author: PER CURIAM. JONES, Justice

text:
    Ex parte State of Alabama. (In re Kenneth Dale DAVENPORT v. The STATE of Alabama)
    80-801.
    The Supreme Court of Alabama.
    Feb. 26, 1982.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for petitioner.
    Kermit Mac Downs, Gadsden, for respondent.
   PER CURIAM.

The Court of Criminal Appeals, 426 So.2d 464, reversed the rape conviction of Davenport, and the State brought the case here on a petition for certiorari, seeking reversal of the judgment of the Court of Criminal Appeals, arguing that its decision is in conflict with prior decisions on the admissibility of other acts of rape committed by the defendant on the victim. The State contends that the trial court correctly allowed the evidence as being admissible as a part of a single transaction. We agree and reverse the judgment of the Court of Criminal Appeals.

The facts are extensively set out in the opinion of the Court of Criminal Appeals. Our point of difference with the decision is a narrow one. That court held that the subsequent acts by the defendant and others upon the person of the victim were too remote in point of time (forty minutes) to be admissible under the res gestae rule, saying:

“Whether testimony of the victim as to the combined trespass on her person of the defendant and the two other trusties comes within the res gestae rule or was so inseparably connected with the preceding conduct of defendant must be examined with particular reference to the place, the time and the nature of the crime or crimes involved. The place was the same as to both, but there was a difference of forty minutes between consummation of the first act and the commencement of the concerted conduct relative to the victim by the defendant and the two other trusties. We fail to see that the conduct that the victim said occurred thereafter can logically be said to have been part of ‘the thing done’ theretofore.”

We simply disagree and hold that the trial court did not commit reversible error in allowing the evidence under the res ges-tae rule, stated in C. Gamble, McElroy’s Alabama Evidence § 69.01(3) (3d Ed.1977), as follows:

“Evidence of the accused’s commission of another crime is admissible if such other crime is inseparably connected with or is a part of the res gestae of the now-charged crime. This rule is often expressed in terms of the other crime and the now-charged crime being parts of one continuous transaction or one continuous criminal occurrence.”

We do not agree that Taylor v. State, 352 So.2d 1154 (Ala.Cr.App.1977), is distinguishable. There the court held, correctly, that the fact that the victim had been raped three times by the defendant between 9:30 a.m. and 2:00 p.m. was admissible as a part of the res gestae.

In all other respects, we agree with the Court of Criminal Appeals. However, its judgment is reversed for the reasons stated above.

REVERSED AND REMANDED.

All the Justices concur, except JONES, J., who dissents.

JONES, Justice

(dissenting).

I concur in the opinion of the Court of Criminal Appeals and, therefore, I would affirm.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Kenneth Dale DAVENPORT, alias v. STATE.
    7 Div. 805.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Feb. 25, 1983 Alabama Supreme Court 82-28.
   AFTER REMAND FROM ALABAMA SUPREME COURT

LEIGH M. CLARK, Retired Circuit Judge.

But for one question left unresolved in our opinion in this case, we would be required, without further opinion, to affirm the judgment of the trial court on authority of Ex parte State (Re: Davenport v. State), Ala. 426 So.2d 472 (1982).

The question unresolved in our opinion that has been reversed by the Supreme Court of Alabama pertains to the action of one of the jurors in obtaining a definition of rape from a dictionary, while the jury was not sequestered. The conduct of the juror and the ruling of the trial court on the subject are reflected by the transcript as the jurors were being polled upon their return of a verdict finding defendant guilty. We quote the pertinent part of the transcript:

“THE COURT: Ladies and gentlemen, have you reached a verdict?
“THE FOREMAN: We have, Your Hon- or.
“THE COURT: Will the bailiff bring the verdict forward.
“(Handed to the Court).
“THE COURT: Have the defendant to rise.
“(Defendant standing.)
“THE COURT: ‘We, the jury, find the Defendant guilty of rape in the First Degree as charged in the indictment.’ Each of you answer out. Is this your verdict?
“(Each juror, upon being asked by the Court, ‘Is this your verdict?’, answered in the affirmative.)
“THE COURT: Thank you, ladies and gentlemen. I appreciate your service and the patience and the time that you have given to this case. And at this time I am discharging you from any further consideration and you may report back to the Jury Assembly Room for further instructions.
“MR. DOWNS: Your Honor, prior to the jury leaving could we approach the bench?
“(At the bench.)
“MR. DOWNS: Your Honor, for the record, I would like to show that yesterday afternoon the jury asked for a dictionary. At that time the Court refused to allow the jury to have one. In view of the fact that the jury was recessed and returned to their homes last night, it is possible that they did, in fact, look up something in the dictionary or use some sort of evidence that was not presented in Court. At this time we feel like that the Defendant would like the opportunity to poll the jury to find out why they wanted the dictionary and if they did, in fact—
“THE COURT: I’ll ask them if they used anything other than the evidence that was presented to them.
“MR. DOWNS: Would you ask them specifically the dictionary?
“THE COURT: I don’t know what they wanted a dictionary for. I’ll just ask them about the evidence.
“MR. DOWNS: Could you just ask them what they used the dictionary for? It may be something unrelated. You could ask and see.
“(In open court)
“THE COURT: Ladies and gentlemen, I am going to ask one question and I am going to poll you again each of you. Did you use a dictionary or any other thing that was not evidence in this case in reaching a decision in this case?
“(In answer to the above question the first eleven jurors answered in the negative. The twelfth juror answered as follows:)
“JUROR: I looked at one at home. I didn’t bring it with me or nothing.
“THE COURT: Did it influence you in your decision in this case?
“JUROR: No. It gave me a little more definition of rape than what you explained to us.
“MR. DOWNS: Your Honor, at this time we make a motion to — for a mistrial based on the fact that that juror admits that he did use a dictionary.
“THE COURT: Denied.
“MR. STEWART: We except.
“THE COURT: You may report back to the Jury Assembly Room, ladies and gentlemen, for further instructions.
“MR. DOWNS: We except to the Court’s ruling, Your Honor.
“(Jury excused).”

With commendable zeal and dedication to their respective clients, counsel for the parties have presented a large number of authorities pertaining to the question whether use by jurors of a dictionary, or an encyclopedia or the like, as to the meaning of a word or words involved in a particular case under consideration by the jury requires that the verdict in the case be set aside, upon an appropriate attack by the losing party. We find that none of the authorities cited gives a persuasive answer to the question, as applicable to the facts in the instant case, except Nichols v. Seaboard Coast Line Ry. Co., Ala., 341 So.2d 671 (1977), upon which appellant heavily relies. The author of the splendid opinion therein, as to which there was no dissent, has made an outstanding contribution to the law in Alabama and elsewhere on the subject. In Nichols v. Seaboard, supra, all justices agreed (six in a specially concurring opinion) that it was necessary to reverse the judgment of the trial court by reason of its error in overruling plaintiff’s motion for a new trial grounded on the action of some of the jurors in obtaining, between the time of the submission of the case to them for their verdict and the return of a verdict, from a dictionary and from an encyclopedia, definitions relative to the tort “negligence” and defendant’s affirmative defense of “contributory negligence,” and related legal terms, upon which plaintiff’s complaint and defendant’s answer were primarily, respectively based. In the opinion, Justice Jones significantly stated at 341 So.2d 674, “We hasten to add, however, as previously noted, our holding is restricted to the particular facts and attending circumstances of the instant case.” As explained in detail in that opinion, particularly on pp. 674 and 675, the jury had become confused as to the tort “negligence” and its related terms, as to which it was stated at 341 So.2d 675:

“The record in this case clearly shows that several jurors became concerned over their confusion of definitions of certain legal terms. The confusion is understandable; the case, while not overly complicated factually, involved the most intricate of legal concepts of tort liability and countervailing defenses. This lack of understanding is no reflection on the accuracy or completeness of the judge’s instructions to the jury. What is routine within the professional training and discipline of lawyers and judges is nonetheless novel and outside the common experience of lay jurors. Any credible verdict, reflecting justice among the parties, must of necessity apply the facts as found by the jury to the law of the case, and this application cannot be made where there is confusion and doubt as to the applicable legal concepts.
“This confusion was communicated to the Court. When the Court declined to assist the jurors to a better understanding of the law applicable to the case, they were left either to proceed in their confusion or to resort to their own initiative to alienate their uncertainties. Given this choice, the jurors can hardly be blamed for looking to their home reference books during the night recess to clarify in their minds the legal concepts essential to a resolution of the case.”

