text:
    James Earl SANDERS v. STATE.
    6 Div. 657.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Dec. 28, 1982.
    Certiorari Denied Feb. 25, 1983 Alabama Supreme Court 82-356.

      George A. Nassaney, Jr., Tuscaloosa, for appellant.

      Charles A. Graddick, Atty. Gen. and Jeanne Weston, Asst. Atty. Gen., for the State.
   BARRON, Judge.

James Earl Sanders was indicted by the January 1981, term of the Tuscaloosa County Grand Jury for the December 20, 1980, murder of his estranged wife Pamela Sue Sanders. Ala.Code 1975, § 13A-6-2. At the time of her death, the victim was five months’ pregnant with appellant’s child. Trial was had with the jury finding him guilty as charged. He was sentenced to life imprisonment. Hence this appeal.

Appellant, on appeal, does not challenge the sufficiency of the State’s evidence.

Sometime between 8:25 p.m. and 9:00 p.m. on December 20, 1981, the victim, her brother Dennis Kimbrell, and his girlfriend Denise Trawick returned from a family reunion to the home of the victim’s parents located in the Flatwoods Community of Tuscaloosa County. Upon arriving at the house, they noticed the appellant’s truck parked outside. Shortly thereafter, appellant walked from around the side of the house. All four entered the house and a short time later, appellant and Kimbrell unloaded some furniture from Kimbrell’s truck. Afterwards, they went inside.

Appellant and the victim were left alone in the living room where they talked about reconciling their marital problems. After several minutes, Kimbrell and Trawick decided to leave and Kimbrell went to his truck. Moments thereafter, Trawick screamed to Kimbrell that appellant was pushing the victim. Before he could enter the house, Kimbrell heard three gunshots. Upon entering, Kimbrell saw appellant fire two or three more shots at his sister. He quickly moved toward the appellant, who then fired a shot at him. Kimbrell tackled appellant and disarmed him. Appellant stated, “Oh my God I have shot my wife.” He then fled the scene. The victim died from a gunshot wound to the brain.

Appellant fled to Birmingham where, on December 20, he was arrested for public drunkenness. Afterwards, he went to Chattanooga, Tennessee, where he registered in a motel under a false name. He also listed on the room registration a false model and license plate number for the vehicle he was driving. From Chattanooga, appellant traveled to Hamilton, Mississippi, where relatives persuaded him to surrender.

I

Appellant contends that the trial court erred in overruling his motions to quash the indictment and the petit jury venire. He asserts that the selection of the grand and petit juries solely from the Tuscaloosa County voter registration list caused both juries to be selected from an unfair and unrepresentative cross-section of the community, contrary to the Sixth Amendment to the United States Constitution. We do not agree.

We are not persuaded that compilation of a county’s jury master list exclusively from that county’s voter registration list, as is the practice in Tuscaloosa County, is constitutionally or statutorily impermissible. In fact, the applicable statute, § 12-16-57, Ala.Code 1975, suggests the registered voter list as a possible source for compiling the jury master list. By implication then, the statute authorizes the use of the registered voter list in compiling the jury master list so long as such a process will (1) foster a policy of having a fair cross-section of the population without denying qualified citizens the opportunity to serve, and (2) prevent exclusion from jury service of any citizen on account of race, color, religion, sex, national origin or economic status. In the case at bar, there is nothing in the record to suggest that either qualifying condition was violated.

Appellant does not meet the burden of showing that the jury selection process systematically and arbitrarily excluded a cognizable class from jury service, and he falls far short in demonstrating a violation of his Sixth Amendment right to trial by an impartial jury representing a fair cross-section of the community. United States v. Arlt, 567 F.2d 1295 (5th Cir.1978); Durden v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

Additionally, the motions to quash were not timely filed in that they were filed after appellant’s plea to the indictment and after expiration of the extended time within which to change pleas, file motions or plead further.

The trial court’s actions in overruling appellant’s motion to quash were entirely proper.

II

Appellant contends that the trial court erred in sustaining the State’s objections to certain questions propounded to witness Dennis Kimbrell on cross-examination. His questions were directed to the victim’s use of marijuana. We quote the following pertinent portions of the record.

“Q. You also knew did you not he did not like her smoking marijuana and expecting a baby?
“MR. FREEMAN: We object.
“THE COURT: Sustain the objection. “A. No, sir.
“THE COURT: There is no need to bring that in. If he objected to her smoking marijuana has nothing to do with this case at all.
“MR. SMITH: I object because it makes it look like she did and she didn’t and I object to it.
“THE COURT: I know it and I agree with you.
“Q. I will ask you this then. You had been smoking marijuana before you got to the house that afternoon, had you not?
“A. No, sir, I didn’t.
“Q. And you had been smoking marijuana with Pam before that afternoon, had you not?
“A. Yes, sir, I have.
“Q. And at the house where Pam and you were living?
“A. Yes, sir.
“Q. And he told you not to have her smoking marijuana with her pregnant did he not?
“A. No, sir, that is not correct.
“Q. That is not correct?
“A. No, sir.
“Q. He caught you and Pam smoking marijuana did he not?
“A. No, he didn’t.
“Q. He saw you all smoking, did he not? “A. Yeah, when he was around.
“Q. So you were smoking it with her? “A. Yes, sir.
“Q. You heard him say she shouldn’t be doing that while she was pregnant?
“A. No, I didn’t.
“Q. Now to test your recollection as to the events of that afternoon you testified to you had been smoking marijuana how recently before this incident you described?
“MR. SMITH: Judge, we object.
“THE COURT: ■ I sustain the objection. This has absolutely nothing to do with this.”

To the first question, Kimbrell negatively replied, albeit after the trial court had sustained the State’s objection. The State did not move to have the answer excluded. In this instance, we find no error in the trial court’s ruling. Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980); see generally Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980); cert. denied, 392 So.2d 1266 (Ala.1981).

As to the second instance, the form of appellant’s question was objectionable. Further, the testimony of Kimbrell does not indicate any difficulty in his recalling the events of December 20. In addition, during his direct examination, appellant testified to the substance of that which he elicited from Kimbrell. Consequently, we find no error in the trial court’s ruling.

Ill

Appellant contends that the trial court erred in denying him the right to rebut the State’s evidence of his flight after he had shot the victim.

On direct examination, Tuscaloosa Sheriffs Department Investigator Robert McFerrin testified that appellant went to Mississippi where he saw him and took him into custody. McFerrin then transported appellant to Tuscaloosa where he was charged with murder.

On cross-examination, McFerrin stated that he had received a report concerning appellant and afterwards traveled to Mississippi and took him into custody. However, to the questions of whether appellant surrendered and waived extradition, respectively, the State’s objections were sustained.

During both his direct and cross-examination, appellant testified that after fleeing the scene and traveling to Birmingham and Chattanooga, he went to Hamilton, Mississippi, where he had relatives residing, and voluntarily surrendered to the local authorities.

The State’s evidence proved that appellant fled the scene after the shooting. When the flight of an accused is established, the accused, in response to such, may prove that he voluntarily surrendered. Allen v. State, 146 Ala. 61, 41 So. 624 (1906); Carden v. State, 84 Ala. 417, 4 So. 823 (1888); Pierce v. State, 51 Ala.App. 166, 283 So.2d 618 (1973); C. Gamble, McElroy’s Alabama Evidence, § 190.01(3) (3rd ed. 1977).

Any error in excluding the testimony of McFerrin in this regard was rendered harmless by the subsequent disclosure of facts of substantially the same effect through the testimony of appellant. Error in excluding evidence is harmless where evidence of the same substance and effect is substantially placed before the jury. Smith v. State, 393 So.2d 529 (Ala.Cr.App.1981); Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. denied, 378 So.2d 1173 (Ala.1979).

IV

Appellant contends that the trial court erred in allowing the State to cross-examine him concerning prior violent acts he perpetrated against the victim.

On cross-examination, appellant initially testified that he had struck the victim only once before the instant incident. He denied striking her two or three weeks prior to the instant incident and denied knowledge of the victim being hospitalized around that time. In addition, he denied ever firing a gun at her. Subsequent thereto, the State asked the following questions:

“Q. Mr. Sanders, the wife you told us about that you said you loved so much got a warrant or had to get a warrant against you back on April 15th, 1980, didn’t she?
“MR. THOMPSON: We object, Your Honor.
“Q. So actually you had struck her on at least one occasion before?
“A. Yes, sir, I sure did.
“Q. You kicked her, you say?
“A. Yes, I did.
“Q. Well, are there any other times that you might not have told us about that you struck your wife or did strike your wife?
“A. There are some times I told you she threw things at me a lot, but I don’t believe there was another time I hit her or struck her or anything.
“Q. Well, could it be that maybe you have struck her and caused her to have to go to some hospital or doctor somewhere to seek medical attention?
“A. On one occasion.
“Q. Oh, there was one occasion?
“A. Yes, sir.
“Q. Now, when was this?
“A. It was when I came home one night and she was in the living room drinking whiskey with a guy that she was supposed to part with and went to California, went to California with two dudes in a truck.
“Q. Well, I don’t recall you mentioning any of that earlier.
“A. I was trying to keep it out of court.”

During his direct examination, appellant testified to several threats made by the victim or her family on his life prior to the fatal shooting. He stated that because of such he carried a gun with him on the night of the shooting.

Throughout the testimony of State’s witnesses Kimbrell and Trawiek, as well as that of appellant, there is evidence of a breakdown in the marital relationship between the victim and appellant. In fact, the record reveals that they were divorced only shortly before the victim’s death. In addition, much of appellant’s testimony deals with his attempts to reconcile their marital difficulties.

