text:
    Joe Nathan WOODS v. STATE.
    5 Div. 500.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Ernestine S. Sapp of Gray, Seay & Lang-ford, Tuskegee, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant and Morris Dexter Hill were jointly indicted for the first degree murder of Gordon Swearingen. A motion for severance was granted and a jury found the defendant guilty of first degree manslaughter and set punishment at five years’ imprisonment.

I

The first issue on appeal concerns the sufficiency of the corroboration of accomplice Hill’s testimony. This issue was raised at trial by a motion for new trial. See Ward v. State, Ala.Cr.App., 376 So.2d 1112, cert. denied, Ala., 376 So.2d 1117 (1979). Section 12-21-222, Code of Alabama 1975, provides:

“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.”

Even if we assume that Hill was an accomplice as a matter of law, Andrews v. State, Ala.Cr.App., 370 So.2d 320, cert. denied, Ala., 370 So.2d 323 (1979), the evidence was sufficient to corroborate his testimony.

Morris Dexter Hill testified that he was with the defendant on two different occasions December 6, 1978. The first was approximately 9:00 A.M. The next meeting was about 4:00 P.M. at a place called Minors Club in Macon County. It was there the defendant asked Hill for the use of Hill’s gun to rob Gordon Swearingen, the deceased.

Hill and the defendant retrieved Hill’s rifle from a Mr. Powell in Shorter, Alabama. They then proceeded to the Swear-ingen Museum, the deceased’s residence and place of business, in Hill’s 1977 maroon Cougar. They parked about a block and a half away from the museum and walked the remaining distance. The defendant carried the rifle. Upon reaching the back door of the museum, Hill knocked on the door as directed by the defendant. The deceased approached the door and the defendant shot him through the closed door. Hill immediately left for his automobile and there waited for the defendant who joined him shortly-

Hill took the defendant to the house of the defendant’s girlfriend. Hill then went to pick up his girlfriend, Janis Johnson. They returned to the defendant’s girlfriend’s house where all four sat in Hill’s automobile and talked. Shortly thereafter Hill, Johnson, and the defendant left for the defendant’s house in Poolville. Upon arrival there the defendant had a conversation with a Mr. Butler near the automobile. Hill did not pay attention to the conversation and did not recall what was said.

After leaving the area of the Swearingen Museum, Hill and the defendant placed the rifle in the trunk of the automobile. Hill later put the rifle in an abandoned house on nis grandmother’s property. Hill identified State’s exhibit number 4 as the rifle he gave the defendant which the defendant used to shoot Mr. Swearingen. Hill stated the rifle was removed from the abandoned house by Detective Smith and Officer Wad-dell Pearson of the Macon County Sheriff’s Office. These facts constitute the substance of Hill’s testimony.

In order to determine whether there was sufficient corroboration of the testimony of the accomplice Morris Dexter Hill, we must eliminate his testimony and examine the remaining evidence to determine if there was sufficient incriminating evidence tending to connect the defendant with the commission of the offense. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). The corroborative evidence does not have to directly connect the accused with the offense but only must tend to do so. Andrews, supra. Corroborative evidence does not have to be strong or sufficient of itself to support a conviction. Craig v. State, Ala.Cr.App., 376 So.2d 803, cert. denied, Ala., 376 So.2d 807 (1979). Corroboration may be supplied by circumstantial evidence. Craig, supra.

Excluding Hill’s testimony, there was other evidence to connect the defendant with the murder. Bascomb Duke testified that he received a telephone call from the deceased at about 7:00 P.M. on December 6, 1978. The deceased stated to Duke: “ ‘Duke, I’ve been shot ... I need help, and help at once, I’ve been shot by two black boys.’ ” Duke rushed to the deceased’s aid and discovered him lying in the hall next to the back door entrance to the Swearingen Museum.

Carlos Tisdale testified that he saw the defendant at the deceased’s place of business twice on December 6, 1978. The first time was about 7:30 A.M. Tisdale saw the defendant and another black male standing behind an old house. He asked what they were doing but they said nothing and walked away down the road. The second time was around 9:00 A.M. The defendant was coming out of the old house when Tisdale and the deceased saw him. The deceased asked the defendant what he wanted. The defendant asked for a vegetable which the deceased did not have, walked across Highway 9, and got into a maroon colored automobile driven by another person.

Janis Johnson testified that Hill picked her up at work at 7:00 on the evening of December 6, 1978. They drove to the defendant’s girlfriend’s house where Johnson saw the defendant. They all talked for a while in the automobile. Johnson and Hill later took the defendant to Poolville to William Butler’s trailer. The defendant got out of the automobile and engaged Butler in a conversation near the automobile. Johnson heard the defendant tell Butler “he had shot a white man.”

From the above testimony we find the following facts:

1) The deceased stated he had been shot by two black boys.
2) Tisdale’s testimony placed the defendant and another black male at the scene of the crime twice on the day of the crime.
3) Tisdale’s testimony placed the defendant in a maroon colored automobile at the scene of the crime, the same type automobile as Hill’s.
4) Johnson’s testimony revealed that the defendant stated on the day of the offense that he had shot a white man.

This testimony reveals that there was sufficient and even substantial evidence corroborating Hill’s testimony and connecting the defendant to the homicide. The question of the strength of the evidence was for the jury. Ward v. State, supra; Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62 (1975).

II

The defendant next contends the trial court erroneously admitted the testimony of Macon County Assistant Chief Deputy Sheriff Pearson regarding admissions made after the commission of the crime by the co-defendant, Morris Dexter Hill. He specifically contends that he was prejudiced by allowing the jury to hear Deputy Pearson testify that Hill led him to a rifle at Hill’s residence.

A hearing was held outside the presence of the jury concerning whether any testimony would be allowed before the jury about the rifle. Deputy Pearson’s testimony that Hill led him to the rifle came during this hearing and not in the presence of the jury. The testimony before the jury was that Hill and Lieutenant Smith were present with Deputy Pearson when Pearson first saw the rifle in a vacant house on Hill’s grandmother’s property. In the presence of the jury, Deputy Pearson did not testify to any statement or admission made by Hill.

The trial court ruled during the above hearing that testimony concerning the rifle would be allowed before the jury. The trial court conditioned this testimony on the State later connecting the rifle to the defendant. This condition was met when Hill testified that the defendant used the rifle to shoot the deceased. In addition, the State’s expert on firearms comparison, Tel-lis D. Hudson, testified that the fatal shot was fired from the rifle in question.

The rifle was properly admitted into evidence. The general rule is that articles which are properly identified and which tend to show the commission of the crime or the manner in which it was committed or to elucidate some matter in issue are admissible in evidence for inspection and observation by the jury. West v. State, 37 Ala.App. 125, 65 So.2d 203, cert. denied, 259 Ala. 5, 65 So.2d 207 (1953).

The State’s evidence also showed that Hill was an accomplice. We find in Gamble, McElroy’s Alabama Evidence, § 195.03(8), (3rd Ed. 1977): “The state may prove, against the accused, the existence after the crime, of a physical fact which tends to show the guilt of his coeonspirator.” McCulloch v. State, Ala.Cr.App., 338 So.2d 187 (1976).

m

The defendant claims the trial court committed reversible error by refusing to give to the jury twenty-three written charges he requested. Each of the defendant’s written charges bears the endorsement “Refused”, but none bears the signature of the trial judge. Although these charges have been included in the record on appeal, § 12-16-13, Code of Alabama 1975, precludes this Court’s review of them since none contained the signature of the judge. Stoudemire v. State, Ala.Cr.App., 365 So.2d 376 (1978); Maund v. State, Ala.Cr.App., 361 So.2d 1144 (1978); Corbitt v. State, 35 Ala.App. 572, 50 So.2d 454 (1951).

IV

Lastly, the defendant complains that his federal and state constitutional rights of due process and equal protection were violated by the refusal of the trial court to recess court at the conclusion of the State’s case. On December 4,1979, the trial of this case began at approximately 9:00 A.M. The State rested its case about 6:45 P.M. Then defense counsel requested a recess until a reasonable hour the next morning stating that the trial had run for approximately ten hours and that his two witnesses would be “fairly long witnesses.” As it turned out the direct and cross examination of the defense witnesses take up only seventeen pages of the transcript. The transcript does not disclose at what hour the trial concluded.

The defendant has cited no authority for this issue. Former Title 13, § 117, Code of Alabama 1940, provided that the trial of jury cases should not proceed “later than seven o’clock p. m. each day, except by agreement of counsel.” Although this section has been repealed (see Alabama Code Section 1-1-10 (1975)) we are guided by the case of Brazzell v. State, 49 Ala.App. 508, 273 So.2d 484, 486 (1973), interpreting that section:

“We of the ancient bar learned the hard way that this section does not mean what it says. We have been forced to try past midnight on many occasions and then wait on the jury’s verdict at day break. With raw nerves, hot tempers, curse words reduced to sub-monotones, we endured the hours to find that all was well when the foreman said, ‘not guilty.’ This section is directory only.” (Citations omitted).

The defendant has not shown where he was harmed by proceeding with the trial of this case. We find no abuse of the trial court’s discretion in this case. Shiflett v. State, 52 Ala.App. 476, 294 So.2d 444, cert. denied, 292 Ala. 749, 294 So.2d 448, cert. denied, 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1974).

We have searched the record for error as required by statute and found none. The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Robert JACKSON v. STATE.
    6 Div. 206.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.

      Kerry R. McDonald, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for burglary. Sentence was ten years’ imprisonment.

