author: TYSON, Judge.

text:
    Joe PINKERTON v. STATE.
    1 Div. 153.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      Charles N. McKnight of McKnight & Noonan, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Joe Pinkerton, also known as Joseph Allen Pinkerton, was convicted on one count of the sale of cocaine, § 20-2-70(a), Code of Alabama 1975, and punishment was fixed by the jury at a $12,500.00 fine, to which was added a fifteen year term of imprisonment by the trial court. Pinkerton does not on this appeal challenge the sufficiency of the evidence upon which he was convicted, nor did he do so at the trial level by either motion to exclude the State’s evidence, request for the affirmative charge, or by motion for a new trial; hence, we find only a brief statement of the underlying facts to be necessary.

It appears from the evidence presented by the State that, on the night of October 7, 1979, one David Vickers, an informer, and Jay Ivey, an undercover agent with the Alabama Alcoholic Beverage Control Board, contacted the appellant by telephone about purchasing some cocaine, and agreed to meet him at a designated time in the parking lot of a store. At the appointed time, appellant and a second man, identified as an Edward Watts, drove into the parking lot in appellant’s car, and Watts left the car and entered the store. Vickers then approached appellant, who was still seated in his car, engaged in some conversation with him, and received a small package from him, which he then returned to Ivey, who was waiting in his own car some distance away. Ivey examined the package, which contained a white powder, later identified to be cocaine, and then accompanied Vick-ers back over to appellant’s car, at which point Watts emerged from the store and re-entered appellant’s car. Appellant then quoted Ivey a price of $100.00 for the small package, and agreed to sell Ivey a second package for the same price. Ivey then paid appellant, who gave the money to Watts to count. Appellant further agreed that he could probably supply Ivey in the future.

Subsequently, on October 12, 1979, Ivey, Vickers, and A.B.C. Agent Larry Payne contacted appellant a second time by telephone. On this occasion, however, Vickers, who made the call, consented to the request of the officers that the telephone call be recorded, and thus Ivey recorded the subsequent conversation between the appellant and Vickers concerning further sales of cocaine. With this information, Ivey and Payne secured a warrant for the search of appellant’s residence.

Appellant denied that he had talked to Vickers concerning the sale of cocaine, and denied that the voice on the recording, which was admitted into evidence, was his. He further testified that, though he had been present at the store on the night of October 7, his companion, Watts, had been doing any selling of drugs that had occurred, and that he (Pinkerton) did not realize what was going on, although he admitted handing the packages to Ivey.

I

The sole contention of the appellant is that he was “deprived of his Sixth Amendment right to effective assistance of counsel and his Fifth Amendment due process right to a fair trial” (Brief of Appellant at 39) because his trial counsel had represented the informer, David Vickers, in previous criminal proceedings involving Vickers, thereby creating an actual conflict of interest. It appears that, at some time prior to appellant’s arrest on the instant charge of selling cocaine, David Vickers and his wife had been arrested and charged with two counts of selling phencyclidine (PCP), and Vickers had retained the attorney that was to represent appellant (it is not clear whether this attorney also represented Vickers’s spouse). During the course of this representation and apparently after some type of discussion with his attorney, Vickers decided to plead guilty to the charges and cooperate with the authorities as an informer in exchange for a recommendation of reduced sentences for himself and his wife. Vick-ers’s subsequent activities as an informer led directly to the arrest of appellant, at which point Vickers’s attorney withdrew as his counsel in order to represent appellant. It further appears that neither Vickers nor his wife had been sentenced at the time of appellant’s trial, and that in some measure any recommendation as to their sentences was to be based upon the success of Vick-ers’s informer activities. This scenario was developed somewhat at appellant’s trial, and we therefore find it necessary to quote at length from the transcript of those proceedings:

“Q. Carol. Now, Mr. Vickers, it was by coincidence I was representing you prior to your becoming involved in this matter; is that correct?
“A. Yes, sir.
* * * * * *
“Q. You tell the jury that I advised you to cooperate with the police?
“A. Yes, sir.
“Q. Isn’t the truth of the matter is that was up to you?
“A. Yes, sir.
“Q. Didn’t we discuss it?
“A. Yes, sir.
“Q. Were my words to you in substance, ‘That’s awfully dangerous and that you would have to make that decision?’
“A. No, sir.
“Q. Huh?
“A. No, sir.
“Q. What did I tell you?
“A. You told me I already started with ’em I might as well go along with ’em.
“Q. So then you would have already taken part in this before you talked to me: isn’t that correct?
“A. No, sir. No, sir.
“Q. Well, say it again, what you said. That you’d already started and I told you you might as well go along with it?
“A. Yes, sir. Remember when I come to your office once and talked to you about it?
“Q. All right. At that point had you already talked to the agents? The narc agent.
“A. No, sir.
“Q. Well, if I said you had already started it and you might as well go along, what was I talking about?
“A. Just talking about cooperating with ’em. I was gonna go into the hospital as an in-patient at Southland Hospital.
“Q. But what did ... what did you tell me for me to say since you have already started it you might as well go along with it.
“A. I told you I was mixed up, I didn’t know what to do, I didn’t know which way to turn. And you told me I might as well go along with it.
“Q. Go along with what, sir?
“A. What they told us over there on that day we walked to the police station. You and my dad, and Larry, and a couple of other officers.
“Q. All right. Well, let’s get the sequence of events straightened out. When did you even first think about cooperating with the narcotics agents?
“A. I never thought about it.
“Q. You never thought about it; but yet here you are today.
“A. They approached me.
“Q. All right. They approached- you. When was this?
“A. The first time I got ... the first time they arrested me.
“Q. Well, when was that, sir?
“A. It was March or April 2nd, I believe.
“Q. April of this ... of 1979?
“A. Yes, sir; when I got busted.
“Q. And you haven’t received your sentence yet?
“A. No, sir.
“Q. Has your wife received her sentence yet?
“A. No, sir.
“Q. Her case is before Judge Hocklan-der, is that correct?
“A. Yes, sir.
“Q. And what Judge is your Judge?
“A. Sweeney.
“Q. Judge Sweeney?
“A. Yes, sir.
“Q. All right. And the State keeps requesting that your case and your wife’s case be passed; isn’t that correct?
“A. Yes, sir.
“Q. All right. After this got started, did you try to get out of this cooperation with the police?
“A. Yes, sir.
“Q. You were thinking about it. Did they approach you and tell you what would happen to you if you refused to cooperate?
“A. No, sir.
“Q. Well, why did you not stop cooperating? And then what made you want to start cooperating, Mr. Vickers?
“A. When I first started doing it, trying to do it, I kept ... there wasn’t nobody going along with me, and I didn’t know what to do.
“Q. They kept putting pressure on you; didn’t they? You weren’t producing ....
“MR. COPELAND: Wait just one second. Judge, he asked the question, why did you deeide not to do it and then why did you want to go back and do it. And he hasn’t finished explaining the answer yet, if Your Honor please.
“THE COURT: Did you finish your answer?
“A. No, sir.
“THE COURT: Let him finish his answer.
“A. I started trying to cooperate with ’em. I didn’t know that many people in this area. So, I just said I’d blow it off and I went into the hospital at Southland. So after I got all the drugs out of me that I had in me; and I decided that I had to do something if I didn’t want to go to jail. And this is the first time ... I don’t want to go to jail; and if that’s what I have to do that’s what I have to do. I don’t want my wife to go to jail.
“Q. Did you attempt to set up some buys with other people?
“A. Yes, sir.
“Q. And were those attempts failures or ...
“A. They was all good attempts.
“Q. Sir?
“A. They was all good attempts.
“Q. Well, how many other people have you set up?
“A. I don’t know. All together I don’t know.
“Q. Did the narcotics agents ever tell you you didn’t do enough?
“A. No, sir.
“Q. Well, how many other cases did you go on, son?
“A. I’ve went on several, but I’ve never counted ’em.
“Q. Well, a hundred?
“A. No, not that many.
“Q. Thirty?
“A. Thirteen, maybe; fifteen.
“Q. Thirteen or fifteen of various people?
“A. Yes, sir.
“Q. How many times have you testified?
“A. This is the first time.
“Q. Well, didn’t they tell you you didn’t do enough, son? Isn’t that what you told me one time?
“A. No, sir, I ain’t told you that.
“Q. They wasn’t satisfied with what you did, with your attempts? Do you recall that?
“A. No, sir.
“Q. All right. After Mr. Pinkerton’s case came about, after he was arrested, is that the first time I found out that you were involved with Mr. Pinkerton?
“A. Yes, sir.
“Q. All right. And I explained to you that I knew Mr. Pinkerton’s family for many, many years, and I could not represent both of you.
“A. Yes, sir.
“Q. Isn’t that correct? So I had to withdraw from your case; isn’t that correct?
“A. Yes, sir.
“Q. And we withdrew friendly, didn’t we?
“A. Yes, sir.
“Q. All right. And prior to this time you never told me you were going to try to set Mr. Pinkerton up; is that correct?
“A. I couldn’t reveal to you who I was gonna set up.
“Q. In fact you never told me anybody you ever set up or tried to.
“A. I couldn’t.
* * * * * *
“Q. All right. Now, when you went to the narcotics agents they asked you to cooperate with ’em. Exactly what did they tell you they would do for you?
“A. They told me they would make a recommendation.
“Q. Of what?
“A. Whatever their recommendation would be.
“Q. Well, they didn’t tell you what their recommendation — were they going to recommend that you go to the penitentiary for fifteen years?
“A. They told me they weren’t going to recommend — they wasn’t gonna make me no promises. They said it would be left up to the Judge, but they would make a recommendation to the Judge, of some kind of probation or whatever ...
“Q. All right. Let’s get ...
“MR. COPELAND: Let him finish his answer, Delano.
“Q. They said they would not make a recommendation but yet they .. .
“A. They said they would not make no promises.
“Q. Would not make no promises?
“A. No promises.
“Q. But what did they say they would ask the Judge?
“A. They said they would make a recommendation to the Judge according to how much work I done for ’em, or whatever.
“Q. All right. Now, what did you understand for the ‘how much work’ to mean?
“A. I didn’t really know, Mr. Palughi. They never set an amount, or a certain number, or how many people.
“Q. Well, did you understand it to mean how successful you were on them being able to charge other people for these type offenses?
“A. I don’t understand your question.
“Q. You knew it didn’t mean that you were going to cut their yard, or anything like that, didn't you?
“A. Oh, I knew that.”
(R. 64-71)

