author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Robert Steven CALDWELL, alias v. STATE.
    5 Div. 521.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      Tom Radney of Radney & Moms, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Under an indictment charging him with murder in the first degree of Charles Michael Henderson by shooting him with a pistol, a jury found appellant guilty of manslaughter in the second degree and fixed his punishment at imprisonment for twelve months in the county jail. He was sentenced accordingly. He had pleaded not guilty and not guilty by reason of insanity. Both issues were submitted to the jury.

As able counsel for appellant makes no contention that the verdict is not supported by the evidence and as it appears there is no reasonable basis for such contention, we deem it sufficient to note that probably the verdict of the jury was kindly tempered by the sincere remorse of defendant when he soberly reflected that in a drunken condition he had shot and killed “his best friend.”; that, although there was some evidence to indicate insanity and some evidence to indicate that another intoxicated person was the one who shot the victim, there is no doubt that the jury concluded otherwise.

Appellant’s first insistence is that the trial court committed reversible error “in telling the jury that both sides had agreed for the jury to be separated when, in fact, the State had opposed separation.” According to the transcript, the factual statement is correct, in part. After the case had been called for trial but before the jury was selected to try the case, the court inquired of the attorneys out of the hearing of the panel of jurors from which the jury to try the case was to be selected, by asking, “If this case goes into the night and into tomorrow, do you agree on the jury separating for the night?” Thereupon, the following occurred:

“TOM RADNEY — Yes, sir.
“SONNY HORNSBY — No, sir, the State objects to that.
“COURT — Well, the reason I am asking you now is, I want to question these jurors about any particular personal problems they might have in the event of a sequestration. Will you enter into a written consent at this time?
“TOM RADNEY — To what?
“COURT — To a separation.
“TOM RADNEY — Yes, sir.
“COURT — Any other questions of the jury? The Jury is qualified.
“(Whereas, a struck jury of twelve was selected, seated in the box and sworn in according to law.) (Jury recessed to the jury room.) The defendant was present throughout the entire proceedings, attended by his counsel.)”

The case then proceeded with opening statements of counsel to the jury, through the testimony of four witnesses for the State, until some time in the afternoon, while a fifth witness was being interrogated by the State, the following occurred:

“TOM RADNEY — Your Honor, at this time, I don’t know if the Court is going to break, but we do need an ‘out of court’ hearing, out of the presence of the jury. I don’t know what you are going to do about supper and night. Is that correct Mr. Hill?
“WILLIAM HILL — Yes, we probably need to hear this next evidence, or at least let the State make an offer.
“COURT — How do you feel like we are moving?
“E. C. HORNSBY — Moving good. Making progress.
“COURT — You members of the jury, it’s getting late in the afternoon for one thing, and secondly, before we proceed on with the testimony of this witness, we have to go into certain matters outside of your presence. Before we determine the extent to which we proceed on with this witnesses testimony. So, what we will do is, from the standpoint of you jurors, we are going to go ahead and break for the night. Of course, we will be in here a little bit later going over these matters outside of your presence, so that we will be ready to go in the morning, and get right back into the trial of this case. “Both sides in this case, have indicated their willingness to allow you jurors to go home tonight, and not be put up in a motel. That’s because everybody has confidence in you, and in your integrity and your willingness to abide by the oath that you took as jurors. And just briefly, I am going to go over your obligations again, as jurors to be sure there is no misunderstanding about it. You are not to let anybody communicate with you about this case. [There follows more than a transcript page of apt instructions and warnings as to the duties of the jurors under the circumstances.] Anybody have any questions about that? Everybody stay seated, and you jurors go home, when you come back in the morning at 9 o’clock, go straight back into the jury room. You all are excused until 9:00 o’clock in the morning.”

The jury then left the court room and counsel for the defendant proceeded to question the witness in connection with the defendant’s contention that a statement of the defendant should be suppressed as evidence, when the following occurred:

“COURT — It’s suppressed.
“TOM RADNEY — To save time, that’s the answer Officer Brazzel would give without going through the same thing tomorrow, I ask that you consider that as well.
“COURT — He will have to be suppressed. “[Whereas, court was recessed for the day]
“Court was called to order Friday morning, and the defendant present in open court attended by his counsel, the jury was present in the jury box.”

Some time that morning, after at least one other witness had testified, counsel for the defendant, during a recess for the jury, invoked for the first time a ruling of the court relative to what the court had stated to the jury as to the agreement of the parties for their separation. The transcript shows:

“TOM RADNEY — The record will reflect, and I think I’ve been here every-time the records been going, that Your Honor asked me if I would agree for the jury to be separated, and said I would, and signed a paper to that effect, and so did defendant. At that time, the State objected to that. Now, pursuant to Title 12-16-1, the Code of Alabama, 1975, as Amended, the Statute says, that the jury in a case of this type, can be — as in all felony cases — can be unsequestered, with the permission of both the defendant lawyer and the State of Alabama. Now, Your Honor told this jury yesterday, that both sides agreed for the jury to be separated. If that happened, and it happened when I was not here, and I would make strong objections to that, since the statute was not complied with. Therefore, we make a motion for a mistrial.
“WILLIAM HILL — Judge the only response I have is, I believe I’ve been here every time we’ve been on record, and I certainly don’t recall the court saying it was with anybody’s permission, as I was listening and—
“TOM RADNEY — If you’ll ask the court did he say that, he will say he did.
“COURT — I told them that both sides had agreed that they could separate, because both sides had confidence in their integrity, and all that sort of thing.
“TOM RADNEY — Yes, sir, and I make the point that is just not true, Your Hon- or, I just say Your Honor would stick strictly with the facts.
“WILLIAM HILL — Our basic response Your Honor would be, that is harmless error.
“TOM RADNEY — The Supreme Court will decide if that is harmless error. I just want you to admit that the State never did tell the Court that you agreed for the jury to separate, is that true?
“WILLIAM HILL — Yes sir, we would have to go on record and say that is true.
“COURT — Motion for mistrial is denied.”

The reproductions of the record clearly indicate some misunderstanding among the court, defense counsel and counsel for the State, but they do not prove any factual misstatement by anyone concerned. The obvious understanding of the trial court that the parties through their attorneys had agreed for the jury to separate is emphasized by the fact that immediately after counsel for the State expressed an objection to a separation, the court gave a special reason, a good reason, for wanting to know then whether the jury could separate, and there was an express renewal by defendant’s counsel of his consent but no express renewal by counsel for the State of his objection. A reasonable conclusion is that there was some real basis for the court’s understanding at the time that there was consent by counsel for the State, for otherwise the court would have asked the prospective jurors some questions pertaining to their ability to comply satisfactorily with a sequestration order. The record indicates that at that time everything that was said or done on the subject was in the immediate presence and hearing of the trial judge and counsel for the respective parties. It should be clear that counsel for defendant was not led to believe by anything occurring in his presence and hearing, that counsel for the State had given his consent to a separation. Furthermore, the record conclusively shows that counsel for the defendant was fully aware of the action of the court in allowing the jury to separate for the night. All of this being true, there was a waiver by defendant of any complaint by him of the action of the court in allowing the jury to separate.

As to the point made by defendant’s counsel, long after the trial had been resumed the next morning, to the effect that the court had mistakenly told the jury the day before that the parties had agreed for the jury to separate that night, we believe that irrespective of any question of whether there had been any waiver by defendant of that point, defendant had no valid ground for a complaint of any inaccuracy in what the court had said. In the statutory provision for permitting separation of a jury during a trial upon consent of defendant and his counsel and the consent of the prosecuting attorney, it is provided:

“(a) ...
“(b) It shall be improper for the trial court to ask the accused, counsel for the accused, or the prosecuting attorney, in the hearing of the jury, whether he or they will consent to a separation of the jury pending the trial.
“(e) It shall be improper for the accused, counsel for the accused, or the prosecuting attorney to state to the trial court in the hearing of the jury that he or they consent to a separation of the jury pending the trial.” Code of Alabama 1975, § 12-16-9

The prejudice to be avoided by rigid adherence to the required statutory procedure is the natural likely prejudice toward one or both of the parties for their failure to agree to a separation and, in the event the separation is allowed, some natural prejudice against one of the parties by reason of a belief, mistaken or otherwise, that such party did not consent to the separation. No prejudice results to either party by reason of a court’s informing the jury that the concerned parties have agreed to a separation of the jury. Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); Segers v. State, 283 Ala. 682, 220 So.2d 848 (1969); Fuller v. State, Ala.Cr.App., 365 So.2d 1010, cert. denied, 365 So.2d 1013 (1979). We do not consider herein any question as to whether defendant himself, in addition to his counsel, consented to the separation, as such question has not been raised and cannot be raised for the first time on appeal. Turner v. State, 54 Ala.App. 467, 309 So.2d 503 (1975).

