text:
    Hamlin Bee MITCHELL, alias v. STATE.
    5 Div. 503.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      Richard D. Lane, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Hamlin Bee Mitchell was indicted and convicted for the offense of burglary in connection with the nighttime breaking and entering of an uninhabited dwelling house owned by one Jeff Newton. § 13-2-41, Code of Alabama 1975. He was sentenced by the court to serve eight years in the state penitentiary, and now brings this appeal contending that the trial court committed several reversible errors.

The record of the proceedings below indicates that, before the commencement of appellant’s trial, his counsel filed a demurrer to the indictment, which was overruled, and two motions to suppress certain evidence, one being directed specifically to certain “statements” allegedly made by appellant to the police, and the other concerning “all tangible items of property” gathered as a result of appellant’s arrest. The basis for these motions was apparently that appellant had been arrested illegally, and the trial court deferred hearing and ruling on the motions until the disputed evidence was to be admitted during the trial.

The first witness for the State was Jeff Newton, a resklent of Opelika, who stated that, on December 3, 1979, he had left his house, located off Highway 29, around 10:00 o’clock that morning after first closing all of the windows and closing and locking the front and back doors to the house. Mr. Newton testified that he and his roommate, Terry Nelson, returned to the house between 10:30 and 11:00 that night, and that, upon driving down the driveway to the house, they noticed “a strange car” parked at the house. Mr. Newton stated that he then noticed his Pioneer and Jensen brand stereo equipment, normally kept inside the house, resting on the front porch, so he parked his car in such a position so as to prevent the other car from leaving. The witness further testified that he then saw that the front door to the house was open, and decided at that point to look at the second car’s license plate, which displayed a Montgomery number, remove the keys from the car, and further remove the car’s distributor cap “and stuff off of it” to prevent the subsequent starting of the engine. During this sequence of events, he did not see anyone on either the floor or seats of the car. Mr. Newton and his roommate then left and summoned the police. The witness further stated that, during the course of the subsequent police investigation, an officer gave him a “45” adapter, a small plastic item used on stereo equipment to play “45” records, and that this adapter had previously been in the house. Mr. Newton also testified that, after the arrival of the police, he had occasion to see the appellant, who was his “ex-wife’s uncle,” at the scene.

Under cross-examination by counsel for appellant, Mr. Newton testified that he only knew appellant “ ‘cause he was kin to my wife” (R. 19), but had not previously socialized with him, although appellant had been to the Newton house before. He also stated that, while he had been searching for the keys in the second car, he had not seen anyone in or around the house, and it was “possible” that appellant could have been sleeping on the back seat of the ear.

Mr. Newton stated on re-direct examination that he did not notice anyone in the car, and in his opinion there had been sufficient light from a nearby outside light fixture to have enabled him to see anyone in the car.

Robert W. Meadows, a patrolman for the Opelika City Police Department, testified that, on the night of December 3, 1979, he and his partner, Officer Reeves, had been summoned with another “back-up” police unit to Jeff Newton’s residence. Upon arrival, they were met by Mr. Newton at the point where Highway 29 intersects the dirt driveway to the Newton residence, and Newton was then directed to remain at the highway until the officers had investigated what Newton had related to them. Officer Meadows stated that, upon driving down the driveway, he saw a brown Plymouth Valiant automobile near the house and observed appellant “standing in the doorway with a foot on the ground and a foot in the car” (R. 28). Officer Meadows further testified that appellant was standing on the driver’s side of the car, and that the car displayed a Montgomery license plate. The officer also stated that he noticed the front door of the house to be open and several items of stereo equipment resting on the front porch, and at that point “read the defendant his constitutional rights” (R. 30). A subsequent examination of the house revealed that the back door was standing open as well, and there were “pry marks” apparently made by “some sharp type instrument” (R. 33) around the door’s latch. In the interior of the house, the furniture was in disarray and several rooms had been “ransacked.” Officer Meadows further testified that he also had occasion to look into appellant’s car as he was handcuffing appellant.

On examination outside the presence of the jury by counsel for appellant, Officer Meadows stated that he arrested appellant for “public drunkenness” in that he had determined during his reading of the appellant’s rights that appellant was “intoxicated.” The officer testified that he seemed coherent but was intoxicated and “suffering from some type of injury” (R. 38), identified to be a broken collarbone, and thus the officer “didn’t want him walking around and we didn’t want to let him go from the scene” (R. 38). Further, Officer Meadows stated, “he was in no condition to drive or walk around and he was placed under arrest ... because I thought he was a danger to himself at that time” (R. 38). The officer also stated that appellant was in a “public place” in that he was not inside a car or private residence, but that appellant was on private property, and that at any rate the arrest had been made under the provisions of the Opelika City Code and not the state law. Officer Meadows also stated that appellant “was unsteady on his feet, and belligerent ... was using profane language [and] [y]ou could smell an odor of alcoholic beverage about his person; he reeked of it” (R. 39). Appellant was handcuffed at this point, but not charged with burglary, because the officer's were not certain as to what exactly had occurred. Officer Meadows stated that, while in the process of handcuffing appellant, he glanced into appellant’s car through its open door and saw a knife on the passenger’s side of the front seat, and further examined the area around the car, thereby finding the “45” plastic adapter on the ground behind the trunk. The knife and adapter were pointed out by the officer to another detective, but the officer stated that he did not personally secure the items.

Officer Meadows further testified during this hearing that he questioned appellant about the burglary after again advising him of his rights, which appellant claimed to understand, and at that point appellant denied burglarizing the house, but claimed that he had only come to visit relatives. According to the officer, appellant stated that he had gone to the front door, knocked and when no one responded he started to leave, only then noticing the stereo equipment on the front porch. Appellant returned to his car, could not start it, and subsequently fell asleep on the front seat. Officer Meadows further testified that he was not present when appellant gave any written statement. He also stated that he had advised appellant of his Miranda rights at least three times, and had advised him that he was being investigated on the burglary charge. According to officer Meadows, appellant acknowledged his rights and seemed coherent. Appellant was charged with the burglary some three days later, and was also subsequently convicted on the drunkenness charge.

The examination of Officer Meadows was then resumed in the presence of the jury, and the officer testified as to a number of the points raised in the hearing outside the jury’s presence. No testimony was adduced as to any statements, oral or written, that were allegedly made by appellant.

On cross-examination, the officer testified that, to his knowledge, he was uncertain as to when appellant was actually charged with the burglary. He further stated that the nature of the “pry marks” on the back door to the Newton house indicated to him that the marks were very recent, but that he had not found any tools or implements on appellant’s person which might have made the marks, except the knife in appellant’s car.

The State rested its case at that point, and the appellant’s motion to exclude the State’s evidence for failure to prove a pri-ma facie case, and for the prejudicial admission of the knife was overruled. The only witness called by appellant was Edna B. Wiggins, who testified that she was a friend of appellant and had seen him on the night of December 3 around 9:00 o’clock at her residence. According to this witness, appellant did not drink in her presence and did not appear intoxicated. She stated that he stayed at her residence for about two hours and then left, and she was not aware of where he went afterwards.

I

Appellant initially contends that he was illegally arrested on the “drunkenness”. charge at the scene of the burglary in that the circumstances did not justify his arrest on that charge under the terms of the applicable statute, and thus the trial court committed reversible error in apparently overruling the two motions to suppress submitted by appellant at trial. While, admittedly, evidence gathered as the result of an illegal arrest or detention is tainted by the prior illegality and may not therefore be constitutionally produced against a defendant, unless the primary “taint” is negated, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), we are somewhat unclear as to exactly what evidence appellant claims should have been suppressed in the first place. Our review of the record only reveals that, though there was some testimony outside the presence of the jury as to possibly incriminating statements made by appellant at some point after his arrest, these statements were clearly not submitted to the jury for their consideration in determining the guilt or innocence of the appellant. Similarly, Officer Meadows was apparently permitted to testify as to a knife that he had seen on the front seat of appellant’s parked car at the time appellant had been handcuffed outside the car, but such testimony could not be said to have been the product of appellant’s allegedly illegal arrest since the knife was in open view- on the seat. While the thrust of this line of argument is somewhat hazy, we have considered the contentions of appellant in regard to his arrest and find them to be without merit.

The arrest of appellant on the “drunkenness” charge was concededly effected without a warrant, but we find it clear that a police officer has the statutory authority to arrest a person without the requirement of a warrant for “any public offense committed or breach of the peace threatened in his presence,” § 15-10-3, Code of Alabama 1975, and this authority only sanctions a warrantless arrest for a misdemeanor or violation of a city ordinance committed in the presence of the officer. Green v. State, 238 Ala. 143, 189 So. 763 (1939); Coursey v. City of Andalusia, 24 Ala.App. 247, 134 So. 671 (1931). According to the testimony of Officer Meadows, he specifically arrested appellant under the provisions of the Opelika “disorderly conduct” ordinance, and not the state code section governing the offense of intoxication, though a reading of these two provisions reveals that there is essentially no difference between the two. The Opelika, Alabama, Code, § 17-7 states:

“Any person who disturbs the peace of others by violent, offensive or boisterous conduct or carriage, or by loud or unusual noises or by profane, obscene or offensive language, calculated to provoke a breach of the peace, or who shall while drunk or in a state of intoxication, appear in any public place wherein one or more persons are present, or at or within the curtilage of any private residence not his own, where one or more persons are present, and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall be deemed guilty of disorderly conduct, and shall be punished therefor.” [Emphasis supplied]

By comparison, § 13-6-14, Code of Alabama 1975, sets forth the offense of intoxication:

“Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, or at or within the curtilage of any private residence not his own, where one or more persons are present, and manifests a drunken condition by boisterous or indecent conduct or loud or profane discourse shall, on conviction, be fined not less than $5.00 nor more than $100.00, to be paid in money only.”

