author: DeCARLO, Judge.

text:
    James A. MAYBERRY v. STATE.
    3 Div. 404.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied May 18, 1982.
    Certiorari Denied, Sept. 17, 1982 Alabama Supreme Court 81-730.

      Maury D. Smith, Sterling G. Culpepper, Jr., and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain & James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

Appellant was indicted, convicted, and sentenced to thirteen months imprisonment for inciting Cecil Dupree to violate the Ethics Act. More specifically, he was found guilty, under § 13-9-40, Code of Alabama 1975, of inciting Dupree, the president of an independent telephone company regulated by the Public Service Commission [hereinafter “P. S. C.”], to provide a prostitute for Ralph McLemore, Executive Director of the P. S. C., in violation of § 36-25-12, Code of Alabama 1975. The latter section provides, in pertinent part, the following:

“No person shall offer or give to a member or employee of a governmental agency, board, or commission that regulates a business with which such person is associated ... anything of value . . . while the member or employee is associated with the regulatory agency, board or commission. Expenses associated with social entertainment afforded members and employees shall not be deemed a thing of value within the meaning of this section.”

On June 25, 1979, appellant was an employee of South Central Bell Telephone Company [hereinafter “Bell”]. His title was “Industry Relations Manager” and his duties were to act as Bell’s liaison with the independent telephone companies operating in the State. Appellant was also a partner in Grayford Electronics Company, which marketed a telephone line testing device, called a “looperback” system, to independent telephone companies. Grayford is not regulated by the P. S. C.

On the same date, Cecil Dupree was the president of GraCeba Total Communications, an independent telephone company located in Ashford, Alabama, and regulated by the P. S. C. In September of 1978, GraCeba bought a looperback system from Grayford Electronics. Later in April of 1979, Grayford was negotiating the sale of another looperback system to customers in Florida, and needed a place to demonstrate the device. Appellant asked Cecil Dupree to allow Grayford to use GraCeba’s facilities for the demonstration and Dupree agreed.

Prior to June 25,1979, appellant and Du-pree had discussed the fact that Ralph McLemore would be coming to Alabama as the executive director of the P. S. C. Du-pree testified that, in an effort to get to know the man with whom he would be dealing in the future, he attempted to discover McLemore’s personal habits and concluded that McLemore had “a liking for women.” Dupree suggested to appellant that the two of them “fix up Mr. Mac .. . with a lady friend.” Later, appellant called Dupree to say that McLemore had been asking when they (appellant and Dupree) were going to “fix him up” and “arrange a party.”

On June 25, 1979 Dupree reserved a suite for McLemore at the Ramada Inn in Montgomery. That evening McLemore, appellant, Dupree and two women had drinks together in McLemore’s room. Appellant, Dupree and one of the women then departed, leaving McLemore and the other woman alone. McLemore’s female companion for the evening stated that Cecil Dupree gave her $100. and told her to “make Mr. McLe-more happy.” She testified that she took the money, spent the night with McLemore, and had sexual relations with him.

Appellant saw Dupree the following day and inquired how much the previous night had cost. Dupree testified that he told appellant “$200,” and that appellant then wrote a check on the Grayford account payable to GraCeba in the amount of $250. and said that he (appellant) wanted to pay Du-pree something for the help and goodwill GraCeba had extended to Grayford on the looperback demonstration for the Florida customers. Appellant stubbed the check “Engr. Exp.,” which he testified meant “engineering expense.”

Appellant’s defense was that he had no knowledge that a prostitute had been provided for McLemore, and that he was merely helping Dupree with legitimate entertainment expenses in return for the favor extended by Dupree to Grayford Electronics.

The State’s theory of the case was that appellant’s inciting Dupree to furnish the prostitute for McLemore was part of a larger scheme, or conspiracy with Dupree and others, to influence the P. S. C. in its decision on a pending telephone rate increase request. The State’s conspiracy theory was based on the following premises: (1) appellant was a friend and business acquaintance of one Larry Seab, an accountant who specialized in doing cost studies for independent telephone companies; (2) appellant convinced McLemore that the P. S. C. should hire Seab as a witness to testify during the telephone rate proceeding; (3) McLemore recommended that the P. S. C. hire Seab; (4) Seab was subsequently hired by the P. S. C. with public funds as an “expert witness to present the case for the consumer” pursuant to § 37-1-18, Code of Alabama 1975; (5) Seab’s testimony was in favor of a rate increase; and (6) the P. S. C. granted Bell a sixteen million-dollar rate hike.

From the above premises, the prosecution argued for the conclusion that Seab gave false testimony and Seab’s employment was due, in general, to appellant’s attempts to “ingratiate himself with members, staff and employees of the P. S. C.,” and in particular to the improper inducement (furnishing a prostitute) to McLemore. Then, based on its contention that it had shown a conspiracy, the State sought to introduce evidence of collateral offenses not charged in the indictment (specifically, illegal campaign contributions to two P. S. C. candidates one year earlier) in order to prove appellant’s attempt to improperly influence the Public Service Commissioners themselves.

Over appellant’s objections of irrelevancy, the trial court allowed the evidence relating to Larry Seab and the two illegal campaign contributions to P. S. C. candidates on the grounds that all the transactions were part of a conspiracy to exert improper influence on the P. S. C. and were admissible to prove appellant’s motive to commit the crime charged in the indictment.

I

Appellant contends that his demurrer to the indictment should have been sustained because, under a strict construction of § 36-25-12, supra, furnishing prostitutes is an example of the “expenses associated with social entertainment” specifically excluded from the prohibition of the statute.

While it is true that penal statutes must be strictly construed, McDonald v. State, 32 Ala.App. 606, 28 So.2d 805 (1947), the construction should not defeat the obvious intent of the legislature, Walton v. State, 62 Ala. 197 (1878), or destroy the spirit and force of the law the legislature intended to enact, American Tobacco Co. v. Werckmeister, 207 U.S. 284, 28 S.Ct. 72, 52 L.Ed. 208 (1907).

In addition, in construing a statute the court must, if possible, avoid a construction which would render the statute in conflict with other statutes. State v. Martin, 160 Ala. 190, 48 So. 847 (1909); Bell v. Mar-Mill Steel & Supply Co., Civ.App., 54 Ala.App. 432, 309 So.2d 471 (1975).

At the time the Ethics Act, including § 36-25-12, was enacted, another statute prohibited enticing or using a female for the purpose of prostitution. Ala.Code § 13-7-2 (1975) (formerly Ala.Code T. 14, § 3 (1940)). Thus, construing the Ethics Act to permit furnishing a prostitute for “social entertainment” would be at odds with the legislative intent, as expressed in § 13-7-2, supra, to prohibit the same conduct.

We therefore find that the legislature did not intend to exempt payments to a prostitute as “expenses associated with social entertainment,” and appellant’s demurrer on this ground was correctly overruled.

II

Appellant argues that the State should have been estopped to indict him because he was induced to give incriminating grand jury testimony by the district attorney’s promise not to prosecute him. Appellant claims the promise not to prosecute was implicit in the following pre-indictment statements made to him by the district attorney:

“You [appellant] are either going to be a defendant or a witness.”
“We’re not after you; we’re after McLe-more.”
“If [you] quit playing games with us about the whores that were furnished to McLemore, [then you] could be a witness for the State.”

The State did not deny that the above statements were made. It contended, however, that the comments were not offers of immunity and did not work an estoppel because appellant did not rely on them in deciding to testify. The State points out that appellant appeared before the grand jury only after Miranda warnings and advice of counsel; his decision to testify was not therefore prompted by his reliance on the claimed promise not to prosecute. Alabama has not embraced the estop-pel theory to uphold non-statutory grants of immunity. See Gipson v. State, 375 So.2d 504 (Ala.Cr.App.1978), affirmed, 375 So.2d 514 (Ala.1979). See also Yarber v. State, 375 So.2d 1212 (Ala.Cr.App.1977), reversed on other grounds, 375 So.2d 1229 (Ala.1978), on remand, 375 So.2d 1231 (Ala.Cr.App. 1978), reversed, 375 So.2d 1231 (Ala.1979), on remand, 375 So.2d 1236 (Ala.Cr.App.1979). Furthermore, even under the estop-pel theory, there must be an explicit immunity agreement upon which the accused relies. See People v. Brunner, 32 Cal.App.3d 908, 108 Cal.Rptr. 501 (1973).

In the present case, we do not find that the district attorney’s remarks amounted to an unambiguous offer of immunity or, taken in light of subsequent Miranda warnings to the appellant, could have prompted any reliance that appellant would not be prosecuted. We therefore hold that the State was not estopped to indict or prosecute the appellant.

Ill

Appellant insists that the trial court erred by admitting irrelevant evidence, specifically testimony concerning four instances of alleged misconduct not charged in the indictment, namely: (1) evidence that appellant caused McLemore to have Seab hired as a witness during the rate hearings; (2) evidence of an illegal campaign contribution to P. S. C. candidate Pete Matthews; (3) evidence of an illegal campaign contribution to P. S. C. candidate Juanita McDaniel; and (4) evidence that appellant was “double-dipping” on his expense accounts with Bell and Grayford.

While we believe that the first two evi-dentiary matters were admissible for the reasons and to the extent discussed hereinafter, it is our judgment that the last two were inadmissible, highly prejudicial, and constitute grounds for reversal.

