text:
    Eugene FULLER, alias v. STATE.
    1 Dlv. 109.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 17, 1980.

      Henry Sanders, Selma, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Eugene Fuller, alias Gene Fuller, was convicted of the offense of child molestation. The trial court set sentence at five years imprisonment in the penitentiary.

The incident giving rise to the instant case occurred during March of 1979. According to the testimony of the victim, a ten year old boy, he and Fuller, the appellant, were going down a “camp road” in Clarke County when the appellant asked him to unbutton his pants. The appellant thereafter fondled the young boy’s genitals while masturbating to the point of ejaculation.

Two other young men testified, over defense counsel’s objections, that the appellant had also fondled their genitals during March of 1979.

Also, one witness, Byrd Thompson, testified, over objection, that about a week prior to trial the appellant offered to pay him twenty dollars to bribe the young victims so that they would not testify against appellant at trial.

I

Appellant argues on appeal that the trial judge committed reversible error in allowing testimony into evidence of these separate offenses committed by the appellant. Appellant maintains first that the trial judge improperly allowed two young men to testify regarding appellant’s acts of sexual misconduct with them.

We view Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973), as controlling on this issue and find no error in the trial court’s ruling in admitting this testimony as bearing on the appellant’s intent.

II

Appellant also insists that error occurred at trial by allowing the testimony of Byrd Thompson regarding appellant’s alleged attempt to bribe the witnesses. There is no merit in this argument.

As noted by Judge Bowen in Pope v. State, Ala.Cr.App., 365 So.2d 369, 373 (1978):

“Evidence tending to establish the guilt of the accused is not rendered incompetent because it may tend to show his guilt of another offense ... An accused’s acts, declarations and conduct against interest are always competent evidence . . . Any conduct or declaration of an accused having a relation to the offense charged, indicating a consciousness of guilt, is admissible as evidence against him.” (Citations omitted.)

There being no error established by the record in this case, such is due to be and is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex parte Eugene FULLER. (In re Eugene Fuller, alias v. State of Alabama).
    79-772.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   JONES, Justice.

Writ denied. No opinion.

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


author: DeCARLO, Judge.

text:
    Amos WILLIAMS v. STATE.
    3 Div. 475.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 17, 1980.

      Frank L. Thiemonge, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jimmy L. DeBardelaben, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Robbery; life imprisonment.

A motion has been filed by the State to strike the court reporter’s transcript of evidence and to dismiss the appeal on the basis that the transcript was not filed with the clerk of the circuit court within the time allowed by law. Under Rule 2, A.R. A.P., we exercise our discretion and review the record.

The facts in this case, with the following exceptions, are the same as those reported in Williams v. State, Ala.Cr.App., 384 So.2d 1205, released this date.

Daisy Johnson testified that the register she was operating at the time of the robbery contained money and that the money belonged to Delchamps’ store. She testified, on cross-examination, as follows:

“Q. And there was money in that cash register, is that right?
“A. Yes.
“Q. Who’s money was that?
“A. Delchamps.
“Q. Are you aware that the indictment in this case charges that the money that was taken that night was the property of Daisy Johnson?
“A. Well, it was Delchamps’ money, but I was running the register.
“Q. But you did not own the money?
“A. (No response).
“Q. Have you owned any money in that register, any money of your own?
“A. My personal money?
“Q. Yes, ma’am.
“A. No.”

During further questioning, Johnson testified:

“Q. Ms. Johnson, again on the cash register, were you in charge of that cash register and the money contained therein?
“A. Yes, I was.
“Q. And you were responsible for it?
“A. Then it was in your possession.”

Wayne Bullard, the assistant manager of Delchamps, testified that after he arrived at the store on October 9, 1974, he checked the cash registers and determined that $630.00 was missing from the cash register operated by Daisy Johnson. Further, he stated that no money was missing from the other cash registers.

The remaining testimony in this case is precisely the same as that given in Williams v. State, supra, and we will not burden this opinion by repeating those facts.

I

The appellant asserts that there was a material variance in the allegations of the indictment and the proof offered by the State. He maintains, first, that the State failed to prove that the property taken belonged to Daisy Johnson, and, second, that the State failed to prove that the amount taken was in fact $630.00.

The law in Alabama as enunciated in Hobbie v. State, Ala.Cr.App., 365 So.2d 685, is well settled that the ownership of stolen property may be laid in the party in possession either as the owner, bailee or agent. No material variance exists where the indictment charges that the property taken was that of a named individual when the proof later shows that the property in reality belonged to another or to a corporation. The indictment is proper when it shows the party in possession. Hobbie, supra.

In the present case, as can be seen from the quoted portions of the record, Johnson stated that the money taken from the register belonged to Delchamps, but she added that she was in charge of the register and that the money was in her possession. Under these facts, we fail to see any material variance.

Regarding the specific amount of money taken, the State proved that the assistant manager, after he checked the register assigned to Mrs. Johnson, determined that $630.00 had been taken. As Judge Cates indicated in Duncan v. State, 46 Ala.App. 165, 239 So.2d 237, although the State, in a robbery, may not be able to prove the exact amount taken, it is sufficient if the State shows that something of value was taken by force.

Under the facts in the case at bar, the State did prove that a robbery had occurred, that the men who committed the robbery were armed and that they took money by force and violence. Also, the State showed, through Daisy Johnson, that a man armed with a pistol had taken money from the register after pointing the pistol at her. See also, Mays v. State, Ala.Cr. App., 335 So.2d 246.

Based on the foregoing, it is our judgment that the defendant’s motion to exclude the State’s evidence was properly overruled.

II

The appellant contends that the trial court erred in “striking his plea of autrefois convict.” He argues that he was put in jeopardy a second time in the present case when he was tried for robbery after being previously convicted of first degree murder, the two offenses growing out of events from the same transaction.

The Alabama Supreme Court has addressed the identical issue in Colston v. State, Ala.Cr.App., 350 So.2d 337. In Colston, the appellant, first, was tried and convicted for robbing a grocery store, and, later, was tried and convicted for first degree murder of the store’s cashier. Colston raised the issue of double jeopardy, and the Supreme Court held that the robbery for which Colston was previously convicted was different in law and fact from the murder for which there was a later trial and conviction.

The Alabama Supreme Court, in relying on Racine v. State, 291 Ala. 684, 286 So.2d 896, pointed out the rule:

“A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law.” [Citations omitted].

See also, Clift v. State, Ala.Cr.App., 352 So.2d 836, and Brown v. State, Ala.Cr.App., 367 So.2d 557.

From the facts in the present case and those recited in Williams v. State, supra, it is clear that the appellant was a participant in the robbery of the Del-champs’ store in Montgomery, Alabama. Further, there was evidence that, due to his assistance, money was taken from the register of Daisy Johnson. Also, there was evidence of aiding and abetting in the killing of Crawford Herring.

From these facts, it is our judgment that the appellant’s plea of autrefois convict was properly dismissed and that the plea of double jeopardy, under the facts of this case, is in conflict with the law.

III

The appellant insists that, because he received life sentences in the murder case, Ala.Cr.App., 384 So. 1205, and in the robbery case, [the case under review] these sentences should have been designated as concurrent sentences.

In support of this contention, he has cited Burress v. State, 56 Ala.App. 414, 321 So.2d 752; Yelton v. State, 56 Ala.App. 272, 321 So.2d 234, and Gray v. State, Ala.Cr.App., 338 So.2d 444.

The law in Alabama is clear on the designation of concurrent sentences. The Alabama Supreme Court in Clift v. State, supra, observed:

“[W]hether a sentence for a conviction of crime is to be consecutive or concurrent generally is a matter addressed to the sound discretion of the trial judge.”

In Luquire v. Holman, 279 Ala. 203, 183 So.2d 799, the Alabama Supreme Court noted:

“When a convict is sentenced to imprisonment in the penitentiary on two or more convictions, unless it is specifically ordered in the judgment entry that such sentences be served concurrently, such sentences shall be cumulative and shall be served consecutively.”

