text:
    Sherman CASEY, Jr. v. STATE.
    3 Div. 294.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      John W. Hartley, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) “guilty of felony possession of marijuana.” The court fixed his punishment at imprisonment for nine years and sentenced him accordingly.

The defendant pleaded not guilty, which he had the right to do even though promptly after the State had proved his guilt of possession of marijuana and had rested its case, defendant took the stand in his defense and freely admitted possession of “a little over a pound of marijuana,” but in doing so he stoutly claimed that he bought and possessed it exclusively for his own personal use. The contested issue between the parties then became whether he was guilty of a felony or, on the other hand, a misdemeanor, in accordance with Code of Alabama 1975, § 20-2-70(a), which provides “that any person who possesses any marihuana for his personal use only is guilty of a misdemeanor.”

A principal insistence on error by appellant is directed to the action of the trial court in permitting evidence and argument by the State relative to some LSD that was found by officers in the home of defendant and his wife, while the officers were proceeding under a search warrant of the residence of the couple while the defendant was not at home.

The defendant had testified extensively on direct examination and on cross-examination that he had been a marijuana smoker for a long time, that he had recently purchased marijuana from a person whom he named by paying him $350.00 for it. He said that when he bought it it was “all in one sack,” which he at first put in a closet in his home and thereafter put it in four separate bags and placed them where they were found by the officers in making the search. He said that he had in the meantime smoked some of the marijuana.

It would unduly lengthen this opinion to quote all of the transcript pertinent to the principal issue between the parties, but that part of it that primarily sets forth the objections of the parties and the rulings of the court as to the admissibility of evidence that was found in the home of defendant and his wife is as follows, all occurring on cross-examination of defendant:

“Q. Now, as a matter of fact, you sold marijuana and LSD, too, haven’t you?
“A. No, sir, I haven’t.
“Q. You’ve had LSD in your house before, haven’t you?
“A. Have I ever used LSD?
“Q. You’ve had LSD in your house?
“A. Have I ever had it in my house?
“Q. Yes, sir. That’s the question.
“A. Yes, sir, I have.
“Q. As a matter of fact, on this occasion you had about 80 or 90 hits of it, didn’t you?
“MR. SMITH: We object to all of this, Your Honor, as being immaterial and not germane to the question before this Jury.
“THE COURT: Overrule your objection.
“Q. Now, you say you didn’t intend to sell that marijuana and it was for your personal use, but what about this LSD? Was that for your personal use?
“A. Yes, sir, if I wanted it.
“Q. Okay. You’ve got 80 or 90 hits of LSD in your house and you’re telling this Court that that’s for your own personal use—
“MR. SMITH: Your Honor, we are going to object again, and let me take up my grounds over here outside the presence of the Jury.
“THE COURT: Will the Jury step into the Jury Room, please?
“(WHEREUPON, the Jury retired to the Jury Room, and the following occurred:)
“MR. SMITH: Your Honor, number one this man is not charged with LSD. Number two it was not found in his house. It was found in his wife’s purse.
“THE COURT: Where was her purse?
“MR. SMITH: The reason for pursuing this—
“THE COURT: Where was her purse?
“MR. SMITH: He wasn’t there in the house at the time. But the purpose of this is to inflame the Jury over there so they can try to get a felony conviction for marijuana. I think if this man wasn’t charged with it, I think somebody had pled guilty to it, and when he’s talking about it’s in the house, and all, I think it’s a little different. It could have been outside the house and brought in the house some other time.
“THE COURT: The question he asked him, had he been in the possession of LSD?
“MR. SMITH: No, I think he said it was in his house, not that he was in possession of it.
“THE COURT: Didn’t you say possession, Mr. Bell?
“MR. BELL: Judge—
“THE COURT: And didn’t you say yes?
“THE WITNESS: No, sir, I hadn’t been in possession of it.
“THE COURT: Well, that may be what you are saying now, but I think a while ago you said you were in possession. That’s why I let it go in.
“THE WITNESS: He asked me was it in my house. That’s what he asked me.
“MR. BELL: Judge, if we could just have Mrs. May to check back—
“THE COURT: All right.
“(WHEREUPON, after the Court and Counsel listened to the tape of the witness’ testimony, the following occurred:)
“THE COURT: The evidence is that you didn’t have any other evidence, that it was in his wife’s purse. Is that correct?
“MR. BELL: And the purse was in the house. Judge, it’s the State’s position that the witness has admitted of having the LSD in the house, and he’s testified without objection that that LSD was for his own personal use.
“Now, it’s the State’s contention that we have a right to go into the fact now with this witness and find out that it was about 80 or 90 hits of LSD and then ask him how he was going to use all of that himself just like on the marijuana.
“THE COURT: You mean by virtue of the fact that he said it was for his personal use?
“MR. BELL: Yes, sir.
“MR. SMITH: No, sir, I think — let’s go back and listen to it again. He said no, the LSD, he’d use it if he wanted to.
“THE COURT: Well, all right, let’s play it back again then.
(WHEREUPON, the Court and the Counsel listened again to the witness’ testimony.)
“MR. SMITH: Now, Mr. Bell, got up there and said it was for his personal use. Now, he didn’t say that. He said he’d use it if he wanted to. He didn’t say that’s for my personal use. The same way about the stuff being in the house. He said it was in the house, and the reason he knows it was in the house because his wife got arrested for it, and I think she pled guilty to it today, but knowing it was in the house don’t make any guilty part on him if he determines it after she’s been arrested. Like I say, this is just for Mr. Bell to inflame the Jury to try to get a conviction in a case where he doesn’t have it, and LSD doesn’t have anything to do with him.”

Immediately thereafter, there was'a colloquy among the trial judge and counsel for the respective parties on the subject, consisting of about five transcript pages, then a voir dire interrogation of defendant by his counsel, after which the following occurred:

“MR. SMITH: That’s all.
“Now, Your Honor, I think it would go out unless he can bring in knowledge and all of that stuff.
“MR. BELL: May I ask him — Oh, I’m sorry.
“THE COURT: Go ahead and ask him some questions.
“By Mr. Bell:
“Q. What did you mean in your previous testimony when I asked you about that LSD and you said you could—
“THE COURT: Well, this would be cross-examination. I am going to overrule your objection because I think I am right. Have the Jury come out.
“(WHEREUPON, the Jury returned to the Courtroom and the following occurred:)”

Thereupon, a lengthy cross-examination of defendant continued in which he testified, inter alia:

“Q. And I believe that LSD was found in your wife’s purse, was it not?
“A. That’s what he said.
“Q. And is it your testimony here in court today that you had no earthly idea that there was LSD, eighty or ninety hits of LSD in your wife’s purse prior to Mr. Brown telling you about it?
“A. I didn’t know she had it. No, sir I didn’t.
“Q. So, it’s your testimony here under oath that you didn’t know it was in your house, in your wife’s purse, or anywhere else in your house when you left for work that Monday morning?
“A. Yes, sir, that’s true.
“Q. Okay. You recall me asking you whether or not that LSD was for your personal use, do you not?
“A. Yes, sir.
“Q. And what was your response to that?
“A. Was it for my personal use?
“Q. Yes, sir.
“A. When you asked me the question you referred it to me as if it was in my home was it for my personal use, and I said if I had wanted it to be.
“Q. If you had wanted it to, it could have been for you?
“A. If I had wanted it to be it could have been if I had known it was in there.
“Q. Oh, but you didn’t add that, if I had known it was in there, back then, did you?
“A. No, sir, I didn’t, not to you.
“Q. Why didn’t you?
“A. Because the nature of the question and the nature of the way you questioning me at that time.
“Q. And it just didn’t occur to you to tell anybody you didn’t know it was in there?
“A. No, sir, it didn’t.
“Q. Does your wife deal with drugs?
“A. Does my wife do what?
“Q. Deal with drugs?
“A. Not to my knowledge.
“Q. Well, you would know about it if she did?
“A. She has never done it that I know of. We’ve been together for two years.
“Q. And you didn’t know she had LSD?
“A. No, I didn’t.
“Q. I will ask you this. After they searched your house, you left town.
“A. Yes, sir, I did.”

During the opening argument to the jury of counsel for the State, the following occurred:

“MR. BELL: Now, another thing I find about the defendant, about his testimony, and you’ve got to believe him if you want to find him guilty of a misdemeanor, you’ve got to believe him and he says his wife has quit smoking marijuana, and I think that’s great if she has, but if she has quit smoking marijuana, ladies and gentlemen, what is she doing with LSD, 80 or 90 hits of LSD, in her purse—
“MR. SMITH: We object to this line of argument, Your Honor. There is no evidence in this case of any LSD being shown to this jury or anything else.
“THE COURT: Overruled the objection.”

During the rebuttal of counsel for the State, the following occurred:

“MR. BELL: Let’s look at this other drug that was in the house. He said he didn’t know it was there. It was in his wife’s purse. He says she doesn’t use marijuana but it just happens to be in her purse. Ladies and gentlemen, the testimony was that there were 80 or 90 hits of LSD and I ask you ladies—
“MR. SMITH: Your Honor, I object. There was no evidence there were 80 or 90 hits other than what Mr. Bell said.
“MR. BELL: The defendant said it was 80 or 90.
“MR. SMITH: He did not. You asked him whether or not—
“THE COURT: I overrule your objection.”

