author: HARRIS, Presiding Judge.

text:
    Doyce Alon BALLENGER v. STATE.
    6 Div. 499.
    Court of Criminal Appeals of Alabama.
    Rehearing Denied Oct. 6, 1981.

      J. Louis Wilkinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Grand Jury of Walker County for selling tablets containing methaqualone, a controlled substance. Appellant had been tried twice on the indictment with both trials ending in mistrials because in each trial the jury was unable to reach a verdict. Appellant’s counsel moved for and was granted a change of venue to Jefferson County.

This case arose out of an undercover operation conducted by UNDO, a combined police operation directed at drug violations. The officers involved were Birmingham Police Officers Stan McAdams, Michael Ware, Robert Lamm and Charles Jordan, and Jefferson County Sheriff’s Officers Howard Brooks, William D. Carson, Norman Dale Harris and George House.

On July 14, 1980, McAdams and Carson were in a motel room at the Passport Inn Motel at 1100 8th Avenue South, Birmingham, Jefferson County, Alabama. The room had been wired so that Officers Brooks and Ware in the next room could hear what was said in McAdams’ room. The microphone worked so that Brooks and Ware were able to hear what went on in the other room, but the tape recorder which was designed to record the conversations did not work.

At 11:30 in the morning, the appellant arrived at the motel in a pink Cadillac and went to Officer McAdams’ room. The appellant knocked on the door, and, when McAdams answered it, the appellant said that he had come to pick up the package. “What package?”, asked McAdams, and the appellant replied, “The package of money for the pills.” Officer McAdams then let the appellant into the room and offered him a seat. Present in the room with Officer McAdams was Officer Bill Carson. Officers Brooks and Ware were listening to the conversations in the next room. The appellant discussed the pills he was proposing to sell to the undercover agents. After a bit, the appellant asked to use the bathroom, and Officer McAdams asked him if he had a weapon. The appellant replied that he had no weapon, but the officer insisted on frisking him. No weapon was found.

After returning from the bathroom, the appellant discussed various proposed drug deals with the undercover officers. The appellant advised them that he could supply between two and five hundred pounds of marijuana a week. When McAdams replied that he didn’t know if he could come up with that much money, the appellant offered to “front” McAdams with two hundred pounds of marijuana and give him seventy-two hours to raise the money to pay for it. The appellant also discussed the possibility of selling cocaine. The appellant advised McAdams and Carson that a five-pound block of 85% pure cocaine was available.

The purpose of the meeting between these undercover agents and the appellant was the purchase of controlled substances. McAdams had with him a suitcase containing in excess of $30,000. They were waiting for word from Officer Robert Lamm, also working undercover, that the pills had been received. At this time, Officer Lamm and Officer Charles Jordan were at God-frey’s Restaurant in Sumiton, Walker County, Alabama. They were there to meet the appellant’s accomplice and receive the pills. They arrived at Godfrey’s Restaurant at almost exactly the same time that the appellant was arriving at the Passport Inn in Birmingham. They sat down and a short time later the appellant’s accomplice approached them and identified himself simply as “Wayne.” After a short conversation, Wayne said, “I am ready to deal.” They had to wait a few minutes for the telephone to get free and then Officer Lamm used the phone to call Officer McA-dams at the Passport Inn in Birmingham. McAdams informed Lamm that the appellant was in McAdams’ room.

Lamm and Jordan then went with Wayne to a 1978 Chevrolet Blazer automobile which Wayne had parked in the restaurant parking lot. It was later learned that this Blazer vehicle was registered to the appellant. Wayne opened the rear of the vehicle and displayed a large American Tourister suitcase and a smaller dark brown carrying bag. When these were opened plastic bags of white pills were revealed. Lamm then advised Wayne that he was ready to close the deal. Lamm picked up the large suitcase and Wayne the smaller one. They walked across the lot to the officers’ pickup truck and placed the bags in the front seat of the pickup truck. At this point Wayne advised Lamm that, although the deal was for 50,000 pills, only 40,000 were contained in the two pieces of luggage. However, Wayne asserted that in forty-five minutes or so he could get the other 10,000 pills. Lamm stated that he did not want to wait, so they walked back into the restaurant and refigured the price. Lamm then telephoned McAdams and advised him to pay the money to the appellant.

Meanwhile, back at the Passport Inn in Birmingham, McAdams threw the money on the bed and told the appellant that he could start counting it because they had most of the merchandise. The words “start the count” was the signal for Officers Ware and Brooks to enter McAdams’ room from the room next door. They did this and placed the appellant under arrest. The appellant was told to call Wayne at the restaurant in Sumiton and tell Wayne that everything was all right. Appellant did this.

The pills which the appellant sold Officer McAdams and which were delivered by Wayne to Officer Lamm were examined by the Alabama Department of Forensic Sciences, Birmingham Division. The American Tourister suitcase was found to contain some 85,000 tablets and the other smaller bag was found to contain 5,051 tablets. Chemical analysis of the tablets revealed that they contained methaqualone.

In a trial by jury in Jefferson County appellant was found guilty and fined twenty-five thousand dollars ($25,000.00). The court sentenced appellant to fifteen (15) years imprisonment and fined him twenty-five thousand dollars ($25,000.00).

At the close of the State’s evidence appellant made a motion to exclude the State’s evidence on the grounds that the State failed to prove the methaqualone was a controlled substance. The trial court then allowed the State to reopen the case to introduce documents to prove that metha-qualone was a controlled substance. Appellant claims that the trial court committed error by allowing the State to reopen its case and present evidence. To allow the State to reopen its case to prove that meth-aqualone was a controlled substance was not error. The trial court has the discretion to reopen its case and present evidence at any time prior to the close of final arguments. § 15-14-4, Code of Alabama 1975. Williams v. State, Ala.Cr.App., 364 So.2d 717.

The documents introduced were copies of records of the State Board of Health certified as true records by the State Health Officer who has custody of those records. Certified copies of public records signed and certified by the officer who has lawful custody are admissible into evidence. Gamble, McElroy’s Alabama Evidence, § 218.01 (1977).

These same documents were introduced in the case of Cassell v. State, 55 Ala.App. 502, 317 So.2d 348, where it was held that methaqualone was properly placed on the schedule of controlled substances by the State Board of Health. In that case the court also took judicial notice of the reasonable rules and regulations of the State Board of Health, having been duly adopted, which have the force and effect of law. All other elements of the case of selling metha-qualone, a controlled substance, were proved by the State and the trial court was correct in overruling appellant’s motion to exclude the State’s evidence.

During the closing argument of the State the prosecutor referred to appellant as a “dope dealer.” Appellant objected and moved for a mistrial, but was overruled.

No matter how prejudicial the prosecutor’s remarks may be they do not constitute reversible error if they are supported by the evidence. Davis v. State, 213 Ala. 541, 105 So. 677.

The evidence presented by the State showed that appellant sold tens of thousands of methaqualone tablets to the undercover agents. This drug is a controlled substance and one who is caught selling such tablets in such quantities is certainly engaged in selling “dope.” The evidence showed that the sale was carried out in a highly sophisticated and well organized manner, with a “bag man” to collect the money and a “drop man” to deliver the drugs, each in two widely separated locations. Incident to the sale appellant freely discussed the illegal drug business and sought to make future sales. Not only did he sell over forty thousand tablets of meth-aqualone but at the same time he offered to sell marijuana and cocaine. These facts were presented to the jury and were sufficient to justify the prosecutor in referring to appellant as a “dope dealer” during the closing argument. Ala.Dig. Criminal Law, Key No. 722(3).

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Doyce Alon BALLENGER. (Re Doyce Alon Ballenger v. State of Alabama).
    81-59.
    Supreme Court of Alabama.
    Dec. 18, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: BOWEN, Judge. BOWEN, Judge.

text:
    Donald LENTINI v. STATE.
    3 Div. 252.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.
    After Return to Remand June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      George L. Beck, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the possession of marijuana. Sentence was six years’ imprisonment and a fine of $1,500.00.

The marijuana was seized in a warrant-less search of a “mini-warehouse” which was rented by a third party who had given the defendant permission to use some of the contents in the warehouse. The defendant contends that the trial court failed to suppress evidence that was the fruit of an unlawful search and seizure. The State contends the defendant lacks standing to contest the validity of the search and seizure.

