author: TYSON, Judge.

text:
    Lawrence Rufus STAHL v. STATE of Alabama.
    1 Div. 296.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 8, 1982.

      Norman J. Gale, Jr., of Clay, Massey & Gale, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Lawrence Rufus Stahl was tried and convicted pursuant to § 13-ll-2(a), Code of Alabama 1975, for the double murder of two Delchamps Food Store employees who were abducted on their way to make a routine bank deposit for their employer. The abductors apparently drove the victims to an isolated location, robbed them, then shot both victims in the head with a shotgun. After hearing the aggravating and mitigating circumstances in a separate proceeding and being properly instructed accordingly, the jury set sentence at life imprisonment without parole. The trial court, in a subsequent sentencing hearing, sentenced appellant to life imprisonment without parole, and this appeal followed.

On July 11,1977, shortly before 4:00 p.m., Richard Hacker and Terry Stainback left the Delchamps Food Store, where they were employed, to make the customary afternoon bank deposit for the store at a bank within walking distance. The deposit was never made.

On July 24,1977, almost two weeks after the disappearance of Mr. Hacker and Ms. Stainback, their bodies were discovered in an isolated wooded area where they had been “shotgunned” to death. There was evidence at the scene that they had been robbed, bound and then shot in the head at close range with a shotgun.

Nearly two and a half years later in December, 1979, unnamed informants told authorities in Tampa, Florida, that Lawrence Stahl (the appellant) and David Wal-drop had perpetrated the robbery-murders in Mobile in July, 1977. The informants not only named the appellant but also described the shooting incident. (R. 272).

The informants were subsequently interviewed in Tampa by officers from the Mobile County Sheriff’s Department. Acting upon the information received, Sheriff Tom Purvis, Detectives Willie Estes and Larry Tillman, and Assistant District Attorney Neil Hanley traveled to Lakin, Kansas, (appellant’s new place of residence) to question the appellant with reference the July 11, 1977, incident. They were assisted by the local Kearney County, Kansas, officials.

Sheriff McCue of Kearney County obtained an incriminating statement from the appellant on January 4, 1980, when he was brought in for questioning at the request of the Mobile authorities. (R. 284). This statement was not admitted into evidence because there was some doubt that the Miranda warnings which preceded the statement were sufficient.

After Sheriff McCue’s initial interview with the appellant, the interrogation was “turned over” to the Mobile County officials. Detective Estes gave the appellant thorough Miranda warnings after which the appellant requested an attorney. Nothing incriminating was obtained from the appellant during that meeting on January 4, so he was released. That evening Detective Estes received information that David Wal-drop, appellant’s alleged accomplice, had confessed to the robbery-murders and had implicated the appellant. At the request of the Mobile authorities and with their assistance, the Kearney County officials proceeded to appellant’s place of employment and arrested him at approximately 2:00 a.m. on Saturday morning, January 5,1980. Again, Detective Estes gave the appellant a thorough Miranda warning. Appellant did not make any incriminating statements at this time, but, subsequently, renewed his request for an attorney.

The appellant and the Mobile authorities were later informed that an attorney would not be available until Monday, January 7.

At some time after 9:00 a.m. on that same Saturday morning, Detective Tillman reported to the appellant that the Mobile authorities had to return to Mobile but that they were going to extradite him for murder. Tillman’s testimony with reference this conversation is reported at (R. 369) as follows:

“Q Again, sir, what did you tell the Defendant at around 9:00 or 10:00 o’clock on the morning of January 5, 1980?
“A That we were going to extradite him back to Mobile to face the charges of murder.
“Q Did he respond to this statement on your part?
“A Yes, he did.
“Q What was his response?
“A His response was that he didn’t kill those people in Mobile, it was Waldrop’s gun.
“Q Prior to him saying he didn’t [kill] the people, it was Waldrop’s gun, had you asked him any questions?
“A No, sir.
“Q Prior to his saying he didn’t kill the people, it was Waldrop’s gun, had you mentioned the name Waldrop?
“A No, sir.”

On cross-examination Tillman responded at (R. 371) as follows:

“Q What did you say to him?
“A I told him that the penalty — he wanted to know what the penalty was and I told him it could be death by electrocution.
“Q All right, sir, then tell us his exact words, as best you can remember and be fair about it, Detective Tillman. What were his words?
“A When I told him that the charge carried death by electrocution that’s when he made the statement.
“Q And what were the exact words?
“A The exact words, T didn’t kill those people. It was Waldrop’s gun.’ ”

and further at (R. 373-374) as follows:

“Q All right, sir. Now, why did you go down there, to tell him goodbye?
“A More or less.
“Q You were really fond of him, wanted to go tell him goodbye?
“A No, I was not fond of him.
“Q Why did you want him to know he was going to be extradited?
“A Because I felt he had that right to know.”

After appellant’s conversation with Detective Tillman, he requested his attorney and Sheriff Purvis. Sheriff Purvis talked briefly with the appellant and testified at (R. 379-380) as follows:

“Q And after he requested to see you what did you say to him?
“A Our conversation lasted only a few minutes, and I advised him that we were attempting to get an attorney and that I had been told that the attorney would not be available until Monday.
“Q Did you say anything else to him at that time?
“A Yes, sir. I told him that because of the actions of his brother, who also lived in Lakin, that I felt like Mr. Stahl owed him a lot. I said, ‘Larry, you owe your brother an awful lot.’
“Q In addition to that, Sheriff, did you caution Mr. Stahl not to make any statement to you about this particular case? “A Yes, sir, I told him I did not intend to talk to him about the case.
“Q After you told him that you couldn’t get him a lawyer that weekend and you didn’t want to talk to him about this case, what, if anything, did Lawrence Stahl say to you?
“A After I told him that he owed his brother a lot, he became emotional and he said to me, T thought I had left all that sh[_] behind me in Mobile.’ ”

These incriminating statements that the appellant made to Detective Tillman and Sheriff Purvis that he “didn’t kill those people in Mobile, it was Waldrop’s gun” and that he “thought [he] had left all that sh_behind [him] in Mobile,” respectively, were a significant part of the prosecution’s case against this appellant. They were not, however, the only evidence against him.

Additional incriminating statements were presented through the testimony of Bobby Wyrick, appellant’s “cell-mate” in Kearney County Prison in Kansas for several weeks in January, 1980. Wyrick testified that he and appellant discussed appellant’s incarceration on several occasions. Appellant told him that he (the appellant) was involved with a man named David in the shotgun slayings of a man and a woman in Mobile during a robbery in which $2,000 cash money was taken, but that he (the appellant) did not kill anyone and did not own a shotgun. (R. 391-392, 400). The appellant also told him that either appellant’s or David’s mother worked at the same store as the victims. (R. 391).

Wyrick admitted that he (Wyrick) had been arrested at that time on three counts of “incest” with his daughter and had been previously convicted for “an intentionally overdrawn check.”

The prosecution also presented Vera Jane Cox, a Delchamps Food Store employee, who testified that David Waldrop and the appellant were in the store the day before Hacker and Stainback were abducted, but that she had seen neither of them since that time. She explained that Waldrop’s mother was also a Delchamps employee and had occasionally made the bank deposits, but that she was absent on the day of the abduction.

Wallace Stewart, a friend of the appellant, testified, among other things, that on occasion prior to the July, 1977, incident, he had been camping with the appellant in the wooded area where the victim’s bodies were found.

Pamela Johnson reported that David Waldrop, accompanied by the appellant, purchased with $1200 cash money a motorcycle from her husband “just before dark” on a day early in July, 1977, (she could not recall the exact date.) Charles Bosarge, the Delchamps Food Store manager, talked with David Waldrop early in the morning on July 12, 1977, (the day after his employees disappeared), when Waldrop brought his “new motorcycle” by the store to show Bo-sarge. Waldrop told Bosarge he was going to North Carolina and asked him if there was any news about the disappearance of Hacker and Stainback (the murder victims).

The appellant did not take the stand in his own behalf to explain the incriminating statements used against him or to otherwise defend himself. Instead, his defense consisted of efforts to impeach the key witnesses for the prosecution, and of the testimonies of two witnesses who observed what might have been the abduction in progress on July 11, 1980.

Jo Ann Walker was a waitress at a restaurant across the street and approximately 200 yards (R. 460) from the Delchamps Food Store. She saw for about 15 or 20 seconds Richard Hacker as he proceeded from the Delchamps store. She did not see Ms. Stainback (the other victim) but did see two men on either side of the appellant neither of whom fit the description of the appellant on that date. This incident did not register with her as anything unusual until that night when she learned that Mr. Hacker and Ms. Stainback were “missing.”

Myma Greenlee testified that she was seated in her truck in the Delchamps parking lot when she noticed two men accompany Richard Hacker from the sidewalk toward a car in the parking lot. She stated that Hacker looked “frightened” (R. 429), that he was carrying a brown bag (the bank deposit bag was customarily carried to the bank in' a brown paper sack), and that it appeared that a fight might ensue between the two men and Hacker. Her descriptions of the two men with Hacker did not match the appellant’s appearance on that date.

As she left the parking lot she followed a car in which she identified Hacker. He was in the back seat and the two men she had seen with him in the parking lot were on either side of him. In the front seat were a woman and a man, who was driving. Her description of the driver also did not match the appellant’s appearance on that date.

She last saw the car with its five occupants heading in the general direction of the wooded area where the victim’s bodies were later discovered. She did not report what she had seen until July 26, 1977, two days after the bodies were discovered because she “did not want to get involved.”