Counsel for both parties on appeal face squarely the issue whether the trial court committed prejudicial error in its rulings as to the injection by the State of evidence and argument relative to the LSD found in the purse of defendant’s wife. As a supplement to the brief of his counsel on appeal (appointed by reason of appellant’s indigency), appellant files a pro se brief, in which he argues at length that he “was not adequately represented at the trial level nor before this Court.” Included in his argument as to the question of adequate representation by counsel on the trial, appellant says in his pro se brief:

“The next blunder attributal [sic] to trial counsel relates to his opening up a field of interrogation that allowed the State too much latitude on cross-examination. He had asked me on direct examination if I had ever sold any marijuana and I had answered in the negative (R., 63). Of course, the State could have shown a sale of prior disposition to sell as being evidence of possession with intent to do other than use it for myself but they would have been required to justify such line of questioning unless it related to the disposal of the marijuana in evidence. However, after trial counsel opened the gates, the State was entitled to full cross-examination on the issue and they availed themselves of that opportunity (R., 79 & 80). I readily admit that this blunder may be due solely to poor judgment on the part of trial counsel and not of any great importance when viewed alone but, of great significance when considered along with the more obvious failures to patent, basic and fundamental rights. “Next the State asked if I had ever had LSD in my house and trial counsel did not object (R., 82). His objection only came after the State’s attorney had asked me if I had any in my house on the occasion of my arrest in this case. ...”

By the statement just quoted in appellant’s pro se brief, appellant has made a concession against his interest that is not even claimed in appellee’s brief. Furthermore, our examination of the transcript convinces us that no such claim was made by the State on the trial and that the trial court at no time based its rulings as to the evidence elicited, or argument made by the State, as to the LSD, on the ground that defendant’s counsel had not made proper and timely objections or on the ground that by prior questions he had opened the door for such evidence and for argument based thereon. We think it inappropriate at this time to discuss other criticisms in the pro se brief of the representation of him by his counsel in the trial court, as to which he identified an attorney, who is not a resident of Alabama and who does not regularly practice law in Alabama, as one whom he, or someone acting in appellant’s behalf, has consulted in regard to representing him on appeal.

Appellant’s counsel has not cited a case that strongly supports his contention that the trial court erred “in failing to sustain defendant’s objection to evidence of drugs found in his wife’s possession” and in “failing to sustain defendant’s objection to the District Attorney’s closing argument wherein reference was made to” such drugs, and we have found none. On the other hand, in support of its position, appel-lee cites Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975) and Smith v. State, Ala.Cr.App., 351 So.2d 668 (1977), cert. denied, 351 So.2d 675, which hold that on the trial of a case for the possession of marijuana, evidence of other drugs and paraphernalia seized in the search of the defendant’s house, but not encompassed in the charge against defendant, is admissible. To these we add Green v. State, Ala.Cr.App., 389 So.2d 537, 540 (1980), cert. denied, 389 So.2d 541 and Mitchum v. State, Ala.Cr.App., 384 So.2d 1193, 1203 (1980), cert. denied, 384 So.2d 1205. These cases, with Brantley as the recognized progenitor, represent the now established law in Alabama on the subject, and unless the instant case is distinguishable from them, we must find the issue in favor of appellee. Whatever the result, we deem a comparison with Brantley sufficient.

The fact that the opinion in Brantley was by a divided court (five-four) underscores the closeness of the question and emphasizes the importance of strict adherence to what was held therein and of not extending the boundary thereof. As to this, there is special significance in the second paragraph of the opinion in Brantley as follows:

“The only question presented is whether the admission of the LSD and cocaine into evidence was prejudicial error. We hold that it was not, under the facts and circumstances of this case.”

In the concluding paragraph of the opinion in Brantley we find:

“Brantley was charged with the offense of possessing marijuana, a felony. Possession of marijuana for personal use is a misdemeanor. The fact that Brantley possessed other drugs in the trailer where the marijuana was found and the fact that he had scales and a pipe would show the ‘complete story,’ and would be relevant on the issue on whether Brantley possessed marijuana with an intent other than for his personal use. The admission of the other drugs by the trial court was not erroneous in this case. ...”

It is clear that in Brantley evidence that was under consideration constituted substantial evidence that appellant “possessed other drugs [LSD and Cocaine] in the trailer where the marijuana was found.” Brantley is authority for holding that substantial evidence that defendant was in possession of LSD in his home would have been admissible against him. No such evidence was presented herein, and apparently no attempt to present such evidence was made except on cross-examination of the defendant, which failed in its obvious purpose, but which succeeded, we think, in placing defendant in the unenviable light of attempting “to hide behind a woman’s skirt.”

Notwithstanding the absence of any evidence of defendant’s possession of LSD, the injury to defendant was worsened by argument of State’s counsel that defendant’s wife had “eighty or ninety hits of LSD, in her purse,” and that “the testimony was that there were eighty or ninety hits of LSD and I ask you ladies — _... The, Defendant said it was eighty or ninety.”

We find nowhere in the transcript that defendant ever said that there were “eighty or ninety hits of LSD” in his wife’s purse or elsewhere, although he was intensively cross-examined on the subject. We see room for disagreement between trial attorneys, and for misunderstanding on the part of the court, as to whether defendant ever testified expressly or implied that he had possession of the LSD found in the purse of his wife, which appears to have been largely caused by a misunderstanding as to what was implied by defendant’s answers to some questions propounded by the State to him on cross-examination relative to the LSD found in his wife’s purse.

The disagreement became so definite that there was a replay of the tape of the court reporter as to what defendant had said on the point. There was doubtless included in the replay the following:

“Q. You’ve had LSD in your house before, haven’t you?
“A. Have I ever used LSD?
“Q. You’ve had LSD in your house?
“A. Have I ever had it in my house?
“Q. Yes, sir. That’s the question.
“A. Yes, sir, I have.”

We can readily understand that generally little distinction is to be made between one’s statement that he “had” something in his house and a statement by him that he “possessed” something in his house, as “have” and “possess” are generally synonymous. Even in controlled substances cases the words can many times become synonymous, but one cannot be properly convicted of possession of a prohibited substance in the absence of his actual or constructive possession thereof, coupled with knowledge of its presence. Roberts v. State, Ala.Cr.App., 349 So.2d 89, cert. denied, 349 So.2d 94 (1977); Scaloni v. State, Ala.Cr.App., 383 So.2d 586 (1980).

There may have been good ground for disbelieving the defendant’s testimony that he had no knowledge of the presence of LSD in his house prior to the discovery thereof in his wife’s purse by officers conducting a search of the premises pursuant to a search warrant, at a time when his wife was present but he was not. However, his testimony on voir dire out of the presence of the jury as follows is undisputed:

“Q. Mr. Casey, when was the first time you knew anything about any LSD being in your house?
“A. About 8:30 May 21st.
“Q. Who informed you about the LSD or whatever that was in the house?
“A. Mr. Brown [one of the officers with a search warrant].
“Q. Did you know that your wife had any LSD in your house prior to Mr. Brown informing you of that fact?
“A. Not at that time, I didn’t.
“Q. And did you ever have that LSD in your possession or not?
“A. No, not in my possession.
“Q. When you saw it or heard about it, who had possession of it?
“A. Mr. Brown already had possession of it. He told me it came out of my wife’s purse.
“Q. And that’s how you knew about it being in your wife’s purse?
“A. Yes, sir.”

Appellant’s criticism of his trial counsel to the effect that he opened the door to the cross-examination of him by State’s counsel as to the LSD, by asking him whether he had ever sold any marijuana is not justified. Although counsel was perhaps grasping at straws by so interrogating defendant, this was not because of any fault of counsel but by reason of the facts of the case, according to defendant’s testimony. The record shows that when the State rested, counsel for defendant moved “to exclude the State’s evidence as to felony possession of marijuana,” which the court overruled. At that time, there was no evidence that the marijuana found in the house was for the defendant’s personal use only. The quantity of it constituted strong evidence to the contrary. Furthermore, defendant’s counsel was faced with a proposition of law that the burden of presenting evidence that the marijuana possessed was for his personal use only was upon defendant. Barnett v. State, Ala.Cr.App., 373 So.2d 1226, cert. denied, Ex parte State, 373 So.2d 1230 (1979); Lee v. State, Ala.Cr.App., 350 So.2d 743 (1977); Roberts v. State, supra.

The questions asked on direct examination were properly calculated to meet the burden of law cast upon defendant. Incredible though it may be to some that so much marijuana was exclusively for defendant’s own use, defendant stood up well under severe cross-examination by State’s counsel on that particular point, by his candor as to confessing his addiction to marijuana, to his longtime gross use of it, and to the economy involved in buying it in a large amount. Furthermore, he entirely exonerated his wife of any connection with the marijuana. Notwithstanding his addiction to it, the evidence was undisputed, as testified by him, that he operated a barber shop, which was open Tuesday through Saturday for regular hours, eight ’til five, and that he worked “there every day” prior to selling out and leaving Alabama a few days after the incident made the basis of the prosecution. He was brought back to Alabama on a charge of the possession of the marijuana. He was never prosecuted for possession of the LSD.

Whether, in the absence of references to the LSD that was found in the purse of defendant’s wife, the jury would have found defendant guilty of a misdemeanor, instead of a felony, is not for us to say. It was expressly given that right in the court’s instructions to the jury. That the cross-examination of the defendant as to the LSD was injurious to him is not questioned on appeal. Although defendant did not object to every question on the point, sufficient objections were made and overruled by the court to make the admission of the evidence reviewable. Moreover, there were specific objections to the argument of counsel for the State to the effect that there were “eighty or ninety hits of LSD” in the purse of defendant’s wife, which was unsupported by any evidence in the case. The action of the court in overruling such objections, as well as its action in overruling objections to questions propounded to defendant on cross-examination, constituted error prejudicial to defendant. By reason thereof, the judgment of the trial court should be reversed and the cause remanded.

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

REVERSED AND REMANDED.

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

DeCARLO, J., dissents.


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    Ex parte State of Alabama. (Re Sherman CASEY, Jr. v. STATE of Alabama).
    81-58.
    Supreme Court of Alabama.
    Nov. 25, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: DeCARLO, Judge.

text:
    Frank PARKER v. STATE.
    3 Div. 316.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      Paul R. Cooper, Montgomery, for appellant.

      Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

First degree sexual abuse; six years.

