text:
    Lonnie BARNES v. STATE.
    7 Div. 880.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied June 8, 1982.
    Joe G. Burnett, Clanton, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appellant was convicted of an assault in the second degree on a trial by jury on an indictment charging him with the intentional attempt to cause the death of Stinson Edward Vanderslice by shooting him with a pistol, which, according to Code of Alabama 1975, § 13A-^i-2(a), (d)(1), is a Class A felony. Another section, § 13A-6-20(a)(2), provides:

“A person commits the crime of assault in the second degree if:
“With intent to cause physical injury to another person, he causes physical injury to any person by means of a deadly weapon or a dangerous instrument; or ..."

The court charged, with the apparent approval of both parties, that the defendant could be found guilty of a lesser included offense, that assault in the second degree, as prescribed by § 13A-6-20(a)(2) is a lesser offense than the one expressly charged in the indictment, and that it was impliedly included therein.

The only issue raised on appeal is as to the action of the trial court in overruling defendant’s motion for a new trial.

The grounds of the motion for a new trial, when considered together, were to the effect that defendant and his attorney had ascertained since the trial that one of the witnesses for the State, who testified that she was an eyewitness to the incident forming the basis of the prosecution and that she saw defendant shoot the alleged victim, was not the person who she testified she was, the female companion of defendant, at the time and place of the alleged crime. She had testified that she was a close friend of the victim and was camping out with him and others at Beeswax Creek on the Coosa River and that she and the victim became husband and wife thereafter. There was evidence at the trial that there were many campers in the area and that the alleged victim, his female companion, and some of their adult companions had been drinking heavily on the night before the alleged crime and on the day thereof. There was also undisputed evidence that defendant and two male companions had been drinking heavily. The evidence was undisputed that the victim and one of the defendant’s companions were in a fight against each other just before the alleged crime occurred, which resulted in defendant’s said companion being sent to the hospital. The defendant testified that immediately thereafter he left the scene and went home and that he did not shoot the alleged victim. The evidence was undisputed that the alleged victim was shot four times by a pistol in the hand of a man and was sent to a hospital. There was no evidence identifying the man that shot the victim as any person other than defendant.

On the hearing of the motion for a new trial, both of said companions of the defendant on the day of the alleged crime and the defendant testified that the witness who testified as the then wife of the alleged victim was not the person who was with the defendant as his girl friend and companion on the night before and the day of the alleged crime. They were corroborated to some extent by another witness who was at the camp site on the same occasion as the others, in that he gave a different description of defendant’s female companion from the description given him of the female who testified.

On the hearing of the motion for a new trial, defendant testified in part upon interrogation by his attorney:

“Q. Well, you’ve heard what they testified to, here; now, I’m going to ask you, did you inform me, when Court was over or during Court there anything about that not being the same woman; did you tell me anything at that time?
“A. Yes, sir, I did.
“Q. Was it after Court was over?
“A. It was after she had testified, after Court was over, yes.
“Q. I mean, it was after the case had been completed; is that correct?
“A. Right.
“Q. That is when you told me about it?
“A. Yes, sir.”

On cross-examination, defendant testified in part:

“Q. Okay, now, when was the first time it became apparent to you in your mind that the same woman that was down there on the creek was not the one that was testifying in Court; when did you first realize that?
“A. After she had testified and after all the witnesses testified, they said, that is all the witnesses.
“Q. Now, wait a minute, was it after all the witnesses had testified or was it after she had testified?
“A. I guess, it was after she testified.
“Q. After she testified, you knew in your mind that wasn’t the same woman; is that right?
“A. Right.
“Q. And when was the first time you told anybody about it?
“A. After the case was over, I told Mr. Burnett about it.
“Q. Now was it after the jury came back and said you were guilty?
“A. I don’t know whether it was or not, it could have been.”

The State did not introduce any evidence on the hearing of the motion for a new trial. The following is the court’s ruling on the motion for a new trial:

“Hearing having been had on Defendant’s ‘Motion For A New Trial Or Rehearing’, and evidence having been taken, the Court finds that the Defendant Lonnie Barnes knew during the trial about the matter which is now the subject of his post-trial motion. It is the further finding of this Court, after hearing the evidence presented at trial as well as the evidence presented at the motion hearing, that a new trial is not warranted for the allegations contained in the motion, regardless of any consideration of the timeliness element involved.
“Wherefore, Defendant Lonnie Barnes’ Motion For A New Trial is denied.”

As to the “timeliness element involved” comment in the ruling, we are of the opinion that the reference could conceivably be to either the question of the “timeliness” of the claimed realization by defendant that the particular witness was a different person from whom she claimed to be and his communication of that information to his attorney or to the “timeliness” of the filing of the motion for a new trial, as to which there was an issue between the parties, but which we do not now need to consider. In Taylor v. State, 266 Ala. 618, 620, 97 So.2d 802 (1957) per Mr. Justice Goodwyn, with a citation of authorities, we are told the following five requirements for the establishment of a right to a new trial on the ground of newly discovered evidence:

“(1) That the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching.”

The claimed knowledge by defendant that the witness who said she was the victim’s female companion at the time of the alleged crime was not such female companion is the same claimed knowledge the defendant had during the trial of the case and therefore does not meet the requirement that the newly discovered evidence must have been discovered since the trial. Evidence is not “newly discovered” within the proper meaning of that term where the defendant had knowledge of it during the trial and does not divulge such knowledge to his attorney when he could have done so, as in the instant case, in time for its use by defendant in the presentation of his case. Sanders v. State, Ala.Cr.App., 392 So.2d 1280, 1284 (1981). Furthermore, we are not convinced that the claimed newly discovered evidence would “probably change the result if a new trial” were granted. In addition, the evidence is in the nature of impeaching as well as cumulative evidence. The whole matter was one addressed largely to the sound discretion of the trial court, which we cannot say was abused in the instant case. Lassiter v. State, 38 Ala.App. 287, 83 So.2d 365 (1955), cert. denied, 263 Ala. 618, 83 So.2d 369; Watson v. State, Ala.Cr.App., 389 So.2d 961 (1980); Hewitt v. State, Ala.Cr.App., 389 So.2d 157.

The court was not in error in overruling defendant’s motion for a new trial. A jury issue was presented as to the guilt of the defendant of the crime of which he was found guilty. There is no error in the record prejudicial to defendant, and 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.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Harold PINKARD v. STATE.
    8 Div. 518.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    On Return to Remand June 8, 1982.

      Dave Beuoy, Russellville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence based on a verdict finding defendant guilty of burglary in the second degree.

The position was taken by defendant on the trial and continues to be pressed by appellant that the prosecution was barred by Code of Alabama 1975, § 15-3-1, which provides:

“The prosecution of all felonies, except those specified in sections 15-3-3 and 15-3-5 [inapplicable as to this case], must be commenced within three years after the commission of the offense.”

Code § 15-3-7 provides:

“A prosecution may be commenced within the meaning of this chapter by finding an indictment, the issuing of a warrant or by binding over the offender.”

The alleged crime was committed in May 1976. The conviction was on an indictment which was returned on March 31, 1980, nearly four years after the commission of the alleged offense. However, a warrant, based on an affidavit of probable cause for belief that defendant had committed a burglary in the second degree, was issued for his arrest on October 5,1977, which, according to Code § 15-3-7, constituted the commencement of the prosecution for said burglary, which was described in said affidavit and in an indictment of defendant returned in March 1978 as the burglary of “a dwelling house, situated at Route 1, Phil Campbell, Alabama, the property of C. W. Hamilton.” What disposition was made of said indictment is not clearly shown, but the record shows without dispute that the burglary charge upon which the affidavit was made and warrant of arrest issued, upon which the first indictment was based and upon which the indictment on which defendant was tried, was incorrectly described in the affidavit and in the first indictment as the burglary of “a dwelling house, situated at Route 1, Phil Campbell, Alabama,” and that it was correctly described in the indictment on which defendant was tried as the burglary of “a dwelling house, situated at Route 1, Haleyville, Alabama.” The record further shows that such inaccuracy in the description of the dwelling house became known to the district attorney for the first time about six months before the return of the indictment upon which defendant was tried and convicted. There was also a difference between the second indictment and the first indictment and the affidavit upon which the warrant was issued in that the second indictment alleged that the dwelling house was “the property of C. W. Hamilton,” while it was alleged in the first indictment and the affidavit upon which the warrant was issued that the dwelling house was “the property of Mrs. C. W. Hamilton.”

The evidence shows that the dwelling house burglarized was the property of both Mr. and Mrs. C. W. Hamilton, that it was situated on Route 1, Haleyville, Alabama, and that at that point Route 1, Phil Campbell, Alabama, was about one mile therefrom. We take judicial knowledge of the fact that Phil Campbell, Alabama, is about ten or twelve miles northwest of Haleyville, Alabama.

One phase of the question as to the statute of limitations is to be determined by whether the burglary charged in the second indictment was the same burglary as the burglary charged in the affidavit upon which the warrant of arrest was issued. Notwithstanding the confusion and the foul-up that occurred, we have no difficulty in determining that they were the same. There is no contention or indication that either Mr. C. W. Hamilton or Mrs. C. W. Hamilton, or both, had more than one dwelling house at the time of the alleged burglary, and there is no semblance of any contention that either had another dwelling house on Route 1, Phil Campbell, Alabama.

