the effective assistance of counsel. He also claims that counsel called witnesses whose testimony proved adverse to him, and failed to object to the statement (made by his first attorney) that appellant had admitted his guilt of all eleven offenses.

In our judgment, the allegations in appellant’s petitions were so patently without merit and so directly refuted by the letter appellant himself had signed some three years earlier that they did not require extensive preparation by counsel. Three hours was not unreasonable. See Burton v. State, 43 Ala.App. 249, 187 So.2d 808 (1966).

Furthermore, the fact that the testimony of appellant’s witnesses proved detrimental to him does not establish counsel’s inadequacy any more than does the fact a defendant is convicted prove his lawyer lacked competence. See Butler v. State, 279 Ala. 311, 184 So.2d 823 (1966).

Appellant claims that it was a violation of the attorney-client privilege, outlined in § 12-21-161 of the Code of Alabama 1975, to allow his first attorney to testify that appellant admitted his guilt of the eleven offenses. He claims that this testimony undermined his entire coram nobis petition since an allegation of innocence or the existence of a valid defense is necessary to the petition.

We note, first, that the attorney-client privilege set out in § 12-21-161, supra, does not apply where the answer is a matter of public record, International Brotherhood of Teamsters v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971), and here appellant’s pleas of guilty were already recorded acknowledgements of his lack of innocence. Next, when a coram nobis petition asserts the denial of effective counsel, it is not necessary to allege that the petitioner is innocent or has a valid defense, Summers v. State, 366 So.2d 336 (Ala.Crim.App.1978), cert. denied, 366 So.2d 346 (Ala.1979), so that the attorney’s answer was in no way fatal to appellant’s petition.

There is no error in the record. The orders of the Perry Circuit Court denying the petitions are affirmed.

AFFIRMED.

All the Judges concur.

EXHIBIT “A”

APPENDIX I

Barry Hobson

Perry County Jail

Marion, Alabama 36756

February 27, 1978

Mr. O.S. Burke, Jr.

Attorney at Law

Marion, Alabama 36756

Re: State of Alabama Vs. Barry Hobson

78-09 Robbery

78-08 Burglary, 1st degree

78-07 Burglary, 2nd degree

77-53 Burglary, 2nd degree

Robbery, Dallas County

78-06 Escape, Perry County

Dear Mr. Burke:

I am aware of the fact that the D.A. has offered to settle all pending cases in both Dallas County and Perry County for a total term of 40 years. Sentences in the various cases will vary in length, but all will run concurrently.

I have talked this offer over with my father as well as with you, and I feel that I should accept the D.A.’s offer.

You have represented me over a long period of time and I feel that you have done everything that any lawyer could do for a client under these circumstances, and I am completely satisfied with the manner in which you have represented me. I am completely satisfied with the settlement worked out with the D.A. and I feel that I have been dealt with fairly by all concerned.

The decision to plead guilty was my decision and I was not coersed or pressured to enter this plea by anyone, including you and my father.

Thank you,

/a/ William Barry Hobson /s/ Luther Hobson William Barry Hobson Witness, Luther Hobson

      . Attached hereto as Appendix I.


text:
    Overton David JOHNSON v. STATE.
    7 Div. 915.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 21, 1983
    Alabama Supreme Court 82-210.
    Robert H. King, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Overton David Johnson, filed a petition for a writ of habeas corpus in the Circuit Court of Etowah County against the State of Alabama on January 21, 1981. This appeal is from a judgment denying appellant’s discharge after a hearing of his petition.

The State of North Carolina, through its Governor, sent a requisition warrant, accompanied by copies of required documents, as follows: Application for requisition of Ronald C. Brown, District Attorney, Post Office Box 7158, Asheville, North Carolina, 28807; application, certification, statutes, arrest warrant, affidavit, allied papers to the Governor of the State of Alabama. The Governor of the State of Alabama issued a rendition warrant for the extradition of the appellant to the State of North Carolina.

The question presented to this Court by the appellant in his brief is that the supporting papers are insufficient to support extradition because the warrant of arrest is not based on an adequate or timely affidavit, therefore the trial court erred to his prejudice when it refused to grant the relief asked in his petition.