The trial court’s decision denying the motion to suppress was made after the United States Supreme Court’s decision in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), but before the decision in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The significance of this is that in Rakas, the survival of the automatic standing rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), was not decided. This rule of Jones was specifically overruled in Salvucci. See also Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). In Salvucci it was held:

“The person in legal possession of a good seized during an illegal search has not necessarily been subject to a Fourth Amendment deprivation. As we hold today in Rawlings v. Kentucky, post, at [100 S.Ct. at] 2556, legal possession of a seized good is not a proxy for determining whether the owner had a Fourth Amendment interest for it does not invariably represent the protected Fourth Amendment interest.”
“While property ownership is clearly a factor to be considered in determining whether an individual’s Fourth Amendment rights have been violated, see Rakas, supra, 439 U.S., at 144, n. 12, 99 S.Ct., at 430, n.12, property rights are neither the beginning nor the end of this Court’s inquiry. In Rakas, this Court held that an illegal search only violates the rights of those who have a ‘legitimate expectation of privacy in the invaded place.’ Rakas, id., at 140, 99 S.Ct., at 428. See also Mancusi v. DeForte, [392 U.S. 364, 88 S.Ct. 816, 19 L.Ed.2d 869] supra.”
$ $ 5k * ifc sH
“As in Rakas, we find that the Jones standard (legitimately on the premises) ‘creates too broad a gauge for measurement of Fourth Amendment rights’ and that we must instead gauge in a ‘conscientious effort to apply the Fourth Amendment’ by asking not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.”

Thus under Salvucci the test of standing is whether the defendant had a legitimate expectation of privacy from governmental invasion. Whether he was legitimately on the premises is a relevant but not controlling or determinative factor in deciding one’s expectation of privacy. Moreover, even had the defendant claimed ownership of the drugs found in the warehouse, this bare claim would not entitle him to challenge the search regardless of his expectation of privacy. Rawlings.

Since the issue of the defendant’s right to challenge the search as defined in Salvucci was not presented to the trial court, we think it appropriate to remand so that the defendant will have an opportunity to demonstrate, if he can, that his own Fourth Amendment rights were violated. This is the same procedure followed by the United States Supreme Court in Salvucci.

REMANDED WITH DIRECTIONS.

All Judges concur.

AFTER RETURN TO REMAND

BOWEN, Judge.

After a hearing held pursuant to the order of this Court, the trial judge entered the following order:

“ORDER
“In accord with the November 25, 1980 remand of the above-styled case by the Alabama Court of Criminal Appeals, this Court has provided the Defendant/Appellant, Donald Lentini, an opportunity to demonstrate violation of his Fourth Amendment rights.
“On January 20, 1981, the application for rehearing by Appellee, State, of Alabama, was overruled and request for finding of additional facts was denied. “After re-examination of the supplemental transcript and hearing of arguments by both parties, this Court finds that Mr. Lentini had a ‘legitimate expectation of privacy in the invaded place.’ Under the theory of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Defendant testified in the hearing to suppress on March 3, 1980 that he had paid rent on the warehouse. (Supp.Trans., P-28)
“ ‘Q. You paid rent on this warehouse?
A. Yes, sir.
Q. When?
A. I don’t remember the exact date, but that was in the deal with Gloria (Goldson, Lessor of the warehouse) loaning me the furniture. That I was to keep up — you know, pay for the place that it was being kept, what I didn’t use.’ (Supp.Trans, p-28-29)
“This arrangement between the Defendant and Gloria Goldson gave him a legitimate expectation of privacy in the warehouse.
“Upon re-examination of the evidence presented in the supplemental transcript, this Court reaffirms that the original motion of Donald Lentini as to the amphetamines was well taken, in that they were not in plain view of the police officers making the arrest. This Court previously granted the Motion to Suppress as it pertains to the amphetamines. However, the Court finds, under the facts here, that marijuana was in plain view from the outside of the warehouse. The following facts are relevant:
“On the evening of September 15, 1979, at approximately 10:00 P. M., Officers Scott Pilgreen and P. T. Marshall of the Montgomery City Police Department were on routine patrol when they drove by the Storsafe Mini-Warehouse on the Eastern Bypass and observed two black chopper motorcycles parked outside one of the miniwarehouse doors. Because it was unusual and suspicious to see two motorcycles parked there at 10:00 at night the officers believed that a burglary was in progress and pulled up to investigate.
“When the officers pulled up to the motorcycles, a white male stuck his head out the door, looked directly at the police officers, and then stuck his head back inside the warehouse. Office Pilgreen radioed the dispatcher that a burglary was in progress. The officers waited a minute or two trying to decide what to do. “The Defendant and another suspect, Barry Williamson, came out of the warehouse and left the door open. Officer Pilgreen testified that the door was left ‘wide open’ and Officer Marshall testified that it was one-half to three-fourths open.
“While Officer Pilgreen kept him covered, Officer Marshall approached the suspects. According to the Defendant’s testimony, ‘as soon as we walked out, opened the door and all, they had guns on us. And they said, you know, put your hands up against the wall and don’t make a move. So, we just sort of turned to the left and put our hands up against the wall.’
“Officer Marshall had to walk past the miniwarehouse door to get to the suspects. As he approached he smelled burning marijuana. The odor was very strong. He had smelled marijuana before, attending classes on drugs, and had identified marijuana before.
“Officer Marshall testified that while at first he could not positively identify the butt that he saw on the floor to be marijuana, from outside the building, that when he got to the Defendant and smelled the marijuana and looked back inside the door he could identify it.
“He further testified that from outside of the building the substance ‘appeared to be marijuana.’ (Supp.Trans. P-19)
“Under the plain view doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 92 S.Ct. 2022, 29 L.Ed.2d 564 (1971), this Court finds that there was prior justification for an intrusion onto the property of Storsafe Mini-Warehouses in that the officers had ‘probable cause to believe that a burglary was taking place.’ Secondly, this Court finds that Officer Marshall came across the evidence of the marijuana cigarette and the marijuana in the roasting pans inadvertently. He saw both pieces of evidence while moving toward the suspects to frisk them for weapons or burglary tools. Contraband was in plain view through the open door of the warehouse without the officers entering' it. Thirdly, the Court finds that the objects discovered were immediately recognized as evidence of wrongdoing. Officer Marshall testified that both pieces of evidence appeared to be marijuana, relying on his senses of smell and sight.
“The Defendant argues that two conditions must exist in order to establish ‘exigent circumstances’, an exception that permits the officers to intrude and seize evidence in plain view. First, Defendant states that the State of Alabama must show that a warrant could not have been obtained in advance. There is no question that the officers had no time to obtain a warrant in advance of intrusion on the premises of Storsafe Mini-Warehouses because they had probable cause to believe that a burglary was then in progress. As to the individual warehouse of Defendant, Donald Lentini, by leaving the door open Officer Marshall could smell and see evidence of marijuana from outside the individual warehouse.
“The Defendant also claims that there must be a clear and present danger, not merely a problematical one, that the evidence would be removed or destroyed if time were taken to obtain a warrant. In the case at hand, Officer Marshall observed that the cigarette butt was still burning, making it possible for this evidence to be destroyed by the time that a warrant could be obtained. Thus, he acted properly in seizing this evidence immediately.
“As to the marijuana found in the roasting pan, this Court believes that when police are legitimately on the premises and subsequently detect contraband as is set forth above, the additional requirement that the evidence be in clear and present danger of being destroyed is not essential since the search or seizure obviously is reasonable. In this particular situation, the probable cause that a burglary was being committed gave the police legitimate access to the Storesafe Mini-Warehouse area. The Defendant, by leaving the door of his individual warehouse open, permitted the police to obtain a clear view of marijuana therein. “In fact, by leaving the door of the warehouse open, the Defendant negates his expectation of privacy under Rakas, supra, as to the marijuana. The Court of Appeals of Washington encountered a similar situation in State v. Proctor, [12 Wash.App. 274] 429 [529] P.2d 472 (1974). A Seattle police officer responded to a burglar alarm which was sounding in a real estate office owned by Proctor. When the officer arrived, he discovered that a basement door was open and the alarm was still operating. The officer entered the building but found no one inside. However, he did observe a great deal of office equipment, and other items, including an outboard motor, movie projectors and radios.
“Previously, this officer had been told by an informant that Defendant Proctor was engaged in selling and storing stolen property. He, therefore, copied the serial numbers of the calculators. The Court held that since the officer was legitimately on the premises, and was aware of the possibility of theft, he had probable cause to believe he was looking at stolen property.
“The Motion to Suppress as it pertains to marijuana be and the same is hereby OVERRULED.
“DONE this the 4th day of May, 1981.
“/s/ Joseph D. Phelps
“Circuit Judge”

We adopt this order as the opinion of this Court. When conflicting evidence is presented on the issue of probable cause to search and the trial judge finds that probable cause did exist, great weight must be given his judgment. Weatherford v. State, 369 So.2d 863 (Ala.Cr.App.), cert. denied, 369 So.2d 873 (Ala.1979).

We have searched the record and found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

OPINION EXTENDED;

AFFIRMED.

All Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Donald LENTINI. (Re Donald Lentini v. State of Alabama).
    80-798.
    Supreme Court of Alabama.
    Nov. 25, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: CLARK, Retired Circuit Judge. DeCARLO, Judge,

text:
    Luther G. CLAUNCH v. STATE.
    6 Div. 270.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied June 23, 1981.

      Al L. Vreeland, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   CLARK, Retired Circuit Judge.