Another phase of the problem requires studious consideration of Code of Alabama 1975, § 15-3-6, which provides:

“When an indictment is lost, mislaid or destroyed, when a judgment is arrested or an indictment quashed for any defect therein, for the reason that it was not found by a grand jury regularly organized, because it charged no offense or for any other cause or when the prosecution is dismissed because of a variance between the allegations of the indictment and the evidence and a new indictment is ordered to be preferred, the time elapsing between the preferring of the first charge or indictment and the subsequent indictment must be deducted from the time limited for the prosecution of the offense last charged.”

Although we have no doubt that the offense for which the warrant was issued was the same offense for which the first indictment was preferred and was the same offense for which the second indictment was preferred, a troublesome question is as to whether the prosecution of the second indictment was legally the same prosecution as the prosecution proceeding under the preceding indictment. To meet the test of sameness, there must have been action as to the first indictment that is required by Code of Alabama 1975, § 15-3-6, to permit a deduction from the period of the statute of limitations of “the time elapsing between the preferring of the first . .. indictment and the subsequent indictment.” We cannot determine that question by the record and transcript before us. The mere fact that the prosecution under the second indictment was for the same offense as the prosecution under the first indictment does not mean that there was only one prosecution. We need to know what happened to the first indictment. We are confident that whatever prosecution there was under the original warrant of arrest merged into the prosecution under the first indictment so that the prosecution thereunder became one continuous prosecution, but neither the record proper nor the transcript discloses a linkage between the two indictments required by § 15-3-6. The nearest approach to such a linkage is that which is stated in the State’s “motion to dismiss” the defendant’s “motion to quash the indictment,” as follows:

“On October 18, 1979, the District Attorney was advised by Mrs. C. W. Hamilton that the premises where the crime occurred were located at Route 1, Haley-ville, Alabama, and that Route 1, Phil Campbell, Alabama, actually comes within less than one mile of the premises. Therefore, a new indictment was returned by the March 1980 grand jury charging the defendant with second degree burglary of ‘a dwelling house, situated at Route 1, Haleyville, Alabama, the property of Mrs. C. W. Hamilton.’ Copies of relevant documents are attached hereto and made a part of this motion.”

A stipulation between the parties occurred just before the jury was selected to try the case, which is set forth in a colloquy among the trial judge, defendant and defendant’s attorney in pertinent part as follows:

“THE COURT: Now, you are Mr. Harold D. Pinkard?
“MR. PINKARD: Yes, sir.
“THE COURT: And you are here with your attorney?
“MR. PINKARD: Yes, sir.
“THE COURT: Now, your attorney and the District Attorney and myself have discussed the motion made by your attorney and listen to the statement I am going to make and if you don’t agree with it, say something. Now, comes the parties, the Defendant and the State and agree that all of the facts necessary for the determination of the Motion to Quash are reflected either in the Motion to Dismiss or the Motion to Quash and the parties stipulate as to the facts, as reflected by those two pleadings.
“MR. BEUOY: Yes sir.
“THE COURT: All right, now the Court denies the Motion to Quash the indictment.”

In Bube v. State, 76 Ala. 73 (1884) the judgment of conviction was for the crime of engaging in “the business of keeping a jenny-lind table, without a license,” for which defendant had been indicted after the expiration of the period of the applicable statute of limitations. The prosecution was able to convince the trial court that there should be excluded from the statutory period the time of a prosecution for the same offense, begun by affidavit and warrant in the Jefferson County Court, in which he was convicted and from which he appealed to the Circuit Court. The Circuit Court held that the County Court did not have jurisdiction to try the case and “made an order, that an indictment be preferred against the defendant for the same offense, and that he be recognized to answer an indictment should one be found.” At that time, Code of Alabama 1876 applied and Section 4820 thereof contained the same language as Code of Alabama 1975, § 15-3-6 quoted above. The Supreme Court of Alabama held in Bube v. State that the prosecution on which the conviction and appeal were based was not commenced within the statutory period. It said:

“The exception provided by the statute is the time which elapses ‘between the finding of the first and the subsequent indictment.’ The statutory exception applies, only, in such case, the subsequent indictment having been preferred under the provisions of one of sections 4816, 4817, 4818 and 4819. To hold that the facts stated in the record bring this case within the influence of section 4820, will be to imply an exception, restrictive of the operation of the statute of limitations, not found in the statute.—Harwell v. Steel, 17 Ala. 372.” Bube v. State, supra, at 76 Ala. 75.

In Presnal v. State, 23 Ala.App. 578, 129 So. 480 (1930), the appeal was from a conviction of manslaughter in the second degree on a trial on an indictment charging manslaughter in the first degree. The statute of limitations as to manslaughter in the second degree had run at the time of the return of the indictment, but the State contended that from the period of the statute should be excluded the period in which another indictment involving the same alleged conduct of the defendant that charged manslaughter in the second degree only had been pending, which indictment at the time of the trial was still pending. The court said at 129 So. at 482:

“The statutory exceptions provided in the foregoing section [Section 4935 of Code 1923 containing the same language as § 15-3-6 Code 1975] applies only in such cases when the subsequent indictment is preferred under the provisions of the section above quoted, and facts to take the prosecution out of bar must affirmatively appear. Bube v. State, 76 Ala. 73.
“The effort of the state to thus bring this prosecution within the statute was therefore abortive and of no avail.”

Without further light on the subject of whether the first indictment against defendant for the alleged robbery had been disposed of prior to the second indictment in a manner set forth in Code § 15-3-6, we cannot assuredly say whether the prosecution herein was barred by the statute of limitations.

Aside from the question whether defendant preserved his right to a review of the trial court’s action in refusing the two charges, Charge 8 and 10, we find that they should have been refused. Both deal with some evidence as to defendant’s intoxication at the time of the alleged crime. Charge 8 precludes a guilty verdict if the defendant “was so drunk as to be incapable of forming a felonious intent to steal or commit a felony.” Its incorrectness is to be found in the use of the adjective “felonious” before the words “intent to steal.” The requisite intent may consist of the intent to commit petit larceny, which is a misdemeanor, as well as the intent to commit any felony, including grand larceny.

Defendant’s requested Charge No. 10 which was hypothesized upon a belief by the jury was not hypothesized upon such belief from the evidence. Its refusal was not error. Barnett v. State, Ala.Cr.App., 389 So.2d 535, cert. denied 389 So.2d 536 (1980); Thompson v. State, Ala.Cr.App., 369 So.2d 50, 51, cert. denied, 369 So.2d 52 (1979).

Appellant’s only other insistence on error is without merit. It pertains to a written statement made by defendant, on November 25, 1977, relative to the alleged crime, in the presence of and to an investigating officer. It appears therein that the defendant stated that the alleged crime occurred on May 25, 1976, but the investigating officer made it clear that the date of May 25 was an alteration of the date of May 5 by the insertion of the digit “2” before “5.” It appears that the statement had been handled by several people, and there was no explanation for the alteration. However, there was no controversy between the parties as to the date the incident occurred. No harm could have conceivably resulted to the defendant by reason of the alteration. Appellant is correct in foreseeing danger of such an alteration and in warning against the possible injustice to litigants in the future, but there was no injustice done to this appellant in respect to the matter.

To enable us to determine whether the prosecution of this case was barred by the statute of limitations of three years, it must be remanded to the trial court with directions that a hearing be conducted, with due notice to the parties, for an ascertainment of the facts as to the disposition, if any, of the first indictment of the defendant for the crime involved and, if disposition thereof was made, all facts pertaining to the disposition that would have a material bearing upon whether it was a disposition that met the requirements of Code of Alabama 1975, § 15-3-6. In the conduct of such hearing, due regard shall be given to §§ 15-8-90, 15-8-91, 15-8-110, 15-8-130 and 15-8-131, Code 1975. Upon a return to the order of remandment with notice thereof to the parties, either party aggrieved thereby shall have fifteen days within which to file a brief to this Court and the opposing party will have ten days thereafter within which to file a reply brief.

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.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

LEIGH M. CLARK, Retired Circuit Judge.

The Return to Remand filed in this Court on May 3, 1982, contains a written statement signed by the attorneys for the respective parties on the trial of the case and accepted in open court by the trial judge, as shown by the order of the trial court of April 30, 1982, which states, inter alia, the following:

“10. That no action was taken in Case No. CC-78-71 [case based on the first indictment] until after Harold Pinkard was found guilty in Case No. CC-80-60 [the Circuit Court case number of the instant case], at which time the first pending case was dismissed;
“11. That a copy of the Docket Sheet of Case No. CC-78-71 is attached hereto, and made a part hereof.”

The copy of the docket sheet discloses that the following order was entered and signed by the trial judge on March 23, 1981:

“The District Attorney having advised the Court that the facts in this case are identical to the facts in Case # CC-80-60 wherein the defendant was tried and found guilty on March 16, 1981, now, therefore, upon motion of the State this case is hereby dismissed.”

The response to the order remanding the cause with directions is a sufficient answer to the question in our opinion before remandment as to whether any disposition of the first indictment “was a disposition that met the requirements of Code of Alabama 1975, § 15-3-6.” Clearly it was not, and we are not advised of any contention to the contrary. It necessarily follows that the judgment of the trial court herein should be reversed and a judgment here rendered quashing the indictment and discharging the defendant as to this case.

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

REVERSED AND RENDERED.

All the Judges concur.

      . The cited sections of Code 1876 contain the same language as that of Code of Alabama 1975, §§ 15-8-90, 15-8-91, 15-8-110 and 15-8-131, respectively.


author: BOWEN, Judge.

text:
    Kena George INGLE v. STATE.
    3 Div. 345.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.

