author: BOOKOUT, Judge. TYSON and DeCARLO, Judges,

text:
    Richard GRAHAM v. STATE.
    4 Div. 787.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Rehearing Denied April 22, 1980.

      Myron H. Thompson, of Thompson & Faulk, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   BOOKOUT, Judge.

During the late evening hours of June 29, 1977, Mary Ann James was raped and stabbed to death in her apartment in Dale-ville, Alabama. She had been stabbed at least fifty-seven times. At the time of the crime, the victim was a lieutenant in the Missouri National Guard on active duty at Ft. Rucker, Alabama. The appellant was a warrant officer and likewise stationed there.

The appellant was indicted for the capital offense of “rape when the victim is intentionally killed by the defendant,” § 13-11-2(a)(3), Code of Ala.1975. He first entered a plea of not guilty, but later changed his plea to guilty after his trial counsel engaged in plea bargaining on his behalf. After an extensive colloquy, in camera, pursuant to Boykin v. Alabama, 395 U.S. 238, 89 Ct. 1709, 23 L.Ed.2d 274 (1969), and execution of an Ireland form (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971)), the appellant’s change of plea was accepted by the trial judge. A jury was empaneled for the purpose of allowing the State to present a prima facie case pursuant to § 15-15-24(a), Code of Ala.1975, and the procedure approved in Prothro v. State, Ala.Cr.App., 370 So.2d 740 (1979). The State then introduced evidence which we will summarize below.

Major Anthony Keil was the “Field Officer of the day” at Ft. Rucker on the date of the crime. He saw the appellant talking to the victim at the Officers Club around 10:15 or 10:30 that night. Keil talked to both the victim and the appellant, and when he left the club after about twenty minutes, Graham and Lieutenant James were still talking and drinking together.

Iris Croshaw was the night clerk at the Daleville Inn where the victim resided. On the night of the crime, the appellant came to her office sometime between 10:15 p. m. and midnight and asked for the apartment number of a Mr. Bailey. However, when the appellant received that information, he said that since it was so late he would leave and return the next morning to see Bailey. A map of the apartment complex showing the location of each apartment was displayed on the desk of the office in the presence of the appellant. Lieutenant James’ body was found in her apartment the next day.

Robert Nipper was the appellant’s cellmate in the Dale County jail where the appellant was awaiting trial on the instant charge. The appellant admitted the murder to Nipper and made elaborate plans for Nipper to escape and kill another woman in the same manner. Appellant believed that another identical crime committed while he was in jail would convince the police he was innocent and he would be released from jail. From the record:

“Q. Would you tell the jury what all he [appellant] told you about the James girl?
“A. Well, he told me that he had met her in a bar that night and talked to her, and he went back to drinking and didn’t talk to her no more until later on. He said he was going up to these Daleville Apartments to check on a friend of his coming in from another country, and he had seen her in the parking lot, so he went up there and tried to talk to her again and was trying to pick her up. He said they got to arguing and that’s all he said about it at that time. He cut me off.
“Q. Now, did you on occasion more than once talk to him in regards to that particular ease?
“A. Yes, sir.
“Q. Did he tell you other things about what he wanted you to do?
“A. Yes, sir, we had talked about it for a long time. We made an agreement that I was to escape and go out there and kill another woman just like he did so he could get out. He had wrote down on this paper what he wanted me to do to make it look like the same killer. I don’t have the paper with me now.
“Q. Will you describe what it says?
“A. Well, he told me to stab her at least 50 times, and he was going to give me some of his hair to take and put on the sheet, and he told me to put her in the bathtub and fill it up with water and turn the mattress over and mess up the room to look like it had been robbed or something.”

The appellant gave Nipper the names and addresses of two women he might kill. One worked across the street from appellant at Ft. Rucker, and appellant had obtained the name and address of the other one day when he was at the telephone office and overheard the woman give that information to someone there.

The plans were further detailed by Nipper:

“A. Well, when I got out, I was going to go to North Carolina and stay there and he would give me the name of a trailer park that I could get a job there, and I was to get my social security card and he would give me some school dates and stuff to go get my new social security card with, and I was to—
“Q. Speak up. I don’t believe they can hear you.
“A. I was to send him that new social security card I got and he was going to make me up a false ID, and I was to come back and kill a woman and then go on back to North Carolina and he was to meet me later up there and in — and give me this ID and some money for doing this.
“Q. How much money?
“A. One or two thousand dollars.
“Q. Did you at one time have a microphone hidden about your body?
“A. Yes, sir.
“Q. And this conversation that you’re talking about, in addition to what you said — the other stuff, was that taken down by officers?
“A. Yes, sir.
“A. . . . That’s all that — when this murder happened, he was supposed to get out. He was going to meet me at the Holiday Inn Saturday evening at 6:00 on December the 23rd and he was going to give me one or two thousand dollars and driver’s license and ID, Honorable Discharge, and certificate for a high school G.E.D., and if he didn’t show up there at the time, there is a statue there at Ft. Bragg, and right where this ‘X’ is marked there would be a key down there buried about two inches under the ground and there would be a briefcase in the airport and that key would unlock it there.
“This right here is the name that I was supposed to use; S. A. Grant. I was supposed to say I lived at 71 Marlborough Street, Boston, Mass., and to say I was born on July 28th 1954.
“This says ‘Fairlane Acres, Mobile Home City’ and is where I was supposed to live, and get my social security number _"