The only other contention for a reversal is directed at the action of the court as shown by the following that occurred during the cross-examination by the State of defendant’s mother, as a witness for defendant:

“Q. Well, what did the doctor tell you was wrong with him?
“TOM RADNEY — We object to him going in to detail, unless you want her to go into it, I will let her tell everything Dr. Rose said. If that’s what we are going to do.
“COURT — Overruled. Go ahead.
“Q. Mrs. Caldwell, what did the doctor tell you?
“TOM RADNEY — Yes sir, he’s wanting to know all that doctor told her.
“COURT — Well, the doctor is going to be in here eventually, and then he can tell his part. Let’s just go ahead with this cross-examination.
“TOM RADNEY — We move for a mistrial on the Court commenting on whether a witness will or will not be called.
“COURT — Motion for mistrial is denied. Anytime you want to make a motion, make it loud enough for everybody to hear it, don’t just whisper it to the court reporter.
“E. C. HORNSBY — We object Your Hon- or, to any notes being read by this witness to this jury.
“TOM RADNEY — He just asked her what her doctor said, and he said it to her in writing. So, she needs the notes to go by.
“Q. Mrs. Caldwell didn’t testify to that, Mr. Radney did. Let me ask you this, Mrs. Caldwell, if I may take you on voir dire—
“COURT — Well, you have her on cross-examination now.
“TOM RADNEY — I want the jury to see this.
“E. C. HORNSBY — I will at the proper time.
“E. C. HORNSBY — This witness is on cross-examination Your Honor, have Mr. Radney sit down and let him [pronoun evidently refers to co-counsel for the State and not to Mr. Radney the antecedent] continue his cross-examination.
“COURT — Yes, Mr. Radney, go back and sit down.
“Q. Mrs. Caldwell, what did the doctor tell you?
“A. That he was mentally insane.
“Q. That’s all he said?
“A. That’s all.
“WILLIAM HILL — That’s all we have.
“TOM RADNEY — You may come down. Judge I need about five minutes.”

Thereupon, after the jury was excused from the courtroom, defendant’s counsel renewed his motion for a mistrial and argued it, pointing out that he had been put in a dilemma as to whether to call Dr. Rose as a witness, to which the court replied:

“COURT — Well, of course I understand that. You made reference to the fact that the doctor is here, and you referred to the doctor being here, Dr. Rose, and having seen Dr. Rose, and then you brought up the question of Dr. Rose having told her — ”

The matter was concluded as follows:

“TOM RADNEY — After the State had said — after you let the State testify about what the doctor said. Only after he did that. I never mentioned Dr. Rose until then. I make a motion for a mistrial.
“COURT — Motion for mistrial is denied.
“TOM RADNEY — Defendant rests.”

It may be, as appellant indicates, that there was a misunderstanding by the trial court as to which party commenced the inquiry of Mrs. Caldwell as to what she had been told by Dr. Rose. Evidently that is what defendant’s counsel thought when he interrupted the trial judge at the latter part of his statement (“and then you brought up the question of Dr. Rose having told her — ”) to tell the court that he never mentioned Dr. Rose until after the State had brought up “about what the doctor had said.” Our review of the record indicates that counsel for defendant was correct in his statement, but a correct determination of what the court thought at the time could be better made if it had not been interrupted in what it was stating. At any rate, whether defendant was injured depends on what had been said in the presence of the jury, which when carefully analyzed does not show in and of itself whether the court was indicating that defendant would call Dr. Rose as a witness or, on the other hand, that the State would call him. In addition, we note that, by the last part of the testimony of Mrs. Caldwell that the doctor had told her that defendant “was mentally insane,” there is no more reason to say that the failure by either party to call Dr. Rose as a witness hurt defendant any more than it did the State. This is especially true in the light of the verdict finding defendant guilty of the least of the lesser included offenses to which he had pleaded not guilty and not guilty by reason of insanity.

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

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    William Sidney THOMAS v. STATE.
    6 Div. 217.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      David A. Sullivan, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

First degree murder; sentence; life imprisonment.

The appellant purchased a tape player for $5 from the deceased. Shortly thereafter, a young boy informed the appellant that the tape player belonged to him. After repeatedly demanding a refund from the deceased to no avail, the appellant shot and killed him.

I

The appellant turned himself in to the police the morning following the crime. Sergeant Albert Wallace of the Birmingham Police Department homicide unit tape recorded a confession given by the appellant at the city jail. The tape was later transcribed into a typewritten statement by a police department secretary.

The appellant submits that the trial court committed reversible error by allowing Sergeant Wallace’s testimony into evidence concerning the extra-judicial confession. He offers two grounds in support of this argument: (1) that the confession, orally made and later reduced to typewritten form, was not signed by the appellant, and (2) that the State failed to prove the volun-tariness of the confession because only one police officer was present when he made the statement. These contentions are without merit.

As Justice Blood worth wrote in Thomas v. State, Ala.Cr.App., 373 So.2d 1149, affirmed, Ala., 373 So.2d 1167, 1168 (1979): “The oft-stated rule in Alabama is that a confession is prima facie involuntary and inadmissible, and the state must show voluntariness and a Miranda predicate in order to admit it.” However, the law does not require that a confessory statement be signed by the defendant. McBryar v. State, Ala.Cr.App., 368 So.2d 568, cert. denied, Ala., 368 So.2d 575 (1979). Additionally, Sergeant Wallace testified not as to what the writing contained, but as to what he heard the appellant say.

The trial judge heard testimony from Sergeant Wallace on voir dire as to the circumstances surrounding the appellant’s confession. The police officer avowed that he fully explained and read to the appellant his Miranda rights both before and after the appellant gave his confession. Sergeant Wallace also testified that no intimidation was threatened or inducement offered to get the appellant to make the statement. The trial judge need only be convinced from a preponderance of the evidence that the confession was knowingly and voluntarily made. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Baldwin v. State, Ala.Cr.App., 372 So.2d 26, affirmed, Ala., 372 So.2d 32 (1978); Ard v. State, Ala.Cr.App., 362 So.2d 1320 (1978). The admissibility of such testimony is to be determined by the trial judge in the exercise of enlightened discretion, and his decision will not be disturbed unless it is palpably contrary to the weight of the evidence. Baldwin and Ard, supra.

II

Secondly, the appellant contends that the corpus delicti was not proved by the State independent of the confession in order to support a murder conviction. We disagree.

Appellant’s argument is based on an erroneous assumption that proof of the corpus delicti must include evidence of the appellant’s guilty connection with the alleged crime. The correct rule in a prosecution for murder is that the corpus delicti consists of two elements: (1) death of the victim named in the indictment, and (2) death caused by the criminal agency of another. Johnson v. State, Ala.Cr.App., 378 So.2d 1164, writ quashed, Ala., 378 So.2d 1173 (1979); Horsley v. State, Ala.Cr.App., 374 So.2d 363, affirmed, Ala., 374 So.2d 375 (1978).

In the instant case, Jay Glass, Chief Medical Investigator for the Jefferson County Coroner-Medical Examiner’s Office, testified that the cause of death was shock and hemorrhaging resulting from a gunshot wound through the heart. His testimony proved the corpus delicti and made admissible the testimony concerning the confession of the appellant. Petty v. State, Ala.Cr. App., 358 So.2d 529 (1978).

III

Another issue raised on appeal is that the trial court erred in overruling appellant’s motion for a mistrial raised after a witness for the appellant appeared before the jury wearing pants inscribed with “City Jail, City of Birmingham.”

The appellant had an instanter subpoena issued for the witness from the Birmingham City Jail during the trial. This witness was accompanying the appellant on the night when the crime occurred. During defense counsel’s direct examination, he asked the witness to leave the witness stand to make identifications on a blackboard. The witness was questioned at the blackboard by the appellant’s attorney and returned to the witness stand. He was subsequently cross-examined by the State and excused. Following an overnight recess, appellant’s counsel moved for a mistrial because the witness had been wearing prison garb with the above described wording on the pants.

The record does not reveal how large this lettering was so as to determine whether the words were visible to the jurors. Surely, if they were large enough for them to read, defense counsel would have also noticed the inscription and immediately made the proper motion rather than continuing with direct examination. Appellant’s attorney waited too late to move for a mistrial here. Everhart v. State, Ala.Cr.App., 358 So.2d 1058, cert. denied, Ala., 358 So.2d 1064 (1978); Clark v. State, 280 Ala. 493, 195 So.2d 786 (1967).

Furthermore, it was a witness for the appellant who appeared in prison clothes and not the accused himself. He was brought to court from the jail on an instanter subpoena at the behest of the appellant. In Cook v. Beto, 425 F.2d 1066 (5th Cir. 1970), cert. denied, 400 U.S. 944, 91 S.Ct. 248, 27 L.Ed.2d 249 (1970), the appellant’s co-defendant was dressed in jail clothing when he was brought into the courtroom for identification, and the court found that this resulted in no prejudice to the appellant. The conduct of a trial rests squarely in the discretion of the presiding judge and, unless it appears that there has been an abuse of discretion, we will not interfere. We find no such abuse here and, therefore, the trial court’s ruling on the motion for a mistrial was without error.

IV

Next, appellant argues that the trial judge erred when he refused to allow appellant’s former attorney to participate in his defense. The jury was qualified, sworn and empaneled late in the afternoon of October 24, 1979. When they reconvened the next morning, Robert Jones, appellant’s former attorney, appeared before the court to assist David Sullivan, appellant’s attorney of record. The trial judge informed Mr. Jones that as he was not present at the qualification of the jury he could not participate in the trial of the case.