During the early evening hours of February 21, 1980, the prosecutrix, a ten-year-old girl, was playing “hide and seek” with her next door neighbors at their house. The prosecutrix was lying behind a clothes rack in a dark, upstairs bedroom when the appellant, who resided at the house, put his knees on the prosecutrix’s knees and attempted to put a towel around her mouth. The appellant placed his hand under the prosecutrix’s dress and touched the middle of her thigh and her stomach. The prosecutrix hit his hand and he stopped. Immediately thereafter, she ran downstairs and reported the incident to the appellant’s sister. She subsequently informed her mother who reported the incident to the police. About 10:00 P. M. that evening, Montgomery Police Youth Aid Investigator Steve Eiland arrested the appellant and took a recorded statement from him.

I

Appellant was indicted under § 13A-6-66(a)(3) Code of Alabama 1975 (Amended 1977). It states:

“(a) A person commits the crime of sexual abuse in the first degree if (3) He, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.”

Section 13A-6-60(3) Code of Alabama, supra, defines sexual contact as:

“(3) SEXUAL CONTACT. The touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.”

Appellant- contends the State did not prove that a touching of an intimate part of the prosecutrix was accomplished with the necessary sexual intent or purpose. He maintains that mid-thigh and stomach are not “intimate parts” of a person.

The trial court, in overruling appellant’s motion to exclude, stated that the jury would have to determine whether an intimate part of the prosecutrix was touched. The trial judge charged the jury accordingly-

Whether mid-thigh and stomach are “intimate parts” within the meaning of the sexual abuse statute, and whether that determination should be made by the trial court as a matter of law, or by the jury as a matter of fact, are questions of first impression in this State.

While no statutory definition of “sexual or other intimate parts” exists, the comments following § 13A-6-66 indicate that they may include the genitalia and sexual organs of either sex, and the breast of a female.

Several states use the phrase “sexual or other intimate parts” in their definitions of sexual contact. See Del.Code T. 11, § 773(d); Ky.Rev.Stat., § 510.010(7); N.H. Rev.Stat.Ann. § 632-A:l(IV); New York Penal Law, § 130.00(3) (McKinney); N.D. Cent.Code, § 12.1-20-02(2); Or.Rev.Stat., § 163.305(6); 18 Pa.Cons.Stat.Ann., § 3101 (Purdon); Wash.Rev.Code, § 9A. 44.100(2).

Some states specify anatomical parts within their definitions of sexual contact, see N.H.Rev.Stat.Ann., § 632-A:l(IV); Ohio Rev.Code, Ann. § 2907.01(B) (Page); Tex.Penal Code Ann. T.5, § 21.01(2) (Vernon), while others specifically define the term “intimate parts,” including within the definition the genital area, groin, anus, buttock, inner thigh, and breast. Conn.Gen. Stat., § 53a-65(8); Mich.Comp.Laws Ann., §§ 750.520a, 750.520b; Neb.Rev.Stat., § 28-318; N.J.Rev.Stat., § 2C:14-l(e); N.M.Stat. Ann., § 30-9-12; R.I.Gen.Laws, § 11-37 — 1; S.C.Code, § 16-3-651(d); Tenn.Code Ann., § 39-3702(5).

At the outset, it should be clear that the critical term is “intimate parts,” not “sexual.” The phrase “or other intimate parts” is used in order to expand the protection of the statute and to avoid narrow judicial construction of the sexual abuse statutes. §§ 13A-6-66, -67, Code of Alabama, supra. Thus, the term, “intimate parts” is somewhat broader in connotation than the term “sexual.”

Some jurisdictions have determined specific parts of the body to be “intimate parts” as a matter of law. These are: the belly and chest of a prepubescent female child, State v. Weese, Mont., 616 P.2d 371 (1980); buttocks, Matter of David M., 93 Misc.2d 545, 403 N.Y.S.2d 178 (1978); People v. Thomas, 91 Misc.2d 724, 398 N.Y.S.2d 821 (1977); and genital organs or breast, State v. Pagel, 16 Or.App. 412, 518 P.2d 1037, cert. denied, 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1974). Other jurisdictions have allowed the jury to determine what are “intimate parts.” Included are the buttocks, State v. Buller, 31 Or.App. 889, 571 P.2d 1263 (1977); and the hips, Matter of Welfare of Adams, 24 Wash.App. 517, 601 P.2d 995 (1979).

In our judgment, the determination of which areas are intimate is properly a question of law to be resolved by the trial court. Common use of the English language would indicate that the term “intimate parts,” in the context of the statute, refers to any part of the body which a reasonable person would consider private with respect to touching by another.

We believe that the thigh and the stomach are sufficiently intimate parts of the anatomy that a person of ordinary intelligence has fair notice that the nonconsen-sual touching of them is prohibited, particularly if the touching is accomplished in the manner as revealed by the instant case. The statute is directed to protecting parts of the body in close proximity to the primary sexual areas which a reasonable person would deem private.

Consequently, we find the evidence in this case to be sufficient and the trial court’s rulings proper on this ground.

II

Appellant also asserts that there was insufficient proof that the touching was done for the purpose of gratifying his sexual desire.

On its face, § 13A-6-66, fails to state any requisite culpable mental state. However, the term “sexual contact” as defined in § 13A-6-60(3), and used in the above statute, requires that the touching be done for the purpose of gratifying the sexual desire of either party. Therefore, it is incumbent upon the State to establish intent to gratify the sexual desire of either party in order to complete proof of the crime.

In the instant case, the appellant attempted to “pindown” the prosecutrix by placing his knees upon her knees while she was lying behind the clothes rack in a dark bedroom. He tried to “gag” her with a towel, put his hand under her dress, and touched her thigh and stomach. We find that these facts provide sufficient evidence, though circumstantial, from which the jury could have reasonably inferred the appellant’s intent. Thus, we find no error in the trial court’s ruling in this regard.

III

Appellant complains that the State failed to produce a transcript of his recorded statement as requested in his motion to produce.

The record does not contain any ruling by the trial court on appellant’s motion to produce. It also does not indicate any objection by the appellant to the court’s failure to rule.

Review is limited to matters on which rulings are invoked in the trial court. Boykin v. State, Ala.Cr.App., 398 So.2d 766, cert. denied, Ala., 398 So.2d 771 (1981). Thus, nothing is presented for our review. We note, however, that appellant was permitted to listen to the recording and to make his objections to its contents, outside the presence of the jury. Under these circumstances, we find no error.

IV

Appellant contends that his recorded statement was improperly admitted because it was partially inaudible and because it was made without a knowing and intelligent waiver of his Miranda rights. He also asserts that he suffers from a mental deficiency which rendered the statement involuntary and, thereby, inadmissible.

Initially, we note that no evidence whatsoever was offered at trial to support appellant’s assertion of mental deficiency. Appellant may not raise an objection to evidence for the first time on appeal which was not raised at trial. Brown v. State, Ala.Cr.App., 392 So.2d 1248 (1980), cert. denied, Ala., 392 So.2d 1266 (1981). Appellant is bound by the ground of objection stated at trial. Gunn v. State, Ala.Cr.App., 387 So.2d 280, cert. denied, 387 So.2d 283 (1980). Assertions of counsel will not substitute for fact. Thus, we consider only that ground of objection specifically raised at trial.

Appellant’s contention concerning the inaudible condition of the recorded statement was not raised at trial. Thus, it is not before us for review. Brown, supra; Gunn, supra. Nevertheless, we have listened to the recording and do not find it so inaudible as to render it untrustworthy as a whole. Bufford v. State, Ala.Cr.App., 382 So.2d 1162, cert. denied, Ala., 382 So.2d 1175 (1980), on return to remand, reversed on other grounds, Ala.Cr.App., 399 So.2d 894, 1981.

Montgomery Police Youth Aid Investigator Steve Eiland testified that, after the appellant was arrested, he transported him to the police station, advised him of his Miranda warnings, and had him execute a waiver of rights form. The form was properly admitted into evidence. Officer Eiland testified that he asked appellant if he understood his rights and wanted to make a statement. He stated that the appellant said he was willing to answer his questions.

The record fully establishes the complete voluntariness of the appellant’s statement. Consequently, it was properly admitted into evidence. Myers v. State, Ala.Cr.App., 401 So.2d 288, (1981).

V

Appellant maintains that it was reversible error to allow the State to question his sister concerning prior similar incidents involving him.

The State asked Mrs. Estell King, the appellant’s sister, the following question during her cross-examination:

“Q. Have you had problems with Frank sexually molesting the children?”

The question was not answered. The trial court excused the jury and the State asked several similar questions to which Mrs. King negatively replied. The State then withdrew the line of questioning. Af-terwards, the appellant moved for a mistrial and the trial court denied the motion.

With no answer to the initial question, and negative answers, to those questions asked outside the presence of the jury: we find that the trial court’s denial of the appellant’s motion for a mistrial was proper. Brown, supra; Yates v. State, Ala.Cr.App., 390 So.2d 32 (1980).

VI

Finally, appellant insists that it was error to refuse his written requested charges numbered twelve and thirteen. Both charges cover the duty of a juror to stand by his convictions and not to yield simply because the other jurors may disagree with him.

Both charges have been found to be argumentative. See White v. State, 195 Ala. 681, 71 So. 452 (1916); Fowler v. State, 155 Ala. 21, 45 So. 913 (1908). Thus, there was no error in their refusal. Our review of appellant’s other written requested charges indicates they were properly refused.

We have examined the record and transcript of evidence and find no error. Therefore, the judgment of conviction by the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte Frank PARKER. (Re Frank Parker v. State of Alabama).
    No. 81-29.
    Supreme Court of Alabama.
    Dec. 18, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Lloyd ANDREWS v. STATE.
    4 Div. 866.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    S. Fleetwood Carnley, Elba, for appellant.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of robbery in the first degree on a trial under an indictment that charged in pertinent part that he “in the course of committing a theft .. . used force against the person of James Griggs, with the intent to overcome his physical resistance or physical power of resistance, while the said Lloyd Andrews was armed with a deadly weapon, a pistol, in violation of 13A-8 — 41 of the Code of Alabama,” which, according to § 13A-r8-41(c) is a Class A felony.