In Tatum v. State, 32 Ala.App. 128, 22 So.2d 350 (1945), the Court of Appeals, in construing the latter provision, stated the elements of the offense required to be shown by the evidence:

“The mandate of the statute prohibiting public drunkenness requires proof that the alleged offender, while intoxicated, appeared in a public place, or at or within the curtilage of a private residence not his own, where one or more people were present and manifested his or her drunken condition by boisterous, or indecent conduct, or loud or profane discourse.”

See, also, Huckabee v. State, 34 Ala.App. 288, 39 So.2d 43 (1949); Thompson v. State, 34 Ala.App. 608, 42 So.2d 640 (1949). In Thompson, supra, it was stated:

“A mere ‘staggering’ by a drunken accused is not sufficient to establish this offense in the absence of one or more of the elements above enumerated manifesting his drunken condition, that is evidence that the accused was boisterous or indecent in his conduct, or loud and profane.”

Our review of the evidence convinces us that the State demonstrated a prima facie case against appellant of violation of either the Opelika ordinance, or the state statute. See Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975). That appellant was intoxicated is almost undisputed (although the defense introduced an apparent alibi witness who claimed he was not when she saw him earlier that evening), in that “he was unsteady on his feet [and] you could smell an odor of alcoholic beverage about his person; he reeked of it” (R. 39). Officer Meadows testified that appellant “was in no condition to drive or walk around” and “I thought he was a danger to himself” (R. 38). The same officer further stated that appellant was “belligerent” and “using profane language” (R. 39). And it is clear that, besides Officer Meadows, there were three other Opelika police officers present (R. 49). Cf., Moon v. State, 48 Ala.App. 127, 262 So.2d 615 (1972).

Appellant contends, however, that it was not shown that he was in a “public place” while acting in the manner the officer described, and therefore he could not be guilty of public drunkenness under the ordinance (or, for that matter, the state statute, since the wording is practically identical). While the exact geographical lay-out of the Newton house, and its relation to the public road, Highway 29, is unclear from the record (we only know that the house was back away from that road), it is apparent that appellant’s argument ignores that language of the respective provisions that proscribes such conduct “within the curtilage of any private residence not his own.” It is, of course, undisputed that appellant was apprehended at the residence of Jeff Newton, and it is thus immaterial under the terms of either the ordinance or the state statute that appellant was arguably not in a “public place.” Of the decisions cited by appellant, Franklin v. State, 91 Ala. 23, 8 So. 678 (1891), and Lee v. State, 136 Ala. 31, 33 So. 894 (1903), deal with a differently worded gaming statute (§ 13-7-20, Code of Alabama 1975), and are thus clearly inapposite. Warren v. City of Auburn, Ala., 337 So.2d 1319 (1976), dealt with a local ordinance forbidding the consumption of alcoholic beverages in “public place[s],” and under its facts, we do not see that that decision has any application here.

Appellant further argues that he was not permitted a sufficient opportunity to argue at the trial level concerning either his motions to suppress or the “constitutionality” of the Opelika ordinance. We have reviewed the record and find these contentions wholly without substance; additionally, we are not informed as to how or why the particular ordinance might be unconstitutional. We hold that the State carried its burden of demonstrating that the arrest of appellant at the scene on the drunkenness charge was proper and legal.

II

A somewhat similar contention of appellant is that if he was intoxicated so as to have been arrested on that charge, he could not have then voluntarily, knowingly and intelligently waived his Fifth Amendment rights. Again, we are at a loss as to exactly what self-incrimination the appellant is here complaining about, in that there was no testimony produced before the jury which related to any “incriminating statements” allegedly made by appellant to the police after his arrest on the drunkenness charge.

“The law is well settled that intoxication short of mania or such an impairment of the will and mind as to make a person confessing unconscious of the meaning of his words, will not render a confession inadmissible. The existence of intoxication which would affect the voluntariness of a confession is primarily a question of fact which is first addressed to the trial judge to determine the admissibility and later to the jury for whatever consideration it may deem appropriate.”

Jackson v. State, Ala.Cr.App., 375 So.2d 558 (1979); Rogers v. State, Ala.Cr.App., 365 So.2d 322, cert. denied, Ala., 365 So.2d 334 (1978); Medders v. State, Ala.Cr.App., 342 So.2d 49 (1977); Scott v. State, Ala.Cr.App., 333 So.2d 619 (1976). Although we do not see how appellant can complain under these circumstances of any waiver irregularities, we find from the record that in line with the above-cited authorities, there was no “mania” or other such conduct indicating that the degree of appellant’s intoxication was such as to cloud his ability to understand his rights, or be unaware of the events which occurred on this date.

III

Appellant complains that the trial court committed reversible error in failing to grant his motion for a mistrial because of the introduction into evidence, and the subsequent withdrawal therefrom by the court, of a knife which had been removed from appellant’s car. It appears from the testimony that Officer Meadows, during the course of his investigation at the Newton house, discovered some “pry marks” on the back door of the house, and judged them to have been made by “some sharp type instrument” (R. 33). Under questioning outside the presence of the jury, Meadows testified that, while in the process of arresting appellant at appellant’s car, he had seen a knife “on the passenger’s side of the front seat” (R. 40) through the open door of the car, but had not retrieved it, instead only pointing it out to a detective. The State prosecutor acknowledged to defense counsel and the trial court that the State was not going to seek to introduce this knife into evidence. In the presence of the jury, however, the State resumed inquiries about the knife and succeeded in introducing it into evidence over the objection of counsel for the appellant. Subsequently, the following occurred:

“THE COURT: Mr. Meadows, when did you get that knife?
“A. Your Honor, when I first saw it, I pointed it out to another officer and by this time, if I’m not mistaken, Detective Holley was already summoned to the scene and when he arrived I pointed it out to him. And I was ordered by him to transport the prisoner, which I did. To my knowledge, the vehicle was towed in, because of its engine being partially taken apart. At the Police Department the next day the defendant gave a waiver to Lieutenant Gary Knight to search his vehicle. At that time, this in plain view, was taken from the vehicle as a result of that search.
“MR. LANE: I’m going to object to that, Judge. Now, that’s—
“THE COURT: I sustain the objection. I remove that from evidence, ladies and gentlemen of the jury.
“Is there anybody that can’t disabuse that fact from your mind, that you have seen this knife?
“Is there anybody that feels like you could not, you know, base your verdict on the other evidence, whatever it might be, and not consider the knife?
“If there is anybody on the jury that so feels, would you please raise your hand? “Okay. No one says they would.
“So, you take the knife and put it back into the envelope.
“MR. LANE: I move for a mistrial on the grounds that it was prejudicial and inflammatory and it’s like ringing a bell. You can’t unring a bell.
“MR. WILKES: Judge, he testified that appeared to be the same knife he saw—
“THE COURT: I know, but we had a hearing—
“MR. LANE: We had a hearing—
“THE COURT: —and I asked you that question ahead of time, what you planned to do with that knife and that didn’t come up, so put it back in the envelope and let’s go.
“MR. LANE: I renew my grounds for a mistrial because it was prejudicial and inflammatory.
“MR. WILKES: That’s all.
“THE COURT: Any other questions of Officer Meadows?
“MR. LANE: No sir, but do you overrule my motion?
“THE COURT: I did. Let’s go.
“MR. LANE: No further questions.” (R. 62-64) '

Evidently, the court felt that the State had failed to establish the proper “chain of custody” predicate for allowing the admissibility of the actual knife, but it appears that Officer Meadows was allowed to testify concerning his view of the knife on the seat of the car at the time he arrested appellant.

It is constitutionally prescribed in Alabama that “courts may, for reasons fixed by law, discharge juries from the consideration of any case,” Ala.Const. Art. I, § 9, and it is clear that by statute such reasons exist when there is shown “a manifest necessity for discharge or when the ends of justice would otherwise be defeated.” § 12-16-233, Code of Alabama 1975. The trial court is thereby vested with a broad discretion in deciding whether there is in actuality such a “manifest necessity for discharge” or the possibility of injustice for, as stated in Brewer v. State, 24 Ala.App. 410, 137 So. 454, cert. denied, 223 Ala. 568, 137 So. 455 (1931):

“The statute'fixes the reason for a discharge of the jury and of necessity leaves it to the opinion or discretion of the judge or court to determine whether or not the reason as fixed by law really exists.”

See, Woods v. State, Ala., 367 So.2d 982 (1978); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Perry v. State, Ala.Cr.App., 371 So.2d 969, cert. denied, Ala., 371 So.2d 971 (1979); Winnings v. State, 370 So.2d 323, cert. denied, Ala., 370 So.2d 329 (1979).

Our review of the testimony surrounding the point here complained of by appellant does not convince us that the court abused that discretion entrusted to it under the above cited authorities. It is, of course, clear that the State succeeded in introducing the knife into evidence, but it is equally apparent that the trial court then initiated questioning of Officer Meadows on the circumstances surrounding the discovery of the knife, discovered its error in admitting the knife, and then acted promptly to remove the piece of evidence from consideration, instruct and poll the jury. These actions of the trial court were proper, and rendered any error in previously admitting the knife into evidence harmless. Cf., Frost v. State, 225 Ala. 232, 142 So. 427 (1932); McHellen v. State, Ala.Cr.App., 351 So.2d 689 (1978); Retowsky v. State, Ala.Cr.App., 333 So.2d 193 (1976); Pennington v. State, 57 Ala.App. 655, 331 So.2d 411 (1976); Patrick v. State, 43 Ala.App. 338, 190 So.2d 551, cert. denied, 280 Ala. 717, 190 So.2d 555 (1966); Long v. State, 35 Ala.App. 164, 44 So.2d 775 (1950). There was no error by the trial court in refusing to grant a mistrial. McCart v. State, Ala.Cr.App., 387 So.2d 232, cert. denied, 387 So.2d 237 (1980).