On a trial without a jury, the court found defendant (appellant) guilty of a violation of the Alabama Worthless Check Act, Code 1975, § 13 — 4-110, et seq., and sentenced him to imprisonment for fifteen months.

The indictment charged in pertinent part that defendant “with intent to defraud, did draw or cause or direct the drawing of a check ... on a depository to-wit: The First National Bank of Tuscaloosa, Tuscaloosa, Alabama, knowing at the time of the drawing of said check that the maker, drawer or payer thereof did not have sufficient funds on deposit in or enough credit with the said depository for the payment in full of said check and all other checks on such funds or credit then outstanding. The indictment contained a photocopy of the face of the alleged check, dated June 3, 1978, in the sum of seven hundred eight dollars, $708.00, and it purportedly bore a signature of Luther G. Claunch. It was a printed form of a bank check with the name and address of Luther G. Claunch, the number of the particular check and the check account number printed thereon.

The evidence is without dispute that all the writing on the check was the handwriting of defendant. He testified that he wrote and signed the check about 4:00 or 5:00 A.M. and handed it to Don Curtis in payment of a gambling debt of defendant in a nearly night long poker game that had just ended. He said that the understanding between him and Curtis was that he did not have money in the bank sufficient to cover the check, that Curtis was to hold it for a few days and defendant would then “pick it up.” He was corroborated by a witness who said he saw defendant write the check and hand it to Mr. Curtis, that he heard defendant tell Mr. Curtis that the check was not good but that defendant would “straighten the money with him” at a later time. The witness said that on the same occasion he observed that Mr. Curtis handed the check to Joseph Campbell and that Mr. Campbell left the game with the check.

The undisputed evidence shows that on June 5, 1978, the check was presented by a man to a teller at the Skyland Branch of the First National Bank of Tuscaloosa, that the teller gave the man presenting the check the sum of $708.00 in full aiid that the man left the bank with the money. As the check was processed at the branch bank in coordination with the main office of the bank, it was determined that there was only $44.00 in defendant’s account at that time, and the check was then marked “Insufficient Funds.” Defendant was promptly notified, and thereafter, though not promptly, defendant paid the bank the amount of its loss in cashing the check.

There were two principal issues in the trial court, one a question of law and the other a question of fact. Both were eagerly controverted. Perhaps the legal question was chiefly argued in the trial court. On appeal, the controversy is devoted almost exclusively to the legal question, it being now presented by appellant in four parts.

In contending that as a matter of law, under the undisputed facts, there was no violation of the Worthless Check Act, as proscribed in § 13-4-113, appellant says: (1) that Alabama’s Uniform Commercial Code, Code of Alabama 1975, title 7, applies to “criminal proceedings under the Alabama Worthless Check Act;” (2) A bank cannot “refuse payment” of a check so as to provide prima facie evidence of intent to defraud and of knowledge of insufficient funds in or credit with “the bank on the part of the drawer after a teller has fully cashed the check and paid the holder thereof the full amount of the check; (3) That a check drawn on an account with insufficient funds to pay it cannot be the subject of a “prosecution under the Alabama Worthless Check Act” if a teller of the bank cashes the check by paying a drawer and holder thereof the full amount of the check, and (4) the presentation of a check drawn on an account with insufficient funds does not constitute “evidence of intent to defraud, when presented to the depository which has records of the account against which it is drawn.”

We disagree with each of appellant’s contentions. As to (1), although there may be many instances when the terminology and procedures set forth in the Uniform Commercial Code are to be taken into consideration in connection with a prosecution under the Alabama Worthless Check Act, the special definitions of words and terms in the former are “definitions applying to this article [Code of Alabama, Article 7] or to specified parts thereof and the sections in which they appear.” § 7-2-103(2). That the meaning given by the Uniform Commercial Code to the multitude of words and terms contained therein is not applicable to the Alabama Worthless Check Act is illustrated by the difference between the two statutes as to the definition of a “check.” In the Uniform Commercial Code in § 7 — 3— 104(2), we find, “A writing which complies with the requirements of this section is: (b) A ‘check’ if it is a draft drawn on a bank and payable on demand.” while the Alabama Worthless Check Act, in § 13-4-111(1) defines a “Check” as “Any check, draft or other written order for money or its equivalent.” In § 13 — 4-111(3), a “Depository” is defined as “Any bank, person, firm, corporation or any other drawee of the check.” The meaning of words or terms in the Alabama Worthless Check Act is not necessarily the same as the meaning ascribed to them in the Uniform Commercial Code.

As to appellant’s (2), appellant relies upon the Uniform Commercial Code as to the meaning of the term “refused payment” in arguing that a bank does not “refuse payment” on a check after its teller cashes the check for the person presenting it. The notion is clearly not in harmony with the language of the Alabama Worthless Check Act and with the practice in banking circles, which is a matter of common knowledge. The cashing of a check by a teller is generally understood to be conditional and subject to revocation by the bank in the event the drawer does not have funds in the bank out of which the check can be paid.

As to (3), we find neither reason nor authority for holding that either the language or the spirit of the law permits an interpretation to the effect that the prima facie evidence of fraudulent intent and knowledge of insufficient funds or credit that is to be found in the drawing of the check could not be found therein in an instance where the drawer successfully obtains from a teller of the drawee bank cash for the amount of the check. It is a matter of common knowledge that a teller often assumes that a check drawn and presented by a known customer is supported by sufficient funds in the bank to cover the check. The particular circumstance of his having presented the check could well have a material bearing upon the question of fact as to his fraudulent intent and guilt but not as to the existence of prima facie evidence of his intent.

By (4), appellant draws the conclusion that any person could escape the statutory “evidence of intent to defraud” when he has drawn a worthless check if he presents it to the bank upon which it is drawn, which, if true, would be such a boon to “bad check artists” that a radical change would be required in the prevailing practice of banks generally, which in this particular is a beneficent practice and in the best interest of the public.

At the conclusion of the evidence, defendant moved to exclude the evidence, and the same was briefly argued by the attorneys for the respective parties. In such argument, defendant’s counsel emphasized legal contentions similar to those we have discussed above. The court overruled the motion. Thereupon, the transcript shows that the attorneys “argued their case to the Court.” The transcript omits such argument of counsel and does not commence again until the court said:

“THE COURT: Will the Defendant come around, please. Sir, it is the finding of the Court that the State has met its burden of proving this case beyond a reasonable doubt and to a moral certainty that you violated the Alabama Worthless Check act as written and drawn in the indictment in this case and before I pronounce sentence ...”

Thereupon, after appropriate allocution, the court pronounced sentence and entered a judgment of conviction and sentence.

Notwithstanding conformity with the usual practice and the propriety of omitting from the transcript the arguments of counsel at the close of a case, the absence thereof, as well as the absence of any possible comments the court may have made during the argument, leaves us in the dark as to whether what we consider as a crucial issue of fact was ever presented to the court in such a way that the court duly considered and definitely decided it. Apparently there was no request for a special finding of facts, and the court was under no duty to make one. Generally as to a non-jury trial where there is substantial evidence of guilt to support a judgment of guilty, the judgment will not be disturbed on appeal “unless it is plainly and palpably contrary to the weight of the evidence.” Stephens v. State, 50 Ala.App. 244, 278 So.2d 245 (1973). There was substantial evidence, we think, of guilt in this case, but, as hereafter discussed, justice requires, we think, that we know whether and how the court decided the pivotal issue of fact, which apparently became greatly obscured and overlapped by the incessant controversy as to principles of law, which the trial court decided against defendant, and which this court now decides against defendant-appellant.

On the crucial factual issue in the case, there was no accord between the parties. According to strong evidence for the State, the defendant presented the check to the teller of the bank, at one of its suburban branches where it was cashed for defendant by the teller. According to strong evidence for defendant, the teller was mistaken as to the identity of defendant as the person who presented the check to the teller and obtained cash in payment thereof, the check was presented by the witness Joseph Campbell, contrary to the expressed understanding between defendant and the person to whom he had given the check that it was not to be banked. The credibility of the witnesses is not for us to decide; it is properly the function of the trial judge. If he decided that defendant was the person that presented the cheek to the teller and obtained cash for it, there is substantial evidence to support such decision. If he decided that the teller was mistaken in her identification of defendant as the one who presented and obtained cash for the check and that such was done without defendant’s guilty knowledge or participation, the judgment, in our opinion, is not supported by substantial evidence and should be reversed. There are some details of evidence that point one way and some another on the crucial issue of fact, which unquestionably came to the attention of the trial court, and they require no comment by us.

The case should be remanded to the trial court for a statement of the trial judge, to be made a part of a Return to this court, showing whether the trial court determined that defendant was the person who presented the check to the teller and then obtained payment thereof, and, if not, whether the court determined from the evidence that the defendant knowingly took part, as an aider or abettor, in the presentation of the check to the teller. If the trial court states that it determined that defendant was the person who presented the check to the teller and received cash therefor, nothing else need be stated by the trial court. We leave it entirely to the trial judge as to the length and brevity of the statement. We leave it also entirely to the trial court as to whether there should be a hearing, for any expression of views of counsel for the respective parties, before the court makes its written statement hereby directed. No evidence should be received at any such hearing.