The essential difference between the two opinions in Nichols, supra, the opinion of the Court as expressed by Justice Jones and the specially concurring opinion of the late Justice Bloodworth, is to be found in the specially concurring opinion at 341 So.2d 677 as follows:

“I do not agree that no prejudice need be shown in this case. I simply say that it is clear here that prejudice has been shown under the facts of this case.
“Our case law has long required, in the absence of improper act of the prevailing party, that prejudice must be shown. Faust v. Miller, 260 Ala. 665, 72 So.2d 294 (1954).”

For us to reverse the judgment of the trial court for its refusal to grant the defendant a mistrial by reason of what had occurred as to what one of the jurors had read in a dictionary would be in conflict with what was held by all nine justices in Nichols v. Seaboard, supra, as hereinafter further explained.

The intricate legal problems involved in a damage suit, in which there is need for a clear understanding of what is meant by negligence, contributory negligence, subsequent negligence, subsequent contributory negligence and their ramifications, constitute stones over which lawyers often stumble. Laymen cannot be expected to do otherwise. On the other hand, the meaning of rape of a female by a male, as proscribed by the common law, which prevailed in Alabama on the subject until the effective date of the Criminal Code of 1975, as well as the meaning of rape in the first degree, as expressly charged in the indictment in this case under § 13A-6-61(a)(l), which defines the offense as the engagement by a male “in sexual intercourse with a female by forcible compulsion,” is so clear and unambiguous that no person intelligent enough to be a juror could err as to the meaning. The meaning was set forth clearly in the court’s oral charge as follows:

“The Defendant in this case is charged with Rape in the 1st Degree. And a male commits the crime of Rape in the 1st Degree if he engages in sexual intercourse with a female and he does so by forcible compulsion. To sustain the charge of Rape in the 1st Degree in this case the State by the evidence must prove beyond a reasonable doubt each of the following elements: That is, that the Defendant, Kenneth Dale Davenport, a male, engaged in sexual intercourse with Theresa Dianne Bland, a female, and that he did so by forcible compulsion.”

We see no reasonable basis for any contention that the juror who consulted a dictionary could have been misled thereby to the prejudice of defendant on the issue of whether his intercourse with the alleged victim was by “forcible compulsion,” which was the sole issue in the case. We realize that, as the juror indicated, dictionaries will generally include broader definitions of “rape” than that defined by the trial court, as set forth in the indictment and in the pertinent subsection of the Code of 1975. However, such broader definitions would have no tendency to mislead a person as to the meaning of the particular crime for which defendant was charged and convicted.

In commenting on but not deciding the question now being considered, we said in our opinion on original submission that “it is understandable why, in this particular case, the juror would feel the need for a dictionary to inform him as to the meaning of rape.” This statement was made by reason of concern as to whether confusion to the prejudice of defendant had been caused by the injection into the case of considerable evidence of deviate sexual intercourse subsequent to the commission of the crime charged against this appellant, which concern has been laid to rest by the opinion of the Supreme Court of Alabama, which we are pleased to follow.

The judgment of the trial court is hereby AFFIRMED.

All the Judges concur.


author: BARRON, Judge.

text:
    Ray CHANDLER, alias v. STATE.
    5 Div. 624.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Aug. 24, 1982.
    Certiorari Denied Feb. 25, 1983 Alabama Supreme Court 81-1027.
    Dewey W. Teague and C.S. Whittelsey, Opelika, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BARRON, Judge.

First degree sodomy; sentence: life imprisonment without parole.

On November 11, 1980, appellant enticed two teenage brothers into entering an automobile with an offer to make money by helping to move furniture. After driving for nearly an hour, appellant stopped the vehicle and had the boys exit the vehicle. Appellant pulled a gun from under the seat and held it on the boys while he handcuffed them. After making the boys lower their pants, he ordered the younger thirteen-year-old brother to go act as a lookout. He then directed the older eighteen-year-old brother to lie down in the woods, where appellant proceeded to perform fellatio on him. After this act he drove the boys to Auburn High School, had them exit the vehicle, and told them he would return shortly with the key to the house to move the furniture. Appellant did not return and the boys walked home. They reported the incident two days later to their mother and the police.

I

Appellant argues the warrantless search of his vehicle violated his fourth and fourteenth amendment rights, and required the suppression of any evidence obtained thereby. The court’s refusal to suppress such evidence, appellant insists, constituted error requiring reversal.

The police obtained a description of the vehicle appellant drove the day of the crime from the two teenage victims. After locating a vehicle which matched the description, police took the boys to view it on the night of November 18, 1980: The vehicle, which was parked outside appellant’s mobile home, was identified by the boys as the same automobile. On December 4, 1980, officers again returned to the mobile home and took pictures of the appellant, with his permission. The victims were able to identify appellant from these pictures as the man who assaulted them. After failing to find the appellant at home on December 9, 1980, the officers returned and arrested appellant, with an arrest warrant, at his trailer in December, 1980. Appellant gave the officers the keys to the vehicle, and the automobile was impounded at police headquarters, where a warrantless routine inventory search was made. As a result of this search, police found a gun and a pair of handcuffs in the vehicle which the victims were able to identify as those used by appellant during the crime.

Appellant argues this case is virtually identical to the facts found in Coolidge v. New Hampshire, 408 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and is not an appropriate case to be decided under the inventory search exception created by South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Although we believe appellant’s substantive argument is without merit, we find it unnecessary to reach that question because, in our opinion, appellant lacks standing to raise this issue. See Reid v. State, 388 So.2d 208 (Ala.1980); Jones v. State, 407 So.2d 870 (Ala.Cr.App.1981).

At trial, appellant testified and denied ownership of both the automobile and the articles found therein. He presented further testimony which established ownership of both the vehicle and of its contents in persons other than himself. He also denied having been in that vehicle or having committed the assault on the day the crime occurred, and presented alibi evidence supporting his contention.

Appellant made no assertion of a property or possessory interest in the vehicle or the property seized at any time, and in fact specifically denied and refuted any assertion of the same. Therefore, he has no standing to contest the search.

The burden was upon appellant to establish that his own individual constitutional rights were violated by the challenged search and seizure. McCraney v. State, 381 So.2d 102 (Ala.Cr.App.1980); Brown v. State, 339 So.2d 125 (Ala.Cr.App.1976). Appellant not only failed to carry this burden, but specifically negated its establishment by his own in-court admissions. Collier v. State, 413 So.2d 403 (Ala.1982).

II

Appellant alleges that statements he made to police, after having previously invoked his right to counsel, and having subsequently stated he would not talk with police, were erroneously admitted at trial.

Although appellant’s argument appears pursuasive at first blush, a close scrutiny of the underlying facts reveals it is without merit. Whether a waiver is voluntarily, knowingly, and intelligently made depends upon the particular underlying facts and circumstances surrounding each case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Appellant was initially arrested on this charge in December, 1980, at which time he was advised of his constitutional rights in Opelika, Alabama. Appellant informed Officer Gary Knight that he did not wish to make a statement and that he desired the assistance of an attorney. Officer Knight immediately ceased any further attempt to interrogate appellant. Appellant retained the present trial counsel to represent him and was subsequently released on bond. Three months later, on March 30, 1981, appellant was again taken into custody by Officer Knight and another officer in Saraland, Alabama, for transportation back to Opelika, Alabama, in relation to the instant charge. Upon seeing Officer Knight in Saraland, appellant immediately volunteered that he had given an alias name at the time of his initial arrest. Appellant was taken into custody and handcuffed with “Billy chains.” Appellant was placed in the back seat of the patrol car, while the two officers sat in the front seat.

