text:
    Robert A. WRIGHT v. STATE.
    3 Div. 467.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.

      Richard D. Shinbaum, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of an attempt to commit rape in the first degree. The court fixed his punishment at imprisonment for five years and sentenced him accordingly. Rape in the first degree is a Class A felony. Alabama Criminal Code, § 13A-6-61(b). An attempt to commit a Class A felony is a Class B felony. Alabama Criminal Code, § 13A-4-2(d)(2). Punishment for a Class B felony, as provided by § 13A-5-6(a)(2) is “not more than 20 years or less than 2 years.”

The only eyewitness who testified as to the incident was the alleged victim. The defendant did not testify in the case and rested upon the close of the evidence presented by the State.

The alleged victim, a married woman, testified that on the evening of March 11, 1981, as she was on her way walking to work, she was asked by defendant whether she wanted to ride in the automobile he was driving and that she replied affirmatively and “got in the ear.” Instead of taking her to work, he told her that he wanted to “buy some speed” from a particular individual, that he wanted to “catch him before he goes to work, and he lives right down here.” She replied, “Okay, I have got twenty minutes, I will ride with you.” According to her testimony, after he had proceeded on the main highway a distance, he turned from it, and she told him, “Well, look, I really need to get to work.” She asked him “to run [her] back to work” and said she, at the time, “knew something was wrong, because he acted like he didn’t know where he was going.” Thereafter, he drove down to the end of a road that was “kind of like a deadend with a circle at the end of it, and he stopped.” She testified that he stepped out of the car, saying that he needed to “use the bathroom,” then got back in the car and put a knife to her throat and said “Just be quiet. Don’t say anything.” Her testimony continued as follows:

“Well, he told me to kiss him, and I kept telling him ‘please don’t do this. Don’t do this,’ and he started to kiss me, and he put his hand up my shirt.
“Q. You say he put his hand up your shirt?
“A. Yes.
“Q. Specifically, ma’am, where did he put his hand?
“A. On my breast.
“Q. Did you ever invite him to do that?
“A. No, sir, I did not.
“Q. Did you say anything to him while he had his hand on your breast?
“A. Yes, sir, I was asking him not to do this.
“Q. Not to do what?
“A. What he was doing; what he intended to do. He just said, ‘Shut up and be quiet.’ ”

After testifying further that her neck was cut by the knife, she testified:

“A. Yes, sir. He got out of the car and started chasing me, and chased me down and grabbed me by the hair of the head, and he still had the knife in his hand because I was fighting him, and I cut my hand trying to keep his hands off of me, and get away.
“Q. When he caught up with you, what, if anything, did he do to you?
“A. He was trying to subdue me. I was fighting him, and he took my jacket off and he ripped at my shirt, and the button popped off.
“Q. What were you doing when he was trying to choke you?
“A. I scratched his face, and I couldn’t get any leverage to get him off me, and I couldn’t breathe, so I was trying to push him off and I couldn’t, and so I stuck my thumb in his eye.
“Q. And after you did this, what, if anything, happened?
“A. I tried not to go unconscious, but I did.
“Q. What was the next thing you remember after that?
“A. Well, I looked up and I saw the stars, and I realized I wasn’t dead, so I tried to get up and run.
“Q. Where was he at this time?
“A. He had gone back to his car, and he was in his car.
“Q. And when you came to and you got up and started to run, what, if anything, happened then?
“A. Well, I couldn’t very well run, because I was too weak, and he caught me again by the hair and tried to drag me back to the car.
“Q. Did he say anything to you then?
“A. (Indicating no.)
“Q. Did you say anything to him?
“A. Yes, sir, I was crying and asking him why he was doing this to me because he and my husband and I were all friends, and I couldn’t understand why. And I kept saying that I didn’t want to die, and that I didn’t want this to happen because I would never do this, and that I just wanted — I told him that I just wanted my husband, and that I couldn’t ever do anything like this to my husband, and I didn’t want this to happen.
“Q. Did you ever, during this period of time, make any sexual advances toward Robert A. Wright?
“A. No, sir.
“Q. After he caught you this time, ma’am and dragging you back to the car, what, if anything, else happened?
“A. Well, he said that he was sorry; that he hadn’t meant to hurt me, and everything, because I was crying to him.”

The argument advanced by appellant for a reversal of the judgment is in two parts. In Part I, the argument commences with the sentence, “The Court did not adequately instruct the Jury as to the use of prior inconsistent statements for the impeachment of a witness.” Prom that beginning of his discussion of the subject, appellant proceeds in his brief, with citations of cases to support him, to say that, if a court’s oral charge “is not as full and instructive” as it should be, an aggrieved defendant’s “remedy is to request written charges elucidating and explaining the Defendant’s theory of the case.” Defendant’s requested written charges were refused by the trial court. All of such charges were unnumbered. As set forth in Lowery v. State, Ala.Cr.App., 381 So.2d 659, neither Code of Alabama 1975, § 12-16-13, nor its predecessor, contains a requirement that charges be numbered, but numbering or lettering of the written charges is conducive to a more concise and understandable discussion of them in an opinion. Notwithstanding the fact that the written charges are not numbered or otherwise designated, we consider them in connection with appellant’s challenge of the court’s action in refusing any of them and in the light of a part of the court’s oral charge on the same subject. In the court’s oral charge, we find the following:

“If you find that a witness testified to you falsely, the law says you are entitled to disregard that witness’ entire testimony, or you can separate, again, the truthful, the believable testimony from the unbelievable, basing your verdict, of course, only on the believable and the creditable [which we believe is spelled incorrectly and should be ‘credible’] testimony.”

The quoted portion of the oral charge is more favorable to defendant than defendant’s refused written charge as follows:

“I charge you, Ladies and Gentlemen of the Jury, that if you believe that any material part of the evidence of any witness was wilfully false you may disregard all of the testimony of such witness [emphasis supplied].”

The quoted requested written charge was more favorable to defendant than the other requested written charges on the subject. The oral charge was more favorable to defendant than any of his refused written charges on the subject, and there was no error prejudicial to defendant in the refusal of any of them.

By the only other issue presented by appellant, he asserts in his brief that it was error for the court to allow the alleged victim “to testify that the reason for an inconsistent statement [by her] was that she was not allowed to sign the warrant she desired to sign ...” Without attempting to decide the disagreement between the parties on appeal as to whether her previous statement was inconsistent with her testimony, we find that the defendant’s only objection to any question asked the witness on the subject came too late, for it was after the witness had definitely answered the question, as shown by the following part of the transcript:

“Q. You signed this [a written statement she had made at the time she swore out the warrant for defendant]?
“A. Yes, sir.
“Q. Okay. Could you get the warrant that you wanted?
“A. No, sir.
“MR. SHINBAUM: Object. That calls for a mental operation.
“THE COURT: Overruled.
“Q. Were you allowed to get the warrant that you wanted?
“A. No, sir.
“THE COURT: Let her testify to her mental operation, not somebody else.”

Irrespective, however, of the untimeliness of the objection, we find no error in the court’s ruling.

“If a witness admits on cross-examination that he has previously made a statement contradictory of his present testimony, he may testify on redirect examination as to why he made the inconsistent statement. . . . The extent to which the impeached witness may go into the reasons why he made the prior inconsistent statement is largely within the sound discretion of the trial court.” Gamble, McElroy’s Alabama Evidence, § 159.03(1) (1977).

We have considered all issues presented by appellant and find them without merit. 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.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Shelly J. STEPHENS v. STATE.
    3 Div. 608.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.

      Jack W. Wallace, Jr., of Duffey and Wallace, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

This is an appeal from the denial of a petition for writ of error coram nobis. The petitioner argues that he was entitled to a hearing since the petition was meritorious on its face. Ellison v. State, 406 So.2d 439 (Ala.Cr.App.1981).

In denying the petition the circuit court issued a memorandum opinion:

“This matter is presented to the Court upon the Petition for Writ of Error Cor-am Nobis heretofore filed, and upon consideration of same, the Court is of the opinion that said Petition should be denied.
“The Petitioner alleges ineffective assistance of counsel on the following grounds: (1) his retained attorney failed to file a pretrial motion requesting a court appointed psychiatrist and psychologist to examine Petitioner; and (2) his retained attorney failed to file a motion requesting a presentence investigation.
“The first ground, regarding counsel’s failure to request a court appointed psychiatrist to examine Petitioner for preparation of an insanity defense, is without merit. The only evidence offered by Petitioner is the fact that a standard form waiver of arraignment containing a plea of not guilty and not guilty by reason of insanity was filed in the case. The record of the case, including Petitioner’s testimony, offers no evidence or reason to raise any doubt, much less a reasonable doubt, as to Petitioner’s sanity at the time the crime was committed or his competency to stand trial. Where no evidence or reason existed to doubt the Petitioner’s sanity he was not entitled to a court appointed psychiatrist. Gales v. State, 338 So.2d 436 ([Ala.Cr.App.] 1976), cert. denied, 338 So.2d 438, and Colley v. State, 405 So.2d 374 ( [Ala.Cr.App.] 1980), reversed and remanded on other grounds. Therefore, Petitioner’s counsel was not inadequate, nor did he render ineffective assistance for foregoing a motion that would have been futile.
“The second ground of the Petition alleges ineffective assistance of counsel because of his attorney’s failure to file a motion requesting a presentence investigation. There are no facts or evidence indicating that filing of such a motion would have prevented Petitioner’s conviction in this case. Summers v. State, 366 So.2d 336 [Ala.Cr.App.], writ denied Ex Parte Summers, 366 So.2d 346 ([Ala.] 1978). The ‘Alabama Rules of Criminal Procedure-Temporary Rules’ requiring sentencing hearings and presentence reports did not become effective until February 23, 1980, after the Petitioner’s conviction in November 11, 1979. Gibson v. State, 387 So.2d 325 ([Ala.Cr.App.] 1980). Further, as Petitioner was convicted of murder in the first degree, the Court had no discretion in sentencing and was required to impose the sentence of life imprisonment in the penitentiary returned by the jury and required by statute. “The further allegation by Petitioner that he was denied due process of law and his contention that he is innocent of the crime are insufficient. The record of the case includes a letter written by the Petitioner to the prosecuting attorney, after his conviction, in which he admits shooting and killing the victim but contends it was in self-defense, the same argument that his counsel presented to the jury. The office of writ of error coram nobis does not enable the Petitioner to question the merits of the case or to retry an indictment. Aldridge v. State, 278 Ala. 470 [179 So.2d 51] (1965), and Creel v. State, 53 Ala.App. 226, 298 So.2d 647 (1974). Further, naked allegations of denial of constitutional right and innocence are not sufficient for coram nobis relief. Thomas v. State, [274 Ala. 531], 150 So.2d 387 (1963), and Curry v. State, 49 Ala.App. 374, 272 So.2d 583 (1973).
“Based upon the aforestated reasons, the Petition is without merit and due to be denied. An order will be entered in accordance with this memorandum opinion.”

