author: DeCARLO, Judge.

text:
    Charlie Frank McMORRIS v. STATE.
    6 Div. 198.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain, Sp. Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Rape; twenty years imprisonment.

In June, 1978, the prosecutrix lived alone at 1042 48th Place, North in an apartment complex in the community of Kingston in Birmingham, Jefferson County, Alabama. About 3:00 A.M. on June 15, 1978, the pros-ecutrix was awakened by a naked black man sitting on her chest and holding his hands over her mouth and her throat. The prosecutrix was told that if she did not make any noise she would not be hurt. According to the prosecutrix, they began to scuffle on the bed, and her attacker hit her on the head and in the eye. The prosecu-trix recalled that, when she asked the appellant why he was doing this to her, he replied that, “He didn’t have anyone else, and you know, I was as good as any.”

As the struggle continued, the attacker attempted to force the prosecutrix to have oral sex with him, but she was successful in avoiding him. At that point, her assailant again hit her with his fist. Subsequently, he forced the prosecutrix to have intercourse with him. After the intercourse, the assailant grabbed the prosecutrix’s hair and forced her to walk with him into the living room, then into the kitchen. The assailant retrieved his clothes from a chair and dressed. Subsequently, the prosecutrix asked to go to the bathroom, and, after she entered it, she locked the door. Shortly afterwards, she heard the backdoor slam, and, after waiting “a little while,” she left the bathroom. The prosecutrix, dressed in a robe, then went to the apartment of neighbors, Sheila and Dwane Morris. She told them what had occurred, and the Birmingham Police were subsequently called.

According to the prosecutrix, her bedroom was located in the rear of the apartment near an alley lighted by mercury vapor lights. She testified that her bedroom was illuminated by light originating from the streetlight. She recalled that the bedroom window had a shade which was pulled down to within six or eight inches of the window sill. She stated that she had no problem seeing in the bedroom under such conditions and could find anything she wanted without turning on any lights. Further, she testified that her backdoor faced the alley and that, while she and her assailant were in the kitchen, the backdoor was open.

The prosecutrix recalled that, during the struggle, the assailant had picked up a statue in her bedroom, apparently with the intention of hitting her. Also, she stated that they were in the bedroom for approximately thirty-five to forty-five minutes and were in the kitchen between ten to fifteen minutes.

When the police arrived, she described to officers, Gerald R. Attaway and Ward Har-alson, her assailant as a black male, approximately twenty-four years old, five feet and eleven inches in height, 170 pounds, with large lips, round eyes, a narrow nose bridge, plaited hair with colored rubber bands on the ends, and a beard.

One week later, at 1:30 A.M., on June 22, 1978, while visiting the Morrises, the prose-cutrix noticed a man moving through the cars parked in the apartment complex. She said that the man made his way to two dumpsters located across the street from the Morrises’ apartment and that he appeared to be “snooping.” The police were called and, when they arrived, Officer Atta-way had a conversation with the prosecu-trix. The man near the dumpsters was apprehended and taken to the police car. The prosecutrix recognized the man as her assailant. When the second patrol car drove up, its headlights were shining on the appellant and at that time she identified him as her assailant.

The following day, on June 23, 1978, she went to family court, observed a lineup, and again identified the appellant as her assailant. During the trial, she made a positive in-court identification of the appellant as the man who had raped her on June 15, 1978.

During cross-examination, the prosecu-trix explained that she had her bedroom shade pulled up about eight inches from the window sill and the window open in order to allow air to flow into her unaircondi-tioned apartment. Also, she stated that the appellant did not enter through the bedroom window. She testified that the windows of her apartment opened outward and the screens were located on the inside of the windows. According to the prosecutrix, the appellant must have entered her apartment through the living room window. She explained that the screen to that window was found in the yard outside the apartment, but she could not recall if the living room window had been locked.

The prosecutrix identified, for the police evidence technician, different items which the appellant had touched while he was in the apartment.

Asked to restate the description of her assailant which she had previously given, she said, “He had on dark pants, dark print shirt.”

During further cross-examination, she repeated her testimony concerning the events on June 22, 1978, and stated that Beverly Jackson, a friend, was also present at the Morrises’ apartment. According to the prosecutrix, at the time she identified the appellant as her assailant, he did not have colored rubber bands in his hair. Further, she said that, on June 15, 1978, the appellant was wearing a dark, floral print shirt, but she was never asked in two previous trials whether it was short or long sleeved.

In an attempt to impeach the prosecu-trix’s description of the appellant, the appellant’s counsel pointed out that she had not mentioned the narrow nose bridge. During redirect examination the prosecu-trix explained that, whenever she had said “narrow nose” she had demonstrated on the bridge portion of her own nose that portion of appellant’s nose to which she was referring. Also, she explained that, on June 15, 1978, the appellant’s face was approximately three to four inches from her face.

Officer Attaway, after receiving a radio dispatch on June 15,1978, at approximately 3:50 A.M., arrived at the prosecutrix’s residence to investigate the complaint. The prosecutrix’s condition at that time was “highly emotional.” She had “bruises on her face and was extremely disoriented.” The description of the assailant given to Attaway at the time by the prosecutrix was virtually the same as that given by her during the trial.

Attaway recalled that, on June 22, 1978, around 1:00 A.M., he responded to a dispatch and again went to the prosecutrix’s residence. Upon his arrival, he conversed with the prosecutrix, then he and his partner went to an area where a dumpster was located. At that time, they apprehended the appellant, then returned to their patrol car. Attaway had a second conversation with the prosecutrix prior to a second patrol car arriving. After this conversation, Atta-way placed the appellant under arrest and transported him to the city jail where photographs, which were later admitted into evidence, were made.

During cross-examination, Attaway stated that his partner on June 15, 1978, was Officer M. D. Crawford, and on June 22, 1978, was Officer Ward Haralson. Atta-way said the appellant told him that he lived in the neighborhood and was going to see a girlfriend. According to Attaway, the appellant was searched, handcuffed and led to the police car.

On June 15, 1978, Birmingham Police Officer L. E. Stricklin, an evidence technician, went to the prosecutrix’s residence. After being shown the items which the appellant touched, he lifted four latent fingerprints. Also, he made additional photographs at the request of the district attorney.

Fingerprint Technician Donna Vogel, of the Birmingham Police Department, made a comparison between the latent fingerprints and found that only one latent fingerprint contained sufficient detail to make an identification. However, that fingerprint was not identified as the appellant’s.

At the end of Vogel’s testimony the State rested its case. The appellant did not move to exclude and called Frank Buckley, probation officer with the Jefferson County Juvenile Court.

On the morning of June 22,1978, a lineup was arranged in the chapel of juvenile detention hall in family court. Members of the lineup, chosen from volunteers in the detention hall, closely resembled the appellant. Five black males, each wearing bluejeans and “tee shirts,” made up the lineup viewed by the prosecutrix. According to Buckley, only the appellant had a beard, and one other member of the lineup had “plaited hair.” Buckley stated that the appellant was five feet and seven inches tall and weighed two hundred pounds.

During cross-examination, Buckley stated that he was with the prosecutrix as she viewed the lineup and that, within five to ten seconds, she had identified the appellant.

Eloise Green, the appellant’s mother, testified that in June, 1978, the appellant was seventeen years of age and worked at “Help Unlimited.” According to Mrs. Green, she was working in the Ketona Nursing Home as a nursing assistant at the time, and her “off days” that month were June 7th, 8th, 15th, 16th, 23rd, and 24th. She recalled that, on June 14, 1978, she left work around 11:00 P.M. and drove to her mother’s home before driving to her home. When she arrived home at approximately 12:00 P.M., the appellant was not there. Later between 12:30 and 1:00 A.M., on June 15, 1978, she saw him in the hallway walking toward the bathroom. After leaving the bathroom, he went to the kitchen and “ate something, then went to bed.” According to Mrs. Green, the bedrooms were across the hall from each other, and the doors remained open. Further, she said that, during the early hours of June 15, 1978, she was studying for her State nurses’ examination and she did not go to bed until approximately 5:00 A.M. According to the witness, the appellant did not leave his room during that time. She testified that the appellant had “plaits” in his hair and was wearing a light blue shirt and short pants. Also, she said the appellant never wore rubber bands in his hair, that he did not own a flowered shirt, and that he had a full beard on the date of the rape.