As the officers left Saraland headed towards Opelika, appellant was again advised of his constitutional rights. Appellant interrupted the officer and told him he knew his rights, and that he was not going to talk. The record reflects the following then occurred:

“Q Referring to your memorandum that you have been referring to, I will ask you to do so now, and look in the second paragraph and see if there is not a statement where you said that Lieutenant Knight, you said that ‘he,’ referring to the defendant, knew his rights and was not going to talk; is that in that memorandum?
“A That’s what it says.
“Q And yet you continued to interrogate the defendant?
“A No, sir.
“Q Well, you did ask him questions, didn’t you?
“A He voluntarily started talking himself. I did not interrogate him.
“Q But you’re telling this jury that everything he said was voluntary and that you didn’t ask a question that was soliciting an answer?
“A No, sir, I’m not saying that.
“Q Well, it wasn’t voluntary, then? “MR. MYERS: We object to that.
“THE COURT: Overruled. Go ahead. “Q It wasn’t voluntary then, was it? “A Certainly it was.
“Q Sir?
“A Yes, sir. It certainly was.
“Q Wasn’t it in response to questions that were asked by you and Mr. Meadows?
“A No, sir, not all of it.
“Q All right. He made some voluntary statements?
“A Yes, sir.
“Q But some questions were asked by you, were there not?
“A Yes, sir, there were.
“Q I would ask you this then: He made some voluntary statements; you pursued it from there, did you not, Mr. Knight?
“A I followed up with questions, yes, sir.
“A The fact is, he volunteered or gave some other information in response to your interrogatories, didn’t he?
“A Yes, sir, he did.
“Q But you did ask questions of this witness, after he said he didn’t want to give any statement? According to your memorandum.
“A He did not say he didn’t want to give a statement.
“Q I’m extracting again from the memorandum. It said, ‘He knew his rights and was not going to talk.’ That’s part of this memorandum,—
“A He said, T know my rights, but I’m not going to talk. I’m not going to tell you anything, and — ’
“Q Isn’t that what this—
“A —I told him—
“MR. MYERS: Let him finish.
“MR. WHITTELSEY: Let him answer my questions Mr. Myers.
“THE COURT: Well, he hadn’t finished his answer.
“You may finish your answer.
“A And I told the defendant that he must understand his rights, that I’ve got to finish advising him of his rights. I finished advising the defendant of his rights, and he began talking on his own free will.
“Q And then you asked questions?
“A I followed up with questions, yes, sir.”

It is clear from the record that upon appellant’s first arrest, his request for counsel and decision not to make a statement were immediately and totally complied with by the law enforcement officials. Upon his second arrest, he did not again demand counsel, but merely stated that he was not going to talk. However, on his own volition, appellant changed his mind and began to talk. It was only after appellant began to volunteer information about the case, that the officers began to ask follow-up questions about the statements appellant was making.

While appellant testified at trial that the officers continued to interrogate him in the car after he refused to talk, there was sufficient evidence before the trial court to find that appellant initiated the conversation. The trial court is not required to accept the testimony of the appellant as to voluntariness where there is substantial testimony by other witnesses sufficient to establish a voluntariness predicate. Simpson v. State, 401 So.2d 263 (Ala.Cr.App.), cert. denied, 401 So.2d 265 (Ala.1981).

Although appellant relies on Edwards, supra, as authority for reversal, the facts herein differ markedly from those in Edwards. In Edwards, appellant asserted his right to counsel on one day, and the police, without furnishing him counsel, returned the next morning to confront him, at which time they obtained his incriminating statement. Here, appellant’s request for counsel was not only immediately complied with, but appellant was also released on bond for three months before again being confronted by the police. Certainly, there is no doubt that all interrogation ceased until appellant had ample opportunity to consult with the counsel of his choice. Further, the second confrontation with police was not as the result of an interrogation, but was rather a second and separate arrest of appellant some three months later. Appellant at the time of his second arrest made no request for counsel. Although he indicated initially that he was unwilling to make a statement, the evidence indicates appellant changed his mind, and of his own accord began to make a statement. After being advised of his rights, an accused may himself validly waive his rights and respond to interrogation. Edwards, supra. While the safeguards are more strict when the accused requests counsel, no such request was made at the time of the second arrest, and appellant’s request for counsel at the time of his initial arrest had already been complied with.

We note also that while this second encounter with police was not at the initiation of the accused, neither were appellant’s statements regarding the case made as a result of questioning or its functional equivalent by the police. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

The fact that a defendant has legal counsel does not, as a per se rule, prohibit law enforcement officials from procuring a statement of any kind from the appellant, without first giving notice to and receiving consent from his counsel. Nelson v. State, 398 So.2d 421 (Ala.Cr.App.1981). We hold that appellant was aware of his right to counsel, and had been allowed to consult with an attorney upon request. Considering the totality of the circumstances, we find that at the time of the second arrest, appellant knowingly and voluntarily waived his right to counsel and initiated the conversation with police without any form of questioning on their part. Edwards, supra; Trest v. State, 409 So.2d 906 (Ala.Cr.App. 1981).

No error harmful to the substantial rights of appellant having been demonstrated, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Marla Baldwin MORROW v. STATE.
    8 Div. 655.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Feb. 25, 1983 Alabama Supreme Court 82-58.

      James B. Wiley, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Larry L. Raby, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted for the first degree theft of a ring, the property of Marshall Collins. The indictment, with the consent of appellant, was amended to charge second degree theft. Throughout the lower court proceeding, appellant was represented by retained counsel. On appeal, she was found to be indigent and another attorney was appointed to represent her. Appellant pled guilty to the amended indictment and was sentenced to five years’ imprisonment. From that conviction she now appeals in forma pauperis.

Appellant contends that her guilty plea was involuntary and unintelligently made as she was never apprised of the elements of the charge to which she pled.

The record indicates that appellant executed an Ireland form and was questioned at length by the trial court. Specifically, the trial court inquired of appellant:

“THE COURT: Now, Mrs. Morrow, you understand that you are now charged with the offense of theft of property in the second degree?
“THE DEFENDANT: Yes, sir.”

Also, appellant, through her retained counsel, waived the reading of the indictment.

The court continued its colloquy with appellant with it fully complying with the mandates of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

During the colloquy, appellant testified: “THE DEFENDANT: I took a ring from a man.
“THE COURT: Can you tell me more than that? What kind of ring was it, and where did you take it, and when?
“THE DEFENDANT: It was a ’32 Masonic ring. It was at his house. I took it off his finger.
“THE COURT: What was this man doing at the time you took it off his finger? Was he asleep?
“THE DEFENDANT: Sort of.”

We note that the only elemental difference between first and second degree theft is that of the value of the property stolen. Ala.Code § 13A-8-2 (Amended 1977); Code §§ 13A-8-3, -4 (Supp.1981).

For a guilty plea to be validly accepted, the record must indicate that the accused intelligently and knowingly pled guilty. Boykin, supra. In Davis v. State, 348 So.2d 844, 846 (Ala.Crim.App.), cert. denied, 348 So.2d 847 (Ala.1977), this court stated:

“In a plea of guilty proceeding the judge should undertake a factual inquiry to determine if the plea is voluntarily made with an understanding of the nature of the charge and the consequences of the plea, and the judge should be satisfied that there is a factual basis for the plea.”

As expressed in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970):

“The standard [for determining the validity of a guilty plea is] whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.”