Despite Mr. Sullivan’s assertions to the contrary at a subsequent hearing, the record is bare of any prior agreement between Mr. Sullivan, the prosecutor and the trial judge that Mr. Jones could participate in the trial despite his absence while the jury was being qualified. Although the apparent misunderstanding is regrettable, we cannot be guided by anything that is not in the record or is not agreed upon by the parties on appeal. Shelton v. State, Ala.Cr. App., 371 So.2d 451 (1979). We are in accord with the similar case of Sellers v. State, 56 Ala.App. 367, 321 So.2d 706, cert. quashed, 295 Ala. 417, 321 So.2d 708 (1975), and hold that the trial judge did not abuse his discretion when he refused to allow Mr. Jones to participate in the case at bar.

V

During the deliberations of the jury, the following occurred:

“(Whereupon the jury was then called back into the courtroom at 11:22 A.M., at which time the following proceedings were had and done:)
“THE COURT: Mr. Arthur, as the foreperson you have sent out a note which says: ‘We, as the jury, would like the criteria concerning the sentencing of each verdict, that is, for murder first degree, murder second degree, manslaughter first degree.’
“What do you mean by the criteria?
“FOREPERSON ARTHUR: Your Hon- or, as a jury we would like to go over and see and know what the four elements are that—
“THE COURT: All right. Would you like for me to read those elements again?
“FOREPERSON ARTHUR: May I ask you a question, sir?
“THE COURT: Yes, sir.
“FOREPERSON ARTHUR: Some of the jurors would like to know if we could take a note down as to the four?
“THE COURT: Yes, you may take notes down.
“FOREPERSON ARTHUR: Okay. Thank you.

The trial judge proceeded to recharge the jury as requested and then added:

“All right. Now, I have given you part of the charge. Do not isolate that part of the charge. Also consider reasonable doubt, burden of proof and presumption of innocence and also self-defense. Consider all of that along with what I have just repeated here.”

Appellant takes the position that when the jury returned and requested the court to reread the instructions on first degree murder, second degree murder and first degree manslaughter the court was in error when it did not reread the full charge on self-defense. The court was not in error.

The record does not indicate any exceptions to this additional charge. Thereupon, any objection was waived and cannot be raised for the first time on appeal. Clifton v. State, Ala.Cr.App., 359 So.2d 853 (1978).

VI

While appellant’s attorney was cross-examining a witness, the district attorney commented, “Judge, I think this lawyer needs to have a little lesson in proper evidence.” The record does not disclose any objection following this remark. Later, while defense counsel was delivering his closing argument, the court overruled the State’s objection to defense counsel’s assertion that the jury would be “putting defendant away for the rest of his life.” During the State’s rebuttal, the district attorney argued that appellant’s attorney “lied” with respect to this assertion. The defense attorney objected, and the trial judge warned the prosecutor not to “attack Mr. Sullivan personally.” Appellant’s attorney did not request instructions to the jury, move to exclude the statement or move for a mistrial.

Appellant bitterly complains that the prosecutor was guilty of misconduct during the trial of this case in making these derogatory remarks and casting aspersions upon the competence and integrity of defense counsel. We believe that sidebar remarks criticizing, disparaging or vilifying accused’s attorney have no place in the trial of any case. Chatom v. State, Ala.Cr.App., 360 So.2d 1068, cert. denied, Ala., 360 So.2d 1074 (1978); Scroggins v. State, Ala.Cr.App., 341 So.2d 967 (1976), cert. denied, Ala., 341 So.2d 972 (1977); Edgeworth v. State, 54 Ala.App. 93, 304 So.2d 911 (1974). However, an attack on opposing counsel should be distinguished from a verbal assault on the accused. As the Alabama Supreme Court aptly stated in Arant v. State, 232 Ala. 275, 167 So. 540 (1936); “[A] trial is a legal battle, a combat in a sense, and not a parlor social affair.” Our court in Hurt v. State, Ala.Cr.App., 361 So.2d 1163, 1166 (1978), quoted from 99 A.L.R.2d 528 (1965):

“ ‘The range of a prosecutor’s remarks has an important bearing on the extent of their impropriety. When he confines himself to an attack on opposing counsel personally, his remarks may be censurable but they will not usually be held prejudicial to the accused’s right to a fair trial.’ ”

We do not believe that these remarks were prejudicial to the appellant’s cause.

There is no exact legal standard by which the prejudicial qualities of the improper remarks of a prosecutor in the trial of a ease can be gauged. Each case must be determined on its own merits and attendant circumstances. Lawson v. State, Ala.Cr.App., 377 So.2d 1115, cert. denied, Ala., 377 So.2d 1121 (1979); Hurt, supra. “No one has a better vantage point from which to observe the parties, the issues and the general circumstances than the trial court and great weight should be accorded its determination.” Harrison v. State, Ala. Cr.App., 340 So.2d 849, 852, cert. denied, Ala., 340 So.2d 854 (1976).

Likewise, because appellant’s attorney made no objection following the prosecutor’s first comment, this claim of error cannot be taken advantage of for the first time on appeal. Scroggins, supra. Similarly, the general rule is that improper argument of counsel is not subject to review on appeal unless there was due objection by counsel or a motion to exclude, an adverse ruling thereon by the court or a refusal by the trial court to make a ruling. Lawson, supra. Appellant’s counsel timely objected when the district attorney claimed that he had “lied” to the jury. Appellant received a favorable ruling, and his attorney made no motion to instruct the jury, no motion to strike or exclude or no request for a mistrial. He has no adverse ruling from which to appeal. Chatom, supra.

VII

Finally, the appellant submits that the cumulative effect of the prosecutor’s trial tactics created reversible error. Where no single instance of alleged improper conduct constituted reversible error, we do not consider their cumulative effect to be any greater. Sprinkle v. State, 368 So.2d 554, writ quashed, Ala., 368 So,2d 565 (1978).

A careful search of the record reflects no error injuriously affecting the substantial rights of the appellant.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Victor Antonio GLOVER v. STATE.
    6 Div. 297.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Charles W. Allen, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Robbery, fifteen years.

The appellant was arraigned on September 4, 1979, and, on February 25, 1980, the date of appellant’s trial, he filed a motion for discovery and a motion to quash the indictment. The motion to quash was denied and the appellant was tried by a jury and convicted.

Three witnesses testified for the State: Mrs. Pearl Marcus, Mrs. Louise Pharo, and Mr. Dennis Bates.

Mrs. Marcus stated that on the morning of May 24, 1979, she was inside Bob and Jacks’s grocery store in Birmingham, Alabama, talking to the sole employee of the store, Mrs. Louise Pharo. Shortly after 8:00 A.M., a black male entered the store and pulled a gun on Mrs. Marcus and Mrs. Pharo. Mrs. Marcus testified that the robber was “kind of medium size, kind of small.” Further, she said he was wearing a “tobbogan on his head, a white shirt with a red and white kind of rose-looking flower on it,” and that he was “five-six or more in height.” According to Mrs. Marcus, the robber, whom she later positively identified in court as the appellant, pointed the gun in her face and told her to lie down on the floor. He ordered Mrs. Pharo to open the cash register and then to lie down “back there” where Mrs. Marcus was. The appellant then threw Mrs. Pharo on her (Mrs. Marcus) while she was lying on the floor.

During the voir dire examination, out of the presence of the jury, Mrs. Marcus testified that, on the afternoon of the robbery, the police showed her a stack of about ten photographs. She stated that one of the photographs resembled the person who had robbed her. She said she was later told that it was Victor Glover.

Mrs. Pharo stated that the robber, whom she also identified as the appellant, stuck a small gun toward her face, grabbed her blouse and said, “You bitch, you get over there and open the drawer.” At that time she opened the drawer and “backed off.” The robber then grabbed her purse but she snatched it back and threw it under the cooler. The man grabbed it back again and then threw her against the cashier’s drawer, saying, “You open that drawer, you bitch.” At that point, the robber shoved Mrs. Pharo down onto the floor of the frozen food box. Mrs. Pharo did not see anything after that until a customer came in and called the police.

Mrs. Pharo testified that a money bag or change bag was missing. She stated that she did not know the denominations of the money taken, but that it was “around two hundred dollars.” During cross-examination, Mrs. Pharo said she was told what amount of money had been taken. The court at that time instructed the jury not to consider what Mrs. Pharo had been told by her superiors.

The witness was subsequently excused and the jury was returned to the jury room. Out of the presence of the jury the court told the assistant district attorney that, “You had better prime her. I normally don’t suggest that somebody prime a witness, except to keep from blurting out something that is not admissible.”

Afterwards, the trial was resumed and Mrs. Pharo testified before the jury that the money from the previous night’s receipts was in the register when the robber entered, but that it was not in the register when he left.

The testimony of Dennis Bates corroborated that of Mrs. Marcus and Mrs. Pharo. Mr. Bates stated that he had known the appellant, Victor Antonio Glover, for four or five years and had gone to school with Glover and Tyrone Tinsley. He recalled that, on May 4, 1979, he was at Tyrone Tinsley's house, located about two blocks from Bob and Jack’s grocery store. Tinsley and Glover were also there. Bates said that, about 8:00 A.M., both appellant and Tinsley left the house and within ten or fifteen minutes they returned with a money sack.