The argument advanced by appellant that his trial counsel was laboring under a conflict of interest during his representation of appellant raises “(a) grave and important matter ... that must have our attention as it strikes at the very heart of our criminal justice system and involves fundamental fairness and a keen sense of justice.” Satterwhite v. State, Ala.Cr.App., 359 So.2d 816, remanded, Ala., 359 So.2d 819 (1977). It is, of course, a basic constitutional precept that persons subjected to “criminal prosecutions,” as that term has been defined in the cases, are entitled to the assistance of counsel, and the decisions mandate that for such assistance to pass constitutional muster, it must have been effective. U.S.Const., Amend. VI; Ala. Const., Art. I, § 6; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973), cert. denied, 416 U.S. 945, 94 S.Ct. 1955, 40 L.Ed.2d 298 (1974). Consistent with this principle, the United States Supreme Court established in the decision of Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), that, at least in the context of a situation where an attorney simultaneously represented two or more co-defendants to a criminal prosecution, the Sixth Amendment demanded that the attorney’s loyalty to his client be undivided and unimpaired by competing or conflicting considerations or loyalties:

“[We are] clear that the ‘Assistance of Counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to counsel means less than this, a valued constitutional safeguard is substantially impaired.”

This constitutionally-prescribed prohibition against an attorney’s representation of conflicting interests was further explored and defined in the Fifth Circuit decision of United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978), where that court had the occasion to note:

“As the law has recognized for quite some time, though, the Sixth Amendment right to counsel implies much more than a minimum level of professional competence: even otherwise competent trial lawyers may sometimes find themselves in a position in which they are unable to render effective assistance of counsel. Thus, where defense counsel in a criminal trial represents one of several clients with conflicting interests, his effectiveness as a vigorous advocate for a particular defendant may be impaired by his commitment to other clients: [Effective representation] is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents — as a vigorous advocate having the single aim of acquittal by all means fair and honorable — are hobbled or fettered or restrained by commitments to others. “Porter v. United States, 298 F.2d 461, 463 (5th Cir. 1962). Undivided loyalty and fidelity of commitment is therefore the guiding principle in this important area of Sixth Amendment jurisprudence ... Although an accused is entitled to counsel free of conflicting obligations, not every conflict in representation will be so egregious as to constitute a violation of the Sixth Amendment ... In other words, an actual, not merely hypothetical or speculative conflict must be demonstrated before it can be said that an accused has been deprived of effective assistance of counsel .... ”

We read the above-quoted language as requiring the conclusion that, when it has been shown by the accused that his counsel was representing actual conflicting interests, the accused has been thus denied his Sixth Amendment right to the effective assistance of counsel as a matter of law. Appellant does, of course, contend that his trial counsel’s representation of Vickers constituted an actual conflict of interest, and our examination of the Alabama decisions reveals that this precise set of circumstances is one of first impression in this State, although we have had occasion to consider the instance where an accused is prosecuted by his former defense counsel. See, Hannon v. State, 48 Ala.App. 613, 266 So.2d 825 (1972); Satterwhite v. State, supra. We do find, however, that a number of cases from other jurisdictions have considered this issue in varying factual situations.

The courts of other jurisdictions have thus frequently reversed the convictions of criminal defendants where it was shown that a defendant’s attorney was simultaneously representing a prosecution witness in the same or some other matter on the rationale that such was an actual conflict of interest which would act to impair the attorney’s abilities to adequately represent the criminal defendant as mandated by the Sixth Amendment. Stephens v. United States, 595 F.2d 1066 (5th Cir. 1979); Zuck v. Alabama, 588 F.2d 436 (5th Cir. 1979); United States v. Alvarez, supra; Castillo v. Estelle, 504 F.2d 1243 (5th Cir. 1974); Porter v. United States, 298 F.2d 461 (5th Cir. 1962); United States ex rel. Williamson v. LaVallee, 282 F.Supp. 968 (E.D.N.Y.1968); United States ex rel. Miller v. Myers, 253 F.Supp. 55 (E.D.Pa.1966); State v. Aguilar, 87 N.M. 503, 536 P.2d 263 (1975); Commonwealth v. Geraway, 364 Mass. 168, 301 N.E.2d 814 (1973); People v. Stovall, 40 Ill.2d 109, 239 N.E.2d 441 (1968). In Porter v. United States, supra, the defendant had attempted to show entrapment by a police officer who was later removed from the police force for his illegal activities, but the defendant’s attorney was apparently also representing the officer in disciplinary proceedings at the time, and the officer was not examined. The Fifth Circuit reversed defendant’s conviction, finding that a very real conflict of interest had manifested itself:

“A lawyer, undertaking to represent an accused, finds that the best weapon to establish entrapment is to implicate another. Unfortunately, he cannot implicate such person because that person is also a client. Stated in these terms, it does not really matter whether [the officer] was, or was not, called as a witness, or whether, for that matter, as one analogous to a hostile witness in a civil proceeding, he could have been called. Nor is it important that [the officer], if called, may not have testified to things establishing petitioner’s innocence.”

Similarly, in Castillo v. Estelle, supra, the Fifth Circuit was confronted with a situation where a defendant’s attorney was simultaneously representing the victim of the crime charged to the defendant in an unrelated civil matter. The court concluded that, as the victim could not be “a detached observer of the trial of the accused,” likewise his attorney would be under restraint in his handling of the criminal case:

“In a similar case, the court observed: ‘It takes no great understanding of human nature to realize that the individuals who have been burglarized might be less than happy and might go so far as to remove the attorney from their good graces if this defendant were acquitted or received a light sentence or were placed on probation.’ United States [ex rel. Miller] v. Myers, E.D.Pa.1966, 253 F.Supp. 55, 57 ... In these circumstances, counsel is placed in the equivocal position of having to cross-examine his own client as an adverse witness. His zeal in defense of his client the accused is thus counterpoised against solicitude for his client the witness. The risk of such ambivalence is something that no attorney should accept and that no court should countenance, much less create.”

This reasoning was followed in the later decision of Zuck v. Alabama, supra, where a defendant’s attorney was simultaneously representing the prosecutor in another legal matter. The Fifth Circuit again reversed the defendant’s conviction on Sixth Amendment conflict of interest grounds, despite the contentions by the State that the prosecutor was representing the people of the State and was thus not personally committed to the conviction of the accused:'

“The dual representation here created an actual conflict of interest. The prosecutor and the defense attorneys here were adversaries for the purpose of this trial. It is sufficient to establish a constitutional violation that the defense attorneys owed a duty to Zuck to endeavour to refute the prosecutor’s arguments and to impeach his witnesses. This being so, the same concern which underlays Castillo [v. Estelle, supra] is also present here: the defense attorneys were subject to the encumbrance that the prosecutor might take umbrage at a vigorous defense of Zuck and dispense with the services of their firm.”

The court further reasoned that the motives of the attorneys were irrelevant, the right to the effective assistance of counsel being “so vital to a fair trial that courts are compelled to examine every potential infringement of that right with the most exacting scrutiny.” Thus, the court concluded, “the mere existence of a temptation in the abstract is sufficient to preclude duality of representation.”