I

Appellant’s sole contention during oral argument of this case, was that the trial court erred in admitting the statements made to Detective Tillman and Sheriff Pur-vis because said statements were the product of “interrogation” after the appellant had requested an attorney but before one had been provided. He contends that such “interrogation” was improper because he had invoked his right to the assistance of counsel and at no time “voluntarily” waived said right.

Under the circumstances of this case the key issue is whether or not the appellant’s incriminating statements were made during “interrogation.” See, Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Since we have determined that appellant’s statements were not the product of “interrogation,” we need not reach the “waiver of the right to counsel” issue. See, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 387 (1981).

The appellant argues that the comments directed to him by Detective Tillman and Sheriff Purvis on the morning of January 5, 1980, were part of an obvious “tough guy-soft guy” routine employed as a deliberate attempt to coerce his incriminating responses which followed. He maintains that such conduct was the equivalent of “interrogation.” He explains that Tillman should have expected an incriminating response when he told appellant that the Mobile authorities had to return to Mobile but would extradite him for murder and when he described (at appellant’s request) the possible penalty for such a crime. Likewise, Purvis should have known that his comments with reference appellant’s brother would compel an additional incriminating response.

Afteí a thorough review of the record and appellant’s arguments at trial, in brief, and at oral argument, it would be mere conjecture on our part to conclude that the Mobile authorities contrived a scheme (the so-called “tough guy-soft guy” technique insinuated by the appellant) to indirectly compel this appellant to incriminate himself. There is no evidence in the record that either Tillman or Purvis intimidated or coerced or otherwise induced this appellant. Other than the record of this appeal, we have no way of knowing what intimidating factors might have existed at the Kearney County Jail on that morning with reference this appellant. For aught that does appear in the record the appellant’s incriminating statements were not the product of “interrogation” but rather were “volunteered” by the appellant.

This conclusion has been reached in light of the new federal standard for determining when “interrogation” has occurred and after review of the applicable case law.

II

The United States Supreme Court recently in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), established the standard for determining when a suspect, who is in custody and has asked for, but not yet received the assistance of counsel, has been subjected to further “interrogation.” The Court analyzed the procedural safeguards against compulsory self-incrimination outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1986) and concluded that:

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect....
“A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Emphasis added, footnotes omitted.)

The court referenced the caveat expressed in Miranda that:

“ ‘Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk with police without the benefit of warnings and counsel, but whether he can be interrogated.... Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today (emphasis added).’ Id., at 478, 86 S.Ct., at 1630.”

Therefore, words or actions that authorities should know are reasonably likely to elicit an incriminating response from the suspect are the “functional equivalent” (i.e., the legal equivalent) of “interrogation.”

As noted in the concurring and dissenting opinions in Rhode Island v. Innis, supra, we can foresee some difficulty in applying this standard to the circumstances of each specific case. In fact, the United States Supreme Court was rather divided (5-4) as to its application in the Innis, supra, case. There the suspect had been arrested in the vicinity of a school for handicapped children for armed robbery with a shotgun. He had been given the Miranda warnings and had requested an attorney. He had been placed in a police car with several officers who had proceeded to transport him to jail. Two of the officers in the hearing of the suspect began discussing the undesirable consequences if perhaps one of the little handicapped children found the missing shotgun. The suspect immediately led the police officers to the incriminating shotgun and it and the suspect’s statements made in conjunction with its recovery were admitted as evidence against him.

Mr. Justice Stewart, speaking for the majority, applied the new standard to these facts and determined that:

“[I]t cannot be fairly concluded that the respondent was subjected to the ‘functional equivalent’ of questioning .... The ease thus boils down to whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response. Given the fact that the entire conversation appears to have consisted of no more than a few off-hand remarks, we cannot say that the officers should have known that it was reasonably likely that Innis would so respond. This is not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the respondent’s contention that, under the circumstances, the officers’ comments were particularly ‘evocative.’ It is our view, therefore, that the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him.
“... That the officers’ comments struck a responsive chord is readily apparent. Thus, it may be said, ... the respondent was subjected to ‘subtle compulsion.’ But that is not the end of the inquiry. It must also be established that a suspect’s incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response. This was not established in the present case.” (Emphasis added, footnotes omitted.)
Rhode Island v. Innis, 100 S.Ct., at 1690, 1691.

The United States Supreme Court, therefore, held that it was not “interrogation” when police officers, who needed information as to the whereabouts of a missing shotgun, “subtly compelled” a suspect to divulge such information by commenting, in his presence, that handicapped children might be endangered by it. Apparently the Court felt that the officers involved could not have known that their comments were reasonably likely to produce the response from that appellant.

We need not justify this application of the new standard in Innis, supra. We need only point out that the conduct of the authorities in the case before us was even less likely to have produced the incriminating responses from this appellant. Detective Tillman told the appellant that the Mobile authorities had to go back to Mobile but would extradite him for murder, and in response to appellant’s question he told the appellant that the penalty could be death by electrocution. The only motive in evidence for Tillman’s conduct was that Tillman felt that the appellant had a right to know that he would be extradited. Certainly, Tillman’s comments were not reasonably likely to elicit the appellant’s response that he “didn’t kill those people in Mobile, it was Waldrop’s gun.”

Sheriff Purvis’ conduct was even further removed from the realm of “interrogation.” He was summoned to appellant’s call by the appellant. In a brief conversation with the appellant, Sheriff Purvis reminded him that he owed his brother an awful lot, that because it was a weekend an attorney would not be available until Monday and that he (Sheriff Purvis) did not want to talk to the appellant about the case. The appellant’s response that he “thought [he] had left all that sh_ behind [him] in Mobile” was definitely not a likely product of Sheriff Purvis’ conduct.

The appellant argues to the contrary that the appellant’s responses were foreseeable because they were the product of a deliberate scheme by Tillman and Purvis to elicit them. He contends that Innis, supra, should be distinguished because the comments by the officers in that case were not directed to the suspect as they were here.

However, there is nothing in the record to support appellant’s speculation of a “scheme” and the distinction he offers for the Innis case is without merit.

Perhaps the arguments most favorable to appellant’s cause with reference the Innis ease would be those of the dissenting Justices in that case. Justice Stevens argued that the majority’s standard was too narrow and stated as an alternative that:

“[A]ny police conduct or statements that would appear to a reasonable person in the suspect’s position to call for a response must be considered ‘interrogation.’ ” (Emphasis added).

Even under this broader objective standard, however, the conduct of Tillman and Purvis in the instant case would not amount to “interrogation.” Appellant’s incriminating statements were simply not reasonably called for by the officers’ comments.

Justice Marshall’s opinion in Innis was that the majority misapplied the standard it devised, because the police officers’ comments in that case, in the presence of the appellant, were the equivalent of actually asking the suspect about the missing shotgun. In other words, the officers should have known that their comments with reference the danger of the missing shotgun to handicapped children would likely compel the suspect to incriminate himself.

However, such is not the case before us. There is no analogous connection between the conduct of Tillman and Purvis and the responses of this appellant. Only speculation as to the motives of these officers could lead one to conclude that their conduct was intended to elicit these responses from this appellant.

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 387 (1981), is the most recent United States Supreme Court decision dealing with the subject of “interrogation” after the invocation of the right to counsel. The Court affirmed the new “interrogation” standard established in Rhode Island v. Innis, supra, but had no occasion to apply it because it was “clear that Edwards was subjected to custodial interrogation.” Apparently the investigating officers, themselves, admitted that they reinterrogated the suspect, acting on the assumption that he had waived his right to counsel. That appellant’s conviction was overturned because the Court found that a voluntary waiver of the right to counsel was not given. In dicta the Court stated that if there had been no subsequent “interrogation,” “there would have been no infringement of the right [to counsel] . .. and there would be no occasion to determine whether there had been a valid waiver.” Chief Justice Berger in his concurring opinion in Edwards v. Arizona, supra, noted that “the notion that any ‘prompting’ of a person in custody is somehow evil per se” was rejected in Rhode Island v. Innis.

Contrary to appellant’s assertions, Edwards v. Arizona, supra, is, therefore, only applicable to the instant case because it reaffirms the “interrogation” standard established in Innis, supra, and confirms the fact that a determination that there was no “interrogation” necessarily preempts the “waiver” issue.

Curiously, in a case which preceded Innis, supra, with a fact situation almost identical to that presented in Innis, supra, the United States Supreme Court had determined that there was subsequent “interrogation” after a suspect had not only invoked his right to counsel but had also spoken with and had been advised by counsel. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). In Williams, the investigating officers had been unable to find the body of a missing girl whom they believed had been murdered. In transporting the suspect, a mental patient with deep religious convictions, an officer told him, in essence, that it would be a shame if the snow (predicted for that evening) covered up the little girl’s body before they could find it because she deserved a Christian burial. The Court held that the fact that the suspect then led the officers to the body should not have been used against him because his actions and statements were coerced by appealing to his peculiar sensitivities, of which the officers were aware.

The apparent distinctions drawn between Williams, supra, and Innis, supra, by Justice Stewart, who authored both opinions, were the suspect’s known mental condition and religious sensitivity in Williams, the officer’s admitted attempt to re-interrogate the suspect in Williams, and the fact that Williams involved Sixth Amendment rights while Innis involved Fifth Amendment rights.