Upon the Return to this Remandment, the Clerk of the Circuit Court will send counsel for each of the parties, trial counsel and appellate counsel, a copy of the Return, and counsel for each of the parties will then have fifteen days within which to file a brief on the subject and opposing counsel will then have ten days 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. The cause is hereby

REMANDED WITH DIRECTIONS.

HARRIS, P. J., and TYSON, BOOKOUT, BOWEN, JJ., concur.

DeCARLO, J., dissents.

DeCARLO, Judge,

dissents.

I must respectfully dissent. In my judgment, this court must presume that all factual questions were indeed resolved by the trier of fact. We routinely make this presumption in scrutinizing jury verdicts. The result should be no different when a trial judge, rather than a jury, is the trier of the facts. I would therefore affirm.


author: PER CURIAM.

text:
    Luther G. CLAUNCH v. STATE.
    6 Div. 270.
    Alabama Court of Criminal Appeals.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.
   PER CURIAM.

APPLICATION FOR REHEARING, Ala. Cr.App., 406 So.2d 1003, OVERRULED; AFFIRMED AFTER RETURN TO REMAND.

All the Judges concur.

Writ denied, Ala., 406 So.2d 1008.


author: TORBERT, Chief Justice.

text:
    Ex Parte Luther G. CLAUNCH. (Re: Luther G. Claunch v. State of Alabama).
    80-850.
    Supreme Court of Alabama.
    Dec. 18, 1981.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: DeCARLO, Judge. DeCARLO, Judge.

text:
    Ronnie SNIDER v. STATE.
    6 Div. 461.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Rehearing Denied Aug. 4, 1981.

      C. Delaine Mountain and Walter P. Crownover, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Sale of marijuana; fifteen years.

Terry Bowman, a sixteen-year-old Lamar County High School student, testified that he and two other boys went to the appellant’s residence one day early in September in order to purchase marijuana. Appellant and his wife were in their backyard when the boys arrived. Bowman and one of the other boys, Twaine Lawrence, went behind the house where Bowman engaged in a conversation with appellant. The record reflects the following:

“A. That conversation took place at the residence of Ronnie Snider here in Vernon?
“A. Yes, sir.
“Q. Was Ronnie Snider present?
“A. Yes, sir.
“Q. His wife was also present?
“A. Yes, sir.
“Q. Tell the jury the conversation, please?
“A. I went around to the side of the house and I said — he was down there and I said ‘hi’ and he said ‘hi come on in.’ I climbed through part of the fence that was bent away and I went through there and I asked him if he had some marijuana, some reefer, and he said ‘no.’ He said he might possibly be able to get me some next week sometime so I said ‘all right’ and I told him I wanted to get and me and the other boys left.
“Q. Was there any conversation about the quantity that he expected to get?
“A. Yes, sir.
“Q. What did he say about that?
“A. Somewhere around two pounds.
“Q. Did he say anything about you coming back for that at any later time?
“A. He just said to come back some other time next week.”

The following Wednesday, September 10, the three boys returned to appellant’s residence around 11:00 A.M. Terry Bowman and Twaine Lawrence approached the house, while the third boy, Richard Bowman, remained in the truck in which they were traveling.

The appellant’s wife met Bowman at the door and the following transpired:

“We walked up to the house and knocked on the house — knocked on the door and his wife, Ronnie Snider’s wife, came up to the door and said ‘hi, come on in.’ I walked inside the house and I asked if I could get two joints from her and she said they didn’t have it in the small quantity — they didn’t have it rolled up but they had it in dime bags.
“She went back there to the back and brought some back and pinched out about two — gave her about two dollars and I didn’t have no rolling papers or nothing at that time and I couldn’t roll it then. I went back out and me and Twaine got back into the truck and left.
“Q. What kind of container was the marijuana in?
“A. I had a cigarette pack — I had to go out to the truck and get the plastic off the cigarette pack and go back in there and put it in there.
“Q. You paid her two dollars for it?
“A. Yes, sir.
“Q. Was this at the same house where you had discussed the purchase of marijuana with Ronnie Snider?
“A. Yes, sir.
“Q. The lady you were talking about as being his wife; do you know her name?
“A. No, sir.
“Q. Was it the same lady that was there on the previous week when you discussed the transaction with him?
“A. Yes, sir.”

The three boys then returned to school and went to their trade school class. After they returned to their school from the trade school, Terry Bowman wrapped the marijuana in a piece of paper and hid it in a wooden school locker overnight. The next day Bowman removed it from his locker and placed it in his pocket. During the third period of school, the three boys went to a truck and rolled the marijuana into cigarettes. Terry Twaine smoked the marijuana in the truck, while Richard Bowman stood watch. After they finished, they place the remains of the cigarettes under the truck. There was enough marijuana left for one cigarette. Terry Bowman gave it to Twaine Lawrence, who put it in his shirt pocket.

While the boys were smoking the marijuana, they were observed by personnel in the school kitchen, who reported the incident to faculty members. Two teachers searched the area around the truck, found the cigarette butts and reported the incident to the school principal, Mr. David Hul-sey.

Mr. Hulsey contacted Police Chief Van Duke and the two men proceeded to the vocational school. Twaine Lawrence, along with several other students, was called to the director’s office at the school. Lawrence, who had removed his shirt containing the marijuana at the school because of the heat, picked up the shirt and carried it with him to the office. Twaine seated himself in the office and placed the shirt under his leg, thus raising Mr. Hulsey’s suspicion. Hulsey asked for the shirt and when Twaine handed it to him the package of marijuana rolled out of the shirt. Hulsey testified the package was a cellophane wrapper from a cigarette package, filled with a substance which appeared to be marijuana, which he immediately turned over to Chief Duke.

Twaine told Hulsey he purchased the marijuana from the appellant. Terry Bowman was questioned separately at the trade school office, and told the same story to which he testified at trial.

Chief Duke testified he received the package from Mr. Hulsey and Twaine Lawrence in the vocational school office and then put it into an envelope, sealed it, and locked it in his office. He then gave it to Charles Tate to take to the State laboratory to have it analyzed.

Melinda Long, a laboratory analyst for the State, testified she received a package of vegetable matter from Investigator Charles Tate. Her tests on the substance proved it to be marijuana.

Twaine Lawrence testified to substantially the same facts as presented in the testimony of Terry Bowman. However, he did not hear all of the conversation with appellant on the boys’ first visit; he remained outside the house and did not observe the actual sale by appellant’s wife.

The State rested at the conclusion of Lawrence’s testimony. Appellant moved to exclude the State’s evidence and the trial court denied his motion.

The defense called appellant to testify in his own behalf. Appellant recalled the boys’ visit to his house and a discussion with them in the backyard of his house. The record reflects his recollection of the conversation and subsequent events as follows:

“Q. Tell me what was said during that conversation?
“A. Well, they come around there and asked me if I had any marijuana I would sell them and I told them no, I didn’t sell any and they called me — called some names and they said that they sent them up there.
“Q. Called some names and said they sent them up there?
“A. (Witness nods head.)
“Q. What did you tell them?
“A. I told them that I didn’t — that I didn’t sell the stuff.
“Q. At any time during that conversation did you tell them that you might could get them some?
“A. No.
“Q. At any time during that conversation did you say anything about getting a couple of pounds for them to come back later?
“A. No.
“Q. On September 10, you heard the boys testify that they went to your home and purchased marijuana. Were you present in your home on September 10 when they came to your home?
“A. No.
“Q. Where were you on September 10, 1980?
“A. I was working.”

Appellant stated he had no knowledge of the boys’ subsequent visit to his house and their purchase of marijuana from his wife until the time of the arrest. Appellant also stated that his wife did not tell him about the boys’ second visit until after he was released from jail. She told appellant that she had found the marijuana on the side of the road, and had sold the boys some upon their request. The defense rested at the conclusion of appellant’s testimony.

I

Appellant argues the trial court erred in overruling the motion to exclude the State’s evidence because the State failed to prove he was connected with the crime charged. He asserts the State failed to show any community of interest or unlawful intent connecting appellant with his wife in the sale of the marijuana.