United States v. Alvarez, supra, presented the situation where the defendant was one of a number of persons originally indicted for narcotics offenses, and all of whom were represented by a single attorney. Subsequently, pursuant to a plea bargaining agreement presumably engineered by the attorney, most of the defendants pleaded guilty and were sentenced to various terms of imprisonment, mitigated for their testimony against the remaining defendants. The defendant Alvarez’s offered plea of guilty was refused by the trial court, and Alvarez was subsequently tried with the same attorney as trial counsel. Two of those who had earlier received their sentences testified against Alvarez at the trial, and were only superficially cross-examined by the attorney because of the possibility that evidence of the prior plea agreements would be introduced. The Fifth Circuit reversed Alvarez’s conviction, finding that a “glaring” conflict of interest had existed, notwithstanding the fact that the witnesses had earlier been sentenced:

“We do not undertake to decide whether or not, when [the attorney’s] clients were bargaining for pleas of guilty or nolo contendere, he could vigorously and effectively represent each client, consistent with the interests of his other clients. At any rate, as soon as appellant’s plea of guilty was rejected and it became apparent that [the witnesses] were to be called to testify against appellant, then [the attorney] was confronted with a glaring conflict of interest which pulled him in opposite directions. As witnesses for the government ... in order to fulfill their obligations under the plea bargaining agreement, would be expected to give incriminating testimony against appellant. Even though both ... had been sentenced prior to being called to testify, they would nonetheless be faced with contempt citations should they refuse to testify and the possibility of a perjury conviction if they elected to change their story at trial. The only course of action consistent with their best interests would be to give the most credible testimony possible implicating Alvarez ... On the other hand, as attorney for defendant Alvarez, [the attorney’s] single aim should have been the acquittal of his client by any fair and proper means ... Even before the trial began, then, [the attorney] wore two different hats, having as his dual objective the irreconcilable task of at once bolstering and discrediting the testimony of [the witnesses]

A similar situation was present in Stephens v. United States, supra, where two defendants had been indicted together for an offense, but one elected at an early point to plead guilty and turn government’s witness in exchange for a possibly mitigated sentence. Both were, at one time, represented by the same attorney, though the attorney apparently then ceased his representation of Wells, the witness, in favor of the appellant. It further appeared that, though Wells had pleaded guilty, his sentencing had been deferred, making it “clear that the Government's recommendation of the promised concurrent sentences was dependent upon Wells’s testifying in Stephens’s trial.” After the point of Wells’s guilty plea, it was evident that the attorney had nothing further to do with him. The Fifth Circuit noted that:

“The conflict is apparent: in his role as Wells’s attorney, Asinof was obligated to protect Wells’s interest and to avoid jeopardizing the plea agreement; as Stephens’s attorney, Asinof’s responsibility was to make Wells appear as badly as possible and to thereby discredit him and his testimony.”

The court further felt it immaterial that Stephens’s attorney had, in effect, abandoned witness Wells in order to represent Stephens at trial:

“Here, the District Court found that Asi-nof cut off all communication with Wells after the plea agreement had been reached and conducted an extensive cross-examination of him. Alvarez itself [supra], however, rejected this distinction as immaterial ... Moreover, this distinction goes more to prejudice than it does to the presence of an actual conflict. Here, Asinof owed conflicting duties to the defendant and a witness for the prosecution. That appearances indicate he ignored his duties to the witness in favor of those owed the defendant is irrelevant.”

The Stephens decision was distinguished in the recent Seventh Circuit case of Theodore v. New Hampshire, 614 F.2d 817 (7th Cir. 1980). There, the appellant had been indicted and convicted for conspiracy to commit arson after an employee of his had been arrested while attempting to commit the arson. One attorney represented both men, and the employee pleaded guilty and was sentenced to a term of imprisonment. Upon completion of the term of imprisonment, the employee had been called to testify against the appellant on the latter’s conspiracy charge. The District Court held that a conflict of interest had been present due to the attorney’s representation of the employee as well as the appellant, and that a writ of habeas corpus should issue, which decision was reversed by the Seventh Circuit. That court was of the opinion that the appellant had not shown that an actual conflict existed “at the time of ... trial,” in that the attorney had “fully severed his relationship” with the employee, had been “paid in full in advance” of the employee’s trial, and “the two had no dealings since the end of the case” involving the employee.

We find the above-cited cases to be quite instructive as to the situation presented here, although the State apparently argues that at least some of the cited decisions are “distinguishable.” There is, perhaps, some merit to this contention in that, at least technically, appellant’s trial counsel had withdrawn from his representation of Vickers upon learning of the arrest of appellant (R. 68-69). But, in accordance with our reading and understanding of the cases cited, our inquiry should not be totally affected by the technical niceties of when an attorney in such a situation has withdrawn or otherwise divorced himself from one client in favor of another, especially when the interests involved almost certainly compete. Our review of the record reveals to us that, as based upon the testimony at trial, the appellant’s attorney had indeed represented Vickers on the two charges of selling phencyclidine, and at some point an agreement had been struck by which Vick-ers would work for law enforcement authorities as an informer in exchange for the recommendation of a mitigated sentence. Vickers had not been sentenced at the time of appellant’s trial, and it is evident that any recommendations as to leniency were to be based upon what information, presumably as to narcotics offenses, Vickers could “produce” in his role as an informer. That Vickers was a principal figure in the subsequent arrest of appellant is undisputed, and certainly the underlying agreement with the authorities and Vickers’s general role and motivations as an informer were proper and important sources of possible impeachment of Vickers as a witness against appellant. And, while the exact role of appellant’s attorney in the negotiation of Vick-ers’s agreement to cooperate with the authorities is somewhat unclear from the record, it is evident that he was Vickers’s attorney until the time of appellant’s arrest, which occurred well after the agreement had been struck. It thus appears clear to us that appellant’s trial attorney could not very well seek to fully represent the appellant, when that representation would of necessity involve an attack upon the credibility of the chief witness, Vickers, especially where the attorney had had a role in negotiating the agreement by which Vick-ers would inform in exchange for a possibly mitigated sentence. Despite his formal withdrawal from Vickers’s case, we fail to see how the attorney could avoid a conflict by seeking to attack .the credibility and abilities of Vickers, whose future sentence depended upon the relative level of success in his informing operations. We are therefore definitely of the opinion that a very real conflict of interest was present here, and in accordance with the above authorities, the fact that appellant’s counsel had withdrawn as Vickers’s counsel would not, under these circumstances be the determining factor.

We are mindful of that line of decisions which confront this issue in the context of the prior representation of a prosecution witness by a defendant’s attorney, and have examined a number of them. See, United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976); United States v. Cochran, 499 F.2d 380 (5th Cir. 1974); United States v. Donatelli, 484 F.2d 505 (1st Cir. 1973); United States v. Alberti, 470 F.2d 878 (2d Cir. 1972), cert. denied, 411 U.S. 919, 93 S.Ct. 1557, 36 L.Ed.2d 311, and sub nom. Depompeis v. United States, 411 U.S. 965, 93 S.Ct. 2144, 36 L.Ed.2d 685 (1973); Crisp v. State, 394 N.E.2d 115 (Ind.1979); Commonwealth v. Biancone, 393 A.2d 1221 (Pa. Super.1978); State v. Means, 268 N.W.2d 802 (S.D.1978). Our reading of these decisions shows that in each of them, there was no demonstrable conflict shown, usually because there was no real nexus between the prior representation and the present defense of the criminal defendant. At least two decisions, however, ordered a remand for a hearing to determine if the prior representation would have conflicted with the criminal defense. See, Tucker v. United States, 235 F.2d 238 (9th Cir. 1956), and People v. Owens, 69 Ill.App.3d 599, 26 Ill. Dec. 546, 388 N.E.2d 170 (1979). We therefore find these cases distinguishable in that here we have found that a conflict does in fact exist.

The appellant has listed several instances in which the conflict of interest he has urged acted to prejudice his case, while the State attempts to refute these point by point. In Castillo v. Estelle, supra, the Fifth Circuit noted:

“The appellant has alleged specific instances of prejudice resulting from the conflicting loyalties of his counsel. We need not inquire into those allegations, when there is a conflict of interest such as exists in this case, the prejudice may be subtle, even unconscious. It may elude detection on review. A reviewing court deals with a cold record, capable perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty. Accordingly, where the conflict is real, as it is here, a denial of the right to effective representation exists, without a showing of specific prejudice.”

This is supported in several decisions of the United States Supreme Court, and it is thus not necessary that a defendant who has demonstrated an actual conflict of interest so as to affect his right to the effective assistance of counsel show specific instances of prejudice. Glasser v. United States, supra; Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

Our conclusion that a conflict of interest did in fact exist is not to be taken as any type of condemnation of appellant’s trial attorney for his actions before and during appellant’s trial. We find from the record that that attorney asserted a vigorous defense for appellant, with searching cross-examinations and well-reasoned and timely objections. We likewise find that this attorney certainly displayed no improper motive in seeking to disengage himself from David Vickers and then commencing representation of appellant. Further, no objection appeared during the trial from any party involved, nor did the trial court pause to inquire as to any possible conflict of interest. We can only presume in such situations that an attorney was mindful of and adhered to those principles of professional responsibility relevant to this type of situation. See, Code of Professional Responsibility of the Alabama State Bar, Canon 5; American Bar Association Standards for Criminal Justice, Standards Relating to the Defense Function, § 3.5. We cannot blind ourselves, however, to the obvious fact that where as here an actual conflict of interest manifested itself, that such a conflict acted to deny the appellant one of the basic rights guaranteed to criminal defendants under our Constitution. Authorities cited.

The judgment below therefore is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.

      . Appellant is represented by different counsel on this appeal.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re Joe PINKERTON v. STATE of Alabama).
    80-296.
    Supreme Court of Alabama.
    March 27, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Curtis Ray PARKER v. STATE.
    6 Div. 179.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      Bob E. Allen, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty of murder in the first degree of Lelia Martin by shooting her with a gun and fixed his punishment qt imprisonment for life. He was sentenced accordingly.

The only express issue presented on appeal is as to the sufficiency of the evidence to support the verdict and judgment. The question was presented to the trial court by motion to exclude the evidence, a written request for the affirmative charge in favor of defendant and a motion for a new trial. The trial court overruled each motion and refused defendant’s written request for the affirmative charge in his favor.

Any and all evidence tending to show defendant’s guilt was circumstantial. A large part of the lengthy evidence pertained to the question of the corpus delicti exclusively. There is no contention that the corpus delicti was not fully established. Appellant contends, as he did on the trial, that the alleged victim was not killed by him. Most of the following resume of the evidence will pertain to that question.