I

The record supports the trial judge’s finding that the defendant knowingly and intelligently waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The only argument advanced to support the contention that the confession was inadmissible was the fact that the defendant was not given the Miranda warnings immediately before he confessed. It is undisputed that the defendant was informed of his rights and voluntarily and intelligently waived them approximately one hour before he was interrogated.

“Once the mandate of Miranda has been complied with at the threshold of questioning it is not necessary to repeat the warnings at the beginning of each successive interview.” Gibson v. State, 347 So.2d 576, 582 (Ala.Cr.App.1977). Here, there is not one single circumstance which would indicate that the warnings should have been repeated. Love v. State, 372 So.2d 414 (Ala.Cr.App.1979).

Another statement made by the defendant was clearly volunteered and not made in response to any interrogation or coercion. Laffitte v. State, 370 So.2d 1108 (Ala.Cr.App.), cert. denied, 370 So.2d 1111 (Ala.1979).

II

On appeal the defendant alleges that “the failure to qualify [State’s witness] Mr. Smith as an expert coupled with a find of only five (5) points of identification over the entire pattern of the Appellant’s right forefinger rendered such testimony and evidence unreliable, inconclusive and thereby inadmissible.”

We have searched the record but find no objection by defense counsel presenting this issue to the trial court. Consequently, this Court has no adverse ruling to review. Hines v. State, 365 So.2d 320, 322 (Ala.Cr.App.), cert. denied, 365 So.2d 322 (Ala.1978); Ward v. State, 376 So.2d 1112, 1116 (Ala.Cr.App.), cert. denied, 376 So.2d 1117 (Ala.1979). The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Luke LAWRENCE, Jr. v. STATE.
    6 Div. 209.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Larry Newman, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Sp. Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Luke Lawrence, Jr., was indicted by the grand jury for manslaughter in the first degree in that he “unlawfully and intentionally, but without malice, killed Charles Manzella by driving an automobile into, upon or against an automobile in which said Charles Manzella was riding” (R. 169). At trial appellant was found guilty as charged and his sentence was fixed by the jury at two years in the state penitentiary. He was sentenced accordingly. Lawrence prosecutes this appeal with the aid of appointed counsel.

Charles Manzella was killed in a head-on collision during the late afternoon of February 25, 1979, while he was driving on Interstate 59 in Birmingham, Alabama. Jeanette Manzella, decedent’s wife, testified that she last saw her husband alive that afternoon as he left in his “maroon” or “wine colored” Pontiac Grand Prix on the way to a movie. She stated that she later viewed his body at a local funeral home.

J. M. Glass, chief medical investigator for the Jefferson County Coroner-Medical Examiner’s Office, testified that, on February 26, 1979, he had occasion to perform the autopsy on the deceased. Mr. Glass related that his examination revealed multiple “blunt-force type injuries” (R. 19), including fractures of the skull, ribs, leg, and other bones, extensive internal damage, and numerous abrasions and similar injuries; these various injuries were the direct cause of death, and Mr. Glass stated that such injuries were consistent with those present in victims of head-on automobile collisions.

Patrick Rhodes, an accident investigator with the Birmingham Police Department, testified that, on the date in question, he had received a radio call to proceed to the scene of an accident on 1-59 between the Tallapoosa and Airport exits, and that he arrived within a few minutes of the call. The witness identified numerous photographs which he had taken as correctly portraying the scene of a collision between a maroon or dark red Pontiac Grand Prix and a yellow or cream Ford Elite. Both vehicles were in the north bound lane of 1-59. Officer Rhodes stated that, upon his arrival at the scene, he attempted to administer aid to the decedent, who was trapped behind the steering wheel of the Grand Prix, but that the victim was either dead or died before paramedics arrived. The officer made an in-court identification of appellant as the other victim whom he examined, and stated that appellant was still in his Ford Elite in an unconscious state. During the process of examination, Officer Rhodes testified that he smelled the odor of “alcohol beverage” (R. 46) about appellant. Officer Rhodes further stated that he talked with both Kevin Darden, a witness to the collision, and Carmen Cartee, the driver of a third vehicle involved in the wreck. At some point after the collision, Officer Rhodes transported several vials of appellant’s blood from the hospital to an employee of the State Department of Forensic Sciences.

Kevin Darden, a student at the University of Alabama in Tuscaloosa, testified that, on the late afternoon of February 25, 1979, while driving from Tuscaloosa to Birmingham on Interstate 20, he had the occasion to see a cream colored Ford Elite parked in the median some ten miles from the scene of the wreck. As he neared the car, Mr. Darden stated, it suddenly pulled into the lane of traffic very near to a group of on-coming cars, causing them “to apply their brakes.” The witness followed the Ford to Birmingham, at times noticing the Ford “swerving back and forth and on the highway from one shoulder to another, and completely off the road at times, and then back on the other side” (R. 80), and “running other people off the road” (R. 80). The witness judged the Ford’s speed to be between 55 and 60 miles per hour. He followed the car off of 1-20 into a commercial area near where 1-20 and 1-59 again intersect in Birmingham, and stated that, while there were a number of traffic lights, he did not observe the Ford run any red lights. Mr. Darden then followed the Ford back onto 1-59 South, where the car “continued the same type of driving that it had been” (R. 82), that is, “swerving and running people off the road” (R. 82). This witness estimated the Ford’s speed at this point to be between 55 and 60, increasing to between 75 and 80 as it neared the airport. The witness further stated that he next saw the Ford “sideswipe” a car, proceed across the median, and run head-on into a burgundy Grand Prix in the north-bound lane.

Mr. Darden testified that, after seeing this, he immediately stopped his own car on the side of the highway and went to the scene of the collision on foot. He stated that he had received a good deal of training in first aid and emergency medical techniques, and thus sought to render assistance. He examined both the occupant of the Grand Prix, who was pinned in his car, and the occupant of the Ford, who was lying unconscious, Mr. Darden stated about, three feet from the Ford. Darden stated that he smelled the odor of alcohol about the occupant of the Ford, and made a positive identification of appellant as the occupant. Though the witness was unable to testify that appellant was the actual driver of the Ford, he did state that, in following the Ford, he noticed that it had one occupant, who was black, and that he never saw the car stop and take on other passengers. Appellant is a black male.

Carmen Cartee testified that, on the date in question, she was driving on 1-59 South between the Tallapoosa and Airport exits when she was involved in a collision with another vehicle. The witness stated that she had looked in her rear view mirror and had seen a “yellow Ford” (R. 110), which was “swerving all over the interstate” (R. 110), and “coming up behind me real fast” (R. 110). She testified that the Ford sideswiped her car, crossed the median and struck a “maroon” car moving in the opposite direction head-on. She further stated that, prior to being struck by the Ford, she noticed that it was crossing several lanes of the interstate. She parked her vehicle in the emergency lane of 1-59 South, and did not approach the scene of the head-on collision. Ms. Cartee identified the investigating officer as Pat Rhodes and stated that she had noticed Kevin Darden at the scene.

Kathy Robinson, an emergency medical technician with a Birmingham ambulance firm, testified that, on February 25, 1979, she had been summoned to the scene of a collision on 1-59 between the Tallapoosa and Airport exits. She stated that, upon arrival, she examined appellant, who was unconscious and lying outside of the Ford vehicle. She further testified that, during her examination, she smelled “the odor of alcoholic beverages” about the appellant. She accompanied appellant to the hospital in the ambulance, and stated that he never regained consciousness while in her presence.

The final witness was Chip Walls, a forensic toxicologist with the State Department of Forensic Sciences. He testified that, in early March, 1979, he had received blood samples from Officer Rhodes. He was not allowed to testify concerning any tests that he had conducted or as to the results of the tests.

The State rested, and appellant’s motion to exclude the State’s evidence was overruled. The appellant offered no witnesses and did not take the stand.

I

The sole contention is that the evidence presented is insufficient to justify a conviction for first degree manslaughter. To this end, appellant argues that he was not sufficiently identified to be the driver of the Ford, that he was not shown to be intoxicated, and that his actions were not the proximate cause of the wreck.

When a question as to the sufficiency of the evidence is raised on appeal, this Court is bound to follow the tenets of review as set forth in Johnson v. State, Ala.Cr.App., 378 So.2d 1164, 1169 (1979):

“It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt and to a moral certainty. Instead, the function of this Court is to determine whether there is legal evidence from which a jury could by fair inference find the defendant guilty. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.), cert. denied, 368 So.2d 877 (Ala.1979); Scruggs v. State, 359 So.2d 836, 842 (Ala.Cr.App.), cert. denied, 359 So.2d 843 (Ala.1978). In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. Ellis v. State, 338 So.2d 428 (Ala.Cr.App.1976); Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974).”

We will not disturb a jury’s verdict where legal evidence existed from which a fair inference of the defendant’s guilt could be ascertained, unless, given all favorable inferences, the verdict is so against the preponderance of the evidence as to render it unjust. Johnson v. State, supra, and authorities therein cited.

We have examined the evidence set forth in the record and conclude that there was ample evidence from which the jury could have determined that appellant was shown to be the driver of the Ford automobile and therefore was guilty of the crime charged. The appellant’s identification, though largely uncontroverted, was properly one for the jury, cf., Rider v. State, 56 Ala.App. 137, 319 So.2d 756 (1975), as was the question of his intoxication given the testimony concerning his erratic driving habits and the smell of alcohol. Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974); Senn v. State, 45 Ala.App. 17, 221 So.2d 693 (1969).