      George Beck and Richard D. Shinbaum, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for buying, receiving or concealing stolen property. Sentence was three years’ imprisonment.

I

The defendant contends that the trial judge abused his discretion in allowing into evidence the transcribed testimony of Mrs. Irene LaSollee. The only objection raised to the admission of her testimony is that the State did not exercise due diligence in attempting to make the witness available. In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), it was held that “a witness is not ‘available’ for purposes of the foregoing exception to the (right of) confrontation requirement unless the prose-cutorial authorities have made a good-faith effort to obtain his presence at trial.”

At the time of trial, the witness was a resident of Chicago, Illinois. The assistant district attorney informed the trial judge that the witness refused to come to Alabama to testify.

“I talked to her husband on the phone, and he indicated she would not be coming. We had made plane reservations and the motel reservations, and that sort of thing. This information was given to me yesterday over the phone in a conversation that I had with Mr. LaSollee.”

A subpoena issued for Mrs. LaSollee was “returned not served”.

The trial judge noted:

“The Court has heard, as Mr. Shinbaum (defense counsel) points out, this witness on two prior occasions where she had to come down here from Illinois. And the Court, from what she said before, does judicially know she is out of the state, that she lives out of the state, that she lives out of the state and is permanently and indefinitely out of Alabama. The Court heard Mr. Shinbaum’s Cross Examination and will state for the Record that he has made a thorough Cross Examination and had opportunity to Cross Examine and did, in fact, Cross Examine her; that the Court from having heard the Witness twice does not feel like — and this Court has considered this thoroughly— and the Court is convinced from having observed Mrs. LaSollee from when she was here and observing her over all the trials that the Defendant will not in anyway at all be prejudiced in any way directly or indirectly by the State putting in this testimony. So I overrule your objection, and the testimony and the exhibits incident thereto will be admitted, if they were admitted before. Everything excluded will be at that time.”

The trial judge could properly take judicial knowledge of the fact that Mrs. LaSollee had testified at a prior trial that she was a resident of another state. Washington v. State, 274 Ala. 386, 148 So.2d 206 (1963).

The prosecutor cited to the trial judge and the defendant relies upon the case of Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978), in which this Court held:

“Because the prosecution did not utilize the provisions of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings or a writ of habeas corpus ad testifican-dum or by any other means show that the witness was unavailable to testify, we cannot characterize the State’s efforts to produce the witness as having been made with due diligence or in good faith. The mere fact that a witness is incarcerated in another state does not constitute legal ‘unavailability’ for purposes of the introduction of former testimony.” Anderson, 362 So.2d at 1302.

The general rule is found in the annotation at 3 A.L.R.4th 87, 220 (1981).

“The prosecution’s failure to utilize the Uniform Act to compel the attendance at the trial of a nonresident witness whose location was known, together with its failure to attempt to procure the witness’s voluntary return, has been held or stated to preclude the admission at the trial of testimony previously given by the witness.” (emphasis added)

Here, the State’s efforts to procure Mrs. LaSollee’s voluntary return were only minimal at best. We would have expected some evidence of the State’s attempts to persuade the witness to return after learning of her refusal. However, the sufficiency of the predicate for the introduction of testimony given by a witness at a previous trial is addressed to the trial court’s sound discretion. Washington v. State, 274 Ala. 386, 148 So.2d 206 (1963).

Even if we were to hold that the prosecu-torial authorities did not make a good-faith effort to obtain Mrs. LaSollee’s presence as required under Barber, supra, we cannot ignore the trial judge’s finding that “the Defendant will not in anyway at all be prejudiced in any way directly or indirectly by the State putting in this testimony.”

By reaching the conclusion that the defendant was not prejudiced by the admission of Mrs. LaSollee’s former testimony, we have not relegated our duty in any sense. The record reveals that Mrs. LaSol-lee testified at two prior proceedings against the defendant. On both occasions her testimony concerned the ownership and identification of the stolen automobile the defendant stands convicted of buying, receiving or concealing. On both occasions the defendant was represented by the same defense counsel — the very same who represented him at the trial now under review. On one of the former proceedings defense counsel thoroughly cross examined Mrs. La-Sollee. On the other he declined cross examination. Under these facts we find no reversible error in the admission of the testimony.

II

At trial, the defendant objected to the admission of a tape recorded conversation between Charles Barnes and Richard Ingle, the son of the defendant. Barnes had participated in the actual theft of the automobile and had sold the stolen vehicle to Richard Ingle. Ingle v. State, 400 So.2d 938 (Ala.Cr.App.1981). At the time of the conversation, Barnes was working as a police informant. The trial judge admitted the conversation between Barnes and Richard Ingle on authority of C. Gamble, McElroy’s Alabama Evidence, Sections 195.03(5) and (6) (3rd ed. 1977). Those sections provide:

“(5) Continuing conspiracy to suppress or fabricate evidence
“If the evidence warrants a finding of accused’s participation in a conspiracy to suppress or fabricate evidence of the crime after its commission, an act or statement of a co-conspirator in the accomplishment of this continuing conspiracy is admissible against the accused.1
“The decisions seem to imply that a destruction or concealment by a co-conspirator, after the crime, of an article connected with the crime is assumed to be within the scope of the conspiracy to commit the crime and, hence, admissible against the accused.2 Resort to such an assumption, however, is not necessary for the reason that, under the principle of traces, the state is entitled to prove what became of the article with the result that proof may be made of the co-conspirator’s concealment of the article and of his statements which both relate to and were made in the course of the concealment.3
“No assumption will be made, in the absence of warranting evidence, that a co-conspirator’s attempt after the crime, to silence a witness or induce him to testify falsely, was with the accused’s connivance, procurement or approval.4
“(6) Continuing conspiracy to divide the fruits of the crime
“If it is reasonably inferable from the evidence that the conspiracy embraced the disposition, or the division among the conspirators, of the fruits of the crime, an act or statement of a co-conspirator in furtherance of such disposition or division is admissible against the accused notwithstanding the fact that the statement also referred to an act committed in the execution of the crime.1 ”
(Footnotes and citations to authority omitted).

The objectionable statement attributed to the son of the defendant is:

“Richard: Everything. Well just like, look at my ol’ man. I mean shit, he’ll take somethin’ in a minute. You know, he wanted that car and he got cold feet, ’cause it was kind of local, you know.
“101 (Charles Barnes): Uh huh.
“Richard: But he still wanted it, he still, you know, the old man, he probably still thinks of one, he wants one.
“101: What’d you ever do with that car?
“Richard: Uh, I pushed it off over yonder. I got his money back out of it. Didn’t make nothin’ off of it.”

The “car” was reference to the stolen automobile which the defendant is charged with buying, receiving or concealing.

The above statements by Richard Ingle obviously constitute nothing more than an admission or narrative statement of past events. They constitute nothing more than a portion of a conversation among thieves discussing crimes they have committed in the past and crimes they are planning or would like to commit in the future. These statements do not relate to and were not made in the course of the concealment of stolen property or in furtherance of any conspiracy. The cases cited as authority in McElroy do not involve a narration of past events. Dailey v. State, 233 Ala. 384, 171 So. 729; Pynes v. State, 207 Ala. 395, 92 So. 663 (1922); Cameron v. State, 49 Ala.App. 482, 273 So.2d 242 (1972), cert. denied, 290 Ala. 363, 273 So.2d 248 (1973), involve weapons taken from the deceased or used in the crime which witnesses had seen the defendant dispose of or hide.

The rule is stated in 22A C.J.S. Criminal Law, Section 767 (1961):

“Narrative statements of past events, made after the termination of a conspiracy, are inadmissible against a co-conspirator. Such narratives are rejected as hearsay.”

The cases supporting this principle are too numerous to list in this opinion. 22A C.J.S. Criminal Law, Section 767, nn. 18 and 19.

This is merely an application of the general rule that

“subject to certain exceptions, incriminating, inculpatory, extrajudicial declarations of a co-conspirator made in the absence of or without the knowledge of the accused, after the conspiracy has come to an end through withdrawal or arrest of the participants, or termination of the plan in success or failure, are inadmissible in evidence in a criminal trial to prove the guilt of one other than the declar-ant.” Anno. 4 A.L.R.3d 671, 678 (1965).

The narrative in issue here falls under none of the exceptions to the rule of inadmissibility. Williams v. State, 383 So.2d 547 (Ala.Cr.App.1979), affirmed, 383 So.2d 564 (Ala.1980); Cox v. State, 367 So.2d 535 (Ala.Cr.App.1978), cert. denied, 367 So.2d 542 (Ala.1979); 4 A.L.R.3d, Section 14-20.

The objected to comments of Richard In-gle were statements as to past acts and transactions not made in furtherance of any aspect of the conspiracy. Hence, they were patently inadmissible, constituted gross and highly prejudicial hearsay, and their admission is reversible error. Delaney v. State, 204 Ala. 685, 87 So. 183 (1920); James v. State, 115 Ala. 83, 22 So. 565 (1897); Everage v. State, 113 Ala. 102, 21 So. 404 (1897); Gore v. State, 58 Ala. 391 (1877); Guntharp v. State, 54 Ala.App. 363, 308 So.2d 722, cert. quashed, 293 Ala. 756, 308 So.2d 728 (1974); Connelly v. State, 30 Ala.App. 91, 1 So.2d 606 (1941); Macon v. State, 30 Ala.App. 276, 4 So.2d 439, cert. denied, 241 Ala. 675, 4 So.2d 442 (1941); Morris v. State, 25 Ala.App. 494, 149 So. 359 (1933).

