author: BOWEN, Judge.

text:
    Donald J. SHEEHAN v. STATE.
    3 Div. 406.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-393.

      George E. Schaaf of Coleman, Ross, Carey, Goetz & Schaaf, Inc., Clayton, Mo., and Ira DeMent, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

This is an appeal from the denial of the defendant’s petition for writ of error coram nobis. Two major issues are presented on appeal.

On October 31, 1977, the defendant pled guilty to the offenses of robbery, kidnapping, rape, assault with intent to rob, and assault with intent to ravish. Although not a part of the record on this appeal, the record indicates that the defendant executed separate “Ireland” forms for each offense. Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971). A factual basis for accepting each plea was established through the admissions of the defendant. The trial judge fully informed the defendant of the constitutional rights that would be waived by the guilty plea, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and the minimum and maximum sentences of each crime. The record indicates that the guilty plea was knowingly and intelligently entered. The defendant was sentenced to consecutive terms of life imprisonment for the rape and robbery, to a term of ten years’ imprisonment to run concurrently with either life imprisonment term for the kidnapping, and to consecutive terms of twenty years’ imprisonment for the two assault offenses. The guilty plea was entered without any plea bargaining agreement between the State and the defendant. The State made no recommendations of sentences to the trial court. No original appeal was taken from the conviction.

I

The defendant now contends that his guilty pleas are invalid because he was not informed by the trial judge that the sentences imposed could run either concurrently or consecutively. Further, the defendant contends that he was denied effective assistance of counsel because his retained trial counsel did not inform him of the possibility of the imposition of consecutive sentences.

At the hearing on the petition for writ of error coram nobis, the defendant’s retained trial counsel, Frank W. Riggs, testified that he usually informed his clients of the possibility of consecutive or concurrent sentences although he did not remember specifically so informing the defendant.

“I’m telling you that I have no present recollection of a particular discussion of the matter. I’m telling you it would be my usual practice and I feel very certain that I followed my usual practice in this case of informing them that there was a — that the sentences could be consecutive or they could be concurrent.”

Mr. Riggs testified that he never told the defendant or any member of his family that the sentences would run concurrently even though the defendant’s mother had expressed her hope that they would.

The defendant’s sentencing hearing was held on the seventeenth of November 1977, 17 days after he pled guilty. After the judge had sentenced the defendant for each separate offense, the Assistant District Attorney asked the judge whether the sentences were consecutive or concurrent. After the judge explained his reasons for imposing the lengthy sentences, the following occurred:

“A MALE (never identified): Is there a difference in the life sentences that you imposed; consecutive or concurrent?
“THE COURT: The only difference that (it) will make is that it will tell them (the Board of Pardon and Parole) that I certainly think he (does not) needs to get out anywhere in the near future. That is my opinion.”

Neither upon his pleas of guilty nor at his sentencing hearing did the defendant ever indicate that he would not have pled guilty if he had known his sentences could be made to run consecutively.

The function of a writ of error coram nobis is to bring to the attention of the trial court an error of fact, unknown to it or the affected party at the time of trial which would have prevented the judgment challenged had it been known. In effect, the writ serves as a motion for a new trial on the ground of newly discovered evidence. Vaughn v. State, 395 So.2d 95 (Ala.1979); Seibert v. State, 343 So.2d 788 (Ala.1977); Lewis v. State, 367 So.2d 542 (Ala.Cr.App. 1978), cert. denied, 367 So.2d 547 (Ala.1979); Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979).

In a eoram nobis proceeding, the petitioner bears the burden of submitting clear, full, and satisfactory proof of facts which, had they been timely submitted at trial, would have prevented judgment. The degree of proof is highly exacting as to facts and must convince the trial judge of the truth of the allegations in the petition. Summers, 366 So.2d at 343.

The writ of error coram nobis does not serve the purpose of an appeal. It is not intended to provide appellate review where the complaining party has not sought such and the time for taking such has long since expired. Thomas v. State, 280 Ala. 109, 190 So.2d 542 (1966); Mayola v. State, 344 So.2d 818 (Ala.Cr.App.), cert. denied, 344 So.2d 822 (Ala.1977).

A.

The defendant relies heavily upon the following language of Cooper v. State, 47 Ala.App. 178, 252 So.2d 104, cert. denied, 287 Ala. 728, 252 So.2d 108 (1971).

“This appellant was not informed and it is not shown that he understood the three constitutional rights waived by his plea of guilty, and that he understood he waived those rights by such a plea. Such waiver is part of the consequences of a plea of guilty along with whatever punishment may be imposed. In other words, the punishment imposed within the limits allowed by law is not the only consequence of such a plea. A further consequence of the plea, under the proceedings in the instant case, was whether the sentence was to run consecutively or concurrently with another sentence.”

Cooper, 47 Ala.App. at 182, 252 So.2d 104.

Undeniably whether sentences are to run concurrently or consecutively is a consequence of pleading guilty. The question in this case is whether the accused must be informed that the sentences could be made to run concurrently or consecutively in accepting guilty pleas for multiple offenses in order for the pleas to be entered voluntarily and intelligently in a manner to fully satisfy the constitutional requirements of due process.

Boykin v. Alabama, supra, established that a guilty plea must be intelligently and voluntarily entered and that the record must affirmatively disclose that the accused entered his plea understandingly and voluntarily. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Boykin requires that in order for a guilty plea to be made intelligently and voluntarily, the record must affirmatively reveal that the accused voluntarily waived his privilege against compulsory self-incrimination, the right to trial by jury and the right to confront one’s accusers. Boykin, 395 U.S. at 243, 89 S.Ct. at 1712.

However, Boykin did not adopt a constitutional requirement that an accused be informed of a 11 the consequences of his guilty plea before the plea will be considered intelligently entered. For example, see United States v. Degand, 614 F.2d 176 (8th Cir. 1980), holding that the failure of the trial court to inform the defendant that any federal sentence imposed might not run concurrently with the state sentence the defendant was already serving at the time did not vitiate the guilty plea.

The defendant contends that the failure to advise an accused of the possibility of consecutive sentences does violence to the United States Supreme Court’s holding in Boykin, supra. The Supreme Court of Arizona has refuted this allegation. In State v. Young, 106 Ariz. 589, 480 P.2d 345 (1971), that court expressly held that the failure to advise of the possibility of consecutive sentences does not violate the principles enunciated in Boykin, supra.

“Although the trial judge has the discretion to order concurrent sentences for two offenses both of which are independent of each other in time and space, a defendant has no right to receive concurrent sentences. Further, we are unpersuaded by claims of ignorance with respect to matters clearly obvious to the everyday layman. Both offenses for which appellant stood charged occurred on separate occasions. The most basic logic and reflection make it apparent that separate offenses merit separate punishments. Only one experienced in the law of sentencing would be aware that the trial judge has the discretion to order concurrent sentences for separate crimes and such person, of course, would have no argument if he received consecutive sentences.
“It is clear that Boykin requires that the record indicate that defendants understand the consequences of their guilty pleas. However, this court is of the opinion that the real thrust of Boykin is that a defendant may not be permitted to give up constitutional rights unless he is aware of them and voluntarily waives them. A defendant has no constitutional right to receive concurrent sentences for two separate offenses whether the sentence is imposed pursuant to a plea of guilty or after a verdict of guilt is rendered by a jury. Even if Boykin requires that a defendant be aware of certain consequences of a guilty plea other than the giving up of constitutional rights, we are of the opinion that such a requirement would not apply to a consequence so obvious as separate punishments for separate crimes; a consequence of which the defendant must be presumed to be aware.”

Young, 480 P.2d at 346-7.

Followed in State v. Gordon, 610 P.2d 59 (Ariz.1980). Alabama Code 1975, Section 14-3-38 requires all sentences to run consecutively unless specifically stated by the trial court to run concurrently.

Following the decision announced in Young, supra, we conclude that the defendant’s pleas of guilty were not vitiated by the failure of the trial court to advise the defendant that the sentences might run consecutively.

