author: BOWEN, Judge.

text:
    Joseph M. ROBERSON v. STATE.
    6 Div. 143.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.
    Rehearing Denied March 18, 1980.
    V. Russell Hoover, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the first degree murder of his wife, Frances Watts Roberson. Sentence was life imprisonment.

I

The major allegation of error is that five year old Chris Tombrello was incompetent to testify as a witness.

Chris was his mother’s youngest child and a stepson to the defendant. He was the only witness to his mother’s murder. The trial judge examined Chris to determine his competency to testify.

“THE COURT: Do you go to Sunday School?
(No reply was made by the witness in answer to the question next above.)
“THE COURT: You don’t go to Sunday School?
“A. I don’t go to no school.
“THE COURT: When you lived with your mother and daddy, did you go to Sunday School?
“A. No, sir.
“THE COURT: Do you know what the truth, to tell the truth, to tell — not to tell the truth — If you don’t tell the truth, what do you call it?
“A. Alie.
“THE COURT: Do you know that if you were to tell a lie — would that be good, or bad?
“A. Bad.
“THE COURT: What would happen to you, like, if your grandmother knew that you told a lie?
(No reply was made by the witness in answer to the question next above.)
“THE COURT: Would she say anything to you?
(No answer was made by the witness in reply to the question next above.)
“THE COURT: Do you tell the truth?
“A. Yes, sir.
“THE COURT: If you are asked some questions, will you tell us the truth?
“A. Yes, sir.
“THE COURT: You won’t tell us any lies, will you?
“A. No, sir.
“THE COURT: Did anybody ever tell you that if a little boy tells lies what would happen to him?
“Did they ever tell you anything like you might be punished, or anything like that?
“A. No, sir.
“THE COURT: All right. I am going to let him testify. I think he is qualified to testify.
“Of course, the jury will take into consideration his age and his reactions in determining what weight and what credibility to give to his testimony.”
“Of course, the Court is familiar with the decision that you gentleman have handed the Court, and, out of an attempt to— where there is — may, or may not, be an awareness of good, or bad portions, or a knowledge of what is good and what is bad, and so on, as going to the qualification, or knowledge, or solemnity, of an oath, I have attempted in recent years— it looks like a criteria that so many courts have adopted, to separate it from the religion end of it.
“So, I am going to question this child further now, in the absence of a jury, because I am not completely satisfied.
“Let me—
“Son, what did you say your name was?
“A. Chris.
“THE COURT: Chris?
“A. Yes, sir.
“THE COURT: Chris, do you know that if you—
“Do you know what it is if somebody says, ‘Do you swear to tell the truth’?
“Do you know what that means?
“If you swear to tell the truth and you don’t tell the truth, and you have told me awhile ago that if somebody told a lie that that was bad?
“A. Yes, sir.
“THE COURT: Well, if you do something bad, whether you tell a lie, or anything else — and I asked you if you got punished — do you know what ‘punished’ means?
“A. No, sir.
“THE COURT: Do you know what it means to get a whipping?
“A. Yes, sir.
“THE COURT: If you do something bad, do you get a whipping?
“A. Yes, sir.
“THE COURT: Let me ask you this:
“If you do something bad, if there is some other type of punishment sometimes, if, like, you don’t get a piece of candy, you don’t get ice cream, or you don’t get a dessert, or something, or maybe you get put to bed early, or don’t get to watch television, if you do something bad, is that another way of punishing somebody besides getting a whipping, if you do something bad?
“A. Yes, sir.
“THE COURT: Have you ever had— when you did something bad, had anything like that, maybe, happen to you, like, maybe, get a whipping, or not permitted to watch television?
“A. I got something to eat, but—
“THE COURT: You got what?
“A. I got something to eat, but—
“THE COURT: You got something to eat, but what?
“A. But I did get a whipping.
“THE COURT: You did get a whipping?
“A. But I did get to watch TV and a dessert.
“THE COURT: You did get to watch TV and eat a dessert, but you got a whipping, is that right?
“A. Yes, sir.
“THE COURT: But do you realize that if you swore to tell the truth and you didn’t tell the truth, that is, if you lied, that that would be bad, and that is the sort of bad that you get a whipping for?
“I am not saying I am going to whip you. I just want to know if you understand. I am not going to whip you.
“Do you understand that?
“A. No, sir.
“THE COURT: All right. If you do something bad, you might get a whipping.
“A. Yes, sir.
“THE COURT: And if you tell a lie, you see, that is bad?
“A. Yes, sir.
“THE COURT: But if you tell a lie, might you get a whipping?
“A. Yes, sir.
“THE COURT: Do you promise me that you will tell the truth to any questions we ask you?
“A. Yes, sir.
“THE COURT: Gentlemen, I am not going to change my ruling. I said ‘change it’, because I took it back awhile ago so I could question this boy further.
“The Court is of the opinion that this boy is qualified to testify, and, as I say, his years and his reactions can be, of course, considered by the jury to determine what weight and what credibility to give to his testimony.
“Of course, that may be argued to the jury at the proper time, but the Court does overrule the objection of the defense to the court permitting this witness to testify.
“MR. HOOVER (Defense Counsel): Your Honor, I still object to him being qualified, not only on the lack of religious training he appears to have, but due to the seriousness of the case in which he is testifying, the very very tender years involved here, his hesitancy in answering certain questions involving punishment, and the consequences in the failure to tell the truth.
“We don’t feel like he does understand the nature and the solemnity involved in giving his oath.
“THE COURT: All right. Overrule.”

At common law the oath was regarded as a “summoning of divine vengeance upon false swearing, whereby when the spectators see the witness standing unharmed they know that the divine judgment has pronounced him to be a truthteller”. 6 Wigmore, Evidence § 1816 (Chadboum Rev. 1976). The oath involved “a belief in a superhuman (and therefore inevitable) retribution to follow false swearing”. 6 Wig-more, § 1817. This belief is inherent in the very definition of an oath, Blackburn v. State, 71 Ala. 319, 321-322 (1882); Goolsby v. State, 17 Ala.App. 545, 546, 86 So. 137 (1920), and was required at common law before a witness could testify under oath. C. Gamble, McElroy’s Alabama Evidence, § 94.02(1). Under the common law rule the lack of such religious training and instruction as “excited a hope of future reward to the good and fear of punishment to the wicked” disqualified and rendered one incompetent as a witness. Jones v. State, 145 Ala. 51, 40 So. 947 (1906).

“By the common law no particular form of religious belief was insisted on as the test of competency, other than that there should be a belief in an omniscient Supreme Being as the rewarder of truth and the avenger of falsehood.” Marshall v. State, 219 Ala. 83, 86, 121 So. 72 (1929).
* * * * * *
“Our Constitution, § 3, does not seem to have been considered in connection with this principle, and we find that the state of the record in this case does not require a decision of its effect on the common-law rule.”

Section 3 of the Alabama Constitution of 1901 guarantees that “no preference shall be given by law to any religious sect, society, denomination, or mode of worship” and that the “capacities of any citizen shall not be in any manner affected by his religious principles”. The Alabama Supreme Court has not, in formal opinion, decided the effect of this constitutional provision upon the common law rule requiring a belief in a Supreme Being as the avenger of falsehood as the test for the competency of a witness. However, in Wright v. State, 24 Ala.App. 378, 135 So. 636 (1931), the Alabama Court of Appeals considered this very question. There, a majority of the Court (Bricken, P. J., and Rice, J., with Samford, J., dissenting) held that Section 3 of the Constitution “completely abrogates the common-law rule”. See 6 Wigmore, Evidence, § 1828(b) (Chadbourn Rev.1976). Consequently, testimony from an atheist must be admitted into evidence. Rodgers v. State, 42 Ala.App. 660, 177 So.2d 460, cert. denied, 278 Ala. 712, 177 So.2d 464 (1965).

Although dicta, this Court in Conner v. State, 52 Ala.App. 82, 87, 289 So.2d 650, 654 (1973), cert. denied, 292 Ala. 716, 289 So.2d 656 (1974) stated:

“We do not think that our cases call for a religious test in contravention of the Alabama Constitution, § 3, nor of the First Amendment to the Constitution of the United States. Wright v. State, 24 Ala. App. 378, 135 So. 636 (witness was an atheist).
“The important enquiry is the morality of speaking truthfully. McGuff v. State, 88 Ala. 147, 7 So. 35; Wigmore, supra, §§ 495(2) and 1828; Code 1940, T. 7, §§ 363 and 364.”

Under Wright, a witness’s religious beliefs are immaterial. Consequently, we find that the trial judge did not err in failing to qualify the witness in this regard.

The primary burden of qualifying a witness is upon the trial judge. Defense counsel never made any request that he be permitted to cross examine the youth on his religious beliefs.

“Whether a child is qualified to take a witness’ oath is a matter that is lodged necessarily in the discretion of the trial court because, among other things, the trial court has the opportunity of observing the manner and appearance of the child while being examined, an opportunity which the appellate court does not have.” C. Gamble, McElroy’s Alabama Evidence, § 94.02(3) (3rd ed. 1977).

See also Godau v. State, 179 Ala. 27, 60 So. 908 (1913). The record does not show that the witness was disqualified to testify. “(U)pon the objector to competency rests the burden to sustain it.” Birmingham Railway L. & P. Co. v. Jung, 161 Ala. 461, 478, 49 So. 434, 440 (1909).

“The discretion of a trial judge as to the competency of a witness is of a well nigh irrevisable nature.” Trammell v. State, 53 Ala.App. 246, 247, 298 So.2d 666, 667 (1974). It is only in strong cases that the ruling of the trial court admitting the testimony of a witness should be reversed. Beason v. State, 72 Ala. 191 (1882).

From the record we do not think that we are authorized to say that the trial judge committed error in permitting witness Chris Tombrello to testify. As in Hacker v. State, 31 Ala.App. 249, 250, 15 So.2d 336, 337, cert. denied, 244 Ala. 649, 15 So.2d 339 (1943), “(w)e are of the opinion [that] if any doubt of the correctness of said ruling prevailed or existed, all such doubt was fully dissipated and rendered innocuous by the straightforward manner in which this child of tender years gave (his) testimony as a witness.”