We additionally note, at this point, that Officer Meadows was certainly free to testify as to his view of the knife on the seat of appellant’s car on the night in question, since it is clear from the facts that the knife was in open view and thus any sight of the knife was not the product of a “search.” See Vogel v. State, Ala.Cr.App., -So.2d-(Ms. October 28, 1980), and cases cited therein. The State further contends that the seizure of the knife was proper, either because it was in “plain view” or because appellant later waived the warrant requirement, but we find that we need not decide those issues since the “chain of custody” problems would still be evident.

IV

The following jury charges requested by appellant at trial were refused by the trial court:

“DEFENDANT’S REQUESTED WRITTEN CHARGE #1
“The Court charges the jury that you must find the defendant not guilty. “DEFENDANT’S REQUESTED WRITTEN CHARGE # 2
“The Court charges the jury that if you believe the evidence in this case you must find the defendant not guilty.”

The affirmative charge, as propounded in Charge 1, is, of course, properly refused where there is some evidence tending to present a jury question as to a defendant’s guilt or innocence.

“The general charge should never be given when there is any evidence, however, weak and inconclusive it may be, tending to make a case against the party who asks it.”

Grimes v. State, 24 Ala.App. 378, 135 So. 652 (1931). See, Kennebrew v. State, Ala.Cr.App., 356 So.2d 699, cert. denied, Ala., 356 So.2d 702 (1978); Mullins v. State, Ala.Cr.App., 344 So.2d 539, cert. denied, Ala., 344 So.2d 543 (1977); Curry v. State, Ala.Cr.App., 341 So.2d 972 (1976), cert. denied, Ala., 341 So.2d 974 (1977); Ala. Digest Crim. Law Key No. 753.2(5). Similarly, a charge identical in wording to that here contained in Charge 2 was held properly refused in Tate v. State, Ala.Cr.App., 337 So.2d 13 (1976), where “[U]nder the evidence, the issue as to the appellant’s guilt was clearly for the jury’s determination.”

We have set forth the evidence adduced at appellant’s trial in some detail in the first portion of this opinion and decline to reiterate that evidence and its tendencies here. There was certainly a jury question presented as to appellant’s innocence or guilt, and the evidence was sufficient to support the jury’s determination of appellant’s guilt. The requested charges were therefore properly refused.

Our review of the trial record has disclosed no error therein. The judgment below is therefore affirmed.

AFFIRMED.

All the Judges concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    Ex parte Hamlin Bee MITCHELL. (Re: Hamlin Bee Mitchell, alias v. State of Alabama).
    80-318.
    Supreme Court of Alabama.
    May 1, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Samuel A. STIKES, alias Samuel Augustus Stikes v. STATE.
    6 Div. 314.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      Earl E. Cloud and Susan L. Cloud, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the unlawful possession of marijuana. Alabama Code 1975, Section 20-2-70. The jury assessed a fine of fifteen thousand dollars and the judge imposed a sentence of eleven years’ imprisonment.

The major issue on appeal concerns the propriety of the warrantless search of the defendant’s automobile and briefcase.

On August 31, 1978, Lieutenant Richard Anderson of the Huntsville Police Department received information from Huntsville Police Patrolman Donald Ray Smith that an informer, who was never identified, had told Smith that the informer had observed a large quantity of marijuana at a house on Aspen Village or Aspen Drive in Tuscaloosa. The informer gave the defendant’s name and said that the defendant drove a red Volare which should be there at the residence.

After Smith gave Lieutenant Anderson this information, Anderson telephoned Earl Walden, a State Narcotics Officer assigned to the West Alabama Narcotics Squad in Tuscaloosa, and relayed this same information. After learning the defendant’s specific address from the telephone book, Warren and other officers of the West Alabama Narcotics Squad placed 403 Aspen Village under surveillance at approximately 12:00 noon on August 31, 1978.

At some point after the surveillance had been established, Agent Ronnie Robertson telephoned the apartment, having obtained the number from the telephone book. Both the defendant and the State have described this call as a “ruse”. Agent Robertson “believed” he talked to the defendant.

“I told the person on the other end of the line that he did not know me but that I was up at the courthouse and overheard two people one which was the district attorney and a narcotic agent speaking in the hallway in front of the district attorney’s office about serving a paper on Samuel Stikes at the address where they lived.”

Robertson stated that the defendant responded:

“The person at the other end of the line acted as if they didn’t care really.”
♦ sf¡ s(! sf:
“They stated that why should it matter to me ..."

Approximately five to fifteen minutes after this telephone call, agents saw the defendant walking from the direction of Apartment 403 carrying a briefcase or a small •piece of luggage. The defendant entered a rust-colored Volare and drove out of the parking lot. There was no evidence that the defendant “ran” from the building or drove away at an unusual rate of speed.

Within a short distance the narcotics agents stopped the defendant, identified themselves as police officers, and told the defendant that they had probable cause to believe he had controlled substances in his vehicle. Agent Walden removed the key from the defendant’s automobile and opened the trunk where he observed marijuana residue scattered “all over the trunk”. The defendant was then placed under arrest.

The briefcase the defendant was seen carrying was in the back seat of the Volare. After the trunk had been opened and the defendant placed under arrest, Agent Robertson asked the defendant if he knew the combination. The defendant stated that he did and “went over (to) the briefcase and dialed the combination to the combination lock.” Robertson then opened the case and found more marijuana, an automatic pistol, five thousand dollars in cash, and some unidentified papers.

The issue of legality of the warrantless stop and search of the defendant’s automobile turns on whether the narcotics agents had probable cause to believe that it contained contraband. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

In brief the State argues that the basis for the finding of probable cause is found in the following facts:

“(a) An indirect informant’s tip that he had seen marijuana in a house on Aspen in Tuscaloosa ...; (b) An assertion that the informant was reliable . . .; (c) That the Appellant drove a red Volare which would be at the residence . . .; (d) The name of Sam Stikes . . .; (e) Information obtained from the Tuscaloosa telephone book that a Sam Stikes lived at 403 Aspen Village . . .; (f) Police observation that some minutes after a ruse call by the police to a number asserted to be that of the Appellant’s apartment, a man carrying a piece of luggage came from the direction of Building # 403 .. .; (g) The man entered a red Volare, placed the luggage on the back seat of the car and drove off ...” (Citations to page numbers in record omitted).

A tip from an informant will be sufficient, unto itself, to establish probable cause, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), where it meets the constitutional standards of “Aguilar’s two-pronged test”. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Here, we are not concerned with the “basis of knowledge prong” as the unidentified informant disclosed that he gained his knowledge from personal observation. However, the tip is deficient and does not meet the second requirement of Aguilar because the evidence does not reveal “some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable’.” Aguilar, 378 U.S. at 114-115, 84 S.Ct. at 1513-1514.

From the testimony it is clear that the only basis for concluding that the unidentified informant was reliable is Lieutenant Anderson’s testimony that Officer Smith’s informer was reliable because Officer Smith said he was.

“A. I (Anderson) only took his (Smith’s) word that it was reliable.
“Q. You didn’t know anything about the reliability of it did you?
“A. No, sir, except the word from one officer to another.
“Q. No name or anything was given to you to base your reliability on, is that right?
“A. Only the officer’s word that he was reliable, that the informant was reliable.”
He * * * * *
“A. As one police officer to another I asked him about the reliability of the informant and he affirmed that reliability.”
* * * * * *
“Q. Did he tell you the source from which he got his information had proven reliable to him?”
* * * * (Objection Omitted)
“A. I asked him about the reliability of his informant and he said his source was reliability (sic).”

The only information from which this Court can determine the inherent credibility or reliability of the informant is from Lieutenant Anderson’s statement that Smith said the informant was reliable. This is clearly insufficient and creates a fatal defect in the trial judge’s determination of probable cause.

In Aguilar, supra, where the informant was described merely as a “credible person”, the United States Supreme Court concluded that such an allegation was insufficient because it was a “mere conclusion” lacking “some of the underlying circumstances from which the officer concluded that the informant ... was ‘credible’.” In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court indicated that the affidavit at issue there could not stand based upon the informer’s tip itself, for though “the affiant swore that his confidant was ‘reliable’, he offered the magistrate no reason in support of this conclusion.”

“Aguilar and Spinelli thus make it clear that while assessments of informant credibility are ordinarily based upon past performance, a mere allegation that the informant is ‘credible’ or ‘reliable’ does not permit the judicial officer to assume that there was such past performance and that the performance was of a nature to merit such a characterization of the informant.” W. LaFave 1 Search and Seizure 508-509 (1978).

While “very little is required of the affiant to prove the reliability of his informer”, Rickman v. State, 361 So.2d 22, 24 (Ala.Cr.App.), reversed on other grounds, 361 So.2d 28 (Ala.1978); see also Neugent v. State, 340 So.2d 52 (Ala.1976) and State ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970), a “mere conclusion on the part of an officer that an informant is ‘truthful’ or ‘reliable’ has been held to be insufficient. Hayes v. State, 50 Ala.App. 96, 277 So.2d 372 (1973).” Roberson v. State, 340 So.2d 459 (Ala.Cr.App.1976). See also Waters v. State, 360 So.2d 347 (AIa.Cr.App.), cert. denied, 360 So.2d 358 (Ala.1978); Pilkington v. State, 343 So.2d 548 (Ala.Cr.App.1977).