During cross-examination, Mrs. Green stated that the prosecutrix’s apartment complex was located approximately three or four blocks from her home.

Charlie Frank McMorris took the stand in his own behalf and testified that he did not own a “flowered” shirt in June, 1978. He stated that his girlfriend, Alice Stewart, “plaited” his hair, but she did not put rubber bands on the ends of the plaits. According to the appellant, between 6:00 and 7:00 P.M., on June 14, 1978, he had arrived at his girlfriend’s residence and had left approximately at 12:00 P.M. Afterwards, he walked twelve to thirteen blocks from her house to his home in approximately forty-five minutes. After arriving at his home between 12:30 and 1:00 A.M., he saw his mother and his sister. He recalled that, prior to going to bed where he had remained until the next morning when he got up for work, he had gone to the bathroom, then to the kitchen.

The appellant testified that, on that occasion, he was wearing short pants, a cut-off shirt, tennis shoes and a cap. Also, he stated that his hair was in “plaits.”

According to the appellant, he had visited his girlfriend on June 22, 1978, and was on the way home when he stopped to buy a soda at a convenience store located near the prosecutrix’s apartment complex. After leaving the store, he walked through the complex, stopped at a dumpster to throw the empty can away, and noticed some magazines. He denied stooping between and looking over and around the cars parked in the complex. The appellant testified that he looked at the magazines, and, when he threw them back into the dumpster, he saw a police car entering the complex and heading toward him. He stated that he stood by the dumpster, and, when the police arrived, he told them that he had been to see his girlfriend.

According to the appellant, he was taken to the patrol car, searched and handcuffed. Afterwards, while he was in the backseat of the patrol car, a second patrol car arrived. Subsequently, he was transferred to the city jail where he was photographed. He was later taken to the juvenile detention hall. The appellant stated that, at the time he participated in the lineup, he wore bluejeans and a “blue-like tee shirt.” The appellant concluded his testimony by denying he had gone to the prosecutrix’s apartment and raped her.

During cross-examination, the appellant testified that he had visited his girlfriend about five times a week and had followed a different route home on June 22,1978, than he did on June 14, 1978. He recalled that on June 14,1978, he was within one block of the apartment complex where the prosecu-trix lived. Also, he testified that on June 14,1978, his hair was “plaited” and he had a beard. According to the appellant, on June 22, 1978, there were two dumpsters at the apartment complex, and he had been there for only a “couple of minutes” before the police arrived. He testified that he was wearing a long sleeved-shirt and long pants.

The appellant concluded his case after calling two court reporters. The State ended its case after calling, in rebuttal, Mrs. Green and the prosecutrix.

I

The appellant contends that records transferring jurisdiction in his case from the juvenile court to the circuit court were not in the clerk’s file. He maintains that the circuit court did not have jurisdiction and did not give notice of this transfer.

This precise issue was raised on a motion for a new trial, and, during the hearing on that motion, the State offered into evidence the juvenile court file which apparently had been sent to the circuit court clerk. The file indicated the following: (1) a motion for a transfer had been filed by the district attorney’s office; (2) a hearing had been held in juvenile court with the appellant and his trial attorney present; (3) written findings were made by the juvenile court judge pursuant to § 12-15-34(f); (4) the order of transferral was issued by the juvenile court judge. Also, the appellant admitted that the transfer order was a part of the circuit court clerk’s file.

It is clear that the appellant and his trial counsel had knowledge that the appellant’s case had been transferred. Additionally, the transfer ordered by the juvenile court was a part of the circuit court clerk’s file, and the appellant had notice of that fact. Therefore, the circuit court had jurisdiction over the appellant and the subject matter of his case. See Carpenter v. State, Ala., 378 So.2d 730; Winstead v. State, Ala., 371 So.2d 418; Allums v. State, Ala.Cr.pp., 368 So.2d 313; Smith v. State, Ala.Cr.App., 368 So.2d 298.

II

The appellant asserts that the trial court erroneously quashed a prior jury which was struck, but unsworn. He argues that the court improperly granted the State a continuance after the jury had been selected because of the “alleged non-availability of some police personnel witnesses.”

On May 1, 1979, appellant’s case was called for trial and a jury was chosen, but not sworn, and the trial was recessed until May 2, 1979. On May 2, 1979, the State requested a continuance, due to the unavailability of police witnesses who were on strike at the time. The appellant objected, assigning as grounds that the jury had been selected and much time had been spent upon preparation of the case. Further, he stated that the appellant was present, along with his witnesses, and was, consequently, prepared for trial.

Though the trial court did not specifically rule on the State’s motion, the court quashed the jury venire and gave the following explanation:

“THE COURT: Due to the police strike, Mr. Colee can’t get his witnesses that he needs and is essential for the case. And since you all haven’t been sworn, the court is going to do what they call quash the venire. It didn’t declare a mistrial, because you haven’t been sworn. So, apparently no jeopardy will occur.”

The case was re-scheduled, and, on July 31, 1979, prior to appellant’s second trial on August 7,1979, the appellant filed a motion to quash the indictment on the grounds that the trial court had abused its discretion by quashing the jury venire, thus denying him a fair trial. A stipulation, read into the record by the appellant, indicated that, on May 2,1979, the State had made no request for the trial court to issue writs of attachment for the witnesses and, except for the explanations that the court had given, no factual basis was given for the quashing of the jury venire. The appellant also filed a plea of double jeopardy based on the same facts. Both motions were overruled, and the trial was begun. It resulted in a mistrial because certain jurors had viewed the scene of the crime.

On September 2, 1979, a third trial was begun, and the appellant renewed his motions which he had filed on July 81, 1979. These motions, again, were overruled, and the appellant was convicted. Appellant moved for a new trial, wherein he contended that, because the May 1,1979, jury panel was composed of both blacks and whites and the jury which convicted him was an all white jury, he, a black man, was deprived of due process of the law. In his brief, appellant argues that the trial court's ruling also denied him a fair and speedy trial. At the hearing on the motion for a new trial, testimony revealed that Officer Edward Alley was the liaison officer for the Birmingham Police Department and the Jefferson County Court system. He testified that there was an “on call” procedure whereby an officer could continue his daily activities until the time when his testimony was needed at trial. Alley stated that the policemen’s strike began at 11:00 P.M. on May 1,1979, and ended at 7:00 A.M. on May 4,1979. During that period, the police officers could not come to court and testify. In the case at bar, Alley attempted to contact the officers involved, but was unsuccessful. Alley testified that he reported this fact to the prosecuting attorney. During cross-examination, Alley stated that he attempted to contact the officers at home, but did not send a patrol car to their homes, nor did he leave a message. However, he did ask Sgt. Gaut to try and locate the officers on the picket line.

Alley testified that he had called Officer Attaway several times but to no avail. Further, he stated that he was sure that, had the officers been contacted^ they would have appeared.

On re-direct examination, Alley said that none of the officers listed as witnesses in the instant case reported for duty during the strike. They could not be located through the police department, nor at their homes.

Betty Davis, an employee in the criminal division of the Jefferson County Circuit Court clerk’s office, testified that, between April 30, 1979, and May 9, 1979, only two police witnesses claimed their attendance fees. She stated that they were Officer D. Hodges and Mrs. Donna Vogel.

Deputy District Attorney, Don Colee, testified that he participated in the May 1, 1979, jury selection. Further, he said that, on May 2, 1979, he talked with Sgt. Gaut concerning the whereabouts of the police witnesses and stated that he attempted to reach them at their respective homes, but was unsuccessful. The instant case had been originally assigned to John Black, another deputy district attorney, who, at the time, was engaged in another case. Colee recalled that Black did not indicate that the police officers were available as witnesses, or that the officers knew that the case was going to be tried that week.

Colee stated that, although he could have tried the case solely on the testimony of the prosecutrix, the prospect of winning the case without the officers’ testimony was slight.