After conviction and prior to sentencing, a proceeding under the Habitual Felony Offenders Act (§ 13A-5-9) was instituted, and on the hearing thereof, it was shown that defendant had been convicted and sentenced for nine previously committed felonies. By the Habitual Felony Offenders Act as amended, it is provided:

“In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such conviction has committed another felony he must be punished as follows:
“(3) On conviction of a Class A felony he must be punished by imprisonment for life without parole.”

Appellant was sentenced to life imprisonment without parole.

The alleged victim was the operator of the Rivera Motel in Elba. According to his testimony, at approximately 11:50 P. M. on July 28, 1980, he was lying in his bedroom' next to the office of the motel and heard a bell that caused him to walk into the office. The witness further testified:

“... And there was a man standing there and I asked him if I could help him and he threw a gun in my face and nodded toward the cash register with his head and also the gun and said, ‘Open it up.’ And, I did so and at that time the man walked around behind the counter with me and I was taking the money out of the register handing it to him and him still holding the gun on me.”

After only a few moments the man left with all the currency in the cash register, which according to Mr. Griggs’ calculations consisted of $624, of which there were one one hundred-dollar bill, one fifty-dollar bill and a large number of twenty-dollar bills.

According to the undisputed evidence in the case almost immediately after the robber left the motel, Mr. Griggs reported the robbery to the Elba police, who were at the scene of the robbery within a few moments. Mr. Griggs gave them the description of the robber as a black male, and Mrs. Griggs gave the police a description of the automobile which she saw leave the nearby premises, which description was broadcast by radio at 12:04 A. M., July 29, as an “early model white over red Thunderbird with one black male.” At 12:30 the Elba police were notified by radio by Enterprise police that they had a suspect in custody. It was the defendant driving an automobile that matched the description. It had been observed by one of the Enterprise officers just as it arrived at the well known Boll Weevil Monument in Enterprise at 12:09. The patrolman who made the observation turned his automobile around and followed the other automobile under the underpass until it had crossed over a double yellow line and then, as it drove near the City Hall of Enterprise, the officer “pulled the blue lights on” and the pursued vehicle soon stopped. Other officers converged at the place the automobile stopped. The driver was asked for his driver’s license, which he presented. During that process, one of the officers focused his flashlight on the inside front of the automobile and at least two officers saw a pistol on the floorboard. The driver was then asked to “exit the vehicle and step to the rear, which he did.” One officer “took the pistol in his custody.” Another officer asked defendant “if he had a permit for the pistol, which he stated he did not.” The defendant was then placed “under arrest for carrying a weapon without a permit.”

In checking the defendant for other weapons, the officers noted “a bulge in his right pocket.” The bulge was found to consist of a large amount of currency, including one one-hundred-dollar bill, one fifty-dollar bill and a large number of twenty-dollar bills that totaled, not exactly but approximately the amount that Mr. Griggs calculated that the robber had stolen from him.

Soon after defendant was taken into custody at Enterprise, Mr. Griggs was transported by officers to Elba to view the defendant. Mr. Griggs was unable to identify him as the robber. In Mr. Griggs’ testimony, he made it clear that defendant did not have on a jacket while in custody like the jacket the robber had on at the time of the robbery. The next morning, while Mr. Griggs and an officer were traveling near New Brockton on the highway between Elba and Enterprise, they found a jacket on the side of the road, which did resemble, according to Mr. Griggs, the jacket that was on the robber at the time of the robbery.

A daughter of Mr. and Mrs. Griggs testified that on the night of the robbery, and only a few minutes before the robbery, she saw an “old model Thunderbird” parked out by the Rivera Motel. She was shown the next morning the vehicle defendant was driving at the time he was arrested in Enterprise. She testified that she was sure that the vehicle shown her was the same vehicle she saw parked near the motel the night before.

Industrious and diligent appointed counsel for appellant, the same appointed counsel that represented him on the trial, has raised every conceivable point, in our opinion, in his dedicated effort to obtain a reversal of the case. In doing so he adopts practically all of the grounds of his motion for a new trial, which was overruled by the trial court.

Nine of the twenty-three grounds of the motion for a new trial relate to the question of the sufficiency or the weight of the evidence of defendant’s guilt. Although the victim of the robbery was unable to identify defendant as the robber, the circumstantial evidence, as summarized above, made possible by the demonstrated efficiency of the law enforcement authorities of Coffee County, the city of Elba and the city of Enterprise, was extraordinarily strong. No witness testified on behalf of defendant. There is no merit in any of the grounds of the motion for a new trial pertaining to the question of the sufficiency or the weight of the evidence.

Six of the grounds of the motion for a new trial involved contentions to the effect that defendant was deprived of constitutional rights in being arrested and his property seized without probable cause. On the contrary, we are of the opinion that all of the several officers who took part in the detection and apprehension of defendant as the robber acted not only with circumspection, propriety and due regard for defendant’s constitutional rights, but also in such an able and effective manner that they should be commended for their actions, which are worthy of emulation. When one of them saw an automobile that matched the description of the automobile in which the robber left the scene of the crime occupied by only one person who matched the only description they had of the robber, at a time, place and direction from the scene of the robbery that was significantly consistent with the driver’s guilt, it was not only constitutionally permissible but also their duty to stop the automobile. Their observance in plain view of a pistol in the automobile of a person who had no permit to carry a pistol was more than probable cause for believing that he was guilty of illegal possession of the pistol and thoroughly justified his arrest therefor. Thereafter, with the unfolding of additional circumstantial evidence pointing to defendant as the robber, there was justification for his further detention and the charge made against him of robbery in the first degree.

A large part of the evidence was presented out of the presence of the jury in order for the court to determine whether the proposed evidence by the State met the constitutional requirements for a valid search and seizure of property possessed by the defendant. It appears that the State took the position that the money on the person of defendant, the pistol in the automobile of defendant and some tires taken off the automobile were properly seized by the State. It appears that the tires were taken off the automobile in order to match their treads with tire treads in the dirt made by the automobile seen at or near the motel just before and just after the robbery. The court ruled that evidence developed by the taking of the tires off the automobile and matching their tread with that of the tire tread marks on the dirt was not admissible, but that there was no unconstitutional search and seizure involved in the taking of the pistol from the automobile or in the taking of the money from defendant’s pocket. The trial court manifested a splendid concept of the governing principles by stating:

“Now, if we offer money into evidence or offer a pistol into evidence I would rule that the car was stopped in Enterprise, Alabama, and the officers had a right to rely upon the dispatch in stopping the car and making the arrest under Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306, and that incidental to the right to stop they had a right to arrest and had a right to search the person of the defendant and what they found on him or in his immediate presence, money or pistol, would be admissible, and that is about as far as we can go.”

Another ground of defendant’s motion for a new trial was to the effect that the victim did not sufficiently identify the pistol aimed at him at the time of the robbery as the pistol taken from the automobile at Enterprise. Such an identification was not necessary in order for the pistol to be admitted as evidence of the fact that the person driving the automobile in Enterprise was the same person that robbed the alleged victim while armed with a pistol.

During the closing argument of counsel for the State, the following occurred:

“MR. HEAD [counsel for the State]:
“Where was the purple jersey recovered, ladies and gentlemen, that the robber had worn on this occasion? One mile from the railroad tracks in New Brockton, and New Brockton lies between Elba and Enterprise.
“MR. CONERLY: We object to any statement of where any shirt was found.
That is not in evidence.
“THE COURT: Overruled.
“MR. CONERLY: We except.
“MR. HEAD: Those are the bare boned facts in this case. That is all the State is giving you to consider. . . . ”

Appellant urges that as the sweater, shirt or jacket was not introduced in evidence, the argument was improper and the court should have sustained defendant’s objection to it. We disagree. Defendant’s argument did not contain any statement that was not supported by the evidence. There was definite evidence to the effect that the “purple jersey” that the “robber had worn on this occasion” was found near New Brockton as stated by counsel.

Another insistence on reversible error is to the effect that the proceeding for sentencing under the Habitual Felony Offenders Act for which a hearing was scheduled and conducted on November 10, 1980, did not give defendant’s attorney adequate time to prepare for the hearing and the resulting sentence should have been vacated. This is exactly what was done as shown by the transcript as follows:

“THE COURT: We are going to vacate the sentence and set a new sentencing hearing, set it in open court right now where everyone will have knowledge of the date time, place, and we will do that next Monday, December 22, at 3 P.M.”

At the hearing on December 22, 1980, oral and record evidence was presented to show the nine previous convictions of defendant for felonies.

We have endeavored to consider all contentions of appellant and have searched the record for error prejudicial to defendant. In our opinion, there is none to be found and the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Lloyd ANDREWS. (Re Lloyd Andrews v. State of Alabama).
    81-28.
    Supreme Court of Alabama.
    Nov. 25, 1981.
    S. Fleetwood Carnley, Elba, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   EMBRY, Justice.

We are compelled to point out that, although petitioner’s statement of additional facts, per Rule 39(k), ARAP, is difficult to digest because it is not in narrative form as contemplated by the rule, nevertheless it could be accepted as sufficient. We must deny the writ, however, because no ground specified in Rule 39 is alleged as a basis for issuance of same.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Jimmy FARLEY v. STATE.
    6 Div. 397.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      Richard S. Jaffe, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was convicted of grand larceny and sentenced to seven years’ imprisonment. Three issues are presented on appeal.

I

A

The defendant argues that the trial court erred in allowing the State to introduce into evidence “mug shots” to bolster the in-court identification of the witness to the crime when the defense had not attacked the photographic lineup.

On August 27, 1979, the home of Mr. and Mrs. Hugh Keel, Jr. was burglarized by three men. Tammy Morgan, the Keels’ next-door neighbor, was the only witness to the crime. She observed the defendant and two other men come from the house carrying a television set which they placed in their car. Ms. Morgan testified that she heard the defendant say, “She seen us.”

On cross examination, defense counsel persistently attempted to impeach and discredit Ms. Morgan’s identification of the defendant.