A. Evidence Relating to Larry Seab.

On the rationale of proving an overall conspiracy to influence the P. S. C., or of showing appellant’s motive to commit the specific offense on June 25,1979 as charged, the trial court admitted evidence of a conversation between Dupree and McLemore sometime between July 11-14, 1979. The State questioned Cecil Dupree as follows:

“Q. All right. Now, did you have a conversation with Mr. McLemore in the presence of Mr. Mayberry?
“A. Yes, sir.
“Q. What, if anything, did you say to Mr. McLemore in the presence of Mr. Mayberry?
“MR. CULPEPPER: Same objection, Judge, we noted previously.
“THE COURT: Overruled. You may answer.
“Q. At the Biloxi symposium there.
“A. I was talking to Mr. McLemore and discussing Larry Seab, the bad points, what I thought about him.
“Q. About who?
“A. What I thought about Larry Seab, which was...
“Q. What did you tell him?
“A. I told him I didn’t like him, I didn’t trust him. I didn’t want him doing my books and about the middle of the conversation Jim Mayberry punched me in the back and said, shut up about Seab, I just got McLemore to hire him as a special investigator or witness for the PSC.
“MR. CULPEPPER: We make the same objection we previously made to his testimony.
“THE COURT: Overruled.
“MR. SMITH: And move to exclude it.
“THE COURT: Motion denied.” [Emphasis added].

In our judgment, the emphasized portion of the above testimony, though weak and inconclusive, does tend to show appellant’s motive for the offense charged. In an early case the Alabama Supreme Court stated the following:

“When it is shown that a crime has been committed and the circumstances point to the accused as the guilty agent, then proof of motive to commit the offense, though weak and inconclusive evidence, is nevertheless admissible.”

Baalam v. State, 17 Ala. 451, 453 (1850). See also Spicer v. State, 188 Ala. 9, 65 So. 972 (1914).

The foregoing testimony indicates that, for whatever reason, appellant wanted McLemore to have Seab hired to testify before the P. S. C., and he did not want Seab disparaged in McLemore’s presence. It is not unreasonable to infer that McLe-more agreed to appellant’s request to hire Seab in part because of the inducement provided him some two to three weeks earlier on June 25. Thus, we cannot say, as a matter of law, that the foregoing evidence was inadmissible. “Testimony going to show motive, though motive is not an element of the burden of proof resting on the State, is always admissible. McDonald v. State, 241 Ala. 172, 174, 1 So.2d 658 (1941).

We emphasize, however, that this testimony was admissible to show appellant’s motive for the charged offense. Appellant was charged with inciting another to provide a prostitute for a P. S. C. employee. Proof that there was a conspiracy to provide the prostitute would have been admissible, see Pope v. State, 365 So.2d 369 (Ala.Cr.App.1978), but proof that there was a conspiracy to commit a separate, unrelated offense, not part of the same transaction or res gestae, see Svirbely v. State, 53 Ala.App. 452, 301 So.2d 219 (Ala.Cr.App.1974), was not admissible.

While we believe that the quoted portion of the testimony about appellant’s persuading McLemore to have Seab hired was relevant to show appellant’s motive for the charged offense, we do not believe that further testimony attempting to discredit Seab was allowable.

Permitting the State to show appellant’s motive for the charged offense was proper. However, allowing the State to show Seab’s motive for, or role in, another offense, gave the State too much latitude in proving a collateral matter.

For example, the State was permitted to introduce evidence relating to the following: (1) Seab’s alleged “conflict of interest” between being a “consumer witness” and his financial ties to certain independent telephone companies; (2) Seab’s motive to give false testimony before the P. S. C.; and (3) the propriety of using public funds pursuant to § 37-1-18, Code of Alabama, supra, to hire Seab.

From the foregoing, it is evident that a large portion of the State’s evidence relating to Seab had no relevance to the crime charged in the indictment. We believe the Alabama Supreme Court addressed a similar situation in Spicer v. State, supra, a case of wife homicide, when it observed the following:

“On the trial the state sought to prove, and did prove, that the defendant had procured several policies of insurance, in his favor, on the life of his wife; such policies aggregating about $17,000. This fact was admissible as tending to show motive on the part of defendant to take the life of the insured-deceased.
“The trial court, however, allowed the state too much latitude in proving every detail connected with the procuring and collecting of the insurance policies. Many of these details were wholly irrelevant to any issue in the case, and could have no other effect than to either bias the jury or distract their minds from real issues to immaterial ones. For example, the state, over the objection of the defendant, was allowed to prove every conversation of the accused having the least reference to the insurance, though it tended to show neither guilt nor innocence, nor to corroborate or to contradict any relevant evidence.
“One B. B. Kilpatrick, a brother-in-law of defendant, was allowed to testify: ‘He [defendant] didn’t say anything about what he was going to do with the insurance money, but he told me how he was going to fix up the house; he didn’t say whether he would do it with the insurance money or not.’
“Witness was then asked the following question: ‘What did he say about that?’ “After objection by the defense for illegality, etc., which objection was by the court overruled, witness stated in reply: ‘He stated to me that he was going to have the front part of his fireplace chiseled off, and have tiling fixed on each fireplace, and when the flies specked the other room a little more that he was going to wallpaper it, and that he was also going to wallpaper his dining room with paper that had good-looking fruits and vegetables, something good to eat— looked pretty nice.” Here counsel moved to exclude this answer to the question last hereinabove objected to, on the same grounds assigned to the question. The court overruled said motion, and to the action of the court, in so overruling said motion, the defendant then and there duly and legally excepted.
“This matter was, of course, wholly irrelevant; it could have no legitimate bearing on the issues. It had no tendency to show guilt or innocence, nor to contradict or corroborate any other evidence. Its effect was to distract the minds of the jury from the real issue to that of whether or not it was proper for a man to improve his house after his wife is killed, whether by himself or some one else.” [Emphasis added and citations omitted]

188 Ala. at 18-19, 65 So. 972. Likewise, we •believe that the evidence relating to the propriety of Seab’s employment, his claimed conflict of interest, and his allegedly falsified testimony, was so far removed from the issue of appellant’s guilt of inciting to furnish a prostitute for McLemore, that it had the effect of distracting the minds of the jury from the real issue to that of whether or not the P. S. C. relied on the proper evidence in granting a telephone rate increase.

B. Campaign. Contribution to Pete Matthews.

Dupree testified that he, appellant, and other telephone industry representatives attended a meeting with then-candidate for . the P. S. C., Pete Matthews, at the Down-towner Motor Lodge in Montgomery after the Democratic primary election of 1978. At the meeting several utility company spokesmen questioned candidate Matthews about his political ambitions and philosophy of utility regulation.

Dupree stated that after the meeting he told appellant that he (Dupree) would like to give Matthews a contribution but his personal funds were low. He asked appellant to add $500. to the invoice for the looperback system he had agreed to pur- . chase from appellant. GraCeba, Dupree’s company, would then pay Grayford, appellant’s company, the extra $500. and appellant would pass the money along to Matthews, explaining to Matthews where it had originated. Dupree testified, and the State introduced invoices to show that appellant padded the bill by $500. According to Du-pree, appellant stated that he had paid Matthews and informed him the payment was from Dupree.

It is our opinion that this evidence was relevant under the “plan, design, scheme or system” exception to the collateral crimes rule. See C. Gamble, McElroy’s Alabama Evidence, § 69.01(6) (3d ed. 1977). See also McDonald v. State, 57 Ala.App. 529, 329 So.2d 583, cert. quashed, 295 Ala. 410, 329 So.2d 596 (1975), cert. denied, 429 U.S. 834, 97 S.Ct. 99, 50 L.Ed.2d 99 (1976).

In order for evidence of a collateral offense not charged in the indictment to be admissible under the above exception, the charged crime and the other crime must have “such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” Wigmore on Evidence, § 304 (3d ed. 1972).

In McDonald v. State, supra, this court affirmed the conviction of a judge for soliciting or accepting sexual favors to influence his official action. In McDonald we held that the trial court properly allowed evidence relating to four females, other than the one named in the indictment, who had been propositioned by the judge in connection with matters pending before him. We found a “connection and pattern” between the charged offense and .the four other offenses, and we listed seven points of similarity all the transactions shared.

In the case before us, we also discern a connection and pattern between appellant’s paying Dupree for the expenses incurred on the night of June 25, 1979, and appellant’s padding the invoice to Dupree. The transactions share the following common features:

1. Appellant and Dupree were the principals in each transaction.
2. Each transaction involved an ostensibly innocent business deal concerning the “looperback” system.
3. ' Each transaction involved Grayford and GraCeba; one dealt with a check from Grayford to GraCeba, the other a bill from Grayford to GraCeba.
4. Each transaction was a “cover” for an illegal benefit to an employee or member of the P. S. C.

Additionally, we believe the evidence was relevant to rebut appellant’s contention that his “engineering expense” notation was the result of innocence, inadvertence or mistake. See Smith v. State, 342 So.2d 422 (Ala.Cr.App.1979).

C. Campaign Contribution to Juanita McDaniel.

Dupree testified that he and appellant were present at a meeting of independent telephone companies in Huntsville in the fall of 1978, when the following conversation occurred:

“BY MR. EVANS (Continuing)
“Q. Mr. Dupree, were you at the Biloxi — Excuse me, the Huntsville...
“MR. SMITH: Judge, we have a continuing objection to this line of questioning and your Honor’s ruling, and we understand it we respectfully except.
“THE COURT: Yes, sir.
“Q. Were you at the Huntsville telephone symposium in 1978?
“A. Yes, sir.
“Q. Did you see the defendant in this case, Mr. Mayberry, there?
“A. Yes, sir.
“Q. Did you have a conversation with Mr. Mayberry concerning a Mr. Larry Seab?
“A. Yes, sir.
“Q. What, if anything, did this defendant, Mr. Mayberry say to you concerning Mr. Larry Seab?
“A. Mr. Mayberry said I should hire Mr. Seab as my Cost Separation Accountant, that he was very good to the industry, telephone, and that he had arranged through Mr. Seab for a fifty thousand dollar political contribution for Juanita McDaniel.” [Emphasis added]

The State argues that this testimony was admissible to show “intent, motive, design and scheme.” We have examined each exception to the collateral crimes rule and we do not believe the foregoing evidence was proper under any of them. The evidence that, through Seab, appellant “arranged for” an illegal campaign contribution to Juanita McDaniel shows no motive for him to procure, through Dupree, a prostitute for McLemore. There was simply no showing that the McDaniel matter and the particular crime charged had any similarity or connection other than to suggest in the appellant a disposition to commit the offense for which he was indicted. See Garner v. State, 269 Ala. 531, 114 So.2d 385 (1959). For the same reason, the evidence does not indicate pattern, design, scheme or system. See McKenzie v. State, 250 Ala. 178, 33 So.2d 488 (1947). The two transactions were entirely dissimilar and the only character figuring in both was the appellant.