In reaching this conclusion we note that the defendant had not entered into any plea bargaining agreement with the State. Although the defendant testified at the hearing that he would not have pled guilty had he known the sentences were going to be consecutive, there is no testimony that he thought he was going to receive concurrent sentences for his crimes. While these two beliefs are related, they are not the same. Additionally, we note that the mere expectations of the defendant would not be sufficient, in and of themselves, to invalidate his pleas of guilty: “Expectation of a lighter sentence or a disappointed hope for a lesser sentence is not enough (to allow the defendant to withdraw his plea or hold such involuntary). While defendant’s belief as to an anticipated sentence is necessarily subjective, the test to be applied is whether there is a reasonable basis in the guilty plea record for defendant to have had such a belief.” Beattie v. State, 603 S.W.2d 42, 45 (Mo.App.1980). See also Gill v. State, 380 So.2d 1008 (Ala.Cr.App.1980).

B.

Challenges based on the inadequate and ineffective assistance of counsel constitute grounds for coram nobis. Summers, 366 So.2d at 345. Counsel is presumed adequate and the fact that the petitioner was convicted does not establish incompetency or lack of zeal, especially when counsel has been retained (as in the instant case) rather than appointed. Summers, 366 So.2d at 341. See also Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964); Harris v. State, 367 So.2d 524 (Ala.Cr.App.), cert. denied, 367 So.2d 534 (Ala.1978); Willis v. State, 42 Ala.App. 85, 152 So.2d 883 (1963).

In order to successfully establish inadequate and ineffective representation of counsel, the defendant must show that the conduct of the attorney reduced the trial or other proceedings to a farce, sham, or mockery of justice. Goodman v. State, 387 So.2d 862 (Ala.Cr.App.), cert. denied, 387 So.2d 864 (Ala.1980); Robinson v. State, 361 So.2d 1172 (Ala.Cr.App.1978).

In McMann v. Richardson, 397. U.S. 759, 769-70, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970), the Supreme Court stated:

“(T)he decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant’s guilt? On those facts would evidence seized without a warrant be admissible? Would the trier of fact on those facts find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel’s answers, uncertain as they may be. Waiving trial entails the inherent risk that the goodfaith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts.
“That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant’s lawyer withstand retrospective examination in a post-conviction hearing.”

In Goodman, 387 So.2d at 864, this Court quoted with approval from MacKenna V. Ellis, 280 F.2d 592 (5th Cir. 1960):

“We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. We consider undivided loyalty ... to client as essential to due process.”

Even if we apply the standard of “reasonably effective” assistance of counsel recently adopted by the United States Court of Appeals for the Fifth Circuit, we find no violations of the defendant’s Sixth Amendment right to the effective assistance of counsel.

“Reasonably effective assistance is an easier standard to meet in the context of a guilty plea than in a trial, but counsel still must render competent service. See Tollett v. Henderson, 1973, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235. It is the lawyer’s duty to ascertain if the plea is entered voluntarily and knowingly. Lamb v. Beto, 5th Cir. 1970, 423 F.2d 85, 87, cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84. See Walker v. Caldwell, 5th Cir. 1973, 476 F.2d 213; Colson v. Smith, 5th Cir. 1971, 438 F.2d 1075; O’Neal v. Smith, 5th Cir. 1970, 431 F.2d 646. He must actually and substantially assist his client in deciding whether to plead guilty. Walker v. Caldwell, supra, 476 F.2d at 224. It is his job to provide the accused an ‘understanding of the law in relation to the facts.’ Id. at 218. The advice he gives need not be perfect, but it must be reasonably competent. Colson v. Smith, supra, 438 F.2d at 1081 n.5. His advice should permit the accused to make an informed and conscious choice. Id. at 1079. In other words, if the quality of counsel’s service falls below a certain minimum level, the client’s guilty plea cannot be knowing and voluntary because it will not represent an informed choice. And a lawyer who is not familiar with the facts and law relevant to his client’s case cannot meet that required minimal level.” Harris v. Oliver, 645 F.2d 327, 329 (5lh Cir. 1981).

The record before us does not establish the burden of proof necessary to sustain the defendant’s contention as to ineffective representation of counsel. Rather, if anything, it indicates that the defendant’s trial counsel exercised his professional judgment in a diligent and conscientious manner. The defendant made his choice among the alternatives open to him with effective assistance of counsel. Thus, the defendant’s contention on this ground is without merit.

II

The defendant also asserts that he was denied effective assistance of counsel because his trial attorney did not file a motion to suppress his confession, and motions to challenge the validity of the pretrial identification procedures.

At the defendant’s hearing on his petition Mr. Riggs stated that he was aware that the defendant had confessed to the crimes and did attempt to find some basis upon which to have the confession ruled inadmissible. He testified that the defendant “indicated to (him) that the confession had been freely given and that there’d been no coercion.” In addition, Mr. Riggs stated that he “made a determination that it was extremely doubtful that we could succeed in suppressing the confession ...” He felt that the State “had a very clear case against . . . (the defendant).” Mr. Riggs testified that he would have filed a motion to suppress the confession had it been induced by fraud or “subtle trickery” as the defendant now contends. He stated that he found “nothing to indicate that the lineup had been (in) any way involved in inducing the confession.”

Mr. Riggs testified that as defendant’s counsel his trial strategy was to attempt to establish a defense of insanity. In that regard he took several depositions and, after reviewing all his information, concluded that it would not sustain the burden necessary to establish the defense under Alabama law. Thus, he recommended a strategy of pleading guilty and seeking leniency on the sentences from the trial court. Consequently, he offered substantial evidence in mitigation of punishment at the sentencing hearing.

In Trammell v. State, 276 Ala. 689, 166 So.2d 417 (1964), our Supreme Court stated:

“Trial counsel must make many decisions of an almost infinite variety in the course of a criminal trial: whether to seek a change of venue; whether to advise a plea to a lesser offense; whether to object; whether to offer a witness of probable doubtful credibility or with a criminal record; whether to advise the defendant to take the stand and subject himself to cross examination; how to argue'the case to the jury; whether the jury be polled. All these and more are practical questions and very real ones. Bad judgment, or even good but erroneous judgment, may result in adverse effects. They are simple facts of trial; they are not justiciable issues in a proceeding of this kind.”

Even though it can be definitely shown that trial counsel has made a mistake unfavorable to his client, that alone is insufficient to establish inadequacy of representation. Lewis, supra; Robinson, supra.

In the instant case, the evidence does not establish that the conduct of the defendant’s trial counsel was inadequate and ineffective. The record evidences a diligent inquiry into several difficult issues by trial counsel who, based upon the information developed after conscientious investigation and in the exercise of his professional judgment, ascertained a reasonable course of action and strategy. In the exercise of his best judgment and with his client’s consent, trial counsel pursued a strategy which now is unpalatable to the defendant. This Court will not indulge in a “trial” of this cause and the several issues involved because the defendant, after having served approximately three and one-half years in prison, now wishes he had gone to trial on the several offenses. Merely because he received the maximum punishment in each case does not mean that he was represented by ineffective counsel. See Harris, supra.

“What is at stake in this phase of the case is not the integrity of the state convictions obtained on guilty pleas, but whether, years later, defendants must be permitted to withdraw their pleas, which were perfectly valid when made, and be given another choice between admitting their guilt and putting the State to its proof.”
McMann, 397 U.S. at page 773, 90 S.Ct. at page 1450.

We find a failure on the part of the defendant to carry his burden in overcoming the presumption of adequacy of counsel. Summers, supra; Echols, supra; Harris, supra; Willis, supra; Goodman, supra; Lewis, supra; Robinson, supra. Further, we find nothing in the record to indicate inadequacy of representation by trial counsel.

The judgment of the Circuit Court denying the petition for writ of error coram nobis is hereby affirmed.

AFFIRMED.

All Judges concur.

      . In a letter to Mr. Riggs, the defendant’s mother wrote: “Naturally, if this were possible, I would prefer to see the terms run concurrently with less time spent on the road gang.”


source: Caselaw Access Project

author: CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Willie James HALL v. STATE.
    6 Div. 433.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied April 2, 1982 Alabama Supreme Court 81-410.

      Arthur Parker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction of common law robbery and a sentence to imprisonment for forty years.

An issue is raised as to the sufficiency vel non of the evidence to support the jury verdict, which issue we first consider. In doing so, we summarize the material evidence bearing upon the issue. The defendant did not testify, and no witness was called to testify on behalf of defendant.