We need not here repeat all the evidence tending to incriminate appellant, a good portion of which has been set forth above, but conclude that, upon the evidence presented, the jury could have properly believed the appellant guilty of driving his automobile “in such a manner as to evidence a wanton and reckless disregard of human life at the time and place under the circumstances,” and that such conduct proximately caused the death of Charles Manzella. Edson v. State, supra; Baker v. State, 43 Ala.App. 550, 195 So.2d 815 (1966), cert. denied, 280 Ala. 708, 195 So.2d 818 (1967); Darby v. State, 48 Ala.App. 421, 265 So.2d 449 (1972); and Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972).

We have carefully examined the record in this cause, and find same to be free from error; the judgment is therefore

AFFIRMED.

All the Judges concur.


text:
    Leon FOY v. STATE.
    6 Div. 258.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.

      Robert C. Sutton, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sandra M. Solowiej, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Leon Foy was indicted by the grand jury in 1976 for violation of the Alabama Uniform Controlled Substances Act, § 20-2-1, et seq., Code of Alabama 1975, in that he did “unlawfully possess 1.961 grams of powder containing heroin, a narcotic drug.” At trial in 1979, Foy was found guilty and sentenced to serve three years in the state penitentiary. Foy’s sole contention on appeal is that the trial court erred in overruling his timely motion to suppress evidence of the heroin, allegedly the fruit of an unlawful search and seizure.

Charles F. Trucks, a sergeant with the Birmingham Police Department, was the sole state witness at the pretrial motion to suppress hearing, and also testified at appellant’s trial. He related that, on the night of August 19-20, 1976, he and other law enforcement officers had been engaged in the surveillance of a specific apartment located on Goldwire Road in Birmingham for the purpose of observing “activities that were taking place within that apartment, or in the area, and, later on, to serve a search warrant on that residence” (R. 11). The officers did not have the warrant when the surveillance commenced. Sergeant Trucks stated that initially he was positioned behind some shrubbery in the parking lot of a commercial establishment some distance away, but was able to observe the apartment with the aid of binoculars. From this vantage point, he witnessed appellant and a female emerge from the apartment around 10:20 p. m. and leave in an early model automobile. He testified that the couple returned in the car some forty-five minutes later, but then left a second time in the same automobile.

In the interim, one of the officers had left the scene and returned with a search warrant, authorizing the search of the apartment (the warrant itself does not appear in the record, and no issue is raised as to its efficacy). Sergeant Trucks testified .hat, around midnight, the officers made preparations to serve the warrant, and he changed his position from the parking lot to a ditch adjacent to the apartment building’s parking lot. An unidentified black police officer, clad in his uniform and a windbreaker, but having removed his gun belt, approached the second floor apartment to knock on the door and attempt to gain entrance without exciting suspicion. At this point, Sergeant Trucks stated, the early model automobile returned, and a black female, identified as Bobbie Haley, got out while appellant remained inside (there is some confusion as to exactly when appellant left the automobile, that is, initially or only when Bobbie Haley raised her subsequent hue and cry; we attach no significance to what we consider to be these minor discrepancies, however). Sergeant Trucks stated that, upon seeing the officer near the apartment, the female suddenly yelled something like, “ ‘Mama. Dump the dope. It’s the cops. Let’s get the hell out of here” (R. 64). Again, there is some variation between the versions of what she actually yelled; in any event all versions referred to “dumping dope” and the presence of the police.

At this point, the witness testified, both the female and appellant attempted to escape, the latter backing away and then running with his right hand down near his right ankle. Sergeant Trucks stated that he pursued them both, tackled them, and that he only subdued appellant after a violent struggle. Upon patting appellant down, the officer discovered a matchbox hidden in appellant’s right sock. The box contained “five or six” foil packages found to have a brownish powder in them. Appellant was placed under arrest, according to Sergeant Trucks, and conveyed upstairs to the apartment being searched; the female was placed in a police car. Sergeant Trucks testified that he gave the matchbox and foil packages to Sergeant James Sims.

Sergeant James L. Sims, a member of the Narcotics Division of the Birmingham Police Department, testified that he had obtained the search warrant for a specific apartment on Goldwire Road in the name of Marie Haley on the night of August 19-20, 1976. He stated that he was present when the raid took place, and witnessed Sergeant Trucks and appellant struggling on the ground during the course of the raid. By the time he arrived to help, Sergeant Trucks had subdued and handcuffed appellant. Sergeant Sims further stated that he received the matchbox containing the foil packages from Sergeant Trucks that night and placed them in his pocket until his return to police headquarters, at which time he sealed them in a standard evidence envelope. The next day, he stated, he opened the envelope for a magistrate, but re-sealed and initialed it, and conveyed it to Wayne Burrow of the Department of Forensic Sciences.

Wayne Burrow, a toxicologist with the State Department of Forensic Sciences, testified that he received the envelope from Sergeant Sims and performed a number of chemical tests on the contents of the foil packages. He stated that the packages contained 1.961 grams of powder of which 7.6 percent was heroin.

The State rested, and appellant’s motion to exclude was overruled; appellant offered no witnesses and did not testify himself.

I

Appellant contends that, under the facts as set forth above, the incriminating packets of heroin were the fruit of an illegal search and seizure and should have been suppressed pursuant to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). We disagree with this contention, and hold that appellant’s motion to suppress the evidence of heroin was properly overruled by the trial court.

It is well settled in constitutional jurisprudence, and appellant so concedes, that, though the use of a search warrant is usually mandated by the Fourth Amendment, a warrantless search may be made of a defendant’s person pursuant to a lawful arrest in order to secure any weapons or evidence which the defendant might possess. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 889, 20 L.Ed.2d 917 (1968); Douglas v. State, Ala.Cr.App., 366 So.2d 373 (1979); Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972). For such a search to be proper, it must not precede the arrest, but must be made contemporaneously with it and then limited only to the person of defendant or any area from which he might seize a weapon or destroy evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Allen v. State, Ala.Cr.App., 376 So.2d 826 (1979). While Sergeant Trucks’ search of appellant in this case certainly did not exceed the permissible scope (as the heroin was discovered on appellant’s person), appellant argues that the “search of Leon Foy was clearly prior to his arrest, not contemporaneous with, incident to it, nor after it.” We disagree.

The facts indicate that immediately after the warning cry of his female companion, appellant attempted to depart the scene, all the while reaching toward his right ankle with his right hand. Sergeant Trucks tackled appellant, a struggle ensued, and appellant was subdued and handcuffed. Sergeant Trucks testified that, upon his discovery of the heroin, he placed appellant under arrest. Under such facts, contrary to what appellant asserts, we feel that the actual arrest of appellant was accomplished when appellant was forcibly subdued, because at that point Sergeant Trucks “curtailed his freedom of movement on the basis of probable cause to believe that he was engaged in criminal activity.” Terry v. Ohio, supra; Sibron v. New York, supra; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Strickler, 490 F.2d 378 (9th Cir. 1974); cf. Central of Georgia Railway Company v. Cariock, 196 Ala. 659, 72 So. 261 (1916). Because the actual point of arrest is usually a question of fact, Sibron v. New York, supra, on the facts here presented, we are of the opinion that, “for the purposes of constitutional justification,” appellant had already been subjected to arrest at the time the search of his person occurred, and thus the search was incident to his arrest.

Because, of course, evidence seized as the result of an unlawful arrest is inadmissible and must be suppressed, Malone v. State, 51 Ala.App. 19, 282 So.2d 367, cert. quashed, 291 Ala. 789, 282 So.2d 371 (1973); we are necessarily confronted with the question as to whether appellant’s arrest in this instance was lawful. Appellant’s arrest was admittedly without a warrant and is thus governed by § 15-10-3, Code of Alabama 1975, which provides in relevant part:

“§ 15-10-3. Arrest without warrant-when and for what allowed.
“An officer may arrest any person without a warrant on any day and at any time, for:
“(2) When a felony has been committed, though not in his presence, by the person arrested;
“(3) When a felony has been committed and he has reasonable cause to believe that the person arrested committed it;
“(4) When he has reasonable cause to believe that the person arrested has committed a felony, although it may appear afterwards that a felony had not in fact been committed;

Under the terms of this statute, it is clear that a warrantless arrest is justifiable, and will be valid if the officer making the arrest had reasonable or probable cause to effect the arrest at the time it was made. See, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Braxton v. State, Ala.Cr.App., 350 So.2d 753 (1977). In the Braxton decision, as in many others, this Court set forth the general approach to be used in analyzing probable cause questions:

“In determining whether there was probable cause to arrest, it is not necessary that the officer have before him evidence which would support a conviction for the offense. He must have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the suspect had committed or was committing an offense. Beck, supra. The officer’s good faith in making the arrest alone is not enough. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).”

See, also: Sexton v. State, Ala.Cr.App., 349 So.2d 126 (1977); Knight v. State, Ala.Cr.App., 346 So.2d 478, cert. denied, Ala., 346 So.2d 483 (1977). Bearing in mind the above stated principles, and the injunction that “there is no formula for determination of reasonableness, and each case is to be decided on its own facts and circumstances,” Thomas v. State, 50 Ala.App. 227, 278 So.2d 230 (1973), we proceed to an examination of the circumstances here presented.