The defendant and the victim lived within less than a block of each other in Birmingham, close to the northwest lineal segment of Center Street, which runs approximately northwest and southeast and divides areas that civil engineers have designated “North” and “South” from areas they have designated “West” and “Southwest” respectively, in their surveys, plats and street identifications of the city of Birmingham, which latter designations conform in general to compass directions. Mrs. Sheila Robinson testified that about 4:45 on Saturday morning, February 24, 1979, the victim came to her house, which was about two blocks from the victim’s, and asked the witness to go to her laundromat and open it for her to wash some clothes, which she did. No one was with the victim at the time. She never saw the victim alive after that. The witness knew the victim well and had known the defendant about two months, having met him through his wife and having gone to hear him preach. She said that on the following Monday morning, the defendant came by her laundromat and asked, “Do any of you know the whereabouts of Mrs. Martin?” He did not receive an affirmative answer and then said that if they learned where she was to let him know.

Rosie Storey, who lived at 1621 Third Street, North, in the same neighborhood as Mrs. Martin, and had known her all of the life of the witness, testified that she saw her about 8:30 or 9:00 on the morning of Saturday, February 24,1979, standing alone on a corner on Sixteenth Avenue. The witness further said:

“She [Mrs. Martin] was fully dressed. She had a pants suit on, a short coat on. She had a wig on and glasses, her purse and an umbrella.”

William W. Logan testified that about ten minutes after eleven o’clock February 24, 1979, a woman whom he did not know but who was identified by him by a picture of her as Lelia Martin, came into a grocery store he operated in Blount County, stating that she wanted to buy beer. Upon being told that he didn’t sell beer, the woman left. The witness did not see anyone with her.

John B. Cole, Jr., testified that he lived at Blount Springs, just off County Road 7, that on February 24, 1979, “a little before noon,” he heard two “gunshot sounds” that came from the direction of a creek at which he had a pump house about a mile by road and three-fourths of a mile by air from where he was when he heard the gunshot sounds. He testified that on the following morning between 9:30 and 10:00 he went to the pump house with members of his family, passing the house of Mrs. Ercelle Hawes about half way between the home of the witness and the pump house, and while in the area of the pump house, a corpse was discovered in the creek. It was thereafter determined, and the evidence conclusively shows, that the corpse was the body of the alleged victim and that she had been shot three times in the head by a small caliber gun and that the three bullets were still in her head. The testimony of Mr. Cole continued as follows:

“Well, as I said, the little girls discovered a body and naturally we came over there. What I saw was this body laying face down, as I recall, in the water.... The water sort of .... the shallow part of the water that comes up where we pump the water out. It’s not as shallow as it is out toward the middle of the creek. The body was lying right in this little shallow pool of water, just as you go in the pump house door.
“Q. And you said it was face down?
“A. As I recall it was.
“Q. Now, describe .... describe the body. Describe the wearing apparel or the clothes you saw there.
“A. Well, as I recall, the upper part of the body was covered, but the lower part of the body wasn’t.”

Mrs. Ercelle Hawes testified that on the morning of February 24, 1979, she left her house about 11:15 or 11:20 to go to a filling station to get some water and returned about thirty minutes later. She testified that while returning to her house and going in the direction of the pump house of Mr. Cole, which was about one-half mile beyond her house, she met an automobile coming from the direction of the pump house. She had known defendant in the past but had not seen him in many years. The automobile was driven by a man whom she did not recognize at the time, but she said she identified him afterwards as the defendant by pictures the officers showed her. She also identified him on the trial as the defendant.

There was undisputed evidence that the dwelling of the victim caught fire on the late afternoon of February 24, 1979. Evidence, if any, was scant as to the cause, the extent and the duration of the fire. The victim’s daughter, who lived in Atlanta, came to Birmingham on the morning of February 26. She testified that defendant came to the home of her mother that morning (at which time she, and other neighbors apparently, had not learned of her mother’s death) and talked with the witness. She said in part as follows:

“I was looking for my mother and he came over and we was looking around the house with my kids and he went inside the house with us. And after we came out of the house I had a conversation with him. He told me that maybe she had got hit by a car. I told him I had checked all the hospitals and he said maybe when the house caught fire she ran and jumped in the creek.”

There was a stipulation between the parties to the effect that if an absent criminalist who had examined the body of the deceased were present to testify, he would testify that he ran “all kinds of tests, as to whether Mrs. Martin was drinking or not at the time she was killed,” and “that she was not,” that “her blood didn’t have any alcohol in it” and “there was no other type of drugs.”

It was shown by Dr. Joseph A. Embry, a pathologist, a witness for the State whose qualifications as an expert witness were admitted by defendant, that in performing the autopsy of the body of the victim, he made fingernail scrapings and found:

“Well, yes. The scrapings revealed, blue cotton fibers, red fibers, white fibers, clear fibers, red plate (that was with a fingernail file), black residue, sand and other debris.”

Upon cross-examination of Dr. Embry, the following is shown:

“Q. Doctor, did you have occasion to examine or somebody with your staff some dirt that was provided to you?
“A. Yes.
“Q. All right, sir. Do you know where that dirt came from?
“A. Just by memo.
“Q. Well, you may testify from the memo. It’s in the ordinary course of your business.
“A. It was from the mudhole if that’s the dirt you are talking about.
“Q. Yes, sir.
"A. (Reading) ‘One glass jar contained wet soil identified as from “mud” in homicide area.’ There was also wet soil from ‘creek tracks’ in the homicide area.
“Q. I believe, Doctor, there was another quantity of soil.
“A. Right. Identified as from the automobile belonging to Curtis Ray Parker.
“Q. And what would that .... what were the results of that?
“A. The memo states, ‘The laboratory examinations reveal the soil contained in item No. three, item No. four and item No. five (which are the soils I just described) to be generally similar.’
“THE COURT: I don’t believe the Court Reporter got that.
“A. The three soils were .... the two from the mud hole and the creek track and from the automobile were generally similar with slight differences regarding color, microscopic appearance and density-
“Q. Would that mean, doctor, that those did not come from the same area?
“A. This is not my area of expertise.
“Q. But there was a difference in the dirt. That’s what this says.
“A. It says a slight difference.”

On redirect examination the witness continued:

“Q. Doctor, since Mr. Allen asked you about that slight difference, if an automobile passed over an area and picked up some dirt particles that would be similar to a controlled specimen, such as that in the jar, but proceeded to travel and spin up some additional soil, would that account for a slight difference?
“A. It sounds reasonable to me.
“Q. It sounds reasonable, doesn’t it, that that would account for a slight difference?
“A. Yes.”

In addition to the evidence presented by the State on the contested issue of defendant’s guilt or innocence of the undisputed unlawful homicide of the alleged victim as summarized above, the State introduced, without any objection by defendant, a twenty-seven-page statement by him in question and answer form. The statement had been obtained on March 1, 1979, by an officer of the Police Department of the city of Birmingham, who at the time was accompanied by an officer of Blount County. According to the police officer, who read the statement to the jury while appearing as a witness for the State, the voluntariness and the other constitutional requisites were thoroughly established. There has been no contention to the contrary. In it we find the only evidence presented by the State, other than the testimony of Mrs. Hawes, as to the whereabouts and activities of defendant within a period of several hours before or after gunshot sounds were heard by Mr. Cole and defendant could have been seen by Mrs. Hawes.

The statement was first recorded on a tape recorder and thereafter typed. It discloses that defendant had previously lived at a place called Mountain Brook in Blount County, about five miles from Hayden and that his father and mother had lived there for many years and were living there on February 24,1979. The defendant said that about 11:00 A.M. he telephoned his mother, which was not by long distance from Birmingham, and told her that he was on his way up there to get some cracklings that his brother had brought over from Arka-delphia, a town in neighboring Cullman County. He said that at the time he was “rushing up there to my mother’s and get the cracklings and come on back” to go to a funeral of one Parker Skinner at 2:00. He said that at the time he understood that the funeral was to be in Birmingham close to where defendant lived, but in leaving he learned from “a blind lady named Millers sister” who “lives on the same block” that the funeral would be at the “Colony Grave Yard” at or near Arkadelphia. According to the statement, defendant drove his automobile, with no one accompanying him, to his mother’s home, arriving there “about 12:00,” talked with his father and mother, obtained the cracklings and some peaches and peas- that his mother gave him and “four bags of Cracker Jacks for the little girls.” His statement continues as follows:

“How long do you think you were at your mama’s house?
“All total?
“Well, I’d say at least twenty .... twenty-five minutes maybe .... maybe that long.
“Okay, and then you left there and you went to the church there at Arkadelphia?
“Right.
“About what time do you think you got there?
“Well, I’d say it was around 12:30, I guess, you know, approximately 12:30, you know.
“Okay. And you say that the body was already in the church. Right.
“Right. Right. The body was already in ...
“And the wake was going on. Right?
“Right. Right.
“Had it started?
“Well, I think .... the funeral was supposed to have been there at 1:00. I believe it was 12:30-12:32 1:00 and the funeral started at 1:00 or 2:00, some time. In other words, we was all men and fellows standing out there talking and so .... after we got through, you know .... they said ... somebody said, ‘Well, I’m going in there and review the body’ and somebody said, I think it was Arthur Johnson, said, ‘Now, they done set the casket up.’ And they said, Well, why did they call for the wake to be this long’ and they said, ‘Well, they ain’t gonna open the casket no more.’ So I just stood around there and talked to them awhile, you know, and messing with friends. I hadn’t been up there in about ....
“Did you go with anybody when you went to your mother’s and then when you went to the funeral?
“Was anybody with you or were you by yourself?
“I was by myself.
“By yourself?
“Yes, sir.
“Now, name some of the names of the folks that you talked to at the funeral, you know? At the wake and all.
“Well, there was my first cousin. That’s Bubba. He stayed in Blount Springs.
“What .... do you know his full name?
“Noah Teague. They call him Bubba.
“Noah Teague?
“Yes. His full name is Noah Teague.
“And I talked to Leon Turner ....
“Where does he stay?
“Well, he stays in Colony, too. And I talked to Fred Turner .... Fred Turner .... And I talked to Thomas Hall, J. Hall, and you know, just several .... I can’t just call everybody, you know.
“Okay. Okay. I just wanted a few names. Okay.
“Then you stayed through the funeral?
“Yes, sir.
“Did they bury the body there at the church in the graveyard?
“Yes, sir.
“So you stayed until they buried the body?
“Yeah. Well see .... They had .... I was talking to my uncle 'cause my uncle and my sister-in-law and all of them they was there, you know and my ex-old lady she was there too.
“Okay. And you stayed there until the funeral was over with?
“Right. Right.
“And then you left?
“Right.
“Did you leave with somebody?
“No, I left by myself.
“Okay. And came back to Birmingham?
“Yes, sir.
“You came back. About what time did you get back?
“Well, I’ll say .... I’ll say it was at least about 3:00.
“About 3:00?
“About 3:00 or 3:30 because when I came back .... see .... I had promised a man be down here at the church .... down at the Great Immanuel Temple. Some cracklings. He told me when my brother killed hogs that he wanted some of them cracklings.
“And then you came on home?
“Right.
“Now, we asked this woman's name. I can’t remember the woman’s name. Lelia Martin. When was the last time you saw or heard of or know Lelia Martin? ‘Well, it was on a Friday evening. Friday evening, Friday evening before I went to work. I leave home to go to work about 2:30 and me and Mr.
“I think you said it would have been about 2:15 or some place around there?
“Yeah. It was 2:15 or some place around three.
“On Friday?
“Last Friday.
“And Miss Miller [sic]
“Miss Miller [sic]. Me and Mr. Bradley was setting on the porch. He was setting there talking to me. She came over talking for the Heart Fund?
“Right.
“And you gave her some money?
“I gave her a dollar.
“And then you saw her go next door?
“Go over there. She was walking out there ’cause everybody round there said her mind was bad and all, but they ain’t nobody never went to her house, you know, ’cause she would holler for them out there in the street, said Miss Martin .... Miss Martin .... and I think she come to the door while from my house, when I’m sitting on the porch. You can’t see around to her house, you know.
“But you heard her talking?
“Yeah. And I heard her say something about she didn’t have no money or something like that.
“And that was on Friday?
“Right. Friday before I went to work— Friday evening.
“And that’s the last time you know of seeing her?
“Yes, sir.”

Thereafter in the lengthy statement of defendant, he said that “during Christmas last year” he had “picked up her pecans and sold her pecans” but that she had “never ridden in his car” and that he had never “taken her to any kind of store.” He was then asked, “How did you come to find out the house was burned?” He then related in considerable detail a discussion with his wife about what they would have for supper, that he left the house, went to a nearby restaurant and bought some chicken for supper and while returning about 5:00 he heard a siren blowing; that after he had proceeded on to his house, stopped his automobile, gone into the house and placed the chicken in the house, he then hurriedly went across the street and entered into excited conversations with at least two people, whom he knew and identified, as to where Mrs. Martin was. He also said that a neighbor, a Mr. Robinson stated, “Somebody liked to run up here on this porch and liked to kicked my door down,” and that when he “got to the door ... they jumped off the porch and run and jumped in the car.” Defendant further said in his statement that he first learned on February 26 that Mrs. Martin had been killed and that her body had been found in Blount County. He said that he had filled his automobile with gasoline on Friday night before he went to Blount County the next day, that he did not stop on the way to his mother’s house, on the way therefrom to the funeral at the Colony near Arkadelphia or on the return trip home. He stated that he washed his automobile after he returned home Saturday as was his custom in getting ready for Sunday. He said, furthermore, that he had never owned any kind of a gun, that he did not know whether Mrs. Martin owned a gun, that he had never had any trouble with Mrs. Martin, that on Monday, February 26, the left back tire on his automobile went flat with a nail in it and that it was replaced with a new tire and that the flat tire was placed in the trunk of his automobile and was still in it at the time of his statement. He said that in driving to his father’s house from the highway he went over a muddy road, that he did not know exactly where the body of Mrs. Martin was found, that he was not in that particular area on Saturday, February 24, and that he did not know of the existence of a pump house there. He acknowledged having worked as a boy for one or both of the farmers in that area by the name of Hawes, but he disclaimed close acquaintance with the people generally, and the area of Blount County involved, during the then preceding several years. Part of his testimony on the subject was as follows:

“I mean, you just don’t like Blount County?
“That’s right. I just ... You know, my people, you know, they always tell me, you know.... Like I go fishing up there sometimes and they always tell me when you go fishing to always carry somebody with you, you know, because, you know, they really, you know. They don’t want me to, you know, ever....
“Have you had a lot of trouble in Blount County?
“Well, they mess me around up there, you know — lied on me and things like that. Just like this right here, you know. I get .... man, you just don’t know how it is. You know what I’m saying is .... You be framed for things. See, I hate to get angry about anything.

The first witness called by the defendant was Mr. Billy Irvin, an investigator for the Sheriff’s Department of Blount County, who was the first law enforcement officer to “survey the scene” of the crime. He said he found no weapons, that the clothes of the deceased were under her body, that he found no shoes or purse, that he saw car tracks and that the area was muddy. He found no tracks of human beings there. He afterwards went to the home of the defendant and searched his home and his automobile. He said that he found nothing in either that “connected him with the crime.” He further testified that he talked with many people in the community where defendant lived but couldn’t find anybody that saw defendant with the victim on February 24. According to the witness, the home of defendant’s father and mother is about “two to three miles from the scene where the body was found.”

By the testimony of Mr. Zein W. Bagley, “the director of outpatient at Norwood Clinic,” defendant's counsel showed that the distance measured by an automobile odometer from defendant’s home to Mr. Logan’s store is 25.9 miles and that traveling there at approximately 55 miles an hour took 36 minutes; that the distance from Mr. Logan’s store to Mrs. Hawes was 10.4 miles and that traveling that distance took him 14 minutes and that it took him two minutes to travel from Mrs. Hawes to the pump house, making a total travel time of 52 minutes. On cross-examination of the witness, it was established that the road that led off the highway to Mr. Cole’s farm to the Hawes’ farm and to the pump house could hardly be considered a public road, that the first part of the road was better than the rest and that for about a mile before reaching the pump house there were “grass and briars and stuff” that were “as high as the radiator” of the automobile but not “over the hood of the car.”

Michael Rich testified that he brought defendant from work in the automobile of the witness to the home of defendant about 2:25 A.M., February 24, left defendant at his front door, noticed that defendant's four-door green Maverick was in the yard and saw defendant go to his front door. He did not see defendant again until the following Monday.

Mrs. Mary Williams testified that on February 24, “after 11:00” or about “11:30 or 11:40,” defendant came by her house in the same neighborhood and asked her about the arrangements and time for the funeral of Parker Skinner, the husband of her first cousin. She told him that the funeral was to be at the Colony; he said she could go with him and she replied: “No, I hadn’t made no arrangements. Naw, go on.” He then left. She also testified that she had been brought up at Mountain Brook in Blount County and had known defendant’s “mama and daddy.” She said no one was in his automobile with defendant at the time; that defendant’s red coat was lying across the seat. She said that she saw him again at her house about 4:00 P.M. that Saturday; he told her that he had attended the funeral and then he proceeded toward his home.

The father of defendant testified that defendant came to the father’s house “around 12:00” on February 24, 1979, stayed there around thirty minutes and then left for home. He said that he called up later on that day and told them that he had gone by the funeral of Parker Skinner. He said he didn’t pay any attention but that defendant’s clothes “looked clean to me,” that defendant had on a blue shirt and that his coat was in his automobile. He said his other son lived in Cullman County, where he killed a hog and brought the cracklings over for the defendant to pick up.

Oscar William Parker testified that he lived in North Birmingham, that he also was a brother of the defendant, and that between 3:30 and 4:00 on February 24, defendant stopped by his house to leave some cracklings that had been sent by another brother. Defendant told him that he had been to the funeral of Parker Skinner, that he stayed at the house of the witness about fifteen minutes.

Defendant’s wife testified that she worked at Norwood Clinic and that a previous witness Mr. Bagley was her “boss.” According to her testimony, she was at home when defendant returned from his work about 2:30 on the morning of February 24; she fed him before they went to bed; she left home about 7:45 to go to a seamstress and from there to the grocery store, leaving her husband before he got up. Thereafter, she went to the Farmer’s Market. She was traveling in her husband’s automobile. When she returned home, which was “between eleven and eleven-thirty” her husband was on the porch waiting for her. According to her further testimony, he asked her if she “wanted to go to his mother’s house and to a funeral with him,” but she did not go. After he helped bring in the groceries, he left. She next saw him about four that afternoon. She said:

“Well, when he came home, he drove between the house like he usually do when he come from up in that area and he washed the car. And each time when he comes from down there, the car’s all muddy ... red mud and so he washes it.”