If a tip is found inadequate under Aguilar, “the other allegations which corroborate the information contained in the hearsay report should then be considered.” Spinelli, 393 U.S. at 415-416, 89 S.Ct. at 1514-1515. Here we have insufficient information to satisfy either “spur” of the veracity prong. We have none of the underlying circumstances from which the officer concluded that the informant was “credible” or “his information reliable”. Aguilar, supra; Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 761-65 (1974).

“When the recitation going to ‘veracity’ falls short of Aguilar’s threshold, further inquiry is not estopped. There is still the extrinsic route to the establishment of ‘veracity’. Even where the internal evidence about the informant himself, or about the circumstances under which the information was furnished, fails to establish intrinsically personal ‘credibility’ or informational ‘reliability’, external evidence, contained elsewhere in the application (for a search warrant), may be examined to see what buttressing it provides. Independent police or other credible observations may tend to verify — to corroborate — the story as told by the informant.” Moylan, 25 Mercer L.Rev. at 777-8.

In this case the verification was only slight and not enough to salvage an initial assertion as to the informant’s credibility which was so inadequate under Aguilar as to be nugatory. Reviewing the evidence, it cannot fairly be said “that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s test without independent corroboration.” Spinelli, 393 U.S. at 415-16, 89 S.Ct. at 588-589.

In this case there was no corroboration of any incriminating detail. Indeed the only incriminating detail contained in the tip was that a large quantity of marijuana had been observed inside the defendant’s residence. Consequently, the officers were only able to corroborate innocent details. From this, we find that there was “an insufficient nexus between the corroborated detail and the alleged crime to negate the chance that the informer is, for his own reasons, pointing to an innocent man.” Moylan at 748-9 fn. 41.

Admittedly, some argument can be made that the “ruse” telephone call provided sufficient independent police observation to establish probable cause to believe the informant. Yet, the informant stated that a large quantity of drugs was located inside the apartment. The only fact mentioned about the red Volare was that it was driven by the defendant and should be parked at the residence: “The subject had a red vehicle which he drove and it should be there at his residence.” Therefore, even if the fact that the defendant left the apartment with briefcase in hand shortly after receiving the ruse telephone call furnished probable cause to believe that there were contraband drugs located within the apartment or even contained in the briefcase, this information furnished absolutely no cause or reason whatsoever, beyond a mere suspicion, that drugs were in the trunk of the defendant’s automobile. The agents, who had been observing the Volare both before and after the telephone call, had absolutely no reason to believe that there were any drugs in the trunk. They never saw anyone place anything in the trunk and the informant gave them reason to believe only that a large quantity of marijuana was in the apartment. See State v. Joseph, 351 So.2d 1162 (La.1977).

Furthermore, the evidence does not reveal when Officer Smith obtained his information from the confidential informant. Agent Walden testified that Lieutenant Anderson stated that the “information was that there was a large quantity of marijuana observed at his residence on the date prior to the 31st of August.” Lieutenant Anderson stated that Smith said that he did not know how recently his informant had seen the marijuana. Vagueness in the time element of an informant’s tip renders it defective and insufficient. Ex parte State ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970); Miller v. State, 54 Ala.App. 230, 307 So.2d 40 (1975); Annot. 100 A.L.R.2d 525 (1965).

Since these facts would not have authorized the issuance of a search warrant for the trunk of the defendant’s automobile, they likewise will not authorize a finding of probable cause for the warrantless search of the automobile trunk.

Because of the findings we have made in this opinion, it is not necessary to consider the other issues raised by the defendant on appeal. Because of the failure to prove the existence of probable cause to search the trunk of the defendant’s automobile, the admission into evidence of the marijuana found in that trunk was reversible error. The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: ADAMS, Justice..

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: Samuel A. STIKES, alias v. STATE of Alabama).
    80-291.
    Supreme Court of Alabama.
    May 1, 1981.
   ADAMS, Justice..

WRIT DENIED — NO OPINION.

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


text:
    William Flynn PARMLEY v. STATE.
    6 Div. 385.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.
    ' F. Wayne Keith of Keith, Keith & Keith, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant pled guilty to an indictment for forgery in the second degree. Sentence was three years’ imprisonment to run concurrent with a sentence the defendant had received in federal court.

The defendant was arraigned in December of 1978. He pled guilty in June of 1980.

“A claim of a denial of a speedy trial in violation of the Sixth Amendment is waived by an unqualified plea of guilty.” Bailey v. State, 375 So.2d 519 (Ala.Cr.App.1979). Here the trial judge gave the defendant no assurances or indications, either explicit or implicit, that He could still present the issue of speedy trial on appeal despite his guilty plea. The record shows that the plea was voluntarily and understandingly made and the defendant does not contend otherwise. Therefore, the guilty plea constitutes a waiver of all non-jurisdictional defects in the prior proceedings against the defendant. Bailey.

However, the defendant argues that the Circuit Court lacked jurisdiction over his case because the State failed to comply with the Alabama Mandatory Disposition of Detainers Act. Alabama Code 1975, Sections 15-9-80 — 88. The provisions of this act are not applicable since no showing has been made that the defendant sent any request for final disposition to the district attorney or made any attempt to invoke the sanction of this act. Whitley v. State, 392 So.2d 1220 (Ala.Cr.App.1980).

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

AFFIRMED.

All Judges concur.


author: EMBRY; Justice.

text:
    Ex parte William Flynn PARMLEY. (Re: William Flynn Parmley v. State of Alabama).
    80-301.
    Supreme Court of Alabama.
    April 30, 1981.
   EMBRY; Justice.

WRIT DENIED — NO OPINION.

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


author: HARRIS, Presiding Judge.

text:
    Robert Gene SHIELDS v. STATE.
    1 Div. 162.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      D. E. Brutkiewicz, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted for the first degree murder of Charles McBride whose death was caused by a .38 caliber gunshot wound to the chest. Appellant was properly arraigned in the presence of counsel and interposed a plea of not guilty. Appellant was convicted of second degree murder and the jury fixed his punishment at twenty-five years in the state penitentiary. After sentence was imposed, appellant gave oral notice of appeal. Appellant has been furnished a free transcript and his trial counsel was appointed to represent him on appeal.

The state’s evidence was sufficient to prove beyond any reasonable doubt that appellant was guilty as charged. Appellant’s motion to exclude was properly denied and the defense rested without calling a witness.

Briefly, the state’s evidence revealed that at approximately 2:30 a. m. on November 7, 1979, Leo Albert Simmons, Jr. and the deceased drove to a Seven-Eleven on Michigan Avenue in Mobile in Simmons’ van to purchase a six-pack of beer. Simmons saw “two white males hugging each other” go inside the Seven-Eleven as they pulled up.

Mrs. Reba Irby Fantroy, the cashier at the Seven-Eleven stated that the two white males entered the store and were asking “for directions to a florist’s in Theodore” when Simmons and the deceased came in. Mrs. Fantroy identified appellant as one of the white males and testified that appellant “kept saying, ‘I’m from Montgomery. I don’t know where we at . . .Mrs. Fan-troy further stated that appellant “didn’t appear to be drunk. ... to me he stood up straight.... He wasn’t staggering,” but that Mr. Thomas appellant’s companion “was full of it.” Barry Westley, a friend of the deceased, who was inside the Seven-Eleven at the time, also made a positive in-court identification of appellant.

Simmons paid for the beer, appellant and Thomas walked outside and the deceased followed behind them. As Simmons walked outside to his van he heard some “mumbling” and heard the deceased say “excuse me, excuse me.” When Simmons asked what was going on the deceased explained that appellant had “brushed against” him, but that he (the deceased) was telling appellant “excuse me.” Simmons testified that he told the deceased to “go around and get in the van. Let’s go.” Before they could leave appellant returned from his car. “[H]e got close up to us and he said, ‘What you mean, what you want to do, what you want to do,’ and then I say, ‘What’s the problem,’ and before I could do anything he pulled out something shiny and he shot two times and Charles fell.” Appellant was approximately one foot away from the deceased when he fired the fatal shot. Simmons testified that the appellant next “aimed the gun at me and I hit the dying cockroach position . . . and then I low crawled all the way back into the store. He still shot at me, but he didn’t get me.”

Simmons stated that the deceased had not “threatened” appellant or made any kind of motion toward him prior to the shooting. Neither Simmons nor the deceased was armed. No weapons of any sort were discovered around the body. Simmons testified there was “no doubt” in his mind that appellant shot the deceased, that he would “always” remember it. An autopsy later revealed that the deceased had a blood alcohol level of .15 percent.

The firearms expert with the State Department of Forensic Science testified that the bullet which killed the victim was fired through the barrel of a .38 caliber pistol found in the possession of appellant “to the exclusion of all other weapons in the world.”

Appellant and Thomas were apprehended at approximately.3:28 a. m. that morning and placed under arrest. The .38 caliber murder weapon was recovered from Thomas’s El Camino pickup truck. At the time of his arrest appellant did not appear to be intoxicated, but police officers could smell alcohol on his breath.

Lieutenant Vincent Richardson of the Mobile Police Department, testified that Simmons, Westley and Mrs. Fantroy each picked appellant out of a lineup conducted at the police station between 4:20 and 4:35 that morning. Their identifications were made “immediately” without “any doubts.” The foregoing facts were uncontroverted.