At the end of Bates’ testimony, the State rested its case and the appellant moved to exclude the State’s evidence. The motion was overruled and the appellant called two witnesses to testify in his behalf: Charles Simmons and Tyrone Tinsley.

Charles Simmons testified that, on May 24, 1979, about 7:15 A.M., appellant had gone to do yard work with him. Simmons stated that they worked until approximately 4:30 P.M. and then returned home. During cross-examination, Simmons admitted that he was appellant’s brother-in-law.

Tyrone Tinsley, an inmate at Kilby Correctional Center, testified that, on May 24, 1979, he robbed Bob and Jack’s grocery store and later pleaded guilty to that offense. He said the appellant was not the individual who participated in the robbery with him on that date.

I

The appellant complains that the trial court committed reversible error when it overruled his motion to exclude the State’s evidence. He argues that the State failed to establish a prima facie case of robbery because the element of fear was not specifically proved. Moreover, he says that the State showed that the victim exhibited “bravado, not fear.” In support of this contention, the appellant cites Poole v. State, 53 Ala.App. 156, 298 So.2d 85, reversed, 292 Ala. 590, 298 So.2d 89. In Poole, this court listed the following three constituent elements of robbery:

“... (a) felonious intent, (b) force or by putting in fear, and (c) by that means a taking and carrying away from his person or in his presence.”

This court in Baker v. State, Ala.Cr.App., 344 So.2d 547 stated:

“In robbery, the force or intimidation employed is the gist of the offense. The manner of taking is in the alternative; if force or violence is used, fear is not an essential ingredient. Conversely, if fear is used, there need be no violence.”

See Vickerstaff v. State, Ala.Cr.App., 374 So.2d 443; Johnson v. State, 57 Ala.App. 238, 327 So.2d 733.

This court in Golston v. State, 57 Ala.App. 623, 330 So.2d 446, recognized that the word “fear” used in connection with the offense of robbery is not to be considered as “an antonym of courage or fortitude.” In Golston, supra, we quoted from 6 Am.Jur.2d Robbery, § 22, as follows:

“No matter how slight the cause creating the fear may be or by what other circumstance the taking may be accomplished, if the transaction is attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and for the sake of his person, the victim is put in fear. Moreover, actual fear need not be strictly and precisely proved, since the law will presume fear if fear is to be just ground for it. And the mere fact that the victim complied with the assailant’s demands is itself indicative of fear. But the putting in fear must be sustained by evidence of acts or conduct or words or circumstances reasonably calculated to effect that result.” (Emphasis added.)

The evidence in the present case shows that the appellant was armed with a pistol, and, after pointing it in the face of the victim, demanded, “You bitch, you get over there and open the drawer.” The only reasonable conclusion that can be reached is the appellant’s conduct caused Mrs. Pharo to have the reasonable apprehension that force would be used against her if she did not comply with his demands. The fact that Mrs. Pharo complied with the robber’s demands was in itself indicative of fear. Golston, supra.

We believe that there was legal evidence from which the jury could by fair inference find the appellant guilty of the offense of robbery. Under these circumstances, this court has no right to disturb the verdict. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

II

The appellant insists that he was denied a fair and impartial trial due to the trial judge’s remarks, conduct and attitude toward the appellant. He contends that the trial judge took an active part in the prosecution by “suggesting ways the district attorney could prove his case.” Specifically, appellant complains that the trial judge instructed the district attorney to “prime the witness.”

The claimed error appears in the following exchange between the court and the district attorney during a recess, out of the presence of the jury:

“THE COURT: Let me say this to you: If you want to ask that witness if there was some money, regardless of how much, in the cash register before this incident, and if when she came out of that meat locker, or whatever it was, after that, that money was gone, she can testify to that.
“So far as robbery is concerned, it has to be something of value. It has to — this alleges money. It has to be some money.
“MR. RHODES: Yes, sir.
“THE COURT: But you just can’t prove what you usually have in there, and she can’t be continuing to blurt out what somebody told her.
“MR. RHODES: Yes, sir.
“THE COURT: Now, I don’t know whether other people connected with the store are available to you as witnesses, or not, but if they are not, of course, she— she said — at first, she said that that is when he got the money, and, then, she said during that period of time that she was back there in this locker, or box, or something, laying on her face.
“So obviously, if she didn’t — if that is just—
“MR. RHODES: Yes, sir.
“THE COURT: —If I heard her right, she didn’t see him take the money.
“But she can say that the money was there when he came in, and that when she came out of the locker, or whenever, that the money was gone.
“MR. RHODES: Yes, sir.
“THE COURT: But you had better prime her, I normally don’t suggest that somebody prime a witness, except to keep them from blurting out something that is not admissible.
“MR. RHODES: Yes, sir, I understand.
“THE COURT: On the witness stand.
“MR. RHODES: Thank you, Judge.” [Emphasis added.]

We note at the outset that no objection or exception was taken to the court’s remarks. Further, we note that at the time Mrs. Pharo testified about the amount of money taken, the court not only admonished her, but also instructed the jury to disregard her statement concerning what she had been told by others.

It is clear from the foregoing portions of the record that the trial judge was nothing but impartial. His remarks were aimed at preventing further inadmissible testimony from going before the jury. We believe that his conduct was that of an experienced trial judge who recognized that illegal evidence could prejudice the appellant if the court did not act promptly. Clearly, the trial judge was acting in the interest of the appellant, and his conduct of the proceedings was not error.

We have searched the record and find no error prejudicial to appellant; therefore, the judgment of conviction by the Jefferson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Malcon BROWN v. STATE.
    6 Div. 302.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      Neil C. Clay, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of burglary under an indictment charging in pertinent part that he “did in the night time with intent to steal, break into and enter a shop, store, warehouse, or other building of City of Bessemer Board of Education, City Vocational School, in which goods, wares, or merchandise was kept for use, sale, or deposit.” The court fixed his punishment at imprisonment in the county jail for twelve months and sentenced him accordingly.

The undisputed evidence shows that one Wayne Richardson, accompanied by appellant-defendant, broke into and entered the premises described in the indictment on the night of May 4, 1979. Wayne Richardson testified that he and Malcon Brown went in to get a carburetor to put on Brown’s automobile. Brown testified that they went into the building to play basketball. While the entry was being made, the burglar alarm was sounded and officers arrived before the intruders left the inside of the building. They arrested Richardson on the outside of the building, but appellant was not captured until the following day.

Appellant’s first three contentions that the judgment of the trial court should be reversed are directed at the action of the trial court in admitting in evidence, over the objections of defendant, a statement written by an officer that defendant signed wherein he admitted an entry into the building with Richardson. The ruling of the trial court was made after a hearing, out of the presence of the jury, as to the voluntariness of the statement and as to whether defendant had knowingly and intelligently waived his right to counsel at the expense of the State and to freedom from self-incrimination. Testimony of the officer taking the statement was to the effect that he read to defendant the contents of the “Miranda Card,” explained to the defendant what he had read, and asked defendant if he understood what had been read to him. The officer said that the witness answered in the affirmative and stated that he desired to make a statement, which he did, and thereafter signed the statement. The officer said that defendant stated that he could not read, but that he could sign his name.

Defendant also testified out of the presence of the jury as to what was said and done by the officer taking defendant’s statement and as to defendant’s ability to understand what the officer had told him. He said that he was twenty-three years of age, he had gone to the eleventh grade in school, and was employed by the city of Bessemer to work on a garbage truck and at different jobs. He said he could not read, but that he signed his name to the statement. He vacillated as to whether the officer had read to him the contents of the “Miranda Card” by at first denying that the officer did so, but on cross-examination he acknowledged that the officer did. Portions of defendant’s testimony out of the presence of the jury are as follows:

“Q. Did you understand when Mr. Price told you about your right, did you understand what he was talking about?
“A. Well, not exactly.
“Q. Did you understand when he said you had a right to an attorney?
“A. No, sir.
“Q. Did you understand that you did not have a right to give him a statement or to sign that?
“A. I didn’t know what to do.
“Q. You didn’t know?
“A. (Witness shakes head).
“Q. And, you are telling the Court you did not do that voluntarily; is that right? You did not do that because you wanted to?
“A. No, sir. I didn’t do it because I wanted to.”

On cross-examination, defendant testified, inter alia:

“Q. Now, you recall Sgt. Price asking you to read these rights to you that he just read off that card?
“A. Yes, sir.
“Q. Do you recall that? Do you remember him reading you those rights?
“A. Yes, sir.
“Q. Do you remember him telling you that you could have a lawyer?
“A. He told me about it.
“Q. He told you you could have a lawyer? And, he also told you that you didn’t have to say a thing; didn’t he? He told you that you didn’t have to make a statement at all, that you could remain silent; didn’t he?
“A. No, sir, I don’t remember that.
“Q. Do you remember him reading the rights he just read off that card up here?
“A. Yes, sir.
“Q. You remember at the Police Station him reading that to you?
“A. Yes, sir.
“Q. You remember him reading that you had a right to remain silent?
“A. Yes, sir.
“Q. I’m talking about Sgt. Price, the one that just came up on the stand. Before you gave him a statement he had read those rights to you off that card?
“A. Yeah, he read it to me.
“Q. Then, you told him you understood those rights at that time; didn’t you? You told him you understood what he read to you?
“A. But I didn’t understand what he was saying.
“Q. But you told him you did?
“A. Yeah, I told him but I didn’t know.”