According to an abundance of undisputed evidence, including the testimony of Yvette Moore Campbell and a number of other witnesses, there was a robbery on the morning of October 5, 1979, at the West Oxmoor Branch of City National Bank of Birmingham by three black males, all wearing ski masks, and who were all of the same general height and weight: 5'7" and 140-160 pounds. After one of them shot and caused to fall to the floor Jack Berdaux, a customer of the bank, the robbers demanded of the head teller and the other tellers all of the currency they had. They succeeded in obtaining from them the sum of $32,410.00, placed the money in some plastic bags and left the bank with the money. They then entered an automobile they had parked at the bank a few minutes before the robbery, left hurriedly in the automobile and proceeded westerly toward the Ishkooda-Spaulding Road.

The summary of the evidence thus far is sufficient, we think, to establish the corpus delicti of the crime. However, no witness was able to identify the defendant as one of the robbers. The State relies entirely upon circumstantial evidence to establish such identity. We now summarize the substantial undisputed circumstantial evidence as to whether defendant was one of the robbers.

Ms. Patricia Aaron testified that on the morning of October 5, 1979, she drove an automobile to the Shel-Al Building, which is almost adjacent to the West Oxmoor Branch of the City National Bank of Birmingham and as she was getting out of her automobile to go into the Shel-Al Building she noticed an automobile pulling “into the little drive in front of the little foyer in front of the bank.” She said three people were in the other automobile who “had on ski masks and had sweaters and gloves on and one of them had a gun.” She testified further:

“Q. At this time what did these people with the ski masks do?
“A. The first one went inside the bank. The other two were kinda hesitant and then both went in.
“Q. Did you hear anything at this time?
“A. Yes, sir. I had gotten out of my car by this time to go into the Shel-Al Building and I heard two shots.
“Q. Two shots?
“A. Yes.
“Q. What did you do then?
“A. I went inside the building and went to the first office that was in the building and had them call the police.
“Q. How long in your judgment were you inside the building?
“A. Two to three minutes at the very most.
“Q. Did you come back outside the building?
“A. I came back to the foyer part of the building. It’s glass.
“Q. Approximately how far were you from City National Bank at that time, if you know?
“A. Maybe fifteen (15) feet.
“Q. Did you see anything happening over at City National Bank when you came back out?
“A. Yes, I did. The same three came back out and got in the car and drove away.
“Q. When they came back out and got in the car did you notice in which direction they left in?
“A. They were going toward where the cemetery was. Is it Ishkooda Road?
“Q. Toward Ishkooda Road?
“A. Right.”

The witness described the automobile in which the three persons with ski masks were traveling, in accordance with what she “thought at that time,” as a “late model Ford; blue.” She further described it as being “dark blue with kind of a tan Landau roof and tan trim” that “ran down the side of the side of the car.” She also said, “The car was clean and looked fairly new.” Notwithstanding Ms. Aaron’s description of the automobile of the robbers as a Ford, she testified that it was similar to the photographs of a Mercury Cougar depicted in State’s Exhibits C and D.

Clifton Moore testified that on October 5, 1979, while he was waiting on his front porch for a ride to take him to work at 10:30 a. m., he heard an automobile coming down Ishkooda Road. The automobile turned the corner and drove to the side of the Mason City Baptist Church, where it stopped. His testimony continued:

“Q. Did anybody get out?
“A. Three people.
“Q. Were they white males, white females, black males or black females?
“A. Well, I really couldn’t tell but they all looked like males. Black males.
“Q. What did they do when they got out of that car?
“A. They got into the Cadillac.
“Q. Got into the Cadillac? The Cadillac means something to you, but what do you mean the Cadillac? Where was the Cadillac?
“A. The Cadillac was parked on the side of the church. They pulled up in the other car. All of them jumped out. They grabbed the last one. He was pretty slow getting out. They got in the Cadillac and they cranked the Cadillac up.
“Q. How close were you to those individuals at that time?
“A. About 50 to 60 yards away.
“Q. Could you identify any of them?
“A. I didn’t get a real good look at them.
“Q. Could you tell whether they had masks on their face or were their faces clean or what?
“A. It didn’t look like they had masks on.
“Q. When they got in the Cadillac what happened?
“A. They started the car and they pulled out and they come down the road.
“Q. In which direction did they go?
“A. From the church to the right.
“Q. Was that back in the same direction they had come from?
“A. Opposite direction.”

The witness testified that the automobile in which the three men were riding as they drove up to the churchyard was “an almost brown, but not quite brown” Cougar. The witness further testified that some time the same day after he had gone to work Sergeant Smith came to the place the witness was working and took the witness to see an automobile, which the witness identified as the Cougar automobile that the three men had driven to the churchyard and left in the yard. He was shown State’s exhibits E, F, G and D, photographs of a Cougar, as to which he said, “That’s the car.” According to the witness, “about twelve days after the robbery” he went with Sergeant Smith and saw another automobile that he identified as the Cadillac automobile in which the three men left the Mason City Baptist Church. He testified that when the car stopped in which the three men were riding to the church on the morning of October 5, 1979:

“Two got out of the car. One was carrying a clear plastic bag with green flowers on it. Another one was carrying a clear plastic bag with red flowers on it. One of the guys had a white sack under his arm.”

Law enforcement authorities investigated the Mercury Cougar on October 5, 1979, soon after it was located in the churchyard. There was evidence that the Alabama tag on the automobile, number ASZ-954 was a replacement for a tag that was on the same automobile, as shown by the serial number or identification number of the mentioned Mercury Cougar, which was on the lot of Bart Starr on October 4, 1979, who then owned it.

Qualified personnel examined carefully on October 5, 1979, the interior and exterior of the Mercury Cougar, but they were unable to obtain any valuable fingerprints therefrom other than one fingerprint lifted from the back of the tag on the car, which Ms. Mary Anderson, a fingerprint technician with the Jefferson County Sheriff’s Department, compared with a known fingerprint of the defendant after he had been arrested on October 22, 1979. She said, “They are one and the same.”

There was evidence that a substantial amount of “bait money” was in the currency that was taken away from the bank by the robbers and that “bait money” serial number records were maintained by the bank. One record so maintained was of a ten-dollar bill numbered F-6-3-6-4-8-3-6-B. There was evidence that after defendant was arrested on October 22, 1979, and taken to jail a ten-dollar bill bearing the same serial number was found on or about his person.

The presence of a fingerprint of the defendant that had been lifted on October 5, 1979, from the back of the tag on the Mercury Cougar and defendant’s possession on October 22, 1979, of a roll of currency that included one of the ten-dollar bills that had been taken from the bank on October 5, 1979, when considered with the undisputed evidence as a whole, constituted, in our opinion, substantial evidence of defendant’s participation, as one of three men, in the alleged robbery. The verdict of the jury finding the defendant guilty is well supported by the evidence.

Appellant relies upon Ladd v. State, Ala.Cr.App., 363 So.2d 1017 (1978), in support of his contention that the establishment of a fingerprint of defendant on the back of the tag on the Mercury Cougar on October 5, 1979, was insufficient to show that defendant was one of the three men using the automobile that day in the perpetration of the robbery. In Ladd v. State, it was held that the presence of latent fingerprints lifted from the inside of the rear view mirror of an automobile that had been stolen that matched defendant’s patent fingerprints was insufficient to support a verdict finding him guilty of the purchase, receipt or concealment of the automobile. There are some similarities between Ladd, supra, and the instant case; there are material dissimilarities. In the cited case, the automobile was recovered “on the side of a public road” where it had been abandoned with its motor burned out. It could not be reasonably said that defendant fingered the inside of the rear view mirror of the automobile at any definite time or times during the twenty-four day period between the theft and the recovery of the automobile. In the instant case, it can with reason be said that the back of the tag had been fingered by the person whose fingerprint was found thereon within less than twenty-four hours prior to the robbery of the bank, either before, after or while it replaced a tag on the automobile while it was owned by and in the lot of Bart Starr. In the absence of any evidence to the contrary, it can be reasonably concluded that there was criminal linkage between the person or persons who switched the tags on the automobile and one or more of the three persons who robbed the bank. Nevertheless, it is not necessary for us to conclude that the fact that defendant’s fingerprint was found on the back of the tag soon after the robbery is in and of itself sufficient to uphold the jury’s verdict. It is only one of two greatly significant circumstances pointing toward defendant’s guilt, the other being the presence of one of the ten-dollar bills stolen from the bank on the person of the defendant at the time he was arrested. The infinitesimal chance that the coexistence of those two significant circumstances was merely coincidental forbids a reasonable reconciliation thereof with defendant’s innocence.