Appellant’s sole contention of error on appeal is that the trial court erred to reversal by refusing the following written requested charges:

“No. 4: The court charges the jury that if they find from the evidence that Charles McBryde had at least 0.10 percent or more by weight of alcohol in his blood then they may presume he was intoxicated.”
“No. 6: The court charges the jury that identification testimony is in the nature of opinion testimony and the jury is authorized to consider such testimony in the light of their own sound common sense, taking into consideration the opportunity of the witness to observe and know the facts from which the witness forms the opinion with regard to the identity of the persons, in determining what, if any, weight and credence the jury would give to such identification testimony, from the evidence.”
“No. 8: The court charges the jury that an opinion of the identity of the defendant, particularly when it is obtained in haste and excitement, should be treated with the utmost caution.”
“No. 9: The court charges the jury that no class of testimony is more uncertain and less to be relied upon than that of identity.”
“No. 10: The court charges the jury that if the defendant, at the time of the killing, entertained a reasonable apprehension of great personal violence, involving imminent peril to life or limb, and could not retreat in safety, or without putting himself at a disadvantage, then the killing would not be wrongful, and it would be the duty of the jury to acquit him.” “No. 11: The court charges the jury that if you find from the evidence that the conduct of the deceased was such as to reasonably lead the defendant to believe that the deceased was about to inflict some great bodily harm on his person, and the jury further find the defendant was not at fault in bringing on the difficulty, that the defendant could not have retreated without increasing his danger, and that defendant, acting on such reasonable belief of great bodily harm, fired a gun at said deceased and killed him, then the jury should acquit the defendant.”
“No. 12: The court charges the jury that if you have a reasonable doubt of the defendant’s guilt growing out of the evidence or any part of it, you should find him not guilty.”
“No. 14: The court charges the jury that a reasonable doubt may arise either from the evidence or from a want of evidence.”

We find, upon review of all the evidence and the court’s oral charge, that the refusal of each of appellant’s written requested charges was without error.

Requested charge 4 is based on Ala. Code § 32-5-193(a)(3) (1975), which, by definition, is limited in criminal actions to “acts alleged to have been committed by any person while driving a vehicle while under the influence of intoxicating liquor. ...” Section 32-5-193(a) (emphasis added). Charge 4, thus, states a principle of law inapplicable to the facts at bar. Moreover, the deceased’s name is misspelled and for that reason, too, charge 4 was correctly refused. State v. Owen, 279 Ala. 281, 184 So.2d 362 (1966).

Requested charges 6, 8 and 9 deal with identification of an accused. While requested identification instructions which deal realistically with the shortcomings and trouble spots of the identification process should be given where the principle has not been covered by the court’s oral charge, United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (D.C.Cir.1972); Brooks v. State, 380 So.2d 1012, 1014 (Ala.Cr.App.1980), the identity of appellant in the instant ease was never in question. An eyewitness, who was within two feet of the shooting, testified that there was “no doubt” in his mind appellant shot the deceased. Two other witnesses were unequivocal in their testimony placing appellant near the scene. The identity of appellant here was simply not in issue.

The court in Telfaire, supra, upon which this court relied as persuasive authority in Brooks, supra, pointed out that the absence of a special identification instruction did not prejudice the accused’s defense, where an eyewitness (victim of robbery) had adequate opportunity to observe the accused at the scene, and subsequently identified the accused after he had been taken into custody. Without question, Simmons had an adequate opportunity to observe appellant at the time of the shooting. Approximately two hours after the shooting Simmons “immediately” selected appellant out of a lineup. Thus, any failure to give a requested instruction on identification was harmless at most. ARAP, Rule 45.

We would point out that appellant attempts to interject the issue of self-defense through other requested charges, and to that extent, charges 6, 8 and 9 are abstract. Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813, cert. denied, 292 Ala. 723, 297 So.2d 817 (1974). Plainly, the principles of self-defense and mistaken identity of the accused are incongruous. Furthermore, charges 8 and 9 are not correct principles of law and are not predicated on a “belief from the evidence.” Thompson v. State, 369 So.2d 50 (Ala.Cr.App.1979); Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976).

Requested charges 10 and 11 were-correctly refused because they are abstract as applied to tbe facts in this case. Hawkins, supra. There is not one shred of evidence that appellant acted in self-defense. The undisputed evidence demonstrates that Simmons and the deceased were attempting to leave the Seven-Eleven when appellant returned from his vehicle and shot the deceased in cold-blooded murder.

Refused charges 12 and 14 were correctly refused because they were substantially and fairly covered by the trial court’s oral charge. Lambeth v. State, 380 So.2d 923 (Ala.1979). In pertinent part the trial court’s oral charge reads as follows:

“I charge you at the very outset that the Defendant in this case entered into the trial of this case clothed with the presumption of innocence, and this presumption of innocence is a fact to be considered by you as evidence and should not be disregarded. This presumption of innocence remains with the Defendant throughout the trial until the State has proved his guilt beyond a reasonable doubt. There is no presumption of guilt against this Defendant merely because the Grand Jury of this County has returned this particular indictment. This indictment is neither evidence for nor against the Defendant. Again, the burden of convincing you beyond a reasonable doubt and to a moral certainty of the guilt of the Defendant rests upon the State of Alabama throughout the trial of this case.
“In order to justify an acquittal you must have an actual and substantial doubt and not a mere possible doubt. A reasonable doubt is not a mere guess or surmise. It is not a forced or capricious doubt. If after considering all the evidence in this case you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt and it would be your duty to convict this Defendant. The reasonable doubt which entitles an accused to an acquittal is also not a mere vague or speculative doubt, but a reasonable doubt arising from the evidence and remaining after careful consideration of the testimony, such a reasonable doubt as fair-minded conscientious men and women would entertain under all the circumstances or the facts that you heard in this case. I will tell you that the State is not required to convince you of the Defendant’s guilt beyond all doubt, but simply beyond all. reasonable doubt. If after comparing and considering all the evidence in this case your minds are left in such a condition that you cannot say that you have an abiding conviction and to a moral certainty of the guilt of the Defendant then I will tell you you are not convinced beyond a reasonable doubt and the Defendant would be entitled to an acquittal at your hands. Some judges simply state that a reasonable doubt is the doubt that would be entertained by a reasonable person or is the doubt for which a reasonable person could give you a good reason for having.
“I have said several times and I will say several more times beyond a reasonable doubt and to a moral certainty. I will tell you that if you prove one guilty beyond a reasonable doubt you have proven that person guilty to a moral certainty for the terms are synonymous. They mean the same thing.”

The Supreme Court in Lambeth v. State, supra, held that if the jury is presented a discussion of the reasonable doubt standard as applied to the evidence in its totality, then the failure to give instructions similar to appellant’s charges 12 and 14 is not error to reverse. 380 So.2d, at 925.

In addition, charge 14 is not hypothesized on a “belief from the evidence” and for that reason was properly refused. Thompson, supra. In Stafford v. State, 33 Ala.App. 163, 31 So.2d 146 (1947), which appellant cites as authority for charge 14, the refused charge was predicated on a “consideration of all the evidence in this case” 31 So.2d, at 150. Charge 14 contains no predicate whatsoever.

We have considered each of the refused charges argued in brief and have found the refusal thereof to be without error. In addition, we have searched the record, as required by law, for errors injuriously affecting the substantial rights of the appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Robert Gene SHIELDS. (Re: Robert Gene Shields v. State of Alabama)
    80-385.
    Supreme Court of Alabama.
    May 1, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    John Willie MINNIFIELD v. STATE.
    2 Div. 291.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    See also, Ala.Cr.App., 390 So.2d 1146.
    William S. Poole, Jr., Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was convicted of burglary in the second degree and the court sentenced him to ten years imprisonment in the penitentiary. At arraignment, in the presence of counsel, he waived reading the indictment and pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Counsel was appointed to represent him on appeal.

Prior to trial appellant filed a motion to suppress any and all items seized by the officers from his person or automobile on the date of his arrest on the grounds that no probable cause existed for stopping his automobile and conducting a search, and there was no voluntary consent to search either the automobile or his person.

At the conclusion of the suppression hearing the court made and entered of record the following findings of facts:

“The Court having been presented with a Motion to Suppress the evidence filed by the Defendant, and the Court after considering the evidence presented in open Court, is of the opinion that the motion is not due to be granted and that the search and subsequent seizure of the items from the automobile of the Defendant was proper under the circumstances. The Court finds that:
“1. The Chief of Police of Demopolis, Alabama, noticed lights were turned on in a building in downtown Demopolis about 11:30 P.M. on a Saturday night. About one block away, Officer Brock saw a man walking near the railroad tracks carrying something. He attempted to locate the man after he circled the block but did not again see him.
“2. The police discovered that Spiller Furniture Company, (the building where the lights were on) had been entered, the safe opened and the contents taken. Shortly after ascertaining that the store had been entered, the police discovered an automobile parked about a block and one-half away. The automobile was backed into some bushes near the railroad depot and was about 90 feet off of the street. The area was not where an automobile would normally be parked. The police were instructed to watch the auto and the tag number was cheeked with the State.
“3. Officer Brock observed that auto that had been backed into the bushes, travelling south on the same street near where it was parked. It was seen at 3:00 A.M. and about three blocks from where it had been parked. Downtown Demopo-lis is not a beehive of activity at 3:00 A.M. on a Sunday morning; in fact, very few autos can be seen.
“4. Officer Brock stopped the automobile driven by the Defendant and shortly thereafter, several officers questioned the Defendant at the place where he was stopped while his auto was still running. The Defendant informed the officers he was going to Mississippi and had car trouble. He voluntarily removed a trunk key from his key ring without turning off the ignition and gave it to the policemen and told them they could search his trunk. The officers discovered tools and equipment of a type used by burglars. The Defendant told the police he had a prior criminal record and had served time in the penitentiary for burglary.
“5. At this time, Chief Johnson reached under the driver’s seat and found a bag of money that had been removed from the safe at Spiller’s Furniture Company. On the seat of the ear was a letter opener that had been taken from Attorney William Coplin’s office, which is located above and adjacent to Spiller Furniture Company. The Defendant was placed under arrest after the bag containing the money was found.
“The Court is of the opinion that the officers had probable cause to stop the vehicle driven by the Defendant and to search the vehicle because of the exigent circumstances. The location of the vehicle prior to the Defendant being stopped, the nearness of the vehicle to the crime, the fact that the Defendant informed the police he had been convicted of a previous crime, the consent to search his trunk, the burglary tools located in the trunk, the time of the early morning, and all attendant circumstances provided probable cause to the officer to stop the Defendant and search his vehicle. Indeed, had the police failed to stop the Defendant under these circumstances, they would have been ridiculed for allowing the guilty party to escape.
“It is, therefore, ORDERED by the Court that the Motion to Suppress the evidence is denied, and the State shall be allowed to introduce into evidence, the items taken from the automobile of the Defendant. “DONE and ORDERED this, the 29th day of February, 1980.”