There is no contention that defendant was in any way coerced by the officer taking his statement, or by any other law enforcement personnel. In our review of the trial court’s ruling on the admissibility of the extrajudicial statement of the defendant, we are impressed especially by the following part of defendant’s testimony relative to the reading to him by the officer of the contents of the card from which he read:

“Q. And, you heard him read it just now. Is that the way he read it to you, the way he just read it to the Court?
“A. Yes.
“Q. And, you didn’t understand that?
“A. No, sir.”

We do not know, as the trial court did, how the officer, as a witness, read the card to the court. Perhaps he could have read it in such a way as to make it difficult for most persons to understand; but we are not in as good a position as the trial court was to determine whether the defendant did in fact sufficiently understand what had been read to him to show that his extrajudicial statement was voluntarily, understandingly and intelligently made. We are not convinced that the trial court was in error in admitting the statement in evidence.

In considering the question of the admissibility of defendant’s extrajudicial statement, we have not overlooked the contention now made by appellant that bearing on that question is considerable evidence of substantial mental retardation of defendant, including the testimony of a witness who was one of defendant’s teachers “about four years on the elementary level and two years in high school” who said, “His I.Q. was about 55.” This testimony was offered after defendant’s extrajudicial statement had been admitted in evidence and after defendant had presented evidence by himself and other witnesses on the merits of the case in the presence of the jury, had rested, and had been allowed to reopen his case. Even so, we conclude that such evidence is not sufficient to cause us to change our view that the statement was properly admitted and should have been allowed to remain as evidence in the case. In emphasizing the I.Q. of 55, appellant argues that support for his contention as to admissibility of the statement is to be found in Hines v. State, Ala.Cr.App., 384 So.2d 1171 (1980). We do not agree. In Hines, “the defendant was at least moderately mentally retarded with an I.Q. of 39.” This, however, is not the only difference. The evidence in that case was replete with illustrations of behavior of defendant and testimony of psychiatrists and other experts who had examined him that led to the only reasonable conclusion possible that no case had been found “involving mental retardation and the vol-untariness of a confession wherein the degree of mental retardation was as extreme as that presented” therein and that under all of the circumstances shown by the evidence “the defendant could not have made a ‘knowing and intelligent’ waiver of his constitutional rights,” which rendered his confession inadmissible. 384 So.2d at 1181. The correct conclusion reached in Hines, the thorough analysis of the pertinent evidence therein, and the valuable collation of authorities on the subject strengthen our conclusion that the trial court correctly permitted defendant’s statement in the instant case to be and remain in evidence.

Another asserted ground for a reversal is based on the ruling of the court as shown by the following during the closing argument of counsel for the State:

“MR. TUCKER: He gave that statement voluntarily and freely. I think we have shown that. I don’t think they have dis-proven that. He gets up here now when he is on trial for this crime and testifies he didn’t know what he was doing. That is not anything unusual. I see it all the time. People love to play dumb when the heat is on them.
“MR. JACKSON: Your Honor, I object to that line of questioning (sic).
“THE COURT: Overruled.”

The context of the argument is not shown. It is clear, however, that it was referable to the extrajudicial statement made by defendant to the officers and to his testimony. We cannot approve of the two sentences: “That is not anything unusual. I see it all the time.” Attorneys should be careful in their arguments to the jury to refrain from an injection of their own personal experience or knowledge in support of their argument, as distinguished from what they deem to be reasonable inferences to be drawn from the evidence. This is especially true as to arguments by prosecuting counsel in criminal cases, for the reason that jurors generally know that prosecuting attorneys usually have had more experience in trying criminal cases as attorneys than attorneys in general. What they tell a jury as to their experience during the trial of a criminal case is more likely to influence a jury than what is told a jury by attorneys in general. We think counsel for the State should not have said: “That is not anything unusual. I see it all the time.” We do not think that any of the rest of the quoted argument was subject to a valid objection. If there had been a specific objection to either or both of the two sentences quoted that called attention of the court to the vice of them, we think the court should have sustained such an objection. We are puzzled by the statement, “I object to that line of questioning.” If it was directed at the last sentence of the quoted argument, it was not a valid objection, we think. If it was meant to be addressed to either or both of the two preceding sentences, the court had no way of knowing it and could well have been led to believe that it was addressed to all that counsel for the State argued as shown by that part of his argument that is quoted above in full from the excerpt of the transcript of the argument of counsel for the State. We do not know what was meant by the word “questioning.” The court reporter evidently thought that the argument was made to all of the excerpted portion of the argument, and the parties on appeal have not treated it otherwise. The trial court should not be placed in error for overruling the objection.

Appellant in a blanket manner charges error in the refusal by the court of defendant’s requested written charges numbered 4, 5, 6, 7, 8 and 10. Charges 4, 6 and 10 relate to the requirement of unanimity of the twelve jurors in returning a verdict. The principle stated therein was substantially covered by parts of the court’s oral charge as follows:

“I charge you, ladies and gentlemen, whatever verdict you reach must be the verdict of each individual juror. It must be a unanimous verdict ... I remind you again, what ever verdict you find must be the verdict of each and everyone of you.”

Defendant’s refused charge 5 is almost identical with defendant’s given charge 9:

“I charge you, ladies and gentlemen of the jury, that if, upon considering all the evidence, you have a reasonable doubt about the guilt of the defendant, arising out of any part of the evidence, you must find the defendant not guilty.”

Defendant’s refused charge 7, “If you have a reasonable doubt of defendant’s guilt growing out of the evidence or any part of it, you must acquit him,” is covered by the portion of the court’s oral charge as follows, “... if any or all of the evidence after considering all of the same, raises in the mind of the jury a reasonable doubt as to the guilt of the defendant, you should acquit him.” The same portion of the court’s oral charge also covers defendant’s requested charge 8:

“I charge you, ladies and gentlemen of the jury, if, after considering all of the evidence in this case together and in connection, you have a reasonable doubt of the guilt of the defendant, from the whole evidence or any part of the same, you should acquit the defendant.”

The court was not in error in its refusal of any of defendant’s requested written charges.

Appellant’s only other insistence on error is in two parts: (1) that the State did not prove “that appellant was one of the alleged black males to enter the Center” and (2) that it “did not prove the necessary requisite intent to steal or commit a felony.” As to (1), the undisputed evidence shows that defendant was one of said males. As to (2), the issue was one for the jury to determine. It is not for us to say whether the jury was correct in that determination. If it were, we would have some misgiving in concluding that it was, which misgiving would be largely because of the good reputation of defendant as shown by the witnesses who testified in his behalf, the apparent lack of any previous criminal record, defendant’s particular subnormal mentality and all the other circumstances. We are more concerned about the effect of his mental retardation upon his ability to discern whether his conduct constituted a felonious entry, as distinguished from a non-felonious unlawful entry, than we are about the effect of his mental retardation upon his ability to understand what he had stated to the officer and the officer had stated to him when he signed the written statement introduced in evidence. This would not be true if he had accompanied another in his breaking into and entering a dwelling or a store. The fact that the trial court fixed defendant’s punishment at the minimum provided by law indicates the possibility that it had some doubt as to defendant’s intention to steal. Notwithstanding the firmness of any belief that there is no error in the record prejudicial to defendant, we think, in the light of defendant’s good reputation and his previous commendable law-abiding behavior, it should be stated, for the benefit of whom it may ever concern, that this Court hopes, with a feeling of considerable confidence, that defendant will prove worthy of any trust hereafter reposed in him by others.

There is no error in the record prejudicial to defendant, the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

DeCARLO, J., concurs in result only.


author: BOWEN, Judge.

text:
    Oscar Solomon SHORT v. The CITY OF BIRMINGHAM.
    6 Div. 400.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      Charles E. Caldwell, Birmingham, for appellant.
    Rowena M. Crocker, Asst. City Atty., Birmingham, for appellee.
   BOWEN, Judge.

The defendant was charged with violating Section 11-7-33 of the General Code of the City of Birmingham, Alabama (1980) prohibiting soliciting for the purpose of prostitution.

The Complaint filed in the Circuit Court charged, in pertinent part:

“that Oscar Short ... unlawfully loitered or remained or wandered in a public place for the purpose of prostitution, or soliciting for prostitution or conducted himself in a manner or under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution in that defendant repeatedly stopped motor vehicles by hailing or waving arms, or using other bodily gestures, contrary to and in violation of Section 11-7-33 of the General Code of the City of Birmingham, Alabama, 1980, as amended.”

After a nonjury trial, the Circuit Court found the defendant guilty as charged in the complaint. Sentence was sixty days hard labor.

At trial, evidence presented by the City showed that, on May 10, 1980, at approximately 2:15 A.M., two Birmingham police officers assigned to Vice Detail saw the defendant dressed in female clothing in the vicinity of 5th Avenue North and 18th Street in the downtown area of Birmingham. The officers were located approximately one-half block from the defendant and observed him for approximately ten minutes. They heard the defendant yell and saw him wave and attempt to flag down four or five passing cars. According to the policemen, one automobile, driven by a white male, stopped and the defendant leaned over the window of the car. Although the defendant appeared to have been talking with the driver, none of the conversation was heard by the officers. When the officers approached the automobile in their unmarked patrol car, the man drove away. The defendant was arrested at that time.

