author: HARRIS, Presiding Judge.

text:
    James D. HOLM v. STATE.
    7 Div. 898.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      Hubert H. Wright and Donald W. Stewart, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was convicted in Etowah Circuit Court of murder and first degree robbery. Appellant was sentenced to life imprisonment on both counts.

The State’s first witness was Gerald White, a resident of Rainbow City in Eto-wah County. While returning home from Birmingham on the night of March 6, 1981, Mr. White saw a body lying in a street near his home. He immediately called the police and the paramedics.

Jeffery Graham, a paramedic for the Rainbow City Fire Department, arrived on the scene around 11:00 p.m. He checked for vital signs and found none. There was a lot of blood on the left side of the victim’s head. He noticed that the victim’s pockets had been pulled inside out. Mr. Graham identified a number of photographs taken of the scene at that time.

Aubrey Newman, a sergeant for the Rainbow City Police Department, took custody of the scene. He also noticed that the victim’s pockets were turned inside out; the left pocket was pulled further out than the right. There was loose change near the body as well as a pocketknife. The victim’s head was surrounded by a puddle of blood.

William 0. Bragg, the Coroner of Etowah County, also saw the body in the street. He determined the cause of death to be a gunshot wound in the head. The bullet had apparently entered behind the right ear and exited from the top lobe of the head. Coroner Bragg was present at the victim’s autopsy and testified that the body was in the same condition as when it was found. In his opinion, death was instantaneous.

Lieutenant Larry Waldrop of the Cull-man Police Department was called to the stand. He and some fellow officers found a black van in Cullman County that had been partially burned. There was a bullet hole in the windshield on the passenger’s side, and various objects found in the van were apparently bloodstained.

Deputy Sheriff Paul Pruett of the Cull-man County Sheriff’s Department ran a registration check on the partially burned van and determined who owned it. He then got in contact with the owner’s family.

Alan Farmer, a resident of New Orleans, came to Etowah County to identify the body. Mr. Farmer identified the body as Charles Moore, his son-in-law. According to Mr. Farmer, the victim, after having had an argument with the victim’s wife, had left New Orleans to visit his family in Ohio.

Laura Hamby, a twenty-year old resident of Rainbow City, saw appellant the morning of March 7,1981. She was picked up by a friend, Michele Cassidy, and appellant was in the back seat with Michele’s mother, Sheri Yarborough. Mrs. Yarborough and appellant were dating each other.

While in the car, Mrs. Hamby heard appellant say that he was hitchhiking from New Orleans and had been picked up by the victim. The victim had pulled a gun on appellant, demanding that he drink a beer. Somehow appellant ended up driving and had the gun. After shooting a hole in the windshield, appellant asked the victim if he thought appellant would shoot him. The victim stated that he did not and appellant shot him.

According to Mrs. Hamby, appellant told her that he had dumped the body and tried to burn the van.

Michele Cassidy was called to the stand, and she essentially corroborated what Mrs. Hamby testified appellant had said. According to Mrs. Cassidy, appellant told them that, after shooting through the windshield, the victim, making a dare, told appellant that he would not shoot the victim. Appellant then shot the victim.

According to Mrs. Cassidy, appellant further stated that he took the money he had from the victim and that was all the money that he had since leaving New Orleans.

Betty Cook was at the Omelet Shoppe in Rainbow City the night of March 6, 1981. While there, she saw appellant come into the restaurant and use a phone. She overheard appellant say, “I got it,” or “I got him,” and also say, “You got to help me get rid of the gun.” He then slammed the phone down and walked outside and got in a black van. She noticed that appellant had blood on his shoes, coat and pants.

Loretta Moore, the victim’s wife, testified that she saw the victim in New Orleans on March 6, 1981, just prior to his leaving for Ohio. Generally the victim followed a route through Gadsden to get to Ohio. Her husband had between $800 and $1,000 with him. He also left with a .38 pistol. Her husband left in a black van that had no hole in the windshield. According to Mrs. Moore, her husband never drank.

A. B. McLaughlin, night clerk for the Redwood Inn in Rainbow City, checked appellant into the motel the night of March 6, 1981. He identified a registration card appellant had signed. According to Mr. McLaughlin, appellant was driving a black van.

Pat Wetzel, of the Alabama Bureau of Investigation, was called to testify. Mr. Wetzel took photographs of the scene where the body was found. He identified these photographs as well as some photographs of the black van.

Mr. Wetzel had tried to find appellant after appellant became a suspect. He learned that appellant had left New Orleans for Texas. He later arrested appellant at a local bar in Etowah County.

Dr. Joseph Embry of the State Department of Forensic Sciences, performed the autopsy on the victim. According to Dr. Embry, the victim had a gunshot wound in the head. The bullet had entered on the back right side of the head and exited on the left side.

Dr. Embry identified a number of slides he had made of the wound. The slides were introduced into evidence and Dr. Embry explained them from the stand. In his opinion, the victim was killed by a gunshot wound in the head. Dr. Embry was also of the opinion that the victim was highly intoxicated when shot.

Lawden Yates, a firearms expert for the Department of Forensic Sciences, testified that the gun was shot at least three or four feet from the victim’s head.

Loretta Moore was recalled by the State. She identified photographs of the van found in Cullman County as the one belonging to her and her husband. Her husband was in possession of the van when he left New Orleans.

After the State rested, appellant testified in his own defense. According to appellant, he was given a ride by the victim in Louisiana. The victim was drinking heavily. After drinking a while with the victim, the victim asked him if he wanted another beer. When appellant replied that he did not, the victim pointed a gun at appellant and began pulling the trigger.

Appellant seized the gun and the victim told appellant it was not loaded. Appellant fired through the windshield. The victim said he had another gun that was loaded and reached under the seat. At that time appellant shot the victim. This occurred a few minutes after they had left Birmingham going toward Gadsden, according to appellant.

Pat Wetzel was recalled by the defense. He answered various hypothetical questions posed by appellant concerning the county a vehicle would be in travelling at a certain speed for a certain amount of time.

Appellant’s first contention is that the cumulative effect of leading questions by the State prevented him from receiving a fair trial.

A careful review of the record convinces us the State’s questions were not so prejudicial as to prevent a fair proceeding. Some of the questions were indeed leading but the trial court generally sustained objections to that effect. In other instances, the prosecutor’s questions were properly within the discretion of the trial court. Since no single instance of alleged improper conduct constituted reversible error, we do not consider the cumulative effect to be any greater. Sprinkle v. State, Ala.Cr.App., 368 So.2d 554, cert. denied, Ala., 368 So.2d 565 (1978).

The fact that the State, after its leading questions were sustained, asked general non-leading questions that elicited the same answers as the leading questions called for did not result in such prejudicial error as to require reversal. Rule 45, Alabama Rules of Appellate Procedure. We see no other way the State could have elicited testimony after objections to the leading questions were sustained.

Appellant complains of the introduction into evidence of certain photographs he claims were introduced merely to inflame the jury and prejudice appellant. We find no merit in this argument.

There were two sets of photographs appellant found objectionable. The first set, consisting of four photographs, depicted the body as it was originally found when dumped from the van. The second set, consisting of three slides, depicted the wound that resulted in the victim’s death. These slides were used to aid Dr. Embry’s testimony as to the autopsy, cause of death, and location of the wound.

Appellant contends that the photographs were merely cumulative and of no probative value. He further contends that the second set was inadmissible because of changes of the body consisting of cleaning the wound area and shaving the head for better viewing. Appellant also argues that Dr. Embry should not have been allowed to explain the slides.

We do not believe that the photographs were merely cumulative and of no probative value. The first set of photographs was of the body as it appeared when found. There was testimony that the victim’s pants pockets had been pulled inside out and loose change was around the body. This tended to show the victim had been searched for money, indicating a possible motive for the crime. This set was introduced not so much to show the wound and cause of death, but to show the scene of the crime and the appearance of the victim in this scene.

The second set, focusing on the wound per se, was introduced for the specific purpose of showing the exact cause of death and to show the path of the bullet. These slides were used as an aid to the doctor who performed the autopsy and determined the cause of death.

Photographs may be properly used to corroborate and illustrate the testimony of a toxicologist as to the number and locations of the wounds. McAdams v. State, Ala.Cr.App., 378 So.2d 1197 (1979). Likewise, it is not error for a physician to testify and explain about photographs of a victim’s wound. Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960). Also, the fact that the wound was cleaned and shaved was not a material change in the condition of the body which rendered the photographs inadmissible. Dr. Embry explained that the wound was only shaved and cleaned to make the wound more visible and there was no change made to the wound itself. Alabama courts have previously held that photographs are admissible where the wounds have been cleaned, Ala.Cr.App., Butler v. State, 373 So.2d 347 (1979); where the wounds have been sutured, Hurst v. State, 277 Ala. 686, 174 So.2d 325 (1965); and where surgery marks were made subsequent to infliction of the wound, Voudrie v. State, Ala.Cr.App., 387 So.2d 248, cert. denied, Ala., 387 So.2d 256 (1980).

Finally, photographic entries which tend to prove or disprove a disputed or material issue, illustrate or elucidate relevant evidence, or to corroborate or disprove other evidence, are properly admissible, even where such exhibits were merely cumulative and demonstrative of undisputed facts. Craft v. State, Ala.Cr.App., 402 So.2d 1135 (1981).