One of appellant’s contentions for a reversal is that the warrantless seizure of the mentioned ten-dollar bill “identified by serial number as bait money taken from the bank on October 5, 1979,” was unreasonable, in that, according to appellant, “the money was seized (A) after all normal arrest and booking procedures took place, without having a proper search warrant, and (B) the location of and surrender of the money was gained by Sergeant Walker without giving the proper Miranda warning prior to questioning the appellant.”

As to the (A) part of appellant’s contention as to the warrantless seizure of the ten-dollar bill that constituted a part of the “bait money,” the transcript shows that at the time of defendant’s arrest at his home on October 22,1979, Sergeant Charles Trucks of the Birmingham Police Department had received information from a confidential, reliable informant whose prior information had been proved to be correct and had resulted in many convictions. According to the testimony of Sergeant Trucks on voir dire out of the presence of the jury, the gist of the information was:

“That three black males, one being the defendant; one being Tony Williams; and another black male known only as Mike, had robbed two banks in the Birmingham area, one being the City National Bank on Oxmoor Road. Said informant gave me information with reference to the vehicle that was used, vehicles that were used on both bank robberies.
“Q. Go on and tell us what information he gave you concerning the City National Bank about the vehicles?
“A. He told me that the vehicle was a Mercury stolen from Bart Starr and he gave me the color of the vehicle.
“Q. What color did he give you?
“A. Brown over dark blue or navy blue. It was stolen from Bart Starr out in the Irondale area. That the get-away-car was a blue over white Cadillac. That the Cadillac could be found in the 1300 block and I have to look at my notes to give you the exact address on that.”

The transcript further shows that at the time Sergeant Trucks received the information from the confidential informant Sergeant Trucks was largely in charge of the investigation of the bank robbery and was cognizant of what the law enforcement authorities had learned about the robbers and their flight from the bank and the church where they exchanged automobiles. The witness was fully cognizant of the identity and description of the Mercury Cougar and of the established fact that the robbers exchanged it for a white Cadillac parked at the church. The informant gave Sergeant Trucks some additional corroborative information. Promptly after receipt of the information from the confidential informant, Sergeant Trucks directed Officer Robert Walker to go to the defendant’s address and arrest him, while Sergeant Trucks was in the process of going to the home of one of the other participants in the robbery, according to the information given Sergeant Trucks by the informant. In accordance with the direction given by Sergeant Trucks, Officer Walker proceeded to the home of defendant and arrested him. The evidence stated convinces us that Sergeant Trucks at that time had probable cause for directing the arrest of defendant and that there was probable cause for the arrest of the defendant by Officer Walker and Officer Mosley who accompanied him.

Notwithstanding some regrettable vagueness and ambiguity about the evidence as to the ten-dollar bill (State’s Exhibit J) which bore the serial number of some of the “bait money” taken from the bank at the time of the robbery, we are unable to agree with appellant’s contention that there was an unconstitutional seizure thereof by reason of the seizure being made “(A) after all normal arrest and booking procedures took place.” The evidence shows that at the time appellant was arrested at his home he was searched by the officers who “observed and replaced some money in his pocket” and as appellant states in his brief, the “Appellant asked if he could give the money to his mother.” The officer stated: “No, they would want it as evidence.”

Appellant concedes that the search of defendant at the time of his arrest was valid, as held in Abel v. United States, 362 U.S. 217, 239, 80 S.Ct. 683, 697, 4 L.Ed.2d 668, 683 (1960). The mentioned ten-dollar bill was not obtained by the officers until after the defendant had been taken to jail, searched by the warden and placed in a cell. During the course of his incarceration some currency was taken from him, or given by him to the warden or his assistants, and placed in the property room, but the appellant retained, without scrutiny by the authorities at the jail, some of the currency that he had with him at the time of his incarceration. It appears that while Officer Walker was in the process of arresting and transporting the defendant to jail, Sergeant Trucks was busily engaged in the apprehension and arrest of one of the other participants in the robbery, according to the informant. After Sergeant Trucks returned to the city hall subsequent to his mission in connection with the arrest of another participant in the robbery, he examined a size-able amount of currency he had recovered on his mission, looking at serial numbers thereon to compare with the record of the serial numbers of the “bait money.” Sometime after defendant was placed in a cell, Sergeant Trucks, as the officer in charge of the investigation, ordered Officer Walker to obtain appellant’s money. Officer Walker found some of the money in the property room and then went to appellant’s cell and questioned him about the rest of the money. Appellant told Officer Walker he had some money but that he had turned it over to another inmate. Officer Walker told the appellant to get it from that inmate, which he did, and handed it to Officer Walker. The money thus delivered to Officer Walker was found to contain the ten-dollar bill bearing the serial number of some of the “bait money.”

During the cross-examination of Officer Walker as to his patting down defendant at the time of his arrest, finding a roll of currency in defendant’s pocket but not taking possession of the roll or wad of currency, Officer Walker testified:

“Q. Why didn’t you take the money?
“A. The procedure would be to take it at the jail.
“Q. Who to take it?
“A. The warden who books him in.
“Q. Did you stay there to watch the warden take it?
“A. No, I did not.
“Q. Why?
“A. Because I had other things I needed to do.
“Q. But then you came back to get it, right?
“A. That’s correct.
“Q. Why didn’t you just get it while you were there?
“A. Because my supervisor sent me back to pick it up.
“Q. I know but why didn’t you get it when you had it to start with?
“A. Because I was gonna leave with the warden to take it up at the jail.
“Q. But you had it in your hand at one time didn’t you?
“A. That’s correct, I believe.
“Q. But then you are not saying that he pulled it out of his sock are you?
“A. No, I’m not.
“Q. Somebody else did?
“A. Mr. Juan White pulled it out of his socks.
“Q. He then handed it to Hall and handed it to you?
“A. He handed it to Mr. Hall and Mr. Hall handed it to me.”

In insisting that Officer Walker’s action in obtaining currency from the defendant after defendant had been placed in a cell, and after the defendant had gone through the “traditional” procedure of being searched by the warden and after defendant had in some way turned over some currency to another inmate of the jail, constituted an unconstitutional seizure, appellant argues that such “search ... cannot be sustained on good faith.” Although we find some confusion, some uncertainty and some conflict in the evidence as to the time and sequence of events beginning with the arrest of the defendant and the location of a ten-dollar bill with the same serial number as a ten-dollar bill that was in the “bait money,” we are unable to find any evidence of bad faith on the part of Officer Walker, Sergeant Trucks, the warden or any other person connected with the arrest and imprisonment of defendant. The failure of the warden and Officer Walker to become assured when defendant was being processed to be placed in a cell that the money on his person at the time was properly handled was by reason, according to the evidence, of pressure of other important matters to which Officer Walker had to attend that required his presence elsewhere while the defendant was being processed by the warden.

We also disagree with appellant’s contention 11(B) to the effect that there was an unconstitutional seizure of the ten-dollar bill identified as a part of the “bait money” because “the location of and surrender of the money was gained by Sergeant Walker without giving the proper Miranda warning prior to questioning the appellant.” We do not look upon the incident as one involving a confession or incriminating statement, which must be voluntary, understandingly and intelligently made, and which, to be admissible in evidence, must meet all the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It was an interrupted continuation of the processing of defendant from one who has been arrested for probable cause for a felony to one confined to jail. Although it was somewhat belated, it was still a part of that procedure. .In some way, which is not clearly shown by the transcript, part of the money that defendant had on his person when he was checked in at the jail was left in the property room but some of it was still on his person as he entered his cell. In some way, which is not clearly shown by the evidence, Officer Walker became aware of some discrepancy, or the probability of some discrepancy, and proceeded to obtain the rest of the money which should have been obtained, or a record thereof made, at the time defendant was taken to his cell.

It is to be noted also that as defendant was being transported from his home to the jail by Officer Walker and another officer, he was fully apprised by one of them of all of his Constitutional rights relative to his right to remain silent and to have an attorney without expense to him if he so desired before answering any questions and that as of that time at least all of the requirements of Miranda, supra, had been met. The transcript shows that at the time of defendant’s arrest Officer Walker made it known to him that he was arrested for a bank robbery. It can be assumed that defendant knew that his possession of a roll or wad of currency might have some incriminating effect, but it cannot be assumed that he had any idea or suspicion that any of the money was “bait money” as to which there was a record of the serial number or numbers thereof. We note the same voluntariness and readiness to turn the money over to the authorities after he had been placed in his cell as there was at the time of his being brought to the jail and at the time of his arrest. Instead of construing his action in obtaining and delivering to Officer Walker the money containing the ten-dollar bill that constituted a part of the “bait money” as an involuntary confession or incriminating statement or action on his part, we look upon it as entirely free and voluntary, especially so in that it appears that he was naturally anxious to remove any stigma against him by reason of his retention of some of the money that would normally have been deposited at the property room or a record thereof made as having been left with him as a prisoner.