Although the issue was not raised at trial, before the declarations of a co-conspirator are admitted against the defendant, there must be evidence of a conspiracy. Langham v. State, 243 Ala. 564, 11 So.2d 131 (1943). This proof of the existence of the conspiracy must be independent of the statements of the defendant’s co-conspirators. United States v. Hodges, 606 F.2d 520 (5th Cir.), cert. denied, 444 U.S. 1035, 100 S.Ct. 708, 62 L.Ed.2d 671 (1979); Collins v. State, 137 Ala. 50, 34 So. 403 (1903). The initial existence of a conspiracy may not be proved by the statements of the co-conspirators. DeBardeleben v. State, 16 Ala.App. 367, 77 So. 979, cert. denied, 201 Ala. 523, 78 So. 877 (1918).

Ill

On cross examination of State’s witness Charles Barnes, defense counsel attempted to show Barnes’ bias and interest in testifying against the defendant by questioning him about his arrests and whether or not he was a fugitive from justice. The trial judge limited the defense counsel’s efforts to showing that Barnes was a fugitive but would not allow inquiry into the specific charges for which Barnes had been arrested but not convicted.

The rule is found in McElroy, Section 149.01(2):

“The trial court ordinarily has discretionary power to allow or disallow proof of specific facts which tend to show the witness’ bias or the extent thereof. However, where the witness’ testimony is importantly adverse to the party against whom he is called, the trial court has very little discretion, if any, to disallow proof of an important fact indicating bias.”

Barnes was acting as a police informer after he had been arrested in Jefferson County for murder. Apparently, the fact that Barnes was a fugitive from justice involved this charge. The crime for which Barnes had been arrested was an important factor in showing the degree and extent of his interest and bias. Patton v. State, 197 Ala. 180, 72 So. 401 (1916); Snyder v. State, 145 Ala. 33, 40 So. 978 (1906).

“The bias of a State’s witness in favor of the State or against the accused may be shown by evidence of statements, acts, relationships or charges of crime that would reasonably give rise to an inference that the witness is biased.” McElroy, Section 149.-01(10). The defendant should have been allowed to show the crime for which Barnes had been arrested under the same principle which allows the interest or bias on the part of a witness to be shown by showing not only that he contributed to a fund for the prosecution of the defendant but the amount contributed as well. Dickey v. State, 15 Ala.App. 135, 140, 72 So. 608 (1916). See also Davidson v. State, 19 Ala.App. 77, 78, 95 So. 54 (1923) (“The defendant was entitled to know the extent of the witness’ interest in the prosecution, as evidenced by the amount of money he was willing to pay towards the prosecution.”); Tyson v. State, 29 Ala.App. 220, 194 So. 699 (1940); Williams v. State, 21 Ala.App. 227, 107 So. 37 (1926) (Refusal of cross examination as to how much brother of assaulted party paid counsel to assist prosecution held reversible error). Defense counsel had a right to show not only the interest or bias of the witness but the extent of that prejudice. Brogden v. State, 33 Ala.App. 132, 31 So.2d 144, cert. denied, 249 Ala. 348, 31 So.2d 146 (1947); Weaver v. State, 17 Ala.App. 506, 86 So. 179 (1920) (Competent to show that sheriff got $50.00 reward for conviction).

Our review convinces us that the trial judge unduly restricted defendant’s cross examination of the prosecution’s key witness, and consequently abridged his Sixth Amendment right to confront witnesses, in permitting cross examination only as to the fact that the witness was a fugitive from justice and not to the facts that the witness had been arrested and the particular crimes charged. United States v. Barrentine, 591 F.2d 1069, 1081 (5th Cir. 1979).

For the reasons stated, the judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: TYSON, Judge.

text:
    Harry PEOPLES v. STATE.
    3 Div. 420.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Donald R. Harrison, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

The appellant was indicted and convicted for the murder of Plemmie Mae Mangum by shooting her with a pistol in violation of Ala.Code § 13A-6-2 (Supp.1977). The trial court fixed his punishment at twenty years in the State penitentiary.

I

Appellant contends for the first time on this appeal that the evidence was insufficient to support a conviction. There was no motion to exclude the evidence, no request for the affirmative charge, and no motion for a new trial. Under a long line of cases, the sufficiency of the evidence is not subject to review unless challenged by one of those procedures in the trial court. Lewis v. State, 372 So.2d 882, 884-885 (Ala.Cr.App.) cert. denied, 372 So.2d 885 (Ala.1979) and cases cited therein.

II

Appellant also contends for the first time on appeal that the admission of the murder weapon was improper because the State did not prove chain of custody. Again, there is no merit to this contention. The pistol was admitted without objection. Thus nothing was preserved for review. Brown v. State, 392 So.2d 1248, 1260 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981).

III

Appellant admitted when he took the witness stand in his own behalf that he had two prior felony convictions, one for grand larceny for which he received twenty months’ imprisonment and another for a drug charge involving heroin for which he received seven years’ imprisonment. Ala. Code § 13A-5-9(b)(3) (Supp.1981) mandates that in all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and then is convicted of a Class “A” felony, “he must be punished by imprisonment for life or for any term of not less than 99 years.” Once a defendant admits prior felony convictions they are proved for purposes of the Habitual Offender Act. See, Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981); Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.) cert. denied, 406 So.2d 1053 (Ala.1981).

In Motley v. State, 409 So.2d 945 (Ala.Cr.App.1981) this court held that narcotics convictions under § 20-2-70, Code of Alabama, shall be considered as class “C” felonies for the purposes of applying the Alabama Habitual Felony Offender Act. Section 13A-5-4, Code of Alabama (amended 1977).

We affirm the guilt phase of the trial. However, because of the failure to apply the Habitual Felony Offender Act, we remand this cause with directions to the trial court to conduct another sentencing hearing applying said act. The State of Alabama should, a reasonable time prior to the sentencing hearing, notify the appellant of the prior convictions under which the State plans to proceed, although for all practical purposes the appellant is aware of such prior convictions.

All parties should be present, with counsel, and any evidence offered shall be recorded for this court’s review. A complete transcript of these proceedings shall be transmitted to this court under Motley, supra and Aplin v. State, (Ms. December 29, 1981) (Ala.Cr.App.1981).

AFFIRMED, BUT REMANDED WITH DIRECTIONS FOR ANOTHER SENTENCING HEARING.

All the Judges concur.


text:
    Gordon VAUGHAN v. STATE.
    3 Div. 533.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Laird R. Jones, Argo & Enslen, Montgomery, for appellant.
    No briefs for appellee.
   BOWEN, Judge.

Vaughan filed a petition for writ of habe-as corpus challenging the action of the prison disciplinary board in sentencing him to 90 days segregated confinement and to the loss of store privileges and visiting privileges. Although the State did not file any reply or response, the circuit judge denied the petition without a reason and without a hearing.

The Attorney General declined to submit a brief on appeal in view of this Court’s decision in Washington v. State, 405 So.2d 62 (Ala.Cr.App.1981), which follows Williams v. Davis, 386 So.2d 415 (Ala.1980), and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Accordingly, the circuit court’s judgment dismissing Vaughan’s petition is hereby set aside and vacated. This cause is remanded to the circuit court for further proceedings consistent with Washington, supra.

REVERSED AND REMANDED WITH DIRECTIONS.

All Judges concur.


author: DeCARLO, Judge.

text:
    Jackie McLEOD v. STATE.
    4 Div. 24.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    James R. Fugua, Ozark, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

This is an appeal by an indigent from an order denying his petition for writ of error coram nobis.

In 1976, appellant entered pleas of guilty to two separate indictments charging a total of eight forgery offenses and two burglary offenses. On September 4, 1979, appellant filed a “Motion to Vacate Sentences and Dismiss Indictment” with the circuit court. After an evidentiary hearing on March 17,1980, the trial court subsequently denied the motion.

On January 19, 1982, appellant filed the coram nobis petition which is the subject of this appeal. The circuit court denied the petition without a hearing, ruling that appellant had previously been afforded a hearing in 1980.

Although appellant’s “Motion to Vacate Sentence and Dismiss Indictment” is not part of the record, it appears from the transcript of the hearing on that motion (which is a part of the record), that the issues in 1980 were (1) whether appellant’s confessions were coerced; and (2) whether a letter purportedly written by a Dale County law enforcement officer to the State Pardons and Paroles Board recommending an early parole for appellant because he was “not guilty” of the offenses entitled him to a new trial.

Appellant’s coram nobis petition reasserts the same issues determined in March, 1980, along with a further allegation that, at the time of his guilty pleas, his court-appointed counsel was ineffective because he had had a conflict of interest as a part-time city prosecutor or city judge.

Former Supreme Court Rule 50, which has now been superseded by the Rules of Appellate Procedure, provided the following:

“. .. and the sentencing court shall not be required to entertain a second or successive petition for similar relief on behalf of the same prisoner. A successive petition on different grounds will not be entertained unless good cause is shown why the new ground or grounds were not known or could not have been reasonably ascertained when the first petition was heard.”

(quoted in Rickard v. State, 44 Ala.App. 281, 207 So.2d 422 (1968). Although former Rule 50 is no longer the law, the policy underlying it is still valid. If a petitioner may not assert as grounds for a coram nobis petition facts he knew or should have known at trial, see Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964), certainly he may not allege, in a second coram nobis petition, facts he knew or should have known at the time of filing a first petition for post-conviction relief.