On redirect examination, the State, over objection, introduced into evidence eight photographs which a police officer exhibited to Ms. Morgan shortly after the incident occurred. Ms. Morgan, at that time, selected the photograph of the defendant as one of the individuals she saw in the Keels’ driveway.

The defendant argues that the admission of this photographic lineup consisting of “mug shots” was improper because he had not challenged the propriety of that identification procedure and because the “mug shots” allowed the jury to conclude that the defendant had a prior criminal record.

Under the facts of this particular case we find no abuse of the discretion of the trial judge in the admission of the photographs. Ms. Morgan’s identification of the defendant was a material issue in the case because her testimony was all that connected the defendant to the crime and because the defense was alibi. The evidence of the photographic display was introduced only to rebut the inference raised on cross examination that Ms. Morgan was mistaken. The photographs themselves were not “typical” mug shots and consisted only of a frontal view of each subject. After the trial court had ordered that the bottom portion of each picture be cut off, there was nothing on any of the photographs to indicate that any of the subjects had a criminal record or that any of the photographs were taken by the police or had any connection with any law enforcement agency. What this Court said in Gross v. State, 395 So.2d 485 (Ala.Cr.App.1981) applies here.

“The defendant alleges that reversible error was committed with the admission into evidence of photographs used in a photographic lineup prior to the defendant’s arrest.
“A witness may corroborate his in-court identification of the accused by evidence of an earlier out-of-court identification to rebut an inference raised on cross examination that his identification was mistaken or contrived. Carlisle v. State, 371 So.2d 975, 977-8 (Ala.Cr.App.1979). For this reason, we find no error in the action of the trial court in allowing witness Ronald Lee and Sergeant Johnny C. Ferrell to testify that Lee did identify the defendant in a photographic lineup. See McElroy, Section 177.02(b).
“At trial, the court admitted into evidence, over the defendant’s objections, six photographs which Sergeant Ferrell had exhibited to Mr. Lee shortly after the robbery. One photograph was of the defendant. The photographs were offered in evidence in order to verify the prior out-of-court identification of the defendant which Lee had made and to strengthen and corroborate Lee’s testimony and in-eourt identification. Where the defense is alibi, the identification of the defendant by State’s witnesses is a material issue in the case and a photograph of the defendant shown by the police to these witnesses who identified the defendant is admissible in evidence. Carson v. State, 49 Ala.App. 413, 415, 272 So.2d 619 (1973).
“The photographs in this case cannot be characterized as typical police ‘mug shots’. Each photograph depicts only a profile view of the suspects; there are no full-face and profile views, side by side. No photograph bears any number or legend on its face. Shiflett v. State, 52 Ala.App. 476, 480, 294 So.2d 444 (1973), cert. denied, 292 Ala. 749, 294 So.2d 448 (1974). The pictures in this case are not as offensive as that ‘rather innocuous’ photograph in Williamson v. State, 384 So.2d 1224, 1231 (Ala.Cr.App.1980), which consisted of merely a frontal view of the defendant standing before a height chart. Apparently, the photographs here involved had been ‘doctored’ in a very un-suggestive manner so that no prejudicial words and numbers appeared on any picture.”
“The fundamental reason why ‘mug shots’ of a defendant are inadmissible in a criminal trial is, of course, because they tend to apprise the jury of the fact that the defendant has been in some sort of trouble with the police before, thereby reflecting unfavorably upon the character of the accused. This violates the rule that the prosecution cannot, in its evidence in chief, introduce evidence tending to show the bad character and reputation of the accused for the purpose of inducing belief in his guilt or showing his tendency or disposition to commit the crime with which he is charged, unless the accused first introduces evidence of his good character or reputation. Anno. 30 A.L.R.3d 908 (1970).
“Clearly, it is error to admit a photograph of the defendant which on its face discloses past incarceration, arrest, or conviction. 30 A.L.R.3d at 914. The prosecutors and trial judges of this state have repeatedly been cautioned against the use of mug shots at trial. Carlisle, 371 So.2d at 978; Holsclaw v. State, 364 So.2d 378, 381 (Ala.Cr.App.), cert. denied, 364 So.2d 382 (Ala.1978). However, we do not consider mere photographs used by the police in apprehending the defendant, as those in this case, to be subject to the same objections as are mug shots, simply because the police had the defendant’s photograph in their possession before his arrest or capture. Carson, supra. Mere evidence of the use and possession of the defendant’s photograph by the police pri- or to the defendant’s apprehension does not convey to the jury the same offensive and prejudicial connotations which are present in the introduction of a mug shot.”

B

The defendant further argues that the “true error” in the admission of the photographs occurred when the prosecutor, in effect, told the jury during closing argument that the defendant had a criminal record.

“MR. GOMANY (Assistant District Attorney): Sergeant White — you can take common sense back there in the jury room with you about how the police people operate. Here you have a burglary occurring in August, the 27th; several weeks later Sergeant White goes out to talk to Ms. White (sic) again and she gives him a description in detail. She doesn’t give Richardson a description, he just takes on the scene reports. He gets the description from her, he does his police work and investigation for three or four weeks, goes out to her house and shows her — and it just so happens they have the defendant’s photograph in here. Now, use your common sense — experienced detective just so happens to have the defendant’s, Farley, photograph in a group of eight pictures.
“MR. JAFFE (Defense Counsel): We would object to that statement that he just so happens to have the defendant’s, Farley, photograph there as tending to put him in jeopardy. We object to that statement, that is prejudicial.
“THE COURT: Overruled.”

The defendant contends that the only inference that can be drawn from these remarks is that the defendant had a prior criminal record. Argument by the prosecutor unsupported by the evidence which permits the impression that the defendant is guilty of a crime not charged in the indictment is error. Racine v. State, 290 Ala. 225, 275 So.2d 655 (1973); Moreland v. State, 373 So.2d 1259 (Ala.Cr.App.1979). However, the above remarks are ambiguous and do not automatically convey the clear inference of past criminal activity. The propriety of such remarks must be left within the sound discretion of the trial judge whose judgment will not be reversed unless it appears that there was an abuse of such discretion. Watts v. State, 53 Ala.App. 518, 301 So.2d 280 (1974); Evans v. State, 42 Ala.App. 587, 172 So.2d 796 (1965).

II

The defendant contends that the arguments, remarks and conduct of the prosecutor were so prejudicial that he was denied a fair trial.

While the conduct and argument of the prosecutor in this ease may not warrant our approval or recommendation for emulation by others, the particular instances of conduct and argument in this case do not amount to reversible error. Argument by this particular prosecutor has frequently been the object of alleged error. Roberson v. State, 389 So.2d 144 (Ala.Cr.App.), cert. denied, 389 So.2d 151 (Ala.1980); Merchant v. State, 384 So.2d 627 (Ala.Cr.App.), cert. denied, 384 So.2d 632 (Ala.1980); Chambers v. State, 382 So.2d 632 (Ala.Cr.App.), cert. denied, 382 So.2d 636 (Ala.1980); Earley v. State, 358 So.2d 494 (Ala.Cr.App.), cert. denied, 358 So.2d 501 (Ala.1978); Richardson v. State, 354 So.2d 1193 (Ala.Cr.App.1978).

In this case, as in the others above cited, the prosecutor’s remarks border on the improper. What we said in Sprinkle v. State, 368 So.2d 554, 560 (Ala.Cr.App.), cert. quashed, 368 So.2d 565 (Ala.1978), applies here.

“The appellant argues that the cumulative effect of the prosecutor’s trial tactics creates reversible error. We have reviewed each and every allegation of error, including others not listed above, and find that the cumulative effect of these alleged errors does not demand a reversal. Some of defense counsel’s objections were not well taken, other objections were not raised at trial or were not timely interposed. In some instances the trial judge sustained defense counsel’s objections or instructed the jury to disregard. In other instances a ruling was not secured to the objection or motion. In certain cases the prosecutor’s questions were entirely proper or at least within the discretion of the trial judge. In other cases the prosecutor’s conduct may have been improper yet not prejudicial to the appellant. Since no single instance of alleged improper conduct constituted reversible error, we do not consider their cumulative effect to be any greater.”

Ill

The defendant argues that the prosecutor’s questions and argument placed the burden of proving the alibi defense upon the defendant.

During the course of the State’s closing argument, the following occurred:

“(Assistant District Attorney): . . . And the alibi witnesses, they all got up there — I am not afraid to say it, I will say it in front of. them, they lied on the witness stand. You heard their stories, they knew everything about the date and time — they didn’t know the day before. Didn’t tell the police — here is Mrs. Farley (the defendant’s wife) that has all of this important evidence, she was at the unemployment office, no records or anything to show that to you. She is sure he was home. Did she make an effort to contact Sergeant White or anybody in law enforcement the day after he was arrested—
“MR. JAFFE (Defense Counsel): Judge, again—
“MR. GOMANY: —until yesterday in Court?
“MR. JAFFE: Judge, again, for the record, that statement that Mrs. Farley has made no effort, tends to place the burden of proof on Jimmy Farley, which is unconstitutional. And, we further object on the grounds of that.
“THE COURT: All right.
“MR. GOMANY: I am putting the burden of proof—
“MR. JAFFE: Do you overrule that?
“THE COURT: Yes.
“MR. GOMANY: I am putting the burden of proof by Ms. Farley, if she knew all of this big evidence, why didn’t she call the Sheriff’s office and look in the phone book or come down and ask — like to come out and see her.
“MR. JAFFE: Same objection, same grounds.
“MR. GOMANY: But she didn’t do that.
“MR. JAFFE: —to that about the burden of proof.
“THE COURT: All right, Overruled.”

The prosecutor’s comments in this case do not amount to an improper argument that the defendant has the burden of proving his alibi defense beyond a reasonable doubt.

While the burden of proof never shifts in a criminal case, Ragland v. State, 238 Ala. 587, 192 So. 498 (1939), a prosecutor may comment on the failure of the defendant, who testifies in his own behalf, to produce evidence which would presumably aid him or substantiate his alibi if it were true. Henry v. State, 355 So.2d 411 (Ala.Cr.App.1978); Holloway v. State, 19 Ala.App. 371, 97 So. 376 (1923).