To what we have said we should add that we are convinced that the effect of defendant’s being comprehensively apprised of his Constitutional rights as mandated by Miranda, supra, while being transported to the jail, continued until he gave Officer Walker the damaging. ten-dollar bill of the “bait money.” The governing principle is made clear by Judge Bowen in Jackson v. State, Ala.Cr.App., 387 So.2d 316, 317 (1980), as follows:

“ ‘Once the mandate of Miranda has been complied with at the threshold of questioning it is not necessary to repeat the warning at the beginning of each successive interview.’ Gibson v. State, 347 So.2d 576, 582 (Ala.Cr.App.1977). Here, there is not one single circumstance which would indicate that the warning should have been repeated. Love v. State, 372 So.2d 414 (Ala.Cr.App.1979).”

The only remaining contention of appellant is based upon action of the court as shown by the following part of the transcript at the beginning of the trial:

“MR. PARKER: We would object to Mr. McDonald being in the case and assign as grounds that he does not represent Yvette Moore or City National Bank and it would thereby be improper for a special prosecutor to appear without representing the victim or the victim’s employer.
“THE COURT: Overrule. There was a customer shot?
“MR. MCDONALD: Yes, sir. Jack Ber-daux.
“THE COURT: You represent Mr. Ber-daux?
“MR. MCDONALD: Yes, sir.
“MR. PARKER: As I understand it Mr. Berdaux is a witness listed on the indictment.
“THE COURT: As far as I am concerned he was more a victim of the robbery than the cashier from whom the money was taken.
“MR. PARKER: A witness is not entitled to have a special prosecutor. Also on the motion to produce ...”

Appellant commences his argument of this contention, as follows:

“The record in this cause fails to show that either the Honorable Earl C. Morgan, District Attorney for the Tenth Judicial Circuit of Alabama, or his deputy, the Honorable Harwell Davis, ever appointed Russell McDonald as a special prosecutor in the trial below.”

Appellant further says, “Appellant’s counsel has found no statutory law in support of appointment of a special prosecutor by a circuit judge under the facts of the instant appeal. . . . ”

In our opinion, the appearance by a qualified attorney, which Mr. McDonald is and was, does not require an appointment by any court, the District Attorney, or any of his assistants. Of course, the trial court would have the right, for good cause, to refuse to permit an attorney to appear as a special prosecutor in any case, but no effort was made to show any cause why Mr. McDonald, a former assistant district attorney, employed by Mr. Berdaux who had been shot by one of the robbers, should not appear and actively engage in the trial, which he did.

“The appearance of additional employed counsel to aid in the prosecution of criminal cases has always been recognized in this State as legitimate and proper. 6 Ala. Digest, page 511, Criminal Law, (key) 640.” Oliver v. State, 234 Ala. 460, 464, 175 So. 305 (1937).

We repeat and apply what was stated by Judge Tyson in Langley v. State, Ala.Cr.App., 383 So.2d 868, 872 (1980), cert. denied, 383 So.2d 873:

“The law in Alabama is clear that a special prosecutor may appear as an assistant to the prosecution with the consent of the court. Handley v. State, 214 Ala. 172, 106 So. 692 (1925), and authorities therein cited. Moreover, such special prosecutor need not show the authority under which he is employed or acting. Handley v. State, supra.”

The action of the trial court in not sustaining defendant’s objection to the appearance of Mr. McDonald as special prosecutor was free of error.

We have searched the record in vain for any error prejudicial to defendant. The judgment of the trial court 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. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.

      . The transcript shows as appearances for the State:
      “Harwell Davis, Esquire
      Deputy District Attorney
      “Russell McDonald, Esquire
      Attorney at Law
      Birmingham, Alabama
      Special Prosecutor”


author: BOOKOUT, Judge.

text:
    George Gerald SMITH v. STATE.
    6 Div. 593.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-408.

      H. Jadd Fawwal, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOOKOUT, Judge.

Murder; sentence: fifteen years’ imprisonment.

The fact that appellant shot and killed the victim is not an issue on appeal; hence it is unnecessary to detail the evidence here. Rather, the issue on appeal is whether the evidence at trial conclusively proved that the appellant, as a result of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Section 13A-3-1, Code of Ala. 1975. Therefore, we detail that evidence which tends to illustrate appellant’s mental state at the time the murder was committed.

Mrs. George W. Smith, Jr., appellant’s mother and the victim’s wife, testified that something awakened her during the night of May 9, 1980, around 11:50 p.m. She got out of bed and saw appellant standing in the hall outside her bedroom holding a gun. She asked appellant what he was doing. She was then struck in the stomach, apparently with a shot from the gun appellant held in his hand. She immediately closed the bedroom door and locked it. She telephoned the police, the paramedics and relatives. When she turned on the light, she discovered that her husband, with whom she had been sleeping, was dead, having been shot in the head. Mrs. Smith stated that because of the shock she remembered little else that occurred that night. She did remember opening the bedroom window and telling her brother-in-law, whom she had telephoned, not to enter the house because appellant was in the hall, possibly still armed.

Mrs. Smith stated that appellant is her only son and that he was forty-one years old. Only Mrs. Smith, her husband, and the appellant were staying in the house that night. Appellant had come to stay at their home on Tuesday, May 6, 1980, because he was ill and had been there continuously since that date. There had been no argument or disagreement between appellant and his parents during his stay. In Mrs. Smith’s words the three of them “were getting along real well.” Appellant had helped his father get his boat that day, and they had all gone to the cemetery to decorate the graves of appellant’s grandparents. Later, before Mrs. Smith retired to bed, she had taken ice to appellant’s bedroom because he had a fever and had told him to awaken her if he needed her. She testified that appellant resided with her at the time of the trial.

John Grainger, a patrolman with the Hueytown Police Department, said he answered a call at 3216 Crescent Drive in Hueytown on May 9, 1980. Upon arrival he observed Mrs. Smith standing at a window in the house shouting that she and her husband had been shot. He went to the window and saw the wounded couple in the bedroom. Mrs. Smith told him that her son was in the house and was armed. As Officer Grainger attempted to remove the window screen, the porch light came on and a bathrobe was waived out through the door. Appellant then said, “I’m coming out and I’m unarmed.” Appellant slowly exited the house in his pajamas with his hands up. Officer Grainger instructed appellant to lie down and then handcuffed him and placed him in the patrol car. Appellant was cooperative and told Grainger he was glad he had arrived. Patrolman Grainger was not questioned as to, nor did he have occasion at trial to relate, his impression of appellant’s sanity or behavior.

Michael Laughlin, a social acquaintance of appellant’s, testified that he had known appellant for twenty-five years, having attended high school and college together. Because they were both engineers, they had continuing and frequent social and business connections. He stated that appellant’s reputation for peace within the community was good.

Ann Benson, a friend of appellant’s family for thirty-five years, testified to appellant’s good reputation for peace and quietude. She further testified that she observed appellant on Friday, May 8, 1980, around 3:00 p. m. at his parent’s home. Appellant was unable to concentrate on their conversation and tried unsuccessfully for thirty minutes to put food in his mouth. Appellant’s father, mother, and cousin, Wayne Greer, were also present.

Haddie Mae Pinson, appellant’s aunt and the victim’s sister, stated that she talked by telephone to appellant on May 8, 1980. He told her there was a conspiracy going on and, in general, talked “crazy.” She saw appellant, his father and mother the following day and accompanied them to a cemetery. She said appellant did not look himself and did not make sense in his conversation.