II

The defendant contends that the trial court erred by not allowing defense counsel to question the jury venire. From the record:

“MR. DAVENPORT (Defense Counsel): Would you all agree with me that, in fact, because we have a fine police department and a court system of the type that we have, that we should hold our police to the very highest standards when they are investigating a case?
“THE COURT: Well, I sustain the objection to that.”
* * 9(5 * * *
“MR. DAVENPORT: Is there anyone here who would demand Joe Roberson to prove anything to him before they would allow Joe Roberson to be found not guilty?
“THE COURT: I sustain the objection to that question, and I instruct you that I have already instructed counsel on both sides that I would not allow counsel to ask any questions concerning anticipated constructions, or theories, of law to the jury, but that I would do that, myself, and the Court feels that the Court’s instructions are adequate.”
* # s|« * $ *
“MR. DAVENPORT: Is there anyone here who would tend to believe a young child more than any other witness?
“If the child, who were testifying in the case, would prove to be confused—
“MR. BLACK (Deputy District Attorney): I object.
“THE COURT: I am going to sustain the objection. That is not proper for voir dire, in my opinion. So, I sustain the objection to it.”

Under the principles stated in Radford v. State, 348 So.2d 880, 884-885 (Ala.Cr.App. 1977), and Clark v. State, 294 Ala. 493, 318 So.2d 822 (1975), it appears that the questions asked encroached upon the oral charge of the trial judge. Therefore the judge did not abuse his discretion in sustaining the objections.

We have searched the record on appeal as required by law. Finding no error, we affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.

      . In Rogers v. State, 264 Ala. 500, 88 So.2d 685 (1965), a nine year old witness stated that he knew what it meant to tell the truth, that he was going to tell the truth, and that “little boys who tell lies—go to hell”. Although the issue we face was not presented in Rogers, the Alabama Supreme Court noted:
      “The trial court properly ruled the witness sufficiently qualified. The foregoing indicated a knowledge on the part of the witness that he knew what it meant to tell the truth and knew what telling the truth was and that if he did not tell the truth, he would be punished. This suffices to satisfy the rule. Noble v. State, 253 Ala. 519, 45 So.2d 857.”


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte Joseph M. ROBERSON. (Re Joseph M. Roberson v. State of Alabama).
    79-499.
    Supreme Court of Alabama.
    June 20, 1980.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: BOOKOUT, Judge.

text:
    James Earl SHELTON v. STATE.
    8 Div. 296.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      James M. Dyer, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., George Hardesty, Jr., Sp. Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Robbery; sentence: thirty-five years imprisonment.

Around 9:00 p. m. on December 21, 1978, the appellant and another entered the Quick Service Beverage Store in Madison and robbed it of approximately $500. During the commission of the crime, the appellant shot and wounded the attendant, Mark Bailey, in the leg. The appellant, after being informed by friends that the police were looking for him, voluntarily entered the Huntsville Police Department wherein he was arrested.

I

Appellant contends that the trial court erred to reversal in denying him the opportunity of a voir dire examination of a State’s witness. He asserts that denial of such prevented him from illustrating the impermissibly suggestive nature of a photographic array shown to the victim.

During the direct examination of the victim, appellant’s counsel requested and was granted an in camera examination of the witness to ascertain whether he had an independent source of information from which to identify the appellant other than the photographic array. Upon completing that examination, counsel further requested that he be allowed to take a prospective State’s witness, Madison Police Detective Eugene Marsh, on voir dire. The trial court denied the request indicating that it would be more appropriate at that point in the trial when Detective Marsh would be called as a witness.

A trial court is not obliged to take witnesses out of turn merely because opposing counsel wants to examine them on voir dire at counsel’s convenience. The trial judge is vested with discretion in the conduct of a trial, and appellate courts will not interfere unless there has been a clear abuse of that discretion. Townsell v. State, 255 Ala. 495, 52 So.2d 186 (1951); Carson v. State, 49 Ala.App. 413, 272 So.2d 619 (1973). The trial judge has a duty to move the testimony expeditiously along. Gulley v. State, Ala.Cr.App., 342 So.2d 1362 (1977). Here, the trial court allowed the appellant’s counsel to take one witness on voir dire examination. It was certainly not an abuse of the trial court’s discretion to refuse to allow the defense counsel to additionally call a prospective State’s witness out of turn for another voir dire examination. See: Wilbanks v. State, 289 Ala. 166, 266 So.2d 619 (1970); Holifield v. State, Ala.Cr. App., 347 So.2d 559, cert. denied, Ala., 347 So.2d 561 (1977); Sims v. State, 51 Ala.App. 183, 283 So.2d 635 (1973).

II

Appellant contends that the victim’s in-court identification had been tainted by an impermissibly suggestive photographic array. We note at the outset that the appellant made no motion to suppress the array, nor raised any objection to its introduction into evidence. Only after such was received into evidence and testimony relating to it was taken did the appellant through his motion to exclude the State’s evidence raise this contention. At that point his objection came too late in order to preserve any error on appeal. Objections to the introduction of evidence must be made at the time the evidence is offered. Beckley v. State, Ala.Cr.App., 353 So.2d 542 (1977). See also: Smith v. State, Ala.Cr. App., 344 So.2d 1239, cert. denied, Ala., 344 So.2d 1243 (1977); Slinker v. State, Ala.Cr.App., 344 So.2d 1264 (1977).

Nevertheless, we have reviewed the photographic array and the testimony of both the victim and Detective Marsh and find nothing impermissibly suggestive so as to taint the in-court identification. That array (only a portion of which was shown to the victim) was composed of photographs of similar quality, size, detail and clarity. All persons depicted were of the same race. No outstanding or peculiar features of the appellant are highlighted. Only that portion of the array shown to the victim was introduced into evidence as the remaining photographs were directed toward another suspect which the victim could not identify. No error resulted. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Jackson v. State, Ala.Cr.App., 361 So.2d 1152 (1977); Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976).

We note that the appellant’s argument in brief directs itself not to the suggestiveness of the photographic array, but rather to the victim’s inability to initially make a positive identification of him. Such an argument goes to the weight and credibility of the witness’ testimony, which is a question for the jury to decide, not a matter for appellate review.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte James Earl SHELTON. (Re James Earl Shelton v. State of Alabama).
    79-482.
    Supreme Court of Alabama.
    June 20, 1980.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.


text:
    Robert Angelo MAGRO v. STATE.
    6 Div. 111.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.

      Michael A. Newson, Gardendale, for appellant.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of Russell Dewitt McWhorter. A jury found him guilty of murder in the second degree and set punishment at ten years’ imprisonment. The first degree murder conviction of George Warren Reese, the principal in this murder, was affirmed by this Court in Reese v. State, Ala.Cr.App., 381 So.2d 107 (1980).

I

The State’s evidence tended to show that at approximately 9:00 on the evening of Friday, January 26, 1979, fourteen year old Carla Reid and her sister, Cindy, arrived at the Cross Roads Club in Jefferson County. Shortly after their arrival Carla met George Warren Reese, whom she had been dating, and the defendant, whom she had met once before. After having a conversation with both men, Carla left for the restroom and then went to the dance floor area alone to listen to the band. During this time, the defendant proceeded to a separate section of the club and played pool.

Russell Dewitt McWhorter engaged Carla in a conversation on the dance floor. With McWhorter was his friend, Kelley Latta. Reese noticed McWhorter and Carla together and apparently became jealous. He took Carla aside and told her that he did not like people talking to her and that he was going to get McWhorter outside and “beat him up”. Reese and Carla then walked over to McWhorter, and Reese asked McWhorter if he wanted to go outside and smoke a “joint” of marijuana. After some hesitation McWhorter agreed to go. McWhorter said he was going to get Kelley to come along and Reese left to get “his friend” the defendant. It is undisputed that the defendant heard none of this conversation.

During the time that Reese was gone to get the defendant, Carla advised McWhorter not to go because Reese wanted to fight. McWhorter replied that he was aware of Reese’s intentions but that he was “going to beat his (Reese’s) butt”.

McWhorter, Latta, Reese, and the defendant left the Cross Roads Club in the defendant’s automobile at approximately 10:30 P.M. The defendant drove to the end of a street suggested by Latta. Behind the automobile the four men gathered and smoked marijuana. There was no conversation during this time. Latta noticed that Reese kept slipping his hand in and out of his' right front pocket.

After approximately ten to fifteen minutes, Reese looked at the defendant and said, “Are you ready?” The defendant answered, “Any time.” A few seconds passed and Reese struck McWhorter “right square in the chest”. As McWhorter fell to the ground Reese turned to look at Latta who immediately started running up the street. Latta heard a voice behind him “holler out something about you can’t run from a .38”. Latta then ran up onto a lighted porch of a house and turned around to see a figure out in the street. He could see the clothes but not the face. Latta identified that figure as the defendant based on the clothes and the sound of the voice. Latta ran into the house and asked the occupants to call the police. Birmingham police officers and an ambulance arrived on the scene between 11:30 P.M. and 12:00 midnight. McWhorter was dead from multiple stab wounds when they arrived.

On cross examination, defense counsel revealed some contradictions in Kelley Latta’s testimony at the preliminary hearing and his testimony at trial. At the preliminary hearing Latta testified that the time interval between the words “are you ready” and “any time” and the stabbing of McWhorter was approximately two minutes. At trial Latta stated that he had later clocked the time closer to 40 to 45 seconds. Also at preliminary hearing Latta testified that Reese was the one who chased him and not the defendant.

Officers George L. Cooley and Charles M. Melton, of the Birmingham Police Department, acting on descriptions given by Latta, arrested Reese and the defendant at the Cross Roads Club late Saturday night January 27, 1979. The defendant gave a statement to Officer Melton denying any involvement in or knowledge of McWhorter’s murder. He stated that he and Reese last saw McWhorter and Latta at the Super Cellar (Roebuck Eight Theatre and Disco) in Roebuck Shopping Center after riding around. They let McWhorter and Latta out in the parking lot and watched them get into an automobile with unknown individuals and drive off.