The evidence produced at trial was sufficient to raise a jury question as to appellant’s involvement in the crime. We must view the evidence presented in the light most favorable to the State. Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975). The State’s evidence indicated that the teenage boys approached the appellant in search of marijuana. They were told that he could and would sell marijuana to them, although not until the following week, for lack of a present supply. Appellant’s wife was present and capable of hearing appellant’s instructions to the boys to return the following week. When the boys did indeed return, as they were previously instructed to by appellant, the wife, without hesitation, admitted an almost total stranger into her house. She consummated the prearranged illegal sale, undoubtedly on the basis of her knowledge of Terry Bowman through her husband’s conversation and agreement with the boy to sell him marijuana. She knew the boy returned at her husband’s instruction, and with his approval, to purchase the marijuana. Terry Bowman testified that she said:

“. . . they didn’t have it in the small quantity — they didn’t have it rolled up but they had it in dime bags.” (Emphasis added)

It was reasonable under these facts for the jury to infer that appellant and his wife acted in concert with a community of purpose in arranging and consummating the illegal sale with the teenage boys. Kendrick v. State, Ala.Cr.App., 377 So.2d 1112, cert. den., Ala., 377 So.2d 1114 (1979). An illegal community of purpose or conspiracy need not be proved by positive testimony, and in fact, is rarely so proved. Rather, the jury must look to the conduct of the parties and the totality of the testimony adduced at trial to determine the existence and extent of the conspiracy. Kendrick, supra; Knight v. State, 50 Ala.App. 457, 280 So.2d 163 (1973).

The State is required to produce evidence which affords a reasonable inference that the defendant participated in some way with the seller in making the sale, and such a linkage may be proved by circumstantial evidence. Hill v. State, Ala.Cr.App., 348 So.2d 848, cert. den., Ala., 348 So.2d 857 (1977). In Baker v. State, 52 Ala.App. 150, 290 So.2d 214, cert. den., 292 Ala. 708, 290 So.2d 217 (1974), we observed:

“Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether the one so contributing is present or not, brings the accused, under such circumstances, within the influence of the cited statute.”

Where the evidence, as here, raises a question of fact for the jury and that evidence, if believed, is sufficient as a matter of law to sustain the conviction, the denial of the appellant’s motion to exclude the State’s evidence is not error. Perry v. State, Ala.Cr.App., 371 So.2d 969, Ala., 371 So.2d 971 (1979).

ii

The trial court’s oral charge, as it pertains to complicity, appears in the record as follows:

“It is a general principle of law as to certain matters arising under the criminal code that a person is not criminally liable for an offense unless it was committed by his own behavior or by the behavior of another from (sic) whom he is legally accountable.
“A person is legally accountable for the behavior of another person constituting a criminal offense if, with .the intent to promote or assist in the commission of an offense he procures, induces, or causes such other person to commit the offense or aids or abets such other person in committing the offense.”

Appellant asserts the court erred in failing to define the term “aiding and abetting” as it relates to complicity. The appellant did not request a written charge on this matter, but did orally object at the conclusion of the court’s oral charge to the court’s instruction in this regard. We have reviewed the court’s oral instruction and find it adequately covers the law of complicity as it relates to the immediate offense. See Section 13A-2-23, Code of Alabama 1975, and Black’s Law Dictionary, “Aid and Abet,” p. 91 (4th ed. 1951).

Additionally, the remedy for the omission of a principle of law from the court’s oral charge is to request a written charge which supplies that omission. Section 12-16-13, Code of Alabama 1975; Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955); Thigpen v. State, Ala.Cr.App., 369 So.2d 291 (1978), Ala., 369 So.2d 297 (1979).

Ill

Appellant asserts the State failed to prove a valid chain of possession of the marijuana introduced into evidence at trial.

Terry Bowman testified he placed the marijuana he purchased from appellant’s wife in his school locker, wrapped in paper, and retrieved it from the same place the following morning. He and Twaine Lawrence then smoked a portion of it. The remainder was placed in Twaine Lawrence’s shirt pocket, which was worn by Lawrence to the trade school. He removed the shirt at school because of the heat, but picked it up and took it with him when he was called to the office. There the marijuana fell out of his shirt pocket, was picked up by Principal Hulsey and handed to Chief Duke.

The marijuana was taken by Chief Duke, sealed in an envelope and locked in his office. Chief Duke identified the item introduced at trial as identical to that he received from Twaine Lawrence. Chief Duke then turned the substance over to Investigator Charles Tate to take to the State laboratory for analysis. Melinda Long, laboratory analyst for the State, testified at trial that she received the vegetable matter from Charles Tate.

Only the marijuana remaining after the boys smoked at school was introduced as evidence. There was evidence tending to show that the matter analyzed and identified by Tate also contained the remainder of the cigarettes the boys rolled at school. These remnants, which had been picked up by faculty members, however, were not introduced as evidence.

We find no error in the chain of possession established at trial. The identification and continuity of possession were sufficiently established to afford ample assurance of the authenticity of the item. Yarber v. State, Ala., 375 So.2d 1231, (1979). There appeared to be no missing link in the chain of identification. Lewis v. State, Ala.Cr.App., 353 So.2d 60 (1977).

IV

Appellant was indicted for “selling” marijuana. The trial court’s sentencing of appellant appears in the record as follows y

“THE COURT: Mr. Snider, you were in Court on October the 15th and after having the trial in this case in Lamar County when the jury returned in open Court a verdict which read: ‘we, the jury, find the defendant guilty as charged in the indictment’ and that the jury declined to assess a fine and it was signed by Mr. dayman Johnson who was the foreman in that case.
“THE DEFENDANT: (Defendant nods head.)
“THE COURT: The jury having found you guilty as charged in the indictment; the Court adjudges you guilty of unlawfully selling marijuana.”

The judgment and sentence as they originally appeared in the record, however, erroneously adjudged the appellant guilty of “Possession and sale of Marijuana as charged in the indictment.” (Emphasis added). Appellant argues this is a variance between the crime for which he was indicted and the crime for which he was convicted, and hence, reversible error.

It is obvious that a clerical error was made in the recording of the judgment and sentence for the record. However, appellant was correctly adjudged and sentenced at trial and at the sentencing hearing in accordance with the indictment. Therefore, pursuant to Rule 10(f), A.R.A.P., we have directed that the error in the judgment entry be corrected, and that a supplemental record reflecting the proper judgment be certified and transmitted to this court. We have received the supplemental record with the corrected judgment entry, have searched the record, and have found no error; therefore, the judgment of conviction by the Lamar Circuit court is affirmed.

AFFIRMED.

All the Judges concur.

ON REHEARING

DeCARLO, Judge.

We have re-examined the record in this case and have determined that, contrary to the statement in our original opinion that “[o]nly the marijuana remaining after the boys smoked at school was introduced as evidence,” it appears that two partially-smoked remnants of marijuana cigarettes may also have been admitted at trial.

Appellant correctly states that the proper chain of custody for these two remnants was not established at trial. From that premise, he argues that all the marijuana should have been excluded because the two remnants were intermingled and analyzed with the remainder of the marijuana.

We note that, at the time State’s Exhibit 1 (the marijuana) was introduced, appellant objected to its admission on the ground that it was “seized in an illegal search and seizure.” There was no objection based on the State’s failure to establish the proper chain of custody, or on the intermingling of the cigarette remnants with the loose plant material.

Appellant is bound by the ground of objection stated at trial. Franklin v. State, Ala.Cr.App., 357 So.2d 364, cert. den., Ala., 357 So.2d 368 (1978). Specified grounds of an objection to evidence waive all other grounds. Ward v. State, Ala.Cr.App., 376 So.2d 1112, cert. den., Ala., 376 So.2d 1117 (1979).

We also note that, at the time State’s Exhibit 2 (the toxicologist’s report) was introduced, appellant made no objection. In order to preserve the question for review, timely objection at trial must be made. Gunn v. State, Ala.Cr.App., 387 So.2d 280, cert. den., Ala., 387 So.2d 283 (1980).

After the State rested, appellant moved to exclude the marijuana admitted into evidence, pointing out, at that time, the failure to establish chain of custody for the remnants and the improper intermingling of the two portions of marijuana.

A motion to exclude, however, will not preserve error in the admission of evidence where no timely objection has been made at the time of its admission. McQueen v. State, Ala.Cr.App., 355 So.2d 407 (1978); Body v. State, Ala.Cr.App., 341 So.2d 744, cert. den., Ala., 341 So.2d 748 (1976).

The soundness of the above rule is apparent; appellant should not be permitted to delay his objection to the State’s failure to establish chain of custody until after the State has rested and the prosecution no longer has the opportunity to remedy the defect in its proof. Had appellant made known the ground of his objection when the evidence was introduced, the State could have established the proper continuity of possession or, failing that, it would have been unable to have the evidence admitted.

OPINION EXTENDED: APPLICATION FOR REHEARING OVERRULED.


author: ADAMS, Justice.

text:
    Ex parte Ronnie SNIDER. (Re Ronnie Snider v. State of Alabama).
    80-822.
    Supreme Court of Alabama.
    Nov. 25, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Travis BROCK v. STATE.
    5 Div. 541.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      Robert W. Gwin, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of murder in the first degree and fixed his punishment at imprisonment for life. He was duly sentenced accordingly.

There is no dispute in the evidence as to the fact that defendant killed Stephen Taylor, the alleged victim, by shooting him with a pistol. The controverted issue on the trial was whether the homicide was committed in self defense.