This opinion reveals that the petition was without merit and was properly denied.

Ellison, supra, does not stand for the proposition that the mere allegation of the denial of a constitutional right will render a petition for writ of error coram nobis “meritorious” and entitle the petitioner to an evidentiary hearing. The mere allegation that the petitioner was denied counsel, or effective counsel, is insufficient. Ex parte Richards, 42 Ala.App. 461, 168 So.2d 29 (1964).

In order for a petition for writ of error coram nobis to be “meritorious on its face” it must contain more than mere naked allegations that a constitutional right has been violated.

“It is also well established that in a petition for writ of error coram nobis, mere naked allegations that a constitutional right has been violated will not suffice. The application should make a full disclosure of the specific facts relied upon and not mere conclusions as to the nature and effect of such facts.” Thomas v. State, 274 Ala. 531, 532, 150 So.2d 387 (1963) (emphasis added).

Ex parte Phillips, 276 Ala. 282, 161 So.2d 485 (1964); Corley v. State, 397 So.2d 223 (Ala.Cr.App.), cert. denied, Ex parte Corley 397 So.2d 225 (Ala.1981); Brown v. State, 373 So.2d 1232 (Ala.Cr.App.1979). The petition must contain not only the grounds upon which the petitioner bases his allegations but also the facts which support each ground. See A. Cates, Post Conviction Remedies, 28 Ala.Law. 257, 272 (1967).

A hearing should not be granted without affidavits sufficiently refuting a record that appears correct. Shadle v. State, 284 Ala. 138, 222 So.2d 722 (1969); Chatom v. State, 366 So.2d 1143 (Ala.Cr.App.1979). A court may take judicial notice of its own records. Shadle.

The petition was properly dismissed. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Jennifer HOWARD v. STATE.
    5 Div. 683.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.

      Cecil M. Matthews, Goodwater, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the attempted murder of Jeffie “Dink” Smith. Alabama Code 1975, Sections 13A-4-2 and 13A-6 — 2. Sentence was ten years’ imprisonment.

I

The indictment charged that the defendant “did with the intent to commit the crime of murder ... upon the person of Jeffie ‘Dink’ Smith, attempt to commit said offense.” Because the indictment omitted to state the means with which the attempted murder was committed, it was defective and subject to demurrer. “The means with which the offense charged was committed, however, is not, in an indictment for murder, a constituent element of the offense .... The omission to aver the means employed, though in a sense a defect of substance, and not one of mere form, yet is such a defect as must be taken advantage of by demurrer.” Gaines v. State, 146 Ala. 16, 23, 41 So. 865 (1906).

Here, the demurrer was untimely because it was filed sometime after the defendant had pled not guilty. Gentry v. State, 344 So.2d 1246 (Ala.Cr.App.), cert. denied, 344 So.2d 1249 (Ala.1977).

In Gaines, our Supreme Court applied the harmless error rule: “We are satisfied that no injury resulted to the defendant from the omission of the averment in the indictment. The evidence without dispute showed that the killing was done with a gun.” Gaines, 146 Ala. at 23, 41 So. 865.

This is the same factual situation presented here. The evidence is without dispute that the defendant assaulted Smith with a rifle. Moreover, the defendant was well aware of the facts and circumstances involved in this incident as reflected by the comments of the trial judge: “(t)he co-defendant went on trial on the charge of murder, arising out of the same facts and circumstances, and that this defendant, his wife, testified in his trial, and that this is the next term of court in Alexander City following that trial, in which this defendant, his accomplice, could be tried.”

As noted, Gaines held that the failure to allege in an indictment for murder the mode or means of effecting death rendered the indictment voidable upon demurrer but not void. In agreement with Gaines, see also Wilson v. State, 243 Ala. 1, 9, 8 So.2d 422 (1942) (“Without such aver-ments (of the means with which the offense was committed or that the same are unknown to the grand jury), indictments have been held to be defective and subject to appropriate demurrer.”); Jackson v. State, 236 Ala. 75, 182 So. 83 (1938) (An indictment charging the possession of a gambling device demurrable because it did not describe the gambling device, but sufficient, in the absence of appropriate objection, to support the judgment of conviction.); Langham v. State, 243 Ala. 564, 11 So.2d 131 (1942) (Indictment defective because it failed to name the poison used to commit murder.).

The decision of this Court in Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (1973) (followed in Pendleton v. State, 57 Ala.App. 452, 329 So.2d 140 (1975), cause remanded on other grounds, 295 Ala. 327, 329 So.2d 144 (1976)), held that the omission in a murder indictment of any attempt to set out the “quo modo”, or the manner in which the crime was committed, was such a defect in substance, in violation of due process, that the indictment would not support a judgment of conviction despite the absence of any question as to the sufficiency of the indictment in the trial court. Under Nelson, the failure to allege the means by which the offense was committed rendered the indictment void. Under Gaines, that same failure rendered the indictment only voidable. The dissent in Nelson, 50 Ala.App. at 289, 278 So.2d 734 (and Pendleton) recognized this conflict.

We note that in a number of other jurisdictions the rule has been established, either by statute or judicial decision, that an indictment for homicide need not allege the means used to cause death. 40 Am.Jur.2d Homicide, Section 229 (1968); 40 C.J.S. Homicide, Section 150 (1944). Because “the decisions of the supreme court shall govern the decisions and holdings of the courts of appeals” we are bound by the holding in Gaines.

II

The defendant’s challenge for cause of prospective juror Shirley Ogmond was properly overruled. Although Ms. Ogmond initially stated that, based on what she had read in the newspaper and what she had heard from her husband, she felt the defendant was guilty, upon further questioning by the trial judge, she acknowledged that she could be “a fair, honest, impartial juror based solely on the evidence.” She candidly admitted that she did not think she could “totally” put out of her mind anything she might have heard or read about the case but admitted that she did not think it would affect her verdict in any way. Ms. Ogmond was able to “assure” the trial judge that she “could listen to the evidence in this case, and base her verdict solely on what came to her from the witness stand.” “Where jurors testify that they have opinions but that they would try the ease fairly and impartially according to the law and the evidence, and that their opinions would not influence their verdict, they are competent to serve and it is not error for a trial judge to deny a challenge for cause.” Jarrell v. State, 355 So.2d 747, 749 (Ala.Cr.App.1978); Tidmore v. City of Birmingham, 356 So.2d 231, 234 (Ala.Cr.App.1977), cert. denied, 356 So.2d 234 (Ala.), cert. denied, 439 U.S. 836, 99 S.Ct. 120, 58 L.Ed.2d 132 (1978).

II

It is not ground for challenge for cause that a juror is related to counsel in a criminal case. Washington v. State, 58 Ala. 355 (1877). That a juror is related to the district attorney or to the prosecuting attorney is no ground for challenge for cause. Frost v. State, 225 Ala. 232, 142 So. 427 (1932). As used in Alabama Code 1975, Section 12-16-150, “prosecutor” means “one who instigates prosecution by making an affidavit charging a named person with the commission of a penal offense, on which a warrant is issued, or an indictment or accusation is based.” Wright v. State, 40 Ala.App. 263; 269, 111 So.2d 588, cert. denied, 269 Ala. 131, 111 So.2d 596 (1958). “Prosecutor” as used in the statute containing the statutory challenges for cause does not mean the district attorney prosecuting the accused. Acoff v. State, 50 Ala.App. 206, 278 So.2d 210 (1973).

IV

The defendant argues that the verdict was contrary to the evidence and that her motion to exclude the State’s evidence should have been granted. The defendant alleges that she acted in defense of her husband who was being attacked by Dink Smith. The State had the burden of proving that the defendant did not act in self-defense in the sense that the State had to prove a prima facie case of unjustified homicide. Kent v. State, 367 So.2d 508 (Ala.Cr.App.1978), cert. denied, 367 So.2d 518 (Ala.1979); Mack v. State, 348 So.2d 524 (Ala.Cr.App.1977). Such a homicide being shown, a defendant must prove circumstances in mitigation, excuse or justification unless shown by the evidence produced against him. Flint v. State, 370 So.2d 332 (Ala.Cr.App.1979).

Here, there was a jury question of whether or not the defendant “reasonably believed” that the victim was using or about to use unlawful deadly physical force against her husband which would justify her actions. Alabama Code 1975, Section 13A-3-23.