In any event, we need not attempt here to reconcile the Innis and Williams decisions. Even if we believed, as Justice Marshall did, that the “interrogation” standard was misapplied in Innis, supra, and should have been applied with results similar to Williams, supra, we would reach the same conclusion in applying this standard in the instant case. There was nothing “evocative” in the statements made by Tillman and Purvis to this appellant. There was no connection between said statements and the responses given as there was with the reference to the shotgun in Innis, supra, and to the little girl’s body in Williams. (See also, United States v. McCain, 556 F.2d 253 (5th Cir.1977); and United States v. Jordan, 557 F.2d 1081 (5th Cir.1977) for situations similar to Williams where statements were held inadmissible.)

We reemphasize the caveat in Miranda, supra, that the Fifth Amendment does not prevent the “police” from talking to suspects and does not bar “volunteered statements” of any kind. It would have been a simple matter for the Court to have stated in Miranda, supra, or in Innis, supra, that all statements resulting from any communication with or prompting of a suspect after he had invoked his right to but had not received counsel are inadmissible, if that had been its intention.

Since we have determined that appellant’s statements in this instance were “voluntary” and not induced by “interrogation”, it is our decision that the trial court did not err in admitting said statements.

III

Appellant contended in brief that the Alabama Supreme Court’s decision in Beck v. State, 396 So.2d 645 (Ala.1981), which revived Alabama’s “death penalty” statutes by ruling that lesser included offenses must be considered in a “death penalty” case, is unconstitutional in violation of the “separation of powers” doctrine and, consequently, that appellant was convicted under an unconstitutional statute. However, in oral argument the appellant did not pursue this issue, which we have recently decided against him in Clisby v. State, (Ms. March 2, 1982), (Ala.Cr.App.1982); and Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982).

There being no error of record this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Lawrence Rufus STAHL (Re Lawrence Rufus Stahl v. State of Alabama)
    81-791.
    Supreme Court of Alabama.
    Jan. 21, 1983.
    Norman J. Gale, Jr. of Clay, Massey & Gale, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

Writ quashed as improvidently granted.

By quashing this writ we do not wish to be understood as fully agreeing with the court below on its analysis of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). For while the Court of Criminal Appeals did correctly refer to In-nis ’s recapitulation of an “interrogation” under Miranda, it omitted recognition of a vital aspect of that definition expressed at 100 S.Ct. 1690:

“The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.... ”

From our review of the record, however, we have concluded that this aspect of the Innis test was satisfied also. The exchanges in question between Stahl and the officers, together with the circumstances under which they were made, do not reasonably appear to have made it subjectively likely that he would have responded as he did. Accordingly, the test set forth by Innis was satisfied.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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


author: BARRON, Judge. /s/ Rilev Green CIRCUIT JUDGE

text:
    Billy Joe MAGWOOD v. STATE.
    4 Div. 935.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 8, 1982.

      J.L. Chestnut, Jr., Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Edward E. Carnes, and P. David Bjurberg, Asst. Attys. Gen., for appellee.
   BARRON, Judge.

Appellant was convicted under § 13-11-2(a)(5), Code 1975, for the murder of Coffee County Sheriff Neil Grantham. After a separate sentence hearing on aggravating and mitigating circumstances, the jury fixed the punishment at death. Subsequently, the trial court weighed the aggravating and mitigating circumstances pursuant to § 13-11-3 and § 13-11-4, Code 1975, and sentenced appellant to death. The court issued written findings of fact which set forth the aggravating circumstances the court found sufficient to support the sentence of death.

Thomas Weeks, a Coffee County Deputy Sheriff, testified he was employed as the county jailer on March 1, 1979, under Coffee County Sheriff Neil Grantham. The witness stated he observed appellant, whom he recognized as a former jail inmate, sitting in a car parked in Sheriff Grantham’s parking space at approximately 6:45 a.m. Shortly before 7:00 a.m., he observed Sheriff Grantham drive up and park his vehicle. He got out of the automobile, walked to some garbage cans and deposited a trash bag, and then walked towards the jail door. Appellant got out of his automobile with something in his hand and met Sheriff Grantham at the rear of the car. At that point, Deputy Weeks heard three gunshots and saw Sheriff Grantham fall. The witness then turned back into the jail and obtained a gun. He observed appellant get back into his car and saw that he held a pistol in his hand. He exchanged fire with appellant as he drove away. Deputy Weeks then went over to where Sheriff Grantham lay on the ground and observed that the Sheriffs face was blue and that he appeared not to be breathing, having apparently been hit in the face and neck. Deputy Weeks stated he observed no one else in the area at the time the Sheriff was killed.

William Hurd testified he answered a call as a member of the Elba Rescue Squad on March 1,1979. He observed Sheriff Grant-ham on the pavement in the front of the jail. They placed the Sheriff in the ambulance and transported him to the Elba General Hospital emergency room.

Dr. Bruno Santa Rossa stated he observed Sheriff Grantham at the Elba General Hospital on the morning of the shooting and, after assessing his condition, pronounced him dead upon arrival.

Dr. Richard Roper of the Alabama Department of Forensic Sciences testified he examined the body of Sheriff Grantham on March 1, 1979, in Elba and found three gunshot wounds to the chest, right face, and left side of the head. In his opinion, Sheriff Grantham’s death was caused by acute hemorrhage and central nervous system trauma, due to multiple gunshot wounds to the body and head. On cross-examination, he testified his notes reflected that the body exhibited a set of natural teeth. He identified a photograph of Sheriff Grantham as that of the man he examined on March 1, 1979.

Billy Ray Cooper stated he became acquainted with appellant as a fellow inmate at the Coffee County Jail in 1976. Toward the end of 1977, he heard appellant state on two or three occasions that he was being held without any reason and that he would “get even and kill that S.O.B.,” referring to Sheriff Grantham. On cross-examination he was asked when this occurred. He stated it was in November, and that on the third occasion, appellant struck the jailer and tried to go downstairs to get to the Sheriff.

James Kenneth Holder, another fellow inmate of appellant’s, testified he heard appellant state that they had no reason to hold him in jail, that he didn’t belong there, and that he was going to get even one way or the other. The State rested at the close of Holder’s testimony, and appellant’s motion for acquittal, based upon the State’s failure to prove a prima facie case, and motion to exclude were denied.

The appellant called Ms. Bernice Clay who stated she was the record keeper for Dr. James L. Clay. The records indicated that Dr. Clay, a dentist, had relined a set of upper and lower dentures for Sheriff Grantham in 1969.

The defense next called Dr. William H. Rudder to testify. Dr. Rudder, a psychiatrist on the staff of Searcy Hospital, did not appear. The trial court refused to issue a bench warrant for his appearance after it was learned that the Sheriff’s office, in the county where Dr. Rudder was located, was closed for a legal holiday and it could not be ascertained if Dr. Rudder had actually been served with a subpoena. Appellant’s counsel conceded to the trial court that by statute a member of the Searcy staff could not be compelled to attend court proceedings. After the court denied appellant’s motion for a continuance to perfect service on Dr. Rudder, a deposition taken from Dr. Rudder was read into evidence at appellant’s request in lieu of Dr. Rudder’s appearing at trial.

Dr. Rudder stated in his deposition that he had examined appellant on July 3, 1979. His final diagnosis after 8 to 10 hours’ observation of appellant over a period of 10 months was paranoid type schizophrenia in partial remission on medication. He stated that this was a mental disease, and in his opinion, appellant did not know right from wrong at the time of the alleged offense on March 1, 1979. Appellant was completely out of touch with reality and, in Dr. Rudder’s words, would be considered “crazy” under any definition in any part of the world. At the end of the time appellant spent at the institution, he was in fairly good remission from the mental disease as a result of drug therapy. The defense rested after presenting Dr. Rudder’s deposition.

The State called Dr. Donald Crook as a rebuttal witness. Dr. Crook, a medical doctor practicing in Alabama, examined appellant for 30 minutes at the request of the circuit court on June 6, 1979. He found appellant’s behavior and answers were appropriate to the questions asked of him. In his opinion, appellant was sane at that time and exhibited no symptoms indicative of schizophrenia. Dr. Crook testified he was also familiar with appellant, having treated him for minor ailments on a couple of occasions from the time appellant was 15 years old.

Dr. Bancroft Cooper, a practicing physician in Elba, testified he examined appellant for 20 minutes on June 6, 1979 at the circuit court’s request. In Dr. Cooper’s opinion, appellant was not insane at the time he examined him.

Douglas McKeown, a licensed clinical psychologist, examined the appellant over a period of 8 to 10 hours on April 23 and April 27, 1981, at the Houston County Jail in Dothan, Alabama. Appellant’s objection to the introduction of Dr. McKeown’s testimony, based upon privileged communication and equal protection, was overruled. In Dr. McKeown’s opinion, appellant knew the difference between right and wrong on March 1, 1979. His diagnostic impression was, however, that appellant was suffering from paranoid schizophrenia, a disease of the mind. Dr. McKeown had never seen appellant, however, when he was not under the medication prescribed for his mental problems. The State rested at the close of Dr. McKeown’s testimony and requested that the court dismiss Counts 3, 4, and 5 of the indictment. Appellant’s motion to exclude the evidence as to Counts 1 and 2 for failure to prove the Sheriff was “on duty” was denied.

I

Appellant argues the jury’s verdict was contrary to the law and the evidence presented, in that the jury should have returned a verdict of not guilty by reason of insanity.

In reviewing the question of insanity, the court must apply the following general principles, enumerated in Herbert v. State, 357 So.2d 683 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978):

“1. By statute, there is a presumption of sanity extending to all persons over the age of 14.
“2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.
“3. The burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence and to the reasonable satisfaction of the jury.
“4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.
“5. In making its determination, the jury may reject all expert testimony though it is without conflict.
“6. However, opinion testimony, even of experts must be weighed by the jury and may not be arbitrarily ignored.”