The instant case is analogous to those cases dealing with the admission of prior violent acts by the accused against his spouse. This is especially true since appellant and the victim had been divorced less than one month before the victim’s death. In Akers v. State, 399 So.2d 929, 931 (Ala.Cr.App.1981), the general rules governing admission of prior violent acts between spouses are stated:

“In a prosecution for the murder of a wife by her husband, their general relations toward each other and evidence of actual cruelty by the defendant upon his wife prior to the shooting are admissible on the question of whether the shooting was intentional or accidental, ... and on the questions of malice and intent.... While evidence of previous difficulties should not be so remote in point of time as to have no legitimate bearing on the circumstances of the homicide or the points at issue, ... this is a matter largely within the discretion of the trial judge.... ” (Citations omitted.)

See also White v. State, 380 So.2d 348 (Ala.Cr.App.1980); see generally Bennefield v. State, 281 Ala. 283, 202 So.2d 55 (1967); Miller v. State, 344 So.2d 209 (Ala.Cr.App.1977).

We find the above testimony relevant to establish whether the killing was intentional or accidental as well as to refute appellant’s earlier claims that he had only once physically harmed the victim. Furthermore, we note that appellant admitted committing the charge stated in the warrant, as well as one other prior incident. This testimony was admitted without objection. In light of these circumstances, even if there was error initially in admitting appellant’s testimony, such was harmless. White, supra; A.R.A.P. 45.

V

Appellant draws our attention to numerous instances where he contends that the trial court impermissibly commented upon the evidence.

A

Two complained of instances occurred during the voir dire of the jury venire. Appellant had inquired of the venire whether his consumption of alcohol would prejudice them against him. After three prospective jurors responded, the trial court stated that it expected to charge the jury that voluntary intoxication was not a defense to a crime. It postponed any further comment on the subject until after the State asked several more specific questions to the prospective jurors who had initially responded to appellant’s general question. At that point, the trial court reiterated its earlier statement. It stated that it would charge the jury as to the law as was its duty. It further stated that it didn’t think that “we should go into that question.” The trial court stated that “this is not a case of violating the prohibition law at all. That has nothing to do with it. That is not an issue in this case.” Appellant excepted but the trial court did not rule upon it.

Afterwards, the trial court gave a lengthy instruction concerning the area of intoxication as a defense. It pointed out that it did not know what the evidence would disclose, and would charge the jury on such if it was necessary. The trial court expressed its concern that the jury venire may have become confused by the questions propounded by appellant and the State and did not want further inquiry into the area. Immediately thereafter, appellant objected to the above instruction. No ruling was made on his objection.

Initially, we fail to see in what regard the trial court improperly commented upon the evidence. There was no evidence before the trial court at the time the above comments were made. In addition, appellant pled “not guilty” and “not guilty by reason of insanity.” Thus, the trial court was not alerted to the prospect that appellant would contend that his intoxication would excuse him from culpability until he queried the jury venire concerning such. Moreover, a jury had not been empaneled at the time the comments were made. Rather, voir dire examination of the jury venire was being conducted.

The trial court merely responded to an area of inquiry initiated by appellant which it felt was in need of clarification and explanation. It appears that the trial court was concerned that the jury venire may have been confused by the questions asked and such could potentially lead to the excu-sal of otherwise qualified prospective jurors. Moreover, the prospective jurors who responded to appellant’s initial inquiry were excused for cause upon appellant’s challenge.

A review of the record leads us to the conclusion that the trial court’s comments do not constitute an impermissible comment upon the evidence.

Furthermore, there were no rulings on appellant’s objections concerning such, no objection to the trial court’s failure to rule, no motion to exclude the comments, or request for further instructions. Thus, the instant issue was not properly preserved for review. Parker v. State, 406 So.2d 1036 (Ala.Cr.App.), cert. denied, 406 So.2d 1041 (Ala.1981); Gross v. State, 395 So.2d 485 (Ala.Cr.App.1981).

B

The next instance deals with the trial court’s rulings during the cross-examination of State’s witness Kimbrell, previously discussed in Part II above. Additionally, appellant takes issue with the below quoted comments of the trial court occurring after the colloquy quoted in Part II, above:

“THE COURT; I am telling you now to shut up about this marijuana business or I will put you in contempt. You will obey my ruling. I am running this case. “MR. THOMPSON: I am doing the best I can.
“THE COURT: When I tell you to quit talking about this witness having smoked marijuana I mean it. Now go ahead and try it like it ought to be tried.
“MR. THOMPSON: Yes, sir, Judge we ask for a mistrial.
“THE COURT: Overrule the motion. “MR. THOMPSON: We except.”

We find no error in the trial court’s comment agreeing with the assertion of the assistant district attorney quoted in Part II above. Carmichael v. State, 197 Ala. 185, 72 So. 405 (1916).

While some of the trial court’s comments would appear to bring appellant’s counsel into contempt before the jury, as proscribed in Dennison v. State, 17 Ala.App. 674, 88 So. 211 (1921), it is incumbent upon the trial judge to conduct an orderly trial and insure to the best of his ability that no misunderstanding of the testimony of the witnesses exists. His duty is more than that of a mere moderator.

The matter of whether Kimbrell had smoked marijuana with appellant or the victim and the frequency thereof would only have relevancy as to Kimbrell’s ability to accurately recall the events surrounding the shooting. His testimony in no wise suggests anything other than an accurate account of the events of that evening. The testimony of Trawick and the State’s investigators substantiates this conclusion. At the conclusion of the trial, the trial judge instructed the jury to put aside any actions of his which would influence their decision and appellant’s right to a fair trial.

We do not deem the trial court’s actions to have constituted reversible error. Sprinkle v. State, 368 So.2d 554 (Ala.Cr.App.1978), cert. denied, 368 So.2d 565 (Ala.1979).

c

The trial court’s comments occurring during the cross-examination of Traw-ick concerning her use of marijuana on the day in question did not constitute an impermissible comment upon the evidence. Sprinkle, supra; Dennison, supra.

D

We find no error in the trial court’s comments concerning appellant’s offer of two photographs allegedly of the exterior of the Kimbrell residence, wherein the shooting occurred, through the cross-examination of Trawick. The proper predicate for authentication and admission of them was never established. Their relevancy is questionable, as was evidenced by the tenor of the trial court’s remarks and the fact that no relevant evidence was discovered outside of the house. We find no error in these remarks.

E

As to the trial court’s comments concerning a photograph of the victim taken at the autopsy, the photograph depicted a wound to the inside of the victim’s bottom lip. The photograph was properly authenticated and did not contain any objectionable matter. Appellant had previously viewed the photograph sometime prior to its admission. We find no error in the trial court’s comment, “Well, I don’t think it is objectionable.”

F

The trial court merely explained its reasons and its rulings during the cross-examination of McFerrin. Such does not constitute a comment on the evidence. McDonald v. State, 340 So.2d 80 (Ala.Cr.App.), cert. denied, 340 So.2d 84 (1976).

G

Appellant again attempted to introduce the photographs of the Kimbrell residence through his cross-examination of McFerrin. The same reasons for sustaining the trial court’s remarks in “D” above apply herein.

H

The qualifications of the pathologist who testified as to the results of the autopsy performed on the victim were never challenged by appellant. His opinion as to the cause of a laceration of the victim’s scalp, which opinion had previously been admitted into evidence without objection, drew an objection from appellant on redirect examination after the opinion was given. The objection was overruled and no motion to exclude was made by appellant. The trial court’s remarks regarding the doctor as an expert who was highly qualified to express an opinion on such matters were not prejudicial to appellant and did not constitute a comment on the evidence.

I

The trial court’s comment after overruling appellant’s objection to a question put to him by the State on cross-examination was an explanation for its ruling. McDonald, supra.

J

The trial court commented in response to appellant’s request to withhold a ruling on a chart offered into evidence by the State. The court stated, “I don’t mind at all, although I see nothing objectionable about it.” This was not a comment upon the evidence prejudicial to appellant. The comment, after the admission of the State’s photograph of the towels and sheet used to stop the victim’s bleeding, was merely an explanation and not prejudicial, especially since the photograph was clearly admissible. Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.), cert. denied, 400 So.2d 427 (Ala.1981); McDonald, supra.

K

The last two instances deal with comments made about the evidence of appellant’s flight. In one instance, the trial court referred to the preliminary hearing testimony of Kimbrell concerning appellant’s departure from the scene. Appellant had just read that testimony in an attempt to contradict Kimbrell’s direct testimony. The court said the testimony was merely what “he testified to. He said he [appellant] wasn’t running. I don’t see any point.” The next comment occurred during the State’s closing argument where the State had commented upon the appellant’s flight from the scene. Appellant objected, stating that there was “no evidence he ran.” The court stated, “I disagree with you and I overrule. Let the jury decide what the evidence is.”

In both instances, the trial court’s comments were proper and not comments upon the evidence. Kimbrell’s preliminary hearing testimony was consistent with that which he gave at trial. Evidence of the speed at which appellant fled the scene was introduced. Thus, no error occurred in these instances.

Taken individually and collectively, we find no error in the comments of the trial court.

VI

Appellant claims several instances where the trial court displayed its bias and prejudice against him to the jury and, thus, prejudiced the jury against him.

A

Appellant’s first claim of error concerns that which was previously decided in Part V-A of this opinion and will not be reiterated here.

B

The next incident occurred during the State’s examination of Kimbrell where he was identifying several photographs. Apparently, appellant’s counsel began to examine them before the State had completed its examination of Kimbrell and before it had offered them into evidence. The trial court admonished appellant’s counsel to, “Keep your hands off, please. You can have the witness later. Let the District Attorney question the witness then you may examine him, sir.” Appellant made no objection to the comments, did not move that they be excluded, and did not request that the jury be instructed to disregard them. Thus, nothing is preserved for our review. Williams v. State, 410 So.2d 911 (Ala.Cr.App.1982); Carpenter, supra.