The defendant presented no evidence on the facts surrounding the assault. The State’s evidence shows that on the morning of April 22, 1981, the defendant, her husband Lonnie Howard, and Jessie “Dink” Smith were having a friendly drink of whiskey at Smith’s service station and grocery store. Smith and Howard got into an argument. When Howard grabbed Smith a fight began. Smith drew a knife from his pocket and severely cut Howard.

Then the two men separated and were not fighting “anymore”. Howard told the defendant to “get my damn 30-30.” The defendant ran to their truck, “got the rifle, came back, actioned the rifle, it’s a lever action, loaded it, threw it up and shot” in Smith’s direction. She gave the rifle to Mr. Howard who “levered the action, loaded it, threw it up, aimed and shot” and killed Mr. Smith. After the defendant had already fired at Smith, the defendant told a witness at the scene “to sit down out there or she would get” him.

By statute, the defendant was justified in using deadly physical force in defending her husband only if (1) she reasonably believed that Smith was using or about to use unlawful deadly physical force, Section 13A-3-23(a)(l), and only if (2) she reasonably believed that both she and her husband could not have avoided the necessity of using such force with complete safety by retreating. Section 13A-3-23(b)(l).

The testimony presented a jury question on the issues of not merely what the defendant actually believed but what she had the right to believe. Oliver v. State, 17 Ala. 587 (1850). The law requires that a belief of imminent peril and urgent necessity to slay in self-defense, though it may be based on appearances, must be both well-founded and honestly entertained. Williams v. State, 161 Ala. 52, 59, 50 So. 59 (1909). A merely “honest” belief, unless a reasonable one, that the killing was necessary, will not make it justifiable.

“It is not an honest, but a reasonable belief, that justifies. An honest may not be a reasonable belief; it may be the offspring of fear, alarm or cowardice, or it may be the result of carelessness, and irrational. A reasonable belief, generated by the attendant circumstances — circumstances fairly creating it — honestly entertained, will justify a homicide; but not an irrational belief, however honest it may be.” Holley v. State, 75 Ala. 14, 19 (1883).

The testimony that the fight between Smith and Mr. Howard had ended and the two had separated presented a genuine factual issue of whether or not the defendant had reasonable ground to believe that Smith was about to use unlawful deadly physical force against her husband.

Since the evidence shows that the defendant’s husband was not free from fault in starting the difficulty, the jury had to determine whether or not the defendant “reasonably believed” that her husband was not the “initial aggressor”. Section 13A-3-23(c)(2). Additionally, a jury question was presented as to whether or not it “reasonably appeared” or the defendant knew that she could have avoided the necessity of using force by retreating. Section 13A-3-23(b)(1). Although there was no testimony directly on this point, the evidence strongly supports the reasonable inference that retreat was available to both the defendant and her husband.

For these reasons, the defendant’s motion to exclude the State’s evidence was properly overruled.

V

When the jury was polled, one jur- or initially indicated that the verdict of guilty was not his verdict: “I voted for it but my conviction wasn’t to vote for it.” Immediately, the trial judge questioned the juror’s response and “determined that it was his desire and intent to vote for the guilty verdict, and still wanted to do it after the court gave him the chance not to.” The defendant requested a mistrial and argues that its denial was error.

Because the defendant did not suggest that the trial judge order the jurors to retire and deliberate further, she cannot now be heard to complain that a mistrial was required. The language of Comer v. Rush, 403 So.2d 205, 207 (Ala.1981), controls.

“(T)he defendant moved for a mistrial without first requesting that the court order further deliberations. Such a request is required as a condition precedent to a request for a mistrial, in keeping with the mandatory language of Section 12-16-15, ‘if any answer in the negative, the jury must be sent out for further deliberation.’ Perry v. State, 56 Ala.App. 454, 322 So.2d 745 (1975); Ray v. State, 39 Ala.App. 257, 97 So.2d 594 (1957).”

VI

Although the remarks of the assistant district attorney were improper and completely uncalled for, the trial judge immediately charged the jury to disregard. Consequently, there is a prima facie presumption against error. Favor v. State, 389 So.2d 556, 561 (Ala.Cr.App.1980). In view of the trial judge’s instructions, the denial of the defendant’s motion for a mistrial was not an abuse of discretion. Ingle v. State, 400 So.2d 938, 941 (Ala.Cr.App.1981).

VII

The denial of the defendant’s application for probation was entirely within the discretion of the trial judge and is not reviewable on appeal from the judgment of conviction. Roden v. State, 384 So.2d 1248, 1249 (Ala.Cr.App.1980).

After a thorough review of the record and the arguments presented, we affirm the judgment of the circuit court.

AFFIRMED.

All Judges concur.


text:
    Floyd Lee COLEMAN, Jr. v. STATE.
    6 Div. 438.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.

      Orson L. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of Clara Mae Hargrove. Alabama Code 1975, Section 13-1-70. A jury found him guilty of murder in the second degree. Sentence was twenty years’ imprisonment.

I

The failure of the trial judge to give certain written charges requested by the defendant was not properly brought to the attention of that court and has not been preserved for review in this Court. The exceptions taken at the close of the court’s instructions to the jury challenged only portions of the oral charge. No mention was made of the refusal of the requested charges. Allen v. State, 414 So.2d 989 (Ala.Cr.App.), affirmed, Ex parte Allen, 414 So.2d 993 (Ala.1982). Proper objections to the trial judge’s failure or refusal to give the defendant’s requested written instructions may not be raised for the first time on the' motion for new trial. See Gurley v. State, 216 Ala. 342, 113 So. 391 (1927); Hewitt v. State, 389 So.2d 157 (Ala.Cr.App.1980).

II

The trial judge properly refused to allow the defense to prove the alcohol content of the deceased’s blood. “The accused in homicide may prove the intoxication of the deceased as tending to show deceased’s aggressive and fearsome conduct at the time of the homicide, provided evidence is offered which warrants a finding of self-defense.” C. Gamble, McElroy’s Alabama Evidence, Section 60.03(1)(c) (3rd ed. 1977), citing Nixon v. State, 261 Ala. 74, 72 So.2d 846 (1954); Harrell v. State, 166 Ala. 14, 52 So. 345 (1910); Ferguson v. State, 21 Ala.App. 116, 105 So. 435 (1925).

Here there is no evidence which would support a reasonable inference of self-defense. Although one witness told the police that the defendant was “talking loud” to the deceased, his testimony was clear and uncontradicted that the deceased and the defendant had not been and were not arguing prior to or at the time of the shooting.

The State’s evidence reveals that the homicide occurred while the deceased and the defendant were alone in a bathroom. After a shot was heard, the defendant came out and said that he had “accidentally” shot the deceased. Later, he said that someone else had shot the deceased while she stood facing the window. The deceased was killed by a “contact wound” to her forehead.

The defendant presented evidence that the day before the shooting the deceased, who lived with the defendant on weekends, was seen removing a pistol from the headboard of the defendant’s bed. The murder weapon was never found.

Considering the evidence, and especially the defendant’s statements, if the theory of the killing is that death resulted from the accidental discharge of the pistol over which there had been a scuffle, the question of the intoxication of the deceased was “wholly immaterial” and the questions seeking to elicit such evidence were properly overruled. Harrell, 166 Ala. at 16, 52 So. 345.

Also, the theory that someone else fired the fatal shot involves no element of self-defense. Shepard v. State, 51 Ala.App. 66, 282 So.2d 418 (Ala.Cr.App.1973); Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, cert. denied, 287 Ala. 742, 251 So.2d 246 (1971).

Since there was no evidence to support any theory of self-defense, whether or not the deceased was intoxicated was immaterial.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: BARRON, Judge.

text:
    Douglas HARPER v. STATE.
    6 Div. 599.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.

      Fred Pickard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

The appellant was found guilty of robbery and was sentenced to 18 years in the penitentiary.

Appellant was released from a sentence in the State penitentiary on an unrelated charge on August 5, 1974. On August 13, 1974, the robbery was committed. Appellant was indicted for the crime by the November 1974, session of the Grand Jury of Jefferson County.

On December 5, 1975, appellant was arrested in New York for an offense committed there. Based on the search of an NCIC computer data base that revealed appellant was wanted in Alabama, the New York Police Department sent a teletype notifying Birmingham authorities that Harper was in custody, and that Alabama should forward extradition papers and other information if appellant was still wanted. On December 8,1975, the Jefferson County court responded to this message by issuing a warrant for appellant’s arrest. The warrant was mailed to the New York Police Department with the following cover letter:

“New York City Police Department Inter City Correspondence Unit 1 Police Plaza New York, New York 10038

“Gentlemen:

In Re: State of Alabama vs: Douglas Harper

No. DA 610

“Pursuant to your teletype communication to the Birmingham Police Department, enclosed is certified copy of Complaint and Warrant of Arrest, whereby subject, who is in your custody, is charged with Robbery, the maximum sentence for which being life.

“Please lodge this Warrant as our de-tainer against Harper, and when available we wish to take the necessary steps to return him to this jurisdiction by extradition process in the event he will not waive.

“Please acknowledge.

“Yours very truly, Earl C. Morgan District Attorney”

ECM:d

Upon receipt of the warrant, the New York Police Department claims to have sent two teletyped requests to the Jefferson County District Attorney’s office asking for other identification information.

The Jefferson County District Attorney testified to having no record of the receipt of these requests. The warrant was sent back to Jefferson County by New York on March 1, 1976, with the following cover letter:

“Earl C. Morgan, District Attorney 10th Judicial Circuit of Alabama 610 Courthouse Birmingham, ALA. 35203

Re: Douglas Harper

No. DA 610

“Dear Sir:

“We are returning your warrant for the above subject.

“We have sent two teletype requests to your department for photo and fingerprints on above subject and have received no reply.

“We are enclosing our photo of our subject.