In support of her contention, appellant relies upon Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). In Waldon v. State, 394 So.2d 100 (Ala.Crim.App.1981), this court, at pages 102-03 discussed Henderson:

“The specific question ... [in Henderson ] was ‘whether a defendant may enter a voluntary plea of guilty to a charge of second degree murder without being informed that intent to cause the death of the victim was an element of the offense.’ 96 S.Ct. at 2254. Based on the general proposition that a guilty plea is involuntary if the accused ‘has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt ’, 96 S.Ct. at 2257, n. 13, the majority concluded that, in the particular situation before it, the circumstances surrounding the accused’s plea failed to satisfy its test for voluntariness for the following reasons: (1) Neither defense counsel nor the trial court informed the accused that intent to kill was an element of the crime of second degree murder; (2) defense counsel did not stipulate to the existence of such intent; and (3) the accused made no factual statements to the court implying that he had such intent. 5 Amer.J.Crim.Law 105 (1977).
“In Henderson, it was specifically noted that:
‘There is no need in this case to decide whether notice of the true nature, or substance, of a charge always requires a description of every element of the offense; we assume it does not. Nevertheless, intent is such a critical element of the offense of second-degree murder that notice of that element is required.’ 96 S.Ct. at 2258, no. 18. (Emphasis added) “The Court also noted that ‘(t)he charge of second-degree murder was never formally made. Had it been made, it necessarily would have included a charge that respondent’s assault was “committed with a design to effect the death of the person killed.” ’ 96 S.Ct. at 2258.
“As was recognized in McGuirk v. Fair, 622 F.2d 597, 598 (1st Cir.1980), ‘(t)he holding of Henderson was very narrow, however, and its facts are distinguishable from those- of the instant case.’ The majority in Henderson even recognized the uniqueness of their decision:
“ ‘Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent.’ 96 S.Ct. at 2258-9.” (Emphasis added; “we assume it does not” emphasized in Waldon.)

Moreover, it was specifically noted in Henderson that:

“A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving, see, e.g., Johnson v. Zerbst, 304 U.S. 458, 464-465 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461], or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilty. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense. Smith v. O’Grady, 312 U.S. 329 [61 S.Ct. 572, 85 L.Ed. 859]. 426 U.S. at 645, n. 13 [96 S.Ct. at 2257].”

Having examined the record and all of the relevant circumstances, see generally Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), we find that appellant’s guilty plea was freely, unequivocally, intelligently, and understandingly made in open court with full knowledge “of the nature of the charge against [her] or proof that [she] in fact understood the charge.... ”

Appellant contends that she was denied effective assistance of counsel “when she was not advised within thirty days of her arrest of her right to demand a preliminary hearing within this thirty day period.” However, the crux of her contention is stated in appellant’s brief at page 19:

“Appellant is simply contending that the failure of any judicial or law enforcement authority to inform her at any time subsequent to her arrest and within thirty days thereof that she had the right to demand a preliminary hearing effectively deprived her of her Sixth Amendment right to the effective representation of counsel on her behalf.”

As previously stated, if the entering of a guilty plea represents a voluntary and intelligent choice among the alternative choices of action open to the defendant, then she cannot be heard to complain as no constitutional infirmity exists. Alford, supra.

Furthermore, a guilty plea which complies with the above standard waives all non jurisdictional defects in the prior proceedings against an accused. Dingler v. State, 408 So.2d 530 (Ala.1981). It purges the record of error unless it is shown that the plea was extorted by duress, fraud, intimidation, or deception. The judgment and sentence following the entering of a guilty plea are based solely upon the plea and not upon any evidence which may have been improperly acquired by the prosecutor. The guilty plea waives the right to a trial as well as the right to contest the admissibility of any evidence the State might have offered, including an illegal arrest, the validity of a search and seizure, or a prior involuntary confession. Knowles v. State, 280 Ala. 406, 194 So.2d 562 (1967); Barnes v. State, 354 So.2d 343 (Ala.Crim.App.1978). A voluntary plea of guilty will also waive questions concerning the trial court’s refusal to suppress certain evidence, a denial of a pre-trial motion for a continuance, and a claim of a denial of a speedy trial. Graham v. State, 403 So.2d 275 (Ala.Crim.App.1980), cert. denied, 403 So.2d 286 (Ala.1981); Parmley v. State, 397 So.2d 183 (Ala.Crim.App.1980), cert. denied, 397 So.2d 184 (Ala.1981); Barnes, supra.

In addition, a voluntary guilty plea waives the right to a preliminary hearing. Browning v. State, 397 So.2d 253 (Ala.Crim.App.), cert. denied, 397 So.2d 256 (Ala.1981); Roden v. State, 384 So.2d 1248 (Ala.Crim.App.1980); Harris v. State, 367 So.2d 524 (Ala.Crim.App.1978), cert. denied, 367 So.2d 534 (Ala.1979).

A plea of guilty is an admission of whatever is sufficiently charged in the indictment. A voluntary guilty plea concludes the issue of guilt, dispenses with need for judicial fact finding, is conclusive as to the defendant’s guilt, and is an admission of all facts sufficiently charged in the indictment. Carr v. State, 406 So.2d 440 (Ala.Crim.App.1981); Barnes, supra.

By having voluntarily pled guilty to the instant offense, appellant waived the right to demand a preliminary hearing as well as any other nonjurisdictional defects.

Examination of appellant’s contentions on appeal reveals no errors prejudicial to her substantial rights. This cause is hereby due to be affirmed.

AFFIRMED.

All the Judges concur.

      . The proper time frame for a preliminary hearing under Ala.Code § 15-11-1 (1975), was set forth in Nobis v. State, 401 So.2d 191 (Ala. Crim.App.), cert. denied, 401 So.2d 204 (Ala.1981).


author: BOWEN, Judge. BOWEN, Judge.

text:
    Larry D. CUNNINGHAM v. STATE.
    8 Div. 680.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Feb. 11, 1983 Alabama Supreme Court 82-211.

      Earl D. McNeal, Huntsville, for appellant.

      Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of Gary Vice. Sentence was forty years’ imprisonment.

The defendant argues on appeal, as he did at trial, that there was no evidence to refute the evidence of his insanity at the time he committed the crime. He contends that the evidence of insanity overcame the presumption of sanity and that his conviction is due to be reversed.

“A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Alabama Code 1975, Section 13A-3-l(a). The legal principles governing the burden and sufficiency of proof of insanity were collected in Christian v. State, 351 So.2d 623 (Ala.1977).

“Those principles may be summarized as follows:

“1. By statute, there is a presumption of sanity extending to all persons over the age of 14.
“2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.
“3. The burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence and to the reasonable satisfaction of the jury.
“4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.
“5. In making its determination, the jury may reject all expert testimony though it is without conflict.
“6. However, opinion testimony, even of experts must be weighed by the jury and may not be arbitrarily ignored. “Authority for each of these principles may be found in Christian, supra, at 351 So.2d 624.
“The one exception to these rules is found in those cases where the proof of insanity is overwhelming and uncontradicted.
“ ‘Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.’ Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 (1934).”
Herbert v. State, 357 So.2d 683, 688-89 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978).

Generally, see Anno. 17 A.L.R.3d 146 (1968).

The presumption of sanity relieves the State of any affirmative duty to prove that the defendant was in fact sane and responsible for his actions until evidence to the contrary is produced and the presumption of sanity is rebutted. Alabama Code 1975, Section 15-16-2.

“(I)nasmuch as the law presumes sanity, that presumption, like that of innocence, should .prevail throughout the trial, until it is overcome. And whether the evidence of insanity arise out of the testimony which proves the homicide, or is shown aliunde, reason and analogy alike declare it insufficient, until it overcomes the presumption of sanity.”

Boswell v. State, 63 Ala. 307, 325, 35 Am.Rep. 20 (1880).

Although the presumption of sanity can be overcome or rebutted, the accused is not entitled to a directed verdict on the issue of insanity unless the evidence of insanity is clear, strong and undisputed. Boyle v. State, 229 Ala. 212, 222, 154 So. 575 (1934).

“But courts should be careful not to invade the province of the jury in cases of this character. Although the evidence may be offered only by the defense, and all tend to one conclusion, yet, in view of the presumption of sanity, if the evidence is inconclusive, and reasonable inferences may be drawn that the' act was that of a sane man as defined by law, the affirmative charge should be refused.” Boyle, 229 Ala. at 222, 154 So. 575.