The tendency of the State’s evidence, set forth in more detail above, was that law enforcement officers were observing a specific apartment; that the officers secured a search warrant for the apartment, directed to “Marie Haley.” The appellant and one Bobbie Haley were seen entering and leaving the apartment at least twice in the time frame of a few hours; that upon discovery of the police officers, the female yelled a warning about police and “dope”; that she and appellant attempted to flee even after the officers identified themselves. Also, the appellant was attempting to reach something around his right ankle; and that the appellant violently resisted the officers. Further important facts are that narcotic transactions \vere the object of surveillance and the search warrant, and that the entire sequence of events occurred around midnight in a parking lot.

We hold that, under these circumstances, Sergeant Trucks had probable cause to pursue and arrest appellant. This conclusion results from a combination of the factors shown above, including the possible presence of narcotics, the warning cries of the female, and the furtive actions of appellant. While flight is not, in itself, sufficiently indicative of guilt so as to support a finding of probable cause, when the fact of flight is connected with other circumstances, it may supply the necessary quantum of probable cause. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Sibron v. New York, supra; United States v. Vasquez, 534 F.2d 1142 (5th Cir. 1976). Appellant strenuously urges that this Court’s decision in Shipman v. State, 51 Ala.App. 80, 282 So.2d 696, cert. quashed, 291 Ala. 484, 282 So.2d 700 (1973), would preclude a finding of probable cause in the instant case. A reading of Shipman shows that it is clearly inapposite factually to this case.

Appellant also argues that the United States Supreme Court’s ruling in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), is applicable, and he could not be subject to search simply because he was present at the time that the search warrant was served. While this principle is correct and has been recognized in this State, see Smith v. State, 292 Ala. 120, 289 So.2d 816 (1974), it has no application where, as here, probable cause that evidence may be concealed or destroyed by the individual is present. Travis v. State, Ala.Cr.App., 381 So.2d 97 (1979), cert. denied, Ala., 381 So.2d 102 (1980).

Since we hold that the warrantless search of appellant was justified as incident to a lawful arrest, we do not base our decision on any notion of “stop and frisk” or similar principles by which protective pat-downs for weapons may be made. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); § 15-5-30, et seq., Code of Alabama 1975; see, e. g., Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200, cert. denied, 291 Ala. 93, 278 So.2d 205 (1973); Butler v. State, Ala.Cr.App., 380 So.2d 381 (1980).

We have carefully reviewed the record in this cause and find same to be free from error. The judgment is therefore

AFFIRMED.

All the Judges concur.

      . The time delay between Foy’s indictment and trial was due to Foy’s jumping bail and escaping this jurisdiction; he was re-arrested in 1979.


text:
    Curtis C. GIBSON v. STATE.
    4 Div. 823.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.

      R. Michael Raiford, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for forgery in the first degree. Sentence was eight years’ imprisonment.

I

The trial court properly charged the jury on the defense of duress even though the instructions had not been requested by the defendant.

In a statement given to a police officer after his arrest, the defendant stated that two men had threatened him with bodily harm if he did not try to get the check cashed. The voluntariness of this statement is not questioned. The defense presented no evidence. In its original charge, the trial judge did not instruct the jury on the defense of duress.

At 3:40 P.M. the jury retired to begin deliberations. At 4:05 P.M., twenty-five minutes later, a single juror was brought into the courtroom and examined concerning her acquaintance with the defendant’s mother. This matter was resolved to the satisfaction of both the State and the defendant and the juror returned to the jury room.

At 4:18 P.M., the entire jury returned to the courtroom and submitted two questions to the trial judge. In answer to the first question, the court properly instructed the jury.

The second question was: “If we, the jury, agree that Mr. Gibson did try to pass this check but was acting in fear, what would be the outcome? The court then charged the jury on the principles of the defense of duress. No objection was made to this charge.

After a short conference held at the bench the trial court charged the jury that the defense of duress must be proved to their reasonable satisfaction. Defense counsel then objected to this additional statement. The jury returned to the jury room to continue its deliberations and reached a verdict at 4:45 P.M.

In his brief, the defendant asserts the basis of his complaint.

“The Appellant does not contend that the charge as to the defense of duress was incorrect as to its content, but that at the time it was given, it unfairly prejudiced the minds of the jurors towards the Appellant and unfairly swayed them to render a verdict against the Appellant a very short time after they received the charge.”

Initially, we note that the objection made at trial and the objection raised before this Court are different. Consequently, we have nothing to review. It is a fundamental principle of trial and appellate procedure that specified grounds of objection waive all grounds not specified and the trial court will not be put in error on grounds not assigned. Stemple v. State, 352 So.2d 33, 36 (Ala.Cr.App.1977). A trial court is required to pass on the grounds of objections which are announced; those omitted are deemed waived.

However, even with proper objection, the action of the trial court was proper. A court must instruct on the law applicable to all theories presented by the testimony. Glover v. State, 21 Ala.App. 423,109 So. 125 (1926).

A jury is entitled at all times to have access to the trial court for legal instructions. Tillison v. State, 32 Ala.App. 397, 27 So.2d 41, cert. denied, 248 Ala. 196, 27 So.2d 46 (1946).

It is proper for the trial judge to give additional instructions on questions presented by the jury which the court failed to touch on or adequately cover in the original charge. “The Court may give further instructions at the jury’s request, as by reading certain instructions previously given, or on its own motion without their request ., in its discretion recharging them in full or only on the point requested.” 23A C.J.S. Criminal Law § 1376(c). “[T]he court in its sound discretion may give additional instructions without request of the jury.” 23A C.J.S. Criminal Law § 1376(a).

Juries must try and determine cases according to the law and the facts and not according to their own private opinions. Crumpton v. State, 167 Ala. 4, 52 So. 605 (1910). The trial judge did not comment on the evidence or on the merit of the defense of duress. There is no evidence or contention that the jury was unable to reach a verdict before receiving these instructions or that the additional charge aided in breaking any deadlock. Consequently, we find no error in the action of the trial court.

II

The “Alabama Rules of Criminal Procedure-Temporary Rules” numbered 1 through 11 became effective by order of the Alabama Supreme Court on February 23, 1980. Rule 6(b)(1) provides:

“Unless the court has no discretion as to the penalty to be imposed and no powers to suspend execution of the sentence, the court shall conduct a sentence hearing, unless waived by the parties with consent of the court. The sentence hearing may commence immediately after a determination of guilt or may be continued to a later date to be set by the court.”

The defendant was convicted on March 3, 1970. At that time the trial judge informed the defendant:

“Sentencing at this point will be set for April 25th at nine, o’clock. The application for probation will be ruled upon at that time. As to whether under the new rules there must be a sentence hearing, I will discuss this with the presiding judge and make the policy of this circuit known to Mr. Raiford, the defendant’s attorney. If there need be a hearing set before that date, Mr. Raiford will be notified.”

On the day set for sentencing the State nrobation officer furnished the judge a report (presentence investigation). At this time the defendant and his attorney were present. The trial judge denied probation and sentenced the defendant to eight years’ imprisonment.

In State v. Bracewell, Ala.S.Ct. 78-249 (Ms. May 25, 1979), the Alabama Supreme Court, in finding no error in the admission of a defendant’s confession, held: “Absent a clear expression in the Statute to the contrary, we think the law applicable at the time of the offense was intended to govern the offense, the offender, and all proceedings incident thereto; and we so hold.”

This offense was committed in September 29, 1979. Since the rule for a sentence hearing did not become effective until February 23, 1980, it does not govern.

We have searched the record for error as required by law and have found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Thomas HENRY v. STATE.
    7 Div. 741.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Wayne H. Smith, Heflin, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

This is an appeal from a denial of a petition for writ of error coram nobis.

Although the record contains no response by the state or county authorities to the petition, the petition was dismissed without a hearing. The trial judge made a written finding that “the petition fails to allege sufficient grounds requiring hearing by this court.” This was error.

The petition contains matters and allegations which, if true, entitle the petitioner to relief. Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979). “Since the petition was meritorious on its face, petitioner should have been afforded a hearing on the merits . See Aaron v. State, 283 Ala. 52, 214 So.2d 327.” Populus v. State, 51 Ala.App. 166, 283 So.2d 617 (1973). See also Pace v. State, 369 So.2d 1281 (Ala.Cr.App.1979).

The judgment of the Circuit Court dismissing the petition is reversed. This cause is remanded with directions that an eviden-tiary hearing be held at which the defendant is present and represented by counsel. We specifically note that the State has filed a Motion to Remand requesting this very same action.

REVERSED AND REMANDED WITH DIRECTIONS.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    J. C. MAXWELL v. STATE.
    6 Div. 294.
    Court of Criminal Appeals of Ala.
    Aug. 19, 1980.

      William G. Veitch, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Charles M. Allen, II, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of murder in the first degree of Edna Marie Maxwell, his wife, by shooting her with a pistol.

Our review of the evidence convinces us that there was ample evidence to support the verdict. There is no contention to the contrary.

The only issue presented for review relates to the question of the admissibility of evidence of two prior convictions of defendant, one for robbery and one for grand larceny. The statement of the issue in appellant’s brief is as follows:

“In order to justify exposing Defendant’s criminal record to a jury, the probative relevance of prior convictions to the issue of credibility must outweigh the degree of prejudice that is produced from such a relevation to the jurors.”