However, where proof of insanity is both overwhelming and uncontradicted, the evidence of insanity may be so strong and undisputed that the jury should be so instructed, and a jury verdict to the contrary must be reversed. Christian v. State, 351 So.2d 623 (Ala.1977).

The evidence pertaining to appellant’s sanity in the instant case is both extensive and contradictory. Appellant’s sanity was first brought into question by a pre-trial motion by appellant’s counsel requesting an investigation of appellant’s sanity pursuant to § 15-16-20, Code 1975. The trial court appointed Dr. Donald Crook and Dr. Bancroft Cooper to examine the appellant. Both were medical doctors of considerable experience, but neither specialized in psychiatry. Each doctor testified at trial that, in his opinion, appellant was not insane at the time of his examination of appellant on June 6, 1979. Dr. Crook stated that based upon the short time he spent with appellant, he believes appellant was sane at that time. He also testified that he had treated appellant several times over a period of years for various complaints, and that appellant had never exhibited any symptoms of schizophrenia. He stated he would, however, defer in his opinion of appellant’s sanity to a psychiatrist who had spent a considerably greater period of time observing appellant.

Dr. Cooper stated that in his opinion appellant was not insane at the time of his examination of him on June 6, 1979. He further testified that, based upon his 20 minute interview with appellant, he could not make a decision as to whether appellant was a schizophrenic, paranoid type on the day the murder occurred.

Despite the two physicians’ positive view of appellant’s sanity, the trial court granted appellant’s motion requesting that a three-member Lunacy Commission be appointed in accordance with § 15-16-22, Code 1975. Appellant was then committed to the custody of the Superintendent of Searcy Hospital for observation by the Lunacy Commission by order dated June 20, 1979. The report of the Lunacy Commission dated August 16, 1979, which was returned to the circuit court clerk, indicated a diagnosis of schizophrenia, paranoid type and that appellant was presently insane and incompetent. The report also stated it was the unanimous opinion of the Lunacy Commission that appellant was insane at the time of his admission to Searcy Hospital, and that appellant was probably insane and mentally incompetent at the time of the commission of the offense. (Emphasis added.) The trial court then issued an order dated August 22, 1979, ending the Lunacy Commission and retaining appellant in the custody of the superintendent of Searcy Hospital until such time as he was restored to mental competency. By letter dated April 7,1980, the trial court was notified by Searcy Hospital that appellant was competent to stand trial, his mental illness having been placed in partial remission by medication. On April 11,1980, the court ordered that custody of appellant be transferred to the Sheriff of Coffee County, and appellant was placed in the Houston County Jail. The report of the Lunacy Commission was introduced at trial and is present in the record. As well, the appellant introduced the deposition of Dr. William Rudder, after Dr. Rudder, for some reason, failed to respond to a subpoena to attend the trial. Dr. Rudder, a psychiatrist and member of the Lunacy Commission, testified appellant suffered from the psychosis of paranoid type schizophrenia, but that it was in partial remission under medication. In his opinion, appellant did not know right from wrong on the date Sheriff Grantham was murdered, and was completely out of touch with reality. He stated appellant was not a borderline case and would be considered “crazy” any place in the world.

Because of the time lapse between the Lunacy Commission’s diagnosis of appellant and the actual date set for trial the prosecution filed a motion on April 15, 1980, requesting that appellant be examined again to determine his mental competency. After a hearing on the motion, at which appellant was represented, the court granted the motion and ordered that the appellant be examined by Dr. Douglas McKeown, a licensed clinical psychologist. Dr. McKeown was called as a rebuttal witness for the State, over appellant’s objection, and testified that he examined appellant at the Houston County Jail on April 23 and 27, 1981. He conducted a comprehensive psychological evaluation of appellant, including a psychological interview, over a period of 8 to 10 hours. In Dr. McKeown’s opinion, appellant did know the difference between right and wrong on the date the Sheriff was shot. It was also his conclusion that appellant was suffering from paranoid schizophrenia. Dr. McKeown stated that he had never observed appellant when he was not under the medication prescribed for his mental problem.

After consideration of all the testimony in this case, we do not find that the evidence of insanity was both overwhelming and uncontradicted. There was evidence presented which could have supported a reasonable inference that the homicide was an act committed by a man which the law would define as sane. Although conflicting evidence was presented by the expert witnesses who examined appellant, it is clear that the issue of whether appellant was sane or insane at the time of the offense was a question for the jury to decide. Nobis v. State, 401 So.2d 191 (Ala.Cr.App.), 401 So.2d 204 (Ala.1981). The evidence was simply not sufficient as a matter of law to overcome the presumption of sanity and to justify reversing the jury’s verdict. Graham v. State, 383 So.2d 892 (Ala.Cr.App.), cert. denied, 383 So.2d 895 (Ala.1980).

II

Appellant asserts the trial court abused its discretion in refusing to grant his motion for a change of venue, based upon prejudicial pre-trial publicity. The record indicates a large amount of coverage was given to the sensational and notorious crime by television, radio, and the printed news media. However, the vast majority of the news accounts were strictly factual in nature and did not editorialize in such a manner as to inflame the community. Coon v. State, 380 So.2d 980 (Ala.Cr.App.1979), affirmed, 380 So.2d 990 (Ala.1980). Additionally, much of the coverage occurred at the time of the murder, or in the months immediately following the event, with relatively little coverage occurring at the time of the trial over two years later.

The existence of widespread publicity in and of itself does not require a change of venue. Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), affirmed, 391 So.2d 677 (Ala.1980); Speigner v. State, 367 So.2d 590 (Ala.Cr.App.), cert. denied, 367 So.2d 597 (Ala.1979). Without proof of actual prejudicial influence upon the jury, a trial court will not be found to have abused its discretion in refusing to grant a motion for a change of venue based upon pre-trial publicity. Dolvin, supra. We have reviewed the record carefully, scrutinizing both the media coverage itself, and its effect upon the jury venire as revealed by the voir dire examination of the prospective jurors. We note that any potential prejudicial effect of media coverage was diminished by the passage of time. Speigner, supra. The record contains no showing of actual prejudice such as would have rendered it reasonably unlikely that the appellant could secure a fair and impartial trial. Dolvin, supra. The following quotation from the record is representative of questions asked of each member of the jury venire by the court and appellant’s counsel:

“THE COURT: We are going to now enter upon a detailed inquiry with you, and we are going to do it in such a fashion that we will call twelve individual jurors to come and have a seat in the jury box. After you are in the box I will ask you some questions and then the counsel for each will have the opportunity to ask the questions.
“Do any of you have any interest in the conviction of or the acquittal of the defendant Magwood? (No response.)
“Have any of you made any promise given any person any assurance that if you were selected on the jury to try this case you will convict or you will acquit the defendant Magwood? (No positive response.)
“Do any of you have a fixed opinion at this time as to the guilt or innocence of defendant Magwood which would bias your verdict? (No positive response.)
“Is there any juror on this group of twelve who has a reason that you would like to express why you could not serve as a juror in this case and render a true verdict based solely upon the evidence and the law applicable to the case? (No positive response.)
“Are any of you witnesses in this case? (None.)
“Were any of you on the grand jury at the Special March Term, 1979, which returned this indictment, being on 12 March, 1979, with Bernice Winston, forewoman? (None.)
“Do any of you as jurors think that a conviction should not be had on circumstantial evidence? (None.)
“Do you as a juror have a fixed opinion against punishment by imprisonment in the penitentiary? (None.)
“Ladies and gentlemen, a possible penalty, should the defendant be found guilty, is death by electrocution. Is there any juror who has an opinion against punishment by death by electrocution? Stated another way, are any of you opposed to capital punishment? (No juror responded affirmatively.)”
“QUESTIONS BY MR. CASSADY:
“Q. Ladies and gentlemen of the jury did any of you know Neil Grantham? (Several of the twelve indicated they knew Sheriff Grantham.)
“Q. Let me ask it this way, is there anybody that did not know him? (One lady indicated she didn’t.)
“Q. Were you a casual acquaintance or were you a close acquaintance, if that is a proper way to put it. (All answered casual.)
“Q. I know you have all heard about this case or either read about it? (Several indicated affirmative.)
“Q. Has what you have read or heard, has it in any way, in any way in your mind — there is nothing wrong in saying if it has — prejudiced your thinking about this case? (All negative response.)
“Q. Nothing that you have read or heard would in any way affect you to any extent in your deliberations if you served on this jury? (Negative response.)
“Q. Those of you who knew Neil Grant-ham I know would know one thing that he would expect whatever the circumstances that a defendant, whoever he was, or whatever he did to get a fair trial. I knew him, he was my friend, I know he would want that. Now, is there anyone of you sitting in this jury box, regardless of the circumstances, who would not give this defendant a fair trial in this case? It is important. It is important to the defendant, it is important to the State, it is important to you as human beings, and I am asking you if you will listen to this evidence that comes from this witness stand and that alone and make up your mind as to this man’s innocence or guilt, and nothing but that, nothing else coming into your mind regardless. Can you all do that? (No response to the contrary.)
“MR. CASSADY: That’s all I have.” (R. 98-103)

Of the entire venire, one juror answered that he had a fixed opinion as to appellant’s guilt or innocence. This juror was an employee of the Coffee County Sheriffs Department which had been involved in the investigation of the Sheriff’s assassination, and he was excused from serving. None of the questions of appellant’s counsel concerning prejudice as a result of publicity were answered in the affirmative. Two jurors expressed an opinion of possible partiality, but stated it was based upon their long-time friendship with Sheriff Grantham, not pre-trial publicity. Both jurors were excused. The burden is upon appellant to demonstrate the actual existence of a prejudicial opinion in the mind of the jurors which will raise a presumption of partiality. Speigner, supra. The introduction of news articles alone, without more, is not sufficient evidence to justify a change of venue; their prejudicial effect must be shown. Dolvin, supra at 674; Dial v. State, 387 So.2d 871 (Ala.Cr.App.1979), reversed on other grounds, 387 So.2d 879 (Ala.1980).