The note which the appellant gave Nipper with coded instructions was deciphered and read to the jury by Nipper and was admitted into evidence. However, a transcript of one of their conversations tape recorded from a microphone hidden on Nipper was not admitted at trial. Nipper voluntarily told the police about the appellant’s incriminating statements to him and volunteered to use a microphone concealed on his body to transcribe other conversations with the appellant. The transcript of a later conversation with the appellant which corroborated the testimony of Nipper was admitted at sentencing.

Dale Carter, a criminalist and laboratory director with the State Department of Toxicology and Criminal Investigation, testified as to the scene of the murder and cause of death. The details of the death scene and murder corresponded exactly with the instructions the appellant gave Nipper as how to commit another murder. The body of the victim was found in the bathroom wrapped in sheets and submerged in water. The bedroom had been ransacked, and the contents of bureau drawers had been scattered about the floor. The mattress on the victim’s bed had been turned over and was lying face down. No fingerprints were found indicating to the witness that the contents of the apartment had been deliberately wiped clean or else the intruder had used gloves. Although on first impression a larceny appeared to have taken place, officers found nothing of value missing from the apartment.

The case was submitted to the jury with the understanding that the appellant had entered a guilty plea. The jury fixed punishment at death upon a finding of guilt as mandated by the Alabama, capital felony statute, supra, and the trial judge after a sentencing hearing sentenced appellant to life imprisonment without parole.

A presentence investigation report was submitted to the trial judge by the State on the sentencing hearing. Among other things that report showed that the appellant had been charged in Dale County in 1974 for rape and again in 1978 for a rape-murder. As to the first incident, the report revealed:

“Investigation indicates Graham met a Puerto Rican enlisted woman at a dance at Ft. Rucker. Later that night Graham went to the woman’s mobile home residence at Daleville and pulled the window airconditioning unit from a window and entered the mobile home. The female occupant, Army Private First Class . . . was forced into a bedroom and informed she was to have sex relations with the defendant. [She] refused and the defendant took an electric iron and with the iron’s cord choked [her] until she was unconscious. When [she] awoke, she consented to sex out of fear after Graham slapped her and informed her he would kill her if she did not submit. Later Graham forcibly carried [her] to his mobile home at Daleville, Alabama, and while attempting to force her into the mobile home [she] escaped and called the police.
“Graham was tried for Rape in the Dale County Circuit Court at Ozark, Alabama, on 9-23-74, and the only witness available was the victim. The defendant was found guilty of Assault and Battery and fined $100.00. The victim was upset with the verdict, returned to Puerto Rico, divorced her husband, and changed her name.”

The report likewise showed that the appellant was charged for the April 11, 1978, rape-murder of Donna M. Wilcynski. From the report:

“The victim was a female soldier stationed at Ft. Rucker, Alabama, and she maintained an apartment at Byrd’s Apartments, Ozark, Alabama. Ms. Wil-cynski had a three year old daughter that resided with her at Ozark. The child has been placed, by the Dale County Juvenile Court, with the grandparents in Ohio.
“The scene of the present offense is an apartment complex surrounding an open area known as the courtyard. Several witnesses testified they saw Graham near, or at the door of, Ms. Wileynski’s apartment several times during the hours prior to the victim’s death. Graham approached another woman and requested a date. The victim’s parents reside in Ohio and she had telephone called her parents that date, 4-11-78, and stated she was afraid of some black men that were living nearby and requested she drink with them. Several neighbors stated they heard a long, lingering scream between 11:00-12:00 P.M. on 4-11-78, but no one investigated or called the police.
“At 6:30 P.M. the next day, prompted by a suspicious neighbor, an Ozark policeman went into Ms. Wileynski’s apartment. He found the bedroom torn up and scattered. In the bathroom, the officer found Ms. Wilcynski wrapped in a bedsheet in the bathtub. The three (3) year old child was found, in bed, in her room.
“A state toxicologist examined the body and testified the victim had been stabbed 53 times with 44 slice wounds and 9 stab wounds. The toxicologist conducted a thorough examination of the premises and found several body hairs that were Negroid in Ms. Wileynski’s bed. At the trial, the toxicologist testified Ms. Wilcynski had sexual relations just prior to her death. An analysis of the hairs found was made and compared to hair samples taken by Court Order from Richard Graham’s body. The laboratory technician stated that there were several similarities in the two hair samples.”