The substance of defendant’s contention in the trial court on the point is revealed by the following portion of the transcript on an in camera hearing:

“THE COURT: All right.
“MR. VEITCH: Judge, I would like an order to restrain Mr. Gomany [attorney for the State] — I have got to put J. C. on the stand.
“THE COURT: And so what?
“MR. VEITCH: So, J. C. has had two prior convictions, one for robbery and one for grand larceny. And I don’t want Ken to be able to ask him about those prior convictions.
“THE COURT: Why not, because they might be harmful?
“MR. VEITCH: Yes, sir. I believe when a jury hears he has been convicted of crimes in the past, there is a strong possibility that they will convict him on that.
“THE COURT: See, he has a right to go into crimes involving moral turpitude.
“MR. GOMANY: The Judge will charge that they can’t consider that except for the credibility of the testimony.
“THE COURT: I will charge on that. Be sure to remind me that it goes to the credibility.
“MR. VEITCH: Well, I want to give you that to look over.
“THE COURT: If you have some kind of conviction that doesn’t involve moral turpitude, I will be glad to rule on that.
“MR. VEITCH: No, sir. If he gets it out and tells the jury this man has been convicted of two crimes, then they might think he has done two, why not another.
“THE COURT: That might be the aspect in spite of the court’s admonition, but still it is proper for him to ask those questions.
“THE COURT: He would have the right to ask those questions.
“MR. VEITCH: Okay. Judge.
“THE COURT: You can’t ask him anything on that, but you can ask on robbery.
“MR. VEITCH: But he can’t bring up that obstruction of justice?
“THE COURT: No, not unless he shows me something. He has a robbery and what else?
“MR. GOMANY: Grand larceny.
“THE COURT: All right.”

The foregoing portion of the transcript occurred just after the State rested. Upon completion of the in camera hearing and the return of the jury to the court room after a coffee break, the trial proceeded with the defendant testifying as his only witness. Included in his testimony on direct examination was the following:

“Q. Okay. Let me ask you this, J. C. Have you ever been convicted of any crime?
“A. Yes, sir.
“Q. You have been?
“A. Yes, sir.
“Q. What have you been convicted of?
“A. Robbery and grand larceny.
“Q. When were you convicted of robbery?
“A. In 1973.
“Q. When were you convicted of grand larceny?
“A. At the same time, same charge.
“Q. They charged you with the same thing? This was when?
“A. 1973.”

In appellant’s argument in his brief on appeal, he states:

“In conclusion, your appellant was subjected to an unconscionable dilemma: either take the stand and be prejudiced by prior criminal convictions or keep silent and let the jury hear only one side of the story. The first choice subjects the defendant to violations of his Fifth Amendment rights against self-incrimination, the second to violations of this Fourteenth Amendment rights to a fair and impartial trial.”

We do not find in the transcript or the record proper that defendant raised any question in the trial court as to the constitutionality of the governing statutory law of Alabama, Code of Alabama 1975, § 12-21-162, as follows:

“(a) No objection must be allowed to the competency of a witness because of his conviction for any crime, except perjury or subornation of perjury.
“(b) As affecting his credibility, a witness may be examined touching his conviction for a crime involving moral turpitude, and'his answers may be contradicted by other evidence.”

Any question as to the constitutionality of the cited statute or any procedure thereunder is not reviewable by an appellate court unless the question was presented in the trial court. In Smith v. State, 280 Ala. 241, 244, 192 So.2d 443, it is stated:

“This court on appeal will not consider constitutional questions not raised below. Alabama Brokerage Co. v. Boston, 18 Ala.App. 495, 93 So. 289, cert. denied, Ex parte Alabama Brokerage Co., 208 Ala. 242, 94 So. 87; Hubbard v. Cornutt, 278 Ala. 512, 179 So.2d 90; Vol. 2, Ala. Digest, Appeal & Error, key 170(2).”

As defendant elected to show the prior convictions of defendant without being assured that the State would do so on cross-examination of defendant as a witness, we cannot say that he properly presented to the trial court his contention that a defendant’s prior conviction for a crime involving moral turpitude cannot be shown against him upon his having testified as a witness for himself unless “the probative relevance” of his prior conviction outweighs “the degree of prejudice that is produced” by admitting the evidence. However, to allay any notion that this Court is of the opinion that a trial court is required to disallow such evidence unless and until it is subjected to and is found to meet an in camera weighing or balancing test, we proceed to a consideration of appellant’s contention, and the cases upon which he relies, including some subsequent cases on the subject.

The cases relied upon by appellant are Luck v. United States, 348 F.2d 763 (D.C. Cir. 1965); Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967); Blakney v. United States, 397 F.2d 648 (D.C. Cir. 1968); Evans v. United States, 397 F.2d 675 (D.C. Cir. 1968); Weaver v. United States, 408 F.2d 1269 (D.C. Cir. 1969) and United States v. Bailey, 426 F.2d 1236 (D.C. Cir. 1969). However supportive they may be of any contention of appellant as to what the law ought to be, they are not apposite as to what the law actually is on the subject. Involved in all of the cases cited by appellant, all of which were of the United States Court of Appeals of the District of Columbia Circuit, was the unique statute of the District of Columbia, which the court construed as not requiring under all circumstances, but as permitting, when meeting a mentioned weighing or balancing test, in the judgment of the trial court, a construction that has never been placed upon the applicable statutory law of Alabama. Even if it were subject to such a construction, at least one of the cases cited would adversely dispose of the particular contention of appellant, for the reason that he did not on the trial meet the burden of showing the inferior value of the impeaching evidence when compared with the value, in the interest of justice, of allowing the defendant to testify free of impeachment by prior convictions of a crime. Speaking for the court in Evans v. United States, supra, Judge Warren Burger, now Chief Justice Burger, said:

“. . . As we have previously intimated, it is not enough merely to refer to the Luck-Gordon standards and then to sit back. Hood v. United States, [365 F.2d 949, (D.C. Cir.)] supra. The defense must show how and why this case calls for a discretionary ‘exemption’ from the impeachment permitted by statute . All Luck and its progeny have done is point to the discretion in the district judge to exclude some or all prior convictions in some cases, when good reason is shown. This Court will not find an abuse of that discretion unless the defendant has presented cogent reasons calling for his unimpeached testimony. The possibility of undue prejudice from impeachment by prior convictions is an important factor, but it is relevant only after the threshold burden of demonstrating the peculiar need for the defendant’s testimony has been met.” 397 F.2d at 679.

To avoid any misunderstanding as to our view of the applicability of what has just been quoted from Evans v. United States, supra, it now appears to be applicable only in a case, such as this, in which there is no statutory requirement for the mentioned balancing or weighing test. In the cases cited, it was of judicial origin. What we have quoted from Evans v. United States is applicable only as adversely dispositive of appellant’s apparent effort to analogize the Alabama statutory law and what the courts should decide to the statutory law of the District of Columbia and what the United States Circuit Court for the District of Columbia Circuit has decided on the subject. All of that is now a matter of history. The particular statute of the District of Columbia was superseded on July 1, 1975, by Rule 609 of the Federal Rules of Evidence, authorized by the Congress by Pub.L. 93-595, § 1, January 2, 1975, 88 Stat. 1935. Rule 609(a) provides:

“For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.”

The rule as now codified in U.S.C.A. Tit. 28 has not stopped the train of cases on the subject or the wealth of discussion whether “the probative value of admitting this evidence outweighs its prejudical effect to the defendant,” including United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976); United States v. Dorsey, 591 F.2d 923 (D.C. Cir. 1978); and United States v. Crawford, 613 F.2d 1045 (D.C. Cir. 1979), as well as cases from other United States Circuit Courts. Rule 609(a) shows, and the cited authorities make it clear, that a court determination “that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant” is not required if the prior crime “involved dishonesty or false statement.” However, whether some particular crimes involved dishonesty or false statement was not without controversy. In United States v. Smith, supra, it was held that attempted robbery was not such a crime. United States v. Dorsey, at 591 F.2d 935 approved a holding “that a shoplifting conviction was not a crime involving ‘dishonesty or false statement’ within the meaning of Rule 609(a)(2).” In United States v. Crawford, at 613 F.2d 1052, it is stated:

“Shoplifting may or may not be probative of a lack of veracity, depending on the nature and circumstances of the crime. It can range from an impulsive ‘grab and run’ in full view of store officials, to a discreet slipping of merchandise into a handbag, or even to an outright lie about one’s identity or ownership of a credit card. . .

We recognize, as stated in United States v. Crawford, at 613 F.2d 1053, that in “approving Rule 609(a) Congress clearly intended to change prior case law (including this court’s Luck and Gordon decisions) and shift the burden of proof in establishing the admissibility of prior convictions from defendants to the government.” Nevertheless, there has been no basis for a change in the rationale of what we have heretofore quoted from Evans v. United States to the effect that defendant did not meet the burden imposed upon him in any attempt by him to prevent the admission of evidence of his prior convictions for robbery and grand larceny, in the absence of any statutory law requiring a predetermination by the court of the value of such evidence as compared with the value of testimony by the defendant unaffected by evidence of his prior convictions.

Whatever the result of a comparison between the former law of the District of Columbia and Rule 609 of the Federal Rules of Evidence on the one hand and Code of Alabama 1975, § 12-21-162 to determine what should be the law on the subject, we must conclude that the position taken by appellant is not in accord with the applicable law of Alabama and that the authorities cited by him do not support his contention that the trial court committed reversible error in not forbidding introduction in evidence of defendant’s prior convictions for robbery and grand larceny.