A major contention of appellant is that the court erred in admitting in evidence the testimony of Detective Marvin Brooks of the Tuskegee Police Department as to an oral statement made to the witness by the defendant, in material part as follows:

“He told me Stephen Taylor came to his house that night and knocked on the window and told him he wanted to talk with him for a few minutes and he said he came to the front door and opened the door and let Taylor in and said, ‘What you want to talk about?’ Then Taylor went and got on the couch and laid down and he said, T thought you said you wanted to talk. Get out of my house.’ And Taylor said, ‘I’m sleepy. I’m going to sleep.’ And Mr. Brock told me that he told Taylor that he would give him two minutes to get out of his house and if he wasn’t out in two minutes he’d get him out. He went back to his back bedroom and got his pistol and came back in the living room and asked Taylor was he going to leave and Taylor stated, ‘No,’ and he shot him. And also said that he got tired of Taylor mistreating him and he didn’t go into no details or anything on that. Of ‘taking advantage of him,’ those were the words.”

The oral statement was made by the defendant soon after he had telephoned law enforcement authorities informing them of the incident soon after it occurred and had been placed in custody and taken to the Tuskegee City Hall during the early morning hours of the day of the shooting, September 15, 1979. Appellant asserts that “It affirmatively appeared from the record that the defendant had exercised his right to counsel” before the oral statement was made. He relies largely upon the first paragraph of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980):

“In Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, the Court held that, once a defendant in custody asks to speak with a lawyer, all interrogation must cease until a lawyer is present. The issue in this case is whether the respondent was ‘interrogated’ in violation of the standards promulgated in the Miranda opinion.”

The forthrightness of appellant’s challenge is commendable, but it assumes that defendant’s statement was made after he “had exercised his right to counsel” or as stated in Miranda, after he had asked “to speak with a lawyer.”

According to the testimony of Detective Brooks and the defendant, the defendant knowingly and voluntarily had signed a “Waiver of Rights” form, which included the following statement:

“I have read this statement of rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me, no pressure or coercion of any kind has been used against me.”

Detective Brooks testified positively and unequivocally that defendant made it clear that he did not want to make a written statement unless the lawyer representing him was present but that he was perfectly willing to make an oral statement without the presence of a lawyer. None of his testimony was inconsistent with the following:

“Q. When did he say he wanted a lawyer?
“A. He said he wanted a lawyer after he had signed it [the waiver of rights form] and after I had signed it and the witness had signed it and I had dated it and [sic] the time and I asked him would he like to give me a written statement concerning what had happened and he stated he did not want to give me a written statement but he would give me an oral statement about what happened, that before he gave me a written statement he wanted his lawyer present.”

The testimony of defendant, on voir dire as to the admissibility of his oral statement, was ambiguous as to whether he had made known his desire to have a lawyer before the execution by him of the waiver of rights form, but it was positive to the effect that he told the detective that he was not willing to make a written statement of what occurred out of the presence of a lawyer representing him, and that Detective Brooks assured him, before he made the oral statement, that their conversation would be a “private” one “just between him and I.” He further testified:

“Well, he said he knew Steve and how bad a character he was and he, he told me, he said what kind of character Steve was, he knew what kind of a character Steve was and what kind of trouble he had been giving and he knew it was true what he had done to me and that, that just between him and I, it would not go no further, and so I told him how I felt about it and so he said it would not be used and he went ahead and used it on his report what I said without having a lawyer present.”

Whether the testimony of defendant, as distinguished from the positively contradictory testimony of the detective, was true, was for the trial court, not an appellate court, to decide.

We find that there was no violation of the principle relied upon as pronounced in Miranda v. Arizona, supra, Rhode Island v. Innis, supra, and other authorities on the subject.

Macon County Coroner Ocie B. Burton, Sr., testified on direct examination as a witness for the State that he personally knew the victim, whose body he examined in his official capacity soon after the victim was shot and while it was on the ground near the trailer home of the defendant. He testified as to the gunshot wounds found on the victim and particularly identified the body of the victim by photographs introduced in evidence. Appellant insists that the court erroneously restricted defendant’s right of cross-examination of the witness “in order to attempt to prove or show possible prejudice or bias.” References are made to pages in the transcript of defendant’s cross-examination of the witness containing objections of counsel for the State and rulings of the court as follows:

“Q. You knew him [the victim] then?
“A. Yeah, I knew him.
“Q. At that time did he come by your place of business most every day?
“MR. BELLAMY: If it please the Court we object to—
“A. —No, not every day.
“MR. BELLAMY: We object as being irrelevant and immaterial as to what he did all through the time he knew Mr. Burton. I don’t believe there is any indication at all.
“MR. PERRY: Your Honor, we would contend that the State has called Mr. Burton as an expert and as the person who examined the body and there has been testimony from Mr. Burton which may be damaging to my client, to Mr. Brock, we believe that we have got a right for the Jury to know just what the relationship was between Mr. Burton and Mr. Taylor prior to his death because we believe that that could have an influence and the Jury might find that to have an influence on the Coroner’s testimony.
“MR. YOUNG: We object to that, Your Honor now.
“THE COURT: I think his testimony would be admissible so far as his ability to identify the body but other than that I think this is somewhat remote and I would sustain the objection in that regard.
“MR. BELLAMY: Thank you, Your Hon- or.
“Q. Mr. Burton, you knew Mr. Taylor to be a violent man, didn’t you?
“MR. YOUNG: And we object to that, if it please the Court.
“THE COURT: Sustained.
“Q. Mr. Burton, isn’t it a fact that Mr. Taylor threatened your life?
“MR. YOUNG: And we object to that. He’s trying to come in the back door, Your Honor, with something the Court has already ruled out.
“THE COURT: I believe at this time that this line of questioning would be improper and I will sustain it.”

We fail to see that the evidence apparently sought to be elicited by the defendant on cross-examination of Coroner Burton, to the effect that the victim was known by the witness “to be a violent man” and had “threatened” the “life” of the witness, could have had any “influence on the Coroner’s testimony,” as contended by defendant on the trial or would tend to show possible prejudice or bias as to the defendant, as now contended on appeal. We do not doubt that the evidence would have tended to benefit the defendant in connection with the defense of self-defense, as to which the defendant was entitled to show the victim’s bad general reputation for violence. Gamble, McElroy’s Alabama Evidence, § 33.01(1) (1977) and cases therein cited. However, to be admissible the evidence must pertain to the bad general reputation for the particular trait rather than the knowledge or opinion of the witness as to the character of the other person relative to the particular trait. In Dave v. State, 22 Ala. 23, 38 (1853), it was held in a case of assault with intent to kill that a witness who had known the defendant since infancy was properly not allowed to answer a question whether the “defendant was a peaceable and obedient boy.” The court reasoned:

“When character is in issue, individual opinions are, in general, not competent to be given to the jury. An exception to this rule sometimes obtains, when testimony of character is given, with a view of impeaching a witness; but in other cases, it is only knowledge of general character — the character which the man bears generally among the persons with whom he associates, and by whom he is known; in other words, his general neighborhood reputation that can be given in evidence.”

Judge McElroy states the principle as follows:

“A person’s character, offered as tending to prove his conduct on a specified occasion, is not provable by the opinion of a witness, no matter how well the witness knows, or how intimate the witness’ association with, such person.” Gamble, McElroy’s Alabama Evidence, § 26.01(4) (1977).

Notwithstanding our concern as to the guilt of defendant of murder in the first degree, as found by the jury, in the light of all the evidence in the case, including particularly that, according to the weight of the evidence, the victim was an intruder in defendant’s home and was physically aggressive toward defendant at or about the time of the homicide, and the superiority of the reputation of the defendant over that of the victim, the issue was for the determination of the jury. There is no contention to the contrary.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Ex parte Travis BROCK. (Re Travis Brock v. State of Alabama).
    80-781.
    Supreme Court of Alabama.
    Nov. 20, 1981.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: TYSON, Judge.

text:
    Michael D. HOLSCLAW, alias v. STATE of Alabama.
    8 Div. 477.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      Richard A. Kempaner, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Michael D. Holsclaw was indicted, tried and convicted of automobile theft in violation of § 13A-8-3(b), Code of Alabama 1975. Subsequent to a sentencing hearing, during which the state presented evidence of four prior felony convictions, the trial court sentenced appellant as a “habitual felony offender” to life imprisonment pursuant to § 13A-5-9-(c)(2), Code of Alabama 1975.

The conviction for the “underlying substantive offense”, i.e. theft of an automobile, is not contested on this appeal.

The sole issue raised here is whether or not the state must indicate prior to conviction that it intends to proceed against appellant as a “habitual felony offender” after conviction of the “underlying substantive offense.”