During cross-examination, Colee stated that he knew the officers had testified in a prior trial of the appellant. Colee considered them to be material witnesses.

A review of the foregoing facts indicates that the appellant has shown no prejudice to his substantial rights due to the trial court’s actions. Generally, a ruling of the trial court is presumed to be correct and will not be overturned in the absence of a showing of abuse; therefore, the burden of demonstrating error in the court’s ruling rests with the appellant. Pace v. State, 284 Ala. 585, 226 So.2d 645; Snipes v. State, Ala.Cr.App., 364 So.2d 424.

The record revealed the trial court was aware that the Birmingham Police Department was participating in the city employees’ strike. It was also apparent that the court knew the officers were unavailable and their testimony was important. Also, the evidence adduced at the appellant’s motion for a new trial illustrates the State’s efforts in attempting to procure the witnesses.

Under the facts and circumstances in the instant case, we find that the trial court’s ruling was correct and was a proper exercise of the court’s discretion. Therefore, the appellant’s motion for a new trial was properly overruled.

Under Boswell v. State, 290 Ala. 349, 276 So.2d 592, and Simpson v. State, Ala.Cr.App., 354 So.2d 317; we find no basis in the record for a claim of double jeopardy. The appellant admits that the jury chosen on May 1, 1979, was never sworn.

Furthermore, the record reflects no basis for a claim of denial of a speedy trial. This allegation appeared for the first time in appellant’s brief. Consequently, there is nothing for this court to review. Gould v. City of Birmingham, Ala.Cr.App., 375 So.2d 1296; Slinker v. State, Ala.Cr.App., 344 So.2d 1264; Robinson v. State, Ala.Cr.App., 342 So.2d 1331.

Ill

The appellant complains that the trial court erred in overruling his oral motions to quash the indictment and for a new trial on the ground that the State had systematically and discriminatorily excluded blacks throughout the course of the proceedings against him. This exclusion, he explains, was accomplished by the State’s use of its peremptory strikes to keep blacks from serving on the juries. Accordingly, his rights to due process and equal protection of the law were contravened. He alleges that the State, through its prosecuting attorney, had systematically excluded Blacks from all juries wherein the defendant was black, the victim white, and the crime was violent.

In the present case, the record indicates that two assistant district attorneys struck the jurors in the appellant’s case, one making three strikes and the other making one strike.

No evidence in support of the appellant’s motion to quash the indictment was presented. However, during the hearing on the motion for a new trial, he did present testimony.

Prior to the reception of evidence, the appellant argued that, in the three juries which had been struck in his case, the prosecuting attorney had utilized his peremptory strikes to remove blacks from the jury panel. This, he says, indicates a systematic and discriminatory exclusion of blacks.

According to Mr. Arthur Parker, the appellant’s trial counsel, four different juries had been struck in connection with the appellant’s case. He stated that, on March 22, 1979, a mistrial was declared in appellant’s first trial; on May 2, 1979, a second jury was struck, but was discharged due to the unavailability of certain State witnesses; on August 3, 1979, a second mistrial was declared; and on September 27, 1979, the case was tried before a fourth jury which convicted the appellant. Mr. Parker explained that, during the selection of the juries at each of the trials involving the appellant, the State had exercised its peremptory strikes to remove blacks from the jury. Mr. Parker testified that he had practiced law for twenty-nine years and, during that time had handled over one hundred cases wherein the defendant was black and the victim was white. His testimony was that, over the past fifteen years, in approximately fifty of those cases, the State had invariably struck blacks from the jury panel with the intent of obtaining an all white jury.

During cross-examination, Mr. Parker admitted that, in four instances involving the appellant, he had utilized his peremptory strikes exclusively against whites. Further, four veniremen, two blacks and two whites, had been challenged for cause by the State and the appellant, respectively, for being over sixty-five years of age.

Also, Mr. Parker testified that, in a case such as the appellant’s, the jury would tend to judge credibility and truthfulness along racial lines. He explained that the race of each jury panel member played a part in his decision whether to strike a particular jur- or.

Mr. Parker stated that he knew the court coordinator’s office kept statistics on the composition of the various venires. The court offered to provide the appellant with those statistics, however, the appellant declined the offer.

Mr. Mike McCormick and Mr. William Dawson, both practicing attorneys in Jefferson County for a number of years, testified that, in cases involving black defendants and white victims, the State used its peremptory strikes exclusively to remove blacks from the jury panel. Mr. Dawson admitted during cross-examination that in two rape cases he had struck only whites from the jury panel. However, he also stated that, in recent years, the State had been more receptive to leaving blacks on juries for cases in which racial issues were not as prominent as they were in cases such as murder and rape.

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the Supreme Court stated:

“[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws.”

The court, in Swain, enunciated the burden necessary to establish a prima facie case of violation of the equal protection clause through purposeful and systematic exclusion of blacks from jury panels. The court said:

“[W]hen the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes an added significance.”

Once the systematic striking of Negroes in the selection of petit juries presents a prima facie case, the burden shifts to the State to prove, by clear and convincing evidence, that the selection process utilized was not racially motivated. Swain v. Alabama, supra; Beecher v. State, 294 Ala. 674, 320 So.2d 727.

In the instant case, the appellant showed that the prosecuting attorneys in his case had struck only blacks in selecting the juries which were to try his case. Also, the appellant offered testimony from experienced attorneys in Jefferson County, which showed that, where the defendant was black and the victim white, the State had used its peremptory strikes to remove only blacks.

Appellant’s evidence also indicated, however, that such practice was not an exclusive one. No official records or official statistics were offered to substantiate the appellant’s contention and the testimony of his witnesses.

It is apparent that the evidence in the present case was not sufficient to demonstrate invidious discrimination through the peremptory system which would establish a violation of the equal protection clause. Consequently, the trial court’s rulings on the motion to quash the indictment and for a new trial were without error.

IY

The appellant maintains that the trial court erred in denying his motion to suppress the prosecutrix’s in-court identification of the appellant. He asserts that the June 22,1978, and June 23,1978, identifications were impermissibly suggestive.

The testimony presented at appellant’s motion to suppress was the same as that presented during the trial. That evidence appears in the foregoing portions of this opinion, and we have found nothing in our examination of evidence relating to the June 22, 1979 identification which was im-permissibly suggestive. Donahoo v. State, Ala.Cr.App., 371 So.2d 68; Carter v. State, Ala.Cr.App., 340 So.2d 94, and cases cited therein.

Also, we have examined the evidence involving the June 23, 1978, lineup, and have found nothing impermissibly suggestive which would taint the in-court identification. Joshua v. State, Ala.Cr.App., 372 So.2d 885; Speigner v. State, Ala.Cr.App., 369 So.2d 39, and cases cited therein. See McLoyd v. State, Ala.Cr.App., 373 So.2d 1175.

V

Appellant claims that the trial court erred in allowing Officer Attaway to testify to the prosecutrix’s physical and mental condition and he also insists that the description of the rapist given on June 15th was improper.

The testimony involving the prosecutrix’s physical and mental condition is found in the following testimony by Officer Atta-way:

“Q. Would you describe [prosecutrix’s] condition when you saw her?
“MR. PARKER: I object to that it calls for some mental operation and conclusion, undisclosed mental condition.
“THE COURT: Overruled. Proceed.
“MR. PARKER: We except.
“A. The best of my recollection, I would say that she was in a highly emotional state. She was upset. She had bruises on her face, and she was extremely disoriented.”

In Garraway v. State, Ala.Cr.App., 337 So.2d 1349, the court stated; “Witnesses may always be allowed to testify as to the appearance of other persons.” Also, in Hamilton v. State, 281 Ala. 448, 203 So.2d 684, we find the following:

“Witnesses may always be allowed to testify as to the appearance and emotions of other persons.”

Based on the foregoing authorities, it is our judgment that no error was shown in the admission of the testimony cited above.