Therefore, in the absence of some wording denoting a concurrent sentence, the appellant’s sentences of life for murder and, in the present case, life for robbery are consecutive sentences. Bradley v. State, 53 Ala.App. 483, 301 So.2d 247; Lee v. State, Ala.Cr.App., 349 So.2d 138.

IV

The appellant has raised in this appeal, several of the questions which he had previously raised in Williams v. State, supra Ala.Cr.App., 384 So.2d 1205. These questions have been addressed and will not be repeated in the present opinion.

We have examined this record and transcript of evidence and have found no error prejudicial to the defendant. Therefore, the judgment of conviction by the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Amos WILLIAMS. (Re: Amos Williams v. State of Alabama).
    79-769.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   BEATTY, Justice.

WRIT DENIED-NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Herbert SKIPPER v. STATE.
    4 Div. 781.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 30, 1980.

      Randy C. Brackin of Martin & Brackin, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty of the possession of marijuana for his personal use only and fixed his punishment at a fine of $750.00. The trial court imposed additional punishment of imprisonment in the Houston County Jail for six months.

The only issue raised by appellant is one that was first raised by defendant in pretrial motion to suppress evidence, which the trial court overruled. The evidence sought to be suppressed consisted of testimony of officers pertaining to their discovery on the land of defendant of some marijuana in the form of green plants growing thereon, their procurement of some of such plants and having them chemically examined and their production of some of such plants at the trial of the case. Appellant says that as the officers had no search warrant, as to which there is no dispute, there was a violation of defendant’s right to security against unreasonable searches and seizures guaranteed by the Fourth Amendment to the Constitution of the United States and Art. I, Sec. 5 of the Constitution of Alabama of 1901, which inhibited the admission in evidence of their testimony. It is to be noted that in the Federal Constitution the right of security of the people against unreasonable searches and seizures is “in their persons, houses, papers and effects,” while in the Alabama Constitution it is “in their persons, houses, papers, and possessions.”

It has been definitely settled in Alabama that the use of the word, “possessions,” in the Alabama Constitution as distinguished from the word, “effects,” does not manifest any intent to enlarge the protection against unreasonable search and seizure provided by the United States Constitution. This was decided in Brown v. State, 48 Ala.App. 84, 261 So.2d 914 (1971), aff’d, 288 Ala. 732, 261 So.2d 919 (1972). In so holding the Court of Criminal Appeals also held and stated therein at 261 So.2d 916, 917:

“It does not appear that the Appellate Courts of Alabama have ever extended the protection afforded by the constitutional provision, supra, to open fields or pasture land beyond the curtilage of the home or business establishment. The appellant argues that the word ‘possession’ in the said constitutional provision should be held to include more than houses, homes, and the curtilage thereof and be broad enough to include land where there is occupancy and full dominion exercised over it. The Supreme Courts of Tennessee and Mississippi have adopted this view, holding in cases involving the operation of stills in open lands, beyond the curtilage of the defendant’s home, that evidence secured without a search warrant, was illegal and inadmissible. Barnard v. State, 155 Miss. 390, 124 So. 479; Welch v. State, 154 Tenn. 60, 289 S.W. 510.
“However, in the cases of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; Atwell v. United States, 5 Cir., 414 F.2d 136; Stark v. United States, 8 Cir., 44 F.2d 946; Koth v. United States, 9 Cir., 16 F.2d 59, the federal courts have held that the protection of the 4th Amendment to the Constitution of the United States does not extend to open fields.
“Our research indicates that the present weight of authority, state and federal courts, supports the above cited cases.
“This court sees no good reason to depart from a time-honored understanding of the Bar and Courts that Article I, § 5, Constitution of 1901 does not extend to open land outside of the curtilage, nor do we think that the framers of the Constitution of 1901 intended it to be so inclusive. We prefer to follow the rule laid down, supra, in the Federal Courts, and hold that the search of the pasture land . was not illegal and the court was not in error in overruling the motion to exclude this evidence.”

In finding defendant guilty of possession of marijuana for his personal use only, the jury found defendant guilty of a misdemeanor only, which is a lesser included offense of the felony with which he was charged in the indictment that contained no reference to “personal use only.” Code of Alabama 1975, § 20-2-70; Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760 (1975).

The undisputed evidence shows that marijuana plants were found upon defendant’s land and that the land, at the time, where all of the marijuana was found, was under the actual dominion of defendant. There is irreconcilable conflict between the testimony of witnesses for the State and that of defendant and his wife as to his knowledge of the presence of the marijuana growing on his land.

On the hearing of the motion to suppress, the only evidence presented was that of the movant, consisting of the testimony of two law enforcement officers, Leroy Wood and Gerald Mondy. The same two officers testified on behalf of the State on the trial before the jury. Their testimony on the hearing of the motion to suppress consists of approximately sixty-four pages of the transcript. During such hearing, defendant utilized a previously prepared plat, purportedly drawn to scale, of the area in which the marijuana was found and some of the environs thereof.

In appellant’s STATEMENT OF THE ISSUES, he expressly divides it into two parts:

“A. Should the Plain View Doctrine apply where the initial intrusion is unlawful?
“B. Should the Open Field Doctrine apply to property within the curtilage of the dwelling?”

It seems that appellant argues that should either question A or question B be answered in the negative he supports his position that there was an unreasonable search and seizure. We do not agree, as our discussion hereinafter shows, but we will proceed to consider and discuss under an appropriate heading each of said questions.

“A”

Appellant correctly takes the position that the “Plain View Doctrine” does not apply where there is no justification for the intrusion. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Herrin v. State, Ala.Cr.App., 349 So.2d 103, cert. denied, 349 So.2d 110 (1977); Simpson v. State, 51 Ala.App. 279, 284 So.2d 734 (1973). Although there was considerable discussion and evidence pertaining to the question of the plainness of view of the growing marijuana, an answer to the question whether there was a violation of defendant’s right to security against an unreasonable search and seizure does not turn, in whole or in part, upon the plain view doctrine. This is true even though it appears that the officers in their testimony indicated that they were relying upon the plain view doctrine.

Application of the plain view doctrine as one of the six exceptions to the rule requiring a search warrant prior to a search and seizure presupposes a search either of the person or a search or seizure of property within the meaning of the terms “houses, papers and effects,” as employed in the United States Constitution, or “houses, papers, and possessions,” as used in the Alabama Constitution. In none of the cases just cited was there an open field. There was no occasion for the consideration of the open fields doctrine. The open fields doctrine does not give rise to an exception to the requirement that a search warrant be obtained before a search is made of the kinds of property covered by pertinent Constitutional provision. The open fields doctrine constitutes an established principle in Alabama and in most jurisdictions, including the jurisdiction of United States Courts, to the effect that open fields do not come within the coverage of the quoted Constitutional provisions as to unreasonable searches and seizures.

The plain view doctrine and the open fields doctrine have separate and distinct fields of operation, and the requirements for the application of the one are not the same as the requirements for the application of the other. Resolution of the question whether there was an unreasonable search or seizure in this case hinges upon whether the land upon which the marijuana was found was such as to make applicable the open fields doctrine. We now turn to that particular issue.

“B”

Appellant is correct in his argument that the open fields doctrine does not apply “to property within the curtilage of the dwelling,” and thereby gives a negative answer to the issue formulated by him and lettered “B.” The correctness of this position is clearly shown in Whistenant v. State, 50 Ala.App. 182, 278 So.2d 183, 194, cert. denied, 291 Ala. 802, 278 So.2d 198 (1973), as follows:

“The protection of the Fourth Amendment securing people in their persons, houses, papers, and effects against unreasonable search and seizure does not apply to ‘open fields.” Edwards v. United States, (10 Cir.) 206 F.2d 855; Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; United States v. One 1967 Dodge Pickup Truck, (D.C.) 310 F.Supp. 773.
“The Fourth Amendment does, however, apply to buildings within the cur-tilage which may include ‘a garage, Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; a barn, Walker v. United States, (5 Cir.) 225 F.2d 447; a smokehouse, Roberson v. United States, (6 Cir.) 165 F.2d 752; a chicken house, Walker v. United States, (5 Cir.) 125 F.2d 395, and similar property. Whether the place to be searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family.’ Care v. United States, (10 Cir.) 231 F.2d 22 (emphasis added).”