I

In the instant case the trial was had without a jury. After the trial court had pronounced the appellant “guilty as charged” it set a sentencing hearing pursuant to § 13A-5-10, Code of Alabama 1975 and Rule 6(b)(3), Alabama Rules of Criminal Procedure, Temporary Rules. On the date of the conviction, December 9, 1980, the state served written notice to the appellant of the prior convictions upon which state would proceed in the habitual felony offender hearing. The hearing was properly conducted nine days later.

By the authority of Oyler v. Boyles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962); Holley v. State, Ala.Cr.App., 397 So.2d 211 (1981), cert. denied Ala., 397 So.2d 217 (1981); Johnson v. State, Ala.Cr.App., 398 So.2d 393 (1981); and Smith v. State, Ala.Cr.App., 401 So.2d 251, 6 Div. 495, April 21, 1981, we hold that there is no requirement that a defendant be notified prior to conviction of the state’s intent to proceed against him as a “habitual felony offender”. What is required is “reasonable notice” prior to the sentencing hearing as prescribed by the Alabama Supreme Court in Rule 6(b)(3)(ii), Alabama Rules of Criminal Procedure, Temporary Rules.

Since sufficient written notice was served on appellant nine days prior to the sentencing hearing, this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Michael D. HOLSCLAW. (Re Michael D. Holsclaw, Alias v. State of Alabama).
    80-815.
    Supreme Court of Alabama.
    November 25, 1981.
   EMBRY, Justice.

WRIT DENIED- — NO OPINION.

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


text:
    Dennis Ray RIVERS v. STATE of Alabama.
    1 Div. 52.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    Charles N. McKnight, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Evans Campbell, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Dennis Ray Rivers was indicted by the Grand Jury for the possession of marihuana. The appellant waived his right to a jury trial and was subsequently tried and convicted by the trial judge who sentenced the appellant to three years’ imprisonment.

The facts in this cause are not in dispute. Under a search warrant directed to “Any ABC Enforcement Agent” (R. 52), four agents of the State Alcoholic Beverage Control Board executed a search of appellant’s trailer home and procured all of the evidence used in this prosecution. No local or county officials participated in the execution of the search warrant.

The evidence procured during the search included numerous separate quantities of marihuana and various items of drug paraphernalia. This evidence was admitted over appellant’s pre-trial “motion to suppress evidence and controvert [the] search warrant” and appellant’s “motion to exclude” made at the close of the state’s case.

The appellant presented no evidence at trial.

One of the grounds listed in support of these motions was “that an ABC enforcement agent has no constitutional nor statutory authority to be issued a search warrant or to execute a search warrant.” Thus, the denials of the appellant’s motions based on this ground are the alleged errors on which appellant prosecutes this appeal.

I

We have reviewed the applicable statutes and cases which specify those persons authorized to execute search warrants and have reached the conclusion that this otherwise valid conviction must be reversed. Our reasoning is set out below.

The general statutes regarding the issuance and the execution of search warrants, §§ 15-5-5, -7, Code of Alabama 1975, read as follows:

“§ 15-5-5. If the judge or the magistrate is satisfied of the existence of the grounds of the application or that there is probable ground to believe their existence, he must issue a search warrant signed by him and directed to the sheriff or to any constable of the county, commanding him forthwith to search the person or place named for the property specified and to bring it before the court issuing the warrant.” (Emphasis added). “§ 15-5-7. A search warrant may be executed by any one of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution.” (Emphasis added.)

These statutes dictate that the “sheriff” or a “constable” of the particular “county” in which the warrant is issued will execute the warrant. The obvious import of these regulations is that a local official will be in charge of searches within his county. The only exception to this rule is that the local official can be assisted by others “at his request.” Otherwise, the statutes are to be strictly construed for both the issuance and execution of search warrants in general. United States v. Martin, 600 F.2d 1175 (5th Cir. 1979); and cases cited therein. Since these broad statutes exclude ABC agents as among those authorized to execute search warrants, we must look for some specific authorization.

Section 28-3-43(a)(6), Code of Alabama 1975, lists as one of the “functions, powers and duties” of the ABC Board to . commission such agents, inspectors or investigators as necessary to make arrests and execute search warrants and have the same authority as designated to peace officers as now authorized by law.” (Emphasis added.)

This statute might seem to authorize ABC agents to execute warrants generally, except for the fact that § 28-3-2(b), Code of Alabama 1975, limits the applicability of § 28-3-43, supra, to “transactions in liquor and alcohol and malt or brewed beverages.” The evidence sought by the warrant in this case was marihuana rather than alcohol or brewed beverages. Thus, § 28-3-43, supra, is inapplicable.

The specific statute which is applicable to marihuana is § 20-2-90, Code of Alabama 1975, a section of the Alabama Uniform Controlled Substances Act, which states in this Act:

“It shall be the duty of the state board of pharmacy and its drug inspectors to enforce all provisions of this chapter. The agents and officers of the department of public safety, the drug and narcotic agents and inspectors of the state board of health, and all peace officers of the state and all prosecuting attorneys are also charged with the enforcement of this chapter. The agents and officers of the department of public safety, the drug inspectors of the state board of pharmacy and the drug and narcotic agents and inspectors of the state board of health shall have the powers of peace officers in the performance of their duties to:
“(1) Make arrests without warrant for any offense under this chapter committed in their presence, or if they have probable cause to believe that the person to be arrested has committed or is committing a violation of this chapter which may constitute a felony;
“(2) Make seizures of property pursuant to this chapter.
“(3) Carry firearms in the performance of their official duties.” (Emphasis added.)

For our purposes, this section states that “all peace officers of the state” in enforcing the drug laws can “make seizures of property” pursuant to the Alabama Uniform Controlled Substances Act. Although ABC agents are arguably “peace officers” (see § 28-3-43(a)(6), supra), we do not construe the “make seizures of property” language as an authorization to such “peace officers” to execute search warrants by themselves. Instead, in accordance with §§ 15-5-5, -7, supra, we find that in order to be legal, a search warrant must be executed by or at the direction of county officials. United States v. Martin, supra. At this point, a seizure of property pursuant to the search is authorized by § 20-2-90.

Our decision here negates some well intended efforts by the ABC agents. However, their efforts could have been validated had they notified the proper county officials and obtained their assistance. This additional legislative requirement is not an obstacle to the enforcement of our drug laws, but rather a safeguard of the Fourth Amendment rights of individuals.

Since the warrant was directed to “any ABC agent” rather than a county official and was executed by ABC agents without the authority of county officials, the evidence procured under this search should not have been admitted at trial. The appellant’s motions to suppress or exclude said evidence should have been granted.

Because of the error shown, this cause must be reversed and the judgment below is rendered.

REVERSED AND RENDERED.

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


author: FAULKNER, Justice.

text:
    Ex parte State of Alabama. (Re Dennis Ray RIVERS v. STATE of Alabama).
    81-55.
    Supreme Court of Alabama.
    Nov. 25, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


text:
    John Ronald DANIELS v. STATE.
    1 Div. 92.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    James M. Byrd of Thomas M. Haas and James M. Byrd, Mobile, for appellant.

      Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala.S.C., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981), July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All Judges concur.

Writ denied, Ala., 406 So.2d 1024.


text:
    Ex parte State of Alabama. (Re John Ronald DANIELS v. STATE of Alabama).
    81-61.
    Supreme Court of Alabama.
    Dec. 11, 1981.
   PER CURIAM.

WRIT DENIED — NO OPINION.

All the Justices concur, except ADAMS, J., not sitting.


text:
    Cornelius SINGLETON v. STATE.
    1 Div. 982.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    Reggie Stephens and Michael Scheuer-mann, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala. S.C., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 159 (1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala. S.C.

REVERSED AND REMANDED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Foster Lee STREETER v. STATE.
    3 Div. 247.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      Stephen J. Ellmann, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jacquelyn L. Lufkin, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Rape; fifty years.

The facts in this case fully support the jury verdict. Appellant first confronted the prosecutrix at approximately 3:00 A.M. on July 14, 1979 as she was returning home and asked her for a cigarette or a match. “He was right up in my face.” The prose-cutrix stated that the area was lighted well enough to see by a traffic light and by. a light at a filling station. A Montgomery Police Officer testified later that the area was also lighted by a street light. The prosecutrix testified that appellant was tall and was wearing a white suit. When she told him she did not have a match or cigarette, appellant told her, “Don’t be smart” and slapped her. “Then he threw me to the ground and started dragging me, pulling me out to the street. ... I was trying to stay in the light, but after he put something around my neck and told me he had a knife, then I stopped wrestling with him.” Appellant raped the prosecutrix in a church parking lot across the street from the filling station.

A friend of the appellant’s next helped drag the prosecutrix to the back of the church where he, too, raped her. Appellant told his friend, “Don’t hurt her . . . I’ve been knowing [her] for a long time, her and her whole family.” The prosecutrix then testified that “three more guys” came from the other side of the church and “did the same thing.” When the police arrived with a canine unit the men ran, but one “guy had to come back the second time for Streeter.” The prosecutrix made a positive in-court identification of appellant.