Appellant’s coram nobis petition affirmatively shows that, prior to the March 17, 1980 hearing he knew of his attorney’s part-time city judge status. Appellant’s own testimony during the hearing indicates that his attorney “was not talking right because he’s the City Judge. That’s one reason he didn’t want to investigate.”

Appellant cites Ellison v. State, 406 So.2d 439 (Ala.Cr.App.1981), for the proposition that he should have been given a hearing on his allegations of ineffective counsel. In Ellison however, Judge Bowen noted that the record there contained “no evidence to contradict petitioner’s allegations.”

The record in appellant’s case demonstrates not only that appellant himself knew of the facts relating to ineffective counsel at the time of his first hearing, but the trial judge also heard evidence on that point in March, 1980. It is our judgment, therefore, that the Dale Circuit Court was correct in denying the petition without a hearing.

AFFIRMED.

All the Judges concur.


text:
    Jethro JONES v. STATE.
    5 Div. 625.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.

      0. William Adams, III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Alabama Code 1975, Section 13A-8-41 (Amended 1977). Sentence was ten years’ imprisonment.

I

The defendant raises several issues surrounding the eyewitness identification.

On Saturday, July 4, 1981, the defendant entered the Jr. Food Store in Alexander City and asked to use the restroom. Mrs. Grace Rainwater observed the defendant at this time. When the defendant returned from the restroom he had one towel across his face and another over his hand partially concealing “what looked like a gun.” The defendant ordered Mrs. Rainwater and her husband to the back of the store. Over $2,000.00 was taken in the robbery.

That afternoon, Mrs. Rainwater went through five mug books at the Alexander City police department. She was unable to identify anyone. No mug book contained a photograph of the defendant.

The next day, around 2:26 P.M., the defendant voluntarily came to the police department to find out why the police were looking for him. Officer Timothy Baker advised the defendant of his Miranda rights and questioned the defendant about the robbery. The defendant denied any participation in the crime. Officer Baker testified that the defendant said it was “all right” if he was photographed and “expressed a desire to have the person who was robbed to see him.” Although the defendant denied that he specifically agreed to have his photograph taken, he acknowledged that he did request to see the person who said that he was the one that robbed the store.

After the defendant had been photographed, Mrs. Rainwater was asked to view photographs of six individuals. Officer Ralph Burton testified that although he was not physically present he heard that Officer Baker asked Mrs. Rainwater “to identify the person out of those pictures that came in the store and robbed them.”

Officer Baker testified that he only told Mrs. Rainwater that he had some more photographs he would like for her to view without giving a reason. Baker stated that he laid the photographs out and said “is there anybody in there that looks familiar or anything?” Mrs. Rainwater selected the two photographs of the defendant and said “that looks like the person who robbed her.”

At 3:25 that afternoon, Mrs. Rainwater looked at eight separate photographs of six individuals. Pour of these photographs were typical mug shots. Each of these mug shots consisted of one black and white photograph which contained two views of one individual — a frontal and a side view with a height chart or markings in the background. Printed information on the bottom of these four photographs had been taped over. There were two separate photographs of a fifth individual and two separate photographs of the defendant. These four photographs were the only ones in color. These four photographs were not mug shots even though they were frontal and side views of the defendant and another. There was nothing contained in or on any of these four photographs which would indicate that they had been taken by the police or while the subjects were in police custody. Officer Baker testified that he also covered the bottom portion of each of these four pictures “to try and make them all look uniform.”

From these eight photographs, Mrs. Rainwater identified the two photographs of the defendant.

Mrs. Rainwater was then allowed to view the defendant in a showup. The State’s evidence indicates that this showup was held at the defendant’s request. After Mrs. Rainwater identified the defendant as the robber, she asked if that was Jethro Jones and indicated that she knew the defendant by name and by sight.

The defendant argues that the pretrial identification procedure was suggestive and violated his right of due process because (1) Mrs. Rainwater viewed the defendant after having selected his photographs in a photographic lineup, (2) she was told that the robber’s photograph was among the photographs and (3) the photographs of the defendant were in color.

While any showup is suggestive by its very nature, Brazell v. State, 369 So.2d 25 (Ala.Cr.App.1978), cert. denied, 369 So.2d 31 (Ala.1979), the question is whether the one-on-one confrontation was “unnecessarily” or “impermissibly” suggestive. Brazell, 369 So.2d at 28. We do not find this to be the case here. A defendant may not request a showup and then seek to profit by attacking the validity of the pretrial identification under the circumstances presented here.

Yet, even if it be assumed that the showup was impermissibly suggestive, an examination of the five factors listed in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), leads us to the conclusion that the identification was reliable and had a basis independent of any suggestive identification procedure.

Mrs. Rainwater testified that she had a clear opportunity to view the robber before he covered his head with a towel. Mrs. Rainwater’s description matched that of an individual Officer Ralph Burton had observed near the robbery in both time and place, in an area where he “shouldn’t have been”, in an area at a time when it was “unusual” for anyone to have been there. Burton later identified the defendant as the person he saw. Mrs. Rainwater gave Officer Jack Patterson a detailed description of the robber.

It is important that Mrs. Rainwater identified the defendant’s photograph before she saw him in the showup. Floyd v. State, 387 So.2d 291 (Ala.Cr.App.1980).

On direct examination, Mrs. Rainwater stated that she was “absolutely sure” that the defendant was the man who robbed her. On cross examination she testified that she told the police the defendant “looked like” the robber. Officer Baker testified that Mrs. Rainwater told him that the defendant was the person who robbed her and also told him that the defendant “looks like” the person who robbed the store. Our reading of the record convinces us that Mrs. Rainwater made a positive identification of the defendant the day after the robbery. However, “(t)he question of whether the victim’s identification was positive or not goes to the weight and credibility of her testimony, and was a question for the jury.” Williams v. State, 348 So.2d 1101, 1104 (Ala.Cr.App.), cert. denied, Ex parte Williams, 348 So.2d 1105 (Ala.1977); Richardson v. State, 374 So.2d 433, 435 (Ala.Cr.App.1979).

Even if Officer Baker did tell Mrs. Rainwater that a suspect’s picture was among the photographs she was viewing, that fact alone will not render a photographic lineup unnecessarily suggestive. “That a person is actually told that the suspect’s photograph is among the other pictures, although generally inadvisable, does not contaminate the identification proceeding.” Phillips v. State, 409 So.2d 918, 919 (Ala.Cr.App.1981); McGee v. State, 383 So.2d 881 (Ala.Cr.App.), cert. denied, Ex parte McGee, 383 So.2d 884 (Ala.1980); Jackson v. State, 361 So.2d 1152 (Ala.Cr.App.1977).

Since there was another individual in the photographic lineup whose pictures were also in color, we do not deem the fact that the defendant’s photographs were in color to have amounted to any unnecessary suggestiveness.

The record supports our conclusion that the pretrial identification procedure was not unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

II

The defendant argues that the eight mug shots which were introduced into evidence and the five mug books which were shown to the jury created substantial prejudice and denied him a fair trial. These allegations demand an examination of the record to determine what actually occurred during the trial.

The State’s first witness at the defendant’s trial was Mrs. Grace Rainwater. On direct examination and without reference to any pretrial identification procedure, she identified the defendant as the robber.

On cross examination of this witness, defense counsel, in an attempt at impeachment, elicited facts about the pretrial photographic lineup in which Mrs. Rainwater identified the defendant.

On redirect, the State then brought out the fact that on the afternoon of the crime Mrs. Rainwater had looked at “these five photo albums (mug books) right here.” Defense counsel objected to the prosecutor “letting the jury view those mug shots.” This was the first time that the term “mug shots” had been used before the jury. The trial judge instructed: “Don’t let them look at them.” Defense counsel again objected:

“MR. ADAMS (Defense Counsel): And I’m going to object to him showing those mug shots to the jury and move for a mistrial.
“THE COURT: I don’t believe he’s shown any mug shots. He just showed the five things that are in evidence in this case. And we won’t let them look at the mug shots. I don’t know what prejudice that would have.”

Following this, Mrs. Rainwater, still under redirect examination, testified that after the store had been robbed she had looked at all the photographs contained in all five albums but had not identified anyone. She testified that she later saw photographs of six other individuals and had selected the defendant’s picture from that group. The photographs of these individuals were then admitted into evidence over the objection of defense counsel.

Initially, we note, as we have previously indicated, that the objected to photographs of the defendant are not mug shots although one picture is a full face or frontal view and the other is a profile view. The photographs are separate and are not side by side. They contain no height marks and bear no numbers or legends.

As we noted in Gross v. State, 395 So.2d 485, 487 (Ala.Cr.App.1981), “(t)he fundamental reason why ‘mug shots’ of a defendant are inadmissible in a criminal trial is, of course, because they tend to apprise the jury of the fact that the defendant has been in some sort of trouble with the police before, thereby reflecting unfavorably upon the character of the accused.” There was no danger of this here because, even though there was no direct testimony that the defendant had never been charged or arrested, the time and reason why and how the defendant’s photographs came to be taken and shown to the witness were explained to the jury by witnesses for the State and by the defendant himself.

In view of these explanations and in view of the fact that the photographs of the defendant were not mug shots, we find no prejudice to the defendant resulted when the jury was allowed to view the photographs, four of which were “doctored” mug shots, from which the victim identified the defendant.