C

The comments during appellant’s cross-examination of Kimbrell concerning the use of marijuana have previously been discussed in Parts II and V-B of this opinion, and will not be reiterated here.

D

Likewise, the trial court’s comments occurring during the cross-examination of Trawick have been fully discussed in Part V-C of this opinion.

E

The trial court’s admonishment of appellant’s counsel after he had attempted to offer into evidence the pants allegedly worn by appellant on the day of the killing was proper. Apparently, both parties before trial had conferred and disposed of certain issues. The trial court was of the opinion that the controversy surrounding the pants had been settled. When it arose at trial, the court exhibited frustration at the apparent uncooperativeness of the parties and would not admit the pants into evidence. Admission of the pants may have supported appellant’s theory that he and the victim struggled over control of the gun and that appellant was wounded during the fracas, but such would not have outweighed the remaining evidence against him. We find no error in this regard.

F

The trial court did not err in initially not allowing appellant to question a State’s witness prior to his being questioned before the jury. The trial court indicated that appellant would have an opportunity to cross-examine the witness. Counsel for appellant continued to insist upon talking to the witness prior to the witness testifying. The State agreed to allow appellant the opportunity to talk to the witness, to which the trial court acquiesced. We find no error in the comments of the trial court. Although harsh, the comments were made out of apparent frustration with appellant’s counsel and were not intended to bias or prejudice the appellant.

G

The trial court was within the sound exercise of its discretion in denying appellant’s counsel the opportunity to voir dire a State’s witness during the State’s direct examination. Shelton v. State, 384 So.2d 869 (Ala.Cr.App.), cert. denied, 384 So.2d 871 (Ala.1980).

In closing, we find apropos the following quotation from Allen v. State, 290 Ala. 339, 276 So.2d 583, 586 (1973):

“The trial judge is a human being, not an automaton or a robot. He is not required to be a Great Stone Face which shows no reaction to anything that happens in his courtroom. Testimony that is amusing may draw a smile or a laugh, shocking or distasteful evidence may cause a frown or scowl, without reversible error being committed thereby. We have not, and hopefully never will reach the stage in Alabama at which a stone-cold computer is draped in a black robe, set up behind the bench, and plugged in to begin service as Circuit Judge.”

YII

Appellant contends that the trial court erred in overruling his motion for a mistrial based on the following portion of the State’s closing argument:

“MR. FREEMAN: Then there was talk about a small calibre gun. Well, I imagine he used the gun he had and I imagine the Pope and President Reagan can tell you the danger of a twenty-two pistol.”

Counsel for both the defendant and the State are allowed wide latitude on drawing reasonable inferences from the evidence in their closing arguments. Both have the right to present their impressions from the evidence, if reasonable, and argue every legitimate inference. Manigan v. State, 402 So.2d 1063 (Ala.Cr.App.), cert. denied, 402 So.2d 1072 (Ala.1981). Statements of counsel in argument to the jury must be viewed as in the heat of debate, and such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict. Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981).

To constitute reversible error, the statement of counsel in argument must be made as a fact which is unsupported by any evidence, and the argument must be pertinent to the issues at trial or its natural tendency must be to influence the finding of the jury. Manigan, supra.

The above quoted comment is closely akin to an appeal for law enforcement. Moberg v. State, 385 So.2d 74 (Ala.Cr.App.1980). The comment has a factual basis as the victim was shot with a .22 caliber automatic pistol and is not violative of the rule expressed in Manigan. Consequently, we find no error in the trial court’s ruling.

VIII

Appellant asserts that the trial court improperly charged the jury on the issue of insanity.

The trial court, in its oral charge, made several references to appellant’s alleged insanity in the present tense, stating, “You consider the ... evidence ... here to decide whether or not he is insane.” Nevertheless, throughout this portion of its charge, the trial court properly instructed the jury that they must find that appellant’s insanity existed at the time of the crime. The trial court’s oral charge fully and fairly covered the law on insanity as a defense to a crime. Ala.Code 1975, § 13A-3-1. In addition, prior to the jury’s commencing its deliberations and after listening to appellant’s objections, the trial court corrected its oral charge and modified it ac-. cording to appellant’s suggestions. It again correctly charged the jury on the law.

Moreover, appellant testified that he must have been insane when the fatal shooting occurred, but was not insane when he arrived at the Kimbrell residence as “[he] knew what [he] was there for.” Appellant also stated that over his entire life he had been insane only a few seconds.

We find no error in the trial court’s use of the phrase “is insane” when viewed in light of its whole charge. Jackson v. State, 412 So.2d 302 (Ala.Cr.App.1982). Likewise, we find no error in the trial court’s reinstructing the jury on this area of the law in order to correct any misstatement thereof or confusion therein.

Moreover, appellant did not object to the refusal of his written charges on insanity. Thus, nothing is presented for our review. Grace v. State, [Ms. 1 Div. 355, June 29, 1982] (Ala.Cr.App.1982); Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff’d, 414 So. 2d 993 (Ala.1982).

IX

Appellant also insists that the trial court erroneously instructed the jury on the law concerning intoxication as a defense to the instant crime. We quote the pertinent portion of the trial court’s oral charge.

“Something has been said here about intoxication. Well, voluntary intoxication, of course, never justifies a person to commit a criminal act and the commission of a crime except if he was in a state by the evidence and the case shown to be an extreme case of intoxication so as to be idiotic so you would all agree he could not form a criminal intent, that he was in such state of extreme intoxication, voluntary intoxication, you would be justified if you find he was in such state of extreme intoxication in finding him not guilty or at least it might could be reasonable doubt but that is something else for you ladies and gentlemen to consider.”

The testimony of appellant established that throughout the day of December 20, he drank over six beers. He stated that he had bought two six-packs of beer and drank several at a pub prior to going to see the victim. No testimony was offered as to appellant’s physical condition or degree of intoxication. The only glimmer of his mental state was his testimony that while at the scene he was “confused,” “emotionally upset,” and “in a daze.”

Appellant takes issue with the use of the word “idiotic” in the above quoted portion of the trial court’s oral charge.

Although we are not convinced that the evidence adduced at trial would support a conclusion that appellant was intoxicated at the time of the fatal shooting, we can understand the trial court’s willingness to give appellant the benefit of any reasonable doubt on the issue and to charge the jury accordingly. While use of the term “idiotic,” in describing the mental state necessary for one to be intoxicated and, thus, reduce or excuse his culpability, could have been replaced by a different phrase, the trial court’s oral charge clearly defines the term in the context of which it was used. The oral charge was a correct proposition of law and did not tend to confuse or mislead the jury. Ala.Code 1975, §§ 13A-2-2(3), -3-2, -6-2. Consequently, we find no error in the trial court’s oral charge.

Appellant made no objection to the refusal of his written requested charge on intoxication. Therefore, nothing is preserved for our review. Grace, supra; Allen, supra.

X

Appellant contends that the trial court erred to reversal in refusing to reduce its additional oral charge to writing.

After the jury had been deliberating for some time, it returned to the courtroom and asked “if it would be possible to have a copy of the definitions of four different words .... ” The trial court then re-charged the jury orally as to the definitions. After-wards, the foreman of the jury announced to the trial court that the charges were satisfactory. The jury was excused and prior to its resuming its deliberations, appellant made his objection.

The jury is entitled at all times to have access to the trial court for such additional instructions as they may require. Tillison v. State, 32 Ala.App. 397, 27 So.2d 41, aff’d, 248 Ala. 196, 27 So.2d 46 (1946). Such does not give added weight or place undue emphasis on that portion of the oral charge. Laffity v. State, 423 So.2d 280 (Ala.Cr.App.1982).

Ala.Code 1975, § 12-16-12, states that “The charge of the judge must be taken down by the court reporter or by some stenographer appointed by the court and reduced to writing and filed as a part of the record proper of the case, unless both parties or their counsel waive the reporting and making the charge a part of the record.” See A.R.Crim.P.Temp. 14. This section places no duty upon the trial court to reduce its oral charge to writing in order that the jury may have it before them while deliberating. Such has not been a legal requirement since the adoption of the Code of 1923. Jackson v. State, 264 Ala. 528, 88 So.2d 206 (1956).

To have granted the jury’s request to have the additional charge reduced to writing would have undoubtedly placed undue emphasis on that portion of the oral charge and certainly would have been objected to by appellant. The trial court was under no duty to submit either its oral charge or additional charges to the jury in writing. We find no error in the trial court’s ruling.

XI

Lastly, appellant contends that the trial court erred in not including his given written charges in the record on appeal and erred in failing to send them with the jury after submission of the case to it.

The first part of appellant’s contention is without merit, as his given written charges appear in the record. In any event, it is appellant’s burden to bring the record before the appellate court. He and his counsel have the duty of checking the record before submitting the appeal. It is their duty to file a correct record. Procedural tools available to appellant to accomplish such include Alabama Rule of Appellate Procedure 10. Harris v. State, 420 So.2d 812 (Ala.Crim.App.1982).

The record reflects that the trial court read appellant’s given requested charges to the jury. It also reflects the trial court’s informing the jury that the bailiff would bring the physical evidence to it. The record does not specifically state that the given charges were given to the jury to carry with them into the jury room. Nor does it reflect any direction or order by the trial court to the bailiff or jury to carry the given charges to the jury room.

It appears that appellant had no knowledge of the alleged failure of his given charges to reach the jury during its deliberations. Consequently, no objection appears in the record as in Pruett v. State, 408 So.2d 202 (Ala.Cr.App.1981). Thus the proper vehicle for raising the issue would have been through his motion for a new trial. Appellant did not raise as a ground for granting his motion for a new trial the above contention. Thus, nothing is preserved for our review. Pruett, supra; Dalrymple v. State, 405 So.2d 725 (Ala.Cr.App.), cert. denied, 405 So.2d 728 (Ala.1981); Potter v. State, 46 Ala.App. 95, 238 So.2d 894 (1970); Brewer v. State, 23 Ala.App. 35, 120 So. 301 (1929).