Likewise, it is our judgment that the evidence does not prove intent to furnish a prostitute for McLemore. Compare Caylor v. State, 353 So.2d 8 (Ala.Cr.App.1977), cert. quashed, 353 So.2d 11 (Ala.1978) (State may not prove defendant’s intent to kill one victim by showing his unrelated assault on another victim).

The only probative function of the foregoing evidence was to suggest appellant’s “bad character, inclination or propensity to commit the type of crime for which he [was] being tried.” C. Gamble, supra, § 69.01(1) at 135. See also Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953). The prejudicial effect of the evidence was obvious. We hold that its admission was reversible error entitling appellant to a new trial.

D. “Double-Dipping” on Expense Accounts.

The State introduced four duplicate business expense vouchers submitted by appellant to both Bell and Grayford, indicating that appellant was reimbursed twice for the same expenses. The prosecution’s rationale for the admission of these documents was to show a “pattern and practice of falsification ... [i]f he will lie on an expense account, it is the State’s contention that he will lie when he wrote ‘engineering expense’ on a check to Cecil Dupree.”

While the State was certainly entitled to rebut appellant’s claim of innocence, mistake, or inadvertence relating to the “engineering expense” notation on his check to Dupree, see Smith v. State, supra and authorities cited therein, it was entitled to do so only with relevant evidence. In our judgment, the evidence of the padded invoice to GraCeba (discussed at section III, B., supra) was relevant to rebut innocence, inadvertence, or mistake because it involved the same individuals, the same companies, and members of the P. S. C. as the offense charged in the indictment.

The proposed evidence here, however, involved Bell — not Cecil Dupree and GraCeba — and had no relation to the P. S. C. That an employee would lie to his employer on his expense account does not prove that he would falsify his personal check stub entry for prostitution expenses. As the Alabama Supreme Court observed in Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947):

“Such testimony in its final analysis shows nothing more than the defendant’s character is bad or that he is morally deficient.”

Brasher v. State, supra, was a prosecution for carnal knowledge of a girl over twelve. The defendant denied the offense and the prosecution sought to prove identity by showing that he had previously performed degenerate sexual acts with a five-year-old girl, arguing that the prior offense indicated the defendant was “afflicted with general base desires for young girls.” 249 Ala. at 98, 30 So.2d at 32. The court determined that that argument was tantamount to stating that the defendant had a “disposition, propensity or inclination to commit such offenses.... ” Id.

We see no distinction between the argument advanced by the State here and that asserted in Brasher. Both rest on the faulty premise that evidence is admissible if it shows that the defendant is a reprobate and is more likely to have committed the kind of crime in question. The evidence of “double-dipping” was inadmissible, extremely prejudicial, and warrants a new trial.

We have not addressed appellant’s assertions of error concerning the sentencing phase of this case because we believe they are unlikely to reoccur in the event of a retrial.

For the errors shown, the judgment of conviction is reversed and the cause remanded to the Montgomery Circuit Court.

REVERSED AND REMANDED.

HARRIS, P. J., and BOWEN and BARRON, JJ., concur.

TYSON, J., recuses self under Canon 3 C.(l)(d), Alabama Canon of Judicial Ethics. (Niece’s husband in law firm)


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Randy Howard LIVINGSTON v. STATE.
    6 Div. 481.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Sept. 17, 1982 Alabama Supreme Court 81-878.

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

Appellant was indicted and convicted in Jefferson County for promoting prostitution in the first degree. After considering two prior convictions, the trial court set sentence at 50 years.

The record shows that Patrolman James D. Wallace of the prostitution detail called a number listed on a card entitled “Southern Escort Service.” Patrolman Wallace gave his first name and stated that he was a business man from Nashville, Tennessee. He further stated over the phone that he was interested in getting five escorts for him and some associates while they were in Birmingham. Before the conversation ended, a deal was struck in which the service would provide five girls at $100 per girl.

On the agreed upon date, Patrolman Wallace rented a room in a Birmingham motel. He and four other undercover agents waited for the “escorts.” Around 11:30 p. m., appellant showed up with one escort, a fourteen year old girl.

After Patrolman Wallace complained that the deal involved five girls, appellant responded that the girl with him was “practically a virgin” who had brought a large amount of money on the streets. Appellant also stated that the girl would have sex with all five men.

Appellant also told the agents that he was about to pick up two more girls at another motel. Patrolman Wallace gave appellant $100 and a credit card, and he and another undercover agent then rode with the appellant to get the other girls. After they all returned to the first motel room, appellant was arrested.

Wallace also testified that appellant had brought a clipboard with a picture of some sort of movie projector appellant had allegedly invented. According to Wallace, appellant stated he brought the picture as a cover in case the men turned out to be policemen.

The other undercover agents at the scene were called to testify and they corroborated Patrolman Wallace’s testimony.

William Darden, a revenue examiner for Birmingham, was also called by the state. Mr. Darden stated that there was no record that appellant had a license to run an escort service.

Appellant did not testify nor did he call any witnesses to the stand.

Appellant contends that the absence at trial of the fourteen year old “companion” of appellant denied him a fair trial. The record indicates that the witness’ mother had sent the witness to live with the witness’ father in Memphis, Tennessee. Appellant argues that the witness should have been compelled to appear and testify.

Appellant cannot object to the absence of the witness in the trial itself. The record is devoid of any indication that, before or during trial, appellant attempted on his own or by process of court to obtain the presence of the witness at trial. Such lack of diligence at trial constitutes waiver of compulsory process. Thornton v. State, Ala.Cr.App., 390 So.2d 1093, cert. denied, Ala., 390 So.2d 1098 (1980); Ex parte Craft, 41 Ala.App. 519, 138 So.2d 266 (1962).

The first time any action was taken to obtain the testimony of the witness was after the trial. Appellant filed a motion for new trial alleging that the witness was a material witness who would give crucial testimony. In connection with .the motion for a new trial, a motion to compel the witness to appear and testify at a hearing on the motion for new trial was filed. The motion for a new trial was denied.

Although appellant moved to dismiss the case at the close of the trial because of the absence of the witness, the question of compulsory process of the witness was never raised at trial. Because appellant never made any effort to procure the attendance of the witness at trial, he cannot base his motion for new trial on her absence. Granting a new trial on this basis would allow appellant to speculate on the verdict of the jury. Jarrell v. State, Ala.Cr.App., 355 So.2d 747 (1978).

It follows that, since appellant could not base his motion for a new trial on the witness’ absence, the trial court did not err in not compelling the witness to appear and testify at the motion hearing.

Moreover, there is nothing from a review of the motion to compel attendance or from the record to indicate that the motion was ever ruled on by the trial judge or even brought to his attention. The law is well settled in Alabama that, to reserve appellate review of a motion, an adverse ruling from the trial court must be secured. Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, cert. denied, Ala., 358 So.2d 791 (1978).

Appellant argues that the trial court improperly sustained the state’s objection to appellant’s counsel’s closing argument reference to the fact that the state had not called the witness to testify. The law in Alabama is that one party may not comment unfavorably on the other party’s failure to produce a witness supposedly favorable to that party if the witness is equally available to both sides. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62, cert. denied, 293 Ala. 548, 307 So.2d 73 (1974). Conversely, one may comment on the absence of such a witness if the witness is unavailable to one party while available to another. McMorris v. State, Ala.Cr.App., 394 So.2d 392, cert. denied, Ala., 394 So.2d 404 (1981).

Appellant argues that the witness was available to the state, but not to him. Appellant insists that the state could have subpoenaed the witness through “Alabama’s Uniform Act to Secure the Attendance from Without a State in Criminal Proceeding,” while he had no such procedure available. See § 12-21-280 et seq., Code of Alabama 1975.

However, as this court in McMorris, supra, stated, “The availability of a witness to one or the other of the parties is determined initially by. the party’s (in this case, the state’s) superior knowledge of the existence and identity of the witness. Additionally, the relationship between the witness and the party that would reasonably be expected to affect the witness’ personal interest in the outcome of the case is another factor in determining to whom a witness is available.

“Whether a witness is available or accessible within the meaning of the rule prohibiting comment upon failure of a party to call or examine a witness does not mean availability or accessibility for subpoena purposes, but rather a particular party’s superior knowledge of the existence, identity and expected testimony of the witness.”

Obviously, appellant knew of the existence and identity of the witness as well as the state. It is also doubtful that the state would have any superior knowledge of how the witness would testify. The undercover agents took no written statement from the witness and apparently never interviewed her. In fact, if any party could be construed to have superior knowledge of the witness’ potential testimony, it would be appellant, not the state. Appellant had marked and preserved in the record an affidavit in which the witness claimed that she was only along for the ride and not involved in any sort of prostitution.

Appellant contends that there was an issue of his mental competence to stand trial and that the trial court should have made a determination of appellant’s sanity as required by § 15-16-21, Code of Alabama 1975. Part of the determination demanded by appellant was psychiatric examination at Bryce Hospital.

Under the provisions of § 15-16-21, if a defendant is under indictment and confinement for a felony, and if the trial court finds that there is a reasonable and bona fide doubt as to defendant’s sanity, the trial court is to further investigate by submitting the issue to a jury or establish some other method of determining the defendant’s competency. If there does exist such a reasonable and bona fide doubt in the trial court’s mind, such a determination under § 15-16-21 is mandatory. Atwell v. State, Ala.Cr.App., 354 So.2d 30, cert. denied, 354 So.2d 39 (1977).