A witness may corroborate his in-court identification of the accused by evidence of an earlier out-of-court identification to rebut an inference raised on cross examination that his identification was mistaken or contrived. Farley v. State, 406 So.2d 1045, 1047 (Ala.Cr.App.), cert. denied, 406 So.2d 1050 (Ala.1981); Gilham v. State, 382 So.2d 616 (Ala.Cr.App.), cert. denied, Ex parte Gilham, 382 So.2d 619 (1980); Carlisle v. State, 371 So.2d 975 (Ala.Cr.App.1979); Howell v. State, 369 So.2d 297 (Ala.Cr.App.1978).

Ill

The defendant argues that his conviction should be reversed because of prejudicial and improper comments made by the Assistant District Attorney in his closing argument to the jury.

With respect to the prosecutorial limitations of closing argument, each case must be considered and reviewed on its own merits, “resulting from examination of the proceedings in their entirety, tempered but not governed in any rigid sense of stare decisis by what has been done in similar situations.” Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 1246, 99 L.Ed. 1557 (1946); Cook v. State, 369 So.2d 1243, 1250 (Ala.Cr.App.1977), affirmed on this issue, 369 So.2d 1251 (Ala.1978).

We have carefully reviewed the objected to comments and find that they do not warrant a reversal of the defendant’s conviction. Flint v. State, 370 So.2d 332 (Ala. Cr.App.1979); Farley v. State, 406 So.2d 1045 (Ala.Cr.App.), cert. denied, 406 So.2d 1050 (Ala.1981); Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), cert. denied, 398 So.2d 332 (Ala.1981); Henry v. State, 355 So.2d 411 (Ala.Cr.App.1978).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . Admitted at the hearing on the motion to suppress held immediately before the defendant’s trial were five albums of mug shots which belonged to the Alexander City Police Department. These mug books were not introduced into evidence at the trial.


text:
    Jackie McCLELLAN v. STATE.
    5 Div. 636.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Tom Radney of Radney & Morris, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Trafficking in cannabis; three years.

At 12:45 p. m. on May 5, 1981, Officer Steven Parrish of the Alexander City Police Department received a telephone call from an informant who told him that between 1:00 and 2:00 p. m. that day appellant would be driving through town in a new brown Ford Escort transporting ten pounds of marijuana to someone in another county. There was no evidence of how the informant gained his information, but Officer Parrish testified that the informant was reliable and had provided tips leading to at least one other drug arrest and conviction in the past.

Officer Parrish notified Chief of Police Lynn Royall of his conversation with the informant and Chief Royall radioed several patrol vehicles to be on the lookout for the automobile driven by appellant.

Sgt. Keith Worthy testified that he received the information about the Ford Escort appellant would be driving and, at approximately 1:50 p. m., he spotted the vehicle. He noticed that the car had no license tag, but a check revealed that the auto had been recently purchased by appellant’s father and there was no tag violation. When Sgt. Worthy pulled the car over and asked appellant for his driver’s license, he noticed that the license was not current and he arrested appellant for driving with an expired license. The officer stated that he saw a large brown plastic trash bag, knotted at the top, on the front passenger side floor of the vehicle.

Chief Royall and another officer arrived on the scene and Royall told appellant they had information he was transporting marijuana. When Royall stated that he wanted to search the vehicle appellant said, “Go ahead. You’re going to do it anyway.” Chief Royall then opened the trash bag and found it filled with smaller bags containing what was stipulated at trial to be 9.84 pounds of marijuana.

All the police officers who testified agreed that the bag was opaque, its contents were not ascertainable from the outside, and there was no smell of marijuana or other contraband in the vehicle. Chief Royall stated that he knew appellant had been convicted, approximately one month earlier, of the misdemeanor possession of marijuana.

Appellant took the stand and testified that he was driving his father’s car on the date in question. He contends that his motion to suppress the State’s evidence was due to be granted because the seizure of the marijuana was accomplished by an illegal warrantless search.

I

Assuming, without deciding, that appellant had a “legitimate expectation of privacy” in his father’s automobile, see United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), an issue not raised by the parties or ruled upon by the trial court, see Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Collier v. State, 413 So.2d 396 (Ala.Cr.App.1982), Affirmed, 413 So.2d 403 (Ala.1982), we shall consider the lawfulness of the search properly at issue.

It is well-established that, although the Fourth Amendment prohibits only unreasonable searches, all searches without a warrant are deemed per se unreasonable unless they fall within certain recognized exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). The exceptions are (1) plain view, (2) consent, (3) incident to a lawful arrest, (4) hot pursuit or emergency situations, (5) exigent circumstances coupled with probable cause, and (6) stop and frisk situations. Richardson v. State, 376 So.2d 205 (Ala.Cr.App.1978), Affirmed, 376 So.2d 228 (Ala.1979). In our judgment, the warrantless search here was justified on the basis of probable cause and exigent circumstances.

Probable cause may be based solely on hearsay information received from an informant as long as there is a “substantial basis for crediting the hearsay.” Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966). A substantial basis for believing the hearsay report exists if the informant’s tip satisfies the “veracity” and “basis of knowledge” requirements outlined in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). However, if the tip fails to meet either the veracity or basis of knowledge test, it may still, by itself, supply probable cause if the tip is “self-verifying,” i.e., if its information is so detailed and specific that a “magistrate, when confronted with such detail, could reasonably infer that the informant gained his information in a reliable way.” Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Finally, as Judge Bowen, writing for this court in Hatton v. State, 359 So.2d 822 (Ala.Cr.App.1977), cert. quashed, 359 So.2d 832 (Ala.1978), observed:

“Less detailed information from a reliable source may also be used as grounds for a finding of probable cause where the key elements of the tip are verified or corroborated. Ex parte State ex rel. Attorney General v. State, 286 Ala. 117, 237 So.2d 640 (1970); Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). Finally, a tip that will not meet any of these standards may still be used in conjunction with a number of other factors of ‘further support’ to show probable cause.” Hatton v. State, supra at 827.

Since the testimony of Officer Parrish established the underlying circumstances pointing to the informant’s reliability, the tip satisfies the veracity prong of the Aguilar test. Compare Stikes v. State, 397 So.2d 179 (Ala.Cr.App.1980), cert. denied, 397 So.2d 183 (Ala.1981) (only basis for determining reliability was conclusion of one police officer stated to another police officer). The tipster’s information, as related by Officer Parrish, did not, however, include the source of the informant’s knowledge and it therefore fails the second test set out in Aguilar. See Hatton v. State, supra. Likewise, the tip is not so detailed that it can be deemed “self-verifying.” Spinelli v. United States, supra.

Nevertheless, each element of the tip— the color, make, model, and driver of the vehicle, as well as the time the car would pass through town — was corroborated by the independent observation of Sgt. Worthy before he stopped the vehicle. In the case before us, we have more similarity between the tip and the actual event than in Hatton v. State, supra. There, as Judge Bowen noted, “[t]he predicted events happened almost precisely as foretold, except that the appellant arrived approximately two hours after the informant stated.” Id. at 829 (emphasis added). Here, appellant arrived in a car identical to the one described by the informant and exactly within the one-hour time period predicted by the tipster.

Added to the independent verification of the tip, and the similarity between it and the actual event, is the fact that the Chief of Police knew of appellant’s prior conviction for marijuana possession one month earlier. “Reputation, when combined with other factors, may help to support a finding of probable cause.” Travis v. State, 381 So.2d 97 (Ala.Cr.App.1979), cert. denied, 381 So.2d 102 (Ala.1980); Hatton v. State, supra.

Based on the cumulative effect of all the foregoing facts and circumstances within the knowledge of the officers who conducted the search, we believe that the law enforcement authorities here were justified in concluding that an offense had been or was being committed. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), and that there was probable cause for the search. Exigent circumstances existed here because of the use of the automobile. Reid v. State, 388 So.2d 208 (Ala.1979). Accordingly, the trial court was not in error in overruling the motion to suppress the evidence.

We have examined the record and it is free from error. Therefore, the judgment of conviction by the Tallapoosa Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    John Edward CARLTON v. STATE.
    6 Div. 646.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Elizabeth Debardeleben, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted of assault in the first degree. Alabama Code 1975, Section 13A-6-20. Sentence was eighteen years’ imprisonment.

I

The defendant claims that since one of the prospective jurors worked part-time at Rich’s Department Store where the security guard was assaulted the court erred when it overruled defendant’s motion to strike the juror for cause.

In qualifying the jury venire, the following occurred:

“MR. GOMANY (Assistant District Attorney): Does anyone know Mr. Clemons? Let me identify him further. At the time of the incident he was employed as security officer for Rich’s Department Store out at Century Plaza.
“PJ PUCHTA: (Raised hand.)
“MR. GOMANY: Now, Ms. Puchta—
“PJ PUCHTA: I was employed at Rich’s part-time.
“MR. GOMANY: Were you there when this incident occurred? Do you recall it?
“PJ PUCHTA: I was not working at the time.
“MR. GOMANY: Okay. This happened back on September 22nd, 1980.
“PJ PUCHTA: Well, I was working at the store, but not that particular day it happened.
“MR. GOMANY: Okay. Do you recall any of the events about it?
“PJ PUCHTA: Very few. I wasn’t involved at all.
“MR. CONWAY (Defense Counsel): Judge, we challenge for cause.
“MR. GOMANY: We except to that.
“THE COURT: Ms. Puchta, I have to ask you what I asked this other gentlemen. As you heard me say, your verdict — if you’re on the jury your verdict has to be based solely on the evidence you hear in this case and then on the law which I will give you at the end of the case. It should not be based on anything outside the case. Now, whatever you heard, is this just from hearing someone that was around there?
“PJ PUCHTA: Yes, sir.
“THE COURT: Now, can you base — I don’t know what you heard or whether you heard much of anything, but can you base your verdict solely on what you — on the evidence that you hear only in this courtroom and the law and not on anything that you have heard about this matter outside the courtroom?
“PJ PUCHTA: Yes, sir, I can.
“THE COURT: All right. I overrule the motion.
“MR. CONWAY: We reserve an exception.”