When the case came on for trial appellant made known to the court that he desired to represent himself. There was a long colloquy between the court and the appellant covering four pages of the transcript in which the court pointed out the disadvantages of not having a lawyer to represent him. He told appellant that a lawyer was familiar with the rules of evidence and would know when to object and that he was not trained and learned in the law. He assured appellant that he would appoint a lawyer to represent and defend him without cost to him. Appellant told the court that he understood everything the court was telling him but he preferred to represent himself. The court asked him if he was familiar with trial proceedings and he replied that he was and understood the legal process. The court asked how many times he had been convicted and he stated about three times. The court asked appellant if he was making a knowing and intelligent waiver that “you don’t want a lawyer” and appellant said, “yes, sir.” The court then stated, “I can’t make you have one, but if you don’t want one you can proceed yourself.” Appellant replied, “Yes, sir. I appreciate that.” The court then asked: “Do you understand that I will appoint one?” Appellant stated, “I understand.”

Mr. William S. Poole, Jr., had been appointed to represent appellant but appellant was adamant in his desire to represent himself. The court then told appellant he would ask Mr. Poole to sit by 'him and let him ask Mr. Poole any question he would like to ask him, “if you’d like to do that,” and appellant stated, “That will be fine.” The court: “In other words, he wouldn’t say anything; he’d just be there to sit at the table with you and you would handle your own defense and if you wanted to ask him anything — Do you want to do that?” Appellant replied, “Yes, sir; that will be fine.” The court: “Mr. Poole, you will be his table counsel.”

The trial court went to great lengths in pointing out to appellant the dangers and disadvantages of self-representation but he disregarded the advice given by the court. He knowingly and intelligently waived his right to court appointed counsel. His choice to represent himself was made with his eyes wide open. The trial court could not force appellant to accept the aid and assistance of court appointed counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.

The sufficiency of the evidence is not presented for review. There was no motion to exclude the State’s evidence; no request for the affirmative charge; no exceptions to the oral charge of the court, and no motion for a new trial.

The Grand Jury of Marengo County returned two indictments against appellant charging him with the burglary of Spiller Associated Furniture Stores, Inc., and the law offices of William T. Coplin, all in the City of Demopolis, Alabama. He was convicted for the burglary of the furniture store and appealed to this court. His conviction was affirmed on October 7,1980, 390 So.2d 1146 (Ala.Cr.App.) and certiorari was denied on December 19, 1980, 390 So.2d 1154 (Ala.)

Evidence presented by the State showed that, on September 8,1979, at approximately 11:30 p. m., Demopolis Policeman Johnny Brock was patrolling the town of Demopo-lis, Alabama, when he saw a man, wearing dark clothing and carrying something, walk quickly across Main Street. Brock completed his drive around the block, but, when he returned, the individual had disappeared. At that point, Brock heard a radio report concerning lights found on in Spiller Furniture Company and the discovery of an open back door at Spiller’s. Brock advised headquarters that he had seen a man walking across the street west of Spiller, then continued to patrol, looking for that person. After hearing a radio report that Officer Hoven had discovered a car, Brock proceeded to the Southern Railway Depot, which was located approximately one block west of where he had seen the man crossing the street. At the depot, Brock examined the white Plymouth, which was backed into bushes. From the outside of the car, he saw a light colored suit on the back seat. Brock testified, “When we were patrolling the area we had three or four cars in the area and we just kept an eye on the car to see if it moved.”

Brock continued to search the area, and, at approximately 3:00 a. m., he saw the white Plymouth moving south on the street on which the Southern Depot was located. He confirmed the tag number, then stopped the vehicle. At that point, Brock knew about the Spiller Company burglary, but he had not been notified about the burglary at Mr. Coplin’s office. According to Brock, the occupant of the car, identified by his driver’s license, was John Willie Minnifield, who was wearing the suit Brock had seen on the back seat of the car. Other officers were notified that the appellant had been stopped, and they, shortly thereafter, arrived on the scene. Brock testified that Chief Johnson asked permission from the appellant to search his vehicle and that the appellant agreed to the search. A trash bag containing toilet articles and underwear was found on the back floorboard. According to Brock, when Johnson asked for permission to search the trunk, the appellant agreed, removed a key from his key ring, left the motor running, and opened the trunk. Brock observed several “tools” in the trunk.

Officer Marty Hoven of the Demopolis Police Department was assigned to assist Brock in locating the individual he had seen earlier. At the Southern Railway Depot, Hoven discovered the white Plymouth in which he saw, on the back seat, a man’s suit and a blue jacket. Hoven testified that he used his flashlight to look on the front seat, but he saw nothing there.

Demopolis Chief of Police Johnny Johnson testified that, on September 8, 1979, at approximately 11:39 p. m., he observed that the upstairs lights were on at the Spiller Furniture Company. After Johnson reported the observation, Sergeant Meigs was assigned to investigate the store. Subsequently, Chief Johnson heard Sergeant Meigs’ report that an open back door at the Spiller Company had been discovered and Lieutenant Brock’s report that a person had been seen crossing Main Street. Chief Johnson returned to the Spiller Company and found that the store had been burglarized. According to Johnson, entry had'been gained through a skylight. The police and an employee of the store determined that a green bank bag containing approximately four thousand dollars was missing.

A major search was begun in the area. Johnson stated, “We sealed off the downtown area to try to capture the person that Lieutenant Brock had seen crossing the street approximately a half a block from the scene of the burglary.” Later, after hearing a radio report from Brock that he had stopped the white Plymouth, Johnson proceeded to the scene. Upon arrival, he found Brock checking the driver’s license of the appellant, who was standing beside his car. With the aid of a flashlight, Johnson, from the outside of the ear, observed on the front seat a letter opener, later identified as the property of Bill Coplin.

Johnson testified that he asked the appellant for permission to search the trunk of the car and that the appellant granted permission, then opened the trunk. In the trunk were items which, according to Johnson, were “items that during my experience in law enforcement were considered to be burglary tools.” Following discovery of the tools, further search of the vehicle was conducted. A green bank bag containing approximately four thousand dollars in cash and checks made payable to the Spiller Furniture Company was found under the front seat. On the back seat, in plain view, were “dungaree type work clothes.”

Sergeant Robert Meigs of the Demopolis Police Department testified that he investigated the burglary of the Spiller Company. Upon his arrival at the store, he cheeked the rear door and found that it was open about six inches. Meigs, a fingerprint expert whose qualifications were not questioned, raised two latent fingerprints inside the store, one from the cash register drawer and one from a glass jar in which money was kept. Both the drawer and the jar had been kept inside the company’s safe. After comparing the two fingerprints with fingerprints later taken from the appellant, Meigs determined that the fingerprint on the cash register drawer had been made by the appellant.

Regarding entry into the building, Meigs stated:

“I found that entry had been gained by going upstairs by Mr. Coplin’s office and then in a hallway — going down a hallway to the end of a hall at the rear of the building, the subject climbed up over the petition out through a skylight on top of a building, across the building and into Spiller Furniture Company.”

Meigs testified that a briefcase, later identified as Bill Coplin’s, was found “on the floor where you go through the skylight.” The officer was also present at the investigation of the burglary of Coplin’s office. According to Meigs, several desk drawers and filing cabinet drawers in the office had been pulled out and the desk had been ransacked. On cross-examination, Meigs stated that he was unable to obtain any readable fingerprints from Coplin’s office.

William Coplin, a practicing attorney in Demopolis, Alabama, testified that his law office was located above Rutledge Drugstore, which was adjacent to the Spiller Furniture Company. He stated that he left his office on Friday, September 7, 1979, and did not return there until the night of September 9, 1979. According to Coplin, when he left on September 7, there was a letter opener on his desk, and his briefcase was in the office. When he returned to his office on September 9, both items, as well as $137.00, were missing and his office was in “disarray.” Later, the items were returned to him by the Demopolis Police Department. At the trial, Coplin identified the letter opener and the briefcase as items owned by him.

No evidence was presented by the defense. After closing arguments, the appellant moved for a mistrial, but the motion was denied by the trial court.

The first issue raised for review by this court is whether the trial judge erred by denying the appellant’s motion to suppress and by overruling the appellant’s objection to the admission into evidence of the letter opener. The appellant asserts that the evidence should not have been received “because there was not sufficient probable cause to justify the stopping of the defendant John Willie Minnifield’s automobile by the police officers, all in violation of the Fourth Amendment of the United States Constitution.”

In Minnifield, supra, we stated:

“[W]e hold that there were ‘specific and articulable facts’ from which the officer could have formed a reasonable suspicion that appellant had been involved in the burglary earlier that evening, and indeed ‘it would have been poor police work . . . to have failed to investigate this behavior further.’ Terry v. Ohio, supra. The initial stop of appellant was constitutionally permissible.”