For these reasons, we find that the photographs were properly admitted. Craft, supra.

Appellant asserts that the trial court erred in allowing Sergeant Pat Wetzel to compare the tag numbers on State exhibits that had not yet been introduced into evidence. Sergeant Wetzel was asked to call out the tag number on State’s Exhibit 10, a picture of the victim’s black van. After appellant objected, Sergeant Wetzel recited the number.

Subsequently, Sergeant Wetzel was asked to look at State’s Exhibit 15, a motel registration card appellant had filled out the night of the shooting. He read the tag number which was the same number as that on the tag of the van. Appellant then objected, stating that Exhibit 10 was not in evidence yet. The court instructed the jury that it was not going to allow the registration cards into evidence and the jury was to disregard any testimony relating to the cards.

We cannot review appellant’s contention that the tag number was improperly read from an exhibit not in evidence. Appellant made a specific objection to the reading of the tag number based on grounds that no predicate had been laid showing that the van in the photographs was the victim’s van. Nothing was mentioned of the fact that the photograph was not in evidence. After the State assured the court that Mrs. Moore would show the connection when she testified, the court allowed the testimony.

The admission of evidence before other evidence which would make it relevant is offered so that it would be “connected” or “tied up” is within the discretion of the trial court. It is well settled that the trial court has broad discretion in determining the order of proof in a criminal prosecution. Burks v. State, Ala.Cr.App., 353 So.2d 539 (1977). Thus, appellant’s specific objection was properly overruled, and specific grounds waive all other grounds. The trial court cannot be put in error for admitting evidence though it was subject to another objection. Ward v. State, Ala.Cr.App., 376 So.2d 1112, cert. denied, Ala., 376 So.2d 1117 (1979); Sprinkle v. State, Ala.Cr.App., 368 So.2d 554, cert. denied, Ala., 368 So.2d 565 (1978).

Appellant did base his objection to the reading of the tag number off the registration card on the grounds that the card was not yet in evidence. However, the objection was untimely. The State had asked the question and received an answer before appellant objected to the reading of the tag number. No subsequent motion to exclude the reading of the tag number was made. There was, therefore, no error in the trial court’s action. Wright v. State, Ala.Cr.App., 380 So.2d 398 (1980).

Moreover, the trial court subsequently determined that the cards were not to be admitted into evidence and instructed the jury to disregard testimony concerning them. Such action cured any possible error concerning the comparison of the tag numbers. Ala. Digest, Criminal Law, Key Number 1169.5(1).

In a related matter, appellant objected to the testimony of Mrs. Moore concerning the State’s Exhibits 10, 11 and 12. These exhibits were photographs of the victim’s van. Appellant contends that Mrs. Moore was improperly allowed to give testimony based on these exhibits before they were introduced into evidence.

The following testimony appears in the record:

“[State]: Mrs. Moore, I believe you were put under oath the other day and you are still under oath. I want to ask you one question here. I want you to look at State’s Exhibits 10, 11 and 12, and I will show you them in that order, and ask you if you can identify that? [Emphasis added.]
“A. Yes, sir.
“MR. WRIGHT: Those are not in evidence yet.
“Q. What is that?
“A. That’s our van.
“Q. Okay.
“MR. WRIGHT: I object to what it is, if it please the Court. Now, if it comes in— “ASSISTANT DISTRICT ATTORNEY MOORE: That was the testimony that is—
“THE COURT: Overruled.
“Q. That is whose van?
“MR. WRIGHT: I object to that. There is higher and better evidence.
“THE COURT: Do you recognize that picture?
“A. Yes, sir.
“THE COURT: All right.
“Q. Is that the van that your husband left Louisiana in?
“A. Yes, sir.
“MR. WRIGHT: Note our objection, if it please the Court.
“THE COURT: Overruled.
“Q. Let me show you the photograph— “MR. WRIGHT: For the record purposes, let me state my objection.
“THE COURT: His question was, was that the van that your husband left Louisiana in. Not ownership now. The question was, I believe, as—
“MR. WRIGHT: I still object to it. “THE COURT: Overruled.
“MR. WRIGHT: We except to the Court’s ruling.
“Q. And was that the same van?
“A. Yes.
“Q. Okay. Now, the last time you saw that van, was that hole in the windshield? “A. No.
“ASSISTANT DISTRICT ATTORNEY MOORE: Your Honor, we would offer State’s Exhibits 10, 11 and 12 into evidence at this time.”

Exhibit 12 was introduced into evidence while Exhibits 10 and 11 were withdrawn by the State.

A careful reading of this testimony convinces us that Mrs. Moore was merely identifying the photographic exhibits. Such photographs, before being admitted, must be properly authenticated by identifying the subject matter depicted. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62 (1974), cert. denied, 293 Ala. 548, 307 So.2d 73 (1975).

Appellant further contends that, because the photographs were identified but only Exhibit 12 was introduced into evidence, Mrs. Moore’s subsequent testimony identifying the van as her husband’s was based on photographs not in evidence. Exhibit 12 is a photograph of the front side of the van, while Exhibit 11 is a photograph of the side, and Exhibit 12 is a photograph of the back.

The following transaction is found in the record:

“Q. Mrs. Moore, I showed you three pictures of this van. And I want you to take those Exhibits 10,11 and 12 and look at them and tell me how you can identify that that is the van that your husband left Louisiana in.
“MR. WRIGHT: I object to it, if it please the Court. It calls on mental operation. Just completely turns the witness loose to say whatever comes in her mind. Plus, it’s my understanding that the State has withdrawn 10 and 11 from consideration here.
“ASSISTANT DISTRICT ATTORNEY MOORE: Your Honor, they are not offered into evidence but as a point of evidence they were identified as taken— three pictures taken of the same van and she is telling how she knows it’s her van. “MR. WRIGHT: I object to it.
“THE COURT: All right.
“MR. WRIGHT: Now, wait. He’s leading her into an answer, I guess, that it’s her van. That’s the only way I understand the question. I don’t see anything leading about that. Overruled. You have your exception. Ma’am, you can testify.
“A. It’s our van. It’s got the mag wheels and all.
“THE COURT: I think the question was, how can you identify, looking at that that as being that particular van?
“A. I know it’s our van. I drove the van. We worked on the van.
“Q. Okay. You recognize the wheels, you stated?
“A. Yeah.
“MR. WRIGHT: I object to that, if it please the Court.
“THE COURT: She had just said — I believe her statement was that she recognized the mag wheels.
“A. We had the wheels put on it.
“THE COURT: All right. Anything else?
“A. Well, the louvers, we put the louvers on the back window. This one shows the louvers.
“MR. WRIGHT: Note our objection, if it please the Court.
“A. —they were plastic louvers.”

The record does show that Mrs. Moore partially based her identification of the van as that of her husband’s on Exhibit 10, a photograph of the back of the van which was not introduced into evidence. However, it is also clear that she based her identification of the van on Exhibit 12, which shows the “mag” wheels.

Although we are not convinced that such testimony was improper [See Reese v. State, 49 Ala.App. 167, 269 So.2d 622 (1972)], any possible error in allowing this testimony was not so prejudicial as to warrant reversal.

Our Supreme Court has held that testimony apparently illegal may be rendered prejudicially innocuous by subsequent or prior legal testimony to the same effect or from which the same facts can be inferred. Yelton v. State, 294 Ala. 340, 317 So.2d 331 (1974).

In the instant case, the issue was whether the partially burned van found in Cullman County was in the victim’s possession when he was shot, and there is ample legal evidence tending to prove that.

While viewing the three photographs for identification and authentication purposes, Mrs. Moore testified that the van was “our” van, obviously a reference to her and her husband. Mrs. Moore further stated that the van in the photographs was the van her husband left in. After the court asked her if the van in the photograph was in her husband’s possession when he left, she stated that it was. Finally, and most importantly, Mrs. Moore identified the van as her husband’s because of the “mag” wheels they had put on. Exhibit 12, the photograph admitted into evidence, clearly shows the wheels of the van.

Furthermore, the Yelton court also held that a defendant is not prejudiced by testimony of a witness which related to uncon-tradicted matters. Appellant never offered any evidence contradictory of the evidence that the van was not the victim’s. If anything, appellant’s only evidence on the matter tended to support the proposition. Appellant described the automobile appellant was driving as a black van. He also admitted shooting a hole through the windshield. The van depicted in Exhibit 12, the photograph introduced into evidence, and identified by Mrs. Moore as depicting her husband’s van, was black and had a hole in the windshield.

Appellant argues that there was insufficient evidence of venue in Etowah County.

The body was found in Etowah County on the side of a road. There was a good deal of fresh blood on the victim, and the blood had run off the body onto the surrounding ground.

William Bragg, the Etowah County Coroner, testified that death from the gunshot would have been almost instantaneous. Dr. Embry corroborated that testimony.