Nevertheless, it is left to the discretion of the trial court as to whether such a reasonable and bona fide doubt of sanity exists and thus whether the further investigation provided by § 15-16-21 is required. The decision of the trial judge on such a matter is raised on appeal only upon proof of abuse of discretion. Williams v. State, Ala.Cr.App., 386 So.2d 506 (1980); Richardson v. State, Ala.Cr.App., 354 So.2d 1193 (1978).

Also, a defendant has no absolute right to receive a mental examination as to his sanity whenever he requests one, and, absent such a right, the trial court is the screening agent as to such request. Dixon v. State, Ala.Cr.App., 357 So.2d 690 (1978).

A review of the evidence convinces us that the trial court did not abuse its discretion in not proceeding with a determination of appellant’s competency.

The trial itself is completely devoid of any evidence of incompetency. The issue was never raised in any pretrial or trial proceedings. Appellant did not raise the issue until the sentencing hearing.

At the sentencing hearing, appellant’s counsel claimed that he had just learned that appellant had been committed to Bryce Hospital for two short periods in 1968 and in 1971. This information was contained in the presentencing report which stated that, “It was determined by the staff at Bryce Hospital that the subject was not insane but had severe emotional problems. Subject has also seen a psychiatrist while in the fourth grade and the same conclusion was reached at that time...” (State’s Exhibit 4).

Appellant also made issue of the fact that a Georgia judge had written across a sentencing order when appellant was sentenced in 1974 for child molestation that appellant needed psychiatric treatment.

Besides the fact that appellant was found to be sane when at Bryce in 1968, appellant’s mental history is in no way disposi-tive of whether he is presently competent to stand trial.

“The competence of an accused to stand trial is determined by whether at the time of the trial he has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and whether he has rational as well as factual understanding of the proceeding against him.” (Emphasis added.) Atwell, supra.

The evidence in the record as to appellant’s understanding of the trial proceedings and his ability to consult with his attorney led to the conclusion that the trial court did not abuse its discretion. The court made numerous observations during the sentencing hearing of appellant’s capacity to stand trial.

At one point, the trial court stated:

“The Court has not — there’s no doubt in the Court’s mind that he is perfectly sane. In fact, he is very sane. He handles himself as good as any lawyer. Of course, he’s had a lot of experience. He’s as good as a lawyer, assuming most lawyers are sane. Anyway, I’m going to deny that.”

Later, in the proceeding, the trial court commented:

“I’ve watched this defendant at the trial of this case. I’ve seen him. I’ve gotten habeas corpus motions, letters. He’s handled himself like he sure knows what he’s doing. He may have emotional problems, but he knows what’s going on.”

Finally, the court observed:

“Firstly, there is no doubt that this defendant is not insane in the slightest degree. He is not suffering from any mental disease or defect. No doubt he may well be — I don’t know what his problem is, but he was clearly competent in the trial of this case. He understood the work. He worked with you. He would tell you this and that and I watched him throughout the trial and since then, of course, I have received his many communications and they are all done well. Of course he has had experience in it, buts, they are done well and drawn well. I don’t have any doubt that he is not only competent in the trial, but he is sane.”

In the present case, the trial court heard the witnesses and observed the appellant during the trial and the sentencing hearing. The trial judge is in a far better position to determine the appellant’s competency to stand trial than is a reviewing court who relies on the record. Williams, supra.

Appellant also testified during the sentencing hearing. While his testimony was somewhat erratic and childish, he was definitely able to communicate his feelings to the court. In fact, appellant was able to cite two cases in support of an argument he made to the court.

In light of the record as a whole, we find no error in the trial court’s actions.

Appellant argues that he cannot be convicted of promoting or advancing prostitution when there is no statute prohibiting prostitution itself. Appellant emphasizes the fact that the state legislature decided not to include the crime of prostitution in the 1975 Code.

However, there is a statute declaring prostitution a crime in this case. Under the municipal law of Birmingham, prostitution is deemed a crime. §§ 11-7-31; 11-7-34, Code of Birmingham 1980. For whatever reason, the legislature chose to leave the prohibition of prostitution to localities while prohibiting various other acts relating to prostitution, such as promoting prostitution. Perhaps the legislature believed appellant’s act was of a more serious nature than the act of prostitution itself and thus should be addressed in the state code. This seems to be especially so in the case of appellant’s conviction under § 13A-12-lll(a)(2) which makes criminal the offering of minors as prostitutes for profit.

In any event, the underlying act of prostitution is a criminal act in the jurisdiction where appellant committed the act of promoting prostitution.

Appellant also contends that, as a matter of the sufficiency of the evidence, he could not be convicted of promoting prostitution when, under state law, it was not proven that Ms. Liles had committed prostitution. Appellant cites a 1920 case which held that one or occasional acts of illicit sexual intercourse did not constitute prostitution. Wilson v. State, 17 Ala.App. 307, 84 So. 783 (1920). It should be noted that the same case defines prostitution as the act of fornication for hire.

However, without deciding the confusing point of what exactly constitutes prostitution, we are satisfied that there was sufficient evidence of promoting or advancing prostitution as defined under § 13A-12-110. Under this section, one is deemed to “advance” prostitution if “... he knowingly ... procures or solicits patrons for prostitution, provides persons or premises for prostitution purposes ...” Under this definition, there was evidence to support a conviction of promoting prostitution.

Appellant alleges that the state should have given appellant pretrial notice of the prior convictions it was going to use in invoking the Habitual Offender Act. Appellant contends that we would have been aware of the Georgia court’s notation that appellant needed psychiatric help before the trial if he had been given earlier notice.

This court has previously held that such pretrial notice is not required as long as it is given at a “reasonable time” before presen-tencing hearing. Holley v. State, Ala.Cr.App., 397 So.2d 211, cert. denied, Ala., 397 So.2d 217 (1981). The record shows that appellant was given such notice before at least by the end of the trial. This was sufficient prior notice of the prior conviction. Holley, supra. Also, the record indicates that appellant was given an FBI rap sheet listing the prior convictions before the trial had begun.

Moreover, even if the pretrial motion was not in the form of the actual sentencing report that contained the Georgia court’s notation, it was not the state’s duty to notify appellant’s counsel of appellant’s past mental problems. The fact that a Georgia court wrote on a sentencing report that appellant was in need of psychiatric help was irrelevant for the purposes in which the state used the prior convictions. The state was only required to give some sort of notice of the prior convictions at a “reasonable time” prior to the presentenc-ing hearing, and in the instant case the state met this requirement. Holley, supra; Rule 6(b)(3)(h), Alabama Rules of Criminal Procedure—Temporary Rules.

In a related matter, appellant contends that the state improperly proved the two prior convictions in invoking the Habitual Offender Act.

The state offered into evidence a certified judgment entry from Tuscaloosa County showing that appellant had been convicted of grand larceny. The state also offered documents from Georgia showing that appellant had been convicted of child molestation in Georgia.

Appellant objected on two specific grounds: (1) the use of a certified judgment entry is not best evidence and (2) the Georgia documents were not properly authenticated in that the Georgia Secretary of State had not properly certified the document. The same specific objections were argued in appellant’s brief.

There is no merit to these grounds.

This court has consistently held that a proper method of proving prior convictions is by the use of certified judgment entries. Thatch v. State, Ala.Cr.App., 397 So.2d 246, Ala., 397 So.2d 253 (1981); Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (1975).

As to the authentication of the Georgia documents, neither state nor federal law requires the Secretary of State of a sister state to certify any record of court before it may be admitted into our courts. 28 U.S.C. § 1738 (1977), § 12-21-70, Code of Alabama 1975. Although the Georgia documents were not certified by the judge of that court, appellant is bound by his specific objections at trial, which were properly overruled. Specific grounds of an objection waive all other grounds, and the trial court cannot be put in error for admitting evidence though it was subject to another objection. Ward v. State, Ala.Cr.App., 376 So.2d 1112, cert. denied, Ala., 376 So.2d 1117 (1979); Sprinkle v. State, Ala.Cr.App., 368 So.2d 554, cert. denied, 368 So.2d 565 (1978).

Appellant’s final argument is that the Habitual Offender Act is unconstitutional in that it constitutes cruel and unusual punishment and in that the legislature unconstitutionally delegated to the Supreme Court the authority to promulgate rules regarding notice of prior convictions.

The Act has previously passed the “cruel and unusual punishment” challenge. Holley v. State, Ala.Cr.App., 397 So.2d 211, cert. denied, Ala., 397 So.2d 217 (1981).

§ 13A-5-10 directs that procedure surrounding a presentencing hearing be established by rule of court. Such procedure, including notice of prior convictions, is laid out in Rule 6(b)(3) of the Alabama Rules of Criminal Procedure (Temporary Rules).

It is true that the legislature in passing criminal statutes may not delegate its legislative power to make laws. This power generally consists of the power to define crime and fix the punishment for it. State v. Skinner, 20 Ala.App. 204, 101 So. 327.

Nevertheless, “while a legislative body cannot delegate its legislative power to make a law, it may delegate the power to an arm of the government to make and enforce regulations for the execution of a statute according to its terms.” Ex parte McCurley, Ala., 390 So.2d 25 (1980). Although McCurdy, supra, dealt with legislative delegation of rule making authority to the executive branch, it applies equally to the delegation of procedure making authority to the judiciary. Thus, the legislature did not unconstitutionally delegate to the judiciary authority to set the procedure to be followed in hearings mandated by § 13A-5-10.

We find no error in the record and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Michael WYATT Alias, Mike Wyatt v. STATE.
    4 Div. 969.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied Sept. 24, 1982 Alabama Supreme Court 81-844.