At the trial on the petition for the writ of habeas corpus the requisition warrant, and all of the accompanying papers from the State of North Carolina were filed in evidence, together with the rendition warrant issued by the Governor of Alabama.

The appellant testified, in substance, that he had arranged for the payment of $2,800.00 for the automobile he purchased from Apple Tree Chevrolet of Enke, North Carolina by a draft drawn on the East Gadsden Bank of Gadsden, Alabama. That Mr. George Taylor, Manager of the Apple Tree Chevrolet, talked over the telephone with a representative of the East Gadsden Bank, and after the conversation, stated to the appellant that the bank would honor the draft, and Apple Tree Chevrolet would look to the bank for its money, and for the appellant to take the car back to Alabama with him. That before the draft was paid the East Gadsden Bank was taken over by the Central Bank Of Alabama. That appellant sold the automobile, and the East Gadsden Bank financed it, and that appellant gave the East Gadsden Bank a mortgage on his property to secure debts that appellant owed East Gadsden Bank. That appellant did not know the East Gadsden Bank was about to be taken over by the Central Bank Of Alabama. That the appellant was aware of the fact that Apple Tree Chevrolet Company was never paid the purchase price of the automobile.

Code Of Alabama, 1975, Sec. 15-9-31 provides:

“No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found, or by an information supported by affidavit, in the state having jurisdiction of the crime or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state, and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.” (Emphasis Supplied)

At the trial the appellant pointed out to the trial court that the supporting papers were not sufficient to support extradition because the warrant of arrest was not based on an adequate or timely affidavit.

We set out in full the certificate of Gary L. Childers, Magistrate, the warrant of arrest issued by Gary L. Childers, Magistrate, and affidavit of Jack P. LeBeau, Detective.

“FORM GOV. 1-A
“STATE OF NORTH CAROLINA
“STATE OF NORTH CAROLINA CERTIFICATE
COUNTY OF BUNCOMBE
“I, GARY L. CHILDERS, a duly appointed, qualified and acting Magistrate, or _, of Buncombe_, North Carolina, Proper Official County Asheville. North Carolina 28807. do hereby certify that the foregoing is a true Address
and correct copy of (1) the WARRANT issued by me on December 2,1980, against David Johnson, charging the said subject with the crime of False Pretense, and (2) THE AFFIDAVIT on which the Warrant was issued.
“IN TESTIMONY WHEREOF, I have hereunto set my hand, this the 16th day of December, 1980.
“to any officer with authority and territorial jurisdiction to execute a warrant for arrest of the offense charged below:
“THE UNDERSIGNED FINDS THAT THERE IS PROBABLE CAUSE TO BELIEVE that on or about the 22 day of OCTOBER, 1980, in the county named above, the defendant named above did unlawfully, willfully, and felon-iously AND KNOWINGLY AND DESIGNEDLY WITH THE INTENT TO BEAT AND DEFRAUD OBTAIN A 1977 CHEVROLET CAPRICE CLASSIC 2 DOOR, VIN # IN47U7J186739 FROM APPLE TREE CHEVROLET, INC. ASHEVILLE, N.C. WITHOUT MAKING PROPER COMPENSATION OR BONA FIDE ARRANGEMENTS FOR COMPENSATION. THIS PROPERTY WAS OBTAINED BY MEANS OF PRESENTING A FALSE BANK DRAFT ON EAST GADSDEN BANK, EAST GADSDEN, ALABAMA FOR PAYMENT OF THE CAR. THIS BANK DRAFT WAS NOT HONORED AND WAS NOT NEGOTIABLE., WHEN IN FACT THE DEFENDANT KNEW THAT THE BANK DRAFT PRESENTED TO APPLE TREE CHEVROLET, INC., FOR PAYMENT WAS FALSE. THE PRETENSE MADE WAS CALCULATED TO DECEIVE AND DID DECEIVE. THIS ACT WAS
in violation of the following Law: G.S. 14-100
“YOU ARE DIRECTED TO ARREST THE DEFENDANT NAMED ABOVE AND BRING HIM WITHOUT UNNECESSARY DELAY BEFORE A JUDICIAL OFFICIAL TO ANSWER THE CHARGES SET OUT ABOVE.
Issued this 2 day of DECEMBER, 1980, upon information furnished under with by the complainant or complainants named below.
“I, Jack P. LeBeau, being first duly sworn, do hereby state the following facts:
“I am a Detective with the Buncombe County Sheriff’s Department, located in Asheville, North Carolina. On October 22, 1980, I interviewed Mr. George Taylor, the used car manager with Apple Tree Chevrolet, 205 Smokey Park Highway, Enka, North Carolina in reference to a false pretense incident involving the above captioned defendant, DAVID JOHNSON.
“Mr. Taylor reported to me that on October 22, 1980, at approximately 10:00 AM, the defendant approached him regarding the purchase of a used car. The defendant stated at that time that he was the owner of a used car dealership located in Rainbow City, Alabama. After test driving several vehicles Mr. Johnson decided to purchase one (1) 1977 Chevrolet Caprice Classic, 2 door, VIN # IN47U7J186739. At that time ail the necessary paperwork was drawn up and signed and Mr. Johnson presented a bank draft in the amount of $2,800.00 upon East Gadsden Bank, Gadsden, Alabama for payment of said vehicle. Upon completion of this transaction Mr. Johnson stated that he was returning to Alabama. Mr. Taylor presented the bank draft to Wachovia Bank in Asheville, North Carolina, and he was then notified by said bank that the East Gadsden Bank in Alabama would not honor the draft and that same was not negotiable.
“A complaint was filed with myself by Mr. Taylor for False Pretense Charges and subsequently I charged David Johnson and sent a certified copy of the Buncombe County warrant for False Pretense to Etowah County, Alabama. This warrant was served upon the defendant in Alabama by a Chief Williamson of the Rainbow Police Department, Alabama.
“THIS the 17 day of December, 1980.
1 Jack P. Le Beau_
Jack P. LeBeau, Detective
“SWORN TO AND SUBSCRIBED TO BEFORE ME ON THE 17 DAY OF DECEMBER, 1980.
“Pauline P. Hawkins_ Magistrate”