At this point the State rested its case. Defense counsel entered a motion to exclude the evidence for failure of the State to show “any participation, involvement, aiding, abetting or assisting or otherwise encouraging the actual perpetrator of this crime on the part of the defendant”. The trial judge correctly denied this motion. An aider or abettor in the commission of a felony must be tried as a principal. Alabama Code 1975, Section 13-9-1.

“Although a community of purpose on the part of the conspirators to act criminally must exist at the time the crime was committed, such combination may be formed in a flash. It need not be shown that the specific act complained of was by prearrangement. Ray v. State, 32 Ala. App. 556, 28 So.2d 116.”
* * sk * * *
“ ‘ . . . [T]he responsibility for incidental and often for accidental results broadens with the magnitude or heinousness attached to the unlawful act specifically agreed to be perpetrated. This is upon the principle that every one is presumed to intend, and therefore must be held responsible for, the natural and probable consequences of his own acts. It necessarily follows that, where one person combines with another to do an unlawful act, he impliedly consents to the use of such means by his conféderate as may be necessary or usual in the successful accomplishment of such an act. The more flagrant and vicious the act agreed to be done, the wider is the latitude of the agency impliedly conferred to execute it.’
“Participation and community of purpose may be shown by circumstantial evidence or inferred from the conduct of the participants. Appellant’s complicity is a question for the jury. Skumro v. State, 234 Ala. 4, 170 So. 776; Pearce v. State, 4 Ala.App. 32, 58 So. 996.”
“ . . . . Such facts as his presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which participancy may be inferred.”
Smith v. State, 57 Ala.App. 151, 156-7, 326 So.2d 680, 685, cert. denied, 295 Ala. 419, 326 So.2d 686 (1976).

In Conley v. State, 354 So.2d 1172, 1177 (Ala.Cr.App.1977), this Court stated:

“ . . Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, brings the accused within the statute that makes each person concerned in the commission of a felony, directly or indirectly, a principal... . ”

The defendant was with the man who actually murdered McWhorter a significant time before, during and after the actual act of killing. Other circumstances from which the jury could reasonably infer guilty participation by the defendant in this senseless murder are (1) the defendant’s response of “Any time” when Reese asked, “Are you ready?” made immediately before the stabbing, (2) Latta’s identification of the defendant as the one who chased and threatened him, and (3) the defendant’s denial of any involvement in the murder of McWhorter and his fabricated statement to Officer Melton. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert, denied, 368 So.2d 877 (Ala.1979); Kimmons v. State, 343 So.2d 542 (Ala.Cr.App.1977).

The trial testimony of Kelley Latta contradicted and was inconsistent with his statements at the preliminary hearing. The effect of contradictory and inconsistent statements goes to the credibility of the witness and is a question for the jury. Jones v. State, 145 Ala. 51, 40 So. 947 (1906); Otinger v. State, 53 Ala.App. 287, 299 So.2d 333 (1974); Lewis v. State, 44 Ala.App. 319, 208 So.2d 228 (1968).

The evidence for the defense conflicted with that presented by the State. The defendant took the witness stand and denied replying “any time” in response to Reese’s “Are you ready?” He claimed that it was Reese who chased after and threatened Kelley Latta. The defendant denied any involvement in the actual murder and claimed that he had no prior knowledge that Reese was going to kill McWhorter. He stated that he had no choice but to leave the scene of the crime with Reese although he admitted that Reese never threatened him. His testimony revealed that he was only an accessory after the fact but not before.

The testimony is in direct conflict as to whether the defendant was an accomplice of George Warren Reese in the actual murder. Where the evidence is conflicting and is susceptible to different inferences, a jury question is present. Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978). When a prima facie case has been proven, conflicting evidence always presents a question for the jury. May v. State, 335 So.2d 242 (Ala.Cr.App.1976); Jones v. State, 54 Ala.App. 251, 307 So.2d 59 (1975). Therefore, the defendant’s request for the affirmative charge and motion for a new trial were properly overruled and denied.

II

During the presentation of the State’s case the prosecuting attorney elicited testimony from witness Carla Reid concerning events which occurred after the charged homicide. This testimony revealed that George Warren Reese and the defendant double-dated with Carla and her sister the night after the murder. During the course of the night they were thrown out of one night club because Reese got into a fight. They eventually ended up at the Cross Roads Club where Reese and the defendant were arrested. The defendant contends that this evidence was highly prejudicial and totally irrelevant to the crime charged.

During the trial, defense counsel made only one objection to this testimony.

“MR. NEWSOM (Defense Counsel): Your Honor, I am going to object as to the events occurring on Saturday night unless the prosecutor shows how they have a bearing on the case.
“MR. BARBER (Deputy District Attorney): Well, it will, but it is going to take a minute to get there.
“THE COURT: All right.”

This was a conditional objection. No adverse ruling had been obtained at this point. There is nothing in the record to indicate any further objection on this issue. In addition these events were brought out by the defendant in greater detail during his own testimony. Our review on appeal is limited to matters on which rulings have been invoked at trial court. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974). Moreover, any indications of a consciousness of guilt, however minute or insignificant they may be, are admissible against a defendant if they tend to elucidate the transaction. McAdory v. State, 62 Ala. 154 (1878). Generally it is permissible to show the whereabouts of the defendant both prior and subsequent to the commission of the offense to the time of his arrest. Clifton v. State, 359 So.2d 853 (Ala.Cr.App.1978).

Ill

The defendant alleges that the trial court committed reversible error in refusing twenty-two of the sixty-one written charges he requested. While most of these charges contained correct principles of law, their refusal was proper. Some of the refused requested charges were fairly and substantially covered either in the court’s oral charge or in the requested charges given. For that reason their refusal was not error. Kennedy v. State, 291 Ala. 62, 66, 277 So.2d 878 (1973); Harris v. State, 371 So.2d 979, 981 (Ala.Cr.App.), cert. denied, 371 So.2d 984 (Ala.1979). Other charges were incomplete or contained misspelled words and were properly refused for these reasons. Bascom v. State, 344 So.2d 218, 222 (Ala.Cr.App.1977); Mincey v. State, 247 Ala. 665, 666, 25 So.2d 777 (1946); Reeder v. State, 210 Ala. 114, 119, 97 So. 73 (1923); Johnson v. State, 133 Ala. 38, 43, 31 So. 951 (1901). None of the refused requested charges which were not covered in the court’s oral charge were hypothesized on a “belief from the evidence” and were consequently properly refused. Thompson v. State, 369 So.2d 50 (Ala.Cr.App.), cert. denied, 369 So.2d 52 (Ala.1979). Statements of law in judicial opinions are not always proper for jury instructions in other cases. Knight v. State, 273 Ala. 480, 490, 142 So.2d 899 (1962).

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.


text:
    Ex parte Robert Angelo MAGRO. (Re Robert Angelo Magro v. State of Alabama).
    79-565.
    Supreme Court of Alabama.
    June 20, 1980.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    John Y. DELAROSA v. STATE.
    3 Div. 171.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Rehearing Denied April 22, 1980.
    J. Paul Lowery, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., J. Anthony McLain, Sp. Asst. Atty. Gen., for appellee.
   TYSON, Judge.

John Y. Delarosa was charged by a two count indictment with the offense of murder in the second degree. Count one charged that he “unlawfully, and with malice aforethought,” committed vehicular homicide against Charles Allison McMurray and Christopher Lee McMurray. Count two averred the same killing with the additional charge that the appellant was operating his motor vehicle while intoxicated. A jury found the appellant “guilty of Manslaughter in the First Degree and fix[ed] his punishment at imprisonment in the penitentiary for a term of one year . .. ” The trial court correctly amended the verdict by sentencing the appellant to one year in the county jail instead of one year in the penitentiary. Ala.Code § 15-18-1 (1975).

This case grew out of a horrible automobile accident that took the lives of seven year old Charles McMurray and three year old Christopher McMurray. The evidence presented by the State revealed that the appellant met some co-workers after work for a “couple” of drinks at the Maxwell AFB Non-Commissioned Officers (NCO) Club on the afternoon of May 25, 1979. From approximately 4:30 p.m. until approximately 11:15 p.m. the appellant consumed two regular beers with some chicken and snacks at the NCO Club, two small Miller beers at co-worker Ricky Loudermelt’s apartment, and two bourbon and cokes at the Diplomat Inn lounge.

At approximately 11:15 p.m. the appellant left the Diplomat Inn driving his orange van down Highway 331 South to his residence at Highland Home, Alabama. Approximately six miles north of Ada, Alabama, the appellant passed, in a legal passing zone, an automobile driven by Gary Crow. Mr. Crow testified that the appellant stayed in the northbound lane too long because he was approaching the top of a hill before pulling back into the southbound lane. Highway 331 in this area is a curvy, hilly, two lane highway. Mr. Crow, whose automobile was set on cruise control at between fifty-five and sixty miles per hour, estimated the appellant’s speed at sixty-five to seventy miles per hour. The appellant’s van pulled away from Mr. Crow’s automobile and was out of sight within a few minutes.

Approximately six to ten minutes after passing Mr. Crow the appellant’s van collided with an automobile driven by Mrs. Sandra McMurray near the intersection of Highways 94 and 331 in front of an Amoco filling station. According to the testimony of Mrs. McMurray she first saw the appellant’s van “quite a ways” up the highway on her side of the road (northbound lane) coming toward her. She made a decision to get in the left lane (southbound) thinking the van would pass her on the right side and attempted to call on her CB radio to warn traffic behind her. Mrs. McMurray swerved to the left at the last second. She does not remember the impact because she blacked out.

Alabama State Trooper Corporal James E. Nelson, Trooper Timothy G. Hardy, and Emergency Medical Technician Dean Mack all testified they detected the odor of alcoholic beverages on the appellant. Corporal Nelson stated he did not detect any odor of alcohol on Mrs. McMurray. Although Trooper Hardy had an Alcosensor in his trooper car that is used to conduct field tests for intoxication neither he nor Corporal Nelson utilized the device. Corporal Nelson testified that no arrest was made at the scene of the accident.

Dr. Jesse William Austin, Jr. testified that both McMurray boys were dead on arrival at Jackson Hospital in Montgomery. Dr. Austin also examined the appellant at approximately 12:30 or 1:00 a.m. on May 26, 1979. He stated the appellant had suffered a head injury that was “[n]ot really severe, but enough . for some observation.” The appellant was conscious during the examination. Dr. Austin did not remember any alcohol odor about the appellant and entered nothing on the emergency room admission sheet concerning alcohol. He authorized registered nurse Nina Green to extract blood from the appellant for routine lab work.