In Allen v. State, Ala.Cr.App., 374 So.2d 447, which was factually very similar to the present case, this court stated:

“Under Alabama law venue is in the county where the offense was committed, and it may be established by circumstantial evidence. Section 15-5-2, Code of Ala. 1975; Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969).
“The body was found in Winston County approximately fifteen to twenty feet off a one lane gravel roadway. There were splatter marks of blood between the body and the roadway.
“John H. Kilburn, a State Toxicologist, testified that the death was caused by a shotgun wound to the victim’s back. He stated that the victim would have died in less than five minutes and would have lost a large amount of blood.
“Jerry Thomas, an investigator for the Alabama Department of Public Safety, testified that he was present at the crime scene when the body was moved. He stated that when the body was turned over a large amount of blood flowed from the wound in the victim’s back. He estimated the amount to be a quart.
“In the case of State v. Fabian, Miss., 263 So.2d 773, 775 (1972), it was stated: ‘[T]he finding of a dead body in a particular county raises a presumption, or supports an inference, that the killing took place there.’ The opinion in Fabian, supra, goes on to quote from 22 C.J.S. Criminal Law § 185(17):
“ ‘. .. Aside from any statutory provision, the finding of a body in a county would warrant a finding that the murder was committed in that county. One should not be permitted to escape punishment for murder because he is clever enough to conceal the place where the victim was killed or died. .. . ’
“Proof of venue is sufficient in a criminal case if, from all the facts and circumstances adduced, venue can be reasonably inferred by the jury. Tanner v. State, 37 Ala.App. 256, 66 So.2d 827 (1952), reversed on other grounds, 259 Ala. 306, 66 So.2d 836.
“Under the facts adduced in the instant case, the jury may have reasonably inferred that the instant killing took place in the county where the body was found. Clearly a jury question was presented. Willeutt, supra.”

The fact that appellant’s testimony conflicted with this evidence was a fact for the jury’s determination. Stokes v. State, Ala.Cr.App., 373 So.2d 1211, cert. denied, 373 So.2d 1218 (1979).

Appellant contends that there was a fatal variation between the pleading under the robbery count of the indictment in that proof of ownership of the van was never offered.

The relevant portion of the indictment reads:

“Count Two
“[James D. Holm] . .. did, in the course of committing a theft of one (1) 1978 model, Dodge van, the property of Charles E. Moore, use force against the person of Charles E. Moore ...”

Appellant contends that, because of the particular language used in the indictment, title or ownership must be proven. There is no merit to this assertion.

In Burke v. State, 44 Ala.App. 379, 209 So.2d 859, concerning the property also read, “[the defendant took] ... the property of [the victim].” In addressing this issue, the court stated:

“In Riggens v. State, 44 Ala.App. 275, 207 So.2d 141, this court stated in part as follows:
“ ‘Though animus furandi is its motive, robbery is basically a crime against the person. Hence, the indictment need only name the person having the immediate special property of the thing which the robber seeks to take. We believe that this was the common law. See Rex v. Harding (1929), 21 Cr.App.R. 166, wherein the 1800 case of Rex v. Deakin and Smith, 2 East P.C. 653, is quoted with approval.
“ ‘The description of the owner of the property taken is needful only to exclude the possibility of the taker’s being accused of taking that to which he had some right. * * * ’
“Thus, whether or not there is a variance between the indictment and proof as to ownership of the property involved in the robbery, is not material so long as the offense is described with sufficient certainty to identify the act of robbery and to establish that the property was in the immediate actual possession of the person robbed. Riggens v. State, supra.”

There was adequate evidence of possession. Mrs. Moore, after identifying photographs of the abandoned van as belonging to her and her husband, testified that her husband had possession of the van when he left New Orleans on March 6.

Appellant’s final contention is that the trial court’s instruction regarding verdict forms was incorrect. The following instructions were given:

“The form of your verdict will be in one of the following: ‘We, the Jury, find the Defendant guilty of Murder as charged in Count One of the Indictment. We, the Jury, find the Defendant guilty of Manslaughter. We, the Jury, find the Defendant guilty of Robbery in the First Degree as charged in Count Two of the Indictment. We, the Jury, find the Defendant not guilty of Robbery as charged in Count Two of the Indictment. We, the Jury, find the Defendant not guilty under Count One of the indictment.’
“As soon as you have reached your verdicts in this case, with respect to these Counts, if you will notify my Bailiff, he will contact me.”

At trial, appellant requested that a single form of “not guilty” also be included besides the separate “not guilty” forms under each count. The trial court refused, stating that it did not wish to confuse the jury. We do not see how appellant was prejudiced in any way by the giving of separate “not guilty” forms for both counts of the indictment but not a single “not guilty” form. We also agree that one single form would merely be redundant and possibly confusing, since appellant was indicted and tried under the separate and independent crimes.

Appellant also argues on appeal that reversible error was committed when the trial court gave the verdict instruction, “We, the Jury, find the defendant not guilty under Count One ...” instead of “We find the defendant not guilty of murder under Count One,” while the other verdict forms specifically mentioned the crime. He argues this placed more emphasis on a guilty verdict than not guilty. We do not believe such absence is reversible error. Rule 45, Alabama Rules of Appellate Procedure.

Moreover, we cannot review these grounds on appeal. Appellant failed to base his objection on these grounds at trial, thus no error on these grounds was preserved for review. Ward, supra; Sprinkle, supra.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Leroy SMITH v. STATE.
    7 Div. 975.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Jack W. Torbert, Jr., Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Appellant’s conviction for robbery in the second degree was affirmed by this court in Smith v. State, 392 So.2d 1273 (Ala.Cr.App.1980). He then filed a petition for writ of error coram nobis alleging the denial of effective assistance of counsel during his robbery trial. The petition was summarily denied without a hearing.

As this court held in Ellison v. State, 406 So.2d 439 (Ala.Cr.App.1981), when the petition is meritorious on its face (as here), the petitioner is entitled to a hearing on the merits.

The order of the circuit court is reversed, and the cause remanded with directions that counsel be appointed to represent appellant, and that an evidentiary hearing be held to determine whether appellant was denied the effective assistance of counsel at his trial for robbery in the second degree.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur.


author: BOWEN, Judge.

text:
    Charles GARRISON v. STATE.
    8 Div. 576.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    James Francis, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Alabama Code 1975, Section 13A-8-41 (Amended 1977). He was sentenced as an habitual offender to 99 years’ imprisonment. Two issues are presented on appeal.

I

The conflict established by the alibi testimony presented by the defendant and the identification testimony presented by the robbery victim was peculiarly within the province of the jury to resolve. Welch v. State, 278 Ala. 177, 179, 176 So.2d 872 (1965); Aaron v. State, 271 Ala. 70, 80, 122 So.2d 360 (1960). “A jury question is always presented where there is a conflict between the State’s case and the appellant’s alibi.” Crow v. State, 365 So.2d 1254, 1256 (Ala.Cr.App.1978), cert. denied, Ex parte Crow, 365 So.2d 1256 (Ala.1979).

“(T)he soundness of accused’s alibi, the credibility of witnesses testifying on the question of his alibi, the weight to be given the evidence adduced in support of such defense, and, even though there is no direct testimony to contradict accused’s alibi evidence, the truthfulness of the alibi, are matters for the consideration of the jury.”
23A C.J.S. Criminal Law, Section 1128 (1961).

II

The defendant contends that his motion for new trial should have been granted on the basis of the newly discovered evidence that his brother had committed the robbery. This evidence consisted of the affidavits of four convicted felons incarcerated in the Morgan County Jail that the defendant’s brother, Jimmy Garrison, had stated that he committed the robbery. Although not supported by the record, the defendant alleges that his brother is “presently on escape status from the Lawrence County Jail.”

The trial judge properly denied the defendant’s motion for new trial.

“New evidence tending to prove another person committed the offense for which the accused was convicted may be grounds for a new trial. Such evidence must, however, be admissible on retrial of the cause. Houston v. State, 208 Ala. 660, 95 So. 145. Evidence of the guilt of another cannot be proven by a confession or statement by another that he committed the offense with which the accused was charged. Such evidence is mere hearsay. Goldsmith v. State, 232 Ala. 436, 168 So. 547; Prince v. State, Ala.Cr.App., 356 So.2d 750.”
McBryar v. State, 368 So.2d 568, 574 (Ala.Cr.App.), cert. denied, 368 So.2d 575 (Ala.1979).

The testimony of a witness that a person, other than the defendant, confessed to the witness that he himself committed the crime charged against the defendant, is hearsay and inadmissible. Welsh v. State, 96 Ala. 92, 96, 11 So. 450 (1891). “Such declarations are hearsay evidence, the weakest, most uncertain, and most dangerous.” Snow v. State, 58 Ala. 372, 375 (1877); Smith v. State, 9 Ala. 990, 995-96 (1846); Prince v. State, 356 So.2d 750, 751 (Ala.Cr.App.1978). Because the testimony of the four inmates that the defendant’s brother had told them that he had actually committed the robbery for which the defendant was convicted constituted inadmissible hearsay, the trial judge properly denied the motion for new trial.

We have answered all the issues raised by the defendant on appeal. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: BARRON, Judge.

text:
    Terry Evans WOOD, alias v. STATE.
    8 Div. 619.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      Macon L. Weaver, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BARRON, Judge.

The appellant was indicted for the capital offense of robbery when the victim is intentionally killed in violation of Ala.Code § 13-ll-2(a)(2) (1975). In accordance with the principles stated in Beck v. State, 396 So.2d 645 (Ala.1980), the jury found him guilty of first degree murder and fixed his punishment at life imprisonment in the state penitentiary.