“In Alabama a defendant is not required to notify the state of an alibi defense. Therefore, in most cases the state has no way of knowing which witnesses would or could testify as to the whereabouts of the accused at the time of the offense in establishing an alibi defense. Indeed, generally the state would not even know of the existence of the alibi defense until such testimony came from the witness stand. Therefore, since the appellant was in a superior position to know of the existence and identity of his alibi witnesses it was not error for the state to comment upon his failure to produce other witnesses whose testimony would presumably aid the appellant or substantiate his story if the story were true. The prosecutor’s comments were only a reasonable inference and deduction from the evidence, ...”
Henry, 355 So.2d at 414.

However, where the witness is equally available to the State and the defendant, it is improper for the prosecutor to comment on the failure of the defendant to call the witness. Spears v. State, 22 Ala.App. 257, 114 So. 477 (1927).

Here, the defendant’s wife testified that she was at the unemployment office in the morning and that when she arrived home the defendant was there. The defendant testified that he had driven his wife to the unemployment office after they had registered their child in school that morning. Both the defendant and his wife testified that they were both home from 11:00 that morning for the remainder of the day. The burglary occurred at approximately 12:00 noon. In cross examining the defendant’s wife, the prosecutor proved that she did not have any papers showing that she was at the unemployment office that day and that she could not prove, other than through her own testimony, that she did go to the unemployment office.

Even though the “burden of proof” never shifts in a criminal case, the defendant does have the “burden” of producing evidence of his alibi. Ragland, supra.

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The defendant has received exceptional representation both at trial and on appeal from his appointed counsel. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex parte Jimmy FARLEY. (Re Jimmy Farley v. State of Alabama).
    81-86.
    Supreme Court of Alabama.
    Nov. 25, 1981.
    Richard S. Jaffe, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   EMBRY, Justice.

We wish to emphasize that we refuse to issue the writ in this case because we find no merit in the issues presented by the petition.

. However, we think the trial courts have been excessively lenient in imposing disciplinary sanctions upon the prosecutor in this case and others cited by the appellate court. Trial courts are possessed of ample powers to deal with conduct of attorneys who fail to conduct themselves according to high standards of courteous and correct behavior in the trial of cases; the trial courts should not hesitate, in proper instances, to exercise those powers.

WRIT DENIED.

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


text:
    Joseph Aaron DOUGLAS v. STATE.
    6 Div. 398.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      J. T. Simonetti, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for burglary in the third degree. Section 13A-7-7, Alabama Code 1975 (Amended 1977). Sentence was ten years’ imprisonment under the Alabama Habitual Felony Offender Act. Section 13A-5-9, Alabama Code 1975 (Amended 1977).

I

The State proved the defendant’s prior conviction for robbery through a trial docket sheet from Jefferson County. This was proper. In Jefferson County a certified copy of the trial docket sheet is a proper method of proving a prior conviction. 1971 Alabama Acts, No. 1037, Section 2, p. 1848. See Thomas v. State, 395 So.2d 1105 (Ala.Cr.App.1981). Although the trial docket sheet shows that counsel, was appointed to represent the defendant on October 15, 1973, the docket sheet does specifically state that the defendant was represented by counsel (or had waived counsel) on July 30,1974, when he withdrew his plea of not guilty and pled guilty.

We think that the docket sheet showing that the defendant was represented by appointed counsel is sufficient to satisfy the requirement of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), that a prior conviction can be used to enhance punishment only where it has first been affirmatively established that the defendant was represented by counsel or waived counsel at the time of the prior conviction.

At trial the defendant testified in his own behalf and under direct examination by his own counsel admitted that on July 30,1974, he pled guilty to robbery. “(W)hen a defendant, through his own counsel, freely admits his conviction of a crime, unless he qualifies his admission, he admits all of the ingredients needed to prove the conviction of the crime.” Donahay v. State, 287 Ala. 716, 718, 255 So.2d 599 (1971).

II

Contrary to defendant’s contentions the record shows that he was given “reasonable” notice of the convictions to be used under the Habitual Felony Offender Act. Rule 6(b)(3)(h), Alabama Rules of Criminal Procedure, Temporary Rules. At some time prior to trial, the defendant received notice that the State intended to employ the habitual offender statute and notice of the two convictions the State intended to use. The record also shows, without dispute, that after the conviction and six weeks before sentencing the defendant received actual notice of the two • convictions the State would use.

III

The Alabama Habitual Felony Offender Act is constitutional. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). The indictment need not allege that the prosecution is pursuant to the Habitual Offender Act. Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981).

IV

Birmingham Police Officer William Edward Harris received a radio dispatch that a silent burglar alarm had been activated at Franklin Industries. In the rear of the building, he found that a small panel of a “bay” or garage door had been knocked out. Officer Harris and his partner entered the building. Harris noticed that most of the lights were on and heard the defendant typing. Harris asked the defendant if he worked there and the defendant stated that he used to. Officer Harris then asked the defendant what did he mean and the defendant replied that he had been fired.

These questions and answers were clearly admissible as they were obviously made in determining whether or not a crime had been committed. Kelley v. State, 366 So.2d 1145 (Ala.Cr.App.1979).

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

AFFIRMED.

All Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Joseph Aaron DOUGLAS. (Re Joseph Aaron Douglas v. State of Alabama).
    81-66.
    Supreme Court of Alabama.
    Dec. 18, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Sanders B. WILLIAMS v. STATE.
    6 Div. 489.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      Bill Fite, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

Manslaughter; ten years imprisonment.

This is the second trial of this case, the first being reversed by this court. Williams v. State, Ala.Cr.App., 387 So.2d 295 (1980).

During the early morning hours of November 6, 1978, appellant and his wife began to fight over, inter alia, the presence of several guests of appellant at their house. Both appellant and his wife had been drinking heavily for several hours. During the course of their struggle, appellant stated that his wife said that, “She was going to get a gun and shoot me.” Appellant prevented his wife from executing her threat by continuing to fight with her.

Shortly thereafter, he entered the bedroom where his guns were located, closed and barricaded the door, and fell asleep. Around 3:40 A.M., he found his wife lying on the floor of a hallway and called for help. It was determined that his wife had died from complications associated with the numerous blows she sustained to her head.

A more complete rendition of the facts and a determination of their sufficiency is unnecessary because an issue concerning the refusal of the trial court to give a written requested charge is dispositive of this cause.

I

Appellant contends that the trial court erred in refusing to give all of his one hundred and forty-four written requested charges. Requested charge eighty-eight is quoted below:

“I charge you members of the jury, that while threats alone will not serve as a justification for homicide, if the jury believes from the evidence that the deceased, at the time of the homicide was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the defendant, you may then consider the threats made by the deceased in justification of the homicide.”

Although the trial court fully and fairly instructed the jury concerning the defense of self-defense and properly removed the element of retreat from its consideration, it did not cover the situation expressed in appellant’s requested charge.

Quoting from Wiggins v. State, Ala.Cr.App., 398 So.2d 780, cert. denied, Ala., 398 So.2d 783 (1981), which discussed the identical issue now before us:

“The above charge has been expressly approved by our Supreme Court in Traweek v. State, Ala., 380 So.2d 958 (1979); Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1975); and Karr v. State, 100 Ala. 4, 14 So. 851 (1893).
“It is immaterial if the only evidence supporting the charge was produced by the appellant, Traweek, supra.
“In determining whether a charge requested by an accused is supported by the evidence, the question on appeal is not what is our view of the evidence, but rather whether such evidence was presented. Hunter, supra.
“The requested charge is not misleading, and does not place undue emphasis upon a portion of the evidence. Hunter, supra. Evidence was presented to support the appellant’s requested charge.”

Consequently, the failure of the trial court to give the above requested charge resulted in reversible error. Therefore, this ease must be reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte State of Alabama. (Re Sanders B. WILLIAMS v. STATE of Alabama).
    81-72.
    Supreme Court of Alabama.
    Nov. 25, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Lasalle MINNIFIELD v. STATE.
    6 Div. 491.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      Roger D. Burton, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of rape. The court fixed his punishment at life imprisonment and sentenced him accordingly.

According to the testimony of the alleged victim, she was an employee of University of Alabama in Birmingham on June 22, 1979, and about 5:00 P.M. that day, as she was leaving work to go home in her automobile parked in the parking lot of the University, the defendant, whom she had not known before, came to the driver’s side of the automobile and at gunpoint (a pistol) directed her to move over, which she did, and defendant got in the driver’s seat and drove to an apartment building on Birmingham’s Southside where he raped her. Thereafter, they returned in the automobile to the parking lot at the University, alighted from the automobile and entered an automobile claimed and operated by defendant, which defendant drove to an isolated area beyond Fairfield, where they both left the automobile and he raped her again on a mattress lying on the ground. They returned to the University parking lot about 8:00 or 8:30 P.M. The victim’s testimony continued as follows:

“Q. Okay. When he let you out of the car what did he do?
“A. He drove on off.
“Q. What did you do?
“A. I got in my car, and I went over to my mother’s house.
“Q. Where does your mother live?
“A. She lives in Collegeville.
“Q. How far would that have been from where you were?
“A. Maybe about 15 minutes.
“Q. When you got to your mother’s house was anybody there?
“A. My mother and father were there.
“Q. What happened then?
“A. I told them what had happened.
“Q. And what did you do after you told them?
“A. Well, after I had told my mother, I called my husband. He was at work. I called him at work.
“Q. Where does your husband work?
“A. He works at ... .
“Q. Did you talk with him?
“A. Yes, sir, I did.
“Q. And what happened after you talked with him?
“A. My mother and father took me home. By that time my husband had arrived home. He had already called the police.
“Q. Did you talk or see any policeman on that occasion?
“A. Yes.
“Q. Where did you see policemen?
“A. They came to my home.
“Q. Did you have some conversation with them?
“A. Yes, I did.
“Q. After the conversation with the policemen, where did you go?
“A. I went to University Hospital.”