We do not find any disagreement between the parties as to the principle of law stated. The disagreement is as to whether the marijuana was in the curtilage of defendant’s residence. We do not agree with appellant’s assumption or conclusion that it was. Certainly, none of it was in any kind of a building or under any kind of a shed.

The previously mentioned drawing or plat of the premises involved, which constitutes defendant’s Exhibit 1 on the hearing of the motion to suppress and on the trial of the case, was repeatedly and extensively used, but in the utilization thereof more body language was employed than oral or written language, so that it is practically impossible for an appellate court to conclude therefrom that any of the marijuana was located at a place that could correctly be said to have been within the curtilage of defendant’s residence. It is obvious that certainly some of it was not. A small specimen of the extensive use of the plat in such a way as to fail to reveal by the transcript of the evidence that which was doubtless revealed to then observant eyes is to be noted in the following:

“Q. Will you describe that area in here that had these little circles on it (indicating).
“A. Those are little patches of woods. There was a corn patch and a watermelon patch and a cantelope patch up here (indicating).
“Q. Okay, so this right here was a little patch of woods right in this area (indicating)?
“A. Yes.
“Q. Would you just draw a little arrow and put ‘patch of woods’ right there (indicating).
“A. (Witness draws on diagram.)
“Q. Okay, now, in the little patch of woods- that you have identified, where exactly where were you stationed?
“A. Right here in this general area this little — under a big oak tree (witness marks).
“Q. Is that near the edge of the closest woods to Mr. Skipper’s house?
“A. It’s the closest woods to his house, because this is open (indicating), and this is the front yard (indicating), and I believe there is a little corn patch right here (indicating) — it might have been some corn planted down there (indicating); I’m not positive.
“Q. After you went to that plant, did you go to anywhere else on the property?
“A. Yes, I did.
“Q. Where?
“A. I went in this general direction here (marking), and that was a dug-out area there that had approximately twelve to fifteen plants in it (indicating). From there we proceeded over — it looked like where the disc had come here, and there was another area here (indicating) that had approximately seventeen plants in it (marking).
“We left there and we came back and went around behind the house. The last row in the garden there was a briarber-ry — I call it — over here there was three small plants right here (marking), and right here there was an area that was just clear (indicating).
“Q. This area right here — what do you
“A. It looked where the marijuana had failed to come up.
“Q. You are talking about a plain area there, no grass or plants or anything?
“A. Right. It looked like it had been hoed out around.
“Q. Let me ask you: Down here in this area — let me ask you this: did you see a crab apple tree?
“A. There is a crabapple tree over here (indicating), I believe.
“Q. Is there anything down in this area here (indicating)?
“A. I don’t know — I didn’t go down there.
“Q. Let me ask you: could this place where you have marked through here (indicating), could it have been in this area where these little arrows are down here (indicating)?
“A. I suppose it could be.
“Q. Do you know how far down you came?
“A. I came from this point (indicating) to this point (indicating) to this point (indicating) back around the house to this point (indicating). From here to here (indicating) is approximately — I would say — a thousand feet, or maybe a little further, or less.”

Defendant’s Exhibit 1 was purportedly drawn to a scale of one inch equaling sixty feet. We deduce from it that it covers three or four or five acres of defendant’s land adjacent to his residence, most of which is either north or east of the residence. In addition, the map vaguely shows several more acres of land north, south, and east of said three or four or five acres, as to which the ownership thereof is not clear. According to defendant’s testimony on the trial, he owned thirty-one acres. Some of his testimony on direct examination was as follows:

“Q. Okay. If you can identify — what is this right here?
“A. That is my house area.
“Q. All right. What is this area here?
“A. That is the garden area.
“Q. Okay. Is there more than one fence down this side of this property?
“A. Yes. The dotted line that is there, that is a fence.
“Q. Is this property here in between here, is that your property?
“A. No. That belongs to Gene Clark.
“Q. Okay. Is Gene Clark related to you?
“A. First cousin.
“Q. Whose land is this?
“A. Gene Clark’s.
“Q. Okay. Is this line right here, is that—
“A. That is my property line.
“Q. Okay. And this area here where these curlicues are, what type of land is that?
“A. From right in here to this area here, I had a bunch of trees and all pushed up and they are piled up in a great big pile. And, there is a willow, old pond willows have come up there and they are higher than this ceiling, just as thick as they come up.
“Q. Okay. Now is that through all of this area or—
“A. Back along in this area here.
“Q. And what is in this area here?
“A. A lot of underbrush, undergrown, vines, etc.
“Q. What is all of this?
“A. That it a wooded area back in here and around in this way.
“Q. Okay. Do you have a vineyard right in here?
“A. Right here I have a grape vineyard. Just about six grapevines in an arbor like.
“Q. What is in this area?
“A. A bunch of undergrowth where I pushed up a bunch of trees and all in there.
“Q. What about this area here?
“A. That is open, I pushed up a bunch of stumps right in here and planted some cane in there.
“Q. Okay. Had you done that prior to June 15?
“A. Yes. It was already up to pretty good size cane.
“Q. On June 15?
“A. Right.
“Q. What is this back here?
“A. There is one watermelon row here, that thing has seventy hills of watermelons on it.”

In deploring our inability to understand from the transcript all the evidence with the same facility as the trial court and jury were able to do by reason of their opportunity to observe the action of the hands of counsel and the witnesses while pointing to places and things on defendant’s Exhibit 1, we do not mean to imply that we have any serious reservations in the conclusion we reach herein. The record is sufficient to convince us that the open fields doctrine applies, that the marijuana was not within the curtilage of defendant’s residence and that the trial court was not in error in overruling defendant’s motion to suppress the evidence or in overruling any other objection to the evidence on the ground that there had been any violation of defendant’s right to security against an unreasonable search and seizure.

In endeavoring to keep separate two distinct doctrines — plain view and open fields — we do not overlook cases and the many instances in which both doctrines may be involved to their apparent amalgamation, such as where an officer intrudes into one’s house and thereby obtains a plain view of property in an open field or where, while in an open field, he peers into one’s house and thereby obtains a plain view of property therein. In such cases, as in the case before us, it is to be kept in mind that the undergirding principle is that “. the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, 582 (1967). A case that serves well to illustrate a removal of the natural confusion as to the two doctrines that to same extent results from the use of one of two synonymous words, “plain” and “open,” in each doctrine, is Conrad v. State, 63 Wis.2d 616, 218 N.W.2d 252 (1974). It was held therein, in a murder case, that though the officer committed an “outrageous trespass” in digging on defendant’s property with a backhoe without a warrant and Unearthed the corpse, of the alleged victim buried in the soil under a rock pile, evidence of the corpse was admissible, as it was found in an open field approximately four hundred and fifty feet from defendant’s house. The court said at 218 N.W.2d 257:

“Under the ‘open fields’ doctrine, the fact that evidence is concealed or hidden is immaterial. The area is simply not within the protection of the Fourth Amendment. If the field where the body was found does not have constitutional protection, the fact that the sheriff, rather than observing the evidence that might have been in plain view, dug into the earth to find a body and committed a trespass in so doing does not confer protection.”

The facts in Conrad, supra, as to the question whether the open fields doctrine applied, bear a striking resemblance, with a few exceptions, to the facts in the instant case. In both cases, the property was rural property. In Conrad, at 218 N.W.2d 254, the following facts are stated:

“The Conrad farm consists of about 40 acres of unfenced land [there were vaguely described and located fences or a fence on at least one side of the land in the instant case]. A portion of it was heavily wooded. The house was set back from the road a distance of 150 feet. Several dog houses were located just north of the house. [200] feet north was another structure known as a pigeon building. The horse barn was 30 to 40 feet northeast of the pigeon building. [There were no structures other than the dwelling on the land in the instant case].