In this case all allied papers accompanying the requisition warrant from the Governor of the State of North Carolina, together with the rendition warrant issued by the Governor of the State of Alabama, were placed in evidence at the habeas corpus hearing, therefore it is the duty of the trial court, and this Court on appeal, to examine them and look to their legal sufficiency to justify the issuance of the rendition warrant. Shirley v. State, Ala. 363 So.2d 104; Ala.Cr.App. 363 So.2d 103; Ala.Cr.App. 363 So.2d 107.

Section 15-9-31, Code Of Alabama, 1975, clearly states that there shall be attached to the requisition warrant from the Governor of the foreign state a certified copy of an indictment found or by an information supported by affidavit, in the state having jurisdiction of the crime or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon.

The certificate dated December 16, 1980 of Magistrate Gary L. Childers is attached to the copy of the affidavit of Jack P. LeBeau, dated December 17, 1980, and to a copy of a warrant of arrest issued by Gary L. Childers on December 2,1980, and recites that “the foregoing is a true and correct copy of (1) the warrant issued by me on December 2, 1980, against David Johnson, charging the said subject with the crime of false pretense and (2) the affidavit on which the warrant was issued.”

The warrant of arrest of the appellant was issued on December 2, 1980 by Magistrate Gary L. Childers of the State of North Carolina. The affidavit of Jack P. LeBeau was executed on December 17, 1980 before Pauline P. Hawkins, a Magistrate of North Carolina, some 15 days after the warrant was issued.

We hold that the requirements of Alabama Code, 1975, Sec. 15-9-31 have not been complied with, as required by our statute, in this case because the warrant of arrest was issued some 15 days before the affidavit of Jack P. LeBeau was made. The appellant is not lawfully charged with a crime in the State of North Carolina. Therefore, a reversal of this cause should be ordered. Battles v. State, Ala.Cr.App. 389 So.2d 957; Certiorari Denied, Ala. 389 So.2d 960.

It is, therefore, ordered that this cause be, and it is hereby, reversed and remanded.

The foregoing opinion was prepared by Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


author: ALDERMAN, Chief Justice. OVERTON, Justice,

text:
    James Franklin ROSE, Appellant, v. STATE of Florida, Appellee.
    No. 51724.
    Supreme Court of Florida.
    Dec. 9, 1982.
    Rehearing Denied Feb. 8, 1983.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., and Charles Cor-ees, Jr., Asst. Atty. Gen., Tampa, for appel-lee.
   ALDERMAN, Chief Justice.