The appellant in the instant case presented no evidence that the jurors were actually prejudiced against the appellant’s case as a result of extensive publicity. Without such proof, this court could not find error in the trial court’s refusal to grant a motion for change of venue. Dolvin, supra; Moberg v. State, 385 So.2d 74 (Ala.Cr.App.1980); Coon, supra.

III

Appellant argues that both the trial court and the jury failed to properly weigh mitigating circumstances. We have examined the record and find that the trial court duly and properly charged the jury concerning mitigating circumstances. The trial judge’s written finding of fact also indicates he considered and weighed any possible mitigating circumstances in appellant’s favor. We find no error in that regard.

IV

The trial court’s failure to grant appellant’s request for funds to hire a psychiatrist or psychologist of his own choosing is urged by appellant as reversible error. We do not agree. As has often been stated, a denial of funds to pay experts for investigations and the assistance of experts does not amount to a deprivation of constitutional rights. Thigpen v. State, 372 So.2d 385 (Ala.Cr.App.), cert. denied, 372 So.2d 387 (Ala.1979); Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981); Johnson v. State, 335 So.2d 663 (Ala.Cr.App.), cert. denied, 335 So.2d 678 (Ala.1976), cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976). This general rule applies equally to psychiatric experts and specialists. Nelson v. State, 405 So.2d 392 (Ala.Cr.App.1980), reversed on other grounds, 405 So.2d 401 (Ala.1981). Additionally, as indicated heretofore in this opinion, the trial court exhausted all available sources to assist appellant in presenting evidence in support of his insanity plea. Not one, but six experts examined appellant at the State’s expense. Clark v. State, 56 Ala.App. 67, 318 So.2d 813 (1974), writ quashed, 294 Ala. 493, 318 So.2d 822 (1975), cert. denied, 423 U.S. 937, 96 S.Ct. 298, 46 L.Ed.2d 270 (1975). Three experts were independent, and three were State connected. Although a defendant may have some right to the appointment of an expert for preparation of his defense, there exists no constitutional right to have a private psychiatrist of the defendant’s own choosing appointed at public expense. (Emphasis added.) Willie Clisby, Jr. v. State, (Ala.Cr.App.1982), 6 Div. 576 [Ms. May 2, 1982], The trial judge’s actions appropriately protected appellant’s rights in this regard.

V

Appellant alleges the trial court erred in admitting the testimony of Doctors Crook, Cooper, and McKeown, because appellant was not advised of the right to remain silent before the interview, and because appellant’s counsel was either not present at, or not informed of, the time of the interviews. Appellant contends the introduction of this expert testimony violated the privilege against self-incrimination and the right to effective assistance of counsel guaranteed under the Fifth and Sixth Amendments to the United States Constitution. He cites Estelle v. State, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), as disposi-tive of this issue.

The Supreme Court held in Estelle that the use of certain psychiatric testimony at the sentencing phase of defendant’s capital murder trial to establish his future dangerousness violated his Fifth Amendment rights. The court determined that where a defendant never initiated a psychiatric exam, nor ever attempted to introduce psychiatric evidence, he could not be compelled to respond to a psychiatric examination instigated sua sponte by the trial court if the statements could be used against him at trial. Hence, it was necessary in such a situation that appellant be advised of his right to remain silent and of the fact his answer could be used against him before such examination could take place. The failure to so advise the appellant rendered the psychiatrist’s testimony, as to the substance of disclosures made to appellant, inadmissible at trial. The court found there would have been no Fifth Amendment violation if the psychiatrist’s testimony had been limited to the question of the defendant’s competency to stand trial. The court also was careful to distinguish Estelle from a fact situation involving a psychological interview occasioned by a defendant’s plea of not guilty by reason of insanity at the time of the offense. To allow a defendant to remain silent, when he asserts the offense of insanity and introduces supporting psychiatric testimony, might deprive the State of its only effective measure of controverting the defendant’s proof on an issue interjected into the trial by the defendant himself. Estelle, supra, and cases cited therein.

As well, the court found that the defendant’s Sixth Amendment right to effective assistance of counsel was violated because the defendant’s counsel was not informed in advance that the psychiatric examination would encompass the issue of future dangerousness. The defendant was thus denied the valuable assistance of his counsel in deciding whether to consent to the examination.

We find in our review of the instant case that Estelle is factually distinguishable and hence does not require reversal here. Unlike the defendant in Estelle, appellant’s counsel herein first placed appellant’s sanity in question by filing a motion which requested that an investigation be held into appellant’s sanity, and that, upon a finding of incompetence, appellant be removed to a State hospital for the insane. Dr. Crook and Dr. Cooper were appointed in compliance with the trial court’s order granting appellant’s motion. Not only were appellant’s counsel aware that the two doctors examined appellant, but they were the parties that requested such an examination. Additionally, the testimony of the two doctors was substantially confined by the prosecution to the question of appellant’s mental competency at the time of the examination, and not at the time of the crime. Additionally, we point out that all the expert testimony objected to here came in as rebuttal testimony, after the defense rested, having presented a defense of not guilty by reason of insanity. As to Dr. McKeown, a hearing was had on the State’s motion requesting a further examination of appellant’s mental status after his release from Searcy Hospital. Appellant and his counsel were present at the hearing on the motion and were informed of the pending examination by Dr. McKeown. Appellant’s counsel agreed to the examination, conditioned upon his receiving a copy of the report. Appellant’s counsel stated for the record that the court order granting the State’s motion would be in line with the motion for a mental examination appellant had previously requested. Again, Dr. McKeown’s testimony was only brought in by the State on rebuttal after appellant’s insanity defense was presented.

In review, we find appellant’s counsel initiated the inquiry into appellant’s sanity, resulting in the examination by Doctors Crook and Cooper. Appellant’s counsel acquiesced in the examination by Dr. McKeown, albeit at the State’s request, and stated such an examination was in partial compliance with his own motion. At arraignment, appellant pled not guilty by reason of insanity, and at trial presented an insanity defense. The testimony of the three experts came in only on rebuttal, after appellant presented an insanity defense. Their testimony dealt with their diagnosis of appellant’s mental competency at various points in time and did not deal with the substance of any incriminating information revealed to them by appellant during their examination. Appellant’s counsel were informed of each examination and had every opportunity to counsel with their client. Appellant and his counsel informed Dr. McKeown that the examination would be reported to the court, and there could therefore be no expectation of confidentiality. We hold that by actively pursuing an insanity defense and introducing the deposition of Dr. Rudder as a defense witness, appellant waived any potential psychotherapist-patient privilege or privilege against self-incrimination against the subsequent testimony of Dr. McKeown on rebuttal.

“As the Court of Criminal Appeals notes in its opinion, there are states which hold that by pleading insanity, a criminal defendant waives his statutory privilege against disclosure of a ‘psychotherapist-patient communication.’ The better reasoned cases hold, however, that there must be some presentation of evidence of insanity in addition to the plea, in order for the question of ‘waiver’ to arise.... ” Ex parte Day, 378 So.2d 1159 (Ala.1979), at p. 1162.

To hold otherwise would be to allow appellant to call all those psychotherapists or psychiatrists, who examined appellant under State order, he desired. Then, on a claim of privilege, appellant would be able to prevent the State from calling experts who examined him for the same purpose on rebuttal to refute the appellant’s defense. Ex parte Day, supra; Estelle, supra, and cases cited therein.

VI

Appellant asserts that the trial court’s failure to issue a bench warrant to require Dr. Rudder to appear and testify was reversible error. Appellant introduced Dr. Rudder’s deposition at trial, after his failure to appear and the trial court’s refusal to command his appearance. Dr. Rudder is on the staff of Searcy State Hospital. Section 22-50-22, Code 1975, provides that any physician of a State mental hospital may not be compelled to attend as a witness to present expert testimony in any case or any question of sanity if he certifies in writing within 10 days after receipt of a summons that his absence from the hospital would interfere with his professional duties and the welfare of his patients. A defendant who desires the testimony of the doctors may, however, depose them on all matters involving their expert opinion. This furnishes to the defendant a constitutional alternative to compulsory attendance. Seay v. State, 390 So.2d 11 (Ala.1980), cert. denied, 449 U.S. 1134, 101 S.Ct. 956, 67 L.Ed.2d 121 (1980). Appellant’s counsel at trial had not ascertained if Dr. Rudder had been served with the subpoena at the time he was called to testify. The trial judge contacted the local county courthouse to verify service, but was unable to receive any information because the offices were closed for a legal holiday. No certificate from Dr. Rudder of his inability to attend the trial appears in the record. Quite clearly, Dr. Rudder could not have been compelled to attend had such a certification been provided. Appellant had taken the precautionary step of deposing Dr. Rudder in advance. This deposition was in fact offered and received into evidence. Appellant’s counsel did not personally verify service on his witness. He was permitted by the court to introduce Dr. Rudder’s deposition, in lieu of his testimony. The trial court used every available avenue to determine if Dr. Rudder had been served, after it became apparent that appellant had failed to do so. If Dr. Rudder had been served, he could have easily refused to attend under the statute. The subpoena for Dr. Rudder was issued May 26, and the trial was on June 1 and 2. The 10 days allowed by statute for Dr. Rudder’s certified response to the subpoena had not expired at the time appellant called Dr. Rudder to testify. We find no error or prejudice to the appellant in the trial court’s refusal to issue the bench warrant under these circumstances. Pollard v. State, 358 So.2d 778 (Ala.Cr.App.), cert. denied, 358 So.2d 782 (Ala.1978).