The victim’s body in Conrad, surpa, was approximately 450 feet from defendant’s house. In the instant case, it appears, though inconclusively, that the batch of marijuana closest to defendant’s house was approximately 200 feet east of defendant’s house and that the other batches were at disconnected and more distant places northeast or north of the house.

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.

      . Definitely set forth in Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973); Baker v. State, Ala.Cr.App., 340 So.2d 854, cert. denied, 340 So.2d 860 (1976).


author: SHORES, Justice.

text:
    Ex parte Herbert SKIPPER. (Re: Herbert Skipper v. State of Alabama).
    79-770.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   SHORES, Justice.

WRIT DENIED-NO OPINION.

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


author: HARRIS, Presiding Judge.

text:
    Fred DAVIS, alias v. STATE.
    6 Div. 4.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 17, 1980.

      William B. Lloyd of Lloyd, Ennis & Lloyd, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. He was sentenced accordingly. Throughout the trial proceedings he was represented by court-appointed counsel and at arraignment interposed a plea of not guilty. After sentence was pronounced he gave notice of appeal and was furnished a free transcript. Trial counsel represents him on appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment, Fred Davis, alias, Fred David, alias, Bill Davis, whose name is to the Grand Jury otherwise unknown, unlawfully, and with malice aforethought, killed L. E. Fuller, Jr., by beating him with a pipe or by means otherwise unknown to the Grand Jury, against the peace and dignity of the State of Alabama.”

It was not disputed that the cause of death was due to a skull fracture, brain contusions, inter-crania bleeding, due to blunt force injuries to the head.

The deceased was last seen alive by his wife on November 12,1977, at Fuller Furniture Company, in the Powderly Community of Jefferson County. The next time she saw him was on November 18 at Elmwood Chapel. In her words, “He was deceased.” She was shown State’s Exhibit 1 and identified it as a photograph of his truck which was parked at the place of his business on November 12, 1977, when she last saw him alive.

Police Officer Donny Todd, an evidence technician with the Birmingham Police Department, testified that he was called to a vacant house in the Ishkooda section of Birmingham on November 17, 1977, where he and a fellow officer found the body of L. E. Fuller, Jr., who had apparently died as the result of a blow to the head. A piece of iron pipe was found near the body. Officer Todd took the pipe to police headquarters and left it on the desk of the Crime Laboratory Supervisor Robert Johnson. At trial Officer Todd identified State’s Exhibit 9 as being the identical pipe he found near the body of the deceased and stated that it was in the same condition as it was when he picked it up at the scene. He identified several photographs of the crime scene depicting the body of the victim and these were introduced into evidence.

Officer Robert B. Johnson, Supervisor of Scientific Investigation with the Birmingham Police Department, testified that the pipe was left on his desk in a sealed package with a receipt form indicating that it had been put on his desk on November 19, 1977, by Officer D. D. Todd. The pipe was in a bag which had been taped together. He stated the pipe was constantly in his possession from the time he found it until he personally delivered it to the Toxicology Department on December 1, 1977. At the time he delivered it to the Toxicology Department the pipe was in the same condition as it was when he received it. He further stated that he received three packages, “one of them containing a ‘lead pipe,’ and the other one was an envelope that was sealed and labeled as containing some sort of fiber and the third one was an envelope sealed and containing some sort of a paper object.” He was asked who had access to his office and he replied, “The Evidence Technician and myself.”

Officer Johnson stated that he made a preliminary investigation of the pipe and found a reddish brown stain. which contained a hair which he removed and sealed in another envelope and took the hair and the other items to the Department of Toxicology.

On cross-examination he testified that about twelve evidence technicians had keys to his office at that time, but there was no indication that anyone touched or disturbed the items left on his desk by Officer Todd. He resealed the lead pipe and the other items before he delivered them to the Department of Toxicology.

In the course of the homicide investigation arrest warrants were issued for three suspects. They included Joseph Hardman, Tommy Battle and appellant. During a voir dire hearing out of the presence and hearing of the jury Officer William T. Gant testified that he interrogated appellant on January 5, 1978. Prior to asking him a single question the officer furnished him a form containing the Miranda rights and warnings and requested that he follow the form as it was read to him. He asked appellant if he could read and write and received an affirmative answer. After reading the waiver of rights form to appellant the officer asked him if he understood his rights and appellant assured him that he did. Appellant then signed the waiver form and told the officer he would make a statement. The officer further testified that no promises were made to appellant to get him to make a statement; that no threats were made against appellant, and no rewards or hopes thereof were offered or held out to appellant or other inducements made to him to get him to make a statement concerning his involvement in the crime. Appellant then made an oral statement admitting his participation in the robbery and the homicide. The officer then requested appellant to repeat the statement while the officer wrote the statement-in the words of appellant. Appellant agreed, and as he related the events leading up to the robbery and killing, the officer printed his statement. After printing the statement the officer read it back to appellant and asked him if it was correct. Appellant stated the statement was correct and initialed the first page and signed his name on the last page. His signature was witnessed by Officer Gant and Officer Albert Wallace.

The statement follows:

“He stated, Me and Joe Hardman and Tommy Battle got together around Tommy’s house on the morning before Mr. Fuller was killed. Me and Joe had stolen a t.v. and we were walking to Fuller’s to sell it to him when we met Tommy who was in the ear with his mother and Joe’s grandmother. We rode back to Tommy’s house and was going to get Tommy to drive us to Fuller’s place but Tommy couldn’t get the car from his mother. So, me and Joe and Tommy got to talking about needing money and Tommy suggested that we rob Mr. Fuller. Tommy said we would have to kill him because he would recognize us. I told him that we could rob Fuller but we didn’t have to kill him. Tommy and Joe both said we would have to kill him but they finally agreed that we would just rob him. Me and Joe then walked to Powderly to get Fuller to come back with us. We told him that we had a hot t.v. to sell to him. Fuller drove us back up on the hill in the truck. I rode up front with Fuller and Joe rode in the back. When we got there Joe went in first and I went in and was showing the t.v. to Fuller. Fuller went to the back of the house, looking around and that’s when Joe hit him with a rock. After Fuller fell down Joe hit him about two more times. I went in his pocket and got his billfold out and then me and Joe left and went into the woods behind the house. We stopped and split up the money which was about a total of a hundred or a hundred and fifty dollars. W.e then went to Joe’s house and after about five minutes I left. Joe did all the hitting and I never hit Fuller at all. I just was going to rob him and I thought Joe was only going to rob him until Joe actually killed him. Tommy got one third of the money because he said he set everything up. He called himself being in the clear because he was outside the house when Fuller was killed. And, then, it’s signed by Mr. Davis and witnessed by myself and Albert Wallace with a notation of City Jail, the ■ date 1/5/78, and the time 12:50 p. m.”

At the hearing on the motion to suppress the defense presented the testimony of Dorothy Jean Reynolds, a former elementary school classmate of appellant. This witness testified that appellant dropped out of school during the sixth grade; that appellant could only read a few words; that she had never seen him read a book, newspaper, or magazine, and that she had offered him a Bible to read but he declined because of his inability to read.

Appellant’s mother testified that he could not read and had received bad grades while in school. She stated that she had never seen him read any printed material and had never seen him write anything.

Appellant testified at the same hearing and said he had dropped out of school in the sixth grade; that he had repeated two grades before dropping out of school. He said he could write his name but could not read. He claimed that after signing the statement transcribed by Officer Gant he handed the statement back to him saying he could not read. He further testified that Sergeant Gant told him that the two other suspects were trying to put it all on him. He claimed that the officer told him if he didn’t make the statement he would get the death penalty. He further claimed that the statement signed by him was different from his original statement.

It should be noted here that after Officer Gant read the statement back to appellant he asked him if he wanted to make any changes and appellant said no — and he did not make or suggest any changes.