Regarding appellant’s assertion that Officer Attaway should not have been allowed to read from the June 15th investigative report, which was the description given by the prosecutrix of her intruder, we find the following:

“Q. I see. And on that occasion there was a written report taken by your partner?
“A. Yes, sir there was.
“Q. And that report was concerning her complaint that she made?
“A. Yes, sir.
“Q. On that occasion did [the prosecu-trix] give you a description?
“A. Yes she did.
“Q. What was that description?
“MR. PARKER: We object, if your Hon- or please. That is hearsay. It’s self-serving. It’s an attempt to bolster the evidence.
“THE COURT: Overruled. Give it.
“A. It was a black male, approximately 24 years of age, dark complexion, height 5’ 11”, weight 170, black hair, brown eyes, dark pants, flowered shirt with long sleeves. He had a beard. His hair was in corn rolls.”

The testimony by the prosecutrix on cross-examination was substantially the same as the testimony given by Officer Attaway. The Alabama Supreme Court in Cox v. State, 280 Ala. 318, 193 So.2d 759, observed that there are two instances where the details of a prosecutrix’s complaint may be proved. Those two instances are:

“(1) They may be elicited, on cross-examination, by the defendant; and where this is done only in part, the State on rebutting examination, may then proceed to prove the whole complaint; (2) Where testimony of prosecutrix is sought to be impeached, by attempting to discredit her story, it is permissible, by way of corroboration for the State to prove such details.”

The court did not err by overruling the appellant’s objection. The appellant’s attorney, on cross-examination, brought out details of the prosecutrix’s description of her assailant; therefore, the State was entitled to show, by way of corroboration, the description which the prosecutrix had given to the investigating officers.

VI

The appellant insists that the following comments made by the prosecuting attorney during the State’s closing argument were prejudicial and were erroneously permitted.

From the record:
“MR. BLACK: Somebody tell me this:
Where is Angela (Alice) Stewart?
“MR. PARKER: Judge, I object to that and ask the Judge to charge the jury not to consider that. It’s improper argument.
“MR. BLACK: Reply in kind, Your Hon- or.
“THE COURT: Overruled.
“MR. BLACK: Is she unavailable? No, not to him.
“MR. PARKER: Judge, I object to that whole line of argument, and assign as grounds that she is equally available to him as she is to me.
“THE COURT: Well, the Court is of a contrary opinion, so I’ll overrule you.”

The availability of a witness to one or the other of the parties is determined initially by the party’s superior knowledge of the existence and identity of the witness. Henry v. State, Ala.Cr.App., 355 So.2d 411. Additionally, the relationship between the witness and the party that would reasonably be expected to affect the witness’ personal interest in the outcome of the case is another factor to consider in determining to whom a witness is available. Brown v. State, 50 Ala.App. 471, 280 So.2d 177.

Whether a witness is available or accessible within the meaning of the rule prohibiting comment upon the failure of a party to call or examine a witness does not mean availability or accessibility for subpoena purposes, but rather a particular party’s superior knowledge of the existence, identity, and expected testimony of the witness. Henry, supra; Rueffert. v. State, 46 Ala.App. 36, 237 So.2d 520.

In the case at bar, the appellant was the party who interjected the witness’ name into the trial by testifying that he had been at the witness’ home on June 14, 1978, and June 22, 1978. Also, he stated that he had visited her on a day to day basis for some time. These facts indicate that the appellant possessed the peculiar knowledge, from June 1978, throughout his four appearances, of the existence, identity, location, and expected testimony of Miss Stewart. Additionally, their relationship, by the appellant’s own admission, was more than mere friendship. Under these circumstances, we find that the trial court did not err in permitting the prosecuting attorney to comment on the availability of the witness.

Regarding the second complaint, the following portion of the record is applicable:

“MR. BLACK: What does she get? She gets to come into court to three trials, which takes just as much of her time all three times, which is just as much dread on her part of coming down here.
“MR. PARKER: If Your Honor please, I object to that as an improper argument and it's designed to prejudice and bias the jury against Charlie McMorris. There’s no evidence as to what he’s saying at this point.
“THE COURT: Overruled.
“MR. PARKER: If Your Honor please, I object. I did not call her a liar. I think it’s improper to say that I did call her a liar.
“MR. BLACK: When you say she’s colored her testimony and changed it to mislead the jury, if that’s not calling somebody a liar I don’t know what .it is.
“MR. PARKER: I object to this argument by Mr. Black.
“THE COURT: I'll overrule it.
“MR. BLACK: Then she gets to come in here and testify — You figure out her testimony in this trial and the other two and I’ll say you’ve come up to 10 hours of testimony.
“MR. PARKER: We object to his opinion about that.
“THE COURT: Overrule it.
‘MR. BLACK: One thing about this whole episode, she’s not going to be able to forget it. It’s going to wake her up at night in her nightmare.
“MR. PARKER: We object to that. There’s nothing in the evidence about it. It’s an attempt on the part of the prosecutor to attempt and to bias the jury against Charlie McMorris. He’s arguing something that’s not in evidence.
“THE COURT: Overruled.”

The appellant alleges the foregoing portion of the prosecutor’s argument was a reference to the fact that the appellant is a black male, and the court did not instruct the jury that arguments are not evidence.

At the outset, we must frankly say that we fail to see in the above comments any direct or indirect reference concerning the appellant’s race. Further, the appellant, during his cross-examination of the prosecutrix, attempted to impeach and discredit her testimony. The inference from such cross-examination was that the prose-cutrix had testified falsely. Under these circumstances, we do not believe that the prosecuting attorney’s comment was improper. Further, we note from the transcript of evidence that the trial court admonished the jury in the following language:

“THE COURT: Ladies and gentlemen, let me say this: In arguing the case the lawyers may interpret the law as they see it or they may draw any conclusions that they can draw, any reasonable conclusions or any assumptions. What they say is not evidence. You, ultimately, will determine where the truth lies and what the facts are.” [Emphasis added]

Consequently, we find that the appellant’s contention is not supported by the record.

Also, it is our judgment that there was no prejudicial effect of a cumulative nature shown in the foregoing comments.

VII

It is appellant’s final contention that the trial court prematurely, and sua sponte, gave the jury an “Allen charge” prior to their deliberations. In addition, he says that the charge did not restate the burden of proof and placed undue pressure upon the jury to reach a verdict. The charge reads as follows.

“I might say this: Some of you may have heard me say this once this week. There is not going to be a better jury selected in this case than sits here now. There’s not going to be a smarter one next month or the month after. There’s not going to be—the facts aren’t going to be any different. The facts are not going to change. You’re going to have the same lawyers, the same defendant. Both the State and the Defendant in this case want a verdict reached. So, I feel sure that all of you feel like that, if it’s possible you’ll reach a verdict. Are there any exceptions?
“MR. BLACK: No, sir.
“MR. PARKER: Judge, I would just like to except to that last statement that the Court made.
“THE COURT: If it’s possible, you will reach a verdict?
“MR. PARKER: No, sir, I mean the entire thing about the facts are going to be the same and all that.
“THE COURT: All right, I overrule.”

The general rule in Alabama has been that it is not improper for the trial court to urge upon the jury the duty of attempting to reach an agreement or verdict as long as the judge does not suggest which way the verdict should be returned. Evans v. State, Ala.Cr.App., 338 So.2d 1033; Cook v. State, Ala.Cr.App., 333 So.2d 855, and cases cited therein. Whether such an instruction should be given to the jury is addressed to the sound discretion of the trial court. Hale v. U. S., 435 F.2d 737 (5th Cir.)

In the present case, the trial court did not threaten or coerce the jury to reach an agreement, therefore, we find no error in the trial court’s instruction. See generally, Cross v. City of Decatur, Ala.Cr.App., 355 So.2d 405; Strickland v. State, Ala.Cr.App., 348 So.2d 1105.

VIII

We have examined the evidence in this case and have found that the evidence was sufficient for the jury to have concluded that the appellant committed the act charged, therefore, the trial court properly refused appellant’s requested charge and properly denied his motion for a new trial. Long v. State, Ala.Cr.App., 370 So.2d 354; George v. State, Ala.Cr.App., 362 So.2d 1327.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Charlie Frank McMORRIS. (Re: Charlie Frank McMorris v. State of Alabama).
    80-105.
    Supreme Court of Alabama.
    Feb. 5, 1981.
   FAULKNER, Justice.