Graham was later convicted of first degree murder in the death of Ms. Wilcynski, but that conviction was reversed in Graham v. State, Ala.Cr.App., 374 So.2d 929 (1979), cert. quashed, Ala., 374 So.2d 942. The presentence report continued:

“Graham was returned to jail following his conviction and placed in the maximum security area. Another prisoner by the name of Robert S. Nipper was also serving a sentence at the Dale County Jail in the maximum security area. The defendant Graham and the inmate Nipper were assigned the same two man cell. Nipper engaged Graham into conversation regarding two murder offenses Graham had been arrested for. Nipper stated that Graham’s response was, T did the first job clean, but the second job was a mess and blood was everywhere.’ Nipper further stated that Graham said, ‘The little girl probably messed that up.’ ”

As to Graham’s statements to Nipper concerning the instant offense, the report stated:

“Nipper states Graham related to him, Nipper, that he, Graham, committed the two murders. Apparently Graham encouraged Nipper to escape with some detailed instructions from Graham to commit two rape-murders locally in the same manner as the two charged to Graham. This would lead the authorities to think they had apprehended the wrong man and release Graham. Nipper was to be paid approximately $l,000.00-$2,000.00.
“Nipper issued a written statement that reports Graham stated he followed Lt. Mary Ann James from the club to her apartment and stopped her in the parking lot and encouraged her to have sexual relations with him. The woman refused and Graham assumed she was racially prejudiced. Nipper further related Graham stated he could kill a cop or a prejudiced person as easy as stepping on a roach.
“The victim, Army 1st Lt. Mary Ann James, was normally a resident of Cape Girardeau, Missouri. She was married and the mother of a teenage son. Apparently, she did not know Graham and did not entice or provoke the offense.”

During the sentencing hearing, the State also introduced a report of a handwriting expert who examined the handwriting on the diagram and coded note which Nipper testified was given to him by the appellant. His report concluded that, after comparing samples of Graham’s handwriting to that on the note in question the appellant, Graham, wrote the note.

Also introduced at the sentencing hearing was a transcript of the taperecorded conversation between Nipper and Graham in the Dale County jail. In that transcript Graham and Nipper discussed, inter alia, finding one or two women for Nipper to kill. Graham told Nipper, “there are a bunch of them that live there. Make sure it’s a white girl. Right? Graham again went through the details of the murder so that it would appear similar to the other two. Graham stated that a couple of the women he was considering were living alone because their husbands or boyfriends were in jail with him at that time. From the transcript:

“GRAHAM: I hate to do that to somebody that’s in jail (laugh). Somebody in jail with me!
“NIPPER: That’s life.
“GRAHAM: That would look kind of funny though if a guy found his wife turned up dead in the same way and her husband is in jail with the guy — in the same cell with the guy — who is charged with — that just committed the same kind of murder. (Laughed)
“NIPPER: Yea, that would look kind of bad.”

From the appellant’s guilty plea, from the evidence at trial, and from the evidence presented at the sentencing hearing, there is no doubt as to the appellant’s guilt. It is shockingly apparent from the record that the appellant is a sadistic and vicious rapist and murderer. His actions were premeditated, calculated, and executed in cold blood without the least regard for the value and dignity of human life. The evidence revealed a man charged with a vile and repulsive crime who remorselessly planned the most heinous and atrocious murders of one and possibly two other helpless and innocent victims for the sole purpose of diverting suspicion from himself. That he was able to save his own life through plea bargaining will be seen by some as a gross travesty of justice and by others as a monument to the humane regard for life afforded in a democratic society. But for this court, we must take a dispassionate and objective view of the case as presented to us and determine if any legal errors occurred which would mandate a new trial. This court does not determine guilt or innocence for that was determined in the trial court. It is our duty here to determine if the appellant has shown any legal grounds to successfully challenge the procedure he used to escape the death penalty.

i

Appellant raises the issue of the constitutionality of the Alabama capital felony act, especially the inability of the jury to convict on a lesser included offense. On that as well as other grounds, this court has found the act to be constitutional. Prothro v. State, supra; Beck v. State, Ala.Cr.App., 365 So.2d 985, affirmed, Ala., 365 So.2d 1006 (1978); Jacobs v. State, Ala.Cr.App., 361 So.2d 607, affirmed, Ala., 361 So.2d 640 (1978), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83 (1979). See also: Evans v. Birtton, 472 F.Supp. 707 (S.D. Ala. 1979).

II

The appellant contends his guilty plea was invalid as it was coerced by (1) actions of his trial counsel and (2) the trial court’s denial of a motion for continuance.