At the conclusion of the voir dire hearing the trial court ruled that the confession was voluntarily, knowingly and understandingly made. Back before the jury the State laid the voluntariness predicate and appellant’s confession was admitted into evidence.

Appellant makes three contentions on this appeal in which he claims reversible error was committed by the trial court: (1) The confession was not shown to be voluntary, (2) the chain of custody of the alleged murder weapon was not sufficiently connected to justify its admission into evidence, and (3) that he was denied his right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution.

In support of contention number (1) appellant relies in part on the fact that he is alleged to be illiterate. In Arnold v. State, Ala.Cr.App., 348 So.2d 1092, this court held:

“The appellant also alleges that the trial court committed reversible error in the admission of the confession of the appellant. The central contention raised in this regard is that the appellant did not make a free and intelligent waiver of his rights because the appellant was ‘slow’ and illiterate. Specifically there was testimony that the appellant was ‘slow’, was below normal intelligence, could only read and write a little, had only completed the eighth or ninth grade in school, could not spell the words ‘rights’ and ‘waiver’, could not give a definition of ‘understand’ at trial, and did not know what ‘waiver’ and ‘to waive’ mean.
“At a hearing to determine the admissibility of the confession held outside of the presence of the jury, the state presented testimony that the appellant was advised of his constitutional rights. These rights are commonly referred to as the ‘Miranda’ rights and were in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There was testimony that both the rights and the waiver of rights form were read to the appellant; that the appellant read them both and that he stated he understood them.
“We are of the opinion that the confession of the appellant was freely and voluntarily given. The issue raised by the appellant has previously been answered by the Alabama Supreme Court in Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967). While the accused’s intelligence, character, and situation at the time of the confession are important considerations in determining whether that confession was voluntary, the fact that the accused was of tender age or weak intellect will not alone render the confession inadmissible in evidence as involuntary, Elrod, supra; or where the accused was of weak mentality, feeble-minded, under mental stress or an illiterate, Elrod, supra; or was not in full possession of his mental faculties; Lokos v. State, 278 Ala. 586, 179 So.2d 714, vacated in 408 U.S. 935, 92 S.Ct. 2854, 33 L.Ed.2d 749, on remand, 290 Ala. 122, 274 So.2d 303 (1965); or that the accused was an ‘ignorant’ man, Porter v. State, 55 Ala. 95 (1876).
“A confession of crime is not inadmissible merely because the accused, who was not insane, was of less than normal intelligence. Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, rehearing denied, 352 U.S. 1019, 77 S.Ct. 553, 1 L.Ed.2d 561 (1957) (accused left school at age 16 while still in the third grade; his mother testified that he had always been ‘thickheaded’; the court commented that he was ‘certainly of low mentality, if not mentally ill’); Hoober v. State, 81 Ala. 51, 1 So. 574 (1886) (accused was a person of ‘weak mental capacity’); Peck v. State, 147 Ala. 100, 41 So. 759 (1906) (a ‘weak-minded’ person). Generally, see Annotation: mental subnormality of accused as affecting voluntariness or admissibility of confession. 69 A.L.R.2d 348. Thus while the fact that a confession was made by an illiterate or one with below normal intelligence is to be taken into consideration and viewed as a factor indicating that the confession was lacking in volun-tariness, a confession is not inadmissible merely because the accused was of less than normal intelligence.”

There was ample testimony that the waiver of rights form was read to appellant and he stated that he understood his rights. He signed the waiver of rights form. Under Arnold, supra, and the cases cited therein, a sufficient showing of voluntariness was made notwithstanding appellant’s alleged illiteracy. Appellant also raises the issue of whether his inculpatory statement was the result of being threatened with the death penalty if he did not sign the confes-sory statement. Appellant’s claims are in conflict with the testimony of Officer Gant who stated that he was not threatened or coerced in any manner and no inducements of any kind were made to him in exchange for his statement.

In Botsford v. State, 54 Ala.App. 482, 309 So.2d 835, this court stated the rule to be in the following language:

“The matter of admissibility of a confession in the first instance is addressed to the trial judge. Its weight and credence are addressed to the jury. Edgil v. State, 36 Ala.App. 379, 56 So.2d 677; Burns v. State, 226 Ala. 117, 145 So. 436.
“Our court recognized in McNair v. State, 50 Ala.App. 465, 280 So.2d 171, that: . . . [I]t is not unusual for the voluntariness inquiry to present conflicting evidence. Edgil v. State, 36 Ala.App. 379, 56 So.2d 677. When such a conflict occurs and the trial judge finds that the confession was voluntarily made, great weight must be given to his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Emerson v. State, [281 Ala. 29, 198 So.2d 613] supra; Harris v. State, 280 Ala. 468, 195 So.2d 521; Edgil v. State, supra. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence arid not to a moral certainty. Minirth v. State, 40 Ala.App. 527, 117 So.2d 355, cert. denied, 270 Ala. 228, 117 So.2d 360.’
“Attorneys for appellant cross-examined the officers on voir dire out of the jury’s presence, and in court with the jury present, on all the questions pertaining to voluntariness, including the Miranda warnings and waiver of counsel. The appellant testified on voir dire, out of the presence of the jury, that he had been coerced, threatened, intimidated, and denied the right to counsel. He testified before the jury, by stipulation, for the same limited purpose. We believe that the testimony was sufficient for the trial court to make its initial finding that the confession was voluntary. This controversy was ultimately resolved by the jury in favor of the state, and under the foregoing facts, we are not persuaded that the verdict should be disturbed.”

There was more than sufficient evidence to support the ruling of the trial court that the confessory statement was not the product of any threat made against appellant. The voluntariness of an inculpa-tory statement is a question of law for the court and a finding that such statement was voluntary will not be disturbed on appeal unless it appears contrary to the great weight of the evidence or is manifestly wrong. Balentine v. State, Ala.Cr.App., 339 So.2d 1063; Stewart v. State, 49 Ala.App. 681, 275 So.2d 360. The trial court did not err in admitting the confession into evidence.

Next, appellant contends that the chain of custody of the death weapon was not sufficiently connected to authorize its admission into evidence. Admittedly, there was a conflict in the testimony of Officer Todd and Robert Johnson, Supervisor of the Crime Laboratory, as to the metal pipe found near the body of the victim. Todd stated that he placed the pipe on Johnson’s desk and it was not sealed in a container. Johnson testified that the pipe was sealed in a package and attached to it was a receipt slip from Officer Todd stating that he put it on his desk on November 19,1977. Johnson stated that the pipe was in the same condition at the time he carried it to the Toxicology Department as it was when he first received it. More importantly Officer Todd positively identified the pipe as the one he found near the body of the deceased and that it was in the same condition that it was in when he picked it up at the scene of the murder.

The evidence as to the custody and possession of the metal pipe unequivocally shows there was no missing link in the chain of identification.

In Dennison v. State, 259 Ala. 424, 66 So.2d 552, the Supreme Court said:

“. . . The preliminary proof identifying and describing the considered articles fully complied with the rule and under no sort of theory would the trial court have been warranted in refusing their admission.”

In Henry v. State, 57 Ala.App. 383, 328 So.2d 634, this court treated a fact situation markedly similar with regard to the issue of access to the evidence by other persons who had keys to the crime laboratory. A criminologist testified that other members of his office had keys to the cabinet in which the evidence had been placed. The court held the evidence was properly admitted into evidence, saying,

“We believe that the chain of custody was sufficient to establish a jury question as to the accuracy of the exhibit’s identification. Green v. State, 42 Ala.App. 439, 167 So.2d 694.
“Nothing was shown that indicated the continuity of possession had been disturbed. Under these facts, ample assurance of the exhibit’s authenticity . was shown.”

The basic and controlling reason for establishing the identification and continuity of possession of an article offered into evidence is to show that no unauthorized person has tampered with the article. Both the testimony of Officer Todd and Robert Johnson gave that precise assurance.

Finally, appellant claims he was denied his constitutional right to a speedy trial. We do not agree.