We have reviewed appellant’s contentions on appeal and find no error. This cause is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Darryl FORD v. STATE.
    6 Div. 869.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Dec. 28, 1982.
    Jake V. Bivona of Paden, Green & Paden, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Robbery, first degree; twenty years.

The appellant in brief has not raised the sufficiency of the evidence and for the purposes of this opinion it will suffice to briefly state the circumstances surrounding the incident.

The victim, Linda Deavours, was shopping in the western section of Birmingham when the appellant, whom she positively identified in court, came up behind her and grabbed her purse. Deavours pursued the appellant and confronted him when he was about to enter a waiting car. According to the victim, she told the appellant that she was going to get his tag number before he pulled away. After pulling a gun, he responded, “You’d better get back yonder, bitch, I’m going to shoot you.”

I

The appellant contends that the trial court was in error in denying his motion to suppress the pre-trial identification and in admitting evidence of the photographic identification.

During the trial there was testimony which showed that a photographic array was presented to the victim about midnight on the date the incident occurred. This array consisted of photographs of individuals of the same age and similar outward appearance. The evidence reflects that no suggestion of any sort was made to the victim regarding which photograph she should select. After she made a positive identification of his photograph, the victim saw the appellant at the police station. Moreover, the victim testified that she pursued the appellant after he had snatched her purse, that she had observed the appellant for about twenty-five seconds under lighted conditions and that her attention was concentrated on appellant at the time he pointed the gun at her. She gave a description of him and the clothing that he was wearing to the police within minutes of the incident. Her identification of the appellant was unequivocal. Clearly, when considered under the totality of the circumstances and the factors outlined in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), Ms. Deavors’ identification of appellant was reliable. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

II

The appellant complains that he was denied his constitutional right to representation by counsel at the time his photograph was taken for lineup purposes. Under the rationale of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), it would follow that compelling an accused to be photographed is no more constitutionally impermissible than compelling him to submit to a withdrawal of a sample of his blood for an analysis for alcohol content. Nor is it more constitutionally impermissible than compelling an accused to put on a blouse. See Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). Cf. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) (holding that the Sixth Amendment does not grant an accused the right to have counsel present when the government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attend an identification of the offender.)

It is our judgment that the appellant’s constitutional rights were not violated when he was compelled to be photographed without his counsel present where the photographs were to be used for photographic identification purposes.

Accordingly, it was not error for the trial court to overrule the appellant’s motion to suppress. The judgment of conviction by the Jefferson Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Larry O’Neal TUCKER v. STATE of Alabama.
    8 Div. 728.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Dec. 28, 1982
    Certiorari Denied Feb. 25, 1983. Alabama Supreme Court 82-334.

      John R. Benn of Peck & Slusher, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Larry O’Neal Tucker, a juvenile, appeals from an order transferring this case from the juvenile court to the adult division of the Lauderdale Circuit Court.

Tucker appeals pursuant to the Rules of Juvenile Procedure adopted effective March 1, 1982, see A.R.J.P. 28(C)(1).

On June 30,1982, the State filed a motion with the juvenile court to transfer the appellant to the circuit court for prosecution as an adult. After a hearing on June 30, 1982, the juvenile court issued an order to certify appellant as an adult and to transfer the case. The juvenile court judge made the following findings: (R. 56).

“The Court having considered the motion of the District Attorney requesting that this case be transferred for criminal prosecution, the Court finds that:
“1. Said child was 14 years of age or older at the time of the alleged conduct.
“2. (X) The alleged conduct is an act which, if committed by an adult, would constitute a felony.
“(X) The said child was 14 years of age or older at the time of the alleged conduct and was under commitment to the Alabama Department of Youth Services as a delinquent at the time of said conduct.
“3. The report required by the Code of Alabama, Sec. 12-15-34(e) has been filed with the Court, and considered by the Court.
“4. The Court finds no grounds to believe that said child is committable to an institution or agency for the mentally retarded or mentally ill.
“5. There is probable cause for believing that the allegations in the above numbered case are true and correct.
“6. The resources presently available to the Juvenile Court
“(X) have been shown not to be successful in dealing with the delinquent behavior of said child.
“do not appear appropriate for dealing with the delinquent behavior of said child.
“7. It is in the best interest of the child and the community that the motion of the District Attorney be granted.
“IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT this case be transferred to the Circuit Court of the Eleventh Judicial Circuit for criminal prosecution. Said child is to be removed to the Lauderdale County Jail for processing as an adult. The Clerk of the Court shall forward all necessary papers to the Clerk of said Circuit Court. Bond in this case is set at $5000.00.
“Cost is suspended.
“Done this the 30th day of June, 1982.”

I

This order fully meets the requirements of § 12-15-34, Code of Alabama 1975. It indicates that the court considered the six factors outlined in § 12-15-34(d)(l)-(6). The Alabama Supreme Court has previously determined that a mere restatement of the factors set out in the statute is sufficient. McKinney v. State, 404 So.2d 639 (Ala.1981); Duncan v. State, 394 So.2d 930 (Ala.1981); Brown v. State, 353 So.2d 1384 (Ala.1977).

In addition, the order discloses that the court found there was probable cause to believe a crime occurred and the defendant committed it. See Duncan v. State, supra. The evidence adduced at the transfer hearing amply supported the finding of probable cause and there is no contention here to the contrary.

The appellant argues that the trial court considered hearsay evidence with reference the value of the alleged stolen goods and this testimony should not have been admitted into evidence.

The Alabama Supreme Court in Gulledge v. State, 419 So.2d 219 (Ala.1982), determined that a trial judge may properly allow hearsay testimony in a transfer hearing. The strict rules of evidence do not apply in a juvenile transfer hearing. Gulledge, supra.

Such transfer hearing is not a hearing to adjudicate the guilt or innocence of the child accused of a crime, but rather, such hearing is a probable cause hearing to determine whether the child should be transferred out of the juvenile court for criminal prosecution as an adult. Brown v. State, 353 So.2d 1384 (Ala.1977).

II

The trial court’s order of June 30,1982, is hereinabove set forth in pertinent part. The issue of whether or not probable cause exists to believe the allegations asserted are true. Duncan v. State, 394 So.2d 930 (Ala.1981). The order herein set forth sufficiently reflects consideration of the six factors enumerated in § 12-15-34(d), Code of Alabama 1975. There is substantial evidence upon which to find probable cause that the offenses alleged have been committed, and that the appellant is, in fact, the offender.

This court will not interfere with a lower court’s order transferring a juvenile to circuit court for criminal prosecution as an adult unless such order is “clearly erroneous.” Williams v. State, 361 So.2d 1157 (Ala.1978). We cannot say the order in question is “clearly erroneous.” The order of the lower court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Judith Rachel WALDEN v. STATE.
    1 Div. 416.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    Rehearing Denied Feb. 1, 1983.

      Willis W. Holloway, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Possession of Diazepam; sentence, two years imprisonment, five years probation, $500 fine.

During the early morning hours of November 23,1981, Mobile Police Officer Robert Osborne, assisted by officers from the Mobile and Prichard police departments, executed a search warrant at appellant’s residence in Prichard. The warrant authorized them to search for marijuana. In addition to finding marijuana, they found five vali-um tablets in appellant’s purse which contained diazepam.

I

The sole issue on appeal concerns the execution of the search warrant. Appellant maintains that there was no officer present at the search who had the authority to execute the warrant under §§ 15-5-7 and 15-5-1, Code of Alabama 1975, and therefore the trial court erred in denying her motion to suppress. The validity of the search warrant, which was directed to the sheriff of Mobile County, is not contested in any way.

The Mobile police officers who participated in this search testified that, prior to the search, they had been sworn in as deputy sheriffs by Mobile County Sheriff Thomas J. Purvis. Appellant contends that they still lacked the authority to execute the warrant because they were not regular deputies under the control and supervision of the sheriff. To support this, she relies on the testimony of Mobile County Personnel Director Bernard Richardson who stated that police officers are under the supervision of the police department while deputy sheriffs are under the supervision of the sheriff’s department. Richardson also testified that, under the Mobile County merit system, an officer cannot be employed by both the police department and the sheriff’s department.

Simply because an officer cannot be paid as both a deputy sheriff and a municipal police officer, it does not follow that a municipal officer cannot perform the duties of a deputy sheriff. In fact, Richardson stated that a Mobile police officer could be sworn in as a deputy sheriff. We see no reason why a police officer who has been duly deputized cannot validly execute a search warrant.

Each of the Mobile police officers present during the search had taken the following oath:

“I, ..., solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Alabama, so long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God.” (Emphasis added). Ala. Const, art. XVI, § 279.

The general duties of the sheriff are enumerated in § 36-22-3, Code of Alabama 1975. Included is a duty “to ferret out crime, to apprehend and arrest criminals, and ... to secure evidence of crime.... ” Ala.Code § 36-22-3(4) (1975). Sheriffs are also directed to execute search warrants. Ala.Code §§ 36-22-3(1); 15-5-1 (1975). In taking the oath of deputy sheriff these officers swore to perform these duties for a deputy acts in the place and stead of the sheriff. Shelton v. State of Tennessee ex rel. State of Alabama, 31 Ala.App. 58, 12 So.2d 103 (1943); 70 Am.Jur.2d Sheriffs, Police, and Constables '§ 2 (1973). We do not think the solemnity of such an oath is something to be taken lightly or ignored altogether. The mere fact that the officers had not filed a written copy of this oath in compliance with § 36-4-5, Code of Alabama 1975, or posted a bond will not automatically preclude them from deputy status. See Malone v. State, 406 So.2d 1060 (Ala.Crim.App.), cert. denied, 406 So.2d 1066 (Ala.1981).