Testimony by the policemen showed that, within six months prior to the defendant's arrest, they had, on several occasions, observed the defendant dressed in female clothing and walking in the vicinity of 4th and 5th Avenue North from 16th Street to 19th Street, an area of downtown Birmingham known to be frequented by prostitutes. Those observations had usually occurred either late at night or in the early morning hours. No evidence was presented by the defendant.

I

One of the two issues raised by the defendant concerns the constitutionality of Section ll-7-33(b) of the General Code of the City of Birmingham (1980). In brief the defendant asserts that this section creates an unconstitutional presumption of guilt because it shifts the burden of proof to the accused and requires that he prove his innocence. The defendant also contends that his First and Fifth Amendment rights have been violated because the ordinance allows the police to make arrests arbitrarily. No cases in support of his argument have been cited by the defendant.

Section ll-7-33(b) of the General Code of the City of Birmingham (1980) provides:

“(b) No person shall loiter, lurk, remain or wander about in a public place, or in a place within view of the public, or in a place open to the public, for the purpose of prostitution or of patronizing a prostitute, or of soliciting for prostitution, and there conduct himself or herself in a manner or under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution. Among the circumstances which may be considered in determining whether such a purpose is manifested are: that such person is a known prostitute or panderer, having been convicted within the past year under the terms of this or any other section or subsection of this chapter, the fact of such conviction being known to the arresting officer at the time of arrest here-for; that such person repeatedly beckons to, stops, attempts to stop, or interferes with the free passage of other persons, or repeatedly attempts to engage passersby in conversation; or that such person repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or other bodily gesture. No conviction shall be had under the terms of this subsection based on proof merely of a single instance of conduct described herein or only one (1) similar act, nor upon proof of only one (1) such instance in conjunction with proof of a prior conviction of an offense prescribed within this article.”

A

The defendant is not specific in asserting a Fifth Amendment violation; however, we may assume that his attack is grounded on a violation of the due process clause. Although the present case is one of first impression before this Court, several other jurisdictions have upheld the constitutionality of ordinances or statutes similar to Section 11-7-33(b). See Lambert v. City of Atlanta, 242 Ga. 645, 250 S.E.2d 456 (1978); People v. Smith, 44 N.Y.2d 613, 407 N.Y. S.2d 462, 378 N.E.2d 1032 (1978); City of Akron v. Massey, 56 Ohio Misc. 22, 381 N.E.2d 1362 (1978); In the Matter of D, 27 Or.App. 861, 557 P.2d 687, appeal dismissed, 434 U.S. 914, 98 S.Ct. 385, 54 L.Ed.2d 271; City of Seattle v. Jones, 79 Wash.2d 626, 488 P.2d 750 (1971).

In People v. Smith, supra, a statute prohibiting loitering for the purpose of engaging in a prostitution offense was constitutionally challenged on the ground that the statute placed “unfettered discretion in the police in the arrest of violators”, and, consequently, was “void for vagueness”. The accused contended that this statute failed to pass the due process test of Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). In Grayned, the United States Supreme Court stated:

“(I)f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” 408 U.S. at 108-9, 92 S.Ct. 2299.

The New York Court of Appeals reasoned that the statute, which contains wording very similar to the Birmingham ordinance outlined specific conduct, in addition to the loitering, which the officer was required to observe. As a result, the extent of the statute was limited to loitering for the purpose of perpetrating a specific crime. The Court held that the statute was “not invalid for vagueness because it details the prohibited conduct and limits itself to one crime.” People v. Smith, supra.

The same issue was raised in City of Akron v. Massey, supra, by an accused who also alleged that the ordinance, which also contained wording very similar to the Birmingham ordinance, had no standards to govern the exercise of discretion by the police in making arrests. The Ohio municipal court found the ordinance “sufficiently specific so that men of reasonable understanding need not guess at its meaning." The court also found that the ordinance contained “clear and definite criteria whereby both the citizen and the arresting officer can judge whether the loitering involved is unlawful.”

“(T)he ordinance . .. does contain ascertainable standards of guilt. The ordinance has a list of guidelines which relate to the intent of the offending party by delineating instances of overt conduct that the officer can consider in determining whether there is loitering with the purpose of engaging in prostitution. — The ordinance does not place unfettered discretion in the hands of the police.” Massey, 56 Ohio Misc. 22, 381 N.E.2d at 1365.

In Lambert v. City of Atlanta, supra, the Supreme Court of Georgia held that a city ordinance prohibiting loitering for the purpose of soliciting for prostitution did not deny the accused due process of law.

“The ordinance is not subject to this challenge since it details specific, prohibited conduct in language that is sufficiently definite to give a person of ordinary intelligence fair notice of what conduct is forbidden; and it gives to the police explicit standards, thereby avoiding the dangers of arbitrary and discriminatory enforcement. People v. Smith, 44 N.Y.2d 613, 407 N.Y.S.2d 462, 378 N.E.2d 1032 (Ct. of Appls.N.Y.1978). The ordinance does not forbid all loitering in public places, including legal ‘window shopping’. Rather, it is strictly limited to loitering in a public place for specific, illegal purposes. State v. City Court of Tucson, 21 Ariz.App. 489, 520 P.2d 1166 (1974). The provision giving the suspect an opportunity to explain his or her conduct does not require a different result. ‘(T)he opportunity to explain afforded by the ordinance is a safeguard designed to prevent wholesale preventive arrests — a practice which is repugnant to the constitutional guarantees of individual freedom.’ City of Seattle v. Jones, 3 Wash.App. 431, 439, 475 P.2d 790, 796 (1970), affd. 79 Wash.2d 626, 488 P.2d 750 (1971).” Lambert, 242 Ga. 645, 250 S.E.2d at 457.

Again, this ordinance was similar to the one presently under review.

A statute similar to the Birmingham ordinance under review was held not unconstitutionally vague by the Court of Appeals of Oregon in In the Matter of D, supra.

B

The ordinance under review is not invalid on the theory that it creates an unconstitutional presumption and shifts the burden of proof to the defendant. In City of Seattle v. Jones, supra, the accused maintained that a Seattle ordinance against loitering created an unconstitutional presumption of guilt in violation of due process because no proof of intent was required by the ordinance. Holding that it was not invalid on such a theory, the Supreme Court of Washington stated:

“The ordinance forbids loitering ‘in a manner and under circumstances manifesting’ an unlawful purpose, the unlawful purpose being to induce another to commit an act of prostitution. According to Ballentine’s Law Dictionary 1028 (3d ed. 1969), ‘purpose’ is defined as ‘An intention’. Therefore, intent is required under ordinance No. 97316. . _ Loitering is an overt act. Intent may be inferred therefrom by conduct when it is plainly indicated as a matter of logical probability.” Jones, 79 Wash.2d 626, 488 P.2d at 752.

In our opinion, Section ll-7-33(b) requires proof of intent, which may be inferred from conduct, and creates no unconstitutional presumption of guilt. It does not permit arrests to be made arbitrarily and only at the whim of a police officer. The ordinance does not make the accused’s innocence or guilt dependent on subjective conclusions of the arresting officer. “Explicit standards” for application by policemen are contained in the ordinance; consequently, the dangers of “arbitrary and discriminatory enforcement” are avoided. See Grayned, supra. It is our judgment that Section 11-7-33(b) is not in violation of the defendant’s Fifth Amendment constitutional rights.

C

The defendant also asserts, without any degree of specificity, that Section 11-7-33(b) is violative of his First Amendment constitutional rights. In Grayned, supra, the United States Supreme Court stated, “A clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” We perceive the issue presented by the defendant in the present case to be whether Section ll-7-33(b) “sweeps within its prohibitions what may not be punished” under the First Amendment. Grayned, supra. We hold that Section ll-7-33(b) does not infringe upon First Amendment rights. The reach of the ordinance is limited to conduct “for the purpose of prostitution, or of patronizing a prostitute, or of soliciting for prostitution.” Section ll-7-33(b). We agree with the New York Court in People v. Smith, supra, that such behavior “has never been a form of constitutionally protected free speech.” See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965).

II

A second issue submitted for review is whether the evidence presented by the City was sufficient to sustain appellant’s conviction. To support a conviction for loitering for the purpose of a prostitution offense the following elements must be proved: (1) loitering; (2) in a public place; (3) for the purpose of prostitution, patronizing a prostitute or soliciting for prostitution; and (4) conduct by the defendant which, under the circumstances, manifests the purpose of soliciting another to commit an act of prostitution.

At the trial, the City presented evidence which showed that the defendant, while standing on a street in Birmingham’s business district, repeatedly waved at and attempted to flag down several passing automobiles, one of which stopped to allow the driver to converse with the defendant. The conduct occurred at 2:15 A.M. in an area known to be an area frequented by prostitutes and the male defendant was dressed in women’s clothes. Also, the defendant had been observed in the area on prior occasions under similar circumstances.