Dr. Austin also conferred with Dr. Franklin Caswell Miles, a neurosurgeon, concerning the appellant’s injury. Dr. Miles’ examination of the appellant concluded that he was neurologically intact.

While at the scene of the accident Corporal Nelson directed Trooper Raymond Dawson Smith to go to Jackson Hospital and obtain a specimen of blood from the appellant to determine his blood alcohol level. At approximately 1:00 a.m. on May 26, 1979, nurse Nina Green extracted a blood sample from the appellant with his consent and turned the sample over to Trooper Smith. This extraction of blood was in addition to the one authorized by Dr. Austin.

After the proper chain of custody was testified to, Criminalist Allen Adair, a drug identification and blood alcohol analysis expert with the Alabama Department of Forensic Sciences, testified that his analysis of the appellant’s blood sample revealed a blood alcohol level of .22 grams percent by weight of ethyl alcohol.

Toxicologist Richard Roper, supervisor of the Montgomery Regional Laboratory of the Department of Forensic Sciences, testified that a person’s driving ability would be severely impaired with a blood alcohol level of .22.

The State rested its case at this point and the appellant’s motion to exclude the evidence was overruled by the trial court. The appellant took the witness stand and denied that he was intoxicated during the time in question. He testified that he was driving in the wrong lane immediately prior to the accident in order to avoid hitting an automobile protruding onto the highway from the Twilight lounge parking lot up the road from the scene of the accident. Once in the wrong lane he was blinded by the bright lights of the oncoming vehicle. When he started getting back into his lane of traffic the crash occurred and he was knocked unconscious. The appellant also testified he was only going sixty miles per hour when he passed Mr. Crow.

The appellant testified he was coming in and out of consciousness at the hospital and does not recall much of the conversation with nurse Green.

Judith Duncan Delarosa, wife of the appellant, testified that at approximately 5:30 or 6:00 a.m. on May 26,1979, she detected a light odor of alcohol on her husband in the hospital. She stated that State Troopers came to see the appellant at the hospital for the next two days but never put him under arrest.

I

The appellant contends the taking of his blood sample for purposes of blood alcohol level analysis violated his Constitutional rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. More specifically he contends that his consent to the extraction of the blood was not a knowing, intelligent, and understanding consent.

At the outset we will state that the Fifth Amendment question has no merit. The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), has specifically held that the extraction of blood for purposes of chemical analysis does not violate the self-incrimination privilege.

Schmerber also stated that “if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment.” 384 U.S. at 767, 86 S.Ct. at 1834. But it is well settled that a search conducted pursuant to consent is one of the “ ‘few specifically established and well-delineated exceptions’ ” to the privilege against unreasonable searches and seizures. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973). In order to justify the search of a suspect not in custody on the basis of his consent it must be demonstrated that the consent was voluntarily given. “Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” Schneckloth, 412 U.S. at 248-249, 93 S.Ct. at 2059.

There is no evidence to indicate that appellant was in custody of law enforcement authorities at the time of the blood extraction. He was not under arrest at the time and was not arrested for this offense until approximately two weeks later.

The trial court considered testimony given both in and out of the jury’s presence before reaching a determination that appellant’s consent was voluntary. The following is the trial court’s ruling on this point:

“THE COURT: Gentlemen, I am ready to rule, but I am going to make a record for you, Mr. Lowery.
I find these to be the facts relevant to the determination in this case: The Defendant was injured in the accident, and the injury apparently had some severity in that he had a fracture of some facial bones. Specifically, sinus and as otherwise described by Dr. Miles. I further find that under Dr. Austin’s testimony the severity of that injury, as per Dr. Austin’s testimony, was 3.5 on a 10 point scale of severity.
The third fact I will consider is the testimony of the Trooper that the Defendant was addled and confused at the scene. I will further consider the fact that no drugs were administered to the Defendant that night. I will further consider the fact that the Defendant was admitted to the hospital for observation. I will further consider the fact that the Defendant was responsive upon admission to the Emergency Room. I will further consider the fact that the Defendant talked to Nurse Green and gave his consent. I would further consider the fact that the Defendant gave his correct phone number to Mrs. Green. I will further consider the fact that Nurse Green said the Defendant told her his name. I will consider the Defendant’s testimony that he did not give any consent to the best of his knowledge. That he doesn’t remember all of the blood taking. The Defendant testified that he was semi-conscious, that he remembers some of Nurse Green’s remarks, that he remembers a needle being — or the puncture, the taking of the blood. He remembers some of the blood taking. I will consider the fact that the Defendant was not advised of his Constitutional rights and was not advised that he could refuse. I will consider the fact that the Defendant’s pupils were normal upon examination by Dr. Miles at seven forty five in the morning. I will consider Dr. Miles’ testimony that a blow of that magnitude would be expected to cause unconsciousness, but it would be also quite possible that he would have regained consciousness and could have been responsive.
Based on the totality of the circumstances in this case, I am going to find then that the consent was voluntarily given.
And you have got your objection to the Court’s ruling.
MR. LOWERY: Yes, sir.” (R.p. 181-183)
“THE COURT: All right.
I will put something else in the Record for you.
Another fact of consideration was that Trooper Smith testified that the Defendant responded to Mrs. Green, but he did not respond to the Trooper.” (R.p. 184)

As can be seen from the trial court’s ruling the evidence on the issue of consent was conflicting. “Our official approach to questions for review is appellate only, a fact well known by the legal profession. Our review cannot be based solely on the fact that we find the evidence in conflict. Neither can we pass judgment on its possible truthfulness or falsity.” Fagan v. State, 35 Ala.App. 13, 44 So.2d 634, cert. den., 253 Ala. 444, 44 So.2d 638 (1949). In our review of the record we can find no evidence of duress or coercion. Based on the above authorities we find no reversible error in this case concerning the extraction and analysis of the appellant’s blood. See also, Hill v. State, Ala.Cr.App., 366 So.2d 296 (1978), affirmed, Ala., 366 So.2d 318 (1979).

II

The appellant next contends the State failed to lay a proper predicate for introduction into evidence of the results of a blood alcohol analysis on appellant’s blood sample as required by Patton v. City of Decatur, 337 So.2d 321 (Ala. 1976). He contends no “certified methods promulgated by the Board of Health for the administration of the [blood] test” were before the trial court as required by Patton. 337 So.2d at 324.

During direct examination of Criminalist Allen Adair by the State the following occurred:

“Q Can you tell us, in regards to the blood alcohol level, what your analysis revealed?
A Yes, Sir.
MR. LOWERY (Defense attorney): Now, we object to that, and would move to suppress any report or any test on the grounds that it would violate the constitutional rights of this Defendant as the evidence has developed in this case, and the fourth, fifth and fourteenth amendments to the Constitution.
And I would like to be heard on the law, if the Court please.” (R.p. 152-153)

Immediately after this objection the jury was removed from the courtroom. After several witnesses testified, one in the presence of the jury, the court issued a ruling that the consent of the appellant to the extraction of the blood was voluntary. Later, Mr. Adair was recalled to the witness stand and the following occurred:

Direct examination by the State:
“Q And we stopped when you were fixing to testify as to whether or not you had an occasion to perform analysis on this blood sample to determine the alcoholic content of it. Have you, sir, had an occasion to perform analysis on this blood sample to determine the alcoholic content of it?
A Yes, sir.
Q Would you tell the ladies and gentlemen of the Jury, please, sir, what the blood alcohol level in this sample that you analyzed was, sir?
MR. LOWERY: Note our objection. Same grounds as stated in our Motion to Suppress.
THE COURT: All right. Overruled. A Yes, sir. The blood alcohol level was .22 grams percent by weight of ethyl alcohol.
MR. LOWERY: We move to exclude the answer.
THE COURT: Deny your Motion.
MR. LOWERY: We move for a mistrial.
THE COURT: Deny your Motion.” (R.p. 190)

We have searched the record and are unable to find any objection by the appellant or ruling by the trial court concerning the laying of a proper predicate for introduction of the results of the blood analysis. The only objection appellant has given concerns the constitutional rights that we spoke to in part I of this opinion. On appeal this court confines its decisions to grounds of objection specified, those grounds omitted are deemed to have been waived. Pope v. State, 39 Ala.App. 42, 96 So.2d 441, cert, den., 266 Ala. 699, 96 So.2d 447 (1957). Review on appeal is limited to matters ruled on at trial. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974).

We have carefully examined the record in this cause and find same to be free of error. This case is due to be and is hereby affirmed. Cf., Commander v. State, Ala.Cr. App., 374 So.2d 910 (1978), cert. quashed, Ala., 374 So.2d 921 (1979).

AFFIRMED.

All the Judges concur.


text:
    Ex parte John Y. DELAROSA. (Re John Y. Delarosa v. State of Alabama).
    79-549.
    Supreme Court of Alabama.
    June 20, 1980.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: PER CURIAM.

text:
    Jack J. NEARY, Appellant, v. STATE of Florida, Appellee.
    No. 51691.
    Supreme Court of Florida.
    May 15, 1980.
    Rehearing Denied July 11, 1980.

      Richard M. Saccocio, Sp. Public Defender, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The appellant, Jack J. Neary, was convicted by a jury of first-degree murder, robbery, burglary, and sexual battery. After a jury recommendation of life imprisonment, the trial judge imposed the death sentence for the first-degree murder conviction. We have jurisdiction. We affirm the conviction but reduce the sentence to life imprisonment in accordance with the jury recommendation.

The relevant facts are as follows: On September 25, 1976, a Volkswagen automobile was found submerged in a canal in Hollywood, Florida. Investigating officers found a woman’s purse in the car. Contents of the purse revealed that its owner was Mrs. Laura Cagle, a sixty-six-year-old resident of a nearby trailer park. The initial attempts to locate her, including a visit to her trailer home, were unsuccessful. In the second visit to her trailer home, officers found Mrs. Cagle’s half-clothed body hidden underneath a foldout bed. An examination of the victim’s body revealed that she had been raped and strangled. Investigators found two blue buttons on the floor of the bedroom where the victim’s body was discovered.