Walter Wayne Greer, appellant’s cousin and a frequent hunting companion, went to visit appellant at his parent’s home on May 9, 1980, around 1:00 p. m. because appellant was sick. Greer testified that appellant was unable to relate to the conversation and spoke of “illusions” he was having. Appellant told Greer that when he turned on the faucet the water came out blue and that he could see television and other visions with his eyes closed. Appellant also stated he was watching a truck being loaded through a sliding glass door. When Greer looked through the same glass door, all that was visible was a six-foot redwood wall. Appellant also told his father and Greer that the motor on his father’s boat was “tore up.” When Mr. Smith and Greer went and looked at the motor, they found that nothing was wrong with it. Greer stated he knew that appellant drank, but he had never seen appellant drunk or out of control because of drinking. Greer did not smell any alcohol on appellant’s breath on the afternoon of May 9, nor did he see any sign of alcoholic beverages in the area. Because appellant was not acting normally that afternoon, it was Greer’s opinion that appellant appeared to be insane.

Dorothy Smith, appellant’s mother, was recalled and testified to the constant sobriety of her son during his stay in her home during the period in question. She stated that no alcoholic beverages were kept in her home. She also stated that appellant ate and slept very little during this period other than to doze infrequently and that he did not act like himself. His temperature, which she took daily, remained around 102° the entire time, and he was coughing and sneezing. Appellant became so ill that she and her husband took appellant to the emergency room at Lloyd Noland Hospital early the morning of May 8, 1980. The antibiotic and cough medicine prescribed at the emergency room were the only medicines or drugs she observed him take.

Although appellant and his father got along well, Mrs. Smith testified that her husband at one time had, at her urging, signed a warrant against appellant for trespassing. Appellant had been drinking and had entered his parent’s home in their absence without a key to obtain some clothes. This family incident had been resolved however and was not a source of strife. Appellant and her husband hunted, fished, and golfed together frequently.

Dr. Allen Edgar Scheele, a clinical psychologist employed with the University of Alabama School of Medicine, was called by appellant to testify. Dr. Scheele stated that his work was in large part diagnostic and included preparing evaluations of the psychological suitability of applicants for the Birmingham Police Department and the Jefferson County Sheriff’s Department. He stated that he interviewed appellant twice and appellant’s mother once. He also administered a Minnesota Multiphasic Personality Inventory Test to appellant: As a result of the interviews and testing, Dr. Scheele was able to draw a conclusion as to appellant’s mental condition at that time, although he did not make a formal diagnosis. He found that no major medical disorder existed at the time of the testing. However, based upon appellant’s medical history surrounding the time when he shot his father, Dr. Scheele testified that he believed that at the time the shooting occurred appellant was suffering from a psychosis caused by “brain damage — physical brain disease” resulting from alcohol withdrawal and fever from the pneumonia. He did not believe appellant could have appreciated the wrongful nature of his action or even known what he was doing. Dr. Scheele’s opinion was that at the time of the shooting' appellant lacked the capacity to be able to appreciate and perform the requirements of the law. He testified that appellant’s peaceful surrender was not out of character with his diagnosis, and such compliance was consistent with behavior to be expected from one in that condition. Dr. Scheele stated that organic brain syndrome is reversible and clears up, along with the psychosis, within a few days.

Dr. William M. Harris, Jr., testified that he treated appellant at the Lloyd Noland Hospital emergency room on May 8, 1980. In his opinion appellant had pneumonia of the left lobe. Appellant had a temperature of 101.5° and his pulse was rapid. X-rays taken of appellant also indicated pneumonia. Dr. Harris prescribed penicillin, decongestant, codeine, erythromycin, and Tylenol for appellant.

Dr. Samuel David Morrison, called by appellant, testified that he was a physician specializing in psychiatry. After examining appellant he concluded there was no evidence of any psychiatric disorder at the time of the interview. However, projecting back to the time of the shooting, Dr. Morrison stated that appellant was suffering from acute psychosis diagnosed as organic brain syndrome or delirium characterized by a total misperception of reality. Such a psychosis is not an uncommon state and may be associated with a change in physiology, such as an increased temperature. Appellant’s medical history also indicated that he was prone to this sort of reaction, having suffered withdrawal seizures after a bout of drinking in a previous year. In Dr. Morrison’s opinion, appellant was insane at the time of the shooting, not having possessed the substantial capacity to appreciate the wrongfulness of his conduct or to rationally conform his conduct to the requirements of the law. Dr. Morrison also stated that, given the facts of this particular case, he would not expect any disagreement among other psychiatrists as to the diagnosis of severe organic brain syndrome. The fact that appellant complied with the officer at the time he surrendered would be consistent with breaking through the delirium and typical of what one in a delirium would respond to.

Appellant took the stand to testify in his own behalf. He stated that he had been to college and had a degree in electrical engineering. He testified that he contacted his parents by telephone the week he became sick and then came to their home on Tuesday morning. His parents decided not to take him to the hospital at that time because he did not have medical insurance. On Wednesday evening his temperature was 103°, and they began to bathe him in ice packs. The next morning his parents took him to the hospital emergency room where the doctor diagnosed him as having pneumonia and gave him two shots of penicillin. He was also given prescriptions which his father filled on the way home. He recalled the hallucinations began Thursday and that he was unable to relate to those around him. Appellant stated he had quit drinking the Sunday before he went to his parents’ home because he had vomited blood and that he had not had anything to drink since that time. He did however drink before that time, consuming “a fifth or two” every week.

Appellant recalled the warrant signed by his father in 1979. He said he had been living with his parents and had a key to the house. However, a louvered door to the front porch was latched, and he had to break the louvers to gain access to the house because he was going out of town and wanted to get some clothes. He talked to his father about the incident, and his father dropped the charge and paid the costs. Appellant testified that he did not remember shooting his father or mother on May 9, 1980, and did not remember anything that occurred until about a week after that time.

The defense rested at the close of appellant’s testimony and moved unsuccessfully for a directed verdict and a judgment of acquittal. Appellant’s motion for new trial and/or acquittal was denied and this appeal followed.

Appellant contends that the trial court erred in denying his motion for new trial and/or judgment of acquittal based upon the jury’s arbitrary rejection of the great weight of evidence proving appellant’s insanity at the time of the shooting.

The criteria used for determining whether appellant has met the burden of proof in sustaining the defense of insanity is set forth in Herbert v. State, 357 So.2d 683 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978), 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.”

As Herbert points out, there is one exception to these general rules which may mandate a reversal of the jury decision to convict. Where the evidence of insanity is both overwhelming and uncontradicted, the jury should be instructed that the appellant has overcome the presumption of sanity.

In the instant case the evidence would have authorized the jury to find that appellant was insane at the time the shooting was committed. Indeed, the evidence of appellant’s insanity from both expert and lay witnesses was undisputed and uncontra-dicted by the evidence presented by the State. Yet, the jury may reject all expert testimony, even though it is without conflict. Sasser v. State, 387 So.2d 237 (Ala.Cr.App.), cert. denied, 387 So.2d 244 (Ala.1980).

“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 v. State, 229 Ala. 212, 222, 154 So. 575 (1934).

Therefore the question becomes whether the evidence presented was so conclusive, strong and overwhelming that it mandated that the jury find that appellant was insane at the time the crime was committed. We find that it was.

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 rebuttable statutory presumption of sanity. Because we consider that appellant has conclusively overcome this presumption of sanity by the great preponderance of the evidence, the jury’s decision cannot stand. Herbert, supra.

The conduct of appellant during the two days immediately preceding the shooting was undisputedly shown to be that of a physically sick man in a mental state of delirium caused by a medically diagnosed illness. While Officer Grainger testified that appellant was cooperative, he gave no testimony as to his opinion of appellant’s mental state. Expert testimony indicated appellant’s cooperation was consistent with delirium. Though the lay witnesses were friends and relatives of the appellant, we are also impressed that they were equally so related to the victim. Two experts testified, one a clinical psychologist and one a medical doctor specializing in psychiatry. The psychiatrist stated that under the particular medical facts and case history, there would be no disagreement among similar experts as to the medically diagnosed physical cause for appellant’s mental disorder. Both experts testified appellant’s conduct and physical condition indicated he was in a state of delirium caused by a very real physical impairment to his brain. And, finally, there were no facts before the jury to indicate a basis for any other reasonable inference for appellant’s act. There was no evidence of intoxication, anger, or any motivation for appellant’s senseless and tragic act.

The great preponderance of the evidence sustained the plea of insanity and was sufficient to rebut the State’s presumption of sanity. We therefore hold that the trial court erred in overruling appellant’s motion for new trial. Woods v. State, 364 So.2d 1178 (Ala.Cr.App.), cert. denied, 364 So.2d 1186 (Ala.1978).