This is because “the general proposition that most men are sane creates so strong a probability that the specific defendant is sane that the party asserting the contrary is required to carry the burden not only of producing evidence, but of persuading.” H. Weihofen, Mental Disorder As A Criminal Defense 315 (1954). The presumption of sanity prevails until the contrary is established to the reasonable satisfaction of the jury. Weihofen at 215. “(I)n view of the presumption of sanity, if the evidence (of insanity) is inconclusive, and reasonable inferences may be drawn that the act was that of a sane man as defined by law, the affirmative charge should be refused.” Boyle, 229 Ala. at 222, 154 So. 575.

In exceptional cases of insanity, the proof may be “so strong and undisputed that the jury should be instructed in like form.” Boyle, 229 Ala. at 223, 154 So. 575; Hocutt v. State, 344 So.2d 194 (Ala.Cr.App.1977); Smith v. Smith, 54 Ala.App. 237, 307 So.2d 47 (1975). “The jury ... cannot disregard an overwhelming mass of uncontradicted evidence of insanity on the part of the defendant and convict him on the legal presumption of sanity.” 30 Am.Jur.2d Evidence, Section 1161 (1967). These exceptional cases are few and on only five occasions have the appellate courts of this state found that the jury’s verdict was contrary to the overwhelming and conclusive evidence of insanity. In chronological order those cases are: Pickett v. State, 37 Ala. App. 410, 71 So.2d 102 (1953), cert. denied, 260 Ala. 699, 71 So.2d 107 (1954); Christian v. State, 351 So.2d 623 (Ala.1977); Herbert v. State, 357 So.2d 683 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978); Woods v. State, 364 So.2d 1178 (Ala.Cr.App.), cert. denied, 364 So.2d 1186 (Ala.1978); Sasser v. State, 387 So.2d 237 (Ala.Cr.App.), cert. denied, 387 So.2d 244 (Ala.1980). These cases represent the exception to the general rule that the issue of insanity is for the jury. “(A)lthough great weight must be given to a jury’s verdict after they have considered a plea of insanity, there is an exception where the proof of insanity is overwhelming and undisputed.” Graham v. State, 383 So.2d 892, 895 (Ala.Cr.App.), cert. denied, 383 So.2d 895 (Ala.1980).

In Pickett v. State, 37 Ala.App. 410, 71 So.2d 102 (1953), cert. denied, 260 Ala. 699, 71 So.2d 107 (1954), the testimony presented by law and expert witnesses led to “the necessary conclusion that this appellant is a congenial mental deficient.” 37 Ala.App. at 413, 71 So.2d 102.

“If this conviction be sustained, it can only be done on the bare assumption of sanity prevailing to every accused.

“The undisputed and substantial evidence as to this accused’s mental defectiveness must be deemed to have overcome this presumption.”

37 Ala.App. 415, 71 So.2d 102.

Testimony presented showed that Pickett was mentally defective and an imbecile before, at the time of, and after the commission of the offense.

In Christian v. State, 351 So.2d 623 (Ala.1977), the evidence also showed that Christian had a history of mental disorders prior to the homicide, including admission to Bryce Hospital on several occasions. Although the defense presented three psychiatrists who testified that Christian was insane at the time he committed the homicide, the State presented no expert testimony concerning Christian’s sanity. The only evidence which could arguably be used to rebut the evidence of insanity was the testimony of Christian’s sister.

“Her testimony in part was that in 1972 (Christian was indicted in October of 1972) a Bryce Hospital case worker told her and her mother that Christian was in good condition and that if he would take the medication prescribed for him he could live among normal people. Miss Williams also stated that her mother told her on one occasion that Christian had said he would kill her if she tried to put him back in Bryce Hospital.” Christian, 351 So.2d at 625.

The court found that “the overwhelming evidence presented by appellant has amply overcome the presumption of sanity as to this accused.” 351 So.2d at 625.

In Herbert, supra, this Court found that “(f)rom all the evidence we see no facts which would support a reasonable inference that the homicide was that of a sane man as defined by law.” 357 So.2d at 689.

“Finally, there was apparently nothing before the jury to rebut the great mass of testimony directly showing actual insanity before, at the time of, and after the act in question. In other words, there were simply no facts before the jury from which opposing inferences might have been rationally drawn. Here, the evidence of insanity is not merely strongly persuasive; it is conclusive.

“There was no evidence that the appellant was sane aside from the mere presumption of sanity.”

357 So.2d at 689.

In Woods v. State, 364 So.2d 1178 (Ala.Cr.App.), cert. denied, 364 So.2d 1186 (Ala.1978), this Court found, and the Supreme Court agreed, that “the preponderance and weight of the evidence in this case was sufficient to overcome the statutory presumption of sanity attending defendant.” 364 So.2d at 1187. Two psychiatrists testified that Woods was insane at the time he committed the murder. One psychiatrist was a member of the Forensic Board that evaluated Woods when he was sent to Bryce Hospital by the court for mental examination before his trial. The second psychiatrist was a consultant on the Forensic Board who examined Woods at the request of the court while Woods was at Bryce. Woods’ appointed attorney, who had withdrawn from representing Woods, also testified that Woods was insane.

In its case in chief the State introduced the testimony of the two arresting officers that they had observed “nothing unusual” about Woods or his appearance despite the fact that when they first saw Woods he was running down the road hollering that he was the one that had stabbed and killed the little girl.

On rebuttal, the State adduced testimony from two lay witnesses that Woods was sane. Melvin Hillman was a prisoner serving time in the county jail for possessing marijuana. He testified that he had known Woods for about one year and a half before the homicide. When asked if he had an opinion or judgment if Woods was sane or insane he answered, “I can’t be definite in saying yes I know.” On recall, Hillman testified that Woods “was very sane” at the time of the crime yet he admitted that he had seen Woods “act strange”, and that Woods had told him things he “wouldn’t believe” which Hillman described as “a fantasy.”

State’s witness Darlene McGuire initially testified that Woods was sane but when asked if she would think that Woods was insane if the story he had told her about “little girls messing around with white boys” was not true, McGuire replied, “I guess he was insane, I just don’t know.”

In finding that “the preponderance and weight of the evidence sustained the plea of insanity and was sufficient to overcome the statutory presumption of sanity”, this Court commented on the testimony of the State’s witnesses McGuire and Hillman.

“We are impressed that the testimony of the State’s lay witnesses was weak and inconclusive and certainly was not supported by any inference that they had any knowledge of the different types of insanity, the causes, or the symptoms that manifest the disease. They were just random witnesses whose knowledge of legal insanity was nil. However, the testimony of these witnesses was admissible for consideration of the jury.” 364 So.2d at 1186 (emphasis added).

In Sasser v. State, 387 So.2d 237 (Ala.Cr.App.), cert. denied, 387 So.2d 244 (Ala.1980), this Court held that “there is no evidence by which the testimony of two unimpeached and unimpeachable experts, to the effect that defendant was insane at the time of the alleged crime, may be disparaged.” 387 So.2d at 243. Apart from the bare statutory presumption of sanity, there was no evidence to support an inference of Sasser’s sanity. The undisputed and substantial evidence of insanity simply overcame the statutory presumption of sanity.

Where conflicting evidence is presented on the issue of insanity, the question should be submitted to the jury. Nichols v. State, 276 Ala. 209, 213, 160 So.2d 619 (1964). Although the sufficiency of the evidence is a question for the jury, whether or not there was any evidence to substantiate the plea of insanity is a question for the court. Knight v. State, 273 Ala. 480, 489, 142 So.2d 899 (1962); McKinnon v. State, 405 So.2d 78, 80 (Ala.Cr.App.1981). Where there is no evidence to establish the plea of insanity, the trial judge may take that issue from the jury. Griffin v. State, 284 Ala. 472, 225 So.2d 875 (1969); Walker v. State, 269 Ala. 555, 560, 114 So.2d 402 (1959); Miles v. State, 50 Ala.App. 70, 72, 277 So.2d 104, cert. denied, 291 Ala. 792, 277 So.2d 107 (1973).