Writ denied. No opinion.

TORBERT, C. J., and ALMON, EMBRY and BEATTY, JJ., concur.

MADDOX, JONES, SHORES and ADAMS, JJ., dissent.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Joseph v. AGAR, Respondent.
    No. 58005.
    Supreme Court of Florida.
    Oct. 9, 1980.
    Rehearing Denied Feb. 5, 1981.
    David G. McGunegle, Branch Staff Counsel, Orlando and John A. Boggs, Asst. Staff Counsel, Tallahassee, for complainant.
    Joseph V. Agar, in pro. per., respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against the respondent, Joseph V. Agar, a member of The Florida Bar, concerns the respondent’s knowingly presenting false testimony before a circuit court. Respondent has filed a petition to review the referee’s findings and recommended discipline of four months’ suspension. The Florida Bar has filed a cross-petition for review and seeks disbarment. We have jurisdiction pursuant to article V, section 15, Florida Constitution.

In 1978 Agar was engaged to represent the husband in an uncontested divorce. Agar’s secretary informed the wife upon inquiry over the phone that the wife could appear as witness to the husband’s residency, a statement that later proved to be contrary to the apparent practice of the circuit court judge assigned the case. The wife did not learn of this obstacle until so informed by Agar just before entering the courtroom. Despite knowing her to be the wife, Agar called her to testify, which she did, giving a false name, concealing the fact of marriage, and stating that she knew the husband because she did bookkeeping for him. Both the husband and the wife, who were granted the divorce, later testified that it was Agar who had suggested that the wife falsely represent herself and her relationship with the husband to the court. Agar never informed the court of the fraud.

The referee found that Agar “did (1) arrange, either actively or passively, for a witness to falsely testify before a court of competent jurisdiction, and (2) presented or called a witness on behalf of his client who he had good reason to know would falsely testify before a court of competent jurisdiction, and (3) as an officer of such court failed to immediately notify the judge of that court of such false testimony or in the alternative to withdraw his prayer for relief.”

The referee recommended that Agar be found guilty of violating the Florida Bar Code of Professional Responsibility, Disciplinary Rules 1 — 102(A)(4), 7-102(A)(4), 7-102(A)(6), 7-102(A)(7), and 7-102(B)(2), and his oath as an attorney.

It is relevant that the state attorney brought criminal charges against Agar in this matter for perjury in violation of sections 777.011 and 837.02, Florida Statutes (1977), and Agar subsequently entered a plea of nolo contendere to the lesser included misdemeanor offense of solicitation to commit perjury.

The referee recommended that Agar be suspended from the practice of law for four months and thereafter until he shall prove his rehabilitation and that he be assessed the costs of the proceeding. In his petition for review, Agar urges this Court to find him not guilty of all violations alleged or, in the alternative, that punishment be limited to public or private reprimand. The Florida Bar, on the other hand, urges in its cross-petition for review that Agar be disbarred for the alleged violations.

It is clear from the record that Agar knew the testimony in question on behalf of his client was false and that he did nothing to reveal the fraud to the court. It matters not, despite respondent's arguments to the contrary, whether the testimony is capable, in and of itself, of affecting the outcome of the case in question. What is relevant is that respondent, by his own admission, allowed his client to perpetrate a fraud upon the court and, according to the testimony of his client and the false witness, was the one who suggested the fraud in the first instance.

We agree with The Florida Bar that a punishment of four months’ suspension is not in keeping with the gravity of this conduct.

This Court has not changed its attitude since Dodd v. The Florida Bar, 118 So.2d 17 (Fla.1960), in which we said:

No breach of professional ethics, or of the law, is more harmful to the administration of justice or more hurtful to the public appraisal of the legal profession than the knowledgeable use by an attorney of false testimony in the judicial process. When it is done it deserves the harshest penalty.

Id. at 19. The punishment in Dodd was disbarment, and we believe that must be the punishment here. We have reviewed those disciplinary cases called to our attention by The Florida Bar and respondent concerning use of false testimony by an attorney, and we acknowledge that in some cases the punishment has been significantly less than that sought by The Florida Bar here. However, to the extent that those cases with lighter punishments do not substantially differ from the instant case in the degree of participation by the attorney or some other significant factor, they represent the exception to the general rule of strict discipline against deliberate, knowing elicitation or concealment of false testimony.

We have reviewed the record and agree with the referee’s findings and recommendation of guilt. For the reasons expressed above, we find that the recommended discipline should be disbarment, and, accordingly, Joseph V. Agar is hereby disbarred. The disbarment shall be effective on the thirtieth day following the filing of this opinion, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. The filing of a motion for rehearing shall not alter the effective date of this disbarment.

Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $273.

It is so ordered.

ADKINS, Acting C. J., and OVERTON, ENGLAND and ALDERMAN, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

I agree with the recommendation of the referee, that Agar be found guilty of violating the Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(4), 7-102(A)(4), 7-102(A)(6), 7-102(A)(7), and 7-102(B)(2) and his oath as an attorney.

However, I feel that the appropriate discipline in this case would be a two year suspension from the practice of law.

      . See, e. g., The Florida Bar v. Hagglund, 372 So.2d 76 (Fla.1979) (reprimand); The Florida Bar v. Morales, 366 So.2d 431 (Fla.1978) (disbarment); The Florida Bar v. Pearce, 356 So.2d 317 (Fla.1978) (reprimand); The Florida Bar v. Brooks, 336 So.2d 359 (Fla.1976) (reprimand); The Florida Bar v. King, 174 So.2d 398 (Fla.1965) (reprimand); The Florida Bar v. Langford, 126 So.2d 538 (Fla.1961) (eighteen months’ suspension).


author: OVERTON, Justice.

text:
    Johnny Lee SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 58607.
    Supreme Court of Florida.
    Nov. 20, 1980.
    As Revised on Denial of Rehearing March 17, 1981.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for respondent.
   OVERTON, Justice.

This is a petition for certiorari to review the Fifth District Court of Appeal’s decision reported as Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980), where the court approved Florida Standard Jury Instruction, Criminal Cases, 2.07, concerning petitioner’s unexplained possession of recently stolen property. The District Court of Appeal determined that its holding was in accordance with this Court’s decision in State v. Young, 217 So.2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969), but noted that its decision conflicted with the First District Court of Appeal’s holding in Palmer v. State, 323 So.2d 612 (Fla. 1st DCA 1975), cert. denied, 336 So.2d 108 (Fla.1976). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (prior to April 1, 1980).

The instant record reflects that petitioner made no attempt to explain his possession of the stolen property at the time of his arrest. Petitioner contends that instruction 2.07 violates his fifth amendment right to remain silent. We answered this exact question in State v. Young and held that the instruction was proper. We reaffirm our holding in State v. Young which is in accord with the United States Supreme Court decisions on the same issue. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).

We resolve the conflict by disapproving the First District’s holding in Palmer v. State and approving the opinion of the Fifth District in the instant case.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author: ADKINS, Justice. ALDERMAN, Justice,

text:
    STATE of Florida, Petitioner, v. John Henry MORSMAN, Respondent.
    No. 54632.
    Supreme Court of Florida.
    Jan. 8, 1981.
    Rehearing Denied March 19, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for petitioner.
    Jack 0. Johnson, Public Defender and James R. Wulchak and P. Douglas Brink-meyer, Asst. Public Defenders, Bartow, for respondent.
   ADKINS, Justice.

Defendant was charged with felonious possession of marijuana. After his motion to suppress evidence was denied, he pled nolo contendere, reserving his right to appeal denial of the motion. The court of appeal reversed, holding that the search and seizure were illegal. Morsman v. State, 360 So.2d 137 (Fla. 2d DCA 1978). This cause is here on grounds that the lower court decision allegedly conflicts with decisions of this Court and the Florida Fourth District Court of Appeal. Art. V, § 3(b)(3), Fla.Const. We affirm.