The defendant, James Franklin Rose, appeals his conviction for murder in the first degree and his sentence of death. He also appeals his conviction and life sentence for kidnapping. We affirm the convictions and the life sentence, but finding reversible error in the penalty phase of the trial, we vacate the sentence of death and remand for a new sentencing proceeding before a jury.

Although circumstantial in nature, the evidence was sufficient for the jury to have found beyond a reasonable doubt that defendant, and no other person, kidnapped and murdered eight-year-old Lisa Berry. The evidence reveals that defendant was the last person to be seen with Lisa at the bowling alley on the night she disappeared. Barbara Berry, Lisa’s mother, was at the bowling alley with family and friends when defendant arrived shortly after 9 p.m. on October 22, 1976. According to Barbara, defendant joined her and other team members at the bowling circle where they talked for several minutes. Shortly after 9:30 p.m., defendant said that he was going to the poolroom area of the bowling alley. Lisa told her mother that she was going with him. Defendant and Lisa were last seen by Lisa’s sister Tracy, who testified that Lisa was outside the front door of the bowling alley and defendant was standing just inside the front door. Defendant gave Tracy money for cokes, but when she returned from the snack bar with the cokes, both defendant and Lisa were gone. Upon being informed by Tracy that she could not find defendant and Lisa, Barbara attempted to find them. While looking for them, she was paged for a telephone call which turned out to be from defendant. He asked Barbara the time; she said 10:30. He responded that it was 10:23. He asked what time she would be finished bowling; she said 11:30. Defendant was next seen entering the bowling alley at approximately 11:30 p.m. The medical examiner’s testimony established the time of Lisa’s death to be within twenty-four hours either side of 1 a.m., October 23, 1976.

The evidence reveals that defendant had a motive for killing Lisa. Although he and Lisa’s mother had dated for about nine months, they were no longer dating regularly because he was extremely jealous about her working in the bowling alley bar and being around other men. Lisa’s mother testified that defendant told her that he could hurt her and that she did not know what he was capable of doing. A male friend of Barbara’s who was at the bowling circle when defendant was there was asked by Lisa if he was going to have breakfast with her and her mother. According to testimony at trial, defendant, after having overheard this conversation had a look on his face as if to say, “What is going on?”

Several people present at the bowling alley testified that when defendant returned at approximately 11:30, he had a large red spot on his lower right trousers leg. Expert testimony revealed the spot to be type B blood. Type B bloodstains also were found on the outside of the passenger’s door of defendant’s white van, on the passenger’s seat, and on the engine cover. Fingernail scrapings taken from defendant revealed blood. It was stipulated in the record that Lisa had type B blood and that defendant had type A blood.

At about 11:45 p.m. on the night Lisa disappeared, a white van was seen behind a Pantry Pride store located about a quarter of a mile from the bowling alley. Defendant was seen driving his white van that same night. According to testimony at trial, when the search for Lisa began shortly after defendant’s return to the bowling alley at 11:30, he drove away and returned at least three times. Lisa’s green sweater and pink pants were found the next afternoon behind the Pantry Pride. Her pink blouse was later found in defendant’s van. Lisa’s nude body was found four days after her disappearance in a canal approximately ten miles from the bowling alley. Her shoes were found about a mile apart alongside a road between the canal and the bowling alley.

A paint-stained hammer was found in the canal about six feet from Lisa’s body. Defendant was a painter, and expert testimony revealed that paint samples from the hammer were similar to paint samples taken from paint cans in his van. The medical examiner testified that Lisa’s death resulted from severe head injuries caused by blunt force.

Expert witnesses also testified that a green fiber taken from defendant’s clothing after his arrest was consistent with fibers from Lisa’s green sweater found behind the Pantry Pride and that a crushed hair taken from defendant’s sock was consistent with hair from Lisa’s hairbrush.

Defendant made numerous inconsistent attempts to account for his whereabouts on the evening Lisa disappeared and to explain away certain evidence. Defendant told Lisa’s mother that he was at the Highway Bar when he telephoned her regarding the time and stated to her that it was 10:23. He was uncharacteristically exact about the time, and he could be clearly heard without background noise which, according to testimony, would not have been possible had he been at the bar when he telephoned since the band at the bar would have been playing loudly at that particular time.