The state’s evidence revealed that the deceased, James Crawford Delones, a deputy sheriff with the D.ickson County Sheriff’s Department in Tennessee, left Dickson on July 10,1979, headed for Decatur, Alabama, in his father’s 1977 Plymouth Volare automobile. His father had also given him approximately forty or fifty dollars to take with him. The purpose of the trip to Decatur was to collect on a bad check. The deceased was off duty at the time and was not in uniform, but he did have two weapons with him, a nickel-plated .38 Colt Special and a nickel-plated .38 Derringer Special.

Steve Sanderson, while spraying a cotton field in the Harvest community in Madison County on July 14, discovered the deceased’s body tied to a tree with a shoestring and a jumper cable. The tree was approximately one hundred yards off a dirt road leading into the cotton field.

The deceased’s wallet was found in his pants pocket, complete with his I.D. and his deputy sheriff’s badge, but the wallet contained no money. No weapons were discovered on the deceased or in the general vicinity. An autopsy revealed that the deceased’s cause of death was a gunshot wound to the back of his head.

William H. Lee testified that at approximately 8:00 p. m. on July 10, while he was working at the Main Street Liquor Store in Nashville, Tennessee, he saw an automobile drive through the liquor store parking lot at a high rate of speed. The automobile “almost hit two people on the way driving in.” The automobile matched the description of the Plymouth Volare the deceased had been driving, including a partial Tennessee license plate number Lee remembered. The driver of the car was a white male.

A few minutes later the same automobile came back through the parking lot, parked in front of the store and the white male came inside the store for a few minutes. Lee described the white male as having a small build, around five feet six inches tall, with brownish long hair. “He wore a thin mustache and was wearing a T-shirt, a tank top, some jeans and had some type of tattoo on his right shoulder.” Lee further testified that the driver of the automobile who came inside the liquor store looked like the appellant. “I am positive enough that I think that’s the same person.”

Patrolman Charles Edwin Smith, Jr. of the Nashville Police Department testified that about 8:10 p. m. on July 10, he and his partner, James Powell Griffin, observed the Plymouth Volare which the deceased had been driving to Decatur, travel through a traffic light at a high rate of speed. Patrolman Smith stopped the vehicle near the police department.

“I was watching the driver of the vehicle and he was looking in his rearview mirror back at me, as I was watching him and my partner got out and came between the two cars to issue a citation for the offense and the subject driving the car saw him and took off and left us more or less standing flat-footed.”

Smith described the driver of the automobile as “a slim male, white, in his twenties, shoulder length brown hair, and a thin mustache.”

A high speed chase ensued through downtown Nashville until the driver of the Vo-lare lost control of the automobile and hit a fence. Smith testified that when he and his partner reached the vehicle the driver ran into the bushes and woods next to the railroad tracks. “He never did slow down.” Smith and his partner “never could turn him up anywhere.” Smith later discovered the deceased’s .38 Derringer under the seat of the Volare along with a denim jacket and other items.

Roger Morrison of the Department of Forensic Sciences made a laboratory comparison of certain blood stains found on the denim jacket with a known sample of appellant’s blood. Morrison determined that the appellant’s blood type was consistent with blood found on the jacket.

Ms. Sandy Proffitt of Tompkinsville, Kentucky, testified that she had a conversation with appellant in Kentucky in July of 1979. Karen Jones was also present during the conversation. Appellant told Ms. Prof-fitt and Ms. Jones that he had killed a deputy sheriff from Alabama. According to Ms. Proffitt:

“He said that he killed him in Tennessee and he brought him all the way to Alabama when he was dead and then he tied him to a tree and then he said he shot him behind the ear and in the leg again.
“Well, he had a map and he was showing the place in Alabama and had a red dot and some lines where it happened at.”

Carl John Buchanan testified that in May of 1980 he was a fellow inmate with appellant in the Madison County Jail. During this time appellant had a conversation with Buchanan in which appellant related killing the deceased. Buchanan testified that during the course of the conversation,

“I was talking to him and everything and he told me he tied the man to the tree and that he did kill him because he don’t like snitches and I don’t like polices [sic] and the man is a narc and if I had my chances I would do it over and he said I tied him with a pair of jumper cables.”

Richard Roscoe Ledford, III of Gallatin, Tennessee, testified that in July of 1979 he was employed with the Sumner County Rabies Control Center as a truckdriver for the dog ppund, and that he also had a night job as an assistant manager at the Sonic Drive-in Restaurant in Gallatin. Ledford stated that he first met the appellant on July 11, 1979, around 8:00 p. m. at the Sonic Restaurant. Mary Shaddix, a waitress at the restaurant, was appellant’s girlfriend. Led-ford recalled that appellant had scratches “all over” his arms and “some on his chest.” Appellant also had a tatoo with the name “Debbie” on his right arm.

Appellant remained at the restaurant until closing time, around eleven o’clock. At that time Ledford drove appellant and Ms. Shaddix to Ms. Shaddix’s trailer at the Cozy Living Trailer Park in Gallatin. Inside the trailer, while everyone was “getting acquainted” over a six pack of beer, appellant exhibited the deceased’s nickel-plated .38 caliber pistol to Ledford. Appellant had the pistol tied to his ankle with a shoelace. Ledford stated that he talked with appellant about the gun. “I asked him if he would like to sell it ... and he told me that he would just give it to me .. . [because] it was hot .... ” Appellant first explained to Ledford that “a friend of his” had held up a store with the pistol. Appellant later told another story that he and' “his friend” robbed a store and in the process “his friend shot a guy in the back.” Ledford offered to pay for the gun at a later time and took the gun home with him that night.

Before Ledford left the trailer that night, appellant asked Ms. Shaddix to wipe the scratches on his arms with alcohol. Appellant told Ledford the following regarding the scratches:

“[H]e told me that he had stolen a car and had a car wreck [in Nashville] when the police chased him through three red lights and that he hit a fence row and the fence got him tied up where the car couldn’t move and so he got out and started running through the bushes and that scratched him all up.”

Ledford saw appellant the next afternoon at the Sonic Restaurant. Appellant expressed his desire to obtain a job and Led-ford offered to take appellant with him the next day on his truck route for the Rabies Control Center to “see if he would like a job like that.”

Ledford picked appellant up the next morning, July 13, at the Cozy Living Trailer Park and took him to breakfast before beginning the truck route. The following exchange then occurred during breakfast:

“Q Okay, did you have a conversation with him there at Shoney’s?
“A Yes, I asked him about the gun again and he told me the story about shooting the detective.
“Q All right, and tell me exactly what he told you.
“A He said that he was hitchhiking and he thought that he was in Birmingham or Athens in Alabama and he said that he was hitchhiking and a guy picked him up and they were riding along and the guy that was driving asked him to look in the back seat in his brief case for some BC powder and so Terry said that he turned around and he opened the suitcase and he seen that gun in the suitcase and he asked him why he had the gun and he told him that he was a deputy, that he was a detective, said that he was a detective and he told me when he seen the gun he had to have it, he wanted that gun so he didn’t get the BC powders and he turned around and he told him said you don’t have any but I think that I have some in my bag and he reached down in his bag and pulled his gun out and pointed it at him and asked him said you know what this is don’t you and he said that the guy started getting scared and told him that he could have anything that he wanted in the car just don’t kill him and he told him, just said just be quiet you son-of-a-bitch and do what I tell you and so he told him where to turn off on a dirt road and they went down the dirt road and went over to a field and he made him get out of the car and he told me that he got jumper cables out of the back seat of the car and took his shoelaces and tied him to a tree and he said that the son-of-a-bitch was crying and begging for his life and he didn’t have any mercy for him.
“Q Go ahead and tell us what he told you happened.
“A He said that he tied him to the tree and before he left he put the gun to the back of his head and he said he blew his fucking brains out.
“Q Were those Terry’s exact words?
“A That was his words.
“Q And ya’ll were sitting at a table in Shoney’s Restaurant?
“A Yes, sir.
“Q What, if anything, did you say to him after he told you this story?
“A I said you can’t be for real, and he said yes, I blew this fucking pig away.”

Ledford further testified that after work he and appellant took the pistol appellant had given him (the pistol appellant said he had taken from the deceased) to Nashville and sold it for fifty dollars.

Ledford stated that appellant remained in the Gallatin, Tennessee, area for approximately one week after he first met appellant on July 11. Ledford first learned about the death of the deceased, other than what appellant had told him, on television on July 20. On July 24 Ledford called the Gallatin police station and made a statement. “I told what I knew when I gave that statement.”

Following Ledford’s testimony the state rested its case. Appellant’s motion to exclude the evidence was denied. The defense then rested its case without presenting any evidence.

I

From the foregoing facts it is clear that the state proved beyond any reasonable doubt that appellant was guilty of first degree murder. Every element necessary to sustain the jury’s verdict was satisfied. Harjo v. State, 395 So.2d 1104 (Ala.Cr.App.), cert. denied, 395 So.2d 1105 (Ala.1981). In a prosecution for first degree murder, circumstantial evidence alone may be sufficient to prove the accused’s commission of the offense. Dolvin v. State, 391 So.2d 133 (Ala.1980); Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981). Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).