One of the defendant's neighbors told a second neighbor that there were marijuana plants growing in defendant’s backyard, and the second neighbor called the sheriff’s department. Deputy Sheriff Skeen investigated the neighborhood complaint. When no one answered Deputy Skeen’s knock on defendant’s front door, he walked around the house and saw the marijuana plants growing in the backyard just as the neighbors had reported. The officer then seized the plants. It appears from the record that the plants could not be seen from the street or the front yard, although the yard was not fenced in.

The state’s argument is that an officer may seize contraband which is in plain view without obtaining a warrant. However, this doctrine applies only when the officer has a legal right to be at his viewpoint. The officer had no right to be in the respondent’s backyard, so he could not legally seize the marijuana plants.

Furthermore, the information providing the basis for the police investigation of defendant’s house and yard was received from a neighbor who had heard it from another neighbor. Dependability of such second-hand hearsay is dubious. When hearsay makes up the basis of a complaint, the warrant clause requires that the evidence be presented to a detached magistrate to decide if the hearsay information gives probable cause to conduct a search. If it does, the magistrate may then issue a search warrant. House v. State, 323 So.2d 659 (Fla. 1st DCA 1975). Under this procedure, a person is protected from an unreasonable search in violation of his Fourth Amendment rights. It is impossible to tell from the record before us whether the information conveyed to the police by the second neighbor was in any way worthy of belief at the time it was conveyed. It is exactly this type of situation which mandates the protection of the Fourth Amendment.

When the officer went to respondent’s front door to investigate the neighborhood complaint, he was not infringing upon respondent’s privacy. Under Florida law it is clear that one does not harbor an expectation of privacy on a front porch where salesmen or visitors may appear at any time. State v. Detlefson, 335 So.2d 371 (Fla. 1st DCA 1976); State v. Belcher, 317 So.2d 842 (Fla. 2d DCA 1975). However, the backyard of a residence is more private because passersby cannot generally view this area. In Pixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974), this concept was extended to the backyard of a four-unit apartment building. Although not as exclusive as the backyard of a private residence, the backyard was not a common passageway normally used by tenants or businessmen who might approach the tenants. Accord, Olivera v. State, 315 So.2d 487, 490 (Fla. 2d DCA 1975).

In Huffer v. State, 344 So.2d 1332 (Fla. 2d DCA 1977), a backyard hothouse was searched for contraband. The Court held that the search was an illegal privacy invasion because, among other things, the hothouse was located behind the residence and was not plainly visible to the public.

The officers in State v. Ashby, 245 So.2d 225 (Fla.1971) (cited by the state), entered a yard without a warrant and seized items legally. However, they first observed the stolen car and trailer from the street. While officers were legally on the property to seize the items as evidence of a felony, they found a stolen boat and motor which they lawfully confiscated. The defendant had been arrested prior to any seizure. In the present case, respondent had not been arrested, and no circumstance allowed the officer to do more than knock at respondent’s front door. The officer’s venture into the private backyard was an illegal attempt to verify neighborhood rumors. There is no conflict.

Our recent- opinion in Norman v. State, 379 So.2d 643 (Fla.1980), addresses privacy expectations in areas of property. Property rights should be considered in determining whether an individual’s expectations of privacy are reasonable. One who controls property, whether owner or tenant, will in all likelihood have a legitimate expectation of privacy by virtue of his right to exclude. Respondent’s privacy expectation in the backyard was valid where objects placed there were not visible from outside.

This case can be distinguished from Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978) (cited by the state), by the different points from which officers viewed marijuana growing. In Lightfoot, the policeman first saw the marijuana from a neighbor’s yard. The view was unobstructed, evidencing no expectation of privacy from that point. Observation in the current case was from within defendant’s backyard. Since there is no information in the record that the plants were visible from outside the yard, there was a strong expectation of privacy indicated, and the search and seizure were improper. When there is no legal right to observe an article of contraband, it is illegal to seize the article. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The district court commented that the officer’s view of the plants only gave probable cause to get a search warrant. However, we feel that the holding in Purcell v. State, 325 So.2d 83 (Fla. 1st DCA 1976) precludes that possibility. The Purcell court correctly held that a preceding illegal search cannot furnish probable cause to support a subsequent search warrant. As noted above, it is possible that the neighbor’s report may have provided probable cause, but this cannot be ascertained from the record.

The defendant showed that the plants were located and seized without a warrant, at which point the burden shifted to the state to justify the search and seizure. Raffield v. State, 351 So.2d 945 (Fla.1977); reversed on other grounds, 362 So.2d 138 (Fla. 1st DCA 1978). The plants were not open to view. There were no exigent circumstances to allow the officer to enter defendant’s backyard and seize the marijuana plants to prevent destruction or removal of evidence. The policeman had time to talk to the neighbor who had actually observed the marijuana to get facts to give probable cause to search. Then he could have tried to obtain a search warrant. The shortcut taken by skipping the application for a warrant was unjustified and violated defendant’s Fourth Amendment right to be free from an unreasonable search and seizure.

The cases cited as being in conflict with the decision of the district court of appeal, are distinguishable. The writ of certiorari is, therefore, discharged.

SUNDBERG, C. J., and BOYD and ENGLAND, JJ., concur.

ALDERMAN, J., dissents with an opinion with which OVERTON, J., concurs.

ALDERMAN, Justice,

dissenting.

I disagree with the majority’s conclusion that the officer had no right to be in Mors-man’s backyard where he made the plain view sighting of the marijuana plants growing in Morsman’s backyard. The seizure of this property in plain view involved no invasion of Morsman’s privacy and is presumptively reasonable. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (April 15, 1980). As conceded by the majority, the officer had the legal right to go to Morsman’s front door and to inquire about the neighborhood complaint. When no one answered the front door, he walked around to the back of the house to see if anyone was there. It was at this time that he observed the marijuana plants.

I believe that an officer who, as in the present case, goes to a residence in response to a neighborhood complaint, knocks on the front door and gets no response may legally walk around to the back of the house, which in this case was not fenced, to see if anyone was there or to knock on the back door. The officer • is not trespassing when he walks around to the backyard for these purposes, just as he was not trespassing when he went to the front door. He did not go to the back of the house to look for or to seize the marijuana plants. He merely saw them in plain view while he was legally in Morsman's yard.

In a decision rendered subsequent to the present decision, the Second District expressed qualms about its decision now before us for review and said: “[W]e have serious reservations about the proposition that a person has an expectation of privacy in contraband in plain view in a backyard protected only by a chain link fence.” Rickard v. State, 361 So.2d 822, 823 (Fla. 2d DCA 1978).

To claim violation of his fourth amendment right to be free from an unreasonable search and seizure, it was incumbent upon Morsman to establish that he had a reasonable expectation of privacy. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 1371 (June 25, 1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The exposure of these marijuana plants growing in his unfenced backyard to the plain view of his neighbors evidenced that Morsman did not have any reasonable expectation of privacy regarding these plants. He has failed to establish any intention to keep these plants to himself. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). See Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978), wherein the District Court of Appeal, Fourth District, concluded that a person who keeps marijuana plants in open view in his backyard in plain view of a neighbor has no reasonable expectation of privacy in these plants.

OVERTON, J., concurs.


author: BOYD, Justice. OVERTON, Justice, ALDERMAN, Justice,

text:
    Don A. ADAMS, Petitioner-Appellee, v. Ernest P. MURPHY and Louie L. Wainwright, Respondents-Appellants.
    No. 57451.
    Supreme Court of Florida.
    Jan. 29, 1981.
    Rehearing Denied March 18, 1981.

      Joseph F. McDermott, St. Petersburg, for petitioner-appellee.
    Jim Smith, Atty. Gen. and Benedict P. Kuehne and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for respondents-appellants.
   BOYD, Justice.

This cause is before the Court on the certificate of the United States Court of Appeals for the Fifth Circuit that a question of Florida law upon which there is no controlling precedent is determinative of the instant appeal pending in that court. Adams v. Murphy, 598 F.2d 982 (5th Cir.1979). We have authority to answer the certified question by written opinion. Fla. R.App.P. 9.510.