The defendant did not testify in the case, and no witness testified on call of defendant. The victim was the only witness who testified as to what transpired between the victim and the defendant on the afternoon and evening of June 22, 1979. She positively identified him as the person who had raped her twice. On cross-examination, she was questioned intensively as to whether she ever endeavored to forcibly resist him, escape from him or make any outcry or appeal for help. In answering such questions, she insisted that she feared for her own life and safety and that whatever submission there was on her part was actuated by her fear that he would instantly kill her unless she complied with his orders made while he was armed with the pistol which he constantly threatened to use, until he was about to let her out of the automobile at the parking lot, when he told her that the pistol was not loaded.

The issue as to guilt turned almost exclusively upon the question whether there was voluntary consent by the victim, which she stoutly denied, in the light of the absence of physical resistance and related circumstances. No one is in a better position to determine that issue than the jury who observed the witness as she testified. It is not within our province to disturb the verdict, and there is no contention to the contrary.

The only issues raised by appellant are stated in his brief as follows:

“I
“WHETHER REVERSIBLE ERROR OCCURRED WHEN THE STATE WAS ALLOWED TO INTRODUCE EXTRINSIC COLLATERAL EVIDENCE THAT DEPENDANT WAS A VICTIM OF AN ASSAULT WITH INTENT TO MURDER — WHEN SUCH EVIDENCE WAS NOT RELEVANT OR MATERIAL TO ANY ISSUE AT BAR, PREJUDICIAL TO DEFENDANT AND HAD THE COLLATERAL EFFECT OF ILLEGALLY IMPEACHING HIS CHARACTER.
“II
“WHETHER REVERSIBLE ERROR OCCURRED THROUGH THE DISTRICT ATTORNEY’S INTRODUCTION OF AN INVOLUNTARY STATEMENT MADE BY APPELLANT AND TESTIMONY REGARDING PHYSICAL ITEMS BOTH OF WHICH WERE NOT PRODUCED PURSUANT TO A MOTION TO COMPEL DISCLOSURE.”

Appellant’s argument as to each of the two issues tends to blend in some respects with argument as to the other issue, but we will endeavor to consider the issues separately.

As to issue I, there is considerable merit in appellant’s contention that there was evidence that “was not relevant or material to any issue” in the case, but we do not agree with the contention that the court committed error prejudicial to defendant in connection with the introduction of such evidence, which constitutes a major part of the transcript, some of it taken on voir dire out of the presence of the jury and the larger part in the presence of the jury.

The evidence pertained, as stated by appellant, to the fact that on the day after the alleged rape in the instant case the defendant was shot while in his home by an undisclosed person under circumstances that indicated that defendant was the victim of an assault with intent to murder, and defendant was hospitalized for the injuries received as a result of the assault. On June 25, a Birmingham police officer in the robbery-homicide section of the police department, was assigned the case of the assault with intent to murder defendant; and with an incident report with reference to it he went to the hospital room of defendant and in his discussion with the defendant obtained from the defendant his home address at 106 Cotton Avenue, apartment No. 1. The particular officer had a desk in the police department that was next to a desk of one of the officers who had been assigned for investigation of the complaint by the alleged victim in the instant ease, who had not been able to identify the alleged rapist. However, she had described him and the automobile he was driving to the investigating officers and had given them the approximate number of the license tag of the motor vehicle. As a result of the discussions between the officers occupying adjoining desks, officers handling the complaint in the instant case learned that there was an automobile at 106 Cotton Avenue, S.W., that answered the description of the automobile the alleged rapist was driving and that it had a tag number approximately the same as that reported by the alleged victim. The transcript does not show clearly when and where the victim first identified the defendant as the rapist, but it is reasonably clear from the transcript that she had become certain in her own mind prior to the trial that defendant was the person who had had the prolonged affair with her on the late afternoon and early evening of June 22.

In his argument as to issue I, appellant says in his brief:

“The record clearly reveals that Appellant did not contest identity which was not at issue. Appellant’s defense was consent — therefore, Sgt. Gay’s testimony in that regard, (and Sgt. Ballard’s) was totally irrelevant, probative of nothing, and highly prejudicial.”

In view of all of the evidence in the case, which we are now permitted to review, but which the trial judge was not permitted to consider at the time of his rulings on the admissibility of evidence for the reason that all of the testimony had not been taken at such time, it is difficult for one to see the materiality of, or the necessity for, evidence tending to corroborate the identification of defendant by the alleged victim. Furthermore, the record convinces us that probably if the court and the prosecution had known that defendant was making no point whatever as to the identification of the person who had the affair with the alleged victim and that his “defense was consent” they would have considered it time consuming and of no benefit to the State to go into the details of the corroborative evidence as to identity. Counsel for defendant was well within his right and in the full performance of his duty in not conceding any of the elements of the crime charged and in not conceding that defendant was the person who was with the alleged victim at the time, but as the question of identity was an open question throughout the trial, it cannot be correctly said that the corroborative evidence as to identity “was not relevant or material to any issue” in the case. It was both relevant and material.

Appellant’s strenuous insistence that he was greatly injured by the introduction in evidence of his being a victim to an assault with intent to murder prompts us to discuss that insistence, even though the fact that evidence is injurious to a party objecting to it does not in and of itself constitute a valid ground of objection. The transcript furnishes little support for appellant’s view that the evidence tended to put defendant in an unfavorable light with the jury, which in one portion of his brief he states “clearly spelled out to the jury the prior difficulties with the police department and a bad character for violence.” Prima facie, at least, the evidence tended to show that he was the victim, rather than the perpetrator, of criminal conduct. There is nothing in the transcript to indicate the contrary. The transcript is silent as to the other person involved and the cause of his shooting defendant in his home the day after the incident in the instant case. We find no suggestion in the transcript, other than on the sentencing hearing, that defendant had raped other women. However, we feel that we should here make it known that which we judicially know is found in Lasalle Minnifield v. State, Ala.Cr.App., 392 So.2d 1288 (1981), in which appellant had been convicted of rape and sentenced to imprisonment for life, and in which the evidence showed that after about 10:30 P.M. on June 22, 1979, the defendant raped twice each of two women. See also, LaSalle Minnifield v. State of Alabama, 542 F.2d 947 (5 Cir. 1976), affirming the denial of a petition for habeas corpus involving another rape. We find much in reported cases as to the matter that gives appellant’s counsel concern, but nothing of the kind was revealed to the jury on the trial of the case now before us.

Another insistence of appellant is to the effect that some of the evidence relative to defendant’s having been shot in his apartment on June 23, 1979, consisted of hearsay evidence. Appellant refers expressly to a portion of the testimony of Sgt. James E. Gay, a witness for the State. We quote the identical part of the transcript that is quoted in appellant’s brief on the subject:

“(By M. Cahill to Sgt. Gay)
“Q: On Monday, the 25th of June, you had this conversation with Mr. Minnifield at the hospital. Did you ever have an occasion to go back to the Crimes Against Persons division in the City Hall, to your office area?
“A: Yes, sir, I did.
“Q: And did you have a discussion with Sgt. Ballard?
“A: Yes, sir, I did.
“Q: Did you have a general discussion? Is it normal in your line of work to discuss your cases with your peers in the office?
“A: That’s correct.
“Q: Shoot the breeze about various eases?
“A: That’s correct.
“Q: Did you do so in regard to Mr. Min-nifield’s case?
“A: Yes, I did.
“Q: Was his name mentioned?
“MR. BURTON: Your Honor, we object to anything with regards to whether or not his name was mentioned as hearsay, any conversation that took place between the police officers.
“THE COURT: I’m going to overrule. Just the name.
“A: Yes.
“MR. CAHILL: That’s all the questions we have.”

It is to be readily seen from the objection of defendant that he was anticipating that the witness would testify as to a conversation between him and the other police officer. In overruling defendant’s objection, the court limited the answer of the witness to “Just the name,” and the witness complied with the limitation, and State’s counsel asked no further questions of the witness at the time. We see no basis for any complaint by appellant. In fact, the unequivocal “yes” answer to the previous question asked the witness, “Did you do so m regards to Mr. Minnifield’s case?” was the equivalent of the “Yes” answer to the question to which defendant’s objection was made. No error prejudicial to defendant resulted from the court’s ruling.

A final contention made by appellant pertains to the admission in evidence of the testimony of Sgt. Ballard as to finding some beer cans near a mattress at the isolated place where the alleged victim testified the defendant raped her a second time. The victim had testified that defendant had thrown some beer cans on the ground near the place on the occasion of the rape there. Near the end of the trial, the State endeavored to introduce in evidence beer cans that had been retrieved from the isolated place where the claimed rape occurred. A hearing was then conducted out of the presence of the jury relative to the admissibility in evidence of the beer cans. Immediately upon the commencement of the hearing, the following occurred:

“MR. CAHILL: Judge, for the record, I guess in the last 24 hours I realized through Sgt. Ballard we have some beer cans. I would apologize to Roger, that I forgot to tell him. Any other conversation we had I related to him we had none.
“THE COURT: I just don’t think they are admissible. Here you have a motion to produce in which — motion to compel disclosure which I ruled on back in May or sometime. I think it was May. So now the trial is toward the end and the beer cans appear. It is not a question of whether the DA has them. It’s a question of whether the DA or the police has them. It’s the responsibility of the DA themselves to find out what they got and not just wait and say to the defendant at the last minute, well, here’s the beer cans. This can be very damaging.
“MR. CAHILL: We will withdraw going into the beer cans. We’ll not make an attempt to introduce them.
“THE COURT: All right. I will instruct the jury to disregard the beer cans.”

Immediately thereafter, the jury was returned to the courtroom and the following occurred:

“THE COURT: All right. Ladies and gentlemen, insofar as the testimony of this witness is concerned, the Court has ruled that the beer cans and anything having to do with the beer cans is inadmissible and from this witness has nothing to do with the case. All right. It’s out.”