Viewing the evidence in the light most favorable to the prosecution, as we are required to do, Cumbo, supra, we find the jury’s verdict well supported. The credibility of witnesses is solely for the jury’s consideration and cannot be examined by this court. Hayes, supra.

II

Appellant contends that the trial court committed error in admitting into evidence the signed waiver of rights form which he executed on July 24, 1979, at the correctional facility in Glasgow, Kentucky, where he was being detained. We disagree.

It was shown that appellant freely and voluntarily signed the waiver of rights form after being properly advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant was questioned concerning the details of the deceased’s murder after executing the waiver and responded that he understood the questions being asked. However, to each question that was asked appellant responded by saying either “I don’t know” or “I can’t remember.” The waiver of rights form was subsequently admitted without objection.

Objections to evidence cannot be raised for the first time on appeal. Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981). Review on appeal is limited to matters on which rulings are invoked in the trial court. McGee v. State, 383 So.2d 881 (Ala.Cr.App.), cert. denied, 383 So.2d 884 (Ala.1980). Objections to the introduction of evidence must be made at the time the evidence is offered. Shelton v. State, 384 So.2d 869 (Ala.Cr.App.), cert. denied, 384 So.2d 871 (Ala.1980). Thus, we have nothing to review on this issue.

Furthermore, Investigator Roger L. Grubb gave comprehensive testimony regarding the entire contents of the waiver of rights form prior to the admission of the waiver. This testimony was received in the presence of the jury without objection. Thus, even if a timely objection had been interposed, the admission of the waiver would have been cumulative at most. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735 (1975), cert. denied, 295 Ala. 414, 327 So.2d 740 (1976).

Ill

In response to questioning by defense counsel on cross-examination, William H. Lee testified that he “talked with someone from Kentucky” regarding the events he had witnessed in the Main Street Liquor Store in Nashville on the evening of July 10, 1979. On redirect examination the following exchange then occurred:

“Q Bill, this guy that you talked to from Kentucky did he identify himself to you?
“A Yes, he did. He was a public defender but I didn’t remember his name right off, but he was a public defender.
“Q And did he tell you who he was representing at that time?
“A He may have mentioned the name but I don’t remember. But he told me what it was connected with.
“Q What did he tell you it was connected with?
“A It was about the killing of a deputy and a boy that had already been caught for rape and he was trying to keep in Kentucky and they wanted him in Alabama and this and that. And I explained to him — well, he thought maybe I had some type of charge against him or something, I guess — I don’t know.
“MR. BLANKENSHIP: Judge, at this time, we would make a motion outside the presence of the jury.
“THE COURT: All right, ladies and gentlemen, if you will, please, go to the jury room.
MR. BLANKENSHIP: Judge, we had previously filed a motion in limine in this case, which the Court granted directing the District Attorney’s office to have his witnesses to not refer to any crimes in the State of Kentucky and the statement made by Mr. Lee at this point in time is exactly a statement about a rape in Kentucky. It was hearsay testimony. It was not admissible and it involved the commission of another crime which we were concerned with from day one in this trial. It brings another crime before this jury and the District Attorney was fully aware that is what this was all about, prevention of those crimes which he has been charged with_
“THE COURT: Yes, sir, I understand the basis of your motion. Just make it, please.
“MR. BLANKENSHIP: We move for a mistrial.
“THE COURT: Well, we will find out first of all if the jury can disregard the
information. If they can disregard the information have you cautioned your witnesses about this.
“MR. MORGAN: Yes, sir, we have.”

When the jury returned to the courtroom the trial court gave them the following admonition:

“THE COURT: Ladies and gentlemen, in answer to a question that was asked by Mr. Morgan, this witness said something about a public defender attempting to keep someone in Kentucky or something of that nature. There was another word mentioned and the word was ‘rape.’ It is imperative if we continue in this trial that this jury disregard both of those statements. I am instructing the jury at this point to disregard the statements, but I must inquire of you whether or not you can and will accept and abide by that instruction if I give it to you.”

The trial court then polled each juror individually in a very thorough manner to determine whether they would abide by the instructions. Each juror replied that he would disregard Lee’s statement and would not let it affect his judgment in the case. The trial court then denied appellant’s motion for mistrial.

The grant or denial of a motion for mistrial is a matter within the sound discretion of the trial court, which will only be disturbed upon a showing of manifest abuse. Durden v. State, 394 So.2d 967 (Ala.Cr.App.1980), cert. denied, 394 So.2d 977 (Ala.1981). A motion for a mistrial implies a miscarriage of justice and should only be granted where it is clearly manifest that justice cannot be afforded. It specifies such fundamental error in a trial as to vitiate the result. The granting of a mistrial is an extreme measure and should not be granted where the prejudicial qualities of an improper remark can be eradicated by the action of the trial court. Dickey v. State, 390 So.2d 1177 (Ala.Cr.App.), cert. denied, 390 So.2d 1178 (Ala.1980).

Where the trial court instructs the jury to disregard an improper statement, carefully evaluates the effect of such a statement upon the jury by polling them individually, and determines the jury’s impartiality in spite of the statement, any prejudicial error which might otherwise have occurred is cured. Perry v. State, 371 So.2d 969 (Ala.Cr.App.), cert. denied, 371 So.2d 971 (Ala.1979); Williams v. State, 369 So.2d 910 (Ala.Cr.App.1979). The denial of mistrial in this case was proper.

IV

No error resulted in the admission of Ms. Sandy Proffitt’s testimony. Not one objection was raised to the state’s direct examination of this witness, and appellant elected not to cross-examine her even though he had full opportunity to do so. For this reason alone we find no error.

For the reasons shown, the judgment of the Circuit Court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Louis Thomas COOK, alias v. STATE of Alabama.
    8 Div. 671.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      D. L. Martin, Moulton, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Louis Thomas Cook was indicted for first-degree assault in violation of § 13A-6-20, Code of Alabama 1975. He was found guilty of third-degree assault, and was ultimately sentenced to four months’ imprisonment with three years’ probation and fined $500.00 plus court costs and restitution.

On November 4, 1981, the appellant cut Billy Mac Sneed on his hands and forearms with a pocketknife.

The state’s evidence revealed that Sneed had exited his truck with a metal rod and had approached the appellant only after the appellant had insulted him and challenged him to a fight. Sneed never reached the appellant, but instead retreated due to appellant’s continuing threats. As Sneed was leaving, the appellant shattered, with a “lug wrench”, the driver’s side window on Sneed’s truck, reached through the broken window and inflicted the knife wounds on Sneed’s hands and forearms.

The appellant’s evidence to the contrary, was that Sneed initiated the argument and the fight, and that he (Sneed) never attempted to retreat. The appellant also contended that both he and Sneed were intoxicated when this incident occurred.

I

The appellant contends ' that the trial court erred in permitting a state’s witness to testify that he knew the appellant by his nickname, “Snake” Cook. (R. 34).

In a pre-trial motion the appellant had requested that such testimony not be allowed because the reference to “Snake” Cook would unduly prejudice the appellant. The trial court denied said motion because the alias “Snake” Cook was listed in the indictment (R. 301) and on authority of Harris v. State, 48 Ala.App. 723, 267 So.2d 512 (1972), it appeared that the admission of such an alias would not be error. (R. 8B).

These actions by the trial court were proper. The mere introduction to the jury of a name by which the appellant is in fact otherwise known does not constitute prejudicial error. Smith v. State, 401 So.2d 251 (Ala.Cr.App.), cert. denied, 401 So.2d 257 (Ala.1981); Harris v. State, supra. The trial court was, therefore, prudent in withholding its final judgment on the admissibility of appellant’s alias until such a decision was requested at trial. Patton v. State, 379 So.2d 1275 (Ala.Cr.App.1979), cert. denied, 379 So.2d 1277 (Ala.1980); Hatch v. State, 398 So.2d 415 (Ala.Cr.App.1981).

When the appellant’s nickname, “Snake” Cook, was introduced to the jury through the testimony of investigator Ed Weatherford (R. 34), the objection which was eventually made (R. 35) came too late. Williams v. State, 383 So.2d 547 (Ala.Cr.App.1979), aff'd, 383 So.2d 564 (Ala.1980).

Therefore, the trial court did not err with reference this alleged illegal testimony.

II

The appellant apparently acquired the nickname “Snake” because he had a snake tattooed on his forehead. This snake tattoo was visible to the jury during the course of the trial.

The prosecutor eventually fell prey to temptation and in closing argument to the jury exclaimed: “What kind of man would have a snake tattooed on his forehead?” (R. 291). Appellant objected to this comment by the prosecutor and the trial court responded by admonishing the jury not to consider it. (R. 264). Appellant then moved for a mistrial, after which the trial court merely responded that the prosecutor’s comment was not appropriate.

This issue was restated in the jury’s presence at the close of the trial court’s oral charge and the trial judge again instructed the jury not to consider the improper comment because it was not evidence in the case. (R. 291).

Appellant now argues on appeal that the prosecutor’s comment constituted ineradicable prejudicial error for which his conviction must be reversed.