When defendant returned to the bowling alley at 11:30, he pretended that Lisa was still alive. Acting as though Lisa was present at the bowling alley in his visible sight, he commented to Lisa’s mother that Lisa was getting chubby and asked who was the person with the goatee to whom Lisa was talking. When she turned around to see who defendant was referring to, she saw neither Lisa nor a person with a goatee.

After initially denying that the spot on his trousers leg was blood, defendant later explained that he had cut himself changing a tire. Testimony indicated the spare tire was fully inflated. He told a police officer that he had cut his leg while crawling underneath the van to check out a noise he had heard. When the officer took defendant to the area where he claimed to have crawled under the van, the officer could not find any impressions in the sand that could have been made by a human body.

In an attempt to cover the blood spot on his trousers which was first noticed and called to his attention upon his return to the bowling alley at 11:30, defendant first covered it with a whitewash or paint. Later, after he went into a restroom, the spot was covered with grease or some black substance. Defendant explained to a police detective that the blood on the seat of his van was from an injured friend whom he had taken home about two months earlier. The friend had type A blood. The blood on the seat was type B, the same as Lisa’s.

Defendant, at one point, told police detectives that Lisa had last been near the van about two weeks prior to the night of her disappearance. He later stated that Lisa had attempted to get into the van earlier that evening and he told her to get out. Lisa’s mother testified that Lisa had not been in defendant’s van for about a year.

Defendant was convicted for the kidnapping and first-degree murder of Lisa Berry. The jury recommended death, and the trial court sentenced him to death for the murder and to life imprisonment for the kidnapping.

Defendant challenges his convictions on several grounds. He initially contends that the evidence was insufficient to support his convictions for first-degree murder and kidnapping. We find, however, that the record contains a chain of substantial, credible evidence to support the jury’s finding that defendant was guilty of kidnapping and first-degree murder. Whether, as defendant asserts, the evidence failed to exclude all reasonable hypotheses of innocence is for the jury to determine, and we will not reverse a judgment based upon a verdict returned by a jury where there is substantial, competent evidence to support the jury verdict. Welty v. State, 402 So.2d 1159 (Fla.1981); Clark v. State, 379 So.2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981).

Defendant also challenges the trial court’s giving of an “Allen charge” during the guilt phase of the trial. After seven hours of deliberation, the court instructed the jury:

Ladies and gentlemen, it is your duty to agree on a verdict, if you can do so without violating conscientiously held convictions that are based on the evidence, or the lack of evidence.
No juror, from mere pride of opinion, hastily formed or expressed, should refuse to agree; yet, no juror, simply for the purpose of terminating the case, should acquiesce in a conclusion that is contrary to his own conscientiously held view of the evidence.
You all should listen to each other’s views, talk over your differences of opinion in the spirit of fairness and candor; and, if possible, resolve your differences and come to a conclusion, so a verdict may be reached and this case may be disposed of.

Defense counsel, without stating any grounds, objected to this instruction after it was given. Defendant contends that it was error to give this instruction without first notifying counsel and without giving counsel an opportunity for discussion. He relies upon Florida Rule of Criminal Procedure 3.390(d) which provides that “Opportunity shall be given to make the objection out of the presence of the jury,” and Florida Rule of Criminal Procedure 3.410 which provides that if after the jury retires to consider their verdict, they request additional instructions, such instructions shall be given only after notice to the prosecuting attorney and to counsel for defendant. Defendant also emphasizes that the jury had deliberated only seven hours before the “Allen charge” was given.

Although we agree with defendant that his counsel should have been notified prior to the giving of this instruction, we find such error to be harmless in the present case. Aside from this harmless procedural error, however, the giving of the “Allen charge” by the trial court was not error. The jury had already deliberated seven hours at the time they were given this charge. We note further that the jury deliberated over an hour longer before reaching their verdicts of guilty of the kidnapping and first-degree murder of Lisa Berry. In State v. Bryan, 290 So.2d 482 (Fla.1974), we found no error in the trial court’s delivering an “Allen charge” to the jury after five and one-half hours of deliberations.