      Larry R. Grissett of Prestwood, Prest-wood & Grissett, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for assault in the second degree, Alabama Code 1975, Section 13A-6-21 (Amended 1977), and convicted of assault in the third degree. Code Section 13A-6-22. His conviction for assault in the third degree was reversed on appeal. Wyatt v. State, 405 So.2d 154 (Ala.Cr.App.1981). On retrial, the defendant was again convicted of assault in the third degree. Sentence was one year imprisonment and a fine of $500.00.

I

The defendant was not rearraigned after his first conviction was reversed and before he was retried.

In Reeves v. State, 264 Ala. 476, 480, 88 So.2d 561 (1956), the rule was stated:

“Ordinarily an accused need not be rear-raigned upon the second or subsequent trial of his case. We find that in most jurisdictions when a case has been reversed it is not necessary that the defendant be rearraigned, (citations omitted). In Alabama the courts have placed a limitation upon this rule .... In Alabama if the indictment is changed by amendment (by agreement) or its scope by the fact that the earlier conviction acts as an acquittal of a higher degree of the offense, the better practice is to rearraign the defendant prior to the second trial. Thomas v. State, 255 Ala. 632, 53 So.2d 340.”

See also Stephens v. State, 254 Ala. 50, 46 So.2d 820 (1950); Linnehan v. State, 116 Ala. 471, 22 So. 662 (1897); Clark v. State, 56 Ala.App. 63, 318 So.2d 801 (1974); Corbett v. State, 38 Ala.App. 536, 91 So.2d 503, cert. denied, 265 Ala. 394, 91 So.2d 509 (1956); Barnett v. State, 28 Ala.App. 293, 184 So. 702, cert. denied, 236 Ala. 666, 184 So. 709 (1938). Neither party to this appeal cites Reeves nor any of the other authorities listed above.

From the record it appears that the judge, the district attorney and the defendant fully recognized that the defendant could only be tried and convicted for assault in the third degree since he had been acquitted of assault in the second degree when the jury found him guilty of assault in the third degree in his first trial.

After a jury had been selected, defense counsel made objection to the further prosecution of the defendant.

“MR. PRESTWOOD (Defense Counsel): Your Honor, the jury has been struck in this ease, and so far as I know, the State intends to proceed with the prosecution of this defendant, Michael Wyatt. At this time, we object to the ongoing of the prosecution on these grounds.”
* * * * * *
“Yes. First, the only offense that this defendant could be prosecuted on would be assault in the third degree, and the indictment upon which he is being prosecuted today does not state assault in the third degree. There is an independent statute, Your Honor, on assault in the third degree, and the State has made no effort to our knowledge to reindict this defendant or to amend the indictment, and we say that there is no legal basis, no process upon which he, as of this moment, can be pursued against for the offense of assault in the third degree.
“THE COURT: Overruled. It’s the opinion of the Court that assault in the third degree is a lesser included offense.”

After the State rested its case, the defendant made an oral motion to exclude. One of the grounds for this motion was:

“Now, Your Honor, you have an indictment charging assault two in two counts, and we all know that this defendant has been acquitted of assault two as to count one and count two, and the District Attorney would not even read the indictment to the jury this morning, and we’re saying that technically, Mr. Wyatt is put to trial on theory and not on legal process because the statute, the criminal code, specifically describes the offense of assault in the third degree, and there’s nothing in the indictment describing it, and as of the time the trial started this morning, he was not in writing informed as to what he was being accused of. And that burden is not on us to tell him, but it’s on the State to invoke the powers of this Court on legal process, and we’re saying that the intention or inclination of the Court to say it’s a lesser included offense is not enough, because the lesser included offense has not, as a matter of law, been described to him or delineated in any form of paper like an indictment should be, so he’s gone to trial on a phantom charge, as far as the language of third degree — assault in the third degree being concerned, he’s never seen it, and yet he’s been put to trial on it.”

After the trial judge denied the motion to exclude, defense counsel stated:

“That’s all for me. Let me add this and close, please. The fact that Mr. Lanier (District Attorney) says he’s being charged and tried for assault in the third degree does not furnish this defendant with descriptive words of that crime, and the Court cannot imply and assume that he knows what assault in the third degree is, and I venture to say he doesn’t know the language in there and what it describes, ...”
“(A)nd our bottom line is that he hasn’t been served with any papers whatsoever that tells him what he’s charged with and being tried for today, and there is no way to correct it except discharge it.”

The trial judge instructed the jury that the defendant was charged with assault in the third degree and read the following provisions of Section 13A-6-22.

“(a) A person commits the crime of assault in the third degree if: (1) With the intent to cause physical injury to another person, he causes physical injury to any person; or (2) he recklessly causes physical injury to another person; or (3) with criminal negligence he causes physical injury to another person by means of a deadly weapon or a dangerous instrument; ...”

Defense counsel excepted to the “Court’s oral charge about assault in the third degree and particularly to the reading of that statute and to the subhead of that statute, which would not and could not apply in this particular case.”

The record does not indicate whether or not the jury was given the indictment.

Initially, we note that the defendant’s objection to the sufficiency of the accusation in the indictment was untimely, coming as it did only after a jury had been empaneled. Because one may be convicted of a lesser included offense of that charged in the indictment, Section 13A-1-9, Section 15-17-1, the alleged defect in the indictment was not one of “substance” rendering the indictment incapable of supporting a judgment of conviction. Compare Fuller v. State, 36 Ala.App. 504, 60 So.2d 200, reversed, 257 Ala. 502, 60 So.2d 202 (1952); Mehaffey v. State, 16 Ala.App. 99, 75 So. 647 (1917). “In the absence of appropriate and timely objection an indictment, even if it is subject to demurrable defects, not being void, is sufficient to sustain a judgment of conviction.” Johnson v. State, 37 Ala.App. 650, 651, 74 So.2d 506, cert. stricken, 261 Ala. 373, 74 So.2d 508 (1954). Here, the indictment was not void as one may waive his defense of autrefois acquit. Clark, 56 Ala.App. at 65, 318 So.2d 801; Thomas, 255 Ala. at 636, 53 So.2d 340.

While the better practice would have been to rearraign the defendant under the authorities stated, even if the defendant had been rearraigned there would not had to have been a new indictment specifically charging the defendant with the lesser included offense.

“The indictment is for legal purposes, sufficient notice to the defendant that he may be called to defend the lesser included offenses.” Walker v. United States, 135 App.D.C. 280, 418 F.2d 1116 (1969). “(A)n indictment charging a felony or the highest grade of the offense by operation of law charges every lesser offense included in the one charged.” Kitchens v. State, 27 Ala.App. 336 172 So. 297 (1937). This does not deny a defendant his constitutional right to be informed of the nature and cause of the accusation against him. Holesome v. State, 40 Wis.2d 95, 161 N.W.2d 283 (1968); People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974); State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977).

A review of the applicable statutes convinces us that assault in the third degree (Section 13A-6-22(a)(l), (2) and (3)) is a lesser included offense of assault in the second degree (Section 13A-6-21(a)(l), (2) and (3)) within the meaning of Section 13A-1-9 defining lesser included offenses. People v. Reynolds, 53 A.D.2d 877, 385 N.Y. S.2d 337 (1976).

We conclude that the defendant was not prejudiced or injured by the failure to conduct a second arraignment upon his retrial following the reversal of his original conviction. Rule 45, Alabama Rules of Appellate Procedure. Although this is the same position advocated by Judge Rice in his dissent in Barnett, 28 Ala.App. at 297-298, 184 So. 702, that case involved a capital felony. Since this is not a capital case, the trial judge did not have special duties to perform involving the setting of the case for trial and the selection of the jury. See Linne-han, supra.

II

The testimony of State’s witness Sue Grimes that “Doctor Williams said he was going to admit the child to the hospital” is hearsay. Hill v. State, 394 So.2d 106 (Ala.Cr.App.1981). However, we find that there was no objection to this particular statement. The objection was: “We object to anything else. She’s just saying from what she heard there outside the presence of this defendant.” Moreover, Dr. Williams had previously testified without objection that the police “hospitalized the child.” He also testified, without objection, that the child’s “total overall picture had improved nicely while in the hospital.” Where the hearsay testimony is cumulative of a fact already established by competent evidence, its admission constitutes harmless error. United States v. Weils, 525 F.2d 974 (5th Cir. 1976); Love v. State, 377 So.2d 8 (Ala.Cr.App.1979).

III

“(A) person’s habit is admissible in a criminal trial as tending to prove his conduct on a particular occasion.” C. Gamble, McElroy’s Alabama Evidence, Section 42.-01(3) (3rd ed. 1977). The district attorney’s question to the social worker of whether or not the defendant had told her about any “previous whippings” that had occurred was relevant and not “totally immaterial” as the defendant now argues. At trial, the objection was that the question was leading. Specific grounds of objection waive all grounds not specified. The trial court will not be placed in error on grounds not specified. Watkins v. State, 219 Ala. 254, 122 So. 610 (1929); Knight v. State, 381 So.2d 680 (Ala.Cr.App.1980).

IV

The defendant argues that the motion to exclude the State’s evidence should have been granted because “the only evidence which in anyway connected the Defendant with the alleged victim was the alleged statements by the Defendant * * * which clearly show that the action was unintentional.”

A social worker testified that the defendant told her that “he had whipped Joey with a belt with brads on it; that he had doubled the belt and whipped the child following several instances of what he considered misbehavior. * * * Mr. Wyatt told me that in whipping the child, he was wiggling around and that it was possible that the belt could have struck his penis and caused it to swell but that he did not intentionally hit him there.”

The credibility of the defendant’s evidence, though without dispute, is for the jury. Cooley v. State, 233 Ala. 407, 171 So. 725 (1937); Austin v. State, 30 Ala.App. 267, 4 So.2d 442, cert. denied, 242 Ala. 19, 4 So.2d 444 (1941). Once the trial judge has determined that a confession was freely and voluntarily given, it is for the jury to determine the probative effect to be given the confession. Hall v. State, 365 So.2d 1249 (Ala.Cr.App.), cert. denied, Ex parte Hall, 365 So.2d 1253 (Ala.1978). Here the defendant’s intent may be inferred from the use of a “belt with brads on it” and the manner in which it was used.