In determining whether the evidence of insanity was overwhelming, a reviewing court must also consider and be guided by additional principles. Expert testimony is not conclusive on the jury and may be rejected even though it is without conflict. Christian, 351 So.2d at 624. The jury may reject expert testimony “in toto” and even if undisputed. Breen v. State, 53 Ala.App. 588, 595, 302 So.2d 562 (1974). See also, Hockenberry v. State, 246 Ala. 369, 371, 20 So.2d 533 (1945); George v. State, 240 Ala. 632, 637, 200 So. 602 (1941); Parrish v. State, 139 Ala. 16, 44, 36 So. 1012 (1903). “The jury may treat the testimony of experts as it deems best in connection with the facts and circumstances of the case.” Smith v. Smith, 254 Ala. 404, 411, 48 So.2d 546 (1950).

However, a jury may not arbitrarily reject or ignore expert testimony of insanity-

“The opinions of medical men, under a plea of insanity, are by no means binding on juries even when such experts have had ample opportunity to observe the character and phenomena of defendant’s disease; such opinions being admitted to be weighed with the other evidence; and, if the whole evidence does not clearly prove to the reasonable satisfaction of the jury that insanity (such as is recognized to excuse crime) existed at the time the act was done, the jury may find the defendant guilty (if the other facts warranted the verdict), although the medical witnesses were of the opinion that the prisoner was insane at the time of the commission of the offense.”

Anderson v. State, 209 Ala. 36, 40, 95 So. 171 (1923) (emphasis added).

See also McAllister v. State, 17 Ala. 434, 438, 52 Am.Dec. 180 (1850); Pickett, 37 Ala.App. at 414, 71 So.2d 102. “The jury is not bound to accept expert testimony if there is other legal evidence to support their verdict.” White v. State, 346 So.2d 22, 23 (Ala.Cr.App.), cert. denied, 346 So.2d 26 (Ala.1977). A jury’s verdict cannot be labeled arbitrary or patently erroneous if the jury had “ample facts from which to draw an inference that the accused was in fact sane” even if all the expert testimony was that he was insane. Bullard v. State, 408 So.2d 164, 167 (Ala.Cr.App.), cert. denied, Ex parte Bullard, 408 So.2d 167 (Ala.1982).

The testimony of experts “cannot be ignored any more than any other credible evidence in the case can be.” 23 C.J.S. Criminal Law, Section 891 (1961). “The opinions of expert witnesses as to insanity are not conclusive upon the jury; They are to be weighed like other evidence.” Parrish v. State, 139 Ala. 16, 44, 36 So. 1012 (1904). The jury must “weigh the expert evidence in connection with other evidence, indulging the presumption the law declares.” Boyle, 229 Ala. at 224, 154 So. 575. In summary, it may be stated:

“The weight of the opinion of a witness, whether a physician, expert, or layman, as to sanity, insanity, or other mental condition of another person is to be determined by the jury or other trier of facts in connection with the other evidence and all the facts and circumstances. While the opinion is not binding or conclusive, and it is not exclusive, so as to preclude the jury from considering evidence of acts and conduct, nevertheless the opinion of an expert is not to be arbitrarily disregarded.”
23 C.J.S. Criminal Law, Section 891 (1961).

When the accused has offered evidence sufficient to overcome the presumption of sanity, the State is not required to prove his sanity. Howard v. State, 172 Ala. 402, 408, 55 So. 255 (1911). Insanity is an affirmative defense which must be proven by the defendant to the reasonable satisfaction of the jury. The burden of proving insanity never shifts to the State but remains on the defendant throughout the trial. Grammer v. State, 289 Ala. 633, 196 So. 268 (1940). “(A) reasonable doubt of sanity, raised by all the evidence, does not authorize an acquittal.” Boswell, 63 Ala. at 326. “It would be an anomaly to require the State to prove a fact which the law presumes to exist, and to authorize such fact to be overturned by the injection into the case of a reasonable doubt of its existence. Such is not the law.” Maxwell v. State, 89 Ala. 150, 164, 7 So. 824 (1890). “Thus, where the whole evidence does not satisfy the minds of the jury that the accused is insane at the time of the commission of the crime with which he is charged, the jury should convict the defendant, notwithstanding that the medical witnesses were of the opinion that such person was insane.” 31 Am.Jur.2d Expert And Opinion Evidence, Section 186 (1967). The very manner in which the crime was planned, executed or concealed may indicate such a consciousness of guilt and awareness of criminality that the question of sanity was for the jury even though all the expert defense testimony concluded that the defendant was insane. Boyle, 229 Ala. at 224, 154 So. 575.

A review of all the evidence in this case reveals that the jury’s verdict was neither arbitrary nor based solely on the statutory presumption of sanity. There was evidence to support a finding that the defendant was legally responsible for the murder.

At trial, the evidence presented by the defendant consisted solely in the expert testimony of a clinical psychologist with the Huntsville-Madison County Mental Health Center 'and a staff psychiatrist with Bryce State Mental Hospital. Both experts testified that the defendant was a paranoid schizophrenic. The defendant had a history of mental illness. Their testimony authorized, but did not compel, a verdict of not guilty by reason of insanity.

Despite the strength and impressive nature of their testimony, there were also facts which authorized the reasonable inference that the defendant was sane. The victim was stabbed once in the back. Almost immediately after the stabbing the defendant “took off” and tried to flee when he spotted the police. “Hiding or attempting escape has been admitted as evidence of sufficient sanity to be conscious of guilt.” Weihofen at 315. “Plight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt.” 2 Wigmore, Evidence Section 276(4) (Chadbourn rev. 1979). Ordinarily, the issue of insanity is for the jury where the evidence discloses “conscious guilt” at the moment of the crime. Boyle, 229 Ala. at 224, 154 So. 575.

The defendant responded to and obeyed the commands of the arresting officer. After being taken into custody and placed in a patrol car, the defendant attempted to hide the murder weapon under the back seat. The psychologist testified that this indicated that the defendant was concerned with avoiding the legal consequence of his act, although “theoretically” the defendant could “still not recognize that his act was wrong.”

The arresting officer testified that the defendant was “unusually calm”, that he did not get irrational, that he was coherent and that he acted normal.

Approximately two hours after the murder, the defendant waived his Miranda rights. The experts testified that a knowing and intelligent waiver would have been possible despite the fact that the defendant did not know right from wrong and could not have conformed his conduct to the requirements of law at the time of the crime. The defendant was questioned by the police and his responses “were normal for a person under the stress that he would have been under at that time.”

There was an element of revenge in the murder. The defendant told the police that about a month before the killing the victim threw a package of cigarettes at him, cursed him and sold him gasoline that contained water. After that the victim’s spirit “took possession” of the defendant’s body. The defendant admitted stabbing and killing the victim as “the only way to get rid of the man’s spirit.” Statements of the accused shortly after the commission of the crime showing hostility toward the victim are properly admitted to allow the jury “to be enabled properly to characterize the act.” Kilpatrick v. State, 213 Ala. 358, 362, 104 So. 656 (1925).

The defendant told the psychologist that God told him to kill the victim and that he was protecting himself from harassment by the victim which took the form of rudeness.

The defendant’s conduct and demeanor immediately after the crime provided a reasonable inference of sanity. Although the experts testified that this conduct was not inconsistent with insanity, whether it was consistent or inconsistent presented a question for the jury. “(C)almness, indifference to results, consciousness of the moral or legal criminality of the act, with connectedness in the employment of the reasoning faculty, while not conclusive evidence of sufficient sanity to justify criminal punishment, are nevertheless strong circumstances tending to prove legal accountability.” Boswell, 63 Ala. 307, 320, 35 Am.Rep. 20 (1880).

In weighing the probative value of the expert testimony the jury was entitled to consider the facts that the psychologist interviewed the defendant four months after the crime for a total time of only forty-five minutes. Although all the symptoms were “very consistent with the diagnosis of paranoid schizophrenia”, the psychologist did not render a “formal diagnosis” because he needed to spend more time with the defendant and have more access to his history. The opportunity for study and observation of the person whose sanity is questioned are important factors the jury should consider in evaluating the weight to be accorded an expert’s opinion.