“Yours very truly,

James F. Hannon

Chief of Operations”

The charges were dropped in the New York offense, and appellant was released five days after his arrest.

On March 23, 1980, appellant was again arrested in New York on charges of rape and assault. Again, the Jefferson County District Attorney’s office was notified and on June 17, 1980, Alabama requested extradition of appellant from New York. A hearing on September 4, 1980, granted extradition to Jefferson County, Alabama.

I

The most substantial argument made by appellant challenges the denial of his motion to quash the indictment. The appellant contends that delay between his indictment in November 1974, and his arraignment in December of 1980, deprived him of his constitutional right to a speedy trial.

The United States Supreme Court has recognized the impossibility of setting an absolute rule defining when a defendant’s right to a speedy trial has been denied. Rather, the court has established a generalized test that is used on a case-by-case basis. One is instructed to look at all the circumstances of the particular case, such as (a) the length of the delay, (b) the reason for the delay, (c) whether and how the defendant has asserted his right to a speedy trial, and (d) the prejudice due to the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1974).

A

The initial consideration that triggers further scrutiny of the denial of the speedy trial right under Barker v. Wingo, supra, is the length of delay.

A person becomes an accused for purposes of attaching the right to a speedy trial when an indictment is returned against him. Vickery v. State, 408 So.2d 182 (Ala.Cr.App.1981); Turner v. State, 378 So.2d 1173 (Ala.Cr.App.), writ denied, 378 So.2d 1182 (Ala.1979).

In computing the length of delay for the purpose of determining whether defendant’s speedy trial rights were violated, it is necessary to exclude the period before the defendant’s return to custody where that period of delay was solely attributable to defendant’s own action. Bailey v. State, 375 So.2d 519 (Ala.Cr.App.1979).

Thus, in establishing the period of delay in this case, we herein must determine whether the delay was solely attributable to the defendant’s own action or was to any degree attributable to an action or inaction on the part of the State.

The indictment against appellant was handed down in November of 1974, and arraignment of appellant occurred in December of 1980. This is a six-year period of delay. One year of the delay is clearly due to be excluded under the criteria stated in Bailey, supra.

The delay from November 1974, to December 1975, was clearly attributable solely to appellant’s own actions. During that time, appellant was a fugitive from justice, whose whereabouts was unknown to Alabama authorities.

However, on December 5, 1975, an opportunity to secure the fugitive appellant for trial intervened. After appellant’s arrest on an unrelated charge in New York, there was undoubtedly miscommunication between law enforcement agencies in New York and Alabama concerning the forwarding of information on appellant pursuant to his extradition on the charges in this appeal. Thus, we find some evidence that a five-year portion of the delay, from December 5,1975, until arraignment, was not solely attributable to the acts of the appellant. Such a finding requires this court to weigh other facts of the case to assure that the constitutional rights of the appellant were not infringed upon.

This is in accordance with the case of McCallum v. State, 407 So.2d 865 (Ala.Cr.App.1981), which stated that the length of the delay must be “presumptively prejudicial” in order to trigger an inquiry into the remaining Barker factors. A delay of two and one-half years was deemed presumptively prejudicial in that case.

B

There is evidence that there was negligence on the part of the State in the transfer of information relative to the appellant’s availability in New York for extradition on this charge in 1974. In the testimony of the assistant district attorney, Mr. Whisenant, the record reveals the following:

“THE COURT: What do you think is the reason for the delay, Mr. Whisenant?
“MR. WHISENANT: Your Honor, I don’t honestly know, unless there was some loss of some paper work in transit. When those teletypes come in they usually come to the Sheriff’s Office and are transferred up to our office, to the District Attorney’s Office from there. Somewhere in the process all I can assume is that the paper work may have been misplaced.”

While the negligence of the State, in not promptly pursuing extradition of the appellant, does act to begin the measurement of the period of delay, it is not sufficient by itself to establish denial of the right to speedy trial. No one of the Barker factors alone is necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Barker, supra, 407 U.S. 533, 92 S.Ct. at 2193.

In the case of United States v. Walters, 591 F.2d 1195 (5th Cir.1979), reh. denied, 594 F.2d 863 (5th Cir.1979), the Fifth Circuit Court refused a claim of the denial of a speedy trial right when there was delay due to government neglect. The court in that case stated that while it must be weighed against the government, negligent inaction is not as damaging as intentional delay. See also United States v. Greene, 578 F.2d 648, 655 (5th Cir.1978).

It should be noted that Walters, unlike the appellant herein, made timely motions asserting her speedy trial right.

The Court in Barker v. Wingo, supra, stated that a “neutral” reason such as this should be weighed less heavily than deliberate delay. 407 U.S. at 531, 92 S.Ct. 2182 at 2192.

There is no evidence of deliberate delay on the part of the Alabama authorities. The delay was not purposeful or oppressive. Noe v. State, 391 So.2d 151 (Ala.Cr.App.1980).

C

Appellant did not demand a right to a speedy trial at any time prior to the day of trial. Numerous cases in this jurisdiction hold that one who makes no demand for a speedy trial prior to the trial itself may not complain of delay on appeal. Tidmore v. City of Birmingham, 356 So.2d 231, 233 (Ala.Cr.App.1977), cert. denied, 356 So.2d 234 (Ala.1978).

An exerpt from Prince v. State of Alabama is instructive on this point:

“Prior to the decision of the Supreme Court in Barker v. Wingo, supra, the majority rule was that a defendant who failed to make a prompt demand for a speedy trial was deemed to have waived that right for the period up to the time of his first demand. . . .
“Accordingly, the court in Barker substituted for the rigid demand-waiver rule a more flexible approach in which the defendant’s assertion of speedy trial right became merely one of the several factors to be considered in determining whether the right had been abridged.” Prince v. State of Alabama, 507 F.2d 693 (5th Cir. 1975).

However, the Barker decision stated that an absolute failure of the defendant to assert his right would make it difficult to prove the denial of a speedy trial. The prosecution is given the responsibility of showing a knowing and voluntary waiver of the right. Barker, supra, 407 U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d at 116.

The prosecution adduced testimony from appellant as follows:

“Q. Mr. Harper, were you aware that Birmingham had a warrant outstanding for you back in ’76?
“A. I was aware of it in ’75.”

The appellant’s testimony concluded as follows:

“Q. Did you or your attorney make a motion for a speedy trial at that time?
“A. In New York?
“Q. Uh, huh.
“A. No, we didn’t.”

Appellant’s failure to assert his right after knowledge of the charges pending against him must weigh heavily against him. It also gives credence to the assertion of the State that his absence from Alabama from the date of this knowledge until his extradition should be excluded from the period of delay as attributable to his own actions, albeit combined with inaction of the State. Bailey, supra.

D

The point at which the defendant asserts his right is important because it may reflect the seriousness of the personal prejudice he is experiencing. United States v. Palmer, 537 F.2d 1287 (5th Cir.1976).

There is little evidence of prejudice to the appellant due to the delay. The appellant was not prejudiced by a lengthy pretrial incarceration. Hoskins v. Wainwright, 485 F.2d 1186 (5th Cir.1973). The delay did not interfere with the defendant’s liberty, disrupt his employment, drain his financial resources, or curtail his associations. Moore v. Arizona, 414 U.S. 25, 38 L.Ed.2d 183, 94 S.Ct. 188 (1973).

There is little evidence of prejudice to the appellant’s defense other than his lack of an alibi for the time of the crime.

After due scrutiny under the Barker balancing process, we herein determine that whatever negligence the State displayed in its paper work mix-up is outweighed by the lack of an assertion of the right to a speedy trial by the appellant and the paucity of evidence that the delay was prejudicial in fact to appellant’s rights.

II

During the qualification of the jury, the court asked the district attorney, “Where is this that this occurred?” The defense counsel claims the statement was a comment on the evidence that relieved the State from the necessity of proving the crime, in fact, occurred.

The words of the trial court did not prove the crime occurred and did not relieve the State of proving its occurrence. The State did, in fact, adduce sufficient proof of the crime’s occurrence.

Of course, the court must not express its opinion so as to prejudice a defendant or influence a jury in their independent job of deciding questions of fact. Remarks by the trial judge are error if they affect the results of a trial. McCovery v. State, 365 So.2d 358 (Ala.Cr.App.1978). The comment cannot be said to have affected the result of this trial. It was a casual comment addressed to the district attorney for purposes of qualifying the jurors as to any possible relationship with the victim of the robbery. Copeland v. State, 377 So.2d 1 (Ala.Cr.App.1979).

The trial court, on two occasions in the trial, properly instructed the jury as follows:

“At no time should anyone think or conclude that the Court feels one way or the other about the guilt or innocence of the defendant. That is strictly your responsibility.”

The comment was not intended to influence and did not influence the verdict in this case. Lang v. State, 279 Ala. 169, 182 So.2d 899 (1966). We find no error in the court’s actions that would require a reversal of this verdict.

Ill

It was properly within the discretion of the trial court to reopen the case for the further reception of evidence after the State had rested and before the jury had been charged or begun deliberations. Harris v. State, 283 Ala. 148, 214 So.2d 843 (1968).

Section 15-14-4, Code 1975, allows the court to permit a party to supply an omission in the testimony on such terms and under such limitations as the court may prescribe, when it appears to be necessary to the due administration of justice.

A witness had testified as follows:

“Q. Who did you give the money to?
“A. Douglas Harper.
“Q. Approximately how much money did you give him?
“A. To the best of my memory I think it might have been about seven or eight cash.
“THE COURT: Seven or eight what?
“THE WITNESS: Hundred.”

The court properly allowed the State to reopen its case for the limited purpose of establishing that appellant took seven or eight hundred dollars in cash in “the lawful currency of the United States of America” from the witness. This added testimony followed the wording of the indictment.