The facts that the victim and a prospective juror are personally acquainted and work for the same company do not automatically disqualify a juror for cause. Grandquest v. Williams, 273 Ala. 140, 146, 135 So.2d 391 (1961). Employment of the juror by the same company that employed the victim is not a prima facie indication of interest or bias on the part of the juror. Glenn v. State, 395 So.2d 102, 107 (Ala.Cr.App.1980), cert. denied, 395 So.2d 110 (Ala.1981).

While bias or “probable prejudice” will disqualify a prospective juror, we find no abuse of discretion on the part of the trial judge in denying the challenge for cause. If the defendant felt there was some relationship between the witness and the prospective juror which would prevent the jur- or from forming a fair and impartial opinion he should have propounded further questions to determine the specific nature of the relationship. Grandquest, 273 Ala. at 146, 135 So.2d 391.

The defendant also argues that the prospective juror had independent knowledge of the facts of the incident. “As the Supreme Court and lower courts have continually reiterated, the constitutional standard of fairness requires only that the accused have ‘a panel of impartial “ ‘indifferent’ ” jurors’ who base their decision solely on the evidence produced in court; it does not require jurors to be wholly ignorant of the case.” Mayola v. State of Alabama, 623 F.2d 992 (5th Cir. 1980), quoting from Murphy v. Florida, 421 U.S. 794 at 799-800, 95 S.Ct. 2031 at 2035-2036, 44 L.Ed.2d 589 (1975).

The record reveals that the prospective juror knew few events about the case and was not involved in any way. She affirmed that she could base her verdict solely on the evidence presented in court. It was not error for the trial judge to deny defendant’s challenge for cause. Jarrell v. State, 355 So.2d 747 (Ala.Cr.App.1978).

II

The defendant argues that the trial judge erred when he allowed the State to introduce evidence of another crime to show the defendant’s intent because such evidence was more prejudicial than probative.

Rich’s store detective, Billy Ray Clemons, attempted to arrest the defendant and his brother for shoplifting on September 23, 1980. Without warning, the defendant slashed Clemons across the face with a knife and escaped.

The next day the defendant was arrested after stealing some jewelry at a different Rich’s department store. The defendant argues that the testimony of this second shoplifting incident requires a reversal of his conviction. We disagree.

Identification was not an issue in this case. The defendant admitted cutting the security guard but claimed that he struck only after he had first been attacked and then only in self-defense. The comments of the trial judge make it clear that the jury was informed of these contentions in the opening argument of defense counsel.

Under exceptions to the general rule excluding evidence which tends to show the commission of a crime other than that for which the defendant is on trial, evidence may be admitted to show motive, intent or scienter. C. Gamble, McElroy’s Alabama Evidence, Section 69.01 et seq. (3rd ed. 1977). Under this exception, evidence of other offenses is admissible to show whether the defendant’s intent was unlawful or whether it was good and lawful, Burt v. United States, 139 F.2d 73 (5th Cir. 1944); whether the accused acted intentionally or accidentally, Lucy v. State, 340 So.2d 840 (Ala.Cr.App.), cert. denied, Ex parte Lucy, 340 So.2d 847 (Ala.1976); or to show the purpose with which the act was committed, O’Neal v. State, 50 Ala.App. 31, 276 So.2d 616, cert. denied, 290 Ala. 370, 276 So.2d 621 (1973). For a comprehensive statement of the principles involved see Allen v. State, 380 So.2d 313 (Ala.Cr.App.1979), cert. denied, 380 So.2d 341 (Ala.1980).

Under the particular facts of this case, the major issue the jury had to determine was whether the défendant cut the security guard in an attempt to escape after committing a crime or whether the assault was committed in self-defense. Thus the issue of whether the defendant was actually shoplifting was fundamentally related to the issue of the intent of the assault.

The limited purpose of the evidence of the subsequent shoplifting charge was carefully explained by the trial judge to the jury.

“THE COURT: Now, ladies and gentlemen, you understand that the only charge involved here is assault in the first degree which allegedly occurred on the 23rd of September 1980. You are now hearing testimony about what happened at Rich’s, a different Rich’s, on the 24th of September.
“First, again you are only trying the assault that occurred on the 23rd, allegedly occurred on the 23rd. You are hearing testimony about what this witness states is a theft in Rich’s the next day by these two people. And I emphasize that’s what this witness says. I don’t have any comment one way or the other, true or false. But this is coming to you — This information is coming to you only for a very, very limited purpose. It has absolutely nothing to do with the actual guilt or innocence of the incident on the 24th. It is coming to you — As the Court understands the position of the parties in this, the defendant claims at the outset that his defense is that of self defense to the charge of assaulting Mr. Clemons, that it was self defense. And that he on this occasion, on the 23rd, was not stealing, had not taken anything and was not taking anything. Therefore, intent is something that is necessary to be shown on the incident of the 23rd. The intent to defend one’s self. Because if someone is stealing, then a person who is in authority is under a different law than if someone walks up and starts a fight. The defense of one’s property or the property of a store that he’s employed by, it comes under a different law than just a plain assault between two people. And the Court is letting this testimony in on the 24th only for the purpose of showing intent, if there be any. I don’t say there’s intent or no intent. The Court is letting it in only for your consideration as to the defendant’s intent because the law says — Well, we won’t go into all that. And that is the only reason. Not as to whether or not he is guilty or not guilty of the 23rd incident but to show intent. And it comes to you under what is generally known as a scheme, plan or design, which the law makes certain exceptions to. And, of course, just because someone is charged with something on the 23rd does not mean that something else they were doing on the 24th, there’s no indication that they are guilty of what the 23rd was. But it is in for the purpose of intent and intent only.”

Here, the judge was within his discretion in allowing this evidence to come before the jury. We believe that the challenged testimony about the subsequent shoplifting incident is relevant and “tends to prove guilt otherwise than as tending to prove guilt by way of bad character.” Scaloni v. State, 383 So.2d 586 (Ala.Cr.App.1980). “If evidence is relevant and competent it should be admitted regardless of its incidental effect.” Wilkins v. State, 29 Ala.App. 349, 353, 197 So. 75 (1940).

“A part of the deliberations toward any decision to admit the details of a prior crime is the trial judge’s discretionary consideration of whether the evidence will result in a multiplicity of the issues or whether its prejudicial effect will far outweigh its probative value.” McElroy, Section 69.-02(8). Although the second shoplifting incident did not involve an assault, it was relevant and highly probative of the defendant’s intent in assaulting the security guard upon being charged with shoplifting.

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Charles Ray CLENCY, alias v. STATE of Alabama.
    6 Div. 647.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Gary C. Pears, Vestavia Hills, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Charles Ray Clency was indicted for and convicted of first-degree robbery of Elizabeth Poole, while armed with a pistol, for which he was sentenced, pursuant to Alabama’s Habitual Felony Offender Act, to life imprisonment without parole.

It is undisputed that on October 18,1980, this appellant, Charles Clency, drove Benjamin Franklin Davis to Harbin’s Drug Store in Hoover, Alabama, where they entered the store together. The appellant immediately solicited the assistance of Ms. Fraser, the cashier on duty, in selecting a face cream “for oily skin.” Mr. Davis proceeded to the rear of the store, and at gunpoint forced the pharmacist, Ms. Poole, to fill a pillowcase with “drugs.” Ms. Poole activated a silent alarm by moving a bottle of “drugs.” Within minutes the police arrived. The appellant and Mr. Davis were both handcuffed and arrested while still inside the store and were subsequently transported to jail.

The police recovered the pillowcase and the pistol used by Mr. Davis and made a list of the “drugs” that he had forced Ms. Poole to deposit into the pillowcase. Shortly after the police had departed, a second pistol was found on the counter where the appellant had been looking at face creams. This gun, which had the initials “C.C.” (appellant’s initials) carved above its serial number, was immediately turned over to the police.

The only evidence presented in defense was appellant’s own testimony that he drove Mr. Davis to Harbin’s Drug Store “to get a prescription filled.” Appellant stated that he had no idea Mr. Davis intended to “rob” the store.

Ms. Fraser testified, however, that when she saw Mr. Davis apparently robbing Ms. Poole in the rear of the store, and had returned to the front, the appellant was pointing a pistol at her, a pistol she later identified as the one found on the counter where the appellant was standing.

Ms. Poole could not describe appellant’s actions on the day of the robbery but she did state that she had seen appellant in the store with Mr. Davis the day before the robbery.

Furthermore, even though he denied it at trial, the appellant admitted in a signed statement to the police that he and Davis intended to rob the store, that he “had reservations” about completing the robbery after he was inside and that he did place a pistol on a counter before the police arrived. (R. 269).

I

The sole issue on appeal is the voluntariness of this statement of appellant. Appellant claims that the evidence supports his contention that the statement was coerced and that, therefore, the trial court erred in denying his motion to exclude it at trial.