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

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

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    BIRO MANUFACTURING CO., etc., Petitioners, v. Maurice P. AUBE et ux., Respondents.
    No. 53106.
    Supreme Court of Florida.
    March 22, 1979.
    Rehearing Denied July 24, 1980.
    Sutton G. Hilyard, Jr., and George A. Meier, III of Pitts, Eubanks & Ross, Orlando, for petitioners.
    Michael Maher and Eric A. Lanigan of Maher, Overchuck & Langa, Orlando, for respondents.
   PER CURIAM.

Affirmed. Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla. 1979).

ENGLAND, C. J., and ADKINS, SUND-BERG and HATCHETT, JJ., concur.

BOYD, OVERTON and ALDERMAN, JJ., dissent.


text:
    Dane T. GAFFORD, Appellant, v. STATE of Florida, Appellee.
    No. 48421.
    Supreme Court of Florida.
    June 12, 1980.
    Rehearing Denied Sept. 22, 1980.

      David J. Busch and Michael M. Corin, Asst. Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Patti L. Eng-lander, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is a direct appeal from the appellant Gafford’s conviction of first degree murder. A death sentence was imposed by the trial court following a jury advisory sentence of death. We have jurisdiction.

The relevant facts are as follows. Appellant, age 19, and four teenage girls, Barbara Dee Ferguson, age 15; Jennifer Denise Wright, age 14; Patty Whitmarsh, age 16; and Emmaline Long, age 17, along with the victim, James Holloway, drove in the victim’s automobile from Panama City Beach to Ebro, on what Holloway led the appellant and the girls to believe was the beginning of a trip to California. After Holloway consulted with a friend regarding carrying the girls to California, he informed the appellant and the girls that they would spend the night at a deserted house in West Bay owned by Holloway’s uncle and would continue the trip the next morning. Holloway’s decision to delay the trip to California, combined with Barbara Dee Ferguson’s desire to obtain his automobile and money, led her to plan with the other girls and the appellant to murder Holloway at the deserted house.

At the house, Barbara Dee Ferguson placed a knife underneath a couch cushion and disclosed its whereabouts to the appellant and his girl friend, Jennifer Wright. A plan was then formed to lure Holloway into a bedroom with one of the girls under the pretense of sexual intercourse. True to the plan, Holloway went into a bedroom with Barbara Dee Ferguson and Patty Whit-marsh, leaving Emmaline Long in the living room, while the appellant and his girl friend, Jennifer Wright, were in another of the bedrooms. While the parties were so located, Emmaline Long left the living room and brought to the appellant the knife which had been concealed under the couch cushion by Ferguson. The appellant insisted on having the handle of the knife covered before handling it and put on what he described as “electrical gloves” before accepting it. A few minutes later Ferguson called in a loud voice for the appellant to come and help, whereupon he went to the bedroom where he found Ferguson and Whitmarsh holding Holloway, who was naked, on his back on the bed. The victim, Holloway, was choked to death by appellant after Barbara Dee Ferguson had repeatedly kicked him in the face and Emmaline Long and the appellant had stabbed him with at least two knives. The corpse was placed in a closet following the murder, and the four girls and appellant left in the victim’s car with his money.

Trial Phase

The appellant first contends that the trial court, in seating the jury in this cause, failed to abide by the dictates of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Witherspoon prohib-' its the exclusion of potential jurors because of a generalized objection to the infliction of the death penalty. That decision allows the exclusion of prospective jurors who state unequivocally that they cannot make an impartial decision on guilt or innocence because capital punishment might be imposed or that they would never vote for the death penalty under any circumstance. We most recently applied the Witherspoon test in Magill v. Florida, 386 So.2d 1188 (Fla. 1980).

A review of the testimony of the five veniremen the appellant asserts were illegally excluded from jury service is enough to convince us that the trial judge met all Witherspoon standards.

The appellant also urges that since Florida now has a system of bifurcated trials in murder cases, a defendant is entitled in the guilt or innocence phase of the trial to a jury drawn from a cross-section of the community, including persons with such scruples regarding the death penalty as to render them irrevocably committed to voting against the death penalty. Appellant further asserts that such an arrangement may be accomplished by having all persons who appear for jury duty serve in the initial phase, with alternate jurors who would qualify under the Witherspoon standard to serve with them or in their stead during the second or penalty phase of the trial. We rejected this novel approach in Riley v. State, 366 So.2d 19 (Fla.1978), and reaffirm that holding.

The indictment alleges that the appellant did “with a premeditated design” effect the death of James L. Holloway or while in the perpetration of or in an attempt to perpetrate a robbery did kill James L. Holloway, which effectively charges both first-degree murder by premeditation and by felony murder, the felony being robbery. The appellant contends that the evidence is insufficient as to the latter felony murder theory of prosecution and, therefore, he urges he is entitled to a new trial on the premeditation theory alone. We reject this contention. We find there is sufficient evidence to support a verdict of guilty of murder from a finding of premeditated design and for murder committed in the perpetration of a felony. Premeditation is established by the record which reflects the decision to kill Holloway was formed before the group reached the abandoned house, the appellant would not touch the knife until he put on gloves, and, upon call, he immediately entered the room and began strangling the victim. Support for a finding of felony murder is found in the appellant’s statement wherein he said:

She [Barbara Dee Ferguson] said the reason was that he lied to us and the only thing that he wanted was just a piece of ass, and wanted his car and get what money he had. I still don’t know how much money he had, that they got off him. I had about two or three dollars.

Significantly, immediately following the murder the appellant and the girls did precisely what they had set out to do, that is, they took the victim’s money and his car. Additionally, the appellant’s reliance on Long v. State, 92 So.2d 259 (Fla.1957), regarding charges brought conjunctively and disjunctively, is misplaced. It is inapplicable to the case at bar, and this argument has been previously rejected by the courts of this state. See Larry v. State, 104 So.2d 352 (Fla.1958); Hargrett v. State, 255 So.2d 298 (Fla. 3d DCA 1971); Barton v. State, 193 So.2d 618 (Fla. 2d DCA 1966), cert. denied, 201 So.2d 459 (Fla.1967). We find no reversible error in the record and affirm the conviction.

Sentencing Phase

Our final responsibility in this case is to review the imposition of the death sentence. In imposing the death sentence, the trial judge found the following aggravating circumstances to exist under the provisions of section 921.141, Florida Statutes:

1. The capital felony was committed while the Defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, the offense of robbery.
2. The capital felony was committed for pecuniary gain.
3. The capital felony was especially heinous, atrocious, or cruel. .

The trial judge also found the following mitigating circumstances to exist:

1. The Defendant has no significant history of prior criminal activity. .
2. The age of the Defendant [nineteen years] at the time of the crime. .

In imposing the death sentence, the trial judge did not have the benefit of our subsequent decisions in Gibson v. State, 351 So.2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978), and Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed:2d 1065 (1977). In Provence we expressed our concern about the problem of doubling up of aggravating factors under the circumstances of a robbery murder, saying:

Consequently, one who commits a capital crime in the course of a robbery will always begin with two aggravating circumstances against him while those who commit such a crime in the course of any other enumerated felony will not be similarly disadvantaged. Mindful that our decision in death penalty cases must result from more than a simple summing of aggravating and mitigating circumstances, State v. Dixon, 283 So.2d 1, 10 (Fla.1973), we believe that Provence’s pecuniary motive at the time of the murder constitutes only one factor which we must consider in this case.

337 So.2d at 786. In Brown v. State, 381 So.2d 690 (Fla.1980), and Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979), we recognized that such a doubling up of aggravating circumstances does not always require resentencing by the trial judge. We find, however, that in the instant case the doubling up of the aggravating factors coupled with the fact that the trial court found two mitigating circumstances requires us to remand under the doctrine we expressed in Provence and Gibson.

Subsequent to the initial imposition of the death sentence in this case, one of the appellant’s accomplices received immunity, one was found guilty of second-degree murder, and the other two were allowed to plead guilty to manslaughter. Upon remand, this case will be in the same posture as it would have been if the trial court had not yet imposed sentence after the jury’s recommendation. Depending upon the circumstances of a particular case, the sentence of an accomplice may affect the imposition of a death sentence. Salvatore v. State, 366 So.2d 745 (Fla.1978); Smith v. State, 365 So.2d 704 (Fla.1978); Slater v. State, 316 So.2d 539 (Fla.1975). Therefore, in the resentencing proceeding, the trial court may appropriately consider the sentences of the appellant’s accomplices.

For the reasons expressed, we remand this case to the trial court for a new sentencing proceeding before the trial judge, without the necessity of receiving a new jury advisory sentence.

In conclusion, we affirm the conviction and remand for resentencing.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

      . Art. V, § 3(b)(1), Fla.Const.