There was no abuse of discretion by the trial court.

Finding no infringement of constitutional rights and no reversible errors in this proceeding, we hereby affirm.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Ervin Lanier VARNER v. STATE.
    6 Div. 662.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    C. Steven McLaurin, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of burglary in the third degree. Upon a hearing after due notice thereof and of the invocation of the statutory law as to habitual felony offenders, at which hearing it was shown that prior to the commission of the felony in the instant case the defendant had been convicted of more than three felonies, he was sentenced to imprisonment for sixty (60) years.

There was undisputed evidence that about midnight July 6-7, 1980, police officers were on patrol near City Tire and Sales Service at 5500 First Avenue South, Birmingham, which had been closed for the night at about 5:00 P.M., and observed appellant and another black male as they were walking “less than a city block” from the place of business of City Tire and Sales Company after they had seen that a large plate glass window on the side of the front of the store had been broken out and observed a large number of tires, including fourteen new tires, in front of the store. The two “males” started to run as the patrol car arrived. One officer chased the defendant, who at the time he was walking had a tire tool in his hand, and apprehended him as he was found “crouched behind the bushes.” Another officer apprehended the other person with defendant at the time they were first observed. The officers then placed the two men into the patrol ear, took them to the tire store and the place where the plate glass window had been broken out and where the fourteen new tires were outside the store and thereafter drove them in the police car to the jail.

Soon after the arrest of the defendant and his companion, latent fingerprints were lifted from some of the glass on the side of the store where the alleged burglary was committed. According to the testimony of an X-ray technician, a known thumbprint of appellant matched one of said latent fingerprints.

Appellant’s only contention for a reversal is thus stated in his brief:

“The trial court erred in allowing the State’s witness, Mr. Wayne Burrow, to testify that in his opinion the particles of glass found in the sack containing Ervin Varner’s shoes could have been of the same origin as particles of glass retrieved from the scene of the alleged burglary.”

We note that appellant’s argument in support of his quoted contention is directed solely to the question of Mr. Burrow’s qualification as an expert witness on the subject. No question is raised as to the chain of custody of the particles of glass that fell to the ground or floor from the window as it was broken or as to the particles of glass that were in the empty sack into which the shoes that appellant was wearing at the time of his arrest were placed. As to the test made by Mr. Burrow, he testified that he “determined the refractive index of the glass particles recovered from the bag which contained the left shoe and compared it with the refractive index” of particles of glass that obviously had dropped from the window that had been broken. The only ruling of the court adverse to defendant on the particular point is to be found in the following part of the direct examination of Mr. Burrow, as a witness for the State:

“Q. Well, let me ask you, Mr. Burrow, based on your experience, eight years you’ve had conducting this type of test, do you have an opinion as to whether the glass particles found in the bag, State’s Exhibit 10, the brown left shoe, as compared to State’s Exhibit 12, the piece of glass and samples you took out and ran the test on whether or not they matched up, please, Mr. Burrow?
“MR. McLAURIN [Defendant’s attorney]: May it please the Court, Your Honor, I object, because I don’t believe it has been shown this man is an expert in the field. He said he is a chemist and worked in general criminalistics, but I don’t believe it has been shown he is an expert in matching up glass particles.
“THE COURT: Overruled.
“Q. You can answer Mr. Burrow.
“A. In my opinion the refractory indices of the two glasses are consistent and they could have common origin.”

Before the ruling of the court just quoted, the witness had testified in part as follows:

“A. I am employed by the Alabama Department of Forensic Science, Birmingham Division.
“Q. And in what capacity are you employed with the Forensic Science Department, Birmingham, Alabama?
“A. I am a criminalist in trace evidence examinations.
“Q. Explain to the ladies and gentlemen of the jury and for my benefit what that is, please, sir.
“A. Trace evidence examination is the examining of small particles which may be glass particles, paint particles, hairs and fibers, soil, and any type of material that may be compared as to a probability of common origin.
“Q. Now, what type of training or education have you had in relationship to your job, please, Mr. Burrow, as a criminologist?
“A. I have a B.S. Degree in Chemistry from the University of North Alabama. And I have received training within the department for the last eight years that I have been employed with the department.
“Q. Okay. During that past eight years have you had an occasion to have physical evidence submitted to you to run tests on, please, sir, to determine the quality, the make or whatever you are testing for?
“A. Yes, sir, I have.
“Q. How many cases, please, Mr. Burrow?
“A. On many occasions.
“Q. Have you had an occasion to come down and testify in Jefferson County Court as a criminologist?
“A. I have on occasion, yes, known as a criminalist.
“Q. I’m sorry, criminalist. Now, let me ask you and show you some items if I could . . .. ”

On cross-examination, the witness testified in part:

“A. When I run the refractive index or the measurement of it, it is done under a 10-X microscope objective or using a microscope for this. It is not done with the unaided eye.
“Q. Oh, I see. How many tests of this sort have you run in your eight years? Is that what you said, that you had been doing this for eight years?
“A. No, sir. This has not been my primary duty over the past eight years. I have done fifty or so examinations.
“Q. All right. Now, you said — Now, what was your opinion as to this glass?
“A. My opinion is that the refractory indices of the two glasses are consistent and that they could have common origin.
“Q. Okay. But there is no way to tell whether these little particles of glass came from the same glass that you were presented in this larger envelope, State’s Exhibit 12, is that correct?
“A. The only way that you could say that they did would be to have a large enough piece, two pieces, that you could put together and make a refractive match of the two glasses and then that way you could be certain that the two came from the same object.
“Q. But you didn’t have that, did you?
“A. No, sir, I did not.”

We think that our references to the transcript quoted above are sufficient of themselves to demonstrate that Mr. Burrow was fully qualified to testify as an expert witness as to the possible common origin of the glass of the window that was broken and the glass that apparently came from defendant’s shoe. By the cross-examination of the witness as above shown, it is made as clear as crystal, we think, that the jury was not misled into believing that the witness had in effect testified that the two specimens did in fact have a common origin, only that they could have had a common origin. Furthermore, we note such evidence was not as convincing as to defendant’s guilt as was the other evidence in the case, including particularly the matching fingerprint evidence of the fingerprint technician.

Our conclusion as to the admissibility of the testimony of Mr. Burrow as to the possible common origin of the different items of glass is the only conclusion we can reach consistent with the statutory law of Alabama and previous opinions of appellate courts on the subject. Code of Alabama 1975, § 12-21-160 provides: “The opinions of experts on any question of science, skill, trade or like questions are always admissible, and such opinions may be given on the facts as proved by other witnesses.” Whether a witness is competent to testify as an expert is an inquiry largely within the discretion of the trial judge, and appellate courts will not disturb the trial judge’s determination of expert qualifications unless there is a clear abuse of this discretion. Kozlowski v. State, 248 Ala. 304, 27 So.2d 818 (1946); Davis v. State, Ala.Cr.App., 352 So.2d 3, cert. denied, 352 So.2d 8 (1977); Gullatt v. State, Ala.Cr.App., 409 So.2d 466 (1982).

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.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    General BENDER v. STATE of Alabama.
    6 Div. 828.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.

      Donald Hugh Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

General Bender was indicted for theft, while armed with a deadly weapon, in violation of § 13A-8-41, Code of Alabama 1975. The jury found the appellant “guilty of robbery in the first degree” as charged in the indictment. The trial court set sentence at ten years’ imprisonment in the penitentiary.

William Weems was employed by Coca Cola Bottling Company on April 24,1981, as a route merchandiser. His job was to deliver cokes to businesses and collect money from them. At 2:00 p.m. on April 24, 1981, Weems had just finished making a delivery when he was approached from behind by two men. One of the men placed a gun to Weems’ head while the other held a knife to his throat. The two men ordered Weems to lie down on the street and give them his billfold. When Weems failed to surrender his billfold, one of the men cut his hand and took the billfold. The assailants then fled on foot.

Weems immediately called the police and gave a description of the robbers. Approximately forty minutes later, a policeman, who was patrolling the area where the robbery was committed, spotted a man who fit the description Weems had given. The officer testified that the man ducked behind a railroad car when he noticed the police car. When the officer accidently activated the siren, the man then took off his shirt and began to flee.

The officer pursued the suspect and took him into custody. The suspect was taken back to the scene of the robbery where Weems identified the suspect as one of the two men who had robbed him. The suspect was identified as General Bender, the appellant.

The appellant produced several alibi and character witnesses and challenged the accuracy of Weems’ identification of the appellant. The appellant stated the reason he fled from the police officer was that he was about to use the bathroom when he saw the police car. He fled because he thought he would go to jail for “taking a leak in public.”

I

The appellant’s sole contention is that the trial court erred in overruling the defense’s motion to exclude the State’s evidence. Counsel for the appellant contends the state failed to prove a prima facie case and, therefore, the verdict was contrary to the evidence.

“In determining the sufficiency of the evidence to sustain the conviction, this court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. The evidence must be considered in the light most favorable to the prosecution.” Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.1979).

This court will not disturb a verdict of conviction on the grounds of insufficiency of the evidence, “unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it was wrong and unjust.” Johnson, supra. This court is not so convinced. We believe there was sufficient legal evidence from which the jury could, by fair inference, have found the appellant guilty in this case. Therefore, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Willis PENNINGTON v. STATE.
    6 Div. 856.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.

      J. Paul Whitehurst of Henley, Whitehurst & Shirley, Northport, for appellant.
    Charles A. Gradclick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Willis Pennington was charged in a three-count indictment with third degree burglary, second degree theft, and second degree receiving stolen property. The charges arose out of the June 14, 1981, break-in of Smith’s Grocery Store located in Tuscaloosa County. Trial was had with the jury returning a verdict of “guilty as charged.” Appellant was sentenced to two years’ imprisonment. From that conviction he now appeals.