Because the initial stop held constitutional in Minnifield, supra, is the same initial stop under review in the present case, we hold, for the reasons given in Minnifield, supra, that the initial stop of the appellant in the present case was constitutionally permissible. Consequently, there was no error in overruling appellant’s motion to suppress, and the letter opener was properly received into evidence.

Appellant’s second contention is that the trial court erred by allowing into evidence, over appellant’s objection, statements concerning the break-in at the Spiller Furniture Company. The record reveals the following:

“What did you do then, if anything? “A. I waited until they got through with their traffic to call in and get some help on trying to locate that person; when they said that the Spiller Company...
“MR. MINNIFIELD: I object to that, Your Honor.
“THE COURT: You object to what?
“MR. MINNIFIELD: That the Spiller case; that is not involved in this case. It’s involved in—
“MR. WATKINS: We submit, Judge, that it shows motive and it shows identification.
“THE COURT: Overruled.”
“Q. I see. Inside Spiller Furniture was it obvious that it had been burglarized?
“A. Yes, sir, the office area was ransacked, the—
“MR. MINNIFIELD: I object to that, Your Honor.
“THE COURT: Sustained.
“MR. WATKINS: Judge, I think we can show — the only thing the state is trying to show is that he says that this is a bogus thing; I was not there; we’re going to put him there. I’m not trying him for the case. I think we have a right to put him in that building and I’m going to do it by the fingerprints.
“MR. MINNIFIELD: This is two cases— “THE COURT: Ladies and gentlemen, I want to explain to you that we are not trying the defendant — He’s not being tried in this case at all with anything to do with Spiller Furniture Company. If any evidence comes out about someone going in Spiller Furniture Company, I want to instruct you that the defendant is not on trial for that case and it is not for your concern. He’s charged with burglary in this case of Mr. Coplin’s office and I’ll instruct you at this time that that is not to be any evidence at all — it is not being submitted to you for your consideration about the burglary of Spiller Furniture. Company. Overruled.”

In C. Gamble, McElroy’s Alabama Evidence, § 69.01(1) (3rd ed.1977), the general exclusionary rule preventing evidence of crimes not charged in the indictment is stated:

“On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question.
“The foregoing exclusionary rule does not work to exclude evidence of all prior crimes, only such as are offered to show the defendant’s bad character. If the defendant’s commission of another crime or misdeed is an element of guilt or tends to prove his guilt otherwise than as tending to prove guilt via bad character, then proof of such other act is admissible.”

In our judgment, statements relating to the Spiller burglary were admissible because they tended to prove the appellant’s guilt “otherwise than as tending to prove guilt via bad character.” C. Gamble, supra. The record shows that the trial judge instructed the jury to that effect.

The circumstantial evidence presented at the trial connected the appellant with the burglaries of the Spiller Company and the Coplin office. Facts relating to the two burglaries were intermixed. Coplin’s briefcase was found below the skylight used to gain entry into Spiller’s; the office and the store were essentially part of the same building, some of the stolen items from both places were found in appellant’s car.

Evidence of the Spiller Company burglary was admissible because that crime was inseparably connected with the burglary of the Coplin office. See C. Gamble, § 69.-01(3), supra. The two crimes could be viewed as one continuous transaction. Burlison v. State, Ala.Cr.App., 369 So.2d 844, writ denied Ex parte Burlison, Ala., 369 So.2d 854 (1979); Hopkins v. State, 49 Ala.App. 159, 269 So.2d 175 (1972); Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948); Summers v. State, Ala.Cr.App., 348 So.2d 1126, certiorari denied, Ala., 348 So.2d 1136.

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.


text:
    Ex parte: John Willie MINNIFIELD. (Re: John Willie Minnifield v. State of Alabama).
    80-365.
    Supreme Court of Alabama.
    May 1, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    Elbert RUSH, Jr. v. STATE.
    3 Div. 167.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      James R. Cooper, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Under an indictment charging murder in the first degree appellant was convicted of murder in the second degree and the jury fixed his punishment at twenty-five years in the penitentiary. In the presence of his attorney at arraignment appellant waived reading of the indictment and pleaded not guilty. After sentence was imposed he gave notice of appeal. He was found to be indigent and was furnished a free transcript. Trial counsel represents him on this appeal.

At approximately 10 o’clock on the night of May 31, 1979, the deceased was sitting in a chair in the yard of her home on Hale Street in the City and County of Montgomery County, Alabama. Appellant was on the porch of his uncle’s house next door and according to the testimony of a state’s witness he was drinking and smoking a “reefer”. Two sisters of the deceased drove up and parked the car in front of the house where the deceased lived. A heated argument ensued between the appellant and the sisters of the deceased about the manner in which the sisters parked their car. Appellant told them to move the car as it was blocking the entrance way to his uncle’s house. There was a profane exchange of words between appellant and the sisters of the deceased and another uncle of appellant intervened and told appellant to leave and go to his grandmother’s house. Appellant walked to the car occupied by the sisters and apologized to. the two sisters. He then got in his car and drove away.

At approximately 11 o’clock p. m. appellant returned to his uncle’s house. Appellant and the deceased once again exchanged words. Appellant came into the deceased’s yard where she was sitting in a chair. The deceased then got up from her chair and went into her house and returned to her chair. While the deceased went to her house appellant went to his car and then returned. A neighbor who witnessed the whole incident testified that she did not see appellant with a weapon when he returned from his car, but appellant admitted he got a tire tool from his car. Appellant and the deceased continued to argue until the deceased jumped from her chair and the two engaged in a struggle. Appellant yelled that he had been stabbed. He then threw the deceased to the ground and struck her with his fist and stomped her with his boots. No weapon was ever seen by any of the witnesses other than appellant during this struggle.

Appellant stated that he took the knife from the deceased but did not remember stabbing the deceased. The deceased was stabbed in the stomach and twice in the back. One of the stab wounds in the back penetrated the heart, resulting in the death of the deceased. Appellant threw the knife away after killing the deceased.

Neighbors had summoned appellant’s uncle, Willie James Gantt, to help restrain appellant. The uncle grabbed appellant. At that time appellant spun around, cutting the uncle. The uncle went back into his house.

While appellant was being treated in the emergency room at Jackson Hospital for a stab wound in his neck which he received in the fight with the deceased, two Montgomery police officers entered the room and interviewed him. They read him the Miranda rights and warnings and asked him if he understood his rights and he replied, “Okay”. He was not threatened or coerced in any manner, nor were any promises, rewards or other inducements made to him to get him to make a statement. He freely and voluntarily gave the officers a statement which was tape recorded.

On a voir dire hearing, out of the presence of the jury, on a motion to suppress the statement, proper predicate was laid and the tape recording was played to the court. The court ruled that the statement was knowingly and voluntarily made and was admissible into evidence. A transcription of the tape was then read to the jury.

Appellant testified in his behalf and his testimony was in all essential respects identical to the tape recording. His testimony shows that he voluntarily returned to the home of the deceased and began an argument with the deceased which led to the affray in which the deceased was stabbed to death.

It is settled law that an extra-judicial confession, oral or written, is prima facie involuntary and inadmissible and the duty rests in the first instance on the trial court to determine whether the confession is voluntary, and, unless it so appears, it should not be admitted. Rainer v. State, Ala.Cr.App., 342 So.2d 1348; Hardin v. State, Ala.Cr.App., 344 So.2d 234.

A finding of the trial court as to the voluntariness of a confession, following a hearing held outside the presence of the jury, will not be disturbed on appeal unless contrary to the great weight of the evidence and manifestly wrong. Patterson v. State, 56 Ala.App. 359, 321 So.2d 698; Balentine v. State, Ala.Cr.App., 339 So.2d 1063.

The testimony concerning the confession of appellant shows the trial court was correct in its determination that the confession was voluntarily made with full knowledge of appellant’s rights and was properly admitted into evidence.

Several written charges were submitted to the trial court and are included in the record on appeal. The charges, however, do not bear the endorsement of the trial judge as having been refused by him. Such an endorsement is required by Code of Alabama 1975, Section 12-16-13, and in the absence of such endorsement by the trial court the question of error in refusing such charges is not properly before this court. Watkins v. State, 50 Ala.App. 111, 277 So.2d 385; Stoudemire v. State, Ala.Cr.App., 365 So.2d 376.

The evidence was more than ample to support the verdict of the jury in finding appellant guilty of murder in the second degree, and that he was not free from fault in provoking the difficulty which led to the fatal stabbing of the deceased. There was no error in denying appellant’s motion for a directed verdict on the ground the state failed to make out a prima facie case. In testing the sufficiency of the evidence to sustain a conviction the Court of Criminal Appeals is required to consider the evidence in the most favorable light for the prosecution. Colston v. State, 57 Ala.App. 4, 325 So.2d 520.

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.


author: FAULKNER, Justice.

text:
    Ex parte Elbert RUSH, Jr. (Re: Elbert Rush, Jr. v. State of Alabama)
    80-356.
    Supreme Court of Alabama.
    May 1, 1981.
   FAULKNER, Justice.

WRIT DENIED—NO OPINION.

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


author: DeCARLO, Judge.

text:
    Archie NELSON v. STATE.
    4 Div. 810.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    J. Fletcher Jones, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Appellant was indicted by the grand jury of Covington County for the first degree murder of Willie J. Salter. He was convicted by a jury of the offense- of first degree manslaughter and sentenced to eighteen months.