      . As to juror Grady, the following discussion occurred:
      THE COURT: Well, the question is whether or not you presently hold such beliefs that under no circumstances could you vote for the infliction of the death penalty. If you know that you would not, then of course your answer would be that you know that you would not.
      JUROR GRADY: 1 guess I know I would not.
      THE COURT: You know that you would not. In other words, you hold such beliefs of regardless of for what reason, philosophically or religious belief or what have you, but you know that under no circumstances could you vote for the infliction of the death penalty. Is that correct?
      JUROR GRADY: If there has to be a cut and dried answer, yes, sir, that’s correct.
      THE COURT: All right, I believe that would be sufficient for disqualification. Mr. Grady, you will be excused also. Defendant has objected, let the record show.
      As to juror Jernigan, the following discussion occurred:
      MR. NABORS: You would be hesitant to impose the death penalty.
      JUROR JERNIGAN: Yes.
      MR. NABORS: Your Honor, I object to the motion to remove her for cause as we clarified her answers to the extent that she qualifies to sit.
      THE COURT: Mr. Jones, do you have any other questions?
      MR. JONES: Let me ask you one question. And you’re the only one who can be fair to your God and your conscience. Isn’t it true that you could not vote the death penalty for this young man seated here?
      JUROR JERNIGAN: Yes, sir, and I really don’t know — I haven’t kept up with it in the newspaper and I don’t know that much about it.
      MR. JONES: So what you’re telling Judge Smith is the best you can search your conscience right now is you would not vote for the death penalty on this 19-year-old boy.
      JUROR JERNIGAN: No, I could not do it.
      MR. JONES: Renew our challenge.
      THE COURT: The challenge for cause will be granted.
      As to juror Chrismer, the following discussion occurred:
      MR. JONES: Mr. Chrismer, I’ve asked the other new jurors and I think I just will ask you the question first. Do you believe in the death penalty?
      JUROR WOODROW E. CHRISMER: No, sir, I do not.
      MR. JONES: Under no circumstances would you vote for the death penalty.
      JUROR CHRISMER: No, sir, I wouldn’t.
      MR. JONES: Court please, State challenges Mr. Chrismer for cause.
      THE COURT: Any questions, Mr. Nabors?
      MR. NABORS: Yes, sir. Notwithstanding your opposition to the death penalty, Mr. Chrismer, do you know of any reason whatsoever why you could not sit in judgment of the defendant with respect to the guilt or innocence of the crime charged?
      JUROR CHRISMER: No.
      MR. NABORS: Well, I object to him being stricken for cause, Your Honor. I think I’ve made my objection clear.
      THE COURT: Mr. Chrismer, it appeared to me from the questions that were asked by Mr. Jones and your answers that under no circumstances would you vote for the infliction of the death penalty. Is that your attitude and belief?
      JUROR CHRISMER: That’s right, sir.
      As to juror Johnson, the following discussion occurred:
      MR. JONES: In other words, under no circumstances could you vote guilty in this case knowing that the defendant might receive the electric chair.
      JUROR . . . JOHNSON: Mr. Jones, I’m an R.N. and I’ve spent 30 years saving lives. I don’t believe I could do it.
      ♦ * s(s * sfc *
      MR. NABORS: Can you conceive of a circumstance under which you would invoke the death penalty?
      JUROR . . . JOHNSON: I don’t believe I could.
      MR. NABORS: But you’re confident that you are able to sit in judgment on Dane Gafford with respect to his innocence or guilt.
      JUROR . . . JOHNSON: Yes, sir.
      MR. NABORS: I object to her removal for cause.
      THE COURT: Mrs. Johnson, could you render a fair and impartial verdict on guilt or innocence of the defendant with knowledge that a verdict of guilty might result in the infliction of the death penalty?
      JUROR . . . JOHNSON: If that was the only choice, I couldn’t.
      THE COURT: I’m sorry, I didn’t understand you.
      JUROR . . . JOHNSON: I said if that were the only choice, I could not.
      THE COURT: If that were the only choice.
      JUROR . . . JOHNSON: Yes.
      THE COURT: Well, of course I think the way the question is framed it wouldn’t be the only choice. It would be a choice. Would your beliefs in regard to the death penalty be such that it would influence or would likely influence your verdict on guilt or innocence?
      JUROR . . . JOHNSON: I believe it would.
      THE COURT: You believe that it would.
      JUROR . . . JOHNSON: Yes.
      THE COURT: All right. Challenge — excuse me.
      MR. NABORS: Mrs. Johnson, did you understand the supplementary instruction from the bench, that is that we may or may not become involved with the bifurcated trial, that the first aspect of trial will be to determine the guilt or innocence of Dane Gafford.
      JUROR . . . JOHNSON: Yes.
      MR. NABORS: If you should determine beyond and to the exclusion of a reasonable doubt that Dane was guilty of the crime, you would then set to recommend either the death penalty or mercy. I understand you have a preconceived notion against the death penalty, but that notion would not carry over, Mrs. Johnson, through the first aspect of the trial. You would be able to sit as a fair and impartial juror and weigh the evidence which comes from the stand fairly and impartially with respect to the question of guilt or innocence. Even though you oppose the death penalty you would be able to handle the first aspect of the trial.
      JUROR . . . JOHNSON: Yes.
      MR. NABORS: And notwithstanding your objections to the death penalty, you would be able to sit and weigh the evidence and return a verdict, either guilty or not guilty.
      JUROR . . . JOHNSON: Yes.
      As to juror Jones, the following discussion occurred:
      MR. NABORS: Second question: Is there any reason whatsoever that you know of why you could not be a fair and impartial juror with respect to whether or not the defendant is guilty or innocent of the crime as charged apart from the second aspect perhaps of the trial?
      JUROR JONES: No.
      MR. NABORS: Is it your answer that you could sit fairly with respect to his guilt or innocence?
      JUROR JONES: Yes.
      MR. JONES: One more question, Your Honor. Mrs. Jones, we’re only trying to be fair and I don’t want to try to trick you, but could you vote guilty knowing that there was a possibility the man would get the death penalty regardless of whether you wanted it or not?
      JUROR JONES: I could not.
      MR. JONES: Thank you. That’s the answer.


author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. Cameron TAIT, Respondent.
    No. 55354.
    Supreme Court of Florida.
    June 12, 1980.
    Rehearing Denied Sept. 17, 1980.
    Jim Smith, Atty. Gen., and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz and Richard B. Greene, Asst. Public Defenders, West Palm Beach, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision of the district court of appeal, Tait v. State, 362 So.2d 292 (Fla.4th DCA 1978). The respondent was convicted of murder in the second degree and he appealed. The district court reversed and remanded for a new trial, holding that the respondent’s motion to act as his own co-counsel should have been granted and that the trial court should have held a hearing to determine respondent’s competence to stand trial. The district court certified that its decision passed upon a question of great public interest: whether a criminal defendant has an absolute right to act as his own co-counsel under article I, section 16, Florida Constitution. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Michael Byer and Kristine Cassiano were sharing an apartment in Fort Lauderdale. They occupied it as sub-lessees of Craig McConnell, who resided in Virginia. McConnell contacted Byer and Cassiano and asked them to provide respondent Cameron Tait with a place to stay. Tait was an actor. The purpose of his visit to Fort Lauderdale was to have a vacation, rest, and study his lines for an upcoming play. The three got along well for several days. Tait spent most of his time studying his lines and he consumed large amounts of alcohol.

On the evening of February 28, 1976, Tait, who had been drinking all day, began to argue with Byer. He went into a tirade which Byer tried to ignore. Without any provocation from Byer, Tait continued to berate him. He said he did not like the way Byer treated Cassiano. Finally, Tait shot Byer repeatedly with a pistol.

The respondent’s defense was insanity. He did not question his competence to stand trial. He presented the testimony of two psychiatrists who stated their opinions that at the time of the shooting Tait was suffering from an acute psychotic episode brought on by excessive consumption of alcohol. This temporary mental illness, they said, was of such a degree that Tait did not know the difference between right and wrong. These conclusions were based on examinations of Tait, review of his statements to police, and his history of violent behavior associated with excessive drinking. For his history, the psychiatrists relied on their interviews with Tait and the deposition of a woman he previously lived with. Her testimony related a number of incidents in which violent behavior was followed by blackouts and subsequent inability to remember the incident.

Prior to trial, the respondent requested permission to act as co-counsel with his appointed public defender. The trial court denied the request and the district court held that this was error.

The district court based its holding on language in article I, section 16 of the Florida Constitution, providing, “In all criminal prosecutions the accused . . . shall have the right . . . to be heard in person, by counsel, or both. . . . ” The court indicated that it found the words “or both” to be controlling on this issue.

The district court found support for its holding, however, in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In that case the United States Supreme Court construed the sixth amendment right to the assistance of counsel as granting “to the accused personally the right to make his defense.” Id. at 819, 95 S.Ct. at 2533. The Court said that “[t]he right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage.” Id. at 834, 95 S.Ct. at 2540-2541. Although recognizing this right of self-representation, however, the Faretta decision does not establish a right to the “hybrid” form of representation which respondent sought. The sixth amendment does not guarantee that the accused can make his own defense personally and have the assistance of counsel. See, e. g., United States v. Daniels, 572 F.2d 535 (5th Cir. 1978); United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1978); United States v. Lang, 527 F.2d 1264 (4th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1127, 47 L.Ed.2d 328 (1976); United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976); United States v. Wolfish, 525 F.2d 457 (2d Cir. 1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976).

The guaranty of the Declaration of Rights of the Florida Constitution, that “[i]n all criminal prosecutions the accused shall have the right ... to be heard in person, by counsel, or both . ,” has been interpreted to include a qualified, not an absolute, right to self-representation. When the accused is represented by counsel, affording him the privilege of addressing the court or the jury in person is a matter for the sound discretion of the court. Powell v. State, 206 So.2d 47 (Fla. 4th DCA 1968); Thompson v. State, 194 So.2d 649 (Fla. 2d DCA 1967). Powell and Thompson were decided under section 11 of the Declaration of Rights of the Constitution of 1885. The fact that the people framed article I, section 16 of the Constitution of 1968 in the same language gives strong support to the proposition that the construction provided by Powell and Thompson is correct. We conclude that article I, section 16 does not embody a right of one accused of crime to representation both by counsel and by himself. We answer the certified question in the negative and hold that the district court erred in reversing the conviction on this ground.