It is settled law that speedy trial rights do not operate to deprive the state of a reasonable opportunity to prosecute defendants. A defendant cannot claim his constitutional rights have been denied where the delay is caused by him, or where delays are made necessary by the law itself, or occasioned by want of time to try the case. Cook v. State, Ala.Cr.App., 333 So.2d 855; certiorari denied, 333 So.2d 858.

In the present case the interval between indictment and the date of trial was less than six months, and appellant filed a motion to dismiss less than four months after indictment in December 1978. Appellant claims that there was a lapse of thirteen months between the date of his arrest and the date of trial. During this period of time appellant obtained one continuance and another continuance was due to the illness of the prosecutor. Another delay was due to the necessity to reindict appellant in order to avoid a fatal variance between the indictment and the proof to be offered in support thereof. Appellant filed a motion to dismiss which caused another delay while the motion was being considered.

In Broadnax v. State, 54 Ala.App. 546, 310 So.2d 265, this court held that a delay of approximately 17 months between the initial indictment and trial did not deny defendant his right to a speedy trial.

In Giles v. State, 52 Ala.App. 106, 289 So.2d 673, this court held that a delay of 12 months was not sufficient to show a denial of the right to a speedy trial absent a showing of prejudice to the accused.

In Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81, it was held that a delay of slightly over eight months was not too long where there was no evidence of prejudice to the defendant.

Appellant did not testify on the trial in chief nor did he offer any evidence in his defense. He did not allege, much less attempt to prove, that he was prejudiced in any manner by the delay in bringing his case to trial.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Fred DAVIS. (Re: Fred Davis, alias v. State of Alabama).
    79-739.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   BEATTY, Justice.

Writ denied-no opinion.

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


author: BOWEN, Judge.

text:
    John Edwin CORN v. STATE.
    6 Div. 104.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Fred Pickard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery (Circuit Court No. 79-00684) and sentenced to ten years’ imprisonment. He pled guilty (with the understanding that he could appeal) to a second indictment for robbery (Circuit Court No. 79-00685) and was sentenced to ten years to run concurrent with the sentence previously imposed by the trial jury. The only issue argued on appeal, though others are presented but not argued in brief, is whether the defendant was denied his right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 6 of the Constitution of Alabama of 1901.

The facts are stated in chronological order.

May, 1969: The defendant is convicted and sentenced to 20 years’ imprisonment in the State of Florida. The tentative release date is June 23, 1980.
January 10, 1975: A robbery detainer is placed on the defendant from Jacksonville, Florida.
The defendant escapes from Hillsboro and the Florida State Prison System.
April 23, 1975: The defendant is committed to a Florida State Mental Hospital.
June 21, 1975: The defendant commits three robberies and two kidnappings in Alabama while on escape from Florida.
July 10, 1975: The District Attorney of Jefferson County receives information that the defendant is in the custody of the U.S. Marshal in Cleveland, Ohio.
July 29, 1975: Alabama authorities are informed that the defendant has been extradited from Ohio and is in jail in Quincy, Florida, on a charge of escape.
August 11, 1975: The Jefferson County (Alabama) Grand Jury returns five indictments against the defendant who is an inmate of the Florida State Prison System.
November 21,1975: The defendant is adjudged mentally competent to stand trial.
December 19, 1975: Alabama is informed that the defendant had been transferred to Green Cove Springs, Florida.
January 7, 1976: An Alabama detainer is filed against the defendant by teletype.
January 9, 1976: Florida informs Alabama that more than a teletype is necessary to file a detainer and indicates that there are prior trial commitments on the defendant: (1) An escape from Tampa, Florida — detainer filed January 10, 1975; (2) a robbery from Jacksonville, Florida — detainer filed January 10, 1975; and (3) an assault and armed robbery from Nashville, Tennessee — detainer filed January 9, 1976.
January 21, 1976: The defendant contends that he communicated with the District Attorney of Jefferson County by letter on this date and requested that he be brought to trial on the charges then pending against him in Jefferson County.
The District Attorney denies that he ever received this letter. He states that the Florida authorities were sent certified copies of the indictment and warrant of arrest on this date in response to Florida’s letter of 1-9-76.
January 27, 1977: The defendant alleges that he mailed a “Demand for a Speedy Trial” to the D.A. The D.A. maintains that this demand was never received. According to the defendant, sometime during this month a number of charges are disposed of leaving only Alabama and Tennessee detainers remaining.
March 24, 1977: The defendant alleges that he made his third demand for a speedy trial. The District Attorney denies that his office received any such demand.
June, 1977: Extradition to Tennessee is denied by Florida authorities.
October 6, 1978: The defendant files a petition for writ of habeas corpus in the federal district court.
October 12, 1978: Order to show cause issued to the State of Alabama by the federal district court. The State responds on November 1, 1978, contending that the defendant has never requested a speedy trial and attaching the affidavit of the Circuit Clerk of Jefferson County stating that a search had been made but no demand found.
November 7, 1978: The Federal Court orders an additional response from the State which the State files on November 16, 1978.
January 11, 1979: The Federal Magistrate recommends that the defendant’s petition for habeas corpus be taken under submission by the court for a period of 120 days. If the State of Alabama fails to take the necessary action to secure the defendant’s presence for trial within the 120-day period, it is recommended that the petition be granted.
January 11, 1979: The defendant objects to the Report and Recommendation of the U.S. Magistrate.
April 2, 1979: The Federal Court grants the State an additional 30 days in which to bring the defendant to trial. This extension is allegedly necessitated by the defendant’s refusal to sign a “detainer act form”.
April 27,1979: The defendant is returned to Alabama through the use of the “Uniform Agreement of Detainer Act”. [The State alleges that Alabama had become a party to this Act during the litigation of the federal habeas corpus petition. The Alabama Code shows the Uniform Mandatory Disposition of De-tainers Act became effective April 27, 1978.]
May 1, 1979: Counsel is appointed to represent the defendant and the arraignment is held. Trial is set for May 21,1979, and “passed from time to time until June 6th”. (The record shows no objection by the defendant to any continuance.)
June 5, 1979: The defendant is tried and convicted on June 6 for robbery (Case No. 79-00684).
June 11, 1979: The defendant pleads guilty to a second robbery charge (Case No. 79-00685).

The Circuit Court denied the defendant’s petition for writ of habeas corpus and motion to quash the indictment. The judge found that the State of Alabama had not been negligent in bringing the defendant to trial and that the defendant had not been unduly prejudiced by the delay. The Circuit Court agreed with the Federal District Court in finding that the defendant had failed to establish that he requested a speedy trial in 1977. Both courts found that the first notice the State of Alabama had of the defendant’s demand for a speedy trial was in October of 1978, in connection with the defendant’s habeas corpus petition in federal court.

The usual factors to be evaluated in determining whether the defendant has been denied his Sixth Amendment right to a speedy trial are clearly stated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Length of Delay: The delay from the defendant’s indictment until his trial is three years and ten months. This delay is long enough to be “presumptively prejudicial” and trigger inquiry into the other factors bearing on the alleged denial of a speedy trial. United States v. Palmer, 537 F.2d 1287 (5th Cir. 1976). Since this delay is “patently offensive” we must determine whether it is “unjustified”. Prince v. State of Alabama, 507 F.2d 693, 702 (5th Cir. 1975). However, this delay is not sufficient in and of itself to justify a finding that the guarantee of a speedy trial has been violated. Barker, 407 U.S. at 533, 92 S.Ct. at 2193; Jones v. Morris, 590 F.2d 684, 686 (7th Cir. 1979); Andrews v. State, 370 So.2d 1070, 1072 (Ala.Cr.App.), cert. denied, 370 So.2d 1075 (Ala.1979).

Assertion of Right: Despite and contrary to the defendant’s contentions, both federal and state courts found that the defendant failed to establish that he had requested a speedy trial in either 1976 or 1977. Both courts found that the first notice the State received was in October of 1978.

The defendant proved that he asserted his right to a speedy trial two years and nine months after he learned of the indictment.