Moreover, Officer Robert Osborne, who applied for and obtained the warrant, had worked in conjunction with the sheriffs department since being sworn in as a deputy sheriff. He testified that he and Officer Jimmy Wyatt of the sheriffs department’s narcotic unit, had “worked relatively close together on a lot of occasions.” Although Rasy Smith, another Mobile police officer, participating in the search, testified that the sheriffs department had nothing to do with this case, Osborne stated that he may have discussed the case with Wyatt.

Under the circumstances involved we cannot say that these officers simply were not deputy sheriffs. Having taken an oath as deputies and Osborne, at least, having worked closely in the past with members of the sheriff’s department, we hold that the execution of this warrant was proper.

For the reasons stated above, the judgment of conviction by the Mobile Circuit Court is hereby affirmed.

AFFIRMED.

HARRIS, P.J., and TYSON and BARRON, JJ., concur.

BOWEN, J., dissents.


author: BARRON, Judge.

text:
    Ricky Joe COWGILL v. STATE.
    7 Div. 5.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    Rehearing Denied Feb. 1, 1983.

      Jerry N. Quick, Trussville, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Ricky Joe Cowgill was indicted by the March 1982, term of the Calhoun Grand Jury for the September 5,1981, first degree robbery of the Calhoun Drugstore. Ala. Code § 13A-8-41 (1975). Trial was had with the jury finding him guilty as charged. Pursuant to the provisions of the Habitual Felony Offender Statute, § 13A-5-9, Code of Alabama 1975, the trial court sentenced appellant to life imprisonment. Hence this appeal.

No issue is raised on appeal challenging the sufficiency of the State’s evidence. The facts are as follows:

Around 4:30 p.m. on September 5, 1981, two white males entered the Calhoun Drugstore. One approached Mrs. Lynn Gardner, the sales clerk on duty, and asked her for some headache powders, while the other walked toward the prescription department. Mrs. Gardner testified that the man that approached her drew a gun, pointed it at her head, and told her to “get down that this was a hold up.” The robbers forced her toward the prescription department. There, the owner, Richard Boozer, was confronted by the two men, both of whom were armed. Mrs. Gardner and Mr. Boozer were forced to lie face down on the floor as the robbers took Mr. Boozer’s coin collection from his safe and numerous containers of narcotic drugs. One of the robbers forced Mrs. Gardner to give him the keys to her car, which was parked behind the drugstore. Shortly thereafter, Mrs. Boozer and another employee returned from making some deliveries. As they entered the drugstore from the rear entrance, the robbers forced them to lie on the floor. The robbers also took Mrs. Boozer’s car keys but could not unlock the car door. They re-entered the store and forced Mrs. Boozer to open it for them. At some point during the robbery, a customer entered the store and was forced to lie face down with the others. As they were fleeing, the robbers fired two shots into the drugstore. Fortunately, no one was struck. Throughout the ordeal, the robbers threatened to kill the Boozers and their employees. They told them not to look at them or they would be shot. After the robbers left, a customer entered the drugstore and the victims got off the floor and telephoned the police.

I

Appellant contends that the trial court denied him the opportunity to examine Mrs. Boozer on voir dire in order that he might test the admissibility of her identification testimony.

Appellant had previously made the same request concerning State’s witnesses Mrs. Gardner and Mr. Boozer. In both instances his request was granted. Mrs. Gardner made no pre-trial identification of appellant, while both Mr. and Mrs. Boozer did. They had viewed five or six photographic arrays and had positively identified appellant from the first two. Both arrays were admitted into evidence.

Nowhere during the direct examination of Mrs. Boozer did appellant request a voir dire examination, as he had previously done during the direct examination of Mrs. Gardner and Mr. Boozer. In addition, appellant neither filed a pre-trial motion to suppress his in-court identification, nor orally moved for such before trial. When the State inquired of Mrs. Gardner as to the identity of the robbers, appellant moved to suppress her identification.

Appellant’s motion stated:

“MR. QUICK: Your Honor, I would like to make a motion that any evidence which may be produced by the State to anyway implicate this Defendant as far as identification purposes, be suppressed from this witness and I don’t know whether the Court would rather me do this voir dire per witness or whether you would like to go ahead and go through the complete voir dire, at this time.” (Emphasis added.)

The trial court ascertained that the State was not planning to identify appellant through Mrs. Gardner’s testimony. The court did not rule on appellant’s motion, and Mrs. Gardner did not identify the appellant.

During the direct examination of Mr. Boozer, appellant requested as follows: “I would like to conduct voir dire at this time, out of the presence of the jury.” During the voir dire examination, Mr. Boozer testified that he was positive that appellant was one of the robbers, and that his in-court identification was based upon his recollection of the events which occurred during the robbery. His testimony then proceeded, and he identified appellant in court.

Later, during the direct examination of Mrs. Boozer, she identified appellant, in court, as one of the robbers, without objection. Mrs. Boozer was thoroughly cross-examined concerning the photographic arrays from which she had identified appellant. She testified that she had no hesitation in recognizing and identifying appellant from his photograph, and that no one informed her that the arrays contained the photograph of a suspect, directed her attention to any of the photographs, or informed her that one of the persons in the arrays was in custody.

The trial court did not instruct appellant as to the procedure he should follow in challenging the in-court identifications of the witnesses. Nevertheless, appellant established the pattern of requesting a voir dire examination of each witness who might identify him as one of the robbers. Appellant failed to secure a ruling on his motion made during the direct examination of Mrs. Gardner. Later, the trial court granted his motion to examine Mr. Boozer on voir dire. There was, however, no motion or objections presented to the trial court during the examination of Mrs. Boozer on which it could rule.

This court’s jurisdiction is appellate only, Hill v. State, 409 So.2d 943 (Ala.Cr.App.1981), and its review is limited to matters on which rulings are invoked at the trial court. Harris v. State, 420 So.2d 812 (Ala.Crim.App.1982). An adverse ruling is a preliminary requirement to preservation of error for appellate review. See e.g, Walker v. State, 416 So.2d 1083 (Ala.Cr.App.1982).

In Shelton v. State, 384 So.2d 869, 870 (Ala.Crim.App.), cert. denied, 384 So.2d 871 (Ala.1980), we stated:

“A trial court is not obliged to take witnesses out of turn merely because opposing counsel wants to examine them on voir dire at counsel’s convenience. The trial judge is vested with discretion in the conduct of a trial, and appellate courts will not interfere unless there has been a clear abuse of that discretion.” (Citations omitted.)

Accord Matthews v. State, 401 So.2d 241 (Ala.Cr.App.), cert. denied, 401 So.2d 248 (Ala.1981).

A similar situation arose in Burke v. State, 44 Ala.App. 379, 209 So.2d 859 (1968). There, the defendant desired to question a witness concerning some mug shots from which the witness identified the defendant as one of the robbers. The court noted:

“The only purpose appellant would have in questioning the witness on voir dire would be to determine the ‘truth’ concerning the alleged identification of appellant. That is to say: what were the circumstances surrounding the identification; was the witness ‘led’ to identify the appellant; was he influenced in his identification?” Id. 209 So.2d at 862.

The inquiries made of both Mr. and Mrs. Boozer by both appellant and the State revealed no improprieties in the pre-trial identification process. We have reviewed the photographic arrays admitted into evidence and find the individuals depicted to be similar in all physical characteristics. The record reveals nothing which would raise any doubt as to the legality of the display of the arrays to the witnesses. Consequently, we find no error in this regard. Holified v. State, 347 So.2d 559 (Ala.Cr.App.), cert. denied, 347 So.2d 561 (Ala.1977).

II

Appellant’s second issue concerns the trial court’s denial of his motion to exclude Mrs. Boozer from testifying. The basis for his contention on appeal is found in the following motion, made prior to Mrs. Boozer’s testifying:

“MR. QUICK: Your Honor, at this time, I would like to make a motion and this motion was previously made; that this witness be excluded from testimony, based on the fact that back at preliminary hearing I made a motion that she be excluded from the courtroom. She was allowed to sit in the courtroom and she was allowed to hear Mr. Boozer’s complete testimony on the case. And we feel like that even though that this witness may not deliberately and intentionally tell a nontruth; at the same time, her testimony is tainted by that fact that she did hear her husband’s testimony under pressure. And we ask that she be excluded.”

The trial court denied appellant’s motion, stating:

“THE COURT: There is nothing in the District Court record that shows any motion ever made in that regard, number one. Number two, that’s a preliminary hearing and I am not going to question Judge Albea’s exercise of his discretion in whether or not a witness was excused from the rule or not; that’s a discretionary matter and your motion will be overruled.”

A careful review of the record on appeal reveals nothing to substantiate appellant’s contention. In addition, the record does not reflect that appellant requested that the witnesses be sequestered at trial. However, it appears that Mr. and Mrs. Boozer were seated at the table with the assistant district attorney. This court’s review is limited to matters found in the record submitted on appeal and not by allegations made at trial or arguments made in brief, reciting matters not disclosed or supported by the record. Harris, supra.

In the recent case of Young v. State, 416 So.2d 1109, 1111 (Ala.Cr.App.1982), we stated:

“Where the rule for the exclusion of witnesses from the courtroom is invoked, it is within the sound discretion of the trial court to allow any one of the witnesses to remain in the courtroom during the examination of the others ....
“The purpose of sequestration is to obviate as far as possible one witness’s trying to make his testimony consistent with that of another. As was stated in Bed-dow, supra, ‘the efficacy of sequestration — which can only occur during the trial — is probably overrated. The law has moved from oath-taking to cross examination in its search for the truth.’ ” (Citations omitted.)