On appeal, appellant questions the sufficiency of the State’s corroborating evidence. Thus, a complete statement of the facts is necessary.

Mr. W.D. Smith testified that he owned Smith Grocery Store located on Highway 43 in Tuscaloosa. Around 6 p.m. on Saturday, June 13, 1981, Smith closed and locked his store for the evening. He returned the next morning between 7:30 and 8 a.m. to find a front window broken and the back door unlocked and open. He called the police and Tuscaloosa Sheriff’s investigator Hubert Hallman responded. An inventory of the items taken was made. Several cartons of cigarettes and chewing tobacco, numerous bags of popcorn, and several gallons of milk were taken. The aggregate value of the items taken was between $300 and $350.

Tuscaloosa Sheriff’s investigator Hubert Hallman testified that he investigated the break-in of the Smith Grocery Store. He interviewed Smith and afterwards began to look for a small, early model white vehicle with a black fender, or vice-versa color. Later that afternoon a white Ford Falcon with a black left front fender was located at the residence of co-defendant Johnny Shelby. After receiving the information, Hallman headed toward the residence only to see Shelby’s brother, Mike Shelby, riding a bicycle on Highway 43. He stopped him, advised him of his rights, and questioned him. Afterwards, Hallman proceeded to the residence of appellant’s father in Fa-yette County. Finding no one home, he returned to Tuscaloosa County and spotted the car. He stopped it and found appellant and Johnny Shelby inside. Both were advised of their rights. Subsequent thereto, Hallman went to Shelby’s residence and discovered about forty-five bags of popcorn and two gallons of milk.

From the Shelby residence, Hallman returned to the residence of appellant’s father. At the time, Mr. Pennington was living with his mother although he owned a vacant home nearby. Hallman informed Mr. Pennington of the possibility that stolen property was hidden in his vacant house. They went to his house and searched it. Inside a washer and dryer, Hallman found about forty cartons of cigarettes and two cartons of chewing tobacco. Hallman returned all of the stolen merchandise with the exception of one bag of popcorn and four cartons of cigarettes to Smith.

Based on his investigation, appellant and Johnny and Mike Shelby were arrested.

On cross-examination, Hallman stated that none of the cartons of cigarettes and chewing tobacco were found in the furniture stacked near the front entrance of Mr. Pennington’s house.

Johnny Shelby testified that appellant was his brother-in-law. He knew where appellant’s father was living and where his vacant house was located. He also knew where Smith’s Grocery Store was located.

Around 7 p.m. on June 13, Shelby, and his brother Mike helped appellant move some furniture to his father’s house. Also helping them were Cecil Taylor and his son. Shelby stated that the house was unlocked. Sometime between 10 and 11 p.m. they finished moving the furniture and left.

Shortly thereafter, appellant and Shelby met Mike, who had ridden with Taylor, at Fuller’s Grocery Store, which was located about one mile from Smith’s store. Parked at the store was the Ford Falcon which belonged to appellant. Shelby testified that he and appellant discussed going to Smith’s store. He stated that appellant said that “he wanted to go into the store” (R. 37), although he did not say what he wanted to do once he got inside.

Appellant drove to Smith’s store and Johnny Shelby got out. He broke a front window, entered the store, took numerous cartons of cigarettes and. bags of popcorn, several boxes of chewing tobacco, and a few gallons of milk. He placed the items in a box, opened the back door and left. He walked to a dirt road behind the store and waited for appellant and his brother. Shortly thereafter, he was picked up by them and taken to Fuller’s Grocery Store where he got in the Falcon and returned to the dirt road to pick up the stolen merchandise that he had left. Afterwards, he drove to a predetermined location and met appellant and his brother. Appellant placed the stolen goods in the trunk of the car. Then they drove to the vacant house of Mr. Pennington. Upon arriving, Shelby backed the car up to the front door and appellant and Mike Shelby removed the cigarettes and chewing tobacco. Shelby stated that it was early Sunday morning about two hours before dawn when they left.

After hiding the cigarettes and chewing tobacco, the trio drove to Shelby’s residence where they unloaded the remainder of the stolen merchandise. Appellant then left and Shelby went to sleep.

Later that Sunday morning, appellant returned to Shelby’s and they went for a ride in the Falcon. Eventually, they were stopped by Investigator Hallman and later arrested.

The record reflects that appellant had been residing with the Shelbys for some time prior to the commission of the instant offense.

Shelby stated that the charges against him for the instant offense were pending. He stated that the district attorney had not discussed settling them. In addition, Shelby had two unrelated charges pending against him.

Clyde Pennington testified that he was the father of appellant. In June, 1981, he was living with his mother at her house although he owned a home nearby. Sometime prior to June 13, Pennington had given appellant permission to move some furniture into his house. He stated that the house was normally locked and he did not tell appellant how to get in. Pennington stated that on June 14, he and Investigator Hallman went to his house. He opened the door and together they searched it. Pennington stated that Hallman found the stolen cigarettes and chewing tobacco in the washer and dryer. He testified that the washer and dryer belonged to his “oldest son” and had been in his house for about four years. Pennington had not given anyone permission to put the stolen merchandise in his house or in the washer and dryer.

In response to the question concerning the reason for appellant moving the furniture into the house, Pennington replied, “He [appellant] had rented a house down there and it was occupied by another fellow and up there where he lived they had cut the gas or something or other off and he wanted to move his stuff down there until this other house got empty.” (R. 84) Mr. Pennington’s testimony concluded presentation of the State’s case.

I

Appellant contends that the trial court erred in denying his motion to exclude the State’s evidence. He argues that no evidence corroborating the testimony of accomplice Johnny Shelby was offered.

The general rules governing the determination of the sufficiency of corroborative evidence were recently stated by this court in Harris v. State, [Ms. 3 Div. 503, Aug. 24, 1982] 420 So.2d 812 (Ala.Cr.App.1982). These rules need not be restated here.

Both the State and appellant admitted that Johnny Shelby was appellant’s accomplice. Shelby freely admitted his complicity and voluntarily testified to his participation in the crime. Thus, the question of whether Shelby was an accomplice was not one of disputed fact. Harris, supra.

While speculation and suspicion will not support a conviction based on the uncorroborated testimony of an accomplice, the weakness of the corroborating evidence, in and of itself does not preclude a finding that such evidence tends to connect the defendant with the commission of the offense. Where such a finding is made, the weakness and inconclusiveness, vel non of the corroborating evidence is determined by the jury. Thompson v. State, 374 So.2d 388, 390 (Ala.1979).

A careful review of the evidence reveals the following corroborative evidence tending to connect appellant with the crime: (1) Sometime prior to the commission of the crime, Mr. Pennington had given appellant permission to store some furniture in his vacant home; (2) Mr. Pennington had not given appellant a key to the house which was usually locked; (3) Hall-man observed the furniture stored in Mr. Pennington’s house; (4) Hallman discovered some of the stolen merchandise in the house; (5) Hallman discovered some of the stolen merchandise at Shelby’s residence, and (6) Smith identified the merchandise returned to him by Hallman.

Taken together, we find that the above facts are sufficient corroborative evidence to properly connect appellant with the crime. Ala.Code § 12-21-222 (1975). The trial court properly submitted the evidence to the jury for its consideration. Thus, no error was committed in denying appellant’s motion to exclude.

II

Appellant made objection to the trial court’s omission to charge on the formula to be applied in determining whether sufficient corroboration of Shelby’s testimony existed. Also, he submitted several written requested charges on such, which were refused. Appellant properly objected to their refusal by way of a timely and specific objection. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff’d, 414 So.2d 993 (Ala.1982); Chambers v. State, 418 So.2d 948 (Ala.Cr.App.1982); Rowe v. State, 421 So.2d 1352 (Ala.Cr.App.1982); Grace v. State, [Ms. 1 Div. 355, June 29, 1982] (Ala.Crim.App.1982); A.R.Crim.P.Temp. 14.

Charges 7, 9 and 10 were properly refused as they each contained a misspelled word. Malone v. State, 421 So.2d 1357 (Ala.Cr.App.1982); Gullatt v. State, 409 So.2d 466 (Ala.Cr.App.1981); Kuhlow v. State, 397 So.2d 165 (Ala.Cr.App.1980), cert. denied, 397 So.2d 169 (Ala.1981).

Charge 8 was properly refused as it was abstract. Rogers v. State, 417 So.2d 241 (Ala.Cr.App.1982); See also, Malone, supra; Gullatt, supra.

III

Appellant raises several issues concerning the trial court’s denial of his motion for a new trial. All of the issues are based upon appellant’s newly discovered evidence relating to the testimony of Johnny Shelby.

Attached to appellant’s motion was a transcript of a conversation between his counsel and Shelby. The conversation occurred on December 22, 1981, at the office of appellant’s trial counsel. Appellant filed his motion on January 22, 1982, and on February 23, 1982, a hearing was held to consider the grounds stated for granting it. The motion with the attached transcription appears in the record. However, the tape recording is not a part of the record.

At the outset, we note that the trial court’s refusal to receive the tape recording into evidence did not constitute reversible error when the transcription thereof was made a part of the motion and thus before the trial court. The tape recording would have been cumulative of that which was already before the trial court. Consequently, to refuse to admit it into evidence was not error.

At the hearing on his motion, appellant called Shelby as a witness. Shelby was represented by counsel and when propounded questions, which were preliminary in nature, he refused to answer and invoked his Fifth Amendment right against self-incrimination. The trial court previously had made it clear that if Shelby testified differently than that to which he had testified at trial, then he would see that perjury charges were brought against him. In addition, the trial court would not compel Shelby to testify or answer appellant’s questions.