REVERSED AND REMANDED.

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


text:
    Tyrone JELKS v. STATE.
    6 Div. 632.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-416.

      Tim W. Bice, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Jefferson County Circuit Court, Bessemer Division returned an indictment against the appellant, Tyrone Jelks, charging him with the offense of robbery in the third degree, a class c felony. He entered a plea of not guilty. A jury returned a verdict finding the appellant guilty of theft of property as charged in the indictment, and fixing the value of the stolen property at $26.00. After a sentencing hearing, the trial court found from evidence presented by the state and the appellant, that the appellant had two prior felony convictions, and sentenced the appellant to ten years in the penitentiary. The appellant appeals to this Court.

The appellant was represented at all proceedings in the trial court by counsel of his choice, and is represented in this Court by different counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief eight reasons why his conviction should be reversed because the trial court committed prejudicial error: (1) In not granting appellant’s timely motion to exclude, and in not allowing appellant to motion the court, out of the jury’s presence, relative to witness Stroud’s testimony concerning appellant’s photograph; (2) In overruling appellant’s timely objection to non-responsive answer, and overruling appellant’s timely motion to have answer excluded; (3) In failing to give appellant’s request for jury instruction six after the court marked said instruction given; (4) In overruling appellant’s motion to dismiss, and motion for a directed verdict on the basis that the state failed to prove a prima facie case of robbery, or other lesser included offense, to-wit: Theft, as charged in the indictment; (5) In allowing into evidence a statement given by the appellant to the police without appellant being given his constitutional rights after this incident shifted from the investigatory stage to accusatory stage; (6) In overruling appellant’s timely objection, and motion to exclude state’s question from the jury; (7) In not dismissing the charge against appellant on the plea of former jeopardy; and (8) In sentencing appellant under the statutes which enhanced punishment for habitual criminals and successive offenses.

State’s evidence tended to prove that on March 15, 1980 state’s witness Culpepper was working as a security agent in the J. C. Penny Store in Western Mall, in Fairfield, located in the Bessemer Division of Jefferson County, Alabama. That about 2:45 P. M. Culpepper saw the appellant leave the store, and later saw him re-enter the store. That about 3:30 P. M. Culpepper saw the appellant remove a shirt on a hanger from a rack of shirts in the store, and saw appellant take the shirt to another rack of dissimilar shirts, and lay the shirt into the rack of dissimilar shirts, and strip the shirt off its hanger, roll it up, clutch it with both hands, and walk into the blue jean section of that department of the store. In the blue jean section, appellant, with his back to Culpepper, pulled back some blue jeans on a rack, and stepped into the rack of blue jeans, and bent or stooped down, and started fondling with the waist part of his pants or body. At this time Culpepper could not see appellant’s hands. That after about fifteen seconds the appellant stood up, stepped away from the blue jeans, and started walking out of that department of the store. Witness Culpepper had been observing the appellant through a one-way window in a security room overlooking the men’s department, and when the appellant began to leave the department, Culpepper left the security room, checked the shirt rack where he had seen the appellant take the shirt from its hanger, found the hanger, walked to the blue jeans where appellant had stood, looked underneath the blue jeans to see if appellant had dropped the shirt there. That Culpepper did not find the shirt among the blue jeans. That the value of the shirt was $26.00.

State’s evidence further tended to prove that Culpepper summoned his assistant, and followed the appellant, and as they walked out into the parking lot another associate joined them, and when Culpepper and his associates went out the J. C. Penny door, the appellant was some ten or twelve feet ahead of them. The appellant was walking toward his car, and as Culpepper and his associates came up to the appellant, Culpep-per spoke to the appellant, and identified himself as J. C. Penny security agent, and asked the appellant to stop. The appellant ignored the request to stop, and replied that he didn’t have anything to talk to Culpep-per about. Culpepper and his associates then ran up behind the appellant in an attempt to question him, and the appellant turned around with a drawn knife, and threatened to cut anyone of the three security personnel who touched the appellant. When the appellant drew the knife, and threatened to cut anyone who touched him, the security guards, being unarmed, withdrew, but when appellant ran for his car, the security guards followed him, and arrived at appellant’s car at about the same time as the appellant. As the appellant was getting in on the driver’s side, Mr. Culpepper observed a shirt on the passenger side of the back seat of appellant’s car that looked the same color and description as the one Culpepper had seen appellant take from the hanger in the store and roll up. The appellant then drove away. One of the security guards took down the number of the car tag. That Culpepper followed the appellant, who drove to 5118 Avenue C. in Fairfield, and got out of the car, and entered the residence at that address.

State’s evidence further tended to prove that Culpepper then went to the Fairfield Police Department, and got Officer Stroud to go to 5118 Avenue C. in Fairfield, and knock on the door, and that there was no answer, and then Culpepper and Officer Stroud returned to the Fairfield Police Department. That when they arrived back at the Police Department, it had been about thirty or forty minutes after the time the appellant had drawn the knife on Culpepper and his associates in the parking lot at J. C. Penny’s Store, in about five minutes the appellant walked in. That on a computer check of the tag number the security guard had taken from the car as it left the parking lot at J. C. Penny’s Store, it was determined that the tag was issued to a person by the name of Jelks. That Officer Stroud immediately pulled from his files photographs of Mr. Tyrone Jelks, and showed them to Mr. Culpepper and his associate. Officer Stroud then arrested appellant on a warrant signed by Mr. Culpepper charging appellant with theft in the third degree, and menacing. The warrants were returnable to Fairfield Municipal Court. Both charges were later dismissed without a hearing on the request of Officer Stroud. The appellant was present at the Fairfield Municipal Court when the charges were dismissed, but he was not called before the Court.

The appellant’s evidence consisted of one witness, Mr. Culpepper, whose testimony was substantially the same as given on direct examination when first called by the state. The appellant did not testify.

The first error complained of by the appellant in his brief is that the trial court erred to his prejudice by not granting appellant’s timely motion to exclude, and in not allowing appellant to motion the court out of the jury’s presence relative to witness Stroud’s testimony concerning appellant’s photographs. We quote from the record, during the direct examination of state’s witness, Officer Stroud, by state’s counsel, Mr. Tucker.

“Q When you got back to police headquarters, what if anything did you and Mr. Culpepper do at that time?
“A We got back to police headquarters. The computer had given us a tag number showing the car registered to a person by the name of Jelks. I don’t know what the first name was. But it was registered to Jelks.
“So, I immediately pulled photographs of Mr. Tyrone Jelks and carried them back to the squad room for Mr. Culpep-per and Sams to look at.
“MR. ARMSTRONG: Judge, I object and move to exclude that. I would have a motion I would like to make outside the presence of the jury.
“THE COURT: Overruled.”

We have searched the record and do not find where the appellant assigned any grounds for his objection or motion. It has long been the law in this state that objections to the admission of evidence must be made at the time the evidence is offered, and must state the specific grounds so that the trial court may rule on the matter. Grounds of objection should not be raised for the first time on appeal. The appellant did not raise the issue of prejudice of the witness’ answer during the course of the trial. He raised the issue for the first time in his brief filed in this Court. We find no prejudicial error in the court’s ruling. Starling v. State, Ala.Cr.App., 398 So.2d 337, certiorari denied, Ala., 398 So.2d 342; Johnson v. State, Ala.Cr.App., 364 So.2d 1187, certiorari denied, Ala., 364 So.2d 1190; Slinker v. State, Ala.Cr.App., 344 So.2d 1264.

The second error complained of by the appellant in his brief is that the trial court erred to his prejudice by not allowing appellant’s motion to exclude an answer made by state’s witness, Mr. Culpepper, during appellant’s cross-examination. We quote from the record.

“Q And describe to the jury, exactly what he did? Exactly what his motions were? What his movements were? What your movements were?
“A He was already starting to get into a row of cars as we approached him. We were again — had cause to believe he had stolen something.
“MR. ARMSTRONG: Well I object, Judge. The only thing I can do is to move to exclude as being non-responsive. In other words, what he assumed would not be responsive to what the defendant did as far as body motions were concerned. Ask the Court to instruct the jury not to consider it.
“THE COURT: Overruled. Let’s proceed.”