“[T]he point at which the defendant asserts his right is important because it may reflect the seriousness of the personal prejudice he is experiencing. .
To the extent that promptness in asserting the right is important, then appellant’s silence during the entire pre-indictment period works against him because it suggests that any hardships he suffered were either minimal or caused by other factors.”
Palmer, 537 F.2d at 1288.

This principle is applicable to this case.

Reason for Delay: The State contends, and there is no evidence to the contrary, that the District Attorney of Jefferson County had been informed by the authorities in Florida that Alabama would have to “wait its turn” to try the defendant because other states had previously filed detainers against the defendant. At the hearing in the Circuit Court, the Assistant District Attorney stated that, “We relied on the State of Florida to inform us when we could attempt to take custody of him. We are under the belief that he was involved in pending litigation there.”

The law was stated in the Report and Recommendation of the U.S. Magistrate:

“The controlling authorities with regard to a prisoner’s right to a speedy trial are: Peyton v. Rowe, 391 U.S. 54 [88 S.Ct. 1549, 20 L.Ed.2d 426] (1968); Braden v. 30th Judicial Circuit, 410 U.S. 484 [93 S.Ct. 1123, 35 L.Ed.2d 443]; Strunk v. U.S., 412 U.S. 434 [93 S.Ct. 2260, 37 L.Ed.2d 56]; Klopfer v. N. C., 386 U.S. 213 [87 S.Ct. 988, 18 L.Ed.2d 1]; May v. Georgia, 409 F.2d 203 (5th Cir. 1969); Beck v. U.S., 442 F.2d 1037; Dickey v. Florida, 398 U.S. 30 [90 S.Ct. 1564, 26 L.Ed.2d 26]; Prince v. Bailey, [State of Alabama], 507 F.2d 693 (5th Cir. 1975); Smith v. Hooey, 393 U.S. 374 [89 S.Ct. 575, 21 L.Ed.2d 607] (1969). In summary, these authorities require state authorities who have filed a detainer against a prisoner in another jurisdiction to make a diligent good faith effort, upon demand, to secure the presence of such defendant for trial.” (Emphasis added)

In Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 609 (1969), the United States Supreme Court held that “on demand a State had a duty to make a diligent and good-faith effort to secure the presence of the accused from the custodial jurisdiction and afford him a trial.” Dickey v. Florida, 398 U.S. 30, 37, 90 S.Ct. 1564, 1568, 26 L.Ed.2d 26.

“Under Smith and subsequent cases Alabama had a constitutionally imposed duty to take affirmative action to secure Prince’s return for trial. Mere inquiries about release and availability are not compliance with this duty. Attempts at extradition or the issuance of a writ of habeas corpus ad prosequendum by the Alabama courts would have been in the nature of such affirmative action.” Prince, 507 F.2d at 705.

Moreover, under Smith, it is not enough that attempts to return the prisoner to the prosecuting state, if undertaken, would have been futile for “ ‘the possibility of a refusal is not the equivalent of asking and receiving a rebuff.’ ” Smith, 393 U.S. at 382, 89 S.Ct. at 579; Prince, 507 F.2d at 705.

It is undisputed that Alabama made no attempt to obtain the defendant’s presence for trial other than to ask the Florida authorities to inform Alabama of the defendant’s availability. In answer to an Order for Additional Response by the federal court the State responded:

“The State of Alabama has made no effort to secure thé presence of petitioner for trial other than to inform Florida authorities that the State of Alabama intended to take necessary steps to have him returned to Alabama upon his release date in Florida (expected June 23, 1980). In January, 1976, the return of an out-of-state defendant to stand trial in Alabama was predicated upon his release date.”

Here it is clear under the findings of both federal and state courts that the State of Alabama did not receive notice that the defendant was demanding a speedy trial or that he was available for trial until October of 1978 when it was called upon to answer the allegations in the defendant’s petition for writ of habeas corpus filed in federal court. Within six months the defendant was returned to Alabama and he was tried two months later. While the defendant in his lengthy petition states that he “suspects” the State has acted in “bad faith” there is no evidence or even founded suspicion that the delay was a deliberate attempt by the State to either enhance its own case or prejudice the defense.

It must also be noted that, once the State became aware that the defendant was available and wanted a speedy trial, the process of returning the defendant to Alabama was delayed for thirty days because the defendant refused to sign the necessary papers.

While the delay caused by the State’s inaction must be considered and weighed against the State, it is weighed less heavily than deliberate prosecutorial delay. Barker, 407 U.S. at 531, 92 S.Ct. at 2182.

Prejudice to the Accused: The defendant alleges that he had been prejudiced by the delay in that two of his alibi witnesses died. The defendant contended that a Mr. Joseph Richards of Jacksonville, Florida, would testify that the defendant was never in the State of Alabama. Mr. Richards was murdered in 1976. The only other witness was a Mr. Norman Nursey who committed suicide in a Florida state hospital in January of 1979.

The defendant did not show when in 1976 Mr. Richards was allegedly murdered. Consequently, we have no way of knowing whether this witness would have been available even had the defendant been tried as early as January of 1976-five months after his indictment. Chambliss v. State, 373 So.2d 1185, 1204 (Ala.Cr.App.) cert. denied, 373 So.2d 1211 (Ala.1979).

There was no evidence, other than the defendant’s own testimony, that these alleged witnesses were no longer available or that they, in fact, ever existed. There was absolutely no showing of the particular facts to which they would allegedly testify. See United States v. Mays, 549 F.2d 670, 677 (9th Cir. 1977).

Defense counsel stated in argument to the Circuit Court that the defendant had been prejudiced on the insanity issue since the psychiatrists who had recently examined the defendant could not make a determination of the defendant’s sanity or insanity in 1975 when the crime was committed. Defense counsel stated that he needed the testimony of “these people who examined him” but did not identify these potential witnesses or make any suggestion that they could not be found after some search had been made. Counsel conceded that the “records” had not been destroyed, apparently referring to the hospital records of the defendant’s stay in a Florida state mental hospital in 1975.

While we recognize that the passage of time makes proof of any fact more difficult, this difficulty is “immeasurably enhanced” when the fact in issue is a mental state. Dickey, 398 U.S. at 43, 90 S.Ct. at 1571. However, we must again note the particular lack of evidence to support the defendant’s allegations.

At trial, the defendant entered a plea of not guilty by reason of insanity. In his opening remarks to the jury defense counsel stated:

“I think you will also find that John Edwin Corn has pled not guilty by reason of insanity, but you will not hear any evidence regarding sanity or insanity and I ask you not to take that to mean that John Edwin Corn is saying by that plea that I did what I am charged with but I was insane at the time, or crazy at the time, and therefore cannot be guilty. That is not the purpose of that plea. I will not go into that, but you will not hear any evidence whatsoever about that.”

This statement was made necessary, according to defense counsel, because the trial court refused to grant the defendant’s motion to require the State of Alabama to pay expenses for two out-of-state witnesses, psychiatrists who would present testimony on the defendant’s insanity. No mention was made of Alabama Code 1975, Section 12-21-260, authorizing the use of depositions in criminal cases for out-of-state witnesses. The defense did not produce any testimony or evidence at trial.

The heart of the defendant’s motion for a speedy trial is that he initially requested a speedy trial almost immediately after receiving notice of the indictment which had been brought against him in Jefferson County and that on two other occasions he repeatedly requested the state authorities to give him a speedy trial. As in the case of Billingsley v. State, 367 So.2d 553, 556 (Ala.Cr.App.1978), cert. denied, 367 So.2d 557 (Ala.1979), which has a similar factual situation, “[tjhere is implicit in the trial court’s ruling [on the petitioner’s allegation that he had made an early request for a speedy trial] that there was no such request, and we do not find that the trial court was in error in its ruling.”

The defendant’s major complaints and allegations are substantiated only by his own testimony. Had the defendant been able to submit evidence of his uncorroborated claims, the result of this case might have been different. However, under the present state of the record the defendant’s allegations must stand or fall upon his own testimony. The credibility of the defendant is a serious issue in this case and one which we think could better be determined by the Circuit Judge.