Even where a witness remains in the courtroom in violation of the rule, the trial court’s decision as to his testifying or not is not open to review absent a showing of any injury to the defendant by reason of any infraction of the rule. Pope v. State, 367 So.2d 998 (Ala.Cr.App.1979); Stinson v. State, 341 So.2d 185 (Ala.Cr.App.1977); see generally Goodman v. State, 52 Ala.App. 265, 291 So.2d 358 (1974); Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert denied, 266 Ala. 694, 96 So.2d 178 (1957), cert. denied, 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).

It is normal to expect that a husband and wife who are victims of a crime will discuss the crime prior to the initiation of legal proceedings. Consequently, each should be fully aware of what testimony the other plans to give. In fact, the record supports a finding that Mr. and Mrs. Boozer discussed the robbery prior to appellant’s preliminary hearing. Thus, Mrs. Boozer’s remaining in the courtroom during the reception of Mr. Boozer’s preliminary hearing testimony would appear to have revealed to her nothing that she did not already know and had not previously discussed with her husband.

From the posture of the record before us, we do not find reversible error in the trial court’s ruling.

Ill

Finally, appellant challenges the in-court identifications made by Mr. and Mrs. Boozer, specifically alleging that the photographic arrays were impermissibly suggestive so as to create a substantial likelihood of irreparable misidentification. We disagree.

The general rules governing the admissibility of identification testimony were recently stated in Jackson v. State, 414 So.2d 1014 (Ala.Cr.App.1982). Consequently, we need not restate them herein.

As we stated in Phillips v. State, 409 So.2d 918, 920 (Ala.Crim.App.1981):

“The first prong in determining whether a pretrial identification can be properly admitted is whether the photographic lineup is impermissibly suggestive. If it is not, the inquiry ends. However, even if there had been an unduly suggestive pretrial identification procedure, the in-court identification testimony need not be excluded if the prosecution can establish by clear and convincing testimony that, rather than stemming from the unfair pretrial confrontation, the identification has an independent source.” (Citations omitted.)

In addition to the testimony of Mr. Boozer summarized above, he testified that the lighting was very good in his drugstore. He had the opportunity to view both robbers continuously from the time they entered the store until they approached him. Mr. Boozer stated that he was not mistaken about his identification of appellant as one of the robbers, and that he was “absolutely positive” of his identification of appellant despite.a discrepancy in his estimation of appellant’s weight given in his description of appellant to the police and appellant’s weight at trial. Mr. Boozer testified that the officer who showed him the photographic arrays made no statement to him other than that he had some photographs that he wanted Mr. Boozer to view.

Mrs. Boozer testified that she had no question in her mind about appellant’s being one of the robbers. Although she stated that she was not a good judge of height or weight, she could tell that appellant had gained some weight since the robbery and preliminary hearing. Concerning the photographic arrays she had viewed, Mrs. Boozer testified that she and her husband viewed them separately.

We agree with the trial court’s assessment of the two photographic arrays admitted into evidence wherein it stated that all of the photographs appear “to have enough likenesses about them to not single any one ... out .... In fact, the Defendant ... appears much thinner in the photograph than he appears here in the courtroom today. ... From what I have seen, it appears to be a reasonable photo lineup.”

We have reviewed the record in light of appellant’s contention and conclude that the photographic identifications were not “suggestive.” Furthermore, the in-court identifications had a basis independent of the photographic identifications and, thus, for that reason are admissible. Therefore, the trial court properly admitted the in-court identifications made by Mr. and Mrs. Boozer. Jackson, supra; Phillips, supra. Any defects or inconsistencies of such with their pre-trial identifications went to the weight and credibility of their testimony. Lewis v. State, 410 So.2d 474 (Ala.Crim.App.1982).

We have reviewed appellant’s contentions on appeal and find no error. This cause is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Tommy William DAVIDSON and James Wesley George v. STATE.
    3 Div. 668.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.
    James W. George, pro se.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a denial of appellants’ (petitioners’) petition for writ of ha-beas corpus. According to the petition, each petitioner had entered a plea of guilty to an indictment charging him with second degree burglary and upon his conviction was sentenced as an habitual felony offender pursuant to the Habitual Felony Offenders Act, now codified as § 13A-5-9 of Code of Alabama 1975. The habeas corpus proceeding was instituted by a joint pro se petition, and they have filed a pro se brief. The petition was denied without an eviden-tiary hearing on motion of the State.

Appellants are consistent in presenting the same claim for relief that they presented by their habeas corpus petition and an accompanying brief and argument, which have been commendably concise and to the point.

We hereby endeavor to determine the issue presented directly by the parties, aside from any question as to whether it is properly raised by habeas corpus proceeding.

The judgment of conviction and sentence which each of the appellants is now serving was rendered on December 1, 1980. We do not have the record before us as to the time of the occurrence of the burglary in the second degree of which each appellant was guilty. We do not have the information as to the time of the commission of the previous felonies that were taken into consideration in fixing each appellant’s punishment. However, we must conclude from the issue joined by the parties and their respective contentions that the other felonies were committed prior to the commission of the mentioned felony of burglary in the second degree by each defendant. In appellants’ brief it is stated:

“On December 1, 1980, the appellants were brought once again before Judge Gamble for trial. At this time attorneys for the appellants advised that they enter a plea of guilty. At no point were the defendants advised that the statute under which they were being tried was unconstitutional or that convictions prior to January 1, 1980, should not be applied in seeking enhancement of -punishment. The defendants entered pleas of guilty and were sentenced under Title 13A of the Code of Alabama 1975 as habitual offenders.”

In the quoted paragraph of appellants’ brief is to be found the heart of their insistence upon a reversal. If the Habitual Felony Offenders Act were unconstitutional as applied to previous convictions for crimes committed prior to the commission of the felony in a pending case, defendants should have been so advised. However, the law under consideration, Alabama Criminal Code, § 13A-5-9, which provides for enhancement of punishment upon a conviction of a felony by reason of one or more previous felony convictions, is not unconstitutional, even when applied to previous convictions for previously committed felonies that occurred prior to the effective date of the law pertaining to previous felony offenders. This has been repeatedly held and is now firmly established. Watson v. State, Ala.Cr.App., 392 So.2d 1274 (1980), cert. denied, Ala., 392 So.2d 1280; Williams v. State, Ala.Cr.App., 393 So.2d 492 (1981); Coker v. State, Ala.Cr.App., 396 So.2d 1094 (1981); Green v. State, Ala.Cr.App., 398 So.2d 376, cert. denied, Ala., 398 So.2d 380 (1981).

Appellants are correct in the position taken by them that as the effective date of the Alabama Criminal Code, including the provisions as to enhanced punishment for habitual felony offenders, was January 1, 1980, and that if construed and applied so as to create crimes that were not crimes prior to January 1, 1980, or to increase the punishment for crimes committed prior to January 1,1980, the law would be unconstitutional as violative of each defendant’s constitutional right to protection against ex post facto laws. The crime committed by each of the appellants that resulted in the judgments of conviction and sentence upon which this consolidated appeal is based was committed subsequent to, not prior to, January 1, 1980. If it had been committed prior to January 1, 1980, appellants would be correct in their conclusion.

It is stated in Coker v. State, supra, at 396 So.2d 1098:

“The habitual offender statute was effective at the time the appellant committed the instant offense. It specified the punishment for anyone who commits a felony after having been previously convicted of a felony or felonies. At the time the appellant contemplated committing the instant felony, he was charged by law with knowledge that if he committed the felony he would be subject to punishment under the habitual offender statute. The statute therefore had no ex post facto application.”

In Williams v. State, supra, per DeCarlo J., it is stated:

“The United States Constitution and the Alabama Constitution prohibit the passage of ex post facto laws .... The theory behind the prohibition is that no one should be punished for conduct when the law has not given him advance warning that the conduct was a criminal offense. Section 13A-5-9, Code, supra, does not punish the appellant for past conduct, but merely increased his punishment for his latest offense.... ”

At this writing, it seems that the most recently reported case in Alabama as to the contention made by the appellants herein is Chambers v. State, Ala.Cr.App., 418 So.2d 948 (Aug. 24, 1982), in which it is stated in an opinion by Presiding Judge Harris at page 951:

“Consideration of a defendant’s prior conviction in sentencing him pursuant to the Habitual Offender Act does not give the Act efficacy as a constitutionally prohibited ex post facto law, even though such prior convictions occurred before the effective date of the Act.... The important consideration is that, at the time appellant contemplated committing the instant felony, he was charged by law with knowledge that if he committed the felony he would be subject to punishment under the Habitual Offender Act.... ”

This opinion, on the single proposition advanced by appellants for a reversal, may well seem to be more lengthy than it should be. We trust that the length is in the interest of justice, even though it to some extent may be out of deference for the apparent sincerity of the appellants as manifested in their splendidly prepared and fully understandable pro se brief.

The judgment of the trial court in each petitioner’s case should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    James T. WOODARD v. STATE.
    5 Div. 724.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.
    John R. Formby, Jr., Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a dismissal of a petition for writ of habeas corpus in which petitioner-appellant alleged (1) that he was serving a sentence in Draper Correctional Center for sodomy imposed by the Circuit Court of Montgomery County, (2) the trial judge denied him “the right of assistance of counsel” and “denied him the right to talk to his hired Attorney concerning his guilty plea,” (3) “he did not [enter a]? voluntary plea of guilty” and did not “enter trial Judge’s chambers to plea[d] guilty,” (4) the trial judge “altered Petitioner’s form of waiver by defacing it” and (5) that the trial judge “failed to inform Petitioner of the minimum and maximum range of punishment ... before or after trial proceedings.”

The petition was dismissed on motion of the State. There was no evidentiary hearing.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellant’s court-appointed counsel has filed a brief in which he states:

“After having reviewed the record on appeal, and the applicable law, I cannot in good faith request reversal in this case. The matter raised by the petition relates solely to matters which occurred at or prior to the trial, and rulings made by the Trial Judge, all of which would have properly been matters for consideration on direct appeal from the case, or possibly by Petition for Writ of Error Coram No-bis, but they are not matters for appropriate review by Habeas Corpus. I cannot argue that the Elmore County Circuit Court Judge erred by summarily dismissing the petition because the allegations therein, even if taken in the light most favorable to the Appellant, would not have justified review by Habeas Corpus.”