Adams was charged with the crime of perjury in violation of section 837.02, Florida Statutes (1973). It was alleged that he had lied to a grand jury. At trial, Adams’ attorney requested that the court instruct the jury on the crime of attempt to commit perjury. The court gave the requested instruction and the jury returned a verdict finding Adams guilty of attempted perjury.

On appeal, the judgment of conviction of attempted perjury was affirmed, per cu-riam, without opinion. Adams v. State, 320 So.2d 58 (Fla. 4th DCA 1975). Adams then sought review in this Court. The Court initially issued the writ of certiorari but later determined that it lacked jurisdiction. The writ was discharged. Adams v. State, 339 So.2d 214 (Fla.1976). A subsequent petition for writ of habeas corpus, filed in this Court, was denied.

The case is pending in the Fifth Circuit on appeal from an order of the United States District Court for the Middle District of Florida, which granted Adams relief on his petition for writ of habeas corpus. The district court ruled that the Florida trial court’s instruction on and judgment of conviction of the nonexistent offense of attempted perjury denied due process. The United States Court of Appeals has certified the following question: “Is attempted perjury in an official proceeding a criminal offense under the laws of Florida?”

Section 837.02, Florida Statutes (1973), provides:

Whoever being lawfully required to depose the truth in any proceeding in a court of justice, commits perjury, shall, if the perjury is committed on the trial of an indictment for a capital crime, be guilty of a felony of the first degree, punishable as provided in § 775.082, § 775.083, or § 775.084; and if committed in any other case, guilty of a felony of the second degree, punishable as provided in § 775.082 or § 775.083.

Thus the statute forbids, but does not fully define, the crime of perjury. In such circumstances, it is appropriate to look to the common law for the definition of the crime. Carnley v. State, 88 Fla. 281, 102 So. 333 (1924).

In the decisional law of Florida, perjury is defined as the willful giving of false testimony under lawful oath on a material matter in a judicial proceeding. E.g., Gordon v. State, 104 So.2d 524 (Fla.1958); Miller v. State, 15 Fla. 577 (1876).

Appellees-respondents, officials of the State of Florida, argue that there is such a crime as attempted perjury. They suggest that the existence of such a crime is logically plausible for the following reasons. An attempt consists of a specific criminal intent to commit the crime and an overt act beyond preparation toward that end. Therefore, one who intentionally testifies falsely under oath, unaware that the testimony is not material or that the person administering the oath has no authority to do so or that the proceeding is not an official judicial proceeding, commits the crime of attempted perjury.

Appellees-respondents correctly state that an attempt to commit crime consists of two essential elements: a specific intent to commit the crime and an overt act, beyond mere preparation, done towards its commission. Turner v. State, 100 Fla. 1078, 130 So. 617 (1930); Gustine v. State, 86 Fla. 24, 97 So. 207 (1923). The intent and the act must be such that they would have resulted, except for the interference of some cause preventing the carrying out of the intent, in the completed commission of the crime. The State of Florida has incorporated this definition in its general attempt statute:

Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration, or is intercepted or prevented in the execution of the same, shall, when no express provision is made by law for the punishment of such attempt, be punished as follows:

§ 776.04, Fla.Stat. (1973). Thus the state officials’ argument is that where the intent and the overt act of falsely testifying are shown, but the crime is not completed because one of the other elements is lacking, then the facts establish the crime of attempted perjury.

Even though we have a broadly applicable general attempt statute in Florida, there are some crimes of which it can be said that the attempt thereof simply does not exist as an offense. See, e. g., State v. Thomas, 362 So.2d 1348 (Fla.1978) (attempted possession of burglary tools is not a crime); King v. State, 317 So.2d 852 (Fla. 1st DCA 1975) (attempted uttering of a forged instrument is not a crime).

In King v. State, the defendant was charged with uttering a forged instrument. At trial, he asked that the jury be charged on attempt pursuant to Florida Rule of Criminal Procedure 3.510. The court refused. The defendant was convicted and on appeal assigned the refusal to instruct as error. The appellate court said: “If a crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime.” Id. at 853. Applying this principle, the court held that under Florida law there is no offense of attempted uttering of a forged instrument, and therefore the refusal to charge on attempt was proper.

This view of the nature of criminal attempts was also expressed in Hutchinson v. State, 315 So.2d 546 (Fla.2d DCA 1975), where the state prosecuted a solicitation as an “attempted conspiracy.” The court analyzed the general attempt statute. The court prefaced its analysis as follows:

In construing a criminal statutory provision, the primary function of the court is to give effect to the intent of the legislature; and in so doing, each section of the criminal code should be considered in making this determination. But it is also axiomatic that statutes creating and defining crimes cannot be extended by construction or interpretation to punish an act, however wrongful, unless clearly within the intent and terms of the statute. Bradley v. State, 1920, 79 Fla. 651, 84 So. 677.

Id. at 547. The court then observed that the general attempt statute by its terms can apply to any offense, but went on to explain why conspiracy is an exception:

We note that § 776.04 purports to prohibit an attempt to commit any offense prohibited by law. Since there is no express limitating language as to what crimes may or may not be criminally attempted, the statute would appear to prohibit attempted conspiracy if it were not for the remaining language of the statute, and the history and judicial construction of the crime of attempt. Construing the words “and in such an attempt does any act toward commission of such an offense but fails in the perpetration, or is intercepted or prevented in the execution of the same,” we think the legislature intended to limit attempts to physical acts carried beyond preparation toward proximate accomplishment of what would be a complete crime. In this respect, solicitation and conspiracy are more remote from the actual perpetration of the intended crime than is an attempt to commit it. This conclusion is supported by Florida courts that have interpreted an attempt to consist of two essential elements: 1) a specific intent to commit the crime; and 2) a separate overt ineffectual act done toward its commission; Robinson v. State, Fla.App.3d 1972, 263 So.2d 595; Groneau v. State, Fla.App. 4th 1967, 201 So.2d 599; Gustine v. State, 1923, 86 Fla. 24, 97 So. 207.

Id. at 547-548.

The Florida case that is perhaps most closely analogous to the problem we are presented with now is Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976). There the appellant was charged with, among other things, making a false report of a crime. She was convicted of an attempt to make such a false report. The court compared the problem to that of uttering a forged instrument, discussed above:

Just as the crime of uttering a forged instrument may be proven merely by an attempt to negotiate one, Harrell v. State, 79 Fla. 220, 83 So. 922 (1920), so it would seem, the offense of making a false report is fully proven by demonstrating an attempt to convey false information to a police officer. Thus, the holding of the First District in King v. State, 317 So.2d 852 (Fla.App.1st 1975) which we followed in Jackson v. State, 328 So.2d 457 (Fla.App. 4th 1976) that there is no offense in Florida of attempted uttering of a forged instrument because “there can be no attempt to commit ...” a crime which “is itself an attempt to do an act or accomplish a result” .. . 317 So.2d at 853, directly applies. See People v. Schmidt, 76 Misc.2d 976, 352 N.Y.S.2d 399, 403 (Crim.Ct.1974) (no offense of “attempted ‘interference with governmental administration’ ”).

We find this reasoning to be directly applicable to the question of whether there can be an attempt to violate section 837.02, Florida Statutes (1973).

We are not persuaded by the argument that the crime of attempt can be extended to cover attempted perjury. The argument is based on the hypothetical where the intention to perjure is frustrated by the absence of an element extraneous to the offender’s actions, such as the authority of the person administering the oath. In the typical case of a criminal attempt, the factor distinguishing the attempt from the completed crime is that the intended criminal result, an element of the completed crime, was not achieved. In a case, for example, of murder, or robbery, or arson, there is an interference or intervention preventing the consummation of the criminal intent: the victim did not die, or the robber did not get away with any money, or the fire went out without causing damage. The absence of the element of a criminal result is different from the absence of an element extraneous to the offender’s conduct, such as the element of the authority of the person administering the oath.