The witness Culpepper had already testified, without objection, on direct examination by state’s counsel, to facts that clearly showed that he believed the appellant had stolen a shirt. That he had seen the appellant take a shirt off of a rack and hanger, and believed he was leaving the store with it, without paying for it. The refusal of the trial court to exclude Culpep-per’s statement, “We had cause to believe he had stolen something,” if error, was error without injury, because it appears that it had already been admitted to the jury without objection. Crenshaw v. State, 205 Ala. 256, 87 So. 328; Hayes v. State, Ala.Cr.App., 395 So.2d 127, certiorari denied, Ala., 395 So.2d 150.

The third error complained of by the appellant in his brief is that the trial court committed reversible error when it marked defendant’s requested, written charge number six given, and then failed to give it to the jury.

The record in this case shows that defendant’s requested, written charge number six is in words and figures, as follows:

“I charge you that if you believe from the evidence that the deceased made a sudden unprovoked murderous attack upon defendant, deceased at the time being armed with a deadly weapon and in the act of effectuating upon the defendant his murderous purpose, then, I charge you, the defendant was under no duty to retreat, but had the right to stand his ground and kill his assailant.
“/s/ Given Reynolds, Judge.”

If written jury instruction number six was given at the request of the appellant, he cannot complain of the error of the trial court in giving it because he requested it. One is not allowed to invite error and then complain of the error. Mack v. State, Ala.Cr.App., 348 So.2d 524; Day v. State, 199 Ala. 278, 74 So. 352; Burke v. State, 18 Ala.App. 152, 89 So. 162; Steele v. State, 19 Ala.App. 598, 99 So. 745. If appellant’s written, requested instruction number six was not, in fact, given to the jury, then it was properly refused because it is misleading, abstract, and confusing, and is not a proper instruction in a case of this kind. Mack v. State, supra; Traywick v. State, Ala.Cr.App., 378 So.2d 1196.

The fourth error complained of by the appellant in his brief is that the trial court erred to his prejudice when it overruled his motion to dismiss, and for a directed verdict on the basis that the state failed to prove a prima facie case. The jury verdict found the appellant guilty of theft of property as charged in the indictment, and fixed the value of the stolen property at $26.00. Theft of property in the second degree is a class c felony. Code Of Alabama, 1975, Sec. 13A-8-4(b). We hold that state’s evidence was sufficient to sustain the jury verdict of theft of property in the second degree, a class c felony. Code Of Alabama, 1975, Sec. 13A-8-4(e) provides that, “The theft of property which exceeds $25.00 in value, and which is taken from or in a building where said property is sold or stored, constitutes theft of property in the second degree.” Blakeney v. State, 31 Ala.App. 154, 13 So.2d 424, 244 Ala. 262, 13 So.2d 430; Martin, alias Walker v. State, Ala.Cr.App., 371 So.2d 460; Mauldin v. State, Aia.Cr.App., 376 So.2d 788, certiorari denied, Ala., 376 So.2d 793; Richardson v. State, Ala.Cr.App., 390 So.2d 1, Ala., 390 So.2d 4, Ala.Cr.App., 390 So.2d 6; Jones v. State, 55 Ala.App. 274, 314 So.2d 876.

The fifth error complained of by the appellant in his brief is that the trial court erred to his prejudice by allowing into evidence a statement given by the appellant to the police without appellant being given his constitutional rights after the incident shifted from the investigatory stage to the accusatory stage. Officer William R. Stroud, a police officer of the City of Fair-field, was a state witness, and during his direct examination by state’s counsel the following occurred:

“Q When you got back and saw this defendant there, what if anything did you do at that time?
“A Well, I was called to the front desk by the dispatcher. And once I got up there, Mr. Jelks walked over to me and told me — I don’t remember what the number was, but he said some white males attempted to mug him at J. C. Penny’s and that he had drew a knife on them.”

There was no objection, nor motion of any kind, made at the time to this testimony by the appellant. The record shows that Officer Stroud had not, either before or after this occurrence, asked the appellant a single question. The statement was a voluntary statement made by the appellant to the officer. A spontaneous statement, made by a defendant voluntarily to an officer, before any questions are asked by the officer, is admissible against the defendant even though he was not given a Miranda warning. Ervin v. State, Ala.Cr.App., 399 So.2d 894, certiorari denied, 399 So.2d 899; Terry v. State, Ala.Cr.App., 397 So.2d 217, certiorari denied, Ala., 397 So.2d 223; Sullivan v. State, Ala.Cr.App., 394 So.2d 76; Hammons v. State, Ala.Cr.App., 371 So.2d 986; Espy v. State, Ala.Cr.App., 365 So.2d 356.

The sixth error complained of by the appellant in his brief is that the trial court erred to his prejudice by overruling appellant’s timely objection, and move, to exclude state’s question from the jury. The question complained of was propounded during cross-examination by state’s counsel of Mr. Culpepper, who was called as a witness for the appellant, and is, as follows:

“Q And before this defendant came in the store and got this shirt, you had seen him earlier right before that time?
“A That is correct.
“MR. ARMSTRONG: Judge, I object to that and move to exclude that last question on the grounds that just invades the province of the jury, whether or not he got a shirt.
“MR. TUCKER: He testified he got a shirt.
“MR. ARMSTRONG: No, sir, he testified what he saw.
“THE COURT: Overruled. The jury heard the evidence.”

Mr. Culpepper had previously testified, without any objection, that the appellant was in the store, and got a shirt off a hanger, and rolled it up, and left the store. The appellant did not object to the question until after it was answered. We hold that the objection was not timely. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353. The same fact having been previously testified to by Culpepper, without objection from the appellant, it was not reversible error for the trial judge to overrule appellant’s objection. Rule 45 A. R. A. P.; Chambers v. State, Ala.Cr.App., 400 So.2d 436; Crenshaw v. State, 205 Ala. 256, 87 So. 328.

The seventh error complained of by the appellant in his brief is that the trial court erred to his prejudice in not dismissing the charge against appellant on the plea of former jeopardy. We have searched the record and find no plea of former jeopardy was ever filed in this cause. We find no evidence in support of such plea. A plea of former jeopardy must be in writing, and verified by oath, unless its truth appears by some matter of record, or other written evidence accompanying it. Further, in the absence of a plea of former jeopardy filed before or at the same time with a plea of not guilty, there is nothing for this Court to review. Code Of Alabama, 1975, Sec. 15-15-42; Hancock v. State, Ala.Cr.App., 368 So.2d 581, certiorari denied, Ala., 368 So.2d 587; Williams v. State, Ala.Cr.App., 348 So.2d 1113, certiorari denied, Ala., 348 So.2d 1116.

The eighth error complained of by the appellant in his brief is that the trial court erred to his prejudice in sentencing appellant under the state statutes which enhance punishment for habitual criminals and successive offenses. Appellant contends this act is actually an ex post facto law, that the punishment is unreasonable, and that the court did not find that appellant was represented by an attorney on the two prior convictions.

The appellant in this case was convicted for a class c felony. At the pre-sentencing hearing, that was conducted as required under the temporary rules of criminal procedure, the state proved that the appellant had been previously convicted of robbery, and of grand larceny, and was represented by Attorney Gary Weston on the charge of robbery, and by Attorney Lee Hayes on the charge of grand larceny. The appellant admitted that he had the two prior felony convictions. The trial court found that appellant having been convicted in this case of a class c felony, and at that time he had two prior felony convictions, sentenced the appellant to ten years in the penitentiary. Code Of Alabama, 1975, Sec. 13A-5-9(b) provides in all cases when it is shown that a criminal defendant has been previously convicted for any two felonies, and after such convictions has committed another felony, he must be punished, as follows: (1) On conviction of a class c felony, he must be punished for a class a felony. Code Of Alabama, 1975, Sec. 13A-5-6(a), (1) provides that sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations: (1) For a class a felony, for life or not more than ninety-nine years or less than ten years. The trial court did not err in sentencing the defendant to ten years. The contention by appellant that the statute under which the appellant was sentenced is an ex post facto law, that the sentence imposed is unreasonable, cannot be sustained because the appellate courts of this state have held otherwise. Ray v. State, Ala.Cr.App., 398 So.2d 774, certiorari denied, Ala., 398 So.2d 777; Holley v. State, Ala.Cr.App., 397 So.2d 211, certiorari denied, Ala., 397 So.2d 217; Thomas v. State, Ala.Cr.App., 395 So.2d 1105; Williams v. State, Ala.Cr.App., 393 So.2d 492.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.