V

An accused who takes the stand in his own defense may be cross examined with respect to whether he invoked his constitutional privilege against compulsory self-incrimination on a previous trial for the same offense. Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926). “There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness. We can discern nothing in the policy of the law against self-incrimination which would require the extension of immunity to any trial, or to any tribunal, other than that in which the defendant preserves it by refusing to testify.” Raffel, 46 S.Ct. at 568. See also Leverett v. State, 18 Ala.App. 579, 582, 93 So. 347 (1922).

VI

In closing argument the District Attorney made reference to a totally unrelated crime in which a small child had been molested and murdered. Although the record does not reflect exactly what the comments were, such remarks transcend all bounds of legitimate argument and are ill-advised and highly improper. Cross v. State, 68 Ala. 476 (1881); Roy v. State, 24 Ala.App. 419, 136 So. 273 (1931).

While a prosecutor may properly denounce crime in strong terms and point out the gravity, heinousness, and consequences of the crime charged, it is improper to comment on or argue matters outside the issues in the case especially where those facts or issues would not even be relevant if offered in evidence. Reference to infamous crimes, evidence of which has not been admitted at trial, can only be “calculated to excite the minds of the jury and stir their resentment and to prejudice them against” the defendant. McLemore v. International Union, Etc., 264 Ala. 538, 543, 88 So.2d 170 (1956). As such, they approach argument which is so grossly improper and highly prejudicial as to create ineradicable prejudice. McLemore.

Were it not for the wisdom and caution of the trial judge, the district attorney’s improper remarks would cause a reversal of the defendant’s conviction. However, the trial judge, on his own, instructed the jury to disregard and polled each juror individually. This action raises a presumption against error. Chambers v. State, 382 So.2d 632 (Ala.Cr.App.), cert. denied, 382 So.2d 636 (Ala.1980).

The district attorney’s comments on the result of the defendant’s first trial were improper. Lloyd v. State, 53 Ala.App. 730, 304 So.2d 232, cert. denied, 293 Ala. 410, 304 So.2d 235 (1974). The error present in these remarks was also cured by the trial judge’s instructions to disregard.

Considering these and other comments made by the District Attorney together, in their cumulative effect as we must, we do not find that they created an atmosphere of ineradicable bias or prejudice. Blue v. State, 246 Ala. 73, 19 So.2d 11 (1944). Had the record reflected the comments more fully and accurately or had the trial judge been less diligent in his correction of the objectionable matter our decision might have been different.

We have carefully considered every argument made by the defendant. We have written to most. Our review convinces us that the judgment of the circuit court should be and is hereby affirmed.

AFFIRMED.

All Judges concur.


text:
    Charles Edward ROBINSON v. STATE.
    6 Div. 689.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied, June 29, 1982.
    Certiorari Denied, Sept. 24, 1982 Alabama Supreme Court 81-852.
    J. Mark White of Smith, White & Hynds, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

This is an appeal from the denial of the appellant’s petition for writ of error coram nobis. A full evidentiary hearing was conducted by the trial court on the petition and testimony was taken over a two-day period. The appellant had been convicted of robbery and sentenced to twenty-five years’ imprisonment. This court affirmed his conviction on appeal and the Alabama Supreme Court denied certiorari without opinion. Robinson v. State, 389 So.2d 144 (Ala.Cr.App.), cert. denied, 389 So.2d 151 (Ala.1980).

The question appellant presents for our review is basically the same issue he raised in his motion for new trial concerning the testimony of Forrest Allen Spears with one additional factor. After appellant’s motion for new trial was overruled, Spears was indicted for the same robbery and subsequently pleaded guilty, receiving twenty years to run concurrent with other sentences.

Appellant maintains that the State adopted inconsistent positions in arguing Spears’ confession was not credible to the end his (appellant’s) motion for new trial was overruled, and then utilizing the same confession to obtain an indictment and conviction against Spears. Appellant alleges that had the jury known about Spears’ confession and guilty plea, he would have been absolved of any guilt. Appellant’s position is that the State should have to choose whether to accept Spears’ confession as wholly true or wholly false. Finally, appellant contends that because it was undisputed that only one robber actually entered the pharmacy in question, the action taken by the State has resulted in “two men serving a sentence for a robbery that was committed by only one man.”

At most, the “newly discovered evidence” that was revealed at the evidentiary hearing on appellant’s petition for writ of error coram nobis demonstrates that appellant did not act alone in the commission of the robbery, that he was aided by Spears and a man named Steven Shrader. Three men were seen leaving the pharmacy in the getaway-car. The car belonged to Spears and his fingerprints were found inside the vehicle, as were Shrader’s. By all fair inferences, either Spears or Shrader was the “wheel man.” Appellant was identified as the robber who actually entered the pharmacy. In addition, the State had confidential reliable information that appellant, Spears and Shrader had committed the robbery. Likewise, Spears’ confession, when the grain is separated from the chaff, definitely implicates Spears, but does not necessarily vindicate appellant. We know of no rule of law which requires the State to accept every word of a defendant’s confession as gospel, or which prohibits the ferreting out of fiction from fact. It was brought out at the evidentiary hearing that the twenty-year sentence Spears received on his guilty plea, which was to run concurrent with other sentences, “didn’t cost him a dime.” He obviously had nothing to lose by attempting to accept full responsibility for the robbery and by denying appellant’s complicity in the crime. As the trial court stated in its judgment denying appellant’s petition:

“This Court entertains the same doubt as it always had as to the truthfulness of Forrest Allen Spears statement that he was the one man in the store, but little or no doubt that he was involved in the robbery. His plea of guilty says so but makes no differentiation as to personal appearance in the store, wheel man of his car, lookout, or whatever.”

The trial court made certain other findings in its judgment which are supported by the record and which demonstrate that the judgment denying appellant’s petition was based on correct legal principles. Those findings are as follows:

(1) That Spears’ involvement and possible guilt were known to appellant at the time of trial.
(2) That the original judgment was not tainted with fraud, actual or constructive.
(3) That the State’s reasons for indicting Spears following his confession (and after appellant’s trial) were not material to the decision denying appellant’s petition.
(4) That if appellant were tried again with the present facts available, a change of verdict would be unlikely.
(5) That the new evidence did not create a reasonable doubt which did not otherwise exist.
(6) That the original verdict was not of questionable validity and that the additional facts were not sufficient to prevent the original judgment.
(7) That the State had not suppressed the truth or violated a legal duty to appellant.
(8) That appellant’s right to relief had not been established by clear, full and satisfactory evidence beyond a mere balancing of probabilities such as would convincingly satisfy the court on the merits of the petition.

As this court stated in Pitts v. State, 360 So.2d 736, 738-739 (Ala.Cr.App.1978), a case which is substantially similar to the instant one in that it involved a subsequent confession to a robbery by the petitioner’s brother after the petitioner was already in jail and the judgment of conviction had been affirmed on appeal:

“The office of the writ of error coram nobis, under Alabama law, is to bring to the attention of the court for correction an error of fact, one not appearing on the face of the record, unknown to the court or party affected, and which, if known in time, would have prevented the judgment challenged, and serves as a motion for a new trial on the ground of newly discovered evidence. Tillis v. State, 349 So.2d 95 (Ala.Cr.App.), cert. denied, 349 So.2d 100 (Ala.1977); Groce v. State, 48 Ala.App. 709 at 710, 711, 267 So.2d 499 (1972). “Under the decisions of this court and the Alabama Supreme Court, ‘coram nobis is not some ‘probable cause’ hearing at which the trial judge determines whether the petitioner/defendant should be accorded a new trial so that the trier of fact will have the benefit of the additional testimony.
‘To the contrary, these decisions clearly show that the trial judge must “believe” the testimony and that the burden on petitioner is to submit clear, full and satisfactory proof of his assertions for relief.’
Seibert v. State, 343 So.2d 788 at 790 (Ala.1977).
“The mere existence of a confession of guilt by one other than the applicant for the writ of error coram nobis will not furnish a sufficient reason for its issuance. Ex parte Fewell, 261 Ala. 246, 73 So.2d 558 (1954); Ex parte Reliford, 37 Ala.App. 697, 75 So.2d 90 (1954).” (Emphasis added).

In effect, the writ serves as a motion for a new trial on the ground of newly discovered evidence. Vaughn v. State, 395 So.2d 95 (Ala.1979); Seibert v. State, 343 So.2d 788 (Ala.1977).

In a coram nobis proceeding, the petitioner bears the burden of submitting clear, full, and satisfactory proof of facts which, had they been timely submitted at trial, would have prevented judgment. The degree of proof is highly exacting as to facts and must convince the trial judge of the truth of the allegations in the petition. Summers v. State, 366 So.2d 336, 343 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979). The petitioner on coram nobis is also confronted with the burden of rebutting the presumptions, among others, of the judgment of the trial court and the truthfulness of the testimony of the witnesses for the prosecution. Summers, supra, 366 So.2d, at 343.

Our independent search and examination of the evidentiary hearing, which was conducted with great deliberation and care by the trial court, convince us that the appellant failed to meet his burden of proof. That Spears would be indicted for robbery after his testimony at appellant’s motion for new trial, logically, should have been expected. The fact that he was indicted and pleaded guilty, and this is really the only new fact which was presented at the evidentiary hearing, hardly exonerates appellant. The trial court did not abuse its discretion in overruling appellant’s motion for new trial and it, likewise, did not abuse its discretion in denying his petition for writ of error coram nobis. “We do not assume that ‘a criminal has been deprived of due process of law simply because he is desirous of escaping punishment for the crime for which a jury and a competent and just judge found him guilty.’ ” Summers, supra, 366 So.2d, at 345 quoting from Warden v. State, 41 Ala.App. 449, 451, 134 So.2d 783, 784 (1961). This evidence presented on this appeal reveals that appellant has utterly failed to establish any valid reason for impeaching the original judgment of conviction. Therefore, the judgment of the Jefferson Circuit Court denying the petition for writ of error coram nobis is affirmed.