They discussed what they would eat for supper; he left to get some chicken, and before he returned with it, she “heard the siren.” He rushed into the house, “dropped the chicken in the chair” and went outside. She learned that the fire was “at Lelia Martin’s house.” He returned “about an hour and a half or two later” and never went out again that night. She was intensively and extensively cross-examined as to her movements between the time she left the house that morning and returned with the groceries and as to her conversation with a former patient whom she had nursed and as to the time that intervened between her return to the house and defendant’s departure. She said that he spent “about .... maybe ten or fifteen minutes” taking the groceries out of the car and taking them in the house and putting them down,” and about five minutes more before he left.

Upon being closely questioned on cross-examination as to the points and periods of times of her and her husband’s activities on the morning of February 24, defendant’s wife said as to the time he left, “I didn’t just watch the clock. I would judge maybe between 11:30 and 12:00.” She said that she left the grocery store “about 9:50” and then went to the Farmer’s Market where she stayed “about twenty minutes,” and thereafter went home. The grocery store was in a shopping center, several blocks but only about a mile from the Farmer’s Market, which like the defendant’s home was in the northwestern area of Birmingham. The seamstress was in Smithfield, “some four miles” from where she and defendant lived, at 313 Fifteenth Avenue, North. She also testified on cross-examination that she had known Lelia Martin between ten and eleven years, that she knew her before she and defendant were married. She said that she lived at 313 Fifteenth Avenue, North, before she and defendant married and continued to live there from the time they married, that Lelia Martin lived by herself, that there was one house between the house where Lelia Martin lived and the house where defendant and the witness (defendant’s wife) lived.

There is little, if any, disagreement between the parties on appeal as to the governing principles of law. The disagreement is as to the applicability of those principles to the evidence in the case. Although there is a tendency toward a blending of the time stages of the contentions and counter-contentions, we deem it appropriate to note that appellant’s challenge as to the sufficiency of the evidence took place at three distinct stages of the proceedings in the trial court, and that there is some difference as to the sufficiency of the evidence in each of such stages. The first stage was at the conclusion of the evidence for the State, the second at the end of the trial, and the third on the motion for a new trial. In many of the cases in which the sufficiency of the evidence has been upheld, the action was as to all three of the stages, but in some cases, and this is one we think, the question should be considered in each of the three stages separately in order to arrive at a correct determination of the appeal.

In order to test the sufficiency of the evidence to support a verdict that defendant is guilty, defendant does not have to rest when the State has rested. He may then present a motion to exclude the evidence, and even though the court overrules the motion and thereafter defendant proceeds to introduce evidence that supplies any previous insufficiency of the evidence, he has preserved his right on appeal to obtain a reversal if the evidence at the time of the motion did not make out a prima facie case when viewed in the light most favorable to the State. Kontos v. State, Ala.Cr.App., 363 So.2d 1025, 1033-1034 (1978); Williams v. State, Ala.Cr.App., 340 So.2d 1144, cert. denied, 340 So.2d 1149 (1977); Morton v. State, Ala.Cr.App., 338 So.2d 423 (1976); Tooson v. State, 56 Ala. App. 613, 324 So.2d 327 (1975). However weak the evidence for the State may have been at that time, we do not doubt that a prima facie case against defendant had been presented. Even though there was little conflict in the evidence that had been presented, there was no occasion for the court to undertake a weighing process, any kind of a juxtaposition of evidence for the State and evidence for the defendant; there was no opportunity for a comparison between the evidence presented by the State and the evidence thereafter presented by defendant. The court’s duty then was to determine whether there was any evidence, even though entirely circumstantial, that defendant was guilty. We must conclude that there was. The corpus delicti had been unquestionably established; circumstantial evidence, including particularly the evidence that defendant had been seen driving an automobile within about a mile of the remote place at the end of a remote country road where the victim was killed, close to the time the defendant was seen, constituted substantial evidence that pointed to him as the murderer. The court was not in error in overruling defendant’s motion to exclude the evidence.

Perhaps a closer question exists as to the sufficiency of the evidence at the con-elusion of all the evidence. By that time, defendant had presented considerable evidence to the effect that he was probably not at the place where the alleged victim had been killed at the time she was killed. This evidence did not come merely from the statement he had previously made that had been introduced in evidence by the State, but from others, including members of his family, his father, his wife and his brother, which, if true, did not absolutely exclude the possibility of his guilt, but which tended to corroborate his claim, as expressed in his written statement, that he was not guilty. The evidence did not, however, vitiate, though it may have weakened, the testimony of Mrs. Hawes and the testimony of Mr. Logan, which when considered together, in connection with all the circumstances of all of the evidence, constituted substantial evidence of his guilt and justified a submission of the case to the jury. The court was not in error in refusing the affirmative charge in favor of defendant requested by him in writing.

One of the grounds of defendant’s motion for new trial, which was overruled, alleged:

“That the jury’s verdict is not supported by the great weight of the evidence.”

The trial court correctly charged the jury as to its responsibility in passing upon the weight of the evidence, with appropriate emphasis upon the fact that all of the evidence of defendant’s guilt was circumstantial. Both the State and defendant expressed satisfaction with the court’s charge.

In the court's oral charge we find:

“The guilt of a defendant may be proved by circumstantial evidence, as well as by direct evidence. The test of the sufficiency of circumstantial evidence is whether the circumstances as proved produce a moral conviction to the exclusion of all reasonable doubt of the guilt of the accused, whether they are incapable of explanation upon any reasonable hypothesis consistent with his innocence. Upon circumstantial evidence there should not be a conviction unless to a moral certainty it excludes every other reasonable hypothesis than that of the guilt of the defendant. No matter how strong may be the circumstances, if they can be reconciled with the theory that someone else other than the defendant may have done the act, then the guilt of the defendant is not shown by that full measure of proof the law requires.”

Perhaps there was an inadvertent omission of the word “reasonably” between the words “be reconciled” as they last appear together in the quoted portion of the charge, but on the whole the charge states that which the authorities have uniformly held. Ellison v. State, 254 Ala. 428, 48 So.2d 176 (1950); Smith v. State, Ala.Cr. App., 342 So.2d 422 (1977); Bluth v. State, 38 Ala.App. 692, 92 So.2d 685 (1957); Whatley v. State, 37 Ala.App. 706, 75 So.2d 182 (1954); Byrd v. State, 37 Ala.App. 121, 73 So.2d 376, cert. denied, 261 Ala. 697, 73 So.2d 378 (1954). It is to be observed that there is a limitation upon the principle to the effect that it does not apply in a case in which the “some other person” or “some person other than defendant” could be considered as some person acting in concert with defendant in the commission of the crime. See Scruggs v. State, Ala.Cr.App., 380 So.2d 308 (1979) and authorities therein cited. There is no evidence in the instant case to the effect that any other person was acting in concert with defendant in the commission of the crime. There is no contention to that effect.

A court on appeal should not treat lightly the line of demarcation between its function and that of the trial court, especially as it relates to a motion for a new trial grounded on the question of the sufficiency of the evidence to support the verdict. It should not reverse the trial court for its denial of such a motion merely because the court on appeal concludes that it would have granted the motion if it had been the trial court. To do so would ignore the fact that the trial court, which hears and views the witnesses as they testify, is in a better position than an appellate court to determine questions as to the sufficiency and weight of the evidence. Nevertheless, when the court on appeal, after giving the trial court the favorable presumption to which it is entitled, is convinced that it is so contrary to the weight of the evidence that it is palpably wrong or unjust, it becomes its duty to reverse the judgment and remand the cause for another trial. Smith v. State, Ala.Cr.App., 342 So.2d 422 (1977); Barker v. State, 55 Ala.App. 322, 315 So.2d 129, cert. denied, 294 Ala. 752, 315 So.2d 130 (1975); Davis v. State, 33 Ala.App. 299, 34 So.2d 15, cert. denied, 250 Ala. 240, 34 So.2d 17 (1948); Skinner v. State, 22 Ala.App. 457, 116 So. 806 (1928).

Except for the testimony of Mrs. Hawes, there is little, if any, evidence in the instant case that is not as reasonably reconcilable with defendant’s innocence as with his guilt. Furthermore, except for the testimony of Mrs. Hawes, there is little conflict in the evidence. The startling coincidences that the alleged victim was killed within a few miles of where defendant was reared and where his parents still lived, that defendant was in the area of his parents’ house at the time she was killed, and that defendant and the victim were almost next door neighbors at a place about one hour’s travel time away, are circumstances giving rise to strong suspicion and understandable cursory notions that he was the murderer, but they do not constitute proof thereof. Most of the circumstances when fully illuminated are just as consistent with his innocence as with his guilt. It can be argued that he chose a place with which he was familiar for the scene of his crime and the disposal of the body in preference to a place with which he was not familiar; on the other hand, it can be argued that with murder in his heart he would have chosen a place where he was not known and not as likely to have been identified as one being near the scene of the crime. His acquaintance with the victim is as consistent with his innocence as with his guilt. Whatever his motive for killing a woman would have been, he would likely have directed it at a target more appealing to his motive.

We looked in vain for some connection between the evidence as to the fire at the victim’s home on the late afternoon of February 24, 1979, and her death that apparently occurred a few hours before, but no light on the subject was shown by anything in the transcript or by anything in the briefs of respecitive counsel. The evidence as to defendant’s conduct relative to the fire is as consistent with his innocence as with his guilt. His manifested interest in and concern about the fire and the presence or absence of Lelia Martin were not materially different from that shown by other neighbors.

Without accepting defendant's denial of his guilt in his written statement he gave the officers on March 1, 1979, it is our view that his lengthy statement as to his conduct and activities on the day of the murder is as consistent with his innocence as with his guilt. There is little, if any evidence, except the testimony of Mrs. Hawes, that tends to show that any of his statement is false in any substantial respect.