The psychiatrist’s opinion was formulated during three interviews beginning eleven months after the crime. His evaluation began with an initial interview of forty-five minutes and was followed by two other interviews of shorter durations which occurred after the defendant’s improvement through drug therapy. The psychiatrist recognized that the defendant was trying to “look sicker” than he actually was. “No defense, perhaps, is more easily simulated than this.” Boswell, 63 Ala. at 316.

The testimony of the defendant’s experts should be weighed by the jury in light of the fact that both examinations were made subsequent to the crime. Farley v. State, 34 Ala.App. 54, 60, 37 So.2d 434, cert. denied, 251 Ala. 391, 37 So.2d 440 (1948).

Upon a consideration of all the principles catalogued above and after a thorough review of the record, this Court affirms the judgment of the circuit court. “(T)he workings of a diseased mind are so variant, that it is difficult to lay down an absolute rule for the government of all eases. Each case must depend, more or less, on its own particular facts.” Boswell, 63 Ala. at 320. Compare Bowen v. State, 386 So.2d 489 (Ala.Cr.App.), cert. denied, 386 So.2d 492 (Ala.1980), with Woods, supra.

In view of the fact of the settled doctrines reflected in the authorities we have cited, we think that under the particular facts and circumstances of this case we have no right or authority to disturb the verdict of the jury. The fact that we might have reached a conclusion different from that of the jury had the case been presented to us for original decision “does not warrant a reversal of a cause in which a jury, exercising their solemn prerogative to determine the issues, has rendered a verdict which is supported by substantial evidence, and which verdict cannot rationally be said to be arbitrary.” Fitzhugh v. State, 35 Ala.App. 18, 26, 43 So.2d 831, cert. denied, 253 Ala. 246, 43 So.2d 839, cert. denied, 339 U.S. 986, 70 S.Ct. 1007, 94 L.Ed. 1388 (1950).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

The sixth case in Alabama in which the proof of insanity was so strong and undisputed that the verdict of guilty was contrary to the overwhelming and conclusive evidence of insanity is Smith v. State, 411 So.2d 839 (Ala.Cr.App.1981), cert. denied, Ala.1982. There this Court stated:

“For all that appears from the record, we can find no facts which would give rise to a reasonable inference to sustain the jury’s conclusion that appellant’s act was that of a sane man; hence the conviction could only prevail because of the rebut-table statutory presumption of sanity. Because we consider the appellant has conclusively overcome this presumption of sanity by the great preponderance of the evidence, the jury’s decision cannot stand.”

Smith, 411 So.2d at 843.

The evidence of Smith’s insanity from both experts and lay witnesses was undisputed and uncontradicted by the evidence presented by the State.

Unlike Smith, the evidence in the case before us was not so conclusive, strong and overwhelming that it mandated that the jury find that the defendant was insane at the time the crime was committed.

OPINION EXTENDED;

APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


text:
    Rodney Robert SPANN v. STATE.
    4 Div. 23.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Dec. 28, 1982.
    Certiorari Denied Feb. 25, 1983 Alabama Supreme Court 82-349.
    Steven K. Brackin of Lewis & Brackin, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant pleaded guilty to burglary second degree and theft of property first degree on September 15,1980. He received sentences of two years and three years, respectively, on the aforesaid pleas. Appellant made application for probation and on October 23, 1980, appellant was given a split sentence of twelve months in the penitentiary with credit for time served and four years’ probation.

On November 19, 1981, appellant was arrested for driving under the influence. At the time of appellant’s arrest, 4.57 grams of marijuana and methaqualone were found in his possession. Appellant was convicted by a jury for driving under the influence of controlled substances on March 18,1982, for which he received a sentence of twelve months. On March 19, 1982, appellant received written notice of a probation revocation hearing that would be held on March 24, 1982, to consider charges of (1) driving under the influence, and (2) possession of marijuana and amphetamines.

On March 24,1982, appellant moved for a continuance of the revocation hearing because an appeal had been filed by appellant on his conviction for DUI and due process requirements of total disclosure of the charges or the evidence that would be presented against the appellant had not been met. Said motion for continuance was denied by the court. The hearing proceeded and appellant’s probation was revoked. This appeal followed.

The appellant contends that the Circuit Court erred in revoking his probation without first granting the appellant a continuance to investigate the nonspecific charges of “driving under the influence” and “possession of marijuana and amphetamines.” The appellant claims that, by failing to grant the said continuance, the court denied him his minimal due process rights in that the non-specific notice of charges did not disclose what specific incidences such concerned or the evidence of same. Appellant further claims that such non-disclosure severely hampered his ability to refute the charges and evidence against him. Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

Certain requirements and guidelines must be met for minimum due process purposes before a person’s probation can be revoked. The Supreme Court of Alabama in Armstrong v. State, supra, set out the requirements which must be met for minimal due process to be accorded a probationer under the decision of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). They are:

“1. Written notice to the probationer of the claimed violations of probation.
2. Disclosure to the probationer of evidence against him or her.
3. Opportunity of probationer to be heard in person and to present witnesses and documentary evidence.
4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation).
5. A written statement by the judge as to the evidence relied on and reasons for revoking probation.
6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a revocation hearing. There appears to be no sound reason why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.)
7. We see no valid reason for having two hearings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the probationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance.
8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel.
9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960).”

Appellant relies on the first, second, and seventh requirements for this appeal; i.e. (1) that he was not given adequate written notice of the claimed violations of probation; (2) that no disclosure of the evidence against him was made; and (3) that lack of sufficient notice of the charges and evidence to be relied upon for revocation of probation has resulted in not allowing appellant sufficient time to prepare to refute the charges and evidence against him. Since appellant bases his appeal on these three assertions, the other requirements set out in Armstrong, supra, are not discussed.

Concerning appellant’s first argument as to his lack of adequate written notice of the claimed violations of probation, the record reflects that on March 19, 1982, appellant signed a probation violation notification form which indicated appellant violated the terms of his probation by driving under the influence and possession of marijuana and amphetamines. Appellant claims that such notice was vague as to the charges of his probation violation. At the hearing, the trial judge indicated that just the previous week appellant had been tried and convicted by a jury in his courtroom for driving under the influence of controlled substances. The record also indicates that the appellant had been indicted on the marijuana and amphetamine possession, but this case had riot yet come to trial. Such evidence indicates that appellant had sufficient written notice as to the charges of probation violation.

As to appellant’s charge that there was no disclosure of the evidence against him prior to the hearing of March 24, 1982, the record states that the week prior to the probation revocation hearing the appellant had been tried and convicted by a jury in the trial judge’s courtroom for driving under the influence of controlled substances. There, the evidence was presented against appellant and he had the opportunity to confront and cross-examine witnesses against him. Since the judge based the probation revocation on the DUI conviction that was returned in his own courtroom, the appellant had sufficient notice of the evidence that would be used against him.

Appellant’s third charge that lack of sufficient notice of the charges and evidence to be relied on for revocation of probation resulted in not allowing appellant sufficient time to prepare to refute the charges and evidence against him fails since appellant had adequate written notice of his probation violations and the evidence on which his probation revocation was based.

A careful review of the record reveals no reversible error, and judgment revoking probation is affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Cecil Oscar PETERSON v. STATE.
    4 Div. 997.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Dec. 28, 1982.
    Certiorari Denied Feb. 25, 1983 Alabama Supreme Court 82-361.

      L. Joel Collins of Smith, Smith & Collins, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Murder; life imprisonment.

The nude body of Bertha Mae Mayfield was found on a dirt road in Russell County, Alabama, around 11:30 A.M. on April 2, 1981. The cause of death was determined to be two deep stab wounds, one to the front of the neck and one to the front of the chest. The victim had also sustained injuries consistent with being run over by an automobile traveling at a slow speed while she lay on soft ground. The forensic pathologist who performed the autopsy stated that he believed all of these injuries occurred at approximately the same time.