The transcript of Shelby’s conversation with appellant’s counsel indicates a recantation of Shelby’s trial testimony. It does not implicate appellant in the instant offense whatsoever. Rather, Shelby placed sole guilt for the crime upon himself.

Appellant argues that Shelby, by having testified at trial, waived the right to invoke his Fifth Amendment privilege against self-mcrimination at the hearing on his motion for a new trial. In essence, although not specifically alleged, appellant asserts that Shelby testified falsely at trial and the conversation with his attorney reflects the true account of the facts surrounding the instant incident. Consequently, from that it follows that if the substance of the conversation had been admitted into evidence at the hearing on his motion, then Shelby would have committed perjury at the trial. There is no doubt that such a charge would manifest itself through a new proceeding not related to the material facts giving rise to the instant offense.

The privilege of a witness to refuse to incriminate himself by answering pertinent questions is personal to the witness, and cannot be claimed by or against whom he is called to testify. Bailey v. State, 398 So.2d 406 (Ala.Cr.App.1981). Individuals who testify in either civil or criminal proceedings have the right to refuse to answer relevant questions where the answers might tend to incriminate them in future proceedings. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924); Vail v. Vail, 360 So.2d 985 (Ala.Civ.App.1977), rev’d, 360 So.2d 992 (Ala.1978).

The Fifth Amendment insures that a person can not be compelled, when acting as a witness, a party to a civil action, or a defendant in a criminal proceeding, to give testimony which might tend to show that he himself had committed a crime. Consequently, in any of these contexts, a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. Without such protection, if the witness is nevertheless compelled to answer, said answers are inadmissible against him in a later criminal prosecution. Lefkowitz, 414 U.S. at 77-78, 94 S.Ct. at 322-23.

In the instant case, no promise of immunity was granted to Shelby, which is generally done. See Odiorne v. State, 249 Ala. 375, 31 So.2d 132 (1947). In fact, charges arising out of the instant incident were brought against Shelby and were in existence at the time he testified at appellant’s trial. He had also been charged in two unrelated incidents. Furthermore, the trial court made it clear that charges for perjury would be brought against Shelby if he testified falsely at the trial.

In order to obtain a new trial on the basis of the use of perjured testimony by the State, a defendant must allege and prove (1) that the testimony was perjured; (2) that it was on a matter of such importance that the truth would have prevented a conviction; (3) that the State had knowledge that the testimony was perjured; and (4) that the defendant was not negligent in discovering the falsehood and in raising the issue. Summers v. State, 366 So.2d 336, 343 (Ala.Cr.App.1978); cert. denied, 366 So.2d 346 (Ala.1979). This is in addition to meeting the requirements for establishing the right to a new trial on the basis of newly discovered evidence. Barnes v. State, 415 So.2d 1217 (Ala.Cr.App.1982).

In discussing the principles involved when a witness invokes his privilege against self-incrimination, our Supreme Court in International Brotherhood of Teamsters, Etc., v. Hatas, 287 Ala. 344, 361, 252 So.2d 7, 22 (1971), quoted with approval from Ex Parte Blakey 240 Ala. 517, 522, 199 So. 857, 861 as follows:

“It seems to be the universal holding of the courts of last resort, which have had occasion to deal with cases like the one here under consideration, that when a witness declines to answer a question propounded to him by a court of competent jurisdiction, upon the ground that his answer might tend to incriminate him, two principles of law become at once involved, in determining the question of immunity claimed by the witness, and the court must give them both reasonable construction, so as to preserve them both to a reasonable extent. These two principles are: The state is entitled to the testimony of every citizen, while the citizen is privileged not to accuse himself. Neither of these principles can be entirely ignored and disregarded.
“It seems to be equally well settled, that in such cases, when a witness declines to answer a question upon the ground that his answer may tend to incriminate himself, it is in the first instance the prerogative of the court to consider and decide whether any direct answer to the question can implicate the witness. If it is not apparent such would be the tendency of the answer, the witness is not privileged from testifying. (Emphasis supplied).”

Conversely, if it is apparent that such would be the tendency, as in the instant case through a review of Shelby’s trial testimony and his transcribed conversation with appellant’s counsel, the witness is privileged from testifying.

It is well established that the granting of a new trial on the grounds of newly discovered evidence which tends to establish that the crime was actually committed by another rests in the sound discretion of the trial court. Robinson v. State, 389 So.2d 144 (Ala.Cr.App.), cert. denied, 389 So.2d 151 (Ala.1980). In reviewing such, this court will indulge every presumption in favor of the correctness of the trial court’s ruling. Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), cert. denied, 398 So.2d 332 (Ala.1981); Hewitt v. State, 389 So.2d 157 (Ala.Cr.App.1980).

After a careful review of the record, we are of the opinion that the trial court committed no error in denying appellant’s motion for a new trial. It is clear that the trial court recognized the potential violation of Shelby’s Fifth Amendment right and, consequently, did not compel him to testify. Lefkowitz, supra. Furthermore, although the trial court did not admit the transcribed conversation into evidence, it is abundantly clear that it was thoroughly and carefully considered.

We have reviewed appellant’s contentions on appeal and find no error. Thus, this cause is hereby affirmed.

AFFIRMED.

All the Judges concur; BOWEN, J., in result only.


text:
    Countess Battle FELDER v. STATE.
    6 Div. 888.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Michael S. Sheier, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane Lecroy Brannon, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for obtaining a controlled substance by the use of a forged prescription. Alabama Code 1975, Section 20-2-70. Sentence was three years’ imprisonment.

The only issue on appeal is whether Dilaudid was properly placed on the list of controlled substances.

The generic name for Dilaudid is hydro-morphone hydrocloride. Webster’s Third New International Dictionary 633 (1971) defines Dilaudid as “used for dihydromor-phinone.”. Dihydromorphinone is defined as “a crystalline keytone . . . derived from morphine that is about five times as active biologically as morphine.” Webster’s 632. In his reply brief, the defendant describes Dilaudid as “a brand name of the morphine derivative Hydromorphone Hydrochloride.” Appellant’s Reply Brief, p. 4. Alabama case law recognizes Dilaudid as a derivative of morphine which is a derivative of opium. Tadlock v. State, 45 Ala.App. 246, 861, 228 So.2d 859 (1969). See also State v. Lightle, 210 Kan. 415, 502 P.2d 834, 836 (1972), cert. denied, 410 U.S. 941, 93 S.Ct. 1406, 35 L.Ed.2d 607 (1973):

“Appellant also claims that the drug ‘Dilaudid’ does not come within the statutory designation of prohibited narcotics. On this point there was competent testimony that Dilaudid is Dihydromorphi-none and is a narcotic drug produced from opium. The modern dictionary definition of ‘Dilaudid’ is ‘The hydrochloride salt of dihydromorphinone.’ ‘Dihydro-morphinone’ is ‘a narcotic compound prepared from morphine and used chiefly as an analgesic.’ ‘Morphine’ is ‘the most important narcotic principle of opium.’ Of these we take judicial notice as corroborative of the testimony. Thus, it is evident that Dilaudid is a narcotic drug within the definition of K.S.A. 65-2501(18).”

Included in the schedule II listing of controlled substances are “opium and opiate and any salt, compound, derivative or preparation of opium or opiate.” Section 20-2— 25(l)(a).

One of the purposes of the Alabama Uniform Controlled Substances Act was “to standardize all laws in this state to be in conformity with the new Federal Comprehensive Drug Abuse Prevention and Control Act of 1970.” Alabama Acts 1971, No. 1407, p. 2378. Defense counsel recognized in the circuit court that “at the time of the passage of the Act, Hydromorphone was a federally controlled substance.”

Upon this authority we find that Dilaudid does come within the statutory designation of controlled substances within the meaning of Section 20-2-25(l)(a).

The defendant’s motion to dismiss the indictment because Dilaudid had not been placed on the statutory list of controlled substances was properly denied. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Thomas E. PARKER v. STATE of Alabama.
    7 Div. 881.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Arthur Parker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Thomas Edward Parker was indicted for the murder of Helen McCarter by shooting her with a gun in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant “guilty of manslaughter” and the trial court set sentence at ten years’ imprisonment in the penitentiary.

Because reversible error appears through the exception to the trial court’s oral charge, we pretermit consideration of the evidence in this cause.

I

In the trial court’s oral charge we find the following statement: (R. 305).

“While the Court determines the volun-tariness of a confession, the jury determines its weight or credibility and may disregard any alleged statement which is unworthy of belief or in which they entertain a reasonable doubt as to its truth.”

Defense counsel excepted to this part of the oral charge as follows: (R. 309).

“MR. PARKER: Well, we first except to the statement by the Court that the Court determines the voluntariness of a confession and I except to the use of the word, ‘confession.’
“I realize that it was a statement that was introduced into evidence but it was not, and the reading of it could not be considered a confession.” '

Mr. Justice Lawson in McPhearson v. State, 271 Ala. 533, 540, 125 So.2d 709 (1960) made the following observation:

“No confession from the defendant was introduced in evidence. The defendant at all times professed his innocence. His testimony, as well as the statements made by him which were introduced by the State, show that he claimed the shooting was an accident.
“The admissibility of confessions and in-culpatory admissions are generally determined under the same principles. But there is a broad distinction between admissions of inculpatory facts and confessions of guilt. When a person only admits certain facts from which the jury may or may not infer guilt, it is no confession. We may use the word confession for admission, but to sum up mere incul-patory admissions and designate them a confession implies they amount to a confession of guilt.” (Emphasis added.)

See also Shelton v. State, 144 Ala. 106, 42 So. 30 (1905).