After conferring with Mrs. Cagle’s relatives, the investigators determined that certain diamond rings were missing. The rings were later recovered by the officers from Wayne Edward Morris who stated that he received them from Darry Smithers. Smithers gave a sworn statement on September 28 stating he had received the rings from the appellant, Jack Neary.

Appellant was eighteen years of age and resided with his grandmother in the same trailer park as the Cagle trailer home. Neary had previously served as an informer in several local burglaries. On September 29 two detectives visited appellant’s residence. Neary was awakened by his grandmother and agreed to talk with the officers. The grandmother asked them to withdraw from the living room in order for her to continue to watch television. The officers and Neary went to the rear of the trailer to Neary’s bedroom. The record fails to reflect any objection by Neary to the officers’ moving with him to this location. The officers and Neary talked for a short time but not about any specific crimes. While in the bedroom Detective Jad win noticed a blue shirt hanging in an open closet. He reached in and removed it from the clothes rack and remarked that he owned one like it. Both detectives noticed that buttons were missing from the shirt. Jad win also noticed a shirt with a reddish-colored stain on it lying on the floor of the closet. At the conclusion of the questioning, Neary accompanied the officers to the police station.

While Neary was at the police station, the police obtained a warrant to search Neary’s room. The affidavit in support of the warrant specifically set forth the following: (1) the discovery of Mrs. Cagle’s car; (2) the two searches of the Cagle home; (3) the discovery of the body of Laura Cagle, its position, and the fact that her death was caused by strangulation; (4) that missing diamond rings of the deceased had been recovered by the police and were traced through a chain of possession which began with Neary; (5) that a blue shirt was hanging in Neary’s closet and a shirt with a reddish-colored stain was lying on the floor of the closet; and (6) that buttons were missing from the blue shirt, as observed by Detectives Jad win and Cormican during the visit to Neary’s trailer, and the buttons remaining on the shirt appeared to be the same type as those discovered in the bedroom of the deceased. Pursuant to the warrant, items of clothing including the stained shirt and the blue shirt with the two missing buttons were seized from the residence of the appellant.

Upon his arrival at the police station, Neary had been given Miranda warnings. Two interrogation sessions were held, during the latter of which officers confronted Neary with the incriminating results of the search. At the conclusion of the interrogations Neary confessed to the Cagle murder and implicated the codefendant, Mark Eu-bank.

Neary and Eubank were tried jointly. At trial, all references to Eubank were deleted from the Neary confession pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Also, expert testimony revealed that the buttons found in the victim’s trailer contained the same thread and cloth fiber as that of the blue shirt, and that the threads securing the buttons were knotted in an identical fashion. At the close of the state’s case, Eu-bank’s motion for directed verdict was granted. Neary’s motion for directed verdict was denied, and he subsequently was convicted of all counts charged.

During the sentencing phase the jury was presented with the entire confession which reflected that Eubank played a significant role in the perpetration of the offenses. Mitigating evidence was also provided by appellant’s grandmother who testified that Neary was a slow learner and had needed special assistance to keep up in school. Further testimony established that Neary had grown up without a father and had been reared by his mother and another woman.

The jury recommended a sentence of life imprisonment. The trial judge, however, rejected this recommendation and imposed the death sentence, finding that the capital felony was committed in the course of a burglary, robbery, and rape; that it was committed both for pecuniary gain and to avoid arrest; and that it was especially heinous, atrocious, and cruel. The trial court considered all the statutory mitigating circumstances and rejected each. In considering Eubank’s participation as a co-defendant, the trial court found that Neary’s “participation in this capital felony was extremely dominant and major, and the capital felony was committed by the defendant, Jack Joseph Neary.” The trial court further found:

[T]he Defendant was under no duress or disturbance. The Defendant did drop out of school in the eighth grade. He has an I.Q. of approximately 90 and on a full scale approximately 103. Generally, I would say average to below average. He is neither brilliant nor is he dumb. His formal education speaks for itself. He has not seen his father since the age of three and has seen his mother often during his life. He was raised by his maternal grandmother. Disciplining the Defendant was difficult for the grandmother because of the age discrepancy; but his grandmother definitely raised this Defendant teaching him right from wrong and providing him with great moral guidance and religious and theological training. She loved and cared for him by high standards and the Defendant was taught those standards and was fully aware and conscious of them. The Defendant did appreciate the criminality of his conduct and his ability to conform his conduct to the requirements of law was not impaired at the time of the capital felony.

Neary contends that his conviction should be set aside on the grounds that: (1) the entry into his room by the detectives which led to the discovery of the incriminating blue shirt constituted an unreasonable search; (2) if the search was unreasonable, then the confession must also be suppressed as “fruit of the poisonous tree”, (3) the incidental observance by four jurors of Neary wearing handcuffs and shackles pri- or to the commencement of the third day of the trial unduly prejudiced those jurors against him; (4) cumulatively, the admission of a deposition by a physician leaving the country together with the admission of a vial of the victim’s blood and comments by the prosecution in final argument deprived him of due process; and (5) the evidence against him was insufficient.

The first two grounds concern the validity of the seizure of the blue shirt with two missing buttons. The record is clear that Neary permitted the officers to enter his bedroom, and that their presence together with the observance by one officer of the blue shirt hanging in the closet was proper and reasonable. The only possible improper conduct resulted from the officer’s removing the shirt from the clothes rack to determine if two buttons were missing. The officers, however, did not seize the shirt at that time and only made their findings known in the affidavit for the search warrant which was subsequently issued.

We recognize that there is a problem concerning the extent to which an officer may take overt action to determine whether an object in open view is evidence of a crime. Only a few cases have dealt with this particular issue. In State v. Holloman, 197 Neb. 139, 248 N.W.2d 15 (1976), officers went to the home of a suspect in a rape case, knocked on the door, and were admitted by the defendant. The officers informed him that they wished to question him. The defendant agreed to accompany the officers but first retired to a bedroom to dress. While the defendant was out of the room, one officer noticed several pairs of shoes lying on the floor. Prior to his arrival, the officer knew that several footprints and heelprints were left on the ground outside the home of the victim. He picked up some shoes and noticed that the heels of one pair resembled the imprints left on the ground. The shoes were seized. The Nebraska Supreme Court, in considering the defendant’s plain view challenge to the search, held the seizure proper. The court recognized that although the shoes were in open view and the heels were not, the officer had the “right to scrutinize these shoes more carefully, and to examine them, including lifting them up and turning them over.” Id. at 144, 248 N.W.2d at 19. In United States v. Woods, 560 F.2d 660 (5th Cir. 1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1452, 55 L.Ed.2d 497 (1978), the officers arrived at the defendant’s home to execute an arrest warrant. They were led through the home by another occupant. On passing through one room, an officer observed “three to four inches of a shotgun barrel protruding out from under the front of a cabinet.” Id. at 662. The defendant contended on appeal that the seizure of the shotgun could not be sustained on a plain view theory because it was not immediately apparent that the object observed was contraband and that it could just as easily have been a pipe. The Fifth Circuit rejected this contention and relied on the experience of the investigating officer who could have readily and reasonably suspected the object as being a shotgun barrel in order to satisfy the “immediately apparent” element of the plain view test.

Although the plain view doctrine may allow this type of examination, it does not authorize search and seizure of items contained within such objects as: a file folder standing among sixty or seventy other files on a counter top, United States v. Scios, 590 F.2d 956 (D.C. Cir. 1978) (En Banc); file cabinets, United States v. Jackson, 576 F.2d 749 (8th Cir. 1978); or a billfold, United States v. Berenguer, 562 F.2d 206 (2nd Cir. 1977).

There are three conditions necessary to sustain a plain view search under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). These conditions require that: (1) the police officer must be in a place where he has a lawful right to be; (2) in the course of his presence the officer inadvertently comes upon an object which is openly visible; and (3) it must be immediately apparent to the officer that the object constitutes evidence of a crime.

Although it is conceivable that the facts and circumstances in this case meet the plain view doctrine of Coolidge, it is not necessary for this Court to rely upon that doctrine to uphold the search warrant. The law is clear that a search warrant is not invalidated by inclusion of illegally obtained evidence in the supporting affidavit where the affidavit contains other valid allegations sufficient to establish probable cause. Thus, the critical question is whether the independent and lawful information stated in the affidavit suffices to show probable cause. United States v. DiMuro, 540 F.2d 503 (1st Cir. 1976); Howell v. Cupp, 427 F.2d 36 (9th Cir. 1970); United States v. Sterling, 369 F.2d 799 (3d Cir. 1966); Chin Kay v. United States, 311 F.2d 317 (9th Cir. 1962); United States v. Epstein, 240 F.Supp. 80 (S.D.N.Y.1965).

The information in the affidavit reciting that Neary had initially possessed the victim’s diamond rings, that he lived in the same trailer park where the victim lived, that blue buttons from a blue shirt were found at the crime scene, and that a blue shirt hung in appellant’s closet, was sufficient of itself to establish probable cause for the search warrant without the allegation that the shirt was missing blue buttons. Under the circumstances, we hold that the search was reasonable and that the admission into evidence of the blue shirt and the incriminating buttons was proper. Since the search was proper, we need not address the invalidity of the confession as the fruit of an unreasonable search.

The contention that Neary was prejudiced because some jurors inadvertently saw him being brought to the courtroom in handcuffs is without merit. We recognize that an individual accused of a crime cannot be forced over his objection to stand trial in prison garb. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). This appellant, however, was not forced to stand trial in prison clothes or in handcuffs, and we find that the inadvertent sight of the appellant in handcuffs was not so prejudicial that it required a mistrial.

The assertion of cumulative errors committed by preserving the testimony of a nonresident doctor leaving the country permanently, the introduction of a vial of the victim’s blood, and prosecutorial comments during closing argument is without merit. The appellant was present at the taking of the doctor’s deposition. Appellant’s rights were properly protected by the procedure used in preserving the doctor’s testimony. Although the introduction of the vial of the victim’s blood taken and identified by the serologist during his testimony may not have been necessary, such did not amount to reversible error. With reference to the third asserted cumulative error, we find that the prosecutorial comments were not objected to and do not constitute prejudicial error. In conclusion, we find that the evidence is clearly sufficient and that the record sustains conviction on each charge.