To begin with, appellant, arguably, did not properly preserve this “ineradicable prejudice” issue for our review, because his only objection at trial was grounded generally on the “5th Amendment’s guarantees.” (R. 264). Even if the alleged error had been properly preserved, however, it is our conclusion that under these circumstances the harm, if any, was not ineradicable and was not cause for reversal. [See generally, Harris v. State, 398 So.2d 381 (Ala.Cr.App.), cert. denied, 398 So.2d 385 (Ala.1981), and cases cited therein.] In this instance the jury had observed the appellant’s tattooed forehead during the entire trial. For aught that appears, the prosecutor’s comment, which did nothing more than call the jury’s attention to the tattoo, did not further prejudice this appellant, especially in light of the trial court’s prompt action in sustaining appellant’s objection by admonishing the jury to disregard said comment. (R. 264, 291). Retowsky v. State, 333 So.2d 193 (Ala.Cr.App.1976); Earley v. State, 358 So.2d 494 (Ala.Cr.App.), cert. denied, 358 So.2d 501 (Ala.1978); Richardson v. State, 374 So.2d 433 (Ala.Cr.App.1979); Kuczenska v. State, 378 So.2d 1182 (Ala.Cr.App.1979), cert. denied, 378 So.2d 1186 (Ala.1980) and cases cited therein; Chambers v. State, 382 So.2d 632 (Ala.Cr.App.), cert. denied, 382 So.2d 636 (Ala.1980); Harris v. State, 398 So.2d 381, supra; Young v. State, 399 So.2d 899 (Ala.Cr.App.1981).

Our conclusion, that the jury was not influenced by the prosecutor’s improper comment, gains additional support from the fact that the jury returned a verdict for a lesser offense (third-degree assault) than that charged in the indictment (first-degree assault) and as argued for by the prosecutor in this cause. See Harris v. State, 398 So.2d 381, supra, and cases cited therein.

Ill

Finally appellant argues that even if the errors cited above are not singularly cause for reversal, their cumulative effect when combined with the harm caused by numerous leading questions by the prosecution constitutes prejudicial error. This assertion is without merit.

As explained above, the comments with reference appellant’s alias and his tattoo did not constitute prejudicial error. Furthermore, the trial court properly sustained or overruled appellant’s timely objections to the leading questions appellant now cites as additional prejudice. Therefore, there was no “cumulative” prejudicial error in this case. Kendricks v. State, 378 So.2d 1203 (Ala.Cr.App.1979.)

This cause is therefore due to be and is, hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    FLORIDA BOARD OF BAR EXAMINERS. Re AMENDMENT TO RULES RELATING TO ADMISSION TO FLORIDA BAR.
    No. 62158.
    Supreme Court of Florida.
    June 10, 1982.
   PER CURIAM.

The Rules of the Supreme Court of Florida Relating to Admissions to the Bar are hereby amended prospectively to reduce the pass/fail line of Parts A and B of the Florida Bar Examination from an average scaled score of 133 to an average scaled score of 131. This amendment will become effective July 1,1982, and will apply only to those applicants who take Parts A and B, or either, of the Bar Examination after the effective date of this amendment. Specifically, article VI, sections 6 and 7 of these rules are amended to read as follows:

Section 6. An applicant may elect to submit to the General Bar Examination by either of the following methods:
(a) Method 1 (compensatory model) may be utilized only by applicants who submit to Parts A and B during the same administration of the General Bar Examination. To pass on Method 1 an applicant must have an average scaled score of 133 or better prior to July 1. 1982. and an average scaled score of 131 or better after July 1. 1982.
(b) Method 2 (multiple cut off model) may be utilized only by applicants who:
(1) submitted to the Multistate Bar Examination (MBE) in another jurisdiction, received a scaled score of not less than 133 prior to July 1. 1982. and a scaled score of not less than 131 after July 1.1982, on the Multistate Bar Examination (MBE) and who elected to submit to only Part A of the General Bar Examination in Florida; or
(2) submitted to the General Bar Examination on a previous administration and received a scaled score of 133 or higher prior to July 1. 1982. and 131 or higher after July 1. 1982. on only one of the two parts of such examination and who wish to retake just the part previously failed.
Section 7. Each examination paper produced by an applicant on the General Bar Examination shall be separately graded. The scores of each section of Part A shall be converted to a common scale by a recognized statistical procedure so that each section will be equally weighted. The sum of the converted section scores will be the total score for Part A. All total scores attained by the applicants on Part A shall be converted to the same distribution as their Multistate Bar Examination (MBE) scaled scores. Mul-tistate Bar Examination (MBE) scores (Part B) are the scaled scores on the Multistate Bar Examination (MBE) provided by the National Conference of Bar Examiners. Scaled scores shall be used in order to assure that the standard of measurement of competence from examination to examination is not affected by the difficulty of the particular test or the ability of that particular group as distinguished from the general population of applicants. Papers shall be graded and credited by number and not by applicant’s name. The name of the writer of the examination paper shall not be revealed by the staff to the members of the Board or readers or any source other than the Supreme Court of Florida. Each applicant must attain a scaled score of 133 or better prior to July 1. 1982. and a scaled score of 131 or better after July 1. 1982. on Part A and on Part B under Method 2 and an average of 133 or better prior to July 1. 1982. and an average of 131 or better after July 1. 1982. under Method 1, or such scaled score as may be fixed by the Court. If the applicant elects to utilize a Part B score through submission to the Multistate Bar Examination (MBE) in an admitting jurisdiction other than the State of Florida, a certificate bearing the National Conference of Bar Examiners scaled score attained in that jurisdiction shall be forwarded directly to the Florida Board of Bar Examiners by the admitting jurisdiction or the Director of Testing (National Conference of Bar Examiners) on a form supplied for that purpose by the Florida Board of Bar Examiners (Form 32).

ADKINS, BOYD, OVERTON, ALDERMAN, MCDONALD and EHRLICH, JJ., concur.

SUNDBERG, C. J., dissents.


text:
    Ervin McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 59691.
    Supreme Court of Florida.
    June 24, 1982.
    Richard L. Jorandby, Public Defender and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by Ervin McCray from his conviction of first-degree murder and from the trial judge’s imposition of the death sentence after the jury had recommended life imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. We affirm the conviction, but direct that the death sentence be reduced to a sentence of life imprisonment in accordance with the jury’s recommendation.

The record reflects the following facts. Shortly before 7:00 p. m. on December 17, 1980, appellant McCray, Willie Footman, Jerry Davis, and Sammy Walker drove to the store managed by the victim, Bernard Fetch. Appellant and Davis entered the store and asked to see some guns. The two left the store soon after Fetch told them that he had already put the guns away for the night. Davis then drove the men down a back road behind the store’s rear parking lot and stopped the car. McCray and Footman left the car and walked back to the victim’s van, which was parked in the rear parking lot. Appellant broke a window of the van and removed several boxes of guns, took them to the edge of the woods beside the road, and returned to Davis’s car.

Davis drove the group back into the rear parking lot where Fetch, preparing to leave for the night, sat in his van talking with Thomas Cartwright. Sammy Walker testified that McCray jumped from the car, saying that he didn’t want to leave empty-handed. Cartwright testified that a man he later identified as McCray approached the van, yelled, “This is for you, mother fucker,” and shot Fetch three times in the abdomen. According to Cartwright, Fetch fired back at McCray after he was shot. Walker testified, however, that Fetch fired his weapon before appellant “fired back” at him. No money was taken from Fetch.

Appellant, testifying in his own behalf, asserted that Walker had broken into the van and that he and Walker had taken the guns into the woods. Appellant further stated that he left with Davis immediately after the guns were taken into the woods, that they drove to the Blue Chip Bar, and that he remained at the bar for the rest of the evening. Appellant produced two witnesses who testified that he was at the Blue Chip Bar at about 7:10 p. m. on the night of the killing.

Codefendant Walker, who was eighteen years of age, negotiated a plea before trial. He was placed on probation and served as the key witness for the state in the prosecution. The testimony of codefendants Footman and Davis, who stood trial with appellant on charges of first-degree murder and attempted armed robbery, generally corroborated that of Walker. The jury acquitted Footman and Davis of all charges. Appellant, although found not guilty of attempted armed robbery, was convicted of first-degree murder.

Neither the state nor the appellant presented any evidence at the sentencing hearing. After arguments by counsel, the jury recommended a sentence of life imprisonment for McCray. The judge did not accept the jury’s life recommendation, but rather imposed the death sentence upon finding three aggravating circumstances: (1) the crime was committed for pecuniary gain; (2) the crime was especially heinous, atrocious, and cruel; and (3) the crime was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The trial judge found no mitigating circumstances.

Trial Phase

Appellant asserts that his conviction should be vacated upon four grounds: (1) the trial court abused its discretion in denying his motion to sever his trial from that of his two codefendants; (2) the trial court erred in limiting his cross-examination and impeachment of the eyewitness Cartwright; (3) the trial judge erroneously denied his motion to compel the designation of a more specific time in the statement of particulars; and (4) the trial judge erred in instructing the jury on felony murder. We find the last three points to be without merit and to warrant no further comment by this Court. The severance issue, however, requires a full discussion.

The trial court, in denying the motion for severance, stated: “I think the rules suggest that people charged together ought to be tried together unless there is some compelling reason to show why they should not be tried together, and I am not satisfied I have been shown that good reason.” Appellant argues that the trial court should have granted his motion for severance under the provisions of Florida Rule of Criminal Procedure 3.152(b)(1) because the defenses of codefendants Footman and Davis were completely antagonistic to his defense. The state responds by asserting that severance is not required simply because one defendant is blaming the other for the crime. In addition, the state claims that there was no prejudice since, even without the codefendants’ testimony, the evidence of appellant’s guilt was overwhelming.