No confession by the appellant was introduced by the State into evidence in this cause. The appellant at all times professed his innocence. His testimony during the trial itself, as well as the statements made by him prior to trial which were introduced by the State, show that the appellant claimed the shooting in question was an accident.

In the case at bar, the trial court did not properly point out that appellant’s version of the event was an inculpatory admission and not a confession.

In Shelton v. State, supra, and Dennis v. State, 112 Ala. 64, 20 So. 925 (1896), reversals were mandated because of similar statements which were made in the trial court’s oral charge, and as in the case at bar, no confession of the appellant was placed in evidence at trial.

Because of the error shown, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Randall Mark HOPPER v. STATE.
    7 Div. 980.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Thomas W. Harmon, Anniston, for appellant.

      Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Randall Mark Hopper was charged in a six-count indictment with receiving stolen property in the first degree in violation of § 13A-8-17, Code of Alabama 1975, and on six counts of receiving stolen property in the second degree in violation of § 13A-8-18, Code of Alabama 1975.

The appellant’s trial was set for February 8, 1982. After a jury was impaneled on that date, the appellant withdrew his plea of not guilty and pled guilty to each of the twelve charges. On March 19, 1982, the trial judge sentenced the appellant to two years in the penitentiary in each of the twelve cases. The trial judge did not order the sentences to run concurrently and, therefore, the appellant must serve them consecutively.

I

The sole issue in this case is whether the trial judge, when accepting appellant’s guilty plea, should have informed appellant that his sentences could run consecutively rather than concurrently. The appellant contends that the failure of the trial judge to inform him of the above fact rendered his guilty plea involuntary.

A plea of guilty must be voluntarily and intelligently made. To satisfy the constitutional requirements of due process, a defendant must be informed of and fully understand the consequences of his guilty plea. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 274 (1969). A defendant cannot surrender his constitutional rights unless he is aware of them and voluntarily waives them. Sheehan v. State, Ala.Cr.App., 411 So.2d 824 (1981).

This court, however, is of the opinion that there is nothing in the federal or state constitutions which suggest that a defendant has a right to receive concurrent sentences for multiple offenses. In Alabama, all sentences are to run consecutively unless the trial judge specifically states that they are to run concurrently. § 14r-3-38, Code of Alabama 1975. The trial judge has the broad discretion to order concurrent sentences but a defendant does not have a right to receive such concurrent sentences. Sheehan, supra.

Defense counsel argues that it should not be assumed that the appellant understood the sentences might run consecutively. We are unwilling to accept this claim of ignorance. “The most basic logic and reflection make it apparent that separate offenses merit separate punishments.” Sheehan, supra.

In the instant case, the trial judge read all twelve of the indictments to the appellant and explained the sentences he could receive in each case and the appellant pled guilty to each charge separately. The mere fact that all of appellant’s crimes were of a similar nature does not change the fact that they were separate offenses, and it should have been obvious to the appellant that he could be tried and receive separate sentences for each of those crimes.

“Expectation of a lighter sentence or a disappointed hope for a lesser sentence is not enough (to allow the defendant to withdraw his plea or hold such involuntary).” Sheehan, supra. The fact that the trial judge failed to inform the appellant of the possibilities of consecutive sentences does not vitiate the voluntariness of his guilty plea. Sheehan, supra. This court is of the opinion that the appellant voluntarily and intelligently pled guilty to each charge after having been fully informed by the trial judge of his constitutional rights.

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

AFFIRMED.

All the Judges concur.


text:
    Billy Frank TRAMMELL v. STATE.
    8 Div. 703.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Clark E. Johnson, III, Arab, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Billy Frank Trammell was originally charged with burglary in the second degree, was arraigned with counsel, found guilty as charged by the jury and sentenced to five years’ imprisonment by the trial court. Thereafter, an appeal from this conviction was perfected to this court where same was affirmed, Trammell v. State, 377 So.2d 12 (1979).

The instant appeal arises from the denial of a Petition for Error Coram Nobis by the Circuit Court of Marshall County after conducting a hearing on the merits of Tram-mell’s allegations. Different counsel had been appointed in circuit court to assist Trammell in presenting this petition to the circuit court.

I

The trial court, pursuant to this court’s opinions in Ellison v. State, 406 So.2d 439 (Ala.Cr.App.1981) and Kennedy v. State, 409 So.2d 1010 (Ala.Cr.App.1982), first appointed counsel to represent Trammell at the hearing and then fully considered the allegations made in the coram nobis petition. The court after the hearing at which the transcript of the original trial proceeding was placed in evidence, denied the petition in question citing this court’s opinion in Corley v. State, 397 So.2d 223 (Ala.Cr.App.1981).

The appellant’s principal allegation was that his trial counsel was “ineffective” and that he had not called a certain witness which the appellant desired.

These allegations are not sustained by the transcript of the proceedings, either at the original trial or from the testimony given at the coram nobis proceedings in circuit court. To the contrary, the record fully sustains the trial judge’s findings that the appellant was fully and competently represented by his original counsel and that witnesses were presented at the original trial who attempted to establish an alibi in appellant’s behalf.

Not only has the appellant failed to establish that the conduct of his counsel reduced the original trial proceeding to a farce, sham or mockery, Robinson v. State, 361 So.2d 1172 (Ala.Cr.App.1978) but also the appellant has fallen far short of establishing that he was denied the “reasonably effective” assistance of counsel standard set forth in Harris v. Oliver, 645 F.2d 327 (5th Cir.1981). See also Mitchum v. State, 414 So.2d 168 (Ala.Cr.App.1982).

We therefore hold that the appellant has substantially failed to meet the burden of proof required in attempting to sustain the allegations made in this proceeding. Cannon v. State, 416 So.2d 1097 (Ala.Cr.App.1982).

There is nothing in this record before us which even slightly indicates that the findings of the trial court are not correct. The judgment of the trial court is therefore due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ben PRINCE v. STATE.
    8 Div. 706.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.

      C.B. Caine, Jr., Moulton, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of Viola Drinkard. He was sentenced as an habitual offender to life imprisonment.

I

In an unresponsive answer, a state investigator testified that the defendant was arrested on a bench warrant for probation violation. This was objectionable and improper because evidence of past criminal activities of the accused other than that for which he is being tried is inadmissible. C. Gamble, McElroy’s Alabama Evidence, Section 69.01(1) (3rd ed. 1977).

However, the motion for mistrial was properly overruled because such a motion should not be granted where the prejudicial qualities of the comment can be eradicated by action of the trial court. Nix v. State, 370 So.2d 1115, 1117 (Ala.Cr.App.), cert. denied, 370 So.2d 1119 (Ala.1979). Although a comment that the accused was on parole for another offense at the time of the commission of the offense for which he is on trial constitutes error, its prejudicial effect can be removed by emphatic instructions by the trial judge excluding the comment and admonishing the jury to remove it from their consideration. Hatch v. State, 398 So.2d 415 (Ala.Cr.App.1981); Coe v. State, 53 Ala.App. 457, 301 So.2d 223 (1974). Here the record shows that the trial judge considered the statement improper but not of “sufficient impropriety to cause a mistrial.” We find no abuse of his discretion in this regard.

II

We find no error in the trial judge’s charge to the jury concerning the defendant’s failure to testify. Even where not requested a trial judge may instruct the jury on the legal effect of the accused’s exercise of his constitutional right not to testify in his own behalf. Tinsley v. State, 395 So.2d 1069 (Ala.Cr.App.), cert. denied, 395 So.2d 1080 (Ala.1981); Smith v. State, 370 So.2d 312 (Ala.Cr.App.), cert. denied, 370 So.2d 319 (Ala.1979); Blakely v. State, 43 Ala.App. 654, 198 So.2d 803 (1967).

The correctness of the court’s oral charge must be measured by the charge as a whole and not by an isolated remark. The charge should not be subjected to hy-percriticism and the language of a charge must be given a reasonable construction. Harris v. State, 394 So.2d 96, 100 (Ala.Cr.App.1981).

The judge’s instructions in this case are not subject to the defects which caused a reversal in Smith, supra. The charge was neither prejudicial to the defendant nor capable of misleading the jury into drawing any adverse inference from the defendant’s failure to testify. We note that defense counsel did not request any additional instructions in this regard but only requested a mistrial. Any alleged deficiencies or prejudicial qualities contained in the oral charge could have been cured by further instructions. Where error is eradicable a mistrial is too drastic a remedy and is properly denied. Chillous v. State, 405 So.2d 58 (Ala.Cr.App.1981); Alabama Code 1975, Section 12-16-233.

III

The defendant argues that the taking of a blood sample while he was incarcerated constituted a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. At trial, the State presented credible evidence that the defendant consented to the blood test. The defendant denied any consent or permission.

In reviewing this issue we must apply the following principles.

“ ‘(W)hen conflicting evidence is presented on the issue of the voluntariness of a consent to search and the trial judge finds that the consent was voluntarily given, great weight must be given his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and volun-tariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Sullivan v. State, 340 So.2d 878, 880-881 (Ala.Cr.App.), cert. denied 340 So.2d 881 (Ala.1976).’ ” Weatherford v. State, 369 So.2d 863, 871 (Ala.Cr.App.), cert. denied, 369 So.2d 873 (Ala.1979).

The mere fact that the defendant did not know that the blood test would disclose damaging evidence or the purpose of the test is not a major consideration in determining whether his consent was voluntary. Leavitt v. Howard, 462 F.2d 992, 998 (1st Cir.1972); United States v. Gorman, 355 F.2d 151, 158-59 (2nd Cir.1965). Applying the principles found in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), we find substantial evidence to support the trial judge’s finding of consent. Hill v. State, 366 So.2d 296 (Ala.Cr.App.1978), affirmed, 366 So.2d 318 (Ala.1929).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.