In reviewing the propriety of a death sentence, this Court has previously held that it must weigh heavily the advisory opinion of life imprisonment by the sentencing jury. The facts justifying the death sentence must be clear and convincing in order to overrule the jury’s recommendation. Malloy v. State, 382 So.2d 1190, No. 49, 580 (Fla. Dec. 20, 1979); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Tedder v. State, 322 So.2d 908 (Fla.1975). It is our duty to examine the record in this cause and determine whether there are clear and convincing facts that warrant the imposition of the death penalty over a jury’s recommendation of life imprisonment.

The record in this cause reflects that with one exception the same facts and circumstances before the jury were also before the judge. The only additional factor not before the jury was a presentence investigation report, prepared and submitted by a parole and probation supervisor, that recommended a sentence of death. That report contained no new factual information but did contain a subjective evaluation and opinion of the probation supervisor.

From our objective review of the record, the jury was apparently influenced in its recommendation for life imprisonment by the following factors: (1) Neary’s youthful age at the time he committed this crime; (2) Mark Eubank, the codefendant, was dismissed on a motion for directed verdict at the conclusion of the state’s case; (3) during the sentencing phase the jury was allowed to hear Neary’s entire confession without references to Eubank being deleted, as had been done during the trial phase of the case; the confession in its entirety indicated that Eubank had played a significant role in the perpetration of this criminal act; and (4) Neary was a slow learner and needed special assistance to keep up in school, and he grew up without a father and was reared by his mother and another woman. Given all the facts and circumstances, including Eubank’s dismissal, we find that the action of the jury was reasonable.

The state urges that this case is indistinguishable from Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978), in which we upheld the trial court’s sentence of death despite a jury recommendation of life imprisonment. In our view the factual circumstances of the two cases are clearly distinguishable, and we are unable under the circumstances of this case to affirm the imposition of the death penalty.

In conclusion, we have carefully reviewed the order of the trial judge and fully recognize his reasons for the imposition of the death penalty under the circumstances of this rape-murder. We find, however, that the jury’s recommendation of life imprisonment should have been accepted by the trial court.

For the foregoing reasons, we affirm the appellant’s convictions and sentences with the exception of the death sentence which we reverse and remand with directions to enter an order sentencing the appellant to life imprisonment without the possibility of parole for twenty-five years.

It is so ordered.

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

ADKINS, J., concurs as to the convictions, and dissents as to the sentences.

      . Art. V, § 3(b)(1), Fla.Const.

      . Material portions of the confession presented to the jury are as follows:
      Q. And you and MARK did go to the trailer court?

        Yes.
      What, if anything, did you do at the trailer court?
      Went in the trailer court (inaudible) so we went down and came back around, stopped about Center Street, behind Center Street, got out of the car and went over toward LAURA CAGLE’s house, we went in. <

      How did you get in JACK?
      Opened the window and just went in.
      Which window JACK?
      On the door.
      How did you open that window?
      Just lifted it open.
      Was there a screen? Did you have to push a screen in or was there to have been a screen there? a

      There was and it must of already been pushed out a little bit.
      What kind of window was this?
      Trailer windows on every door, like jalousies.
      Did you pull it out or did you push it up or did you push it in? o'
      (Hand jesture [sic] indicating that he pulled it up). <

      Pulled it up. And how did you get the door open? o-
      (No response).
      Did you go inside the trailer then?
      Yes.
      Where was ... Go ahead.
      Me and MARK were inside, just like looking around (inaudible). I went to the bathroom part, there’s diamonds on the sink.
      OK, when your [sic] talking diamonds, are you talking about diamonds just setting there or . O'
      Diamond rings.
      Do you remember how many were there?
      Four (4).
      OK, and where was MARK when this was happening?
      He was right behind me.
      Did he see the diamond rings in the bathroom?
      Yes. <

      And what did you do with the diamond rings? O'
      Put them in my pocket.
      Right at that point?
      Yes.
      What happened then JACK?
      Then we heard somebody cough and we got scared. We went and looked into the bedroom.
      JACK, let me make sure I understand this. You just said you and MARK entered the trailer and you found the diamond rings in the bathroom? O'
      Yes. >
      And you heard someone cough? o
      A. Yes.
      Q. And you looked into the bedroom?
      A. Yes.
      Q. What happened after that?
      (SUSPECT IS CRYING AT THIS TIME)
      Q. Were you afraid?
      A. Yes.
      Q. Did you know who that old lady was?
      A. I had an idea.
      Q. She knew you, didn’t she?
      A. Yes.
      Q. Did she wake up?
      A. Yes.
      Q. Then what happened when she woke up JACK?
      (NO RESPONSE — CRYING)
      Q. What happened when she woke up JACK?
      A. She got up.
      Q. She got up.
      A. She sat up on the bed like. She screamed.
      Q. Did she call you by name JACK?
      A. I don’t know, it’s possible, I don’t know, (inaudible).
      Q. Did she say anything to you?
      A. I don’t know, I can’t remember.
      Q. OK, but at this point you and MARK were in the bathroom, right?
      A. When she was screaming?
      Q. Yes.
      A. We were in the bedroom.
      Q. Is the bedroom right by the bathroom?
      A. Yes.
      Q. Take that cigarette, JACK, do you want a cigarette.
      A. Yeah.
      Q. Huh?
      A. Yes.
      Q. She got up and sat in the bed.
      A. She was like sitting up in bed, and I was scared. I guess I don’t know what I was doing. I just grabbed her throat to keep her quiet. Then she went to hit me and she scratched me. Then she grabbed ahold of my shirt and she was kicking and everything. She kicked MARK and MARK fell down. He got back up and said let’s go. Then he said wait a minute.
      Q. MARK said wait a minute?
      A. Yes.
      Q. What did he say then?
      A. I go why.
      Q. What did MARK say when you said why?
      A. Oh God, take off her pants.
      Q. MARK said take off her pants. Did you take off her pants JACK?
      A. Yes.
      Q. What happened then JACK?
      (NO RESPONSE — CRYING)
      Q. What happened then JACK? MARK said take off her pants.
      A. I took them off.

        Q. You took her pants off?
      A. Yes.
      Q. Then what happened JACK?
      A. I kept asking him why.
      Q. And what happened then JACK?
      (NO RESPONSE — CRYING)
      Q. What happened then JACK?
      (NO RESPONSE)
      Q. JACK, did MARK have sexual relations with LAURA CAGLE?
      A. Yes.
      Q. MARK EUBANK had sexual relations with LAURA CAGLE?
      A. Yes.
      Q. JACK, did you have sexual relations with LAURA CAGLE?
      A. Yes.
      Q. Who first had sexual relations with LAURA CAGLE?
      A. MARK did.
      Q. Was she still alive?
      A. Yes.
      Q. What?
      A. Yes.
      Q. Did either one of you or MARK have relations, sexual relations anally with her? Do you know what I mean?
      A. No.
      Q. Did you put your penis in her rectum?
      A. Yes.
      Q. Did you?
      A. Yes.
      Q. Did MARK?
      A. Yes.
      Q. What happened after that JACK?
      (TAPE STOPPED — SUBJECT BECAME EMOTIONALLY UPSET — SEVERAL MINUTES ELAPSED — SUSPECT CRYING)
      Q. JACK, just so I understand it right, you and MARK both had relations with LAURA CAGLE.
      A. Yes. I just got on top of her and “got off.” I can’t really remember that.
      Q. OK, what happened after you completed your relations with LAURA CAGLE?
      A. Then she wasn’t moving any more.
      Q. OK.
      A. So, we rolled her off the bed and threw the cover back on and then I just turned on the light (inaudible) and then MARK got a rag and he was wiping the fingerprints and stuff, he was wiping all the doors and everything. Then we went out to the kitchen and I went back to the bedroom and I got her pocketbook. I put everything in her pocketbook and then I was by the door and he was looking out the door and everything and he said OK let’s go. So I go OK and I had the keys to the car that I found on the sink part.
      The kitchen counter?
      Yes. Then I told him to meet me by Rotary Park in back of the big warehouse and he said OK, so I left and drove the car.
      LAURA CAGLE’s car?
      Yes, Volkswagon [sic].
      What color was the Volkswagon [sic]?
      Green.
      Was it an automatic transmission?
      Yes.
      Or standard shift?
      It was on the floor.
      It was LAURA CAGLE’s car?
      Yes.
      Why did you take that car JACK?
      I don’t know. I just took the car. I don’t know.
      You took it behind the big warehouse by Rotary Park? <y

      Yes. I got out and I looked around and then I drove it to the canal and I jumped out before it went in the water. Then MARK was over by the railroad tracks with his lights on. I went over there and he took me home. c
      Have you talked to MARK since this happened? o'
      No.
      Whose idea was it to go to the trailer JACK?
      Mine.
      What were you specifically looking for when you went to that trailer JACK?
      Diamond rings.
      Did you have any one particular diamond ring in mind?
      The one that was like a flower. It was supposed to be worth a lot of money. c
      Who told you the diamond ring was worth a lot of money? o'
      Just somebody, I don’t want to get involved. c
      Did JOE JOE tell you?
      No.
      Was this person there when you broke into the trailer?
      No.
      Have you told this person about what you did?
      No. I didn’t even see the person after that.
      When you were in that trailer JACK and you went to the back bedroom, was LAURA CAGLE wearing anything?
      Yes. >
      Do you remember what she was wearing JACK? o
      No. >
      OK JACK, you had the diamond rings and MARK took you home. /o
      Yea. >