Rule 3.152(b)(1) directs the trial court to order severance whenever necessary “to promote a fair determination of the guilt or innocence of one or more defendants . . . . ” As we stated in Menendez v. State, 368 So.2d 1278 (Fla.1979), and in Crum v. State, 398 So.2d 810 (Fla.1981), this rule is consistent with the American Bar Association standards relating to joinder and severance in criminal trials. The object of the rule is not to provide defendants with an absolute right, upon request, to separate trials when they blame each other for the crime. Rather, the rule is designed to assure a fair determination of each defendant’s guilt or innocence. This fair determination may be achieved when all the relevant evidence regarding the criminal offense is presented in such a manner that the jury can distinguish the evidence relating to each defendant’s acts, conduct, and statements, and can then apply the law intelligently and without confusion to determine the individual defendant’s guilt or innocence. The rule allows the trial court, in its discretion, to grant severance when the jury could be confused or improperly influenced by evidence which applies to only one of several defendants. A type of evidence that can cause confusion is the confession of a defendant which, by implication, affects a codefendant, but which the jury is supposed to consider only as to the confessing defendant and not as to the others. A severance is always required in this circumstance. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In situations less obviously prejudicial than the Bruton circumstance, the question of whether severance should be granted must necessarily be answered on a case by case basis. Some general rules have, however, been established. Specifically, the fact that the defendant might have a better chance of acquittal or a strategic advantage if tried separately does not establish the right to a severance. United States v. Cravero, 545 F.2d 406 (5th Cir.1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977); United States v. Perez, 489 F.2d 51 (5th Cir.1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). Nor is hostility among defendants, or an attempt by one defendant to escape punishment by throwing the blame on a codefendant, a sufficient reason, by itself, to require severance. United States v. Herring, 602 F.2d 1220 (5th Cir.), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 732 (1979); United States v. Ehrlichman, 546 F.2d 910 (D.C.Cir.1976), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977); Perez; Hawkins v. State, 199 So.2d 276 (Fla.1967), vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2857, 33 L.Ed.2d 765 (1972). If the defendants engage in a swearing match as to who did what, the jury should resolve the conflicts and determine the truth of the matter. As in this case, the defendants are confronting each other and are subject to cross-examination upon testifying, thus affording the jury access to all relevant facts.

The dispute between appellant and his codefendants concerned appellant’s whereabouts at the time of the murder. Appellant’s codefendants testified that he shot Bernard Fetch. Appellant challenged this evidence with his own testimony and with the testimony of two alibi witnesses that he was at the Blue Chip Bar at the time of the shooting. Appellant had full opportunity to confront and cross examine each of the witnesses against him, including his codefendants. None of the codefend-ants made a Bruton -type confession, and the evidence presented was not so complex that the jury would be confused by it and incapable of applying it to the conduct of each individual defendant. We conclude that the trial judge properly exercised his discretion in denying the motion for severance. Further, we find that this joint trial did not in any way prejudice the right of appellant to a fair determination of his guilt or innocence of the offense charged. This ruling is totally consistent with our recent decision in Menendez v. State.

Appellant relies heavily on the decision in Crum v. State to support his asserted right to a severance. Crum is distinguishable. In that case, two brothers, Preston and Marvin Crum, were charged with murder. Prior to trial, counsel for appellant Preston obtained a statement from codefendant Marvin which was in total accord with Preston’s version of the incident. After the jury was sworn, Preston learned that Marvin had changed his story and intended to accuse Preston, at trial, of committing the murder. Marvin was not required to give the statement, but once he did so, Preston was entitled to rely on that statement. When codefendant Marvin changed his story after the jury was sworn, we determined that, on a proper motion, severance was necessary because Preston was, under these circumstances, denied a fair trial. The problem in Crum was not simply that the codefendants had antagonistic defenses. The problem was that one codefendant induced the other to believe that their defenses would be completely consistent and then, after jeopardy attached, decided to change his story, thereby prejudicing the proper preparation of the case for trial. The circumstances would have been different had there been no prior statement or had there been sufficient notice before trial of the change in Marvin’s position.

We reiterate that hostility among defendants or the desire of one defendant to exculpate himself by inculpating a codefend-ant are insufficient grounds, in and of themselves, to require separate trials. In the instant case, the trial judge correctly denied the motion for severance.

Sentencing Phase

Appellant claims that the trial judge improperly imposed the death sentence, particularly since the jury recommended life imprisonment. We agree that, upon the facts of this case, the trial judge’s action was contrary to our holdings in Tedder v. State, 322 So.2d 908 (Fla.1975), and in McCaskill v. State, 344 So.2d 1276 (Fla.1977). The trial judge should have followed the jury recommendation and imposed a life sentence.

We find that none of the aggravating circumstances found by the trial judge were properly applied to the facts of this case. The evidence does not establish that Fetch was killed for pecuniary gain, especially since the jury acquitted appellant on the armed robbery charge and the state had previously dropped the burglary charge. Further, we find that this crime was not “especially heinous, atrocious, or cruel.” § 921.141(5)(h), Fla.Stat. (1979) (emphasis added). Maggard v. State, 399 So.2d 973 (Fla.1981); Lewis v. State, 377 So.2d 640 (Fla.1979); Kampff v. State, 371 So.2d 1007 (Fla.1979); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974). Finally, we conclude that this was not a murder committed in a “cold, calculated, and premeditated manner without any pretense of moral or legal justification.” § 921.141(5)(i), Fla.Stat. (1979). That aggravating circumstance ordinarily applies in those murders which are characterized as executions or contract murders, although that description is not intended to be all-inclusive. Jent v. State, 408 So.2d 1024 (Fla.1981); Combs v. State, 403 So.2d 418 (Fla.1981). Given the circumstances of this case, the jury’s recommendation of a life sentence was not unreasonable and, in fact, is consistent with what other juries have done in somewhat similar circumstances. See, e.g., Lewis; McCaskill v. State, 344 So.2d 1276 (Fla.1977).

For the reasons expressed, we affirm appellant’s conviction of first-degree murder, but reverse the sentence of death. The cause is remanded to the trial court with directions to enter a sentence of life imprisonment without the possibility of parole for twenty-five years.

It is so ordered.

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

ADKINS, J., concurs in result only with the conviction and dissents with the sentence.

      . ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance § 2.3(b)(ii) (1968); Standards for Criminal Justice § 13-3.2(b) (2d ed. 1980).

      . See also Annot., 82 A.L.R.3d § 6 at 260 (1978).


text:
    Bennie E. DEMPS, Appellant, v. STATE of Florida, Appellee.
    No. 62169.
    Supreme Court of Florida.
    June 24, 1982.
    John Middleton, Gainesville, and John L. Carroll and Dennis N. Balske, Montgomery, Ala., for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Bennie E. Demps is before this Court on appeal from the denial without hearing of his motion for post-conviction relief by the Circuit Court for the Eighth Judicial Circuit. Fla.R.Crim.P. 3.850. Concurrent with the appeal, he seeks a stay of execution now scheduled for June 29, 1982. Demps was sentenced to death in 1978 for the jailhouse slaying of a fellow inmate. We have affirmed this sentence. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, - U.S. -, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981).

Appellant claims that he is entitled to an evidentiary hearing because his motion for post-conviction relief presents substantial arguments that, if established, would warrant relief from the death sentence. Five of the six points that appellant claims are error may be dismissed. The claims that the trial judge improperly restricted voir dire and he improperly restricted presentation of a mitigating circumstance, the victim’s criminal history, are both issues which could have been raised on direct appeal and are therefore not proper matters under rule 3.850. See Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). The third claim, spun from the first two, is that since counsel during the direct appeal failed to raise these issues, which are now barred, his representation was ipso fac-to ineffective. The same counsel who made the direct appeal now makes this claim of his own ineffectiveness. Treating this one claim as a petition for habeas corpus, since review of appellate counsel’s efforts is not a matter for the trial court, Smith v. State, 400 So.2d 956, 960 (Fla.1981), we are more impressed with its novelty than the argument. Appellant’s counsel admits that at the time of direct appeal, his considered legal judgment was not to raise these issues. Unless we are to assume an intentional effort at building an element of ineffectiveness into this case, we must allow counsel the benefit of his original position, and avoid questioning his tactics. Certainly we cannot call these omissions a “serious deficiency measurably below that of competent counsel.” Knight v. State, 394 So.2d 997, 1001 (Fla.1981). The fourth claim is that the state illegally solicited the testimony of its central witness, Larry Hathaway, through inducements. This claim was effectively raised on direct appeal when appellant attacked the trial court’s disallowance of evidence showing Hathaway was homosexual and that his testimony was given in exchange for a transfer to a prison with his lover. See Demps v. State, 395 So.2d at 504. If not exactly raised, it could have been. Witt v. State. Appellant neit attacks the imposition of the death sentence in spite of two invalid aggravating factors. This is consistent with Elledge v. State, 346 So.2d 998 (Fla.1977), since there were no mitigating factors.