VII

Appellant argues the statute under which he was indicted is unconstitutional. This question has been resolved by the Alabama Supreme Court in Beck v. State, 396 So.2d 645 (Ala.1981), and by our recent decision in Clisby, supra.

The Supreme Court of Alabama in Beck, supra, has indicated the standards and procedures it requires this court to follow in reviewing capital murder cases. We have closely scrutinized this case in light of those standards, and find that the crime was properly punishable by death, and that the sentence was appropriate in both its relation to the crime and to the appellant. There were no accomplices with which to compare appellant’s punishment. We have searched the record for error prejudicial to the substantial rights of appellant and have found none. This case is, therefore, affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

STATE OF ALABAMA, ) IN THE CIRCUIT COURT OF Plaintiff ) ) COFFEE COUNTY, ALABAMA ) ELBA DIVISION BILLY JOE MAGWOOD, ) Defendant ) CASE NO. CC 79-7

On June 2, 1981, Billy Joe Magwood was found guilty of the capital felony set forth in Section 13-ll-2(a)(5), Code 1975, and for the aggravated murder of Coffee County Sheriff Neil Grantham, the jury fixed the punishment at death. A hearing mandated by Sections 13-11-3 and 13-11-4, Code 1975, was held June 9,1981, and the issue of sentence was submitted.

The court is convinced the jury took into account the circumstances of the murder together with the character and propensity of Magwood under all relevant evidence. The court concludes there was no arbitrary and capricious exercise of the power of the jury in finding guilt and fixing the punishment at death.

Magwood beyond any doubt committed the charged aggravated murder. The “aggravation” found to exist beyond all doubt is that Magwood unlawfully, intentionally, and with malice aforethought killed Coffee County Sheriff Neil Grantham by shooting him three times at close range with a pistol while Grantham was on duty and because of official job related acts as Sheriff of Coffee County, Alabama. The court does not find the existence of an aggravating circumstance in Section 13-11-6, Code 1975, other than the “aggravation” alleged in the indictment. Beck v. State, Ala., 396 So.2d 645 (1981); Kyser v. State, Ala., (1981). The court is required to focus on the particularized nature of the crime. The crime is particularized by the aggravation.

The matters relating to any mitigating circumstances including those enumerated in Section 13-11-7, Code 1975, have been considered. The court concludes that Mag-wood has no known significant prior criminal activity other than a conviction for possession of a controlled substance and his age at the time of the murder of Sheriff Grant-ham was twenty-seven years. These mitigating circumstances exist. The jury in the guilt phase of the trial rejected the not guilty by reason of insanity plea. The court concludes Magwood did not kill Grantham under influence of extreme or emotional disturbance and when the three bullets were fired into the body of Grantham, Mag-wood had the capacity to appreciate the criminality of his act. Magwood’s conduct was contrived, calculated and previously designed with the capacity to conform his conduct to the requirements of the law.

The court has considered the relevant facets of the character and record of Billy Joe Magwood and the circumstances of the particular offense. Magwood has been considered as a uniquely individual human being and not a faceless undifferentiated person who stands convicted of a designated capital offense. The court has considered the factors of why a death sentence should be imposed and why it should not be imposed. The circumstances of aggravation and mitigation have been weighed against each other.

IT IS, THEREFORE, ORDERED AND ADJUDGED BY THE COURT AS FOLLOWS:

1. That the verdicts of the jury finding Billy Joe Magwood guilty of the capital felony and fixing the punishment at death for the murder of Coffee County Sheriff Neil Grantham are sustained by the evidence beyond a reasonable doubt.

2. That the fixing of the punishment at death by the jury was not the result of passion, prejudice or other arbitrary factor while deliberating and fixing the sentence.

3. That Billy Joe Magwood is adjudged guilty of the capital offense of the murder of Coffee County Sheriff Neil Grantham.

4. That does Billy Joe Magwood have anything to say before sentence or anything to say why the sentence of the law should not be imposed in accordance with law.

5. That the age of Magwood and no known significant prior criminal activity by him are insufficient to outweigh the unlawful, intentional and malicious killing of Coffee County Sheriff Neil Grantham by shooting him with a pistol while Grantham was on duty and because of official job related acts as Sheriff of Coffee County, Alabama.

6. That it is the judgment and sentence of the court that you, Billy Joe Magwood, for the offense of aggravated murder, be sentenced to death by electrocution on August 4, 1981, by the executioner causing to pass through the body of Billy Joe Mag-wood a current of electricity of such intensity to cause death, and the application and continuance of such current through your body, Billy Joe Magwood, until you are dead.

7. That execution of the sentence of death is stayed pending automatic review provided by Section 13-11-5, Code 1975, and Section 12-22-150, Code 1975.

DONE AND ORDERED this 30th day of June, 1981.

/s/ Rilev Green CIRCUIT JUDGE

      . The trial court’s determination of sentence, dated June 30, 1981, is hereto attached as Appendix A (Vol. 2, R. 370-372).


author: TORBERT, Chief Justice.

text:
    Ex parte: Billy Joe MAGWOOD. (Re: Billy Joe Magwood v. State of Alabama)
    81-792.
    Supreme Court of Alabama.
    Jan. 7, 1983.
    Rehearing Denied Feb. 11, 1983.

      J.L. Chestnut, Jr. of Chestnut, Sanders, Sanders & Turner, Selma, for petitioner.
    Charles A. Graddick, Atty. Gen. and Edward E. Carnes and P. David Bjurberg, Asst. Attys. Gen., for respondent.
   TORBERT, Chief Justice.

On March 1,1979, Billy Joe Magwood, the petitioner, shot and killed Coffee County Sheriff Neil Grantham. After his arrest, Magwood was declared an indigent and counsel was appointed to represent him. The petitioner asserted he was not guilty by reason of insanity. On motion of petitioner’s counsel, an investigation was instituted concerning the sanity of the petitioner. He was interviewed by two local physicians who testified at trial concerning his sanity. Subsequently, he was transferred to Searcy Hospital for observation and evaluation by a three-member lunacy commission. Following that evaluation, he was also interviewed by Dr. Doug McKeown, a clinical psychologist.

At trial, the defense read into evidence the deposition of Dr. William Rudder, a member of the lunacy commission, who had observed the petitioner for 8 to 10 hours over a 10-month period beginning in July 1979. Dr. Rudder stated that Magwood was a paranoid schizophrenic and in his opinion did not know right from wrong at the time of the offense. The defense offered no further evidence on the issue of insanity.

The state offered the testimony of Dr. Donald Crook, a local physician, who had known the petitioner for 12 years and who had examined him on June 6, 1979, for 30 minutes in preparation for this trial. Dr. Crook testified that petitioner exhibited no signs of schizophrenia. The state also offered the testimony of Dr. Bancroft Cooper, another local physician, who also examined the petitioner on June 6, 1979, for twenty minutes in preparation for this trial. Dr. Cooper indicated that, in his opinion, the petitioner was not insane at the time he examined him.

The evaluations of petitioner’s mental condition by the State’s witnesses took place in June 1979; the evaluation by the lunacy commission presented by the petitioner took place from July 1979 through April 1980. The case did not come to trial until June of 1981, approximately two years after the initial evaluations were made. In April of 1980, Magwood was removed from Searcy Hospital to the Coffee County jail. The defense on June 26, 1980, made a motion to the court for funds to hire a psychiatrist or psychologist of the petitioner’s own choosing to evaluate his sanity; that motion was denied. On April 21, 1981, the court granted a motion by the State to have the defendant examined by Dr. Doug McKeown.

Dr. McKeown testified at trial that, in his opinion, the petitioner knew the difference between right and wrong on the day Sheriff Grantham was killed.

The defendant was found guilty of the capital offense of murder. The jury recommended the death sentence; the trial court, after weighing any aggravating and mitigating circumstances, sentenced the petitioner to death. The Court of Criminal Appeals affirmed the conviction. The case is before this Court on a petition for writ of certiorari, which is granted as a matter of right in cases which impose the death penalty-

The petitioner raises several points of error for our consideration. First, petitioner asserts that it was error for the trial court to deny his motion for change of venue based on prejudicial pre-trial publicity-

Absent a showing of abuse of discretion, the ruling of the trial court on a motion for change of venue will not be disturbed. Speigner v. State, 367 So.2d 590 (Ala.Cr.App.1978), cert. denied, 367 So.2d 597 (Ala.1979). The defendant has the burden of showing that he will be unable to receive an impartial trial and an unbiased verdict at the present locale. Speigner, supra.

Absent a showing of actual prejudicial influence upon the jury, the trial court was not in error in refusing to grant a motion for change of venue. Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), aff’d, 391 So.2d 677 (Ala.1980). The petitioner rests his assertion of bias on his impressions of public feeling at the time of the trial. Petitioner states in his brief, “Defendant’s proof of such prejudicial influence was only displayed by the jury’s verdict regarding his sanity.” (Emphasis added.) Petitioner appears to contend that because the jurors found him to be sane they must have been prejudiced against him. This circuitous reasoning does not constitute a showing of actual prejudice as required by the case law.