The record reveals that at 11:00 P.M. on September 21,1979, appellant and two companions, O. D. Adams and Jimmy Hucka-bee, stopped at the Drip Rock Tavern in Covington County to have a drink and play pool. A pick-up truck belonging to the deceased, Willie T. Salter, was parked near the entrance to the tavern. Salter had the carcass of a rattlesnake in his truck, and, at some point during the evening, he threw the snake at appellant’s feet. Salter later put the snake on the car in which appellant was riding and refused to move it unless appellant paid him twenty dollars. Appellant and Salter argued about the snake and Salter went to his truck and picked up his shotgun. The evidence was in sharp conflict regarding what happened next.

Appellant testified that he was standing behind O. D. Adams and, as Salter began moving toward the two of them with his shotgun, Salter’s daughter began screaming “no, Daddy, no.” Salter then said, “I am killing that big bastard (appellant) behind him (O. D. Adams).” As appellant and O. D. Adams backed away from Salter, appellant fell on the ground and pulled out his gun. The testimony was in dispute regarding whether or not Salter fired at appellant before appellant shot and fatally wounded Salter.

I

Appellant maintains that the trial court erred in refusing the following requested charge:

“Defendant’s Charge No. 17
“The Court charges the jury that while threats alone will not serve as a justification for homicide, if the Jury believe from the evidence that the deceased, at the time of the homicide was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the Defendant, you may then consider the threats made by the deceased in justification of the homicide.”

The refusal of the identical charge was held to be error in Ex parte Traweek, 380 So.2d 958 (Ala.1979); Hunter v. State, 295 Ala. 180, 325 So.2d 921, and Karr v. State, 100 Ala. 4, 14 So. 851. An accused is entitled to the charge in question whenever some evidence of self defense has been offered and some testimony of a threat and its attempted execution has been presented. Ex parte Traweek, supra. In the instant case, it is clear that evidence of the deceased’s statement, “I am killing-that big bastard behind him,” and the deceased’s moving toward the appellant with a shotgun provide the proof necessary to entitle appellant to the requested jury instruction.

For the foregoing reason, the judgment of conviction by the Covington Circuit Court is hereby reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte State of Alabama. (Re: Archie NELSON v. STATE of Alabama).
    80-376.
    Supreme Court of Alabama.
    April 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: BOOKOUT, Judge.

text:
    Henry Clayton PARKER v. STATE.
    4 Div. 853.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      L. Joel Collins of Smith, Smith & Collins, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Driving while intoxicated; $200 fine.

Around dusk on January 11, 1980, the appellant was stopped by Alabama State Trooper Curtis Wright in Phenix City for a headlight violation. Upon observing the appellant’s condition and the interior of his car, Wright placed him in the rear of his patrol car and administered a portable intoxication test. The appellant was then transported to the Russell County Jail and given a photoelectric intoximeter (PEI) test, the results of which indicated that the appellant’s blood contained, by weight, .10 percent of alcohol.

I

Appellant contends that the trial court erred in admitting any evidence concerning the instant charge, especially the results of his PEI test, as he was the victim of an unlawful arrest. He asserts that Trooper Wright had no probable cause to stop his vehicle. Wright testified that he received a radio communication from his superior, Corporal Harry McElwee, whose patrol car was parked adjacent to his, to pursue and stop a car for a headlight violation. He did not see the violation although apparently Corporal McElwee did. Wright followed the orders given him and stopped the car which was driven by the appellant. He observed the faulty headlight and, when appellant exited his ear, observed several beer bottles inside the car. Trooper Wright placed the appellant in his patrol car wherein he smelled the odor of alcohol on and around appellant.

Trooper Wright testified that he had made numerous arrests of persons for driving while intoxicated, was familiar with the smell of alcohol, and had the opportunity to observe the appellant. At the scene he administered a portable field test to determine whether the appellant was intoxicated. He informed appellant of the consequences for the failure to take a PEI test pursuant to § 32-5-192(a), Code of Ala. 1975, and transported him to the Russell County Jail where he administered the PEI test with the consent of the appellant. On cross-examination by ■ defense counsel, Wright also stated that at the scene he recognized the appellant because he had previously arrested him for the same offense.

As defined in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959):

“Probable cause exists where ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed... . ”

(Citation omitted.)

. The mere fact of a radio dispatch will not in and of itself supply probable cause for a police officer to make an arrest. However,'when coupled with the credibility of the source, detail of the information dispatched, and other pertinent circumstances giving rise to the dispatch and arrest, it may give rise to the requisite probable cause. Rudolph v. State, Ala.Cr.App., 371 So.2d 962, cert. denied, Ala., 371 So.2d 965 (1979); Hancock v. State, Ala.Cr.App., 368 So.2d 581, cert. denied, Ala., 368 So.2d 587 (1979); Robinson v. State, Ala.Cr.App., 361 So.2d 379, cert. denied, Ala., 361 So.2d 383 (1978); and cases cited therein. See also Campbell v. State, Ala.Cr.App., 354 So.2d 325 (1977); McClendon v. State, Ala.Cr.App., 341 So.2d 174 (1976), cert. denied, Ala., 341 So.2d 178 (1977). The knowledge possessed by a superior officer may be imputed to the individual arresting officer in determining whether probable cause existed for the arrest. Robinson, supra.

In the instant case Trooper Wright was directed by his superior, who had apparently observed the headlight violation, to pursue and stop the appellant. Upon stopping him Wright personally confirmed the accuracy of the radio dispatch. Consequently, we see no illegality in the initial stop.

In addition, Trooper Wright observed the presence of beer bottles inside the appellant’s car and smelled the odor of alcohol on and about appellant. He also recognized the appellant because he had previously arrested him for the same offense. He thereby had some knowledge of the appellant’s reputation. Taken collectively, the circumstances amply provided the requisite probable cause for appellant’s arrest.

II

Appellant contends that Trooper Wright was not properly certified to administer a PEI test because he did not produce at trial an operator’s permit covering the period during which the test in question was given. He cites no authority to this court in support of that contention. Wright testified that he had received special training for operating a PEI machine at the Alabama Criminal Justice Training Center in Montgomery, with such training being updated approximately every six months. He stated that he had maintained a current PEI operator’s permit since becoming a State Trooper, a period of about four and one-half years. Wright testified that on January 11, 1980, he was duly certified to operate a PEI machine although he did not have a copy of that permit with him. He stated that he had no reason to keep his expired operator’s permit in effect on January 11, 1980, as he had a current permit issued in May, 1980. Wright’s testimony was uncontradicted by the appellant. The evidence indicates that on January 11, 1980, he was duly authorized to administer PEI tests.

Appellant argues that Trooper Wright’s May, 1980, operator’s permit was improperly admitted into evidence; however, the record discloses that the trial court sustained the appellant’s objection to its admission.

Ill

Appellant contends the PEI machine used to administer his test was not properly calibrated, certified, and operating.

Trooper Wright testified that a record book of the tests performed by the PEI machine is regularly made and maintained by each operator in the PEI room of the Russell County Jail. He testified that notations are made into the record as each test is made. He stated that inspections by the Alabama Department of Public Safety are made monthly with the results of such being entered in the record book. Testifying from the record book, Wright noted his January 11, 1980, entry concerning the appellant and the last machine inspection pri- or to the appellant’s test dated December 13, 1979. The book indicated that the PEI machine had been inspected and performed accurately. It indicated that the machine was subsequently inspected on January 14, 1980, with the same result. Wright stated that the inspector’s notation indicates that the machine was operating properly when he completed his inspection, but could have been adjusted in order to perform accurately.

The record book was properly admitted into evidence as a business record which is an exception to the hearsay rule, and “[a]ll other circumstances of the making of such record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility.” Section 12-21-43, Code of Ala.1975; Bagony v. City of Birmingham, Ala.Cr.App., 365 So.2d 336 (1978); Gamble, McElroy’s Alabama Evidence, § 254.01(1) — .01(3), .01(14) (3d ed. 1977). See generally, Thompson v. State, Ala.Cr.App., 384 So.2d 1131 (1979), cert. denied, Ala., 384 So.2d 1135 (1980). Consequently, appellant’s contention is without merit.

IV

Appellant contends that his PEI test was not administered according to the rules and procedures promulgated by the State Board of Health. He further asserts that the trial court erred in admitting a copy of the 1976 rules and procedures followed by Trooper Wright when his PEI test was administered.

Trooper Wright testified that prior to administering the appellant’s test he checked and inspected the machine in order to insure its proper functioning. He stated that such was done for every test given. He found no malfunction of the machine. Wright stated that the machine inspection was performed following rules and procedures issued by the State Department of Health.- Wright testified that he followed those rules and procedures prior to and during the administering of the appellant’s test. The rules and procedures promulgated in 1976 contain a certification by the State health officer.

We find no error in the trial court’s admittance into evidence of those rules and procedures nor in the court’s approval of the procedure followed by Trooper Wright in administering the appellant’s test. Patton v. City of Decatur, Ala., 337 So.2d 321 (1976); Code § 32-5-193(b), supra; Gamble, McEiroy’s Alabama Evidence, § 482.01 (3d ed. 1977).

V

Appellant contends that the results of the PEI test were inadmissible as he was not informed of his right to have an independent test performed at his own expense to determine intoxication pursuant to Code § 32-5-193(d). He argues that Trooper Wright should have informed him of that right.

Section 32-5-193(d) places no duty upon any law enforcement agency administering such tests to inform or notify the accused that he may have an independent blood alcohol test performed. The option set out in § 32-5-193(d) is addressed to the discretion of the person tested and in no way affects the admissibility of the test given at the behest of the State. The very language of that section refutes the appellant’s argument on this issue. Consequently, no error was committed in this regard.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Henry Clayton PARKER. (Re: Henry Clayton Parker v. State of Alabama).
    80-414.
    Supreme Court of Alabama.
    April 24, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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