AFFIRMED.

All the Judges concur.

      . See Section I of this court’s opinion in Robinson, supra, 389 So.2d, at 148-149, for a full discussion of this issue.


author: TYSON, Judge.

text:
    Robert Lee PAYNE, Jr. v. STATE of Alabama.
    6 Div. 727.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied, June 29, 1982.
    Certiorari Denied, Sept. 17, 1982 Alabama Supreme Court 81-851.
    Roger C. Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Anthony J. McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Robert Lée Payne, Jr., was indicted for and convicted of the robbery of Ronnie Thomas, the assistant manager of Food World No. 5 in Fairfield, Jefferson County, Alabama.

Thereafter he was sentenced to life imprisonment pursuant to the Alabama Habitual Felony Offender Act.

His motion for a new trial was duly denied.

On September 22, 1980, two gunmen, one armed with a “sawed-off” shotgun and the other with a pistol, entered Food World No. 5 in Fairfield, Alabama, and forced Ronnie Thomas, the acting manager, to give them the cash from the office safe and the cash registers. They escorted Mr. Thomas out of the store and then fled.

This appellant, Robert Payne, was subsequently identified by Mr. Thomas and by Elizabeth Crane, one of the cashiers on duty during the robbery, as the robber with the shotgun.

Thomas first made a positive identification of appellant from a photographic lineup and then made an unequivocal identification of him during the trial. Ms. Crane had made a tentative identification of the appellant from the photographic line-up, but then made a positive identification in court. (She had also selected two other men during the photographic line-up whose pictures “resembled” the robber in question).

A third eyewitness to the robbery, Walker Fuller, was unable to make a positive identification of the robber with the shotgun, but he did describe what happened. He was instructed several times by the robber with the shotgun to turn his head and not look at him. Consequently, he, Fuller, “never looked closely” at the robber.

On cross-examination Fuller agreed with appellant’s counsel that the appellant did not fit his previous descriptions of the robber with the shotgun, and did not look like the gunman as he, Fuller, remembered him. However, on re-direct, Fuller admitted that he could not positively state, “one way or the other”, whether or not this appellant was the robber with the shotgun.

Appellant and his father both testified that appellant was at his father’s home all day on the day of the robbery. They remembered that day in particular because appellant’s father took him to cash his paycheck.

I

Appellant contends that the trial court erred in submitting this case to the jury because “as a matter of law” the evidence was insufficient to support a conviction. He reasons that the State presented witnesses whose testimonies conflicted as to the identity of the robber with the shotgun. Appellant explains that Fuller, the State’s own witness, testified that the appellant was not the robber with the shotgun, and that this directly contradicted Thomas’ testimony identifying the appellant.

Appellant’s argument fails for several reasons. To begin with, although he indicated several times that appellant did not look like the robber with the shotgun, Fuller finally concluded that he could not say definitely, “one way or the other”, whether or not appellant was the one. (R. 62.)

On the other hand both Thomas and Crane made positive in-court identifications of this appellant. And, although Crane’s previous identification was “tentative”, both had identified this appellant from a photographic line-up.

Secondly, Fuller testified on direct examination that “he never looked closely” at the robber with the shotgun because said robber instructed him several times to turn his head. For this reason Fuller was not used by the State as an identification witness. He was used only to describe what occurred during the robbery, as he remembered it. His ability or inability to identify the robber with the shotgun was pursued by the appellant on cross-examination.

Any conflicts with reference the identity of the robber with the shotgun were properly reserved for resolution by the jury. The trial court, therefore, did not err in submitting this issue to the jury. Cox v. State, 50 Ala.App. 339, 279 So.2d 143 (1973); Colston v. State, 57 Ala.App. 4, 325 So.2d 520, cert. denied, 295 Ala. 398, 325 So.2d 531 (1975); Deloach v. State, 356 So.2d 222 (Ala.Cr.App.), cert. denied, 356 So.2d 230 (Ala.1978).

II

Appellant insists that the trial court also erred by failing to sustain his objections to testimony by appellant’s father concerning appellant’s relationship with Benny Ray Jones. Appellant claims that this testimony, elicited during cross-examination by the State, was totally irrelevant and was highly prejudicial due to Mr. Jones’ bad reputation.

Although appellant, arguably, never properly preserved this issue for our review (because his objections came too late or were not specific), we will address the merits involved.

To begin with, relevancy is a determination resting largely in the sound discretion of the trial court. Bryant v. State, 49 Ala.App. 359, 272 So.2d 286, cert. denied, 289 Ala. 740, 272 So.2d 297 (Ala.), cert. denied, 412 U.S. 922, 93 S.Ct. 2744, 37 L.Ed.2d 149 (1972); Strickland v. State, 348 So.2d 1105 (Ala.Cr.App.), cert. denied, 348 So.2d 1113 (Ala.1977); Hill v. State, 366 So.2d 296 (Ala.Cr.App.1978), aff’d, 366 So.2d 318 (Ala.1979). In this instance the trial court had been alerted to and was aware of possible problems with the relevancy of information concerning Mr. Jones (See R. 158), and made several rulings accordingly. We have reviewed these rulings, and have found no abuse of discretion in this regard.

Benny Ray Jones had been discussed throughout the course of the trial and long before the testimony challenged here.

The appellant had made several attempts to prove that Benny Ray Jones had been identified as one of the robbers (R. 112-127) and the State had tried to prove that Jones’ car was the “get-away” car. (R. 34, 126.) The appellant continuously waved Jones’ name before the jury (R. 112-127), even after the testimony that he now challenges as being irrelevant and prejudicial. (R. 147, 152.)

The challenged testimony (R. 142-147) given by appellant’s father in response to the State’s cross-examination questions was basically that Benny Ray Jones was his son-in-law, that Jones and the appellant “got along well”, that Jones and the appellant rarely went places together, and that he did not know what kind of car Jones had at the time of the robbery.

The State had apparently pursued this line of questioning in an attempt to connect the appellant, through Jones, to the “getaway” car that witness Thomas had seen at the scene of the crime. (See R. 156-158.) Whatever the State’s intentions, we fail to see the harm to appellant from these responses by his father with reference appellant’s rare contacts with Jones.

On the other hand, the evidence, which might have prejudiced appellant’s case, was injected by the appellant, himself. On redirect, he asked his father if he knew that Jones had spent several years in jail (R. 148) and then appellant testified (R. 151) that Jones had spent at least three years in prison, prior to the robbery.

For these reasons, no error occurred with reference this relevancy issue.

Ill

Finally, the trial court did not err in refusing appellant’s lengthy written requested jury charge concerning the identification of this appellant.

The appellant’s requested charge (R. 11-12) was more detailed than the trial court’s oral instructions on the identification issue (R. 177-178), but the trial court’s instructions were adequate.

Moreover, this ten paragraph instruction might have been properly refused because it contained misspelled words, because it had a tendency to mislead or confuse the jury, or because it placed undue emphasis on one aspect of the evidence in the case. Williams v. State, 255 Ala. 229, 51 So.2d 250 (1951); Jackson v. State, 272 Ala. 566, 133 So.2d 210 (1961); Guenther v. State, 282 Ala. 620, 213 So.2d 679 (1968), cert. denied, 393 U.S. 1107, 89 S.Ct. 916, 21 L.Ed.2d 803 (1969); Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813, cert. denied, 292 Ala. 723, 297 So.2d 817 (1974); Lowe v. State, 54 Ala.App. 280, 307 So.2d 86 (1974); Baldwin v. State, 342 So.2d 940 (Ala.Cr.App.1977).

Thus, there was no error in refusing this charge.

This record is free of error. This case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Herbert Lee RICHARDSON v. STATE.
    4 Div. 956.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Oct. 1, 1982 Alabama Supreme Court 81-937.
    Herbert Lee Richardson, pro se.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

This appeal is from a denial of a petition for a writ of error coram nobis seeking to set aside appellant’s 1978 conviction for murder and a sentence of death. His original conviction was appealed from the Houston County Circuit Court to this Court, and on October 3, 1978 the case was remanded to the trial court with instructions. On November 21, 1978, following remand, it was affirmed by this Court, and on December 19, 1978 rehearing was denied. Richardson v. State, Ala.Cr.App. 376 So.2d 205. The Supreme Court of the State of Alabama granted certiorari to review appellant’s conviction on the ground that it was a death ease. Rule 39(c) ARAP, and on September 28, 1979 affirmed the judgment of the Court of Criminal Appeals. On November 6, 1979 petition for rehearing in the Supreme Court was denied. The Supreme Court in affirming the holding of the Court of Criminal Appeals stated that “petitioner’s allegations of error: (1) That the initial warrantless search of petitioner’s automobile was illegal; (2) That the search of appellant’s home was conducted pursuant to an improperly issued search warrant. We find no merit in either contention made by the petitioner.” The Supreme Court carefully reviewed the record and found that petitioner’s conviction is adequately supported by the evidence. Ex Parte Richardson v. State of Alabama, Ala. 376 So.2d 228.

We shall not recite the facts of the crime in this record because they are fully set out in the opinion of this Court in the case of Richardson v. State, Ala.Cr.App. 376 So.2d 205.

On April 10, 1981 the petitioner, Herbert Lee Richardson, filed a petition for a writ of error coram nobis in the Circuit Court of Houston County, Alabama. On April 16, 1981 the district attorney of the 20th Judicial Circuit of Alabama filed a motion to dismiss the petition for writ of error coram nobis filed in this cause. On July 2, 1981 the petitioner filed a supplementary amendment to the petition for a writ of error coram nobis. On July 16, 1981 the trial court entered an order appointing a competent attorney to represent the petitioner, setting the time and place for a hearing on the petition, and the motion to dismiss the petition, and directing the Warden at Holman Prison to have the petitioner present so that he and his attorney may present such evidence as may be proper in said cause. On the 18th of September, 1981, with the petitioner, and his counsel, and the state, and its counsel, present in open court, a hearing on the petition was had.