Appellant-petitioner has misconceived the cardinal function and has endeavored to extend the otherwise comprehensive ambit of the writ of habeas corpus as covered by Tit. 15, Chapter 21 of Code of Alabama 1975. Numerous cases are to the effect that the remedy is not available for the purpose of correcting errors or irregularities in the judgment of courts if and when jurisdiction of the court to render the judgment is without question. State v. Baker, 268 Ala. 410, 108 So.2d 361 (1959); Edwards v. State, 274 Ala. 561, 150 So.2d 709 (1963); Hable v. State, 41 Ala.App. 398, 132 So.2d 271 (1961), cert. denied, 368 U.S. 883, 82 S.Ct. 136, 7 L.Ed.2d 83 (1961); Greer v. State, 49 Ala.App. 36, 268 So.2d 502 (1972). Closely related to the instant case is that of Allen v. State, 41 Ala.App. 336, 132 So.2d 327 (1961), cert. denied, 368 U.S. 1001, 82 S.Ct. 631, 7 L.Ed.2d 539 (1962), in which it is stated:

“Allen, twice convicted of second degree burglary in the Pickens Circuit Court and now in Kilby Prison, sought habeas corpus in the Montgomery Circuit Court. His petition contends that in the Pickens Circuit Court (1) the trial judge refused him the assistance of counsel and (2) the State ‘induced and employed coerced and false testimony to secure [his] tainted conviction.’
“If true, these questions are not amenable to post conviction review by way of habeas corpus. Code 1940, T. 15, §§ 27 and 28. From Bricken, P.J., in Mackreth v. Wilson, 31 Ala.App. 191, 15 So.2d 112, 113, we quote:
“‘It being conceded that the prisoner was incarcerated in the penitentiary under sentence imposed by the Clark County Circuit Court, and it further appearing that the record in his case is in all respects regular, the only matter that could be inquired into on habeas corpus in the court below was the jurisdiction of the Clark Circuit Court to render the judgment and impose the sentence that was imposed. Mere errors or irregularities in the proceedings in the Clark County Circuit Court are not available. If they existed they cannot be inquired into collaterally. * * ’ ”

The judgment appealed from should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Calvin Brooks ZEIGLER v. STATE.
    6 Div. 859.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.
    James G. Stevens, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

This is an appeal by an indigent from a denial of a petition for error coram nobis relief. The appellant seeks to overturn his second degree forgery conviction and sentence of ten years. A mistrial was declared in appellant’s first and second trials on this charge. His conviction was the result of a third trial.

Appellant’s sole contention is that he was denied his constitutional right to effective assistance of counsel because his court-appointed attorney failed to obtain a transcript of his first trial which ended in a mistrial because the jury was unable to reach a verdict.

The transcript of the hearing on the petition for writ of error coram nobis indicates that the attorney who is the subject of appellant’s ineffective assistance of counsel charge made a request for a transcript of the mistrial proceeding and was advised, “[Tjhat for an indigent, it would not be provided unless the person was willing to pay for the transcript.”

In Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), the United States Supreme Court recognized an indigent’s right to a transcript of a first trial which had ended in a mistrial. Although the court found that the accused had “available an informal alternative substantially equivalent to a transcript,” the court’s denial of relief was due to the “narrow circumstance of the case” wherein the petitioner conceded he had an “alternative device.”

The question in Britt v. North Carolina, supra, and a material inquiry in the present case, was “whether the State court properly determined that the transcript requested ... was not needed for an effective defense.” The Supreme Court identified two factors relevant to a determination of whether an indigent defendant “needed” a transcript of a prior mistrial in order to have an “effective defense” or “appeal.”

Those factors were:

“(1) [T]he value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.” [Footnote omitted]

It was the court’s opinion that it was not necessary for petitioner “to specify how the transcript might have been useful.” Nor was a “showing of need tailored to the facts of the particular case” required. The court concluded:

“[E]ven in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.”
Further in the opinion the court stated: “A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight.”

In view of the holding in Britt v. North Carolina, supra, and in the absence of some showing by the State that there was available “alternative devices that would fulfill the same functions as a transcript” the trial court was obligated to provide a transcript of those proceedings. We are also of the opinion that the statements and investigative reports available to appellant in the present case are not comparable to the “alternative device” noted in Britt.

It is also our judgment that the petition was properly denied in view of the following concession by appellant’s attorney at the time of the hearing:

“But it seems to me if you have a mistrial, you ought to be able to get a copy of sworn testimony. They don’t do it around here. It’s not Mr. Driscoll’s fault. They just don’t do it. They ought to. The rich folks can do that, but the poor folks can’t. Rich folks hire lawyers to get transcripts.
“THE COURT: But Mr. Driscoll is accused—
“MR. STEPHENS: You have got to have a vehicle to get to court on.”

As can be seen from, this portion of the record the appellant concedes that the attorney who was appointed after the mistrial was not at fault and the ineffective assistance of counsel charge was employed only as a means to have the matter reviewed.

Under the facts outlined we do not believe that the contention of ineffective assistance of counsel was sufficiently proved and the petition, on this ground, was properly denied. Therefore, the judgment by the Jefferson Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Larry LITTLE, alias Larry Roosevelt Little v. STATE.
    6 Div. 958.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.

      J. Wilson Dinsmore, Birmingham, for appellant. ■
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from the denial of a petition for writ of error coram nobis. The petitioner seeks to invalidate his four 1980 convictions on the grounds that his guilty pleas were involuntary and because appointed counsel were ineffective.

I

In April of 1980, the defendant waived indictment and pled guilty to four informa-tions as authorized by Alabama Code Sections 15-15-20 through 15-15-26 (1975). The informations charged the defendant with two cases of burglary in the third degree, theft (auto) in the first degree and receiving stolen property. Pursuant to the plea bargain agreement, the defendant was sentenced to three years’ imprisonment in each case, with each sentence to run concurrently. Because the defendant pled guilty before indictment, he had no right to appeal. Alabama Code Section 15-15-26 (1975).

The petitioner alleged in his petition for writ of error coram nobis, filed by court appointed counsel, that counsel appointed to represent him on the guilty pleas were incompetent, that he was “never advised by anyone of his right to apply under the Youthful Offender Act” and that he is “not guilty of the charges contained in the information.”

After the petitioner was arrested, three different attorneys were appointed to represent the petitioner on the four charges. One of these attorneys was appointed to represent the petitioner in two cases.

At the hearing on his petition and on appeal, petitioner argues that counsel were incompetent because (1) “appointed counsels Mr. Massey and Mr. Adams never went over the facts of the cases” with him, (2) “Mr. Adams had only one discussion” with him, (3) he never saw Mr. Massey, (4) the evidence the police had against him was never explained, and (5) the Youthful Offender Act (Alabama Code Section 15-19-1 et seq. (1975)) was never explained to him.

For each charge the petitioner executed an “Ireland form”, Ireland v. State, 47 Ala. App. 65, 250 So.2d 602 (1971) satisfying the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In signing each form, the defendant specifically acknowledged his guilt of each crime charged.

In each case, the judgment entry of the trial judge contained the following:

“The defendant being called before the Court accompanied by his counsel, and the defendant, his counsel and the Court having then and there executed ‘Court’s Exhibit A’ (Ireland form) ... and the defendant now stating to the Court that he has read said exhibit or has had said exhibit read to him by his counsel and that his counsel has fully explained to him the contents of said exhibits and that he fully understands same and has no questions about same, the Court finds that the defendant is represented by competent counsel and that defendant has a full understanding; hereby enters a plea of guilty and is intelligently and voluntarily entering his plea of guilty with a full understanding of the nature of the charge and the consequences of his plea.” (Emphasis added).

The judge who presided over the coram nobis hearing was the same judge who accepted the defendant’s guilty pleas. Although he denied the petition without making any written or oral finding of facts, he stated in the hearing that he was familiar with the guilty pleas: “I remember it well. I remember this better than any case that has been brought before me. * * * I remember this case better than any case, that has been brought before me. So, I’m satisfied.” In some cases recollection of the events at issue by the judge who presided at the original conviction may enable him summarily to dismiss a motion for posteon-viction relief. Blackledge v. Allison, 431 U.S. 63, 74 n. 4, 97 S.Ct. 1621, 1629 n. 4, 52 L.Ed.2d 136 (1977).

Several of the petitioner’s allegations may be disposed of immediately because they are contradicted by the petitioner’s own testimony. At the hearing, the petitioner admitted his guilt of three of the charged crimes. He maintained that he was not guilty of receiving stolen property and stated that he pled guilty to that offense because it was part of a “package deal”. The petitioner did admit some participation in the conduct leading to this charge.

He also admitted that his attorneys had discussed with him the advantages and disadvantages of youthful offender treatment: “They discussed it, but not in detail.” In addition, he stated that in three of the cases he discussed what evidence there was against him with one of his attorneys and “went over” the facts of these cases with that attorney.

Other portions of the petitioner’s testimony are in direct conflict with statements in the Ireland form and the findings of the court in the judgment entries.

A petitioner attacking a conviction through coram nobis bears a heavy burden of proving his allegations by “clear, full and satisfactory proof” which is “highly exacting as to proof of facts, and always means more than reasonably satisfying.” This Court recently discussed this burden of proof in Holsclaw v. State, (Ms. 8 Div. 726, February 1, 1983) (Ala.Cr.App.1983), wherein we held that the petitioner’s testimony, even though undisputed by any other witness, that his waiver of a trial by jury was fraudulently induced was insufficient to entitle him to relief in view of the fact that it was contradicted by a jury waiver he had previously signed.