The conduct of the defendant and the circumstances surrounding that conduct provide sufficient evidence to justify the belief by the trier of fact that the defendant is guilty of the offense of loitering for the purpose of soliciting for prostitution. “In the admission of evidence and the weight to be given the same courts and juries must use common sense, common reason, and common observation as well as a common knowledge of the usual acts of men and women under given circumstances.” Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557 (1926). The findings of the trial judge in a nonjury trial have the weight of a jury’s verdict and will not be disturbed on appeal unless they are obviously unjust. Kelly v. State, 273 Ala. 240, 139 So.2d 326 (1962).

Having found no error prejudicial to the defendant, we hold that the judgment of conviction by the Jefferson Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . The relevant language of section 240.37 of the New York Penal Law provides:
      “Any person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passersby in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution, or of patronizing a prostitute as those terms are defined in article two hundred thirty of the penal law, shall be guilty of a violation.”

      . The relevant language of Section 648.01 of The Akron City Code 1970, as amended, provides:
      “A. It shall be unlawful to do any of the following:
      “1. Loiter or remain in a public place for the purpose of engaging, or soliciting another person to engage in sexual activity for hire. The circumstances which may be considered in determining whether such purpose is manifested are: That such person is a known prostitute or panderer, repeatedly beckons to, stops or attempts to stop, or engages passersby in conversation, or repeatedly stops or attempts to stop motor vehicles by hailing, waving of arms or any other bodily gestures.”

      . “The ordinance in issue provides in relevant part: ‘It shall be unlawful for any person to loiter in or near any thoroughfare or place open to the public in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution or sodomy. Among the circumstances which may be considered in determining whether such purpose is manifested are: that such person is a known prostitute, pimp, or sodomist, repeatedly beckons to, stops or attempts to stop, or engages passers-by in conversation, or repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any bodily gesture. No arrest shall be made for a violation of this subsection unless the arresting officer first affords such person an opportunity to explain such conduct, and no one shall be convicted of violating this subsection if it appears at trial that the explanation given was true and disclosed a lawful purpose.’ ” Lambert, 242 Ga. 645, 250 So.2d at 457.

      . Seattle City Code, Section 12.49.010 provides: “It is unlawful for anyone:
      * * * * * *
      “(g) To loiter in or near any thoroughfare or place open to the public in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution. Among the circumstances which may be considered in determining whether such purpose is manifested: that such person is a known prostitute or panderer, repeatedly beckons to, stops or attempts to stop, or engages male passers-by in conversation, or repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture. No arrest shall be made for a violation of this subsection unless the arresting officer first affords such person an opportunity to explain such conduct, and no one shall be convicted of violating this subsection if it appears at trial that the explanation given was true and disclosed a lawful purpose.”


author: HARRIS, Presiding Judge.

text:
    Tommy Lee GRIFFIN, alias v. STATE.
    6 Div. 803.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      John A. Bivens and Eddie Hardaway, Jr., of England, Bivens & Hardaway, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph T. Simonetti, Jr., Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted and convicted for the November 24, 1977, robbery of Miss Rena Owen. The trial court fixed his punishment at twelve years imprisonment. At arraignment and throughout the trial proceedings, he was represented by counsel of his choice. After sentence was imposed he gave notice of appeal and was found to be indigent. He is in this court with a free transcript and trial counsel was appointed to represent him on this appeal.

The prosecutrix, Miss Rena Owen, testified that, on the afternoon of November 24, 1977, she visited her aunt in Northport and, around 8:00 p. m., returned to her apartment, located in the Bent Tree Apartments in Tuscaloosa. She stated when she got out of her car she saw a black male walk from between two apartment buildings and away from her. While she was walking to her apartment, an unidentified black male approached Miss Owen from behind, grabbed her hand, whirled her around and snatched her shoulder purse. Miss Owen stated that she fell against the exterior wall of the apartment building and saw two black males running in the direction from which she had seen the first black male come. Miss Owen testified that her right hand was scratched and thumb bruised by the robber pulling the purse off her shoulder. She stated that the incident occurred in a matter of seconds and, although the lighting in the area was good, she did not see the robber’s face and could not describe him. Miss Owen testified that her purse was worth approximately $15.00, and inside was a .38 caliber Smith and Wesson pistol worth $160.00 and $15.00 to $20.00 in cash. She stated that she immediately called the Tuscaloosa Police. Miss Owen testified that approximately one week later someone found her purse and returned it.

On cross-examination, Miss Owen testified that, when she parked her car, the black male walking between the apartment buildings was approximately seven to ten feet away. She stated that he walked in the opposite direction from her apartment and she did not know that he had come behind her until she was near her apartment door. Miss Owen testified that it was only a matter of seconds between realizing the robber was behind her and the completion of the robbery. She testified that in January, 1978, Investigator Jones returned her pistol which was marked as an exhibit and identified by her.

Mr. Eugene Dunn testified that, in November 1977, he lived near the victim’s apartment with his girl friend, Sarah Eu-banks. He stated that his girl friend and he knew the appellant and that, near the end of November, the appellant visited him and told him that he needed some money. The appellant told Mr. Dunn that he had a pistol he would like to “pawn.” Mr. Dunn testified that he told the appellant that he did not want to buy the pistol but that possibly his girl friend would. He stated that he had never bought a pistol from the appellant and did not see it. Mr. Dunn took the appellant to the bedroom to talk to his girl friend. He left before they began to talk, but stated that the appellant left with some money so he knew that his girl friend had bought the pistol. Mr. Dunn testified that, about one month later, he talked to Investigator Jones at his mother’s house about the pistol. He stated that he told Investigator Jones that his girl friend had bought the pistol from the appellant. He went to his residence, got the pistol, returned to his mother’s, and turned it over to Investigator Jones.

Miss Sarah Eubanks testified that she was the girl friend of Eugene Dunn and that they were living together. She stated that she knew the appellant and had talked to him one evening after Thanksgiving Day. She stated that the appellant had first talked to Mr. Dunn before coming inside the apartment to talk to her. Miss Eubanks testified that Mr. Dunn was not present when she talked to the appellant. She stated that the appellant told her that he needed some money and had a pistol to “pawn.” She asked the appellant whether the pistol was “hot” (stolen) and whether it belonged to him to which he replied that the pistol was not “hot” and that it belonged to him. Miss Eubanks gave the appellant $30.00 in exchange for the pistol with the understanding that he would “buy” it back the following Friday, which he did not do. She further stated that she had not seen him since he pawned the pistol to her. Miss Eubanks stated that the pistol was loaded when she bought it, and she did not ask the appellant where he had gotten it. She stated that no one disturbed the pistol while it was in her possession.

Tuscaloosa Police Investigator Harold Jones testified that he had served one and one-half of his three years police service as an investigator. Investigator Jones stated that, in January, 1978, a reliable informer, who had given him credible information in the past, informed him that appellant had obtained the pistol stolen from Miss Owen and had sold it to Eugene Banks (Dunn). He said that the next afternoon he went to Mr. Dunn’s mother’s residence and, after identifying himself and his purpose, asked to see Mr. Dunn. He stated that Mr. Dunn came to his mother’s and told him that his girl friend had the pistol. He returned to his residence and retrieved it and gave the pistol to Officer Jones. The pistol was offered and properly admitted into evidence.

Investigator Jones stated that, after Miss Owen identified the pistol Mr. Dunn had given him as belonging to her, he went to the appellant’s home and told him that he needed to question him about a robbery. He read the appellant his Miranda warnings, placed him in his patrol car and transported him to police headquarters.

On voir dire examination, Investigator Jones stated that the appellant was not under arrest at the time he picked him up. He stated that he was under arrest “for investigation” although a warrant for his arrest had not been signed.

Continuing on direct examination, Investigator Jones testified that when the appellant and he were in the patrol car he mentioned the robbery and gun, without disclosing any details thereof, and asked him if he would be willing to make a statement to which the appellant replied, “Yeah, what do you want to know about.” Investigator Jones asked him if he had sold a gun to Eugene Dunn to which the appellant negatively answered.

Around 7:45 p. m. at police headquarters, the appellant was given his Miranda warnings a second time and signed a waiver of rights form. Investigator Jones testified that no threat, promise, hope, or reward or other inducements were made to the appellant in exchange for making a statement. The waiver of rights form was properly offered and admitted into evidence. The appellant gave a statement to Investigator Jones wherein he said that he saw two males running, apparently from Miss Owen’s apartment, and saw one drop a purse. He picked it up and went home. The appellant stated that he sold a pistol found inside the purse for $30.00 to Eugene Dunn although he did not identify Miss Owen’s pistol, which was shown to him, as the one he had sold. The appellant told Investigator Jones that he did not know the two males he had seen with the purse and denied taking it, although he admitted taking the pistol. He stated that when he picked up the purse, it contained only the pistol. The appellant’s statement concluded at 8:15 p. m. No objection was interposed to the first or second statement.

Investigator Jones testified that, prior to the appellant’s making either of the above statements, he had not discussed any details of the incident with him and had not suggested that two males were involved in the robbery.