        Q. How much money did you think those diamond rings were worth?
      A. I only thought they were worth about $200, $300.
      Q. Were you and MARK supposed to split the money from the diamond rings?
      A. Yes. He told me if I couldn’t sell them he could sell them but I told him I’d probably be able to sell them.
      Q. What did you do with those rings?
      A. I took them over to DARRY SMITHERS’ house to see if he could sell them.
      Q. You took them to DARRY SMITHERS’ house to see if he could sell them?
      A. Yes.
      Q. And how much money was he supposed to get for them?
      A. He said (inaudible).
      (SOMEONE FROM OUTSIDE THE ROOM CALLED THE NAME NEARY AND HE FELT SOMEONE WAS CALLING HIM).
      Q. Have you talked to DARRY SMITHERS since you gave him those diamond rings?
      A. I seen him and he said he was still getting an estimate on them so I said alright [sic] and also I’ll be back tonight to get them and he said OK. I went back and he wasn’t home so I just didn’t think nothing of it and then the next day that’s when you guys came to talk to me.
      Q. Have you told anybody else about this?
      A. (inaudible).
      Q. Do you remember who told you that MRS. CAGLE had these diamonds?
      A. Yes, but I’m not saying the name.
      Q. Is that the reason why you went to that trailer that night?
      A. Yes, cause I wanted to get out of the state.
      Q. JACK, did you have a conversation with your brother DENNIS NEARY in the Bro-ward County Jail after this offense and related to him what you did?
      A. No. I didn’t tell him nothing.
      Q. Before you broke into that trailer JACK, did MARK know that you were going to that trailer for the reason of getting those rings?
      All references to Eubank were deleted from this confession during the trial phase of the cause because of the decision of the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).


text:
    Laura HATFIELD, Appellant, v. Rhett HATFIELD, Appellee.
    No. 79-1143.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    Rehearing Denied July 7, 1980.
    Heiman & Heiman and Eugene Heiman, Miami, for appellant.
    Gelb & Spatz and Monroe Gelb, Miami, for appellee.
    Before BARKDULL and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The final judgment of marriage dissolution under review is affirmed upon a holding that: (a) the trial court on this record properly exercised its discretion in taking testimony on, and thereafter declining to approve a prior property settlement agreement between the parties, Harris v. Harris, 291 So.2d 95 (Fla.1st DCA 1974); Risteen v. Risteen, 280 So.2d 488 (Fla.3d DCA 1973); (b) the wife acquiesced in, and did not object to the court’s ruling on the taking of oral depositions and, accordingly did not properly preserve such ruling for appellate review, Karl v. David Ritter Sportsservice, Inc., 164 So.2d 23 (Fla.3d DCA 1964); and (c) the awards to the wife and children were well within the trial court’s discretion to enter. Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979), adopting 352 So.2d 867 (Fla.3d DCA 1977) (Hubbart, J., dissenting); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Koeppel v. Koeppel, 351 So.2d 766 (Fla.3d DCA 1977); Pfohl v. Pfohl, 345 So.2d 371 (Fla.3d DCA 1977).

      . It is noted that appellate counsel were not trial counsel.


author: BASKIN, Judge.

text:
    Howard HALPERN, Appellant, v. Ronnie S. HALPERN, Appellee.
    No. 79-1399.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Rehearing Denied June 25, 1980.

      Brown, Malman, Salmon & Collins and Michael H. Salmon, Miami, for appellant.
    Shirley Woolf and George Sampas, Miami Beach, for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

We reverse the decision of the trial court ratifying the report of the general master and finding the husband in contempt of court, with a sentence of ninety days in the county stockade. The contempt order fails to recite that the husband had the ability to make the payments which are the subject of the contempt proceeding, or that he previously had the ability to comply but divested himself of that ability through fault or neglect designed to frustrate the purpose and intent of the order. Garo v. Garo, 347 So.2d 418 (Fla.1977); Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); and Failla v. Failla, 379 So.2d 1329 (Fla. 3d DCA 1980).

We note additional error. The order of the trial court finds the husband to be in contempt of court for failing to pay medical bills of his children. Although we recognize the husband has failed to obtain a major medical policy as required by the provisions of the final judgment, we find that the final judgment did not obligate the husband to pay all medical bills, but rather required him to pay “all major medical and all dental bills not covered by the major medical policy. . . The husband was therefore held in contempt for failing to do something he was not ordered to do by the final judgment.

For these reasons, the decision of the trial court is reversed.

Opinion filed June 25, 1980.

An Appeal from the Circuit Court for Dade County, Dick C. P. Lantz, Judge.

Brown, Malman, Salmon & Collins and Michael H. Salmon, for appellant.

Shirley Woolf and George Sampas, for appellee.

Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.

ON MOTION FOR CLARIFICATION

PER CURIAM.

We clarify our opinion dated May 13, 1980 as follows: The decision of the trial court is reversed with regard to the matters discussed in our opinion. In all other respects, the decision is affirmed. The cause is remanded for further proceedings in accordance with our opinion. In all other respects, the rehearing is denied.


author: LARRY G. SMITH, Judge.

text:
    STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant, v. OYSTER BAY ESTATES, INC., a Florida Corporation, and Robert I. Kornegay, Appellees.
    No. OO-444.
    District Court of Appeal of Florida, First District.
    May 19, 1980.
    Rehearing Denied July 2, 1980.
    Sheri W. Smallwood and William L. Hyde, Asst. Gen. Counsel, William W. Deane, Asst. Gen. Counsel, Dept, of Environmental Regulation, Tallahassee, for appellant.
    Robert J. Angerer, Tallahassee, for appel-lees.
   LARRY G. SMITH, Judge.

The State of Florida Department of Environmental Regulation appeals from a summary declaratory judgment in which the trial court determined that appellees-Oyster Bay Estates, Inc., and Robert I. Kor-negay, may proceed with development of their waterfront property in Wakulla County without being required to obtain a permit under Sections 403.087 and 403.088, Florida Statutes (1979). The Department contends that the trial judge erroneously determined, as a matter of law, that since appellees received a permit for a navigational channel in 1969 from the Board of Trustees of the Internal Improvement Fund, the Department may not impose further restrictions on development of the property under legislation enacted subsequent to the date of the permit. We hold that based upon the absence of a factual basis for application of principles of estop-pel against the State, appellees’ property is subject to the later enacted restrictions, and the judgment is reversed.

The 1969 permit, issued under provisions of Chapter 253, Florida Statutes (1969), authorized construction of a 50-foot wide by 5-foot deep navigation channel in the waters of Apalachee Bay, adjacent to appel-lees’ upland property. Attached to appel-lees’ application for the permit was a plat showing a proposed waterfront subdivision with lots and streets, and with two 40-foot interior canals connecting with a 60-foot canal extending into the navigation channel.

The issue concerning the sufficiency of appellees’ 1969 permit arose by virtue of the State’s assertion of jurisdiction to impose additional permitting requirements under subsequently enacted legislation. Specially, Chapter 71-203, Florida Statutes (1979), effective January 1, 1972 (now Sections 403.-087 and 403.088, Florida Statutes (1979)), required a permit for the construction or maintenance of any installation which will reasonably be expected to be a source of air or water pollution. Additional applications were made to the Trustees, and to the Department, apparently after being advised by the Department that such permits were necessary before the development could be completed as originally planned. Being unsuccessful in obtaining the required permits, appellees filed for declaratory judgment in the circuit court, seeking a determination that the requirements of Sections 403.087 and 403.088 cannot be enforced so as to require a permit. Their basic contention is that their rights to complete the subdivision developments, including the inland canals, under the 1969 permit “are vested and not subject to changing requirements of further permitting.”

To support their “vested rights” theory, appellees argue that the 1969 permit application gave “notice” to the Trustees of its proposed system of inland canals. Therefore, appellees argue, the Trustees’ issuance of the permit with knowledge of the proposed inland canal construction constituted approval not only of the navigation channel to be dredged in Apalachee Bay, but also the inland canals to be constructed on appellees’ upland property. We must reject appellees’ conclusions with respect to the effect of the 1969 permit. Chapter 253, Florida Statutes (1969), contained no requirements pertaining to inland canals, and the Trustees had no authority to either approve or disapprove such canals. The Trustees’ authority was limited, by law, to control over dredging and filling in navigable waters. Under the applicable statutes, as the trial judge found, no further permits were required for completion of navigational access to the interior canals to be located upon appellees’ property, and no state permits were needed for construction of the interior canals. We therefore find no basis upon which it can be concluded that action by the Board in approving the navigational channel (a matter within its jurisdiction), conferred rights upon appel-lees with respect to construction of inland canals upon appellees’ upland property (over which the Board had no jurisdiction).

We have further concluded that appel-lees’ claims regarding a “vesting” of development rights for the inland canals cannot be substantiated by the application of any rule of law to the facts as they have been established in the record of this case thus far. Appellees’ theory of “grandfathering” presents a somewhat broad question, which may be stated, generally: What is the effect of legislation, imposing permit requirements for land use or development, enacted subsequent to the landowner’s acquisition of rights under preexisting, but differing, regulations or restrictions? For determination of this issue, the trial court relied solely upon this court’s decision in Sexton Cove Estates, Inc. v. State Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976).

We do not find Sexton Cove dispositive of this case. In that case the owner had already completed the canal work on its property when it sought to effect registration with the Division of Florida Land Sales in order to sell lots interstate. To comply, the owner was required to furnish a determination from the U.S. Army Corps of Engineers that the canals would remain connected to navigable waters. The Corps of Engineers, in turn, as a prerequisite to issuing such a determination, required the owner to obtain an after-the-fact certification from the State of Florida Pollution Control Board that the water quality standards imposed by the Department would not be violated by the canals. This court found that the Department, in denying the requested certification, had used standards not in effect at the time of the application. However, in reversing the Department’s action the court was not ruling upon whether the property owner was subject to statutory enactments under which the standards were promulgated. The opinion mentions the circumstance that, pending the application, amendments to Chapter 403 were enacted (Section 403.087(1), Chapter 71-203, Laws of Florida). This reference to a statutory change was only incidental to the court’s decision, since state “certification” was required by federal law independently of and prior to the enactment of the permit requirements of Section 403.087. The court in Sexton Cove held that the property owners’ application for certification had to be determined based upon the water quality or other standards and regulations, if any, in existence at the time the application for certification was filed, and the case was remanded for further hearing for that purpose. The applicability of Sexton Cove is, we think narrowly confined to the circumstances of that case, which involved the application of subsequently changed water quality standards, for a project already completed when application for certification was made. See Farrugia v. Frederick, 344 So.2d 921 (Fla. 1st DCA 1977). By contrast, the case now before the court involves duly enacted statutory provisions, the validity of which is not questioned, as to which no prior application for permit or certification had been made by the property owner, with respect to a system of inland canals construction of which, so far as the record thus far establishes, had not even been commenced before the effective date of the statute.