Our review of the voir dire examination of the jurors reveals no indication of possible bias. We agree with the Court of Criminal Appeals that the publicity surrounding the crime was strictly factual in nature and was not designed to inflame the community. Further, the trial took place two years after the crime. Even if we considered the publicity prejudicial, clearly the passage of time would diminish any prejudicial effect of the media coverage. See, Speigner, supra. Thus, the Court of Criminal Appeals did not err in holding that the denial of petitioner’s motion for change of venue was not in error.

The second point of error raised by petitioner is that the lower court erred in submitting the case to the jury in light of the “overwhelming and uncontradicted” evidence introduced by defendant to rebut the presumption of sanity. This issue was addressed by this Court in Christian v. State, 351 So.2d 623 (Ala.1977), wherein the Court established guidelines on the insanity defense. The Court reaffirmed the principle that the defendant is presumed sane and that the defendant has the burden of proof on the issue of insanity. The defendant must establish insanity by a preponderance of the evidence and the question is to be determined by the jury, except in cases where the evidence is “overwhelming and uncontradicted.” Christian v. State, 351 So.2d at 624. See also, Lee v. State, 246 Ala. 343, 20 So.2d 471 (1945).

In the case before us, the question of insanity was submitted to the jury, based upon conflicting testimony given by a series of four expert witnesses. Dr. Crook and Dr. Cooper, both practicing physicians, testified for the State that at the time of their examinations of the defendant in June of 1979 he was sane. Dr. Doug McKeown, a clinical psychologist who examined the petitioner in April of 1981, testified that in his opinion the defendant knew the difference between right and wrong on the day Sheriff Grantham was killed. Finally, the deposition of Dr. Rudder, a psychiatrist, was read at trial. In Dr. Rudder’s opinion, Mag-wood was insane at the time of the killing.

We cannot say that the evidence in this case was overwhelming and uncontra-dicted on the issue of petitioner’s claim of insanity. The trial court was not in error in submitting the question to the jury.

The third point of error raised by petitioner is that it was improper for the court to deny his request to hire a psychiatrist or psychologist of his own choosing. We hold that the claim is without merit, since we agree with the reasoning of the Court of Criminal Appeals and its conclusion that “The trial judge’s actions appropriately protected appellant’s rights in this regard.” Magwood v. State, [Ms. May 18, 1982] 426 So.2d 918 (Ala.Cr.App.1982).

Finally, petitioner argues that the lower court did not properly weigh the aggravating and mitigating circumstances pri- or to imposing the death penalty. Our review of the record indicates that the court considered the capacity of the defendant, the circumstances surrounding the murder, the prior criminal activity of the defendant, his age at the time of the offense and his emotional state at the time of the offense. We hold that the trial court properly considered any aggravating and mitigating circumstances prior to imposing the death penalty.

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

All Justices concur.


text:
    Michael Stephen LEWIS v. STATE.
    4 Div. 19.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.

      Cary L. Dozier, Troy, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Michael Lewis, was convicted of trafficking in cannabis, and sentenced to be imprisoned for a term of three years. He duly appeals to this Court.

The appellant was represented at all proceedings in the trial court, and is represented in this Court, by counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief three reasons why his conviction should be reversed. First, the warrant to search appellant’s residence was improperly granted, and the evidence obtained in the execution of the warrant should have been suppressed; second, the search warrant was improperly executed; third, the trial court erred in denying appellant’s motion for acquittal and motion for new trial on the grounds that there was no corroboration of an accomplice’s testimony.

State’s witness, Lester (Buster) Griffin, testified, in substance, that in September, 1981 he was living at Route 6, Box 94, Troy, Alabama; that he knows the appellant and identified him in the courtroom; that shortly before September 10, 1981 he talked to the appellant about traveling to the State of Nebraska and gathering marihuana; that the witness, Vera Hughes, Liz Griffin, witness’ wife, Ronnie Smith, Tommy Pyles, Tommy Mount, and Mike Lewis, the appellant, all went to the City of Falls City, Nebraska, and all, except Liz Griffin, gathered marihuana in a nearby field; that they then went to Meryville, Missouri where they all picked marihuana, except Vera Hughes; that the appellant, the witness, and other parties of the trip, planned the trip to go gather the marihuana about a week before they left Troy, Alabama. That they purchased garbage bags at Jack and Jill Grocery across from the motel in Falls City where they stayed; that they gathered sixteen garbage bags full, and then returned to witness’ home in Troy, Pike County; that the bags of marihuana were taken out of the cars within ten minutes of when they arrived at Griffin’s home, and put in his house on the back porch; that Ronnie Smith, Tommy Pyles, Tommy Mount, the appellant, and witness, Lester (Buster) Griffin, all toted bags of marihuana from the cars into the house; that Vera Hughes and Mike Lewis, the appellant, then took Tommy Mount to Luveme, and came back to the house and went to sleep; that at about 9:00 o’clock the next morning the police woke Griffin up while they were taking the bags of marihuana off the back porch; that they went and gathered the marihuana for the purpose of bringing it back to Alabama and making some money out of it by selling it; that he has, since the search of his house, pleaded guilty to trafficking in cannabis, or marihuana; that no one has made any promises to him about his coming and testifying on the stand to get him to testify.

State’s witness, Policeman Grady Reeves, testified, in substance, that he was employed as a City Policeman in September, 1981; that he investigated the charge in this case against the appellant, Mr. Lewis; that he had an occasion to, and did have a stakeout on the home of Mr. Buster Griffin; that he watched the house; that at about 4:47 A.M., September 10, 1981, Mr. Griffin, together with the appellant, Mr. Lewis, Mr. Griffin’s wife, Liz Griffin, his sister, Vera Griffin, Mr. Tommy Pyles, Mr. Ronnie Robert Smith, and Mr. Tommy Mount arrived at Mr. Griffin’s home riding in two vehicles, and pulled up into the yard, and all five men began to unload bags out of the cars, and carry these bags into the house; that he actually saw them take 12 or 13 bags into the house; that he saw the appellant, Mr. Lewis, carry some of the bags into the house; that he then went and got a search warrant for the house and returned about 8 or 9 A.M. the same morning, and in executing the warrant he found 17 large plastic bags in the house filled with marihuana; the bags contained 420 and one-half pounds of marihuana, and were turned over to A.B.C. Agent Gibson; samples were taken from each bag, marked for identification, and delivered to Mr. Saloom at the Toxicology Lab; that at the time he observed the removal of the bags from the cars into the house, he had probable cause to believe that they were carrying drugs into the house; that one of the members of the group who were unloading the bags there said for the others to hurry up and get the dope inside the house, using its street name.

State’s witness, Joe Saloom, testified, in substance, that he was employed by Alabama Department Of Forensic Sciences, the Enterprise Division, as a Crime Laboratory Analyst (appellant stipulated as to his qualifications); the witness, after stating his qualifications, testified, in substance, that he received the evidence identified as state’s exhibits 1 and 2; that state’s exhibit 1, containing 17 plastic bags contained marihuana, a total weight of 200.7 grams, and state’s exhibit 2, the plastic bags, contained an amount of marihuana that weighed 275.-73 grams; that marihuana is cannabis. The state rested its case.

The appellant offered into evidence appellant’s exhibit 1, an affidavit for a search warrant, in words and figures, as follows:

“AFFIDAVIT
“THE STATE OF ALABAMA)
)
“PIKE COUNTY )
“Before me, Riley P. Green, Judge of the Circuit Court of Pike County, Alabama, personally appeared Grady A. Reeves, who first being duly sworn, deposes and says as follows:
“My name is Grady A. Reeves and I am a Criminal Investigator for the Troy, Alabama, Police Department. I have reason to believe and do believe that there is presently contained in the house of Buster Griffin, Marihuana. I base this belief on the following facts:
“On Saturday, September 5, 1981, a confidential informant met with Investigator Donald Brown at the Troy Police Department. This informant stated that he was aware of several individuals who were presently enroute to Nebraska to obtain a large quantity of Marihuana. The informant further stated that these persons were: Buster Griffin, his wife, Liz Cook Griffin; Michael Lewis, and Vera Griffin. The informant stated that they intended to bring the marihuana back to Buster Griffin’s residence where they would keep it until it was sold to various individuals in Troy, South Alabama, and North Florida. The confidential informant further stated that the aforementioned individuals would be accompanied by a white male known as ‘Snuffy’ Smith who would be driving a dark green older model Chevrolet station wagon. The informant stated that Buster Griffin and the other aforementioned individuals would be traveling in an older model blue Opel. This informant further stated that on several previous occasions the informant had observed marihuana inside Buster Griffin’s residence. The informant also stated that all of the aforementioned individuals were known users and dealers in marihuana. The informant also stated that the aforementioned individuals had discussed the trip to Nebraska with the informant and had told the informant that they intended to obtain a minimum of 60 pounds of marihuana while in Nebraska. The residence of Buster Griffin was described by the informant as being a white frame dwelling which is located on the right hand side of U.S. highway 29 North of Troy, Alabama. The residence being located 2.05 miles North of Troy, Alabama City Limits on U.S. Highway 29. The residence is further described as being the second house on the right beyond Cody Dunn’s store.
“On Sunday, September 6,1981, at 8:30 a.m. Investigator Brown received a telephone call from Officer Bosinio of the Nebraska State Police, Narcotics Division. Officer Bosinio stated that he and other agents of the Nebraska State Police, Narcotics Division were presently maintaining surveillance on a 1971 Blue two door Open Bearing Alabama license plate FYM 838 and a 1971 Green Chevrolet station wagon bearing Alabama license plate BWL 218. Both vehicles were presently in Falls City, Nebraska. Officer Bosinio stated that the individuals occupying the vehicles had entered a grocery store in Falls City, Nebraska and purchased an unusually large quantity of plastic garbage bags and gloves. Officer Bosinio further stated that there was a very large quantity of marihuana which grows wild in the area around Falls City, Nebraska. He further stated that the common method of operation for those who illicitly gather the marihuana was to pick it and pack it in plastic garbage bags. Officer Bosinio further stated that the individuals occupying the aforementioned vehicles had checked into the Checks Inn motel in Falls City, Nebraska in rooms 22 and 24. The name used by the person renting the rooms was Buster Griffin. Registration checks on the license plates of the aforementioned vehicles revealed that the green station wagon was registered to Ronnie Smith, Troy, Alabama and the Blue Opel was registered to Vera Griffin, Rt. 5, Troy, Alabama. Officer Bosinio and the other members of the Nebraska State Police, Narcotics Division checked into room number 21 of the Checks Inn motel, which room adjoined one of the rooms occupied by the individuals from Troy. From this room and other locations near the motel, these officers maintained sur-veilance on the suspects from Saturday night, until approximately 10:30 p.m. Tuesday. During this period of time, more particularly on Saturday night, and on Monday night, they followed both of the aforementioned vehicles from the motel to local marihuana fields. Also during this period of time these officers could overhear portions of conversations which took place in the motel room of the suspects. At one point in these conversations these officers could overhear the individuals arguing over the amount of marihuana which they had already harvested. The officers overheard one of the white males state that there was approximately 35 pounds dry weight of marihuana which had been harvested. They also heard another one of the white males state that it was probably closer to 50 to 60 pounds dry weight which had already been harvested. The officers also overheard the suspects discussing the odds against them being ‘busted’ on the way back to Alabama. On Monday night at approximately 10:30 p.m. the aforementioned officers observed the aforementioned vehicles and their occupants check out of the motel and leave Falls City headed south.
“Both Officer Bosinio and Investigator Hobbs related the above information to Investigator Brown and myself during telephone conversations between Sunday, September 6, 1981 and Tuesday, September 8,1981. Surveillance was established on the residence of Buster Griffin beginning at approximately 10:00 p.m. Tuesday, September 8, 1981 and was maintained both Tuesday night, the early morning hours of Wednesday, Wednesday night and the early morning hours of Thursday, September 10, 1981. At 4:47 a.m. Thursday, September 10, 1981, I observed the two aforementioned vehicles arrive simultaneously at the residence of Buster Griffin. These vehicles pulled into the front yard of the residence and parked near the front door of the residence. From a place of concealment on the Seaboard Coast Line railroad right of way, directly across the highway from the residence I observed the occupants of the vehicles exit the vehicles and begin to carry large green plastic garbage bags into the residence through the front door. These bags appeared to be filled with a bulky type material. I observed the aforementioned suspects with whom I am personally familiar, carry no less than 12 of these bags into the residence of Buster Griffin. At one time I overheard one of the suspects say, ‘Ya’ll hurry up and get this shit into the house.’ After observing the suspects enter the residence with the bags I then left my place of concealment and returned to make this affidavit.
“I am personally familiar with all of the suspects named in this affidavit. I have personal knowledge that Buster Griffin does reside at the house described in this affidavit. And, that Liz Cook Griffin is his wife and also resides in the residence with him. I have also received information that Michael Lewis and Vera Griffin, also reside in the residence.
“Based on the previously stated facts, I have reason to believe and do believe that there is presently contained in the residence of Buster Griffin, Marihuana, in violation of the Alabama Controlled Substances Act, I make this affidavit for the purpose of securing a search warrant for the premises of Buster Griffin and his residence.
“Grady A. Reeves
“Affiant
“Sworn to and subscribed before me this the 10th day of September, 1981.
“Riley Green
“Riley P. Green, Judge of the
Circuit Court, Pike County,
Alabama”

The appellant offered no other evidence on his behalf and rested his case.

The appellant’s first contention in his brief is that the warrant to search appellant’s residence was improperly granted, and the evidence, marihuana, obtained in the execution of the warrant should have been suppressed. His argument is that the search warrant was issued on an affidavit that failed to show probable cause for its issuance. We have therefore caused the affidavit for the search warrant to be set out in full in this opinion.

“Code Of Alabama, 1975, Sec. 15-5-3. Probable cause and affidavit required. “A search warrant can only be issued on probable cause, supported by an affidavit naming or describing the person and particularly describing the property and the place to be searched.”

A magistrate must have sufficient facts before him to support a finding of probable cause to issue a search warrant. The affidavit supporting the search warrant must state facts to justify a reasonable person to conclude that the articles to be searched for are where the affiant says they are, and facts other than hearsay to justify the conclusion that the hearsay is reliable. In deciding whether or not the affidavit is sufficient to support the search warrant, we may ask, could the affiant, Officer Reeves, in keeping with his duty as an officer of the law, with knowledge of all the facts before him, both hearsay and within his own personal knowledge, have refused or failed to ask for a search warrant to search the house when he saw the appellant and his associates unloading the plastic garbage bags from their cars, and taking them into the house? If the answer is “yes,” then the affidavit is not sufficient to sustain the search warrant, and the search of the house was unlawful, and the evidence obtained should have been suppressed. If the facts stated in the affidavit caused a reasonable person to believe that drugs probably were in the garbage bags taken into the house, then the question should be answered in the negative, and the affidavit is sufficient to support the search warrant.

Hearsay information may be sufficient when its accuracy is corroborated by other facts stated by the affiant as true to his own knowledge. The entire plan of the appellant and his associates turned out as predicted by the informer, except the sale of the marihuana in Troy, South Alabama and Northern Florida. The accuracy of the hearsay information given by the informer and its reliability was sufficiently verified by facts known to the affiant personally to justify a reasonable person in believing marihuana was probably in the garbage bags unloaded from the automobiles, and taken into the house. We hold that the affidavit in support of the search warrant was sufficient to sustain the search warrant, and that the trial court did not err when it overruled appellant’s motion to suppress. Moore v. State, Ala.Cr.App., 415 So.2d 1210; McClellan v. State, Ala.Cr.App., 415 So.2d 1238; Clenney v. State, 281 Ala. 9, 198 So.2d 293; Consalvo v. State, Ala.Cr.App., 372 So.2d 44; Certiorari Denied, Ala. 372 So.2d 49; Golden v. State, Ala.Cr.App., 361 So.2d 1128; Certiorari Denied, Ala., 361 So.2d 1132.

The appellant’s second contention is that the warrant was improperly executed. This Court cannot rule on matters not shown by the record. Nowhere in the record do we find the search warrant, nor do we find a reference in appellant’s brief to any page of the record that shows the manner in which the search warrant was executed. We find only the affidavit in support of a search warrant introduced before the trial judge by both the state and the appellant. Nothing with reference to the manner of its execution, except testimony that it was executed by officers of the law, and the garbage bags of marihuana were seized. Turner v. State, Ala.Cr.App., 380 So.2d 393, and cases cited therein.

The appellant’s third contention in his brief is that the trial court erred in denying appellant’s motion for acquittal and for a new trial on the ground that there was no corroboration of the testimony of state’s witness, Lester Griffin, an admitted accomplice of the appellant.

Code of Alabama, 1975, Sec. 12-21-222 provides, as follows:

“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

Corroborate means simply to make more certain, to confirm, to strengthen. Webster’s New International Dictionary. The sufficiency of the corroborating evidence is met if it tends to connect the appellant with the commission of the offense he is charged with. Thompson v. State, Ala., 374 So.2d 388, Ala.Cr.App., 374 So.2d 377; Andrews v. State, Ala.Cr.App. 370 So.2d 320, and cases cited therein; Sommerville v. State, Ala.Cr.App., 378 So.2d 1207; Ware v. State, Ala.Cr.App., 409 So.2d 886, Ala., 409 So.2d 893 writ quashed as improvidently granted.

Officer Reeves testified, in substance, that on September 10, 1981 he was present at a stakeout of the home of Lester Griffin at 4:47 A.M. when Lester Griffin, the appellant, Lewis, together with Liz Griffin, Vera Griffin, Tommy Pyles, Ronnie Smith, and Tommy Mount arrived in two vehicles, and parked in Griffin’s yard. He observed the men unloading plastic bags of marihuana, actually saw the appellant carrying some of the bags into the house, heard one of the parties, at the time the bags were being unloaded, say, “get the drugs into the house,” using its street name, went to the Circuit Judge and secured a search warrant, went back to Griffin’s house, searched it, and found Griffin in the house, and 17 bags of marihuana in the house that looked like the same bags that he saw the appellant helping tote into the house. He further testified that at the time he observed all this he had reasonable grounds for and did believe drugs were in the garbage bags.

We hold that the evidence presented in this record fully corroborated Lester Griffin’s testimony so as to connect the appellant with the charge against him, and sustain the jury’s verdict.

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

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Michael Stephen LEWIS. (Re: Michael Stephen Lewis v. State of Alabama)
    82-189.
    Supreme Court of Alabama.
    Feb. 11, 1983.
    Cary L. Dozier, Troy, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   PER CURIAM.

In denying the petition for writ of certio-rari, we express no approval of the test set forth in the opinion as a basis for determining whether an affidavit supporting a search warrant passes constitutional muster.

WRIT DENIED.

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