Around 8:45 p. m., the appellant made a third statement to Investigator Jones. No Miranda warning was given although the proper voluntariness predicate was laid. In the statement, appellant stated that about one month ago a person named Ronnie Dent and he had been at a convenience store near the Bent Tree Apartments and after leaving saw a white female with a purse driving toward the apartments. Ronnie Dent told the appellant that he was going to get the purse. After the female drove into the apartments, the appellant said that “Ronnie ran up and got her purse.” Both ran away and about five minutes later Ronnie Dent came to the appellant’s house and gave him the purse and pistol. The appellant stated that Ronnie had taken the money from the purse. The appellant threw the purse behind his house and about one week later sold the pistol to Eugene Dunn for $30.00. Investigator Jones stated that he could not locate anyone by the name of Ronnie Dent. The statement was properly admitted into evidence over the appellant’s objection that he had not been given his Miranda warnings before the last statement was made. Love v. State, Ala.Cr.App., 372 So.2d 414 stands for the proposition that it is not necessary to repeat the Miranda rights before each successive interview.

On cross-examination, Investigator Jones reiterated much of his direct testimony. He added, during the second statement, that the appellant initially denied selling the pistol to Eugene Dunn (actually Miss Eubanks) but when Investigator Jones suggested that they go to Mr. Dunn’s residence to make sure that he had picked up the right person, the appellant admitted selling it to Mr. Dunn.

Appellant challenges the sufficiency of the State’s evidence, which is based primarily upon circumstantial evidence. Initially, we note that the State established the corpus delicti of the crime prior to the admission of appellant’s statements through the testimony of the victim. Tice v. State, Ala.Cr.App., 386 So.2d 1180, cert. denied, Ala., 386 So.2d 1187 (1980); Horsley v. State, Ala.Cr.App., 374 So.2d 363 (1978), cert. denied, Ala., 374 So.2d 375 (1979).

The primary inquiry in regard to the sufficiency of the State’s evidence concerns the identification of the appellant as the perpetrator of the robbery. The State’s identification rested solely on circumstantial evidence as the victim could not identify the robber and no other eyewitness was present. In Watters v. State, Ala.Cr.App., 369 So.2d 1262, 1271 (1978), reversed on other grounds, Ala., 369 So.2d 1272 (1979), this court held:

“... [IJnconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus de-licti.”

This court stated in Cumbo v. State, Ala. Cr.App., 368 So.2d 871, 874, cert. denied, Ala., 368 So.2d 877 (1979), that:

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.... ” (citations omitted)

See also, Johnson v. State, Ala.Cr.App., 378 So.2d 1164, cert. denied, Ala., 378 So.2d 1173 (1979).

“It is our duty upon review to determine whether or not any theory of the evidence exists from which the jury could have excluded every hypothesis except guilty beyond a reasonable doubt. It is within the province of the jury to decide whether or not circumstantial evidence tending to connect the appellant with the crime excludes to a moral certainty every other reasonable hypothesis than that of appellant’s guilt. Cumbo, supra, at 875. If facts are presented from which the jury may reasonably infer that the crime has been committed, although established by circumstantial evidence, the question must be submitted to the jury. Hopson v. State, Ala.Cr.App., 352 So.2d 500, 502, affirmed, Ala., 352 So.2d 506 (1976). Mauldin v. State, Ala.Cr.App., 376 So.2d 788, cert. den., Ala., 376 So.2d 793 (1979).”

In reaching its verdict, the jury had before it the testimony of the State’s witnesses and the statements of the appellant from which the following facts are found: (1) the victim described the details of the robbery and stated that immediately after its commission two black males fled from the apartment complex, (2) the appellant visited Eugene Dunn and Sarah Eubanks some time after the robbery and pawned a pistol to Miss Eubanks, stating to her that it was not stolen and belonged to him, (3) through a reliable informer, Investigator Jones learned of the location and possessor of the pistol, contacted Mr. Dunn and retrieved the pistol from him, (4) the victim identified the pistol procured by Investigator Jones, (5) the appellant was picked up for questioning and denied selling the pistol to Eugene Dunn, (6) the appellant again denied selling the pistol to Eugene Dunn but later admitted it but stated that he found the pistol in a purse thrown away by two black males running away from the victim’s apartment complex, (7) the appellant admitted knowing of his companion’s plan to rob the victim and going to the victim’s apartment complex with him while he committed the robbery as well as being given the purse and pistol by his companion, (8) Investigator Jones had not discussed the details of the robbery prior to the appellant making his first or second statement, (9) the “robber,” whose name was given to Investigator Jones by the appellant could not be located.

It is clear that the appellant was aware of the criminal intentions of his companion and was present when such plans were made. He went with him to execute the crime, although he may not have actually committed it, and fled after its completion. Shortly thereafter he received the pistol and purse taken in the crime. There was ample evidence before the jury from which it, by fair inference, could have found the appellant guilty of robbery. Walls v. State, Ala.Cr.App., 378 So.2d 1186 (1979), cert. denied, Ala., 378 So.2d 1193 (1980); McElroy v. State, Ala.Cr.App., 360 So.2d 1060, cert. denied, Ala., 360 So.2d 1067 (1978); Garrison v. State, Ala.Cr.App., 372 So.2d 55; Smith v. State, 57 Ala.App. 151, 326 So.2d 680 (1975), cert. denied, 295 Ala. 419, 326 So.2d 686 (1976); Bass v. State, 55 Ala.App. 5, 312 So.2d 576 (1975); and cases cited therein; § 13-9-1 Code of Alabama 1975. It took the jury only thirty-two minutes to return a verdict of guilty as charged in the indictment.

Appellant’s last assertion of error concerns itself with certain comments made by the district attorney during his closing argument and the failure of the trial court to grant his motion for a mistrial upon such ground. He contends the comments were an improper reference to his failure to testify and produce evidence.

The pertinent portion of the district attorney’s comment is quoted:

“MR. WILLIAMS: And then you get a police officer like Harold Jones over here, that is a young officer — one of the very best we have got, if not the best that works that night shift; and you insinuate that our officer makes cases simply because it will help his promotions. And when you do that, it burns me up; it gets to me and I get mad about that, that witnesses have to undergo that when that is the only way you are going to try your case, is to attack those people there, and not put any evidence on. And that is wrong, and that defeats our system of justice. And I don’t like to see attorneys do that. I don’t believe juries will buy that.”

The appellant’s objection was sustained, and after a discussion out of the hearing of the jury the following occurred:

“MR. BIVENS: I would like to make a motion for a mistrial at this time, based on the statements relative to the defendant’s failure to put on evidence, and failure to testify.
“MR. WILLIAMS: I did not say that he did not testify. I said the State’s evidence—
“MR. BIVENS: No, sir, that is not true, and that is not the portion that I am making my motion to. I think the record would hold it out.
“MR. WILLIAMS: Nowhere did I comment on the defendant’s failure to take the stand.
“MR. BIVENS: Your statement was that the evidence was undisputed, that the only evidence that — which they could consider, would be the evidence that the State put on.
“THE COURT: Motion denied.”

While the State may not call attention to a defendant’s failure to testify it may expose the failure of the defendant to produce other exculpatory evidence. Before the State’s comment will be interpreted as an improper comment upon the failure of the defendant to testify, there must be virtually direct reference to the defendant alone as the individual who has not become a witness. Robinson v. State, Ala.Cr.App., 352 So.2d 11, cert. denied, Ala., 352 So.2d 15 (1977); and cases cited therein; § 12-21-220 Code of Alabama 1975. However, where the prosecuting attorney remarks that the State’s evidence is uncontradicted, and where the defendant is the only person who could or would have contradicted such, it is generally held that the comment refers to the defendant’s failure to testify. Robinson, supra, at 13.

The above comment cannot be construed as a direct or indirect reference to the failure of the defendant to testify. It is more closely akin to those situations wherein the prosecution refers to the defendant’s failure to put on any evidence. Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); Laker v. State, Ala.Cr.App., 358 So.2d 504 (1978); Gissendaner v. State, Ala.Cr.App., 338 So.2d 1025, cert. denied, Ala., 338 So.2d 1028 (1976); Farr v. State, 54 Ala.App. 80, 304 So.2d 898 (1974); 6A Alabama Digest Criminal Law 721(5). Such is not a comment upon the defendant’s failure to testify unless the defendant himself is the only one who can contradict or deny the evidence. Thompson v. State, Ala.Cr.App., 382 So.2d 1184 (1980); Diamond v. State, Ala.Cr.App., 363 So.2d 109 (1978); Robinson, supra.

We find the prosecutor’s comment as not falling within the situations discussed in Thompson, Diamond, and Robinson, supra. The appellant could have produced evidence to refute the State’s evidence other than by calling himself as a witness.

Furthermore, we note the above comment was made in reference to the nature of the appellant’s cross-examination of Investigator Jones. See, Proctor v. State, Ala.Cr.App., 391 So.2d 1092 (1980); Whitt v. State, Ala.Cr.App., 370 So.2d 730 (1978), reversed on other grounds, Ala., 370 So.2d 736 (1979); Gissendaner, supra.

For a collection of cases dealing with this area generally, see Meade v. State, Ala.Cr. App., 381 So.2d 656, cert. denied, Ala., 381 So.2d 659 (1980).

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

AFFIRMED.

All the Judges concur.