Although he did not object at the time, defendant now argues that three prospective jurors who expressed concern about the death penalty were improperly excused by the trial court in contravention of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We expressly stated in Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981), that an objection to excusing a juror on the basis of Witherspoon must be made to the trial court before the juror is excused. We hold that defendant is in no position to raise this point on appeal. Brown v. State, 381 So.2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981).

We have considered the remaining issues raised by defendant directed to his conviction and find them to be without merit. In addition to reviewing the record in light of the errors alleged by defendant, we have reviewed the evidence pursuant to Florida Rule of Appellate Procedure 9.140(f) to determine whether the interests of justice require a new trial and conclude that no new trial is required on the convictions.

Defendant also challenges his death sentence. He contends that the trial court reversibly erred in giving the “Allen charge” during the penalty phase of the trial. We agree. The record indicates that the charge was given after the jury advised the court by a note which read, “We are tied six to six, and no one will change their mind at the moment. Please instruct us.” At that point, the trial judge should have advised the jury that it was not necessary to have a majority reach a sentencing recommendation because, if seven jurors do not vote to recommend death, then the recommendation is life imprisonment. There was no reason to give the “Allen charge” during the penalty phase of the trial. We therefore vacate the death sentence and hold that defendant is entitled to a new sentencing proceeding before a jury. In light of this disposition, we find it unnecessary to resolve the remaining challenges to the death sentence raised by defendant.

Accordingly, we affirm the convictions for first-degree murder and kidnapping, but we vacate the death sentence and remand to the trial court for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, BOYD, McDONALD and EHRLICH, JJ., concur.

OVERTON, J., concurs in part and dissents in part with an opinion.

OVERTON, Justice,

concurring in part, dissenting in part.

I concur with that portion of the opinion which holds that it was improper to give the Allen charge during the penalty phase of the trial.

I dissent, however, from that portion of the majority opinion which holds that giving the Allen charge during the trial phase was harmless error. During jury deliberations, the trial judge, on his own motion, gave the Allen charge without any advice from the jurors that they were deadlocked, without previously announcing his intention to do so, and without affording counsel an opportunity to argue the need for the charge. Although I support the use of the Allen charge, determining when it is to be used is a sensitive issue and depends on the circumstances of each case. Here, the evidence of guilt was circumstantial. Before this Court appellant contended that this circumstantial evidence was a tenuous basis for finding guilt. The sufficiency of this evidence is apparently an arguable issue since the appellant’s first trial ended in a mistrial because of the jury’s inability to reach a verdict.

Some jurisdictions have rejected the use of the Allen charge as improperly influencing jurors. In my view, the Allen charge is a fair and proper instruction which should be available to trial judges. It should only be used, however, where (1) the jury advises the judge that it is deadlocked, (2) counsel is provided notice of the trial judge’s intention to give the instruction, and (3) counsel has an opportunity to be heard concerning the need for and the contents of the instruction. Only when these factors are present can the need for the Allen charge be established and basic due process be provided. Because none of these factors have been established in this case, I must conclude that giving the Allen charge during the trial phase was prejudicial error, not harmless error, and, therefore, I would grant a new trial.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Fla.Std. Jury Instr. (Crim.) 2.21.

      . “So 'that the record is clear, Judge, I would like the record to reflect the defense objects to the Charge that the Court just gave to the jury, known among the lawyers as the Allen Charge.”

       The courts in the following cases rejected the use of the Alien charge: State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959); Taylor v. People, 176 Colo. 316, 490 P.2d 292 (1971); State v. Randall, 137 Mont. 534, 353 P.2d 1054 (1960); State v. Maupin, 42 Ohio St.2d 473, 330 N.E.2d 708 (1975); State v. Ferguson, 84 S.D. 605, 175 N.W.2d 57 (1970). The Allen charge was rejected in favor of the standard instruction recommended by the American Bar Association in the following cases: People v. Gainer, 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997 (1977); People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601 (1972), cert. denied, 412 U.S. 918, 93 S.Ct. 2731, 37 L.Ed.2d 144 (1973); Burnette v. State, 280 Md. 88, 371 A.2d 663 (1977); People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974); State v. Martin, 297 Minn. 359, 211 N.W.2d 765 (1973); Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977). See Annot., 97 A.L. R.3d 96 (1980) for a complete discussion of modern cases dealing with the Allen charge.