Appellant’s sixth claim is not so easily discounted. He contends that the state through the Department of Corrections, induced a witness, Michael Squires, not to testify. Demps asserts that Squires would have given exculpatory testimony, but that a Department of Correction’s investigator promised Squires an early parole in exchange for his silence, and that Squires in fact received a presumptive parole date reduced by seventeen years for his cooperation. Needless to say, these are serious allegations which warrant a close examination. Because we cannot say that the record conclusively shows appellant is entitled to no relief, see LeDuc v. State, 415 So.2d 721 (Fla.1982), Fla.R.Crim.P. 3.850, we must remand this issue to the trial court for an evidentiary hearing.

In opposition to such a hearing, the state asserts that the appellant may not raise “newly discovered evidence” under the rule 3.850 motion. The state is quite correct in this assertion. See Smith v. State, 400 So.2d 956 (Fla.1981); Hallman v. State, 371 So.2d 482 (Fla.1979). But we do not view this situation as involving “newly discovered evidence.” Appellant’s defense counsel was aware of Squire’s exculpatory testimony prior to trial. At the commencement of trial, however, defense counsel became aware through the state’s deposition that Squires had changed his testimony, and therefore did not call Squires. If the allegations of appellant are true, this situation is one in which the state affirmatively manipulated testimony, a violation more egregious than the mere passive, nondisclosure disapproved in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Here appellant does not merely allege that he has discovered new evidence, which if considered, would have prevented entry of judgment. Rather, he urges that because of prosecutorial interference with a defense witness he was denied due process of law. Although not directly a discovery violation, this violation is nevertheless more akin to a Brady violation; it is established that such a claim is proper in a rule 3.850 motion:

Since this challenge is based on the ground that the judgment was entered in violation of the due process clause of the constitution, since [he] alleges he did not have knowledge of the basis for this challenge prior to final judgment, and since it is within the peculiar province of the trial court to determine whether there was a Brady violation requiring a new trial, [his] raising of this point in a motion to vacate judgment was appropriate.

Smith v. State, 400 So.2d at 962-63. Here, the state has allegedly suppressed favorable testimony which the defendant had known about, but which became nonexistent due to governmental interference. Brady held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material ... . ” 373 U.S. at 87, 83 S.Ct. at 1196. The net effect of the state’s alleged actions is to violate due process in a manner that abuses the spirit if not the letter of Brady.

In a second counter to this claim, the state asserts that appellant is entitled to no relief because the testimony of Squires was merely cumulative, and that the claim is legally insufficient to warrant an evidentia-ry hearing. Essentially, the state contends that appellant has failed to show prejudice. We reject this contention because we discern a serious due process taint whenever the state interferes with testimony. Based on Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), the United States Court of Appeals, former Fifth Circuit, has not required a showing of prejudice when governmental interference with a defense witness is involved. The reasons for such strictures are compelling:

One reason is that this due process violation will almost always be harmful, and it will be very difficult for a court to determine when it is not. This is because a court will seldom be able to determine exactly what evidence would have been brought out had the witness been allowed to testify freely. Furthermore, since a constitutional violation is involved, a court would have to be able to conclude that the absence of this unknown testimony was harmless beyond a reasonable doubt... . Even if a court could say with the requisite certainty that the omitted testimony would not have changed the outcome of the case, the defendant still should be allowed to attempt to change that outcome by presenting his witnesses. A final reason supports our conclusion. We cannot imagine that such a violation of due process would result from anything but intentional conduct on the part of the government, and a per se rule would be the best deterrent to such conduct.

United States v. Hammond, 598 F.2d 1008, 1013 (5th Cir.), aff’d on rehearing, 605 F.2d 862 (5th Cir. 1979). Sée also United States v. Goodwin, 625 F.2d 693 (5th Cir. 1980). Because of the serious nature of the conduct here alleged, we believe the interests of justice are best served by assuming prejudice to the defendant under the circumstances of this case. An evidentiary hearing on this-matter is unavoidable.

Accordingly, we affirm the trial court’s denial of post-conviction relief on all claims with the exception of the claim that the state interfered with a defense witness. As to that claim, we reverse the trial court’s denial of post-conviction relief and remand to the trial court for an evidentiary hearing. Because the time before appellant’s execution is insufficient for him to pursue this claim, his stay of execution is granted pending disposition of this matter.

It is so ordered.

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

BOYD and ALDERMAN, JJ., dissent.


text:
    William SCHLUSSLER, Appellant, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 80-735.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    As Corrected May 25, 1982.
    Rehearing Denied July 12, 1982.
    Horton, Perse & Ginsberg and Edward A. Perse, George C. Vogelsang, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett and Michael J. Murphy, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order denying attorney fees is reversed on the authority of Florida Farm Bureau v. Quinones, 409 So.2d 97 (Fla. 3d DCA 1982), opinion filed January 19, 1982.

The points on the cross-appeal are found to be without merit. See American Home Assurance Company v. Keller Industries, Inc., 347 So.2d 767, 771-72 (Fla. 3d DCA 1977), compare Gibson v. Walker, 380 So.2d 531 (Fla. 5th DCA 1980); Cincinnati Insurance Company v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974).

Therefore, the matter is returned to the trial court to award to the appellant those attorney’s fees previously determined as fair and just for services in the trial court and to fix and award attorney’s fees for services rendered in this court.

Affirmed in part, reversed in part and remanded with directions.


author: DELL, Judge.

text:
    Mary Dominick WEEKS, Appellant, v. Lucius Henry WEEKS, Appellee.
    No. 81-633.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1982.
    Clarification Granted June 11, 1982.

      Arthur M. Wolff of Wolff & Gora, P.A., Fort Lauderdale, and Philip J. Montante, Jr., Pompano Beach, for appellant.
    James O. Murphy, Jr., of English, McCau-ghan & O’Bryan, Fort Lauderdale, for ap-pellee.
   DELL, Judge.

This is an appeal from a final judgment of dissolution of marriage wherein the wife challenges the amount of alimony and attorneys fees awarded to her and contends that she should have also received the marital home as lump sum alimony.

The parties were married for 26 years. The wife is 47 years old and the husband is 49 years old. The husband is a bank president and earns an annual salary of approximately $112,000. He owns stock, valued at about $50,000, which has been pledged as security for several loans. His net equity in the stock is just over $15,000. The loans for which the husband is individually liable total $41,000. The jointly owned marital home is valued at $274,000 of which approximately $158,000 is equity. The wife has no individually owned assets and no source of income other than the husband. She has completed 2V2 years of college and worked part-time as a substitute teacher. Her other employment has been as a fashion show coordinator and floating employee for a department store. However, she has not worked for the past seven years. Throughout the marriage the wife suffered from severe, and occasionally disabling, migraine headaches. She also sustained a compression fracture of a vertebrae following an accident. Although discharged by her physician to pursue normal activities, she, nevertheless, experiences difficulty lifting heavy objects and doing strenuous work.

According to her testimony, she requires $400.00 per week in order to maintain a life style comparable to that which was provided by the husband. She was awarded $300.00 per week as permanent periodic alimony. Additionally, the trial court ordered that the marital home be sold and that the wife receive lh of the proceeds. The court also awarded $12,000.00 in attorney fees payable in monthly installments of $1,000.

Permanent periodic alimony should provide a former spouse with the needs and necessities of life, as they have been established by the marriage of the parties. In determining permanent periodic alimony, the two primary considerations are the monetary needs of the receiving spouse and the ability of the other spouse to pay. The criteria for establishing this need include the parties’ earning ability, age, health, education, the duration of marriage, the standard of living enjoyed during its course, and the value of the parties’ estates. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We recognize that the discretion as to whether an award of periodic alimony is appropriate lies exclusively with the trial court. However, it is the responsibility of an appellate court to determine whether the exercise of such discretion was “reasonable.” Canakaris, supra.

In itemizing her needs, on a weekly basis, the wife testified that she required $100.00 for food, $25.00 for medicine, $45.00 for clothing, and $35.00 to employ a maid as she had throughout the marriage. The husband’s testimony establishes that the wife’s cost of housing would be approximately $150.00 per week. Thus, even without considering such items as insurance, taxes, utilities, medical bills, car maintenance, gas and incidentals, the wife’s needs exceed the weekly alimony of $300.00. It is obvious that the wife needs a minimum of $400.00 per week to maintain a lifestyle similar to that provided by the husband. Her estimation of expenses was extremely conservative and did not even allow for establishing a residence once the marital home was sold. In our view, the trial court abused its discretion in failing to award the alimony requested by the wife. Further, the husband’s ability to pay such alimony is clearly demonstrated by the record.

However, we hold that the trial court did not abuse its discretion in failing to award the wife the marital home as lump sum alimony, nor did it err in the amount of attorneys fees awarded her counsel.

Accordingly, the final judgment is reversed and remanded with instructions to increase the amount of permanent periodic alimony to $400.00 per week. Otherwise, the final judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART.

LETTS, C. J., and HERSEY, J., concur.

BY ORDER OF THE COURT:

Appellant’s Motion for Clarification of this Court’s opinion in the above styled cause dated April 7, 1982 is granted. The trial court is directed to increase the amount of permanent periodic alimony payable to the appellant from $300.00 per week to $400.00 per week retroactively from March 16, 1981, the date of the Final Judgment of Dissolution of Marriage in this cause.