Ms. Augusta Ann Tutt testified that during the time in question she heard a woman screaming: “Please don’t stab me; please don’t kill me.” She went to her upstairs bedroom window and saw two men beating the prosecutrix in the street. Ms. Tutt could not see their faces, but stated that the tallest man had on a light-colored suit. She testified that the prosecutrix “started hollering again once she got behind the church.” Ms. Tutt called the police and later “saw the person in white get up and pull up his trousers.”

Other State witnesses testified concerning the items of physical evidence that were collected at the crime scene. The state rested and appellant’s motion to exclude was denied. Appellant presented no evidence.

I

Appellant alleges that the trial court erred to reversal in admitting testimony from the prosecutrix, during her direct examination, concerning her pretrial identification of him. Appellant relies on Luther v. State, 47 Ala.App. 647, 259 So.2d 857, cert. denied, 288 Ala. 745, 259 So.2d 862, cert. denied, 409 U.S. 877, 93 S.Ct. 129, 34 L.Ed.2d 131 (1972) for the proposition that proof of statements made by a witness out of court is inadmissible to corroborate his testimony at trial. The principle which appellant contends is controlling is succinctly stated in Carlisle v. State, 371 So.2d 975, 977 (Ala.Cr.App.1979) and cases cited therein: “A witness may not corroborate his in-court identification by evidence of an earlier identification of the accused.”

Turning to the record, we note that the prosecutrix testified on direct examination without objection, that she talked with Detective Sidney Williams at police headquarters and that he “showed me ... he told me he wanted me to look through some books and see could I identify the guy.” The prosecutrix stated, again without objection, that she looked through a book, selected a photograph and indicated to Detective Williams whom she had picked out.

Quoting from the record:

“Q I’ll ask you what you did . . . after you saw a picture, what did you do with Detective Williams?
“A I told him that was the guy that— “MR. WALDEN: We’re going to object to any conversation, Judge.
“THE COURT: Sustained.
“Q Don’t tell us what you said, but tell us what you did.
“A I told him that was him.
“THE COURT: Just a minute. The jury will disregard the last answer. Next question.”

The prosecutrix then testified, without objection, that she talked with Detective Williams after selecting a photograph, that she showed the photograph that she had selected to Detective Williams and that no one had told her which photograph to select.

Again, from the record:

“Q The picture that you chose and showed to Detective Williams, who was that?
“MR. WALDEN: Judge, we are going to object to that. The picture is the best evidence.
“THE COURT: Sustained.
“MR. WALDEN: If she’s got any evidence, and what happened—
“THE COURT: Sustained.
“Q Ms. Davis, do you see the man whose picture you chose in the courtroom today?
“A Yes.
“Q Would you tell us where he is, please?
“A There he is.
“Q Is it the man seated next to me in the blue suit, outfit?
“A Yes.”

The prosecutrix next testified, without objection, that she later went back to police headquarters, talked to Detective Williams and viewed a lineup.

Again, quoting from the record:

“MR. WALDEN: Judge, we are going to object to anything that happened in any line-up.
“THE COURT: Sustained at this time.
“Q Now, would describe for us what you saw.
“A I saw some—
“MR. WALDEN: We’re going to object, Your Honor, to what she saw.
“THE COURT: Sustained.
“Q While you were there, did anybody tell you to pick anyone, or not to pick anyone?
“MR. WALDEN: We’re going to object to that.
“THE COURT: Overruled.
“A No.
“Q I’ll ask you if you saw, in that lineup, the man in the white suit that raped you?
“MR. WALDEN: We are going to object to that.
“THE COURT: Sustained.
“Q I’ll ask you whether or not you had occasion to pick out one of those people.
“MR. WALDEN: Judge, we are going to object to anything that happened there.
“THE COURT: Sustained.”

Later, during direct examination, the prosecutrix testified, without objection, that she did not know whether a photograph was taken of the line-up she viewed, she only knew that she “picked out number four.” The prosecutrix could not remember how all the men were dressed in the line-up.

The foregoing represents the prosecu-trix’s complete testimony on direct examination concerning any pretrial identification of appellant. The credibility of the prosecutrix’s identification of appellant was forcefully attacked by defense counsel on cross-examination. On review of the prose-cutrix’s entire testimony, however, we are convinced that the errors alleged were not properly preserved for appeal.

Despite appellant’s argument, the law in this area is clear. It is firmly established that this court may only consider matters contained in the record as it is filed on appeal. Lucy v. State, 340 So.2d 840 (Ala.Cr.App.1976). Review on appeal is limited to matters on which rulings are invoked at the trial court. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974). Matters not objected to in the trial court cannot be considered for the first time on appeal, since review applies only to rulings invoked at trial. Scroggins v. State, 341 So.2d 967, 971 (Ala.Cr.App.1976), cert. denied, 341 So.2d 972 (Ala.1977). To be timely, an objection must come before the question is answered, or else a motion to exclude the unfavorable answer must be made. Hargrove v. State, 344 So.2d 823, 825 (Ala.Cr.App.), cert. denied, 344 So.2d 826 (Ala.1977); Miller v. State, 48 Ala.App. 28, 261 So.2d 447, cert. denied, 288 Ala. 746, 261 So.2d 451 (1972). Where an objection is made after the answer is given, and no ruling of the trial court is insisted upon, there is nothing to review. Morris v. State, 286 Ala. 60, 104 So.2d 810 (1958).

Where an accused receives a favorable ruling to his objection by the trial court, nothing is preserved for review because an adverse ruling is a preliminary requirement to preservation of error and appellate review; absent an adverse ruling the issue of the objection is not properly before this court. Van Antwerp v. State, 358 So.2d 782, 790 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978). And a negative answer to an improper question does not constitute reversible error. Scroggins, supra. Thus, in applying the foregoing principles to the facts, nothing was preserved for our review.

II

Appellant complains that the trial court and his trial counsel interfered with his right to take the stand and testify in his own behalf.

From a fair reading of the record, both appellant’s trial counsel and the trial court made it clear to appellant that he had a choice to testify or not to testify in his own behalf and that the decision was his and his alone. While appellant’s trial counsel did advise appellant not to testify (it was explained to appellant that his prior felony convictions could be brought out to attack his credibility on cross-examination) it cannot be said that appellant was prevented from testifying had he chosen to do so. The following remark to appellant from his trial counsel is enlightening:

“MR. WALDEN: I want you to feel that you have had a fair trial to the very best of my ability, Foster, so I am not trying to take anything away from you. All my advice is, in my opinion, is for your own good.”

Appellant demonstrated clearly that he understood he had a right to testify if he wanted to, and also that he would not have to answer the State’s questions if he did not take the stand. The trial court took every precaution not to influence appellant’s decision one way or the other, and to impress on appellant that the final decision to testify was his alone, that all his lawyer could do was offer advice. In short, we find no indication that appellant’s decision not to testify was other than knowingly and voluntarily made.

III

Appellant contends that the trial court erred in failing to provide him with an independent psychiatric examination more than a month after he was convicted and sentenced.

On September 19, 1979, the trial court ordered that appellant be taken to Bryce Hospital for observation and evaluation in accordance with Ala.Code §§ 15-16-20 and 15-16-21 (1975). On December 3, 1979, Superintendent Jaime E. Condom, M.D., reported to the trial court that appellant was presently competent to stand trial and to assist his counsel in preparing his defense; that he understood the nature of the charges against him; that he was not suffering from a mental illness at the time of the offense which prevented him from distinguishing right from wrong; and that he was not suffering from a mental illness at the time of the offense which prevented him from adhering to the right. The trial court thus ordered appellant back to the Montgomery County Jail on December 7, 1979 to stand trial.

We note that although appellant pleaded not guilty, and not guilty by reason of insanity, he did not pursue his insanity defense at trial on January 30, 1980. He did not allege that he was incompetent to stand trial or that he was insane. Thus, after appellant was released from Bryce Hospital, in accordance with the trial court’s December 7 order, the appellant presented no evidence to the trial court, before or during trial, which raised a “bona fide doubt” of his competence. See Davis v. State, 354 So.2d 334, 338 (Ala.Cr.App.1978) and cases cited therein. Certainly the trial court had no duty to order an independent psychiatric examination more than a month after appellant was convicted and sentenced.

IV

Appellant’s motion for new trial was untimely filed more than thirty days after his adjudication of guilt. Interim Rule 4(b), Alabama Rules of Appellate Procedure. See Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.1981). A lapsed, or dilatory, motion for new trial cannot be reviewed. That is, time is of the essence of the right to a new trial. Cottingham v. State, 57 Ala.App. 427, 329 So.2d 116, cert. denied, 295 Ala. 398, 329 So.2d 120 (1976).

We have searched the record and transcript of evidence for error and have found none; therefore, the judgment and conviction by the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte Foster Lee STREETER. (Re Foster Lee Streeter v. State of Alabama).
    81-80.
    Supreme Court of Alabama.
    Dec. 18, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.