Petitioner’s evidence consisted of five witnesses and two exhibits. Petitioner’s first witness, Thomas W. Sorrells, district attorney for the 20th Judicial Circuit, State of Alabama, testified, in substance, as follows: That he participated in the investigation that led to the arrest, trial, and conviction of the petitioner; that he accompanied the police to Abbeville to pick up the petitioner, who had been arrested, and to talk to petitioner’s fellow employees, and to look around the site where the petitioner had been working; that he did participate in the obtaining of a search warrant for the petitioner’s house in Hartford, Alabama; that he related the information given him by Sergeant Lock to Judge Block; that at that time the petitioner was in custody in Dothan; that he was present in the area, but did not participate in the actual search of petitioner’s house; that he was not present when petitioner’s vehicle was searched.

The petitioner testified, in substance, that the pipe on his job site was all two and a half inch pipe; that two and a half inch pipe would be the inside size of the pipe, and that three inches would be the outside diameter of the pipe; that all pipe at the job site was galvanized; that the only pipe he recalls being at his house was three-quarter inch pipe, and it was not galvanized. On cross-examination petitioner admitted that he was not present when the officer found pipe at his home, and that the pipe described by the police was approximately two inch pipe; that these facts about the size of the pipe came out at his trial.

Doris Weems, petitioner’s next witness, testified, in substance, that she went to the scene of the bombing on the 16th day of August, 1977; that she spoke with some officers whose names she did not know, and told them that she had seen a pipe in the petitioner s car; that she did not recall whether she had told the police about any statements petitioner had made to her since the bombing occurred several years ago.

Petitioner’s next witness, Harold Lock, a Dothan police officer, testified, in substance, that he was involved in the investigation which led to the conviction of the petitioner; that the pipe found at the job site where petitioner worked, and the pipe found at petitioner’s home were similar to the pipe found at the bomb scene; that the pipe used in the bomb and the pipe found in petitioner’s yard both had threads on one end; that Randy Collins had seen a bomb on the front porch immediately after petitioner left the scene of the bombing; that the pipe in the debris of the bomb was broken and twisted, and that he estimated the size of the pipe used in the bomb to be two to two and a half inches, galvanized, and the same type of pipe found at appellant’s job site and home.

Petitioner’s next witness, L. E. Stokes, a Dothan police officer, testified, in substance, that he obtained a search warrant for petitioner’s car; that Randy Collins told Stokes that he saw something on the steps of the house after the petitioner left the scene, but could not recall Collins’ description of it.

Petitioner’s exhibit one is a drawing of a two-inch galvanized pipe. Petitioner’s exhibit two is a drawing of a carbon steel pipe, and a galvanized pipe with nipples on them.

On September 18, 1981 at the conclusion of the evidence offered by the petitioner on his petition for writ of error coram nobis, the trial court being of the opinion that the evidence did not establish that petitioner was entitled to a writ of error coram nobis, therefore, the petition was dismissed. Appellant gave notice of appeal to this Court on September 22, 1981, and requested permission to proceed in forma pauperis, and pro se.

The petitioner contends in his brief that he is entitled to a new trial because: First, that the search warrants issued to search his vehicle and to search his home were issued under false affidavits. Second, that he has been denied his right to an attorney during the preliminary stage of the proceeding when the district attorney was actively involved in the prosecution of the case on the day of the occurrence. Third, that he is entitled to a new trial under the decision rendered in. the Beck case. Beck v. State of Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392.

The appellant’s first contention in his brief is that he should be granted a new trial because: (1) The affidavits used to obtain the search warrant for his automobile; and (2) The affidavits used to obtain the search warrant for his home were false. This issue was fully submitted by the appellant to the trial court, and there adjudicated, and upon appeal to this Court from his conviction, was affirmed by this Court. See Richardson v. State, Ala.Cr.App., 376 So.2d 205, and again confirmed by the Supreme Court of Alabama. See Ex Parte Richardson, Ala., 376 So.2d 228. This Court will not adjudicate again the same issues that have already been adjudicated between the same parties, over and over again on an application for a writ of error coram nobis. Richardson v. State, supra; Ex Parte Richardson, supra; Summers v. State, Ala.Cr.App., 366 So.2d 336; Ex Parte Rudolph, 276 Ala. 392, 162 So.2d 486; Cert. Den., 377 U.S. 919, 84 S.Ct. 1185, 12 L.Ed.2d 88; Impson v. State, Ala.Cr.App., 339 So.2d 1098. We hold that the matters of the validity of the search warrants have been fully adjudicated, and the appellant may not again adjudicate them by this petition for a writ of error coram nobis.

The appellant’s second contention is that he has been denied his right to an attorney during the preliminary stages of the proceedings when the district attorney was actively involved in the prosecution of the case on the day of the occurrence.

We have diligently searched the original petition for a writ of error coram nobis filed in this cause on April 10, 1981, and the amended petition filed July 2, 1981, and do not find a fact stated in the petition, or amended petition, that the appellant was at any time denied the right of counsel, nor do we find any evidence in the transcript of the hearing on the petition from which a conclusion could be drawn that the appellant was denied right to counsel. We only find the statement in the transcript of the hearing, made by appellant’s counsel to the court, that appellant contends that: “Under the Lomax case, which is cited in his petition, that he has been denied his fourth amendment rights, and his rights to an attorney, during the preliminary stages of the proceedings when the district attorney was actively involved in the prosecution of the case on the day that the occurrence happened that gave rise to the indictment.” The appellant was represented by counsel at his original trial, and on appeal from his original trial, to this Court, and in the Supreme Court of Alabama. Appellant was represented by counsel at the hearing in the trial court in this case and, on request of the appellant, is represented pro se on this appeal.

We hold that in the absence of an averment in the petition for the writ of error coram nobis, that the appellant was denied assistance of an attorney at his original trial, and in the absence of any evidence showing a denial of the appellant’s right of counsel at his original trial, the trial court did not err to the prejudice of the appellant when it did not grant him a new trial on the ground that he was denied counsel. Petitioner must aver facts, in his petition for a writ of error coram nobis which, if proven, would entitle him to the writ, and on the trial he must prove such facts. Summers v. State, supra; Corley v. State, Ala.Cr.App., 397 So.2d 223; Cert. Den., Ala., 397 So.2d 225.

The third contention contained in appellant’s brief is that he is entitled to a new trial because of the opinion of the United States Supreme Court rendered in the case of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392, decided June 20, 1980.

Appellant avers in his petition that the United States Supreme Court ruled in Beck v. State that: “The death sentence may not be constitutionally imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of a lesser included offense of a non-capital nature.”

The appellant was convicted under Code of Alabama, 1975, Section 13-11-1 — Section 13-11-9. Section 13-ll-2(a)(9) provides for the death or life imprisonment without parole for the: “willful setting off or exploding dynamite or other explosive under circumstances now punishable by Section 13-2-60 or 13-2-61, when a person is intentionally killed by the defendant because of said explosion;”

We quote from Beck, emphasis supplied. “We granted certiorari to decide the following question:
‘May a sentence of death constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict ?’ 444 U.S. 897, 100 S.Ct. 204, 62 L.Ed.2d 132.
“We now hold that the death penalty may not be imposed under these circumstances.”

We note that the Beck case specifically held that a death sentence may not constitutionally be imposed after a jury verdict of guilty of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict. In the case of Joseph S. Hopper, Commissioner, Alabama Department Of Corrections and James D. White, Warden, Petitioners, v. John Louis Evans, III, - U.S. -, 102 S.Ct. 2049, 72 L.Ed.2d 367 released by the Supreme Court Of The United States, May 24, 1982, Chief Justice Burger said:

“Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence war rants such an instruction. The jury’s discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence. Under Alabama law, the rule in non-capital cases is that a lesser included offense instruction should be given if ‘there is any reasonable theory from the evidence which would support the position.’ Fulghum v. State 291 Ala. 71, 75, 277 So.2d 886, 890 (1973). The federal rule is that a lesser included offense instruction should be given ‘if the evidence would permit a jury rationally to find (a defendant) guilty of the lesser offense and acquit him of the greater.’ Keeble v. United States, 412 U.S. 205, 208 [93 S.Ct. 1993, 1995, 36 L.Ed.2d 844] (1973). The Alabama rule clearly does not offend federal constitutional standards, and no reason has been advanced why it should not apply in capital cases’ ”

Chief Justice Burger further stated in Hopper v. Evans, supra: “The evidence not only supported the claim that respondent intended to kill the victim, but affirmatively negated any claim that he did not intend to kill the victim. An instruction of the offense of unintentional killing during this robbery was therefore not warranted.”

The appellant’s petition for a writ of error coram nobis in this case does not aver that the petitioner was entitled to an instruction of a lesser included offense. There is no evidence before this Court that the petitioner was entitled to have the jury instructed on a lesser included offense. There is no evidence before this Court that the evidence presented to the jury at the original trial of the petitioner would have supported a conviction of a lesser included offense. The evidence fully supports the jury verdict that the petitioner intended to kill the victim. We hold that the preclusion clause did not prejudice the petitioner in any way, and that the trial judge did not err when he denied petitioner’s petition for a writ of error coram nobis. Hopper v. Evans, supra; Beck v. Alabama, supra; Richardson v. State, Ala.Cr.App. 376 So.2d 205; Ex Parte Richardson, Ala. 376 So.2d 228; Beck v. Alabama, 444 U.S. 897, 100 S.Ct. 204, 62 L.Ed.2d 132; Summers v. State, supra.

The judgment of the trial court is due to be and is hereby affirmed.

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.