During the investigation of this homicide, a gray, 1966 Mercury owned by Sammie Washington was impounded and searched. A white footie with blue trim was found beneath the back seat and a knife was found underneath the left side of the driver’s seat. No bloodstains or fingerprints were found on the knife. The tread design of one of the tires matched the tread design of at least two of the tire prints found near the victim’s body.

The victim had lived with her mother, Irene Wilkerson, at 820 Fifth Avenue, Columbus, Georgia. Also living at this residence were the victim’s three minor daughters; the victim’s sister, Dorothy Taylor; the sister’s son, Perry Taylor; and one Nathaniel Green. On the evening of April 1, 1981, and early on the morning of April 2, 1981, Columbus police officers twice responded to calls reporting fights resulting in injuries at the Wilkerson residence. Neither the appellant nor the victim was directly involved in these altercations.

Officer Henry Antoine answered the second call at approximately 2:30 A.M. He testified that he saw two females and perhaps four males when he arrived. He identified the females as the victim and her mother and one of the males as Nathaniel Green. Green was the injured party and he was later taken to the hospital. Officer Antoine testified that appellant resembled one of the males present, but that he could not positively state that appellant was present.

The State’s key witnesses were the victim’s two young daughters, Tracy and Sharon Johnson.

Tracy, who was ten years old at the time of the trial, testified that in early April, 1981, she was living at her grandmother’s house in Columbus, Georgia. She stated that her mother lived there at times and at other times lived at the appellant’s house.

Tracy testified that she and her sister, Sharon, were watching television in their grandmother’s room when the appellant came to the house to see the victim. Appellant and the victim went into the children’s bedroom and Tracy saw appellant choking the victim. The victim called for her mother (Irene Wilkerson). Mrs. Wilkerson “peeped her head in the door” and told appellant to “get up off of her.” Appellant got up and walked out of the room. The victim followed him and asked him not to leave.

The child heard, but did not see, appellant slap the victim, followed by a thud. She then heard her grandmother say to her aunt, “Dorothy, did you see how hard Cecil hit my baby?”

The appellant called Perry Taylor (the child’s cousin) in from the front porch and they carried the victim out to Sammie Washington’s car and placed her in the floor of the back seat. Tracy stated that she observed this from the living room window. She did not see the victim move or hear her say anything during this time. Appellant got in the driver’s seat, Taylor got in the back, and they drove away.

Tracy further testified that the victim was wearing bluejeans, a gray pullover sweatshirt, footies, and tennis shoes when appellant and Taylor carried her out. She identified the footie retrieved from under the back seat of Sammie Washington’s car as one her mother had worn that night.

The testimony of Sharon Johnson, the victim’s eleven-year-old daughter, was essentially the same. The trial testimony of both children was consistent with statements given to the police on April 7, 1981. However, both children had given prior inconsistent statements. In her first statement, Tracy said a black man named “C” came to the house with the victim. He threatened to kill the victim if she did not leave with him, but he left alone. He later returned, then left around 11:00 P.M. accompanied by the victim. Tracy said she did not hear them say anything. Her next statement essentially followed her trial testimony up to the point when her grandmother spoke to her aunt. She stated that her grandmother then said appellant put the victim over his shoulder and left.

Sharon’s first statement was to the effect that her mother left the house with a man named Walter Taylor. In a subsequent statement she said that Walter Taylor left alone and afterwards her mother was fighting with Nathaniel Green. (It is clear from the record that Green’s injury did not occur as a result of this fight.)

All the statements made by Tracy and Sharon were admitted into evidence at appellant’s trial and defense counsel questioned both children about their inconsistent versions of the night’s events.

After appellant’s trial and conviction, the district attorney learned that the children were saying that their grandmother stabbed their mother at the house in Columbus, Georgia. Assistant District Attorney Kenneth Davis, the prosecutor at appellant’s trial, went to Detroit, Michigan, where the children live with an aunt, and talked with them.

At the hearing on appellant’s motion for new trial, Davis testified that both children had told him that their grandmother stabbed their mother with a knife they referred to as a “Dutch.” In addition, Sharon recanted her trial testimony and said that although she saw appellant and Taylor at the house, she did not see them carry the victim out to Sammie Washington’s car. Davis stated that Sharon was very reluctant to say anything about her grandmother’s involvement and that he had, in fact, had a great deal of difficulty in persuading her to talk to him at all.

Tracy told Davis that her grandmother stabbed her mother, but maintained that she saw appellant and Taylor carry her mother out to the car and drive away. Further, she insisted that Sharon had seen this also. Davis taped his conversations with the children and these tapes were admitted into evidence at the hearing.

I

The sole issue on appeal is whether the trial court erred in denying appellant’s motion for new trial. Appellant maintains that he is entitled to a new trial based on the newly discovered evidence contained in the children’s statements that Irene Wilkerson stabbed Bertha Mae Mayfield.

In order for a new trial to be granted on the basis of newly discovered evidence, it is essential that the newly discovered evidence meet the following requirements: 1) the evidence will probably change the result if a new trial is granted, 2) the evidence has been discovered since the trial, 3) the evidence could not have been discovered before trial by the exercise of due diligence, 4) the evidence is material, and 5) the evidence is not merely cumulative or impeaching. Bland v. State, 390 So.2d 1098 (Ala.Cr. App.), cert. denied, 390 So.2d 1109 (Ala. 1980); Zuck v. State, 57 Ala.App. 15, 325 So.2d 531 (Ala.Crim.App.1975), cert. denied, 325 So.2d 539 (Ala.1976).

Facts within appellant’s knowledge at the time of trial, whether or not he has disclosed them to his attorney, are not “newly discovered evidence” entitling him to a new trial. Stemple v. State, 352 So.2d 33 (Ala.Cr.App.1977). This is consistent with the second and third requirements above. In this case, Tracy Johnson’s trial testimony and her subsequent statement to Assistant District Attorney Davis are unequivocal on one point: She saw appellant and Taylor carry her mother to Sammie Washington’s car, place her in the back seat and drive away. This evidence was known to appellant at the time of trial. If, in fact, Irene Wilkerson stabbed the victim before appellant placed her in the car, this should have been known to appellant at the time of trial. Even if this evidence qualified as newly discovered evidence, it is well established that:

“[although a new trial may be granted on grounds of newly discovered evidence which tends to prove that the crime for which the accused has been convicted was actually committed by another, the awarding of a new trial ‘rests in the sound discretion of the trial court, and depends largely on the credibility of the new evidence.’ Prince v. State, Ala.Cr.App., 356 So.2d 750, and the cases cited therein.
“Further, the decision of the trial court will not be disturbed unless an abuse of discretion can be shown. McBryar v. State, Ala.Cr.App., 368 So.2d 568; Page v. State, 57 Ala.App. 265, 327 So.2d 760.” Robinson v. State, 389 So.2d 144, (Ala.Cr. App.), cert. denied, 389 So.2d 151 (Ala.1980).

Assessing the credibility of evidence presented at a new trial hearing falls to the trial judge because he is in the best position to evaluate the new evidence in light of all that has gone before. See Zuck v. State, supra. The trial judge in this case was aware that Sharon and Tracy had made inconsistent statements prior to trial. He had the opportunity to observe the children’s demeanor while they testified at appellant’s trial. He had heard the medical testimony to the effect that the victim had sustained the stab wounds and the automobile related injuries at approximately the same time.

The fact that Sharon recanted her trial testimony is not in and of itself significant as “the courts, with their experience with witnesses, generally pay but little regard to the statements of the recanting witness, and only in extraordinary and unusual cases will a new trial be allowed because of the recanting statements.” Wallace v. State, 41 Ala.App. 65, 124 So.2d 110, cert. denied, 271 Ala. 701, 124 So.2d 115 (1960). We do not think that this is an extraordinary case in regard to the recanting statement of Sharon Johnson. While Sharon now says that she did not see the appellant and Taylor place her mother in the car, Tracy has maintained her trial testimony on this point. Moreover, Tracy insists that Sharon saw this also.

It is our opinion that there was no error or abuse of discretion on the part of the trial judge in denying appellant’s motion for new trial. Therefore, the judgment of conviction by the Russell Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.