Proper, efficient and fair administration of justice demands that presumptions of reliability attach to judgment entries and written statements or forms executed by the petitioner. Our Supreme Court recognized this principle in Howard v. State, 280 Ala. 430, 433, 194 So.2d 834 (1967), when it stated that “there is a presumption of reliability which attaches to the recital in a judgment entry and we do not think that ordinarily that presumption can be overcome by the mere statement of a petitioner that the judgment entry is incorrect.” In Howard, the judgment entry disclosed only a plea of not guilty while the testimony of the petitioner and the trial judge revealed a plea of guilty to a lesser included offense. There, the court found that “the presumption of reliability which usually attaches to the recital in a judgment entry” had been overcome because in addition to the petitioner’s testimony there was that of the trial judge.

In this case, the judgment entries reflect that the Ireland forms were executed in open court. “Solemn declarations in open court carry a strong presumption of verity.” Blackledge, 431 U.S. at 74, 97 S.Ct. at 1629.

A petitioner who claims that his guilty plea is involuntary has the heavy burden of proof. Champion v. State, 44 Ala.App. 660, 219 So.2d 416 (1969). On collateral attack, a guilty plea is presumed valid, Ware v. State, 44 Ala.App. 679, 681, 219 So.2d 910 (1969), as is the competency of trial counsel. “The presumption indulged by the court in a coram nobis hearing is to the effect that counsel was adequate and effective at trial.” Harris v. State, 367 So.2d 524, 528 (Ala.Cr.App.1978), cert. denied, 367 So.2d 534 (Ala.1979); Summers v. State, 366 So.2d 336, 341 (Ala.Cr.App.1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala.1979); Willis v. State, 42 Ala.App. 85, 90, 152 So.2d 883 (1963).

Here, the petitioner’s claim of involuntariness is contradicted by the record. This furnished an ample basis on which the trial judge could deny the writ. United States v. Carey, 571 F.2d 1343 (5th Cir.1978). Indeed, as was specifically held in Seibert v. State, 343 So.2d 788, 789 (Ala.1977), “The trial judge must have believed the witness ... on coram nobis, else he should not have granted the writ.” (Emphasis in original). Without supporting evidence of any kind, the present assertions of the petitioner are not sufficient to entitle him to post-conviction relief. Sanchez v. United States, 584 F.2d 109 (5th Cir.1978); Matthews v. United States, 533 F.2d 900 (5th Cir.1976).

In view of the presumptions of reliability attached to the Ireland forms and judgment entries, the credibility of the petitioner was for the trial judge. The contradictions presented by these presumptions and petitioner’s testimony and the discrepancies existing between the allegations of the petitions and the petitioner’s own testimony fully justify a finding that the petitioner’s testimony is not worthy of belief. Hol-sclaw, supra. Clearly, the petitioner has not carried the burden of presenting clear and convincing evidence that his legal representation was totally inadequate. Lewis v. State, 367 So.2d 542, 547 (Ala.Cr.App.1978), cert. denied, Ex parte Lewis, 367 So.2d 547 (Ala.1979).

The evidence convinces us that the defendant’s guilty pleas represent voluntary and intelligent choices among the alternative courses of action opened to him. Consequently, he should not be allowed to later attack these pleas. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Harris, 367 So.2d at 533. A guilty plea is not invalid because motivated by a desire to obtain a lesser sentence. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

II

The petitioner argues that the information forms are “defective to the extent that they will not support a conviction.” The informations filed by the district attorney do not correspond in each case with the respective arrest warrants.

It appears that the informations in case numbers 80-0876 and 80-0877 were confused. Case 80-0876 involved burglary as reflected by the warrant of arrest, the Ireland form and the judgment entry. However, the information numbered 80-0876 charged the theft (auto) which was the basis for the charge in case number 80-0877 as reflected by the warrant, the Ireland form and the judgment (which all concerned theft) in that case. The information in case 80-0877 (theft) charged the burglary involved in case 80-0876. The informa-tions in these two cases were simply given the wrong number and placed in the wrong file.

The warrant in case 80-0878 involved the burglary of a building belonging to Alex Newton. The information mistakenly charged the burglary of a building belonging to Audry Preston which was the crime involved in case 80-0876 (and the crime actually charged in the information numbered 80-0877). However, a judgment entry in case 80-0878 recites that the State filed against the petitioner a charge of burglary involving “a building of Alex Newton”.

Technical errors caused by unintentional administrative negligence do not constitute grounds for error coram nobis. Such are not within the function of the writ.

“The office of the writ of error coram nobis is to bring to the attention of the court for correction an error of fact, one not appearing on the face of the record, unknown to the court or the party affected, and which, if known in season, would have prevented the rendition of the judgment challenged.” Smith v. State, 245 Ala. 161, 16 So.2d 315 (1944) (emphasis added).

Petitioner cannot take advantage of his own negligence in his failure to raise this matter at the time of pleading guilty. Braswell v. State, 53 Ala.App. 645, 303 So.2d 145 (1974). Coram nobis is appropriate only when the petitioner’s claim is based on facts which were not known and could not have been discovered with the exercise of reasonable diligence at the time of trial. Thigpen v. State, 374 So.2d 401,405 (Ala.Cr. App.), cert, denied, 374 So.2d 406 (Ala.1979). “The writ of error coram nobis is not intended to relieve a party from his own negligence, and facts known to the accused at the time of trial, and not brought to the court’s attention through his negligence, afford no ground for relief.” Adams v. State, 281 Ala. 432, 203 So.2d 448 (1967).

The defects of which the petitioner complains constitute oversights and errors having nothing to do with whether or not his guilty pleas were voluntary and intelligent. A reading of the entire record dispels any suggestion that these defects tainted or infected the guilty pleas. These administrative errors do not constitute “a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure.” Keel v. United States, 585 F.2d 110, 113 (5th Cir.1978).

Our review convinces us that the petitioner received exactly what he bargained for in exchange for intelligently and voluntarily pleading guilty. His attack upon his convictions is not supported by clear and convincing evidence.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: ADKINS, Justice.

text:
    STATE of Florida ex rel. Jim SMITH, etc., et al., Relators, v. Bennett BRUMMER, etc., et al., Respondents.
    No. 61376.
    Supreme Court of Florida.
    Dec. 16, 1982.
    Rehearing Denied March 3, 1983.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., and Melinda S. Thornton, Asst. County Atty., Dade County, Miami, for relators.
    Parker D. Thomson of Paul & Thomson, Miami, for respondents.
   ADKINS, Justice.

Respondents were appointed to represent a minor, G.A., in a chapter 394 involuntary commitment proceeding. Although he was committed at the conclusion thereof, G.A. was later ordered released by the Dade County Circuit Court and has remained at liberty ever since.

In addition to representing him in the above proceedings, respondents filed suit on behalf of G.A. and all others that were similarly situated in the United States District Court alleging violations of constitutional rights and seeking declaratory and injunctive relief. The suit was instituted by R.A., G.A.’s mother. A motion for class certification was additionally filed as well as a motion for leave to proceed in forma pauperis. The latter motion was initially granted but later, on a motion by the opposing parties, was vacated.

Subsequent to the above, G.A. and R.A. filed an amended complaint, seeking damages, in the federal proceeding. That pleading was signed by two of the respondents and by Eugene Zenobi, a private practitioner not employed by the public defender’s office. Relators then brought this quo warranto proceeding to challenge respondents’ authority to institute the federal proceedings in the form of a class action suit.

It is the petitioners’ contention in this case that the piublic defender is not authorized to bring a class action suit, particularly when there is no showing that each member of the purported class is indigent and when there is no showing that the public defender was ever appointed to represent in any proceeding, any member of the class other than the named plaintiff.

Respondents counter by arguing that the bringing of a class action suit was the most efficient way to represent these individuals with the limited resources of the office of the public defender.

We hold that a writ of quo warranto should be issued by this Court divesting the respondents of the authority to represent the plaintiffs in a class action.

Pursuant to the Supreme Court ruling in Branti v. Finkel, 445 U.S. 507, 519, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980), we understand that “[t]he primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State.” The Florida Statutes remind us that the public defender does not owe any responsibility to persons other than those whom he is appointed to represent and he is not authorized by statute to undertake representation of any such additional persons. He therefore cannot undertake representation of a class.

Our reasoning in the case at bar parallels that which was used in our decision of Graham v. State, 372 So.2d 1363 (Fla.1979). There, we concluded that the state of Florida is under no obligation to provide the counsel or costs in federal proceedings.

The decision to file this federal complaint as a class action suit is said to be a tactical move on the part of the respondents. Respondents have based their decision on the likelihood of obtaining relief for both G.A. and other individuals. The mere fact that a decision is tactical is of no import. Invariably, the respondents must still have the authority to act and here they simply do not.

This does not mean, however, that state-appointed counsel could not continue their representation and seek federal relief on an “individual” basis. A lawyer’s professional responsibility may dictate this action. It is, however, our view that a state court could not mandate this action.

The state is constitutionally obliged to respect the professional independence of the public defenders whom it engages. The decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), established the right of state criminal defendants to the “[gjuiding hand of counsel at every step of the proceedings against [them].” Id. at 345, 83 S.Ct. at 797 (quoting from Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932)).

The United States Supreme Court opinion in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), concisely summarizes this Court’s view concerning the primary purpose of the public defender. Quoting from Ferri v. Ackerman, 444 U.S. 193, 204, 100 S.Ct. 402, 409, 62 L.Ed.2d 355 (1979), the Court agreed that

His [the public defender’s] principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation.

102 S.Ct. at 450 n. 8 (emphasis supplied).

The petition for writ of quo warranto is hereby granted by this Court.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald and EHRLICH, JJ., concur.