There was no ruling adverse to defendant in connection with testimony as to the beer cans. The court ruled in favor of defendant as to their admissibility in evidence and emphatically instructed the jury that it should disregard all previous testimony with reference to the beer cans. The concluding sentence in appellant’s brief:

“The beer cans did, however, bolster the credibility of the victim’s testimony, and Appellant was prejudiced because he was denied an adequate opportunity to be prepared for this kind of damaging and prejudicial testimony.”

presents no action of the trial court for us to review. All rulings of the trial court on the subject were in favor of defendant.

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

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

AFFIRMED.

All the Judges concur.


text:
    Ex parte Lasalle MINNIFIELD. (Re Lasalle Minnifield v. State of Alabama).
    81-82.
    Supreme Court of Alabama.
    Nov. 25, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: HARRIS, Presiding Judge.

text:
    Bobby Gene MALONE v. STATE.
    8 Div. 465.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      Charles A. Dauphin of Baxley, Beck & Dillard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was arrested for the July 11, 1980, unlawful sale of prohibited beverages contrary to § 28-4-20, Code of Alabama 1975. On August 29, 1980, he was found guilty in District Court. He appealed to the Circuit Court for trial de novo. On December 9, 1980, appellant was tried and convicted with the jury assessing him a $500.00 fine. Under § 28-4-21, Code of Alabama 1975, the trial court imposed a sentence of nine months’ imprisonment in the county jail, but suspended all but sixty days of it. Throughout the trial and appellate proceedings appellant has been represented by counsel of his choice.

Appellant raises no issue on appeal as to the sufficiency of the State’s evidence. Nevertheless, a thorough review of the State’s evidence leaves no doubt that it presented a prima facie case of illegally selling prohibited beverages and was properly submitted to the jury for its consideration. Therefore, only a narration of the facts is necessary for disposition of this cause.

Franklin County Deputy Sheriff Randy Jones testified that, on June 25, 1980, he and his brother, Alan, were sworn as deputy sheriffs by District Court Judge Joe Gilli-land. Present was Franklin County Sheriff U. R. Jarnigan. Around 9:00 p. m., on July 11, 1980, he and his brother, acting in their capacity as deputy sheriffs, drove in his car to appellant’s residence in Franklin County. As he parked next to a shed adjacent to the house, he observed four teenagers, two of whom were inside the shed. As he approached the shed one of the teenagers exited carrying a sack containing at least one six-pack of beer. The teenagers immediately drove away.

Deputy Jones entered the shed and rang the bell (which had a sign hanging under it reading “Ring for Service”) while his brother remained in the car. Appellant answered, opened a window, and asked what he needed, to which Deputy Jones replied, one-half case of beer. Deputy Jones saw appellant open a cooler under the window, remove two six-packs of beer, place them in a paper sack, and hand it to him. Appellant charged him $9.00. Deputy Jones paid appellant and left. A short distance from appellant’s house, his brother transferred the beer to the trunk of the car. Later that evening, they labelled the beer for identification and stored it in his brother’s house. On July 21, 1980, they moved it to their office in Franklin County Jail where they normally kept all their evidence. He stated that it was not the only room used by the Sheriff’s Department for storing evidence. Deputy Jones stated that only his brother had keys to both locks on their office door. The beer remained in the office until removed for the instant trial. He identified the beer and appellant as the person who sold it. On July 18, 1980, they arrested appellant at his house.

Franklin County Deputy Sheriff Alan Jones reiterated most of his brother’s testimony concerning the July 11, 1980, purchase of beer from appellant. He added that he was about fifteen feet away from the window located inside the shed and could see into it. He stated that he labelled the beer at his house and stored it there until July 21 when it was moved to their office at the county jail. He identified the beer which was admitted into evidence. He inspected the contents of one of the cans and stated that it contained beer.

Appellant contends that both deputies were without legal authority to arrest him as they had not complied with § 36-4-5, Code of Alabama 1975. A stipulation of facts read into the record by appellant’s counsel reveals that, although both deputies had been orally sworn by Judge Gilliland on July 25, 1980, it was not until August 29, 1980, that they filed a written copy of it along with a bond with the probate court. Appellant asserts that they were not de facto deputies. We disagree.

One who is actually acting as a deputy sheriff under color of right is such officer de facto, although the statutory requisites of appointment, such as filing the requisite oath or giving and signing the necessary bond, have not been complied with. 80 C.J.S. Sheriffs and Constables § 28 (1953). See also 67 C.J.S. Officers §§ 266-68, 270, 276 (1978).

A de facto officer is one who exercises the duties of a de jure office under color of appointment or election, and his official acts are valid. Dixie Dairie—Dairy Fresh Corporation v. Alabama State Milk Control Board, 286 Ala. 198, 238 So.2d 551; Ex Parte Register, 257 Ala. 408, 60 So.2d 41, 42; Coe v. City of Dothan, 19 Ala.App. 33, 94 So. 186.

As stated in Joseph v. Cawthorn, 74 Ala. 411, 414, 415:

“It has frequently been decided, and it is clear upon principle, that the failure of an officer to conform to some statutory condition, or constitutional requirement, such as taking an oath, giving bond, or the like, does not remove his de-facto character, where he is acting under color of a known and valid appointment or election ....
There is no distinction in law between the official acts of an officer de jure, and those of an officer de facto. So far as the public and third persons are concerned, the acts of the one have precisely the same force and effect as the acts of the other . .. Their official acts are equally valid. The rule is one which is dictated alike by principles of justice and public policy.” (citations omitted)

See also Cary v. State, 76 Ala. 78; Heath v. State, 36 Ala. 273; State v. Holloway, Fla.Dist.Ct.App., 318 So.2d 421.

From the record it is clear that both deputies were acting under color of right as de facto deputies. They were orally sworn in the presence of the Sheriff, performed duties consistent with the appointment, maintained an office in the county jail, and were entrusted with the only keys to gain access therein. The trial court properly denied appellant’s motions to suppress, quash the arrest warrant, dismiss the complaint, and denied the motion for a new trial on the above ground.

Appellant’s last contention of error centers upon a comment made by the prosecuting attorney during his closing argument where he stated, “He [appellant] was out there selling to teenagers.”

A prosecutor may argue every legitimate inference from the evidence, and may examine, collate, sift, and treat the evidence in his own way. Evans v. State, Ala.Cr.App., 389 So.2d 567; Favor v. State, 389 So.2d 556; Williams v. State, Ala.Cr.App., 377 So.2d 634; cert. denied, Ala., 377 So.2d 639.

Liberal rules are allowed counsel in drawing inferences from the evidence in their arguments to the jury, whether they are truly drawn or not. Chambers v. State, Ala.Cr.App., 382 So.2d 632, cert. denied, 382 So.2d 636.

We find no error committed by the comment of the prosecuting attorney as it was a reasonable inference drawn from the evidence.

A thorough review of the record finds nothing prejudicial to the substantial rights of the appellant. The judgment of conviction is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Delbert JOHNSON v. STATE.
    8 Div. 466.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    Charles A. Dauphin, of Baxley, Beck & Dillard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

' Appellant was arrested for the July 11, 1980, unlawful sale of prohibited beverages contrary to § 28-4-20, Code of Alabama 1975. On August 29, 1980, he was found guilty in District Court. He appealed to Circuit Court for trial de novo. On December 8,1980, appellant was tried and convicted with the jury assessing him a fine of $150.00. Under § 28-4r-21, Code of Alabama 1975, the trial court imposed a six months’ suspended sentence. Throughout the trial and appellate proceedings appellant has been represented by counsel of his choice.

Appellant raises no issue on appeal as to the sufficiency of the State’s evidence. Nevertheless, a thorough review of the State’s evidence leaves no doubt that it presented a prima facie case of illegally selling prohibited beverages and was properly submitted to the jury for its consideration. Therefore, only a narration of the facts is necessary for disposition of this cause.

Franklin County Deputy Sheriff Randy Jones testified that, on June 25, 1980, he and his brother, Alan, were sworn as deputy sheriffs by District Court Judge Joe Gilli-land. Present was Franklin County Sheriff U. R. Jamigan. Around 7:15 p.m., on July 11,1980, he and his brother, Alan, acting in their capacity as deputy sheriffs, drove in his car to appellant’s residence in Franklin County. As they approached they saw appellant standing beside a car containing three or four young white males parked in his driveway. The car left and they pulled into the driveway and began to talk to the appellant. After they conversed for a few minutes appellant asked them what they wanted, to which Deputy Jones replied a six-pack of beer. Appellant left, walked behind his house, and about one minute later returned, carrying a beer box containing six cans of beer. Deputy Jones paid appellant and left. A short distance from appellant’s house, the beer was transferred to the trunk of the car. Later that evening, they labelled the beer for identification and stored it in his brother’s house. On July 21, 1980, they moved it to their office in the Franklin County Jail where they normally kept all their evidence. Deputy Jones stated that only his brother had keys to both locks on their office door. The beer remained in the office until removed for the instant trial. Deputy Jones identified the beer and appellant as the person who sold it. On July 18,1980, they arrested appellant.

Franklin County Deputy Sheriff Alan Jones testified to the July 11, 1980, purchase of the beer from appellant in substantially the same manner as his brother. He identified the contents of the cans as containing beer, and appellant as the person who sold it. The beer was then admitted into evidence. Deputy Jones stated that he and his brother were on the Sheriff’s payroll on June 26,1980. Both did not know of the requirements to file a written oath and bond with the probate judge.

Appellant contends that both deputies were without legal authority to arrest him as they had not complied with § 86-4-5, Code of Alabama 1975. A stipulation of facts was read into the record by appellant’s counsel, which is the same as that in Malone v. State, Ala.Cr.App., 406 So.2d 1060.

Appellant’s contention has been answered adverse to his position in Malone, supra, decided this day.

Appellant raises no other issue on appeal. A thorough review of the record finds nothing prejudicial to his substantial rights. The judgment of conviction is hereby affirmed.

AFFIRMED.

All the Judges concur.