Although reversing and remanded for a new trial on the ground that respondent’s fundamental right to be his co-counsel was violated, the district court also allowed that the trial court had committed reversible error in failing to order a hearing to determine the respondent’s competence to stand trial. We should not limit ourselves to consideration of the certified question only, but should also review this other ground for the decision below. Zirin v. Charles Pfizer & Co., 128 So.2d 594 (Fla.1961).

The district court said that under Florida Rule of Criminal Procedure 3.210, which requires a hearing if there is reasonable ground to believe the defendant incompetent to stand trial, a hearing should have been held since “there was sufficient testimony and reports by the court ordered psychiatrists to raise such a reasonable doubt.” 362 So.2d at 294. The court cited Fowler v. State, 255 So.2d 513 (Fla.1971).

Florida Rule of Criminal Procedure 3.210, as it stood at the time of the trial in this jase, contained separate provisions pertaining to insanity at time of trial, insanity at time of the offense, and the appointment of expert witnesses to be summoned to testify if the issue of insanity at the time of the offense is an issue in the cause.

At trial the respondent relied on the defense of insanity and thus placed in issue his mental condition at the time of the offense. He did not, however, move for a hearing to determine his competence to stand trial. After the filing of the notice of insanity as a defense, as required by Rule 3.210(b), the trial court, pursuant to Rule 3.210(c), appointed three psychiatrists to examine the respondent, report their findings, and testify at trial. Rule 3.210(a) provides that if before or during trial the court, of its own motion or on motion of defense counsel, has reasonable ground to believe the defendant is insane, it shall hold a hearing to determine the defendant’s mental condition. The issue here is whether any information coming before the court before or during trial provided reasonable ground to believe that the defendant’s mental condition was such that he was incompetent. We conclude that there was nothing before the court sufficient to raise a reasonable doubt as to the respondent’s mental competence at trial. The trial court was not required to order a hearing of its own motion.

The rule draws a clear distinction between incompetence at the time of trial and insanity at the time of the offense. The judge’s knowledge of results of examinations ordered in connection with the defendant’s reliance on the defense of insanity may or may not give rise to reasonable doubt of his competence to stand trial. Here, none of the reports or testimony before the court before or during trial gave rise to reasonable ground to believe the defendant incompetent to stand trial.

The district court cited Fowler v. State, 255 So.2d 513 (Fla.1971), in support of its decision that the trial court should have held a hearing. That case is distinguishable, however. In Fowler, the defense moved for a hearing to determine the defendant’s competence to stand trial. Two court-appointed experts concluded that the defendant was not competent to stand trial. This Court held that it was error to deny a hearing on the issue, since the rule requires one when the court has reasonable ground to believe that the defendant is insane. While the district court in the instant case was correct in concluding that the propriety of a hearing to determine competence to stand trial does not depend on the making of a motion by the defendant, here there was nothing presented or available to the court which would constitute reasonable ground to conclude that at the time of trial the defendant was insane.

Thus the state’s suggestion that the absence of a request for a hearing on the respondent’s competence to stand trial was a waiver is erroneous. The rule requires the trial court to hold a hearing on competence if reasonable grounds exist. By so providing, our rule protects the fourteenth amendment due process right of the accused not to be tried while mentally incompetent. “[T]he failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.” Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975). See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The indications of incompetence in the present case, if any, did not begin to approach the level which prompted the United States Supreme Court to grant relief in Drope v. Missouri. The trial court was not required to order a hearing.

Both portions of the district court decision are quashed. The certified question is answered in the negative. The case is remanded to the district court with directions that it reinstate the circuit court’s judgment.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

      . Section 782.04(2), Florida Statutes (1975):
      The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.


author: OVERTON, Justice. BOYD, Justice, ALDERMAN, Justice,

text:
    TRAVELERS INSURANCE COMPANY, Petitioner, v. Luisa RODRIGUEZ, Respondent. TRAVELERS INDEMNITY COMPANY, Petitioner, v. Gregg LINDSAY, Respondent. Luisa RODRIGUEZ, Petitioner, v. TRAVELERS INSURANCE COMPANY, Respondent.
    Nos. 56563, 56789 and 56591.
    Supreme Court of Florida.
    June 12, 1980.
    Rehearing Denied Sept. 19, 1980.

      Amy Shield Levin of Adams & Ward, Miami, for Travelers Insurance Company and Travelers Indemnity Company, petitioner/respondent.
    Regina F. Zelonker of Stabinski, Funt, Levine & Vega, and Edward A. Perse of Horton, Perse & Ginsberg and Joe Garrett, Miami, for Luisa Rodriguez and Gregg Lindsay, respondents/petitioners.
    Larry Klein, Chairman for The Academy of Florida Trial Lawyers, West Palm Beach, in support of Luisa Rodriguez, amicus curiae.
   OVERTON, Justice.

These causes have been consolidated to review by certiorari decisions of the Third District Court of Appeal, reported as Rodriguez v. Travelers Insurance Co., 367 So.2d 687 (Fla. 3d DCA 1979), and Lindsay v. Travelers Indemnity Co., 368 So.2d 605 (Fla. 3d DCA 1979). In its Rodriguez opinion, the district court expressly recognized conflict with Catches v. Government Employees Insurance Co., 318 So.2d 552 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 41 (Fla. 1976), and Reliance Insurance Co. v. Kilby, 336 So.2d 629 (Fla. 4th DCA 1976). In its Lindsay decision, the Third District reversed the trial court upon the authority of its recently decided Rodriguez decision. We agree there is conflict and, consequently, we have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Both the Rodriguez and the Lindsay cases concern the statutory authority providing an insured attorney’s fees in a proceeding for the equitable distribution of personal injury protection benefits under the provisions of section 627.736(3)(b), Florida Statutes (1975). The trial court in both Rodriguez and Lindsay found there was no bad faith by the carrier, Travelers, and denied attorney’s fees. The district court held in Rodriguez:

[Wjhen . . . the trial judge awards the p. i. p. carrier less than what it has demanded in equitable distribution, the insured is entitled to an attorney’s fee under § 627.428(1), Fla.Stat. (1975). . .
. [FJees must be awarded when the statutory prerequisites are met, regardless of whether the insurance company has acted in bad faith or not.

367 So.2d at 690.

We approve the Rodriguez opinion and conclude that section 627.736(8), which reads: “With respect to any dispute under the provisions of §§ 627.730-627.741 between the insured and the insurer, the provisions of § 627.428 shall apply” [emphasis supplied], includes personal injury protection equitable distribution proceedings in the provisions of section 627.736(3)(b) as that section existed at the time of this incident. We emphasize that these equitable distribution proceedings for personal injury protection no longer exist since this statute as it pertained to this type of proceeding was repealed effective October 1, 1976. Ch. 76-266, § 4, Laws of Fla.

Although we approve the Rodriguez decision, we find we must quash the Lindsay decision because the district court failed to properly apply the rule of law adopted in Rodriguez. In Lindsay, the insured offered $150 to the carrier prior to filing the complaint for equitable distribution. The carrier responded immediately after the complaint for equitable distribution was filed, advising it was willing to accept forty percent of its personal injury protection lien or $479.08. The insured refused, and the trial court after final hearing set the figure at the exact amount the carrier offered. Under these circumstances we find Lindsay was not, in the words of the district court in Rodriguez, forced to recover, “by judicial action, any amount in equitable distribution which his p. i. p. carrier was unwilling voluntarily to give him . . . .” 367 So.2d at 691. We therefore quash the decision of the district court in Lindsay to the extent it remands for further proceedings to fix an attorney’s fee.

A second issue in the Rodriguez case concerns a claim by the insured, Rodriguez, that Travelers, as carrier, should be required to equitably adjust medical payment benefits which the carrier was awarded under the express subrogation provisions of the policy. For the reasons expressed by the district court, we reject this contention and approve the decision of the district court.

In summary, we approve the decision of the district court in Rodriguez on both issues but quash the decision of the district court in Lindsay to the extent it remands to the trial court to fix attorney’s fees.

It is so ordered.

ENGLAND, C. J., and ADKINS and SUNDBERG, JJ., concur.

BOYD and ALDERMAN, JJ., concur in part and dissent in part with opinions.

McDONALD, j., dissents.

BOYD, Justice,

concurring in part and dissenting in part.

I concur with the majority opinion affirming the decision of the district court requiring payment of attorneys’ fees in the Rodriguez case and dissent from that portion of the opinion which disallows payment of fees in the Lindsay case.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I dissent from the approval of the decision of the district court in Rodriguez v. Travelers Insurance Co. because I disagree with the district court’s holding that under former section 627.736(3)(b), providing for equitable distribution of personal injury protection benefits, attorney’s fees must be awarded when statutory prerequisites are met regardless of whether or not the insurance company has acted in bad faith. Rather, I agree with the view announced by the District Court of Appeal, First District, in Catches v. Government Employees Insurance Co., 318 So.2d 552 (Fla. 1st DCA 1974), cert. denied, 333 So.2d 41 (Fla.1976), and the District Court of Appeal, Fourth District, in Reliance Insurance Co. v. Kilby, 336 So.2d 629 (Fla. 4th DCA 1976), that in an equitable distribution situation pursuant to former section 627.736(3)(b), an insured is entitled to an award of attorney’s fees when the insurer refuses or fails to negotiate in good faith.

I concur in result, however, with the quashal of the district court’s remand for further proceedings fixing attorney’s fees in Lindsay v. Travelers Indemnity Co.