The case as a whole impresses us as one in which there is little, if any, claim and little, if any, basis for a claim that any witness wilfully swore falsely in his or her testimony. All of the testimony can be reasonably reconciled with all of the other testimony without any imputation of intentional falsity on the part of any witness. No attack is made upon the good faith and the honesty of opinion of Mrs. Hawes, and we accept her testimony as an honest reproduction of her belief that the man identified as defendant was the defendant, and that it could be reasonably inferred from such testimony that defendant was the person who killed Mrs. Martin. On the other hand, the overwhelming weight of the other evidence in the case is to the effect that defendant would hardly have been able, within the time frame of the evidence in the case, to have driven Mrs. Martin in his automobile to the place where she was killed, there shoot her three times, then dispose of her body as shown by the evidence and thereafter make himself presentable at the home of his mother and father and at the funeral at Arkadelphia.

The testimony of Mr. William Logan is as consistent with defendant’s innocence as with his guilt. Although doubtless true, it presents an unsolved puzzle in the case. According to his testimony, Lelia Martin went into his store to purchase some beer. She did not obtain it. According to the expert testimony in the case, she had not drunk any alcoholic beverage at the time of her death. For whatever it is worth, it should be noted that Mr. Logan’s store was not at the intersection of Interstate 65 and the exit to Blount Springs where Mrs. Hawes lives or the exit farther north to Arkadelphia, but at the intersection with Alabama 160 to Hayden in Blount County. The statement of defendant as given to the officers indicated at least that when he turned off Interstate 65 to go to his parents’ home, he turned off on the Blount Springs rather than the Hayden exit. There is no evidence in the case to dispute the statement of defendant that he was not a drinking man. The testimony of Mr. Logan that Lelia Martin was in his store about ten minutes after 11:00 is somewhat at variance with the statement of defendant and the testimony of defendant’s witnesses as to the time he left Birmingham and the time he arrived in Blount County if it is assumed that Lelia Martin was with him, but there is no testimony by anyone that she was with him then or at any other time that day.

The testimony of witnesses, including the victim’s daughter, as to inquiries as to the whereabouts and welfare of the victim that were made by defendant between the time of the fire at the victim’s home and the time it was generally learned in the neighborhood that she had been killed in Blount County, is as consistent with defendant’s innocence as with his guilt. Whether it points any more in the direction of his guilt than for him, a professed preacher of some kind, to have gone into seclusion or shown no concern for or interest in a close neighbor, living alone, whose house had burned and who had apparently disappeared from the neighborhood is anyone’s guess. To say, as he did, that “maybe she had got hit by a car” seems but a natural comment, whether from a guilty or innocent person. If the statement that “maybe when the house caught fire she ran and jumped in the creek” is to be construed as significantly related to the fact that the victim’s body was found in a creek where it had been evidently placed by her murderer, such significance seems to be lost when it is noted that, within a few blocks of the home of the victim, there is a much larger creek, Village Creek, that runs the entire length of Industrial Valley of Birmingham.

We take into consideration the testimony of the expert as to the fingernail scrapings found during the autopsy of the victim’s body in connection with the other evidence in the case, as to which appellee says:

“... There was also testimony that Appellant had on a blue shirt on the day in question (R.222) and had a red jacket in his car. (R.215). Fingernail scrapings from the deceased revealed blue fibers and red fibers. (R.81) .. .. ”

The first two references to the record are to the testimony of defendant’s father that defendant had on a blue shirt but had left his coat in his automobile while he was at the home of his father and mother on February 24 and to the testimony of Mrs. Mary Williams that defendant’s red coat was on the seat of his automobile that morning when he came by her house to inquire about the funeral of the husband of her first cousin. As has been noted above, there was testimony of an expert that the fingernail scraping revealed white fibers in addition to red and blue fibers. The possibility of the fibers having come from defendant’s clothing is clear, but the likelihood thereof is not, when, as here, there is no shred of evidence of any clawing or scratching of defendant’s body or clothes and the evidence does not show the color of the victim’s clothes that she wore after having gone to the laundromat to launder her clothes.

We give special consideration also to the evidence as to the soil test on samples of soil from the area where Mrs. Martin’s body was found and on the sample taken from appellant’s automobile. We do not doubt, though we do not know, that there could be such a distinctiveness about the “color, microscopic appearance and density” of soil in the area where her body was found as to furnish the basis for an inference, or the testimony of an expert in such matters, that some of that same soil was found on defendant’s automobile a few days later. There is no such evidence in this case. As heretofore shown, both parties attempted to obtain aid on the subject from the distinguished pathologist who testified as to his examination of the body of the victim, and each party seems to have obtained some satisfaction from what he said, but it is to be observed that such apparent satisfaction is as to the extent of the similarity and dissimilarity between the samples of soil from the area and the sample of soil from the automobile. When asked by counsel for defendant whether the results of the test meant “that those did not come from the same area” he replied, “This is not my area of expertise.” There was no expert testimony either way on that subject. Whether it can be obtained, we do not know, but, without it, any contention that there is evidence that soil from the place the body was found was also found on defendant’s automobile is not sustained by evidence or judicial knowledge.

The established fact that an alleged murderer was near the scene of a murder when it occurred varies in significance on the issue of his guilt in accordance with all the other circumstances, particularly the distance and the extent of travel or intercourse between the place of the murder and the home of the alleged murderer, or other site -or area frequented by him. The undisputed evidence is sufficient to show that defendant was in the general area, within a few miles, of the place the victim was killed at the time she was killed, but the remarkable coincidence loses much of its significance when exposed to the light of all the circumstances. In addition to the circumstances heretofore stated herein, which include the fact that people other than defendant living in the same general area as defendant and the victim had their roots in the same general area where each of them was at the time of the alleged murder, we should note that geography, history and agricultural enterprise still current afford a more intimate linkage between the two areas than the mere distance between them suggests. There still exists, close to the homes of the defendant and the victim, a segment of old Arkadelphia Road, which in the infancy of Birmingham and for many years thereafter ran its tortuous course through northern Jefferson County into Cullman County, near its boundary with Blount County, and provided the best way for travel between the two places, then like a distorted tail, but now a relic of a part of a true “Tale of Two Cities.”

From Arkadelphia and neighboring areas where defendant surely was when the victim was probably killed, came many of the first settlers of Birmingham; some of them and their posterity have brought distinction to their family names in many fields including medicine, law and commerce. The references in the evidence to Farmers’ .Market, near the home of the defendant and the victim, and to the farm of Mr. or Mrs. Hawes near the home of defendant’s father and mother and near the place the victim was probably killed, are reminders of the well known extensive perennial travel, commerce and relationship between the area where the defendant and the victim lived and the area where it appears that she was killed. It is a well known fact that almost every day throughout each year there are many people from the regions mentioned at the Farmers’ Market, that products from the farms of those regions have constituted one of the greatest and most noteworthy sources of supply for the Farmers’ Market. It naturally follows that whoever killed Mrs. Martin, whether appellant or not, was not necessarily in a strange land when he killed her.

To summarize, there is no direct evidence of defendant’s guilt; the only substantial circumstantial evidence of his guilt is the testimony of Mrs. Hawes in her identification of him as the man she saw driving an automobile from the direction of the place Mrs. Martin’s body was found. Even though she was sure in her own mind that her identification was correct, she only had a momentary profile view of him from his shoulders up while the two were traveling in opposite directions. When this is considered in connection with all the other evidence in the case, we are convinced that the evidence against him is so weak and the evidence in his favor is so strong that he is entitled to a new trial. The judgment of the trial court should be reversed and the cause remanded.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.

      . With the exception of the use of the word “weight” instead of the word, “preponderance” the ground stated is the same as the ground stated in Code of Alabama 1940, Tit. 7, § 276, which prevailed until modified as to criminal procedure by Code 1975, § 15-17-5. We take it that the change in language has not worked a change in substance as to an appropriate ground for a new trial, and that the often stated view of the Supreme Court that the particular language need not be literally followed is still applicable. Stallings v. State, 249 Ala. 1, 32 So.2d 233 (1946); Lightfoot v. State, 250 Ala. 392, 34 So.2d 619 (1948).


author: EMBRY, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re Curtis Ray PARKER v. STATE of Alabama.)
    No. 80-294.
    Supreme Court of Alabama.
    March 26, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Billy Gene HARJO v. STATE.
    6 Div. 301.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    Albert C. Hultquist, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted and convicted for the first degree murder of his mother-in-law, Bobbie Ingle Moore. Sentence was life imprisonment.

The only issue on appeal is the sufficiency of the evidence to support the jury’s verdict of murder in the first degree.

In the early morning of September 12, 1979, Carolyn Louise Harjo was awakened by her mother’s scream and a stinging in her chest. She had been shot in her sleep. She heard her mother, Bobbie Moore, screaming, “Don’t shoot her again” and saw her husband, the defendant, standing next to her mother holding a pistol. Mrs. Harjo watched as the defendant pushed her mother away, took the weapon in both hands and shot her in the arm. The defendant then fired one shot into her father’s room. Mrs. Harjo also heard a third shot.

Mrs. Moore’s other daughter was in the house that night. Barbara Fernandez was awakened by a loud noise. She testified that when she walked into her parents’ bedroom, the defendant “had already shot my daddy and my daddy was screaming at him not to shoot him any more and he was begging him not to shoot.” Mrs. Fernandez stated that her father said, “Please, Bill, don’t shoot me any more. Don’t do it again.”