The lack of such elements of the crime of perjury as the materiality of the testimony, the lawfulness of the oath, or the official judicial nature of the proceeding is not, we think, what is contemplated by the common law and statutory concepts of failure, intervention, interception or prevention. When the elements of materiality, lawful oath, and official judicial proceeding are established, the crime of perjury is fully proven by an “attempt” to commit perjury. That is, it is fully proven by the overt act of a willful false statement. That the false statement be believed is not an element of the crime of perjury. Miller v. State, 15 Fla. 577 (1876). Thus no criminal result such as a miscarriage of justice need be proved to establish the crime. As in Silves-tri, the crime is fully proven by showing an “attempt” to commit the crime. We conclude that there can be no crime of attempted perjury.

We answer the certified question in the negative. We direct the Clerk of the Court to return the case file and transmit a true copy of this opinion to the United States Court of Appeals for the Fifth Circuit.

It is so ordered.

SUNDBERG, C. J., and ADKINS, J., concur.

OVERTON, J., concurs in part and dissents in part with an opinion.

ALDERMAN, J., dissents with an opinion, with which ENGLAND and MCDONALD, JJ., concur.

OVERTON, Justice,

concurring in part, dissenting in part.

I concur in the finding that attempted perjury is not a crime, but, under the facts of this case, I would advise the Fifth Circuit Court of Appeals that this cause must be remanded for a new trial and that the defendant should not be discharged.

By his counsel, the defendant in this cause directly induced the trial court to include attempted perjury as a lesser included offense. He now contends he is entitled to a discharge because the judge granted this request and the government failed to object. Our criminal justice system will reach a new height in ridiculousness if a defendant through his counsel can cause erroneous verdict choices or alternatives to be presented to the jury and then walk free because of the problem he created. This is not justice and should not be allowed under any circumstances. At most, the defendant is entitled to a new trial.

ALDERMAN, Justice,

dissenting.

Where there is an intent to commit perjury and there is an overt act of falsely testifying but the crime is not completed because one of the essential elements of the crime of perjury, such as materiality, is lacking, the facts establish attempted perjury. The majority explains the elements of perjury and the definition of attempt, yet, inconsistently with its definitions, concludes that the crime of perjury is fully proven by an attempt to commit the crime of perjury and that, therefore, there is no such crime of attempted perjury. This cannot be true because if materiality or the authority of the person administering the oath is lacking, then there can be no crime of perjury. However, if any one of these particular elements is lacking, yet defendant has formulated an intention to commit perjury during an official proceeding and has done a physical act intended to accomplish the commission of the crime other than mere preparation to commit the offense but has failed in the actual commission of the offense, then he has committed attempted perjury. I would, therefore, answer the certified question in the affirmative.

ENGLAND and McDONALD, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Samuel B. BERGER, Respondent.
    No. 59651.
    Supreme Court of Florida.
    Feb. 5, 1981.
    Rehearing Denied March 18, 1981.

      Harris K. Solomon, Bar Counsel, Fort Lauderdale, and Stanley A. Spring, Staff Counsel, Tallahassee, for complainant.
    Samuel B. Berger, in pro. per.
   PER CURIAM.

This is a Florida Bar disciplinary proceeding in which Samuel B. Berger is charged with collecting a clearly excessive fee, failure to protect the interest of his client upon withdrawal, failure to refund unearned fees, and failure to maintain complete records. We have jurisdiction, approve the findings and recommendations of the referee, and suspend respondent for a three-year period.

The record reflects the following. In 1976, Ms. Sarah Callan retained respondent to represent her in a medical malpractice action. No fee arrangement was made initially although Ms. Callan, through installments, paid respondent a total of $600 for what she believed was to be used as costs. Some months later the parties entered into a contingency fee agreement, and respondent filed suit on Ms. Callan’s behalf. After doing nothing to forward the case for a period of months and without informing Ms. Callan, respondent withdrew and referred the case to another attorney. He never refunded or accounted for any of the funds forwarded to him.

The referee found:

that the $600 payment made by Complainant was a deposit toward costs to be incurred in connection with Complainant’s medical malpractice action. If the $600 was in fact a fee charged by Respondent for representation of Complainant in only the medical mediation portion of the action, as alleged by Respondent in his answer, I find the fee to be clearly excessive and that Respondent failed to properly account to Complainant. If the contingent fee contract superceded [sic] any prior agreement as to a fee to be earned by Respondent, then Respondent would not have been entitled to any fee and must return the balance of the $600 payment less expenses. Otherwise, the fee is clearly excessive (since the fee earned would have been zero.)

The referee recommended that respondent be found guilty of violating his oath as an attorney and of Disciplinary Rules 2-106(A) and (E), 2-110(A)(3), and 9-102(B)(3) and (4). He further recommended that respondent be suspended from the practice of law for a period of three years and thereafter until he proves rehabilitation and for an indefinite period until respondent makes restitution to his client and pays the cost of this proceeding. The referee also recommended that in the event respondent is not readmitted after three years, he be required to retake the Florida Bar examination for admittance.

We have fully considered the record and approve the referee’s findings and recommendations. It should be noted that although respondent filed an answer before the referee, he did not appear either by counsel or in pro se. Respondent filed no brief in this Court. We also note, as did the referee, that respondent has a prior disciplinary record, having been suspended for a one-year period for a prior separate offense. See The Florida Bar v. Berger, 358 So.2d 14 (Fla.1978). Although the prior suspension period has expired, respondent has not yet petitioned for readmittance and consequently remains suspended.

It is hereby ordered that respondent is suspended from the practice of law for an additional three-year period effective from the date of this decision and thereafter until he proves rehabilitation. We direct that respondent make restitution to his client for $463 and pay the cost of these proceedings in the amount of $222.80.

It is so ordered.

ADKINS, Acting C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

      . Art. V, § 15, Fla.Const.

      . We note that Ms. Callan sued and received a $533 judgment against respondent for the money forwarded to him. Callan v. Berger, No. 78-2643 (Fla. Dade Cty. Ct. 1978).


author: McDONALD, Justice. ALDERMAN, Justice,

text:
    Willie REDDICK, Petitioner, v. STATE of Florida, Respondent.
    No. 59086.
    Supreme Court of Florida.
    Feb. 12, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.
   McDONALD, Justice.

We review the opinion of the Fifth District Court of Appeal in Reddick v. State, 380 So.2d 1330 (Fla. 5th DCA 1980), which expressly and directly conflicts with Growden v. State, 372 So.2d 930 (Fla.1979), and Huff v. State, 350 So.2d 123 (Fla.2d DCA 1977), on the same point of law. Art. V, § 3(b)(3), Fla.Const.

Reddick was convicted of robbery with a firearm pursuant to section 812.13(2)(a), Florida Statutes (1975). The trial judge charged the jury on robbery with a firearm, attempted robbery with a firearm, robbery, and attempted robbery. He denied Red-dick’s requested charge on robbery with a weapon because “there is no evidence to support it, it was either a firearm or it wasn’t.”

The Fifth District Court of Appeal distinguished Growden. Growden, however, approved Huff, in which Judge Board-man said: “Thus, if robbery with a weapon is a necessarily lesser included offense of robbery with a deadly weapon, as we believe it is, it follows that the trial court erred in failing to give appellant’s requested instruction.” 350 So.2d at 124. The failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible. See State v. Abreau, 363 So.2d 1063 (Fla.1978). The requested instruction comes within that degree.

To affirm this decision we would have to recede from Growden and Huff. We decline to do so and therefore quash the decision of the district court of appeal with instructions to remand the cause for a new trial.

It is so ordered.

ADKINS, Acting Chief Justice, BOYD and OVERTON, JJ., concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

I do not believe that the opinion of the Fifth District in the present case expressly and directly conflicts with Growden and Huff on the same point of law. As pointed out by Judge Beranek in his opinion for the Fifth District, Growden is distinguishable because in that case the jury was precluded from considering robbery with a weapon, whereas here the instruction given adequately covered this lesser included offense. 380 So.2d at 1332.

I, therefore, conclude that this Court is without jurisdiction and that Reddick’s petition for review should be denied. Art. V, § 3(bX3), Fla.Const.

If we did have jurisdiction, I would approve the decision of the Fifth District.

      . The store manager testified that the robber used a .32 caliber black revolver with a four-inch barrel.