The record before us does not clearly reveal exactly what development or expenditures of funds by appellees took place prior to the date when the Department of Air and Water Pollution Control (now Department of Environmental Regulation) asserted its authority under Chapter 403. Appellees’ complaint, which alleges only that appellees “began work” on the development after receipt of the 1969 permit, is silent both as to the date of beginning of the work, and the extent of the work, if any, actually completed. The affidavit of Robert I. Kornegay is likewise silent on the date of commencement or completion of any construction, and furnishes no facts concerning work completed with exception of statements that sewer and water systems adequate for the whole project have been initiated at a cost of $140,000.00, and expenditures of nearly $100,000.00 have been made for roads and culverts and “continuous new permits.” The Department points out, among other things, that appellees did not commence or complete either the permitted navigational canal or the inland canals by August 12, 1972. Appellees apparently argued to the trial court that the 50-foot navigation canal was completed pri- or to that date; but the trial court found, and our examination confirms, that this fact does not appear in any supporting affidavit or elsewhere in the record. It is clear from the above, as well as from other references in this opinion, that there are material factual issues not yet resolved.

Because this case will be remanded, we think it might be helpful to make reference to a few of the decided cases examined in the course of our review. Reasonable restrictions upon the use of property in the interest of the public health, welfare, morals, and safety are valid exercises of the State’s police power. Sarasota County v. Barg, 302 So.2d 737 (Fla.1974); Tampa Northern R. Co. v. City of Tampa, 91 Fla. 241, 107 So. 364 (1926); Neisel v. Moran, 80 Fla. 98, 85 So. 346. The mere existence of a present right to a particular use of land, whether derived from a less restrictive zoning ordinance or no zoning ordinance at all, is not a sufficient “act” of government upon which to base equitable estoppel. Pasco County v. Tampa Development Corp., 364 So.2d 850 (Fla. 2nd DCA 1978). Refusal of the right to construct a canal does not deprive an owner of the right to use his property, but is merely a restriction of the profit he could make on it. Farrugia v. Frederick, 344 So.2d 921 (Fla. 1st DCA 1977). A city’s right to prohibit usage of property in violation of a zoning change which it had not adopted until after it had issued a permit was upheld in City of Miami Beach v. 8701 Collins Ave., 77 So.2d 428 (Fla.1954). There, the court said:

This Court has never gone so far as to hold that a City will be estopped to enforce an amendment to a zoning ordinance merely because a party detrimentally alters his position upon the chance and in the faith that no change in the zoning regulations will occur. It is our view that such a doctrine would be an unwise restraint upon the police power of the government. All that one who plans to use his property in accordance with existing zoning regulations is entitled to assume is that such regulations will not be altered to his detriment, unless the change bears a substantial relation to the health, morals, welfare or safety of the public . (Id. 430).

There are, obviously, limitations upon exercise of the police power. For example, the State cannot, after selling submerged land to private owners, then deny to such owners the right to use those lands in the only way in which private ownership can be of any value. Askew v. Gables-By-The-Sea, Inc., 333 So.2d 56 (Fla. 1st DCA 1976). Compare Estuary Properties, Inc. v. Askew et al., 381 So.2d 1126 (Fla. 1st DCA 1979).

Relief has sometimes been afforded to the property owner on the theory of equitable estoppel. In this connection see Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2nd DCA 1980), addressing the application of estoppel principles in the context of changing municipal zoning and building regulations. Compare also Compass Lake Hills Development Corporation v. State, etc., 379 So.2d 376 (Fla. 1st DCA 1979), in which this court held that after-the-fact “development of regional impact” compliance (Chapter 380, Florida Statutes), may be required, although estoppel might be' raised as a defense to the State’s efforts to enjoin maintenance of completed developments. Finally, it should be noted that in the Estuary case, supra, the developers contended that a prior (1970) settlement agreement between former property owners and the trustees of the Internal Improvement Fund, which established a bulkhead line and authorized dredging and filling for navigational canals (under Chapter 253, Florida Statutes), conferred “vested development rights,” precluding the State’s exercise of authority under the later enacted (1972) Chapter 380, Florida Statutes. This court found that contention to be without merit, stating that the developer’s reliance upon Askew v. Gables-By-The-Sea, supra, and Zabel v. Pinellas County Water and Navigation Control Authority, 171 So.2d 376 (Fla.1965), was misplaced.

Since our reversal is based upon our ruling that the issuance of the 1969 permit does not, as a matter of law, prohibit the imposition of additional later enacted regulations or restrictions on development or use of the property, we express no opinion concerning other issues which must ultimately be resolved in the trial court.

REVERSED and REMANDED for further proceedings consistent with this opinion.

MILLS, C. J., and McCORD, J., concur.

      . A prohibition against violation of water quality standards was established by subsection (1) of Chapter 67 — 436, Laws of Florida (1967) (Section 403.161, Florida Statutes (1967)), and water quality standards, the predecessors of Chapter 17-3, Florida Administrative Code, were filed with the Secretary of State on May 18, 1967. Although the 1967 Act gave the Florida Air and Water Pollution Control Commission authority to establish a permit system, apparently no regulations implementing this permitting authority for air and water pollution sources were promulgated until May 17, 1972, Chapter 17-3, Florida Administrative Code, following enactment of Sections 403.087, 403.088, Florida Statutes (1971).

      . It is not clear from the record exactly what additional applications for permits were submitted, nor when and to whom they were made. The Department’s answer alleges that appellees made application to the Trustees on or about November 3, 1971, for a dredge and fill permit, submitting with the application a plat dated October, 1971. The Department further alleges that several additional applications were submitted, along with revised plats or plans, including one which called for elimination of the extensive canal system shown on prior plats. The pleading also refers to efforts to extend “an existing canal,” but its location and dimensions cannot be determined from the record. Many of the maps and plats in the file are almost illegible, and none are self-explanatory. The answer alleges also that appellees applied to the Department for certification (under Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.), and a permit (Chapter 403), which were denied.

      . See footnote 1 as to adoption of rules implementing permit requirements of Sections 403.-087 and 403.088, Florida Statutes (1971). Ap-pellees do not question the state’s authority to enjoin violations of the pollution laws; they seek only to be relieved of the burden of obtaining a permit.

      . Chapter 253, Florida Statutes (1969), under which appellees received their permit for the navigational channel, vested authority in the Board of Trustees of the Internal Improvement Fund as to navigable waters, including submerged lands. §§ 253.03, 253.123, Fla.Stat. (1969). Air and water pollution generally was governed by Chapter 403, Florida Statutes (1969), under the control and direction of the Department of Air and Water Pollution Control. Section 403.061(16), Florida Statutes (1969), gave the department the power and duty to “Establish a permit system whereby a permit may be required for the operation, construction or expansion of any installation that may be a source of air or water pollution; . . ” See footnote 1 regarding permits. Section 403.061(16) was retained in the 1971 Florida Statutes, but additional provisions were added, particularly Sections 403.087 and 403.088 expressly prohibiting construction or maintenance of an installation “reasonably expected to be a source of air or water pollution . without an appropriate and currently valid permit issued by the department . . (Section 403.087(1)), and prohibiting “discharge into waters within the state” which reduces the quality of the receiving waters below the classification established for them (Section 403.-088(1) et seq.). Chapter 75-22, Laws of Florida, 1975, transferred powers and duties under Chapter 403, Florida Statutes, to the Department of Environmental Regulation.

      . The affidavit of John W. Dubose, Chief of the Bulkhead Section of Trustees of the Internal Improvement Fund in 1969, states that he advised appellee, Mr. Kornegay, in 1969 that the state had no jurisdiction over any work constructed landward of the mean high water line, and that no permits were necessary other than for the 50-foot navigational channel across state-owned submerged lands. See footnote 2 concerning appellees’ additional permit applications.

      . Section 21(b), U.S. Public Law 92-224, required state “certification” of compliance with water quality standards. This law was amended in 1972 so as to provide for certification of compliance with effíuent limitations. § 401, U.S. Public Law 92-500 (Title 33 U.S.C. § 1341). For history see 1972 U.S. Code Congressional and Administrative News, page 3668.

      . The Sexton Cove ruling could be applied to a change in water quality standards after application for a permit for completed work under Sections 403.087 or 403.088, Florida Statutes. However, that issue is not presented by this case. On the subject of changes in the law, see: “In general, a change in the law pending an application for a permit or license is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the permit or license should be granted.” 51 Am.Jur.2d, Licenses and Permits, § 46.

      . See further disposition of the Sexton Cove controversy, found in United States v. Sexton Cove Estates, Inc., D.C., 389 F.Supp. 602, ordering filling and partial filling of canals, modified Sexton Cove Estates, Inc. v. United States, 526 F.2d 1293 (5th Cir. 1976), holding district court had jurisdiction to require filling of the “unplugged” canals opening into Blackwater Sound, but not as to the “plugged” inland canals; remanded for further hearing on restoration of the “unplugged” canals.

      .The 1969 permit provided: “if the work authorized is not completed on or before the 12th day of August, 1972, this authorization, if not previously revoked or specifically extended, shall cease and be null and void." Appellees argue that the Trustees had no authority to so limit the duration of the permit, a matter that we do not determine since it has not yet been ruled upon by the trial judge.

      . We note, among other things, the claim of waiver of objections to agency jurisdiction asserted in appellant’s answer, and the Department’s allegation that appellees, subsequent to July 28, 1977, filed a petition for administrative hearing for review of the Department’s denial of a permit. We find in the record no indication of whether this remedy was pursued, or not, and we offer no opinion as to the necessity for doing so. However, we do observe that failure to exhaust administrative remedies goes to the subject matter jurisdiction of the court. Swebilius v. Florida Construction industry Licensing Board, 365 So.2d 1069 (Fla. 1st DCA 1979). See also State Department of General Services v. Willis, 344 So.2d 580 (Fla, 1st DCA 1977); Coulter v. Davin, 373 So.2d 423 (Fla. 2nd DCA 1979).