When the defendant began shooting again, Mrs. Fernandez ran downstairs. The defendant followed and when he found her said, “Don’t worry, I’m not gonna shoot you. You haven’t done anything wrong to me.” At the defendant’s command, Mrs. Fernandez telephoned his mother in Oklahoma. The defendant got on the phone and told his mother, “I just killed Bobbie (the victim in this case), George (the victim’s husband) and Carolyn (the defendant’s wife).” The defendant then said “Come after Christy (his two year old child) because they won’t take her away from me any more.” After the telephone conversation, the defendant told Mrs. Fernandez to get him a pack of cigarettes and to “call the law and tell them to come after me and I’ll be at the hill.”

Mrs. Moore was the only victim to die from the wounds received that morning. Both Mr. Moore and the defendant’s wife survived their injuries.

The defendant testified in his own behalf. He maintained that Mrs. Moore caught him in the act of attempting to take his life, tried to stop him, and during the struggle the pistol accidentally discharged four times. The testimony given by the defendant conflicted with that given by the witnesses for the State.

The pistol was a .327 magnum. It contained five shells, all of which had been fired.

Murder in the first degree is the willful, deliberate, malicious and premeditated killing of another human being. Young v. State, 363 So.2d 1007 (Ala.Cr.App. 1978). The use of a deadly weapon creates a presumption of malice unless the circumstances surrounding the killing indicate otherwise. McArdle v. State, 372 So.2d 897 (Ala.Cr.App.), cert. denied, 372 So.2d 902 (Ala.1979). Intent may be inferred from, the character of the assault, the use of a deadly weapon and other attendant circumstances. Brown v. State, 142 Ala. 287, 38 So. 268 (1904); McQueen v. State, 355 So.2d 407 (Ala.Cr.App.1978). Under the State’s evidence in this case, malice and intent in the murder of Mrs. Moore may also be inferred from the evidence indicating that the defendant intentionally shot at and attempted to kill his wife and Mr. Moore.

We have searched the record for error prejudicial to the defendant. Finding none, we affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Billy Gene HARJO (Re Billy Gene Harjo v. State of Alabama).
    No. 80-344.
    Supreme Court of Alabama.
    March 26, 1981.
   FAULKNER, Justice.

WRIT DENIED-NO OPINION.

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


author: BOOKOUT, Judge.

text:
    Kenneth Marshall THOMAS, alias v. STATE.
    6 Div. 423.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.

      Vreeland G. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., Montgomery, for appellee.
   BOOKOUT, Judge.

Theft of property in the first degree — habitual criminal treatment; sentence; life imprisonment.

Around 6:45 A.M., on January 3, 1980, John Wood, president of Wood Fruitticher Grocery Company, arrived at his place of business in Birmingham and discovered one of his delivery trucks was missing. He reported the theft to the police.

Later in the morning, Nasrin Murphy, Jr., an employee of the company, was driving another delivery truck when he saw the missing truck being driven by the appellant, a person he knew was not an employee of the company. Murphy knew the truck was missing and within moments he found a police car in a nearby parking lot and reported his observations to the officers. The missing truck was stopped by the officers a short distance away and the appellant was arrested.

I

Upon being questioned by Birmingham Police Sergeant Earl Melton, the appellant admitted stealing the truck. Counsel for the appellant contends that the questioning of appellant improperly continued after he had requested to see his attorney. It is clear that the appellant requested to confer with his attorney after he made the inculpatory statement in question.

The evidence shows a proper voluntariness predicate and a full explanation of the appellant’s rights per Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record reveals a knowing and voluntary waiver of those rights and further reveals that no statements of the appellant made after he requested to see his attorney were offered or admitted into evidence. The trial court therefore cannot be put in error for admitting into evidence a properly predicated inculpatory statement merely because at a later time, after making the statement, the appellant requested to see an attorney.

II

Appellant contends the trial court erred in receiving the verdict of the jury in the absence of the appellant.

The record clearly reveals that while the jury was deliberating, the appellant absconded and the trial court had to issue a forfeiture on his bond and issue a capias for his arrest. Counsel for appellant then merely moved for a mistrial without stating any grounds. The motion was overruled and when the jury returned its verdict, the trial court then ascertained that the jury was unaware that the appellant had fled, and that fact had no bearing on their verdict whatsoever.

Where a defendant in a non-capital case voluntarily absents himself from his trial, the trial may continue without him being present. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973). The appellant cannot voluntarily absent himself from his trial and then profit by his misconduct by obtaining a new trial on that premise. Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965); Dixon v. State, Ala.Cr. App., 357 So.2d 690 (1978).

Ill

Counsel for appellant contends the trial court erred by “failing to grant the defendant’s plea in abatement” as to a misnomer in the indictment. There are several reasons why the trial court did not err in failing to rule on that plea:

1. The plea was not verified as required by § 15-15-42, Code of Alabama, 1975.

2. The record does not show that the plea was ever brought to the attention of the trial court, or for that matter when it was filed. Furthermore, there was no objection in the record to the failure of the court to rule on the plea and thus, no ruling for appellate review. Heard v. State, Ala. Cr.App., 351 So.2d 686 (1977); Mitchell v. State, Ala.Cr.App., 338 So.2d 524 (1976).

3. The plea merely stated that: “There is no Wood & Fruitticher Grocery Company, Inc., licensed to do business in the State of Alabama.” Thus, the plea did not allege a misnomer, but merely “no license.” Certainly, theft may be alleged in an indictment against an unlicensed as well as a licensed company. Although we take it that appellant was attempting to allege a misnomer, it certainly is not apparent on the face of the plea in question.

We ascertain from appellant’s brief and from his motion at the end of the State’s case in chief that he contends there is no ampersand in the name of the company. The name of the victim in an indictment is for the purpose of informing the defendant of the charge against him and what he will be called upon to answer. It is to enable him to prepare with some certainty his defense against a specific charge for a specific act or omission on his part. Buckley v. State, 19 Ala.App. 508, 98 So. 362 (1923). The test is whether the typographical error in the victim’s corporate name was such an error as to mislead a person of common understanding and leave him in doubt as to what was intended to be charged. Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965); Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976). Here, we deem the insertion in the victim’s corporate name of is not such an error as to mislead the appellant or to leave him in doubt as to what he was charged with.

IV

Alabama’s habitual offender statute, § 13A-5-9, Code of Alabama, 1975, is constitutional and is not applied ex post facto. Watson v. State, Ala.Cr.App., 392 So.2d 1274 (1980); Smith v. State, Ala.Cr.App., 392 So.2d 1273 (1980); Williams v. State, Ala.Cr.App., 393 So.2d 492 (1981).

V

On the sentencing hearing, the State called as a witness, Jeanette Hopkins, supervisor of records in the criminal division of the Jefferson County Circuit Clerk’s office. She authenticated certified copies of case action summary sheets in four prior cases showing felony convictions of the appellant. On offer of introduction of those documents, State’s Exhibits Nos. 1 through 4, the following occurred:

“MR. JOHNSON: We would object to those, Your Honor, on the basis that this is not the best evidence.
“THE COURT: Are you making an issue of the fact that they are certified copies as opposed to the original?
“MR. JOHNSON: Yes, sir.
“THE COURT: Overruled.”

Counsel’s above objection was merely on the ground that the exhibits were certified copies rather than original records. Section 12-21-35, Code of Alabama, 1975, provides for a certified copy of a public record being admitted into evidence where authenticated by the custodian of such record. This is a statutory exception to the best evidence rule and the trial judge was not in error for overruling the objection on the ground stated. Counsel is bound by the grounds stated on making objections in the trial court. Franklin v. State, Ala.Cr.App., 357 So.2d 364, cert. den., Ala., 357 So.2d 368 (1978).

Later, at the end of the testimony in the sentencing hearing, counsel moved to exclude the testimony concerning the prior convictions, stating his ground more clearly:

“Your Honor, we would move to exclude all this testimony on the basis on the Smithers [sic] vs. State case and Robinson vs. State, that the best evidence is the original court record and may not be proved by any other evidence or testimony of any other person.”

Only through that motion has counsel been able to raise the issue of whether a prior conviction may be proved by use of certified copies of trial docket sheets or case action summary sheets rather than by certified copies of minute entries as required by Palmer v. State, 54 Ala.App. 707, 312 So.2d 399 (1975) and Hall v. State, Ala.Cr.App., 352 So.2d 8, cert. den., Ala., 352 So.2d 11 (1977).

We find that Act No. 1037, Acts of Ala. 1971, p. 1847, approved September 7, 1971, provides that in Jefferson County the orders entered by the circuit judges on what were then commonly called trial sheets, “shall have the same force and effect as Minutes of the Circuit Courts .... ” Act No. 1037 is a general act of local application applying to all counties having a population of 500,000 or more. It was enacted prior to the decision in Peddycoart v. City of Birmingham, Ala., 354 So.2d 808 (1978), and therefore is a valid statute.

State’s Exhibits 1 through 4 were properly admitted pursuant to Act. No. 1037, supra. Each exhibit was authenticated by the custodian of those records. Each exhibit showed on its face a prior felony conviction of the appellant. Each exhibit showed on its face that appellant was represented by counsel as required by Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The trial court made findings in the record to this effect. Likewise, law enforcement officers were called as witnesses and identified the appellant as the person named in each one of those records of conviction. We therefore find no error on the part of the trial court.

AFFIRMED.

All the Judges concur.