Appellant testified that he was intimidated into making the incriminating statement. He stated that when the police arrived at the drug store Ms. Fraser told them that he was not with Davis and that he had done nothing wrong. Nevertheless, he was ordered at gunpoint to lie on the floor where a shotgun was held to his head. According to the appellant, the female officer holding the shotgun had orders to “blow his brains out” if he moved. Then, even though he proclaimed his innocence, several officers began taunting him while he was on the floor, stating that they usually shot first and asked questions later.

Appellant further testified that when he arrived at the police station he was denied his request to use the telephone and was pushed into a cell. He overheard some officers discussing the possibility of “hanging” him.

After three hours without food he was taken for interrogation by Officers Clark and Lowman. Appellant admitted that he knew his Miranda rights but said that he did request an attorney. He admitted signing the waiver of rights form, but denied reading or knowing about the paragraph stating that he wished to make a “voluntary” statement. He admitted signing the statement that Officer Clark had written but denied having read said statement and denied telling Clark that he (the appellant) ever intended to “rob” the drugstore.

Appellant claimed that he signed the “waiver” form and the statements only because he thought that was the only way he would be allowed to use the telephone.

Contrary to appellant’s assertions, however, Ms. Fraser and Officer Tate each testified that Ms. Fraser said nothing to Officer Tate when he asked her about the alarm. Instead, she merely “cut” her eyes in appellant’s direction and toward the rear of the store. Ms. Fraser also testified that the appellant pointed a pistol at her just before the police arrived.

Tate and an Officer Franklin, the arresting officers, testified that no one threatened, intimidated or coerced the appellant either at the scene of the robbery or when he was transported to jail.

Sergeant Clark testified that he and Officer Lowman made no threats or promises or offered inducement during their fifteen to twenty minute interrogation of the appellant. Sergeant Clark read the appellant his Miranda rights and appellant made it clear that he understood those rights. Clark then had appellant read the “waiver” out loud that:

“I have read the above and understand fully each of these rights. Having these rights in mind, I wish to make a voluntary statement and answer any questions without contacting an attorney or having one present.
“No force, threats or promises have been used by anyone to make me sign this. I sign this statement after having been orally advised of my constitutional rights set out above, and understanding them in full.” (R. 262-263).

Appellant then signed this “waiver” form.

After a brief discussion with appellant about the robbery, Officer Clark summarized appellant’s comments as follows:

“Admits placing gun, H & R model 732, .32 caliber on counter before police arrive. Stated he had reservations about continuing robbery after he came in, although he and Davis did go into Harbin’s Pharmacy for the expressed reason of robbery.” (R. 269).

The appellant read and signed this statement (Exhibit 6) which was introduced for the jury’s consideration.

Sergeant Clark further stated that, to his knowledge, appellant never asked for an attorney, and never requested to use the telephone. Moreover, appellant never indicated that he, in any respect, misunderstood either the Miranda rights, the waiver or the statement with reference to the robbery.

After a careful review of this record, it is our opinion that the trial court did not err in admitting appellant’s statement.

There was “sufficient evidence” to support the trial court’s conclusion that said statement was intelligently, understandingly and voluntarily given. Burks v. State, 353 So.2d 539 (Ala.Cr.App.1977); Taylor v. State, 361 So.2d 1189 (Ala.Cr.App.1978); Ard v. State, 362 So.2d 1320 (Ala.Cr.App.1978); Simpson v. State, 401 So.2d 263 (Ala.Cr.App.), cert. denied, 401 So.2d 265 (Ala.1981).

This record is free of error. Therefore, this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Alex THOMAS, Jr. v. STATE.
    6 Div. 764.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.

      Miles M. Huffstutler, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain & James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was charged in two separate indictments with robbery in the first degree. Alabama Code 1975, Section 13A-8-41 (Amended 1977). The cases were consolidated for trial. A jury returned a verdict of guilty in both cases. Sentence was 15 years’ imprisonment in each case.

I

The defendant contends that there was no probable cause to stop the automobile he was driving and, also, that the subsequent search was unconstitutional.

On October 20, 1980, Birmingham Police Officer J. P. Martin was on special assignment patrolling the western area of Birmingham, particularly an area near West End High School and Robert E. Lee grammar school. He was in civilian or plain clothes and was driving an unmarked car. At approximately 2:30 that afternoon he observed three black males in a 1976 red Ford. He became suspicious because the two passengers “were constantly looking, just looking hard one way and then the other.” The passenger in the back seat wore a white hat. Martin followed this car for about two blocks before “losing it” when it made a quick u-turn in the parking lot of a convenience store.

Three to six minutes later, Officer Martin spotted the same red Ford which he was able to identify by the license tag number. The driver was the only occupant he could see in the car. The Ford was “almost stopped, had its emergency flasher on, going very, very slow.”

Martin then observed two black male subjects run and get in the Ford. One of these suspects had on a white hat.

“I saw two subjects running up the street. When they approached the intersection the car moved up to the intersection and stopped. The suspects at that time got in the car. They each had a black case, one was small and one was large.”
******
“It looked like they (the two running suspects and the red Ford) got there (to the intersection) about the same time, the suspect that was driving the vehicle appeared to be looking for them. When he saw them they came to the intersection approximately at the same time.”

Officer Martin’s testimony clearly indicates that the red Ford pulled up to the intersection and stopped and left when the two people were in the car. After these two men got into the Ford, the car’s flashers were turned off and the Ford proceeded on.

Officer Martin stopped the red Ford and “asked the person in the back seat what was the problem, why were they running?”

“The person from the back seat said that he had been to get his nephew’s band instrument to take home for him, and that while they were down there another male had pulled a gun on him and they were running to get away from him.”

Martin could see the cases through the car window. He asked and was told that the cases contained band instruments.

After the Ford and its three occupants had been detained for “two or three minutes”, Officer Martin received a radio dispatch that “there had been a robbery from the person involving two band instruments.” Upon receipt of this information, Officer Martin arrested the three occupants of the vehicle: “At that time we made sure that there were two band instruments. We arrested the suspects, read them their rights, and at that time they were in custody.” Officer Martin testified that the cases were not opened or removed from the car until after the suspects were arrested.

Officer Clifford Prosser conducted an inventory search of the red Ford at the scene of the arrest according to policy and procedure before the Ford was “pulled in”. Officer Prosser stated that his “first look at the car was to make sure there were no dangerous weapons in the front of the car in the passenger’s compartment.” He found the knife used in the robberies under the rubber floor mat in the right front portion of the car.

The trial judge found that the search was reasonable and based on probable cause.

The initial stop of the red Ford was justified. The facts available to Officer Martin at the moment he stopped the automobile would warrant in a man of reasonable caution the belief that the action taken was appropriate. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, a stop is permissible “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry, 392 U.S. at 30, 88 S.Ct. at 1884. “An investigatory detention may be based upon circumstances falling short of probable cause for arrest.” Bagony v. City of Birmingham, 371 So.2d 80, 81 (Ala.Cr.App.1979). “The strength of the information needed for an ‘investigatory detention’ is much less than that required for an arrest and search.” Thatch v. State, 397 So.2d 246, 250 (Ala.Cr.App.), cert. denied, Ex parte Thatch, 397 So.2d 253 (1981). See also Minnifield v. State, 390 So.2d 1146 (Ala.Cr.App.), cert. denied, Ex parte Minnifield, 390 So.2d 1154 (Ala.1980); Butler v. State, 380 So.2d 381 (Ala.Cr.App.1980).

After observing the suspicious conduct of the occupants of the automobile, the manner and speed in which the automobile was being driven, the sudden disappearance of the two passengers as well as their speeding return, and the black cases, Officer Martin had ample and sufficient grounds to make an investigatory stop. Luker v. State, 358 So.2d 504 (Ala.Cr.App.1978).

The arrests of the three occupants of the Ford were lawful because they were founded on probable cause. The facts supporting this finding of probable cause to arrest are the conduct of the suspects, the radio report of a robbery of band instruments, the fact that cases were observed in the automobile, the admission that these cases contained band instruments, and the suspects’ account of how they came into possession of these instruments.

The search of the automobile after the arrest of the suspects was lawful. “(W)hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981). This rule applies even though the suspects have been removed from the automobile and restrained by other officers. Belton, supra.

The search in this case is also justified as an “inventory search”. South Dakota v. Opperman, 424 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Because the facts supporting the justification for the initial stop, the arrest, and the search are so obvious, these issues do not warrant further discussion or citation of authority.

II

The State sustained its burden of proving a prima facie case of robbery in the first degree against the defendant.

In Thomas v. State, 363 So.2d 1020, 1023 (Ala.Cr.App.1978), this Court held that “(t)he mere fact that a defendant is sitting in the driver’s seat of an automobile into which a robber enters immediately following the robbery affords no legal inference that the defendant is the ‘get-away driver or a participant in the robbery.’ ” However, in this case there are numerous facts and inferences which support a finding of the defendant’s guilty participation. The jury could reasonably infer that the defendant and his companions were together both before and after the robbery. Kimmons v. State, 343 So.2d 542 (Ala.Cr.App.1977). The facts in this case authorize inferences that the defendant was “looking” for his two accomplices, that plans and arrangements to pick them up had been made, and that the defendant was an actual participant immediately before and after the robbery. “Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court.” Dolvin v. State, 391 So.2d 133, 138 (Ala.1980).

Under the principles enunciated in Cum-bo v. State, 368 So.2d 871 (Ala.Cr.App.1978), and Kimmons, supra, and approved in Dol-vin, supra, the questions of the sufficiency and weight of the evidence were properly submitted to the jury for their determination.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.