Exercising that “delicate judgment based on the circumstances of each case,” United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971), we conclude that the findings and rulings of the Circuit Court are supported by the evidence and should not be overturned.

“In sum, the tepid nature of the government’s conduct, the tardiness of appellant’s complaint, and the lack of [proven] substantial personal or defense prejudice resulting from the government’s negligence convince us that the lengthy delay here, though certainly not inconsiderable, nonetheless did not deny appellant his Sixth-Amendment right to a speedy trial.” Palmer, 537 F.2d at 1289.

The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . While the State assumes that Mr. Nursey was in a state mental hospital when he committed suicide, the record only shows that he was in a state hospital.


text:
    Ex parte John Edwin CORN. (In re John Edwin Corn v. State of Alabama).
    79-768.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   BEATTY, Justice.

Writ denied. No opinion.

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


author: BOOKOUT, Judge.

text:
    Dora M. GUNN v. STATE.
    No. 6 Div. 182.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 17, 1980.

      Mac Parsons and Gould H. K. Blair, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton, Sp. Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Grand larceny; sentence: one year and one day imprisonment (probation granted).

The State’s evidence tended to show that around 5:15 p. m. on February 7, 1979, the appellant and her sister entered the Century Plaza branch of Rich’s Department Store in Birmingham, went to the linen section, and stole several table place mats and napkins valued at $16.

The appellant was observed by Linda Hathcock, security supervisor for the store. She saw the appellant’s sister open her coat to shield the appellant’s actions while the appellant removed the items from a display shelf and placed them in a used Rich’s sack. Both women then went to a service counter where the appellant requested a refund for the items. She presented a charge receipt in the name of Thelma Morgan as proof that the items had been brought into the store by her for the purpose of exchanging the merchandise or receiving a refund. Cynthia Oliver and Sue Kassis, employees in the linen department, prepared a $12.93 cash refund for the appellant. The refund was authorized and approved by Mrs. Hath-cock. After receiving the refund, the appellant left the store and was immediately arrested.

I

The appellant’s defense centered upon her assertion that she had received the items as a late Christmas present from a friend, Thelma Morgan, and being dissatisfied with them sought to return them to the store. She procured a receipt for their purchase from Thelma Morgan and proceeded to the store to either exchange the items or receive a refund.

The appellant failed to move to exclude the State’s evidence or to request the affirmative charge. However, in her motion for a new trial, the sufficiency of the evidence was raised. In Bridges v. State, 284 Ala. 412, 420, 225 So.2d 821, 829 (1969), our supreme court stated:

“The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. . . . ”

Larceny is the felonious taking and carrying away of the personal property of another with the intent on the part of the taker to convert it to his own use or to deprive the owner of it. Jones v. State, 56 Ala.App. 444, 322 So.2d 735, cert. denied, 295 Ala. 408, 322 So.2d 741 (1975). The State’s evidence, if believed by the jury, would support a guilty verdict. Martin v. State, Ala.Cr.App., 371 So.2d 460 (1979); § 13-3-50, Code of Ala.1975. Evidence presented by the defense would disprove both the taking and the felonious intent, if believed by the jury. The rule in Alabama is clear that conflicting evidence presents a jury question, and a verdict rendered thereon will not be disturbed on appeal if the State made out a prima facie case. Pugh v. State, 51 Ala.App. 164, 283 So.2d 616 (1973). The truthfulness of testimony is for the jury to determine. May v. State, Ala.Cr.App., 335 So.2d 242 (1976). The instant verdict is therefore amply supported by the evidence.

II

Appellant contends that it was error for Mrs. Hathcock to testify to the status of the “Thelma Morgan” account without the proper predicate being laid. In that instance the testimony showed that more merchandise had been returned to the store than had ever been purchased on that account. That testimony was elicited at trial without objection.

The appellant likewise contends that it was error to allow testimony concerning differences in price of the merchandise when such was determined from a “price book” without the proper predicate being established. The price book was not. offered into evidence. That testimony likewise was admitted into evidence without objection.

Review on appeal is limited to matters on which rulings are invoked in the trial court below. Slinker v. State, Ala.Cr.App., 344 So.2d 1264 (1977). Objections to evidence cannot be raised for the first time on appeal. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958).

III

Appellant contends that her confession was erroneously admitted into evidence as no predicate as to voluntariness was established.

Linda Hathcock testified that after she arrested the appellant she took her to the store’s security room, informed her of the charge against her, and read her the Miranda rights. The appellant then signed a waiver of those rights. Mrs. Hathcock testified that the appellant confessed to the offense and signed a confession form used by the store for such purposes. No questions as to voluntariness were asked by the State, and Mrs. Hathcock read the statement into evidence without objection. Subsequently, the written statement was likewise offered into evidence without objection. Discussion of this issue is pretermit-ted for failure to preserve the question for review by timely objection at trial. Murry v. State, Ala.Cr.App., 367 So.2d 985 (1978), cert. denied, Ala., 367 So.2d 989 (1979); Hargrove v. State, Ala.Cr.App., 344 So.2d 823, cert. denied, Ala., 344 So.2d 826 (1977).

IV

Lastly, appellant asserts that the trial court, over her objection, erroneously allowed the State to cross-examine her concerning the possibility of her instituting a civil suit against Rich’s. Appellant contends that this was a violation of her attorney-client privilege.

During the cross-examination of the appellant, the following occurred:

“Q. Have you filed any civil action against Rich’s?
“MR. BRIEBART: Objection.
“THE COURT: Overrule.
“A. No, sir.
“Q. Have you discussed it with your attorney, filing a civil action against Rich’s?
“MR. BRIEBART: Your Honor, I object. I don’t see any relevancy of this question.
“THE COURT: It goes to the witness’ interest as a witness, the weight and credibility.
“It has been ruled historically that it is admissible.
“So, I will overrule the objection.
“THE WITNESS: Will you ask it again?
“Q. Have you contemplated, or discussed with anyone, including Mr. Brie-bart, about suing Rich’s about this?
“A. Yes, I have.
“Q. And, as a matter of fact, you are going to sue Rich’s about this, aren’t you?
“A. I hope so.”

It is apparent that the defense counsel’s objection does not meet the substance of his argument on appeal. He has imper-missibly expanded that ground to complain of a violation of the attorney-client privilege. As the first objection was general and the second specifically centered upon relevancy, we limit our discussion only to that specific ground raised in the trial and ruled upon by the trial court. The appellant is bound by the ground of objection stated at trial. Franklin v. State, Ala.Cr, App., 357 So.2d 364, cert. denied, Ala., 357 So.2d 368 (1978).

We have long recognized the right of a defendant to cross-examine a prosecution witness concerning the contemplation of filing or pendency of a civil action against him. Malone v. State, Ala.Cr.App., 358 So.2d 490, cert. denied, Ala., 358 So.2d 494 (1978); Cabel v. State, 18 Ala.App. 557, 93 So. 260 (1922).

While we have not found a case from this jurisdiction on point concerning the cross-examination of an accused or defense witness concerning his contemplated or pending civil action against a prosecuting witness, we see no reason why the State should not be accorded the same right of cross-examination in this instance as accorded a defendant in Malone and Cabel, supra. See also: § 12-21-137, Code of Ala. 1975. Furthermore, we find no prejudice to the appellant in admitting her testimony that she intended to sue Rich’s. Her defense was that she was legally returning the merchandise from which she received the refund. An innocent person, falsely arrested for shoplifting, would naturally contemplate filing suit. Therefore, any testimony concerning her contemplating the filing of a civil suit against Rich’s would be consistent with her defense. Having the State elicit such did nothing more than strengthen her defense. Consequently, we find no error in the trial court’s adverse ruling to the appellant on this issue.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Dora GUNN. (In re: Dora M. Gunn v. State of Alabama).
    No. 79-737.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   MADDOX, Justice.

Writ denied-no opinion.

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