A

Appellant asserts on motion for a new trial that his trial counsel were concerned only with his entering a guilty plea and thereby limited their preparation only to such. The record fails to support such a contention by the appellant’s current appellate counsel.

The instant record reveals that trial counsel for the appellant filed the following motions and pleadings in his behalf well in advance of trial:

(1) “MOTION FOR DISCLOSURE,” filed November 3, 1978.
(2) “PLEA IN BAR,” filed November 6, 1978.
(3) “MOTION TO DISMISS INDICTMENT,” filed November 10, 1978.
(4) “MOTION FOR FUNDS AND/OR FACILITIES TO POLL POTENTIAL JURORS OF DALE COUNTY AND FOR OTHER RELIEF,” filed November 13, 1978.

On January 16, 1979, the trial. court granted the appellant’s motion for disclosure and ordered the State to produce all items listed in that motion. It was through that motion that defense counsel discovered the evidence which Robert Nipper was to give at trial and the existence of the transcript and the tape recording which corroborated Nipper’s testimony.

A letter sent to the appellant from one of his trial counsel, George Trawick, three days before trial clearly illustrates the factors he considered in recommending that the appellant plead guilty. That letter was introduced into evidence by the appellant during the hearing on his motion for a new trial. It is in pertinent part as follows:

“This is to confirm in writing the opinions and advice I have previously given you on numerous occasions orally.
“It is my considered opinion that you must accept the results of our plea bargaining sessions in this case. That is to say, it is my professional opinion that in the event you refuse to accept life without parole you will receive the death penalty. Even though an appeal would be automatic from the death penalty, there is no way that I can assure you that such an appeal would result in a reversal or reduction of sentence. On the contrary, all things considered, I am of the opinion that as matters now stand the case is one which likely would not be reversed on appeal.
“In coming to this conclusion I have weighed the following factors: you are already convicted of a similar offense; should you elect to take the witness stand, this conviction could be shown to impeach you as a witness; the state can conclusively show that you were in the company of the deceased during the evening prior to her death; the state can conclusively show that you were at the motel where the homicide occurred; other than by your own testimony, we cannot establish an alibi; even if you should elect to not testify, your previous conviction might be allowed in evidence as tending to establish identity due to the peculiar characteristics of each crime.
“There is grave and dangerous probability that the state would be allowed to introduce a tape recording which we have discovered and played for you. The ef-feet of this recording, in my opinion, would be devastating.
“In summary, as I have clearly told you, it is my considered opinion that your choice is whether you will change your plea to guilty and live or whether you will stand trial and almost certainly be condemned to death. Consequently, I am compelled to urge you in the strongest possible language to allow Mr. McCabe and I to save your life.
“I have explained to you that as a condition of this, you must sign a written confession, to be seen by the Trial Judge and then sealed by him to be opened only in the event it becomes material on a subsequent appeal or other post-trial action. In short, that statement would not be made public in the proceedings before the trial court. The Trial Judge insists, as a condition precedent to reducing sentence from death to life without parole that such statement not only admit the charged offense, but that it recite a factual basis for the acceptance of your plea. Particularly, the Judge has stated that it should recite the method of entry into the lodgings of the deceased.
“As much as I dislike instructing you to furnish such a statement, I am obliged to tell you that it is a matter of life and death so that you have no real or practical alternative.”

The appellant waived his attorney-client privilege and requested Mr. Trawick to testify concerning his representation of the appellant.

Mr. Trawick is a practicing attorney in Dale County with thirty years experience in the practice of law. During that time he has handled between 750 and 1,000 capital cases. He practiced law in Birmingham before moving to Dale County and has had extensive practice in criminal law.

Mr. Trawick testified that no witnesses were called at trial on behalf of the defendant because it was their understanding with the prosecution that “the State would put on a prima facie case, after which Mr. Graham would enter a plea of guilty and would call no witnesses, he would not take the witness stand, and therefore, no witnesses were subpoenaed in his behalf.” He testified that the purpose of the plea bargaining negotiations was to save the life of the appellant.

As to why counsel did not consider filing a motion to suppress the use of the tape recording of the conversation between Nipper and the appellant:

“Because I considered that the motion would probably not be granted, and that the effect of that tape recording ever being played to a jury would be devastating, and I felt that there was a point beyond which I could not push the State and still hope to avoid a trial of the case: in short, to save his life. It was a judgment situation, and that was my judgment about it.”

The appellant had suggested only one witness to his counsel, that being a fellow inmate. Mr. Trawick did not try to locate that witness for the following reasons:

“[W]e had no idea where his whereabouts were, because I considered that his possible use would hurt more than it would help. Mr. Graham felt that he might be able to testify, or that he should be able to testify that this inmate had also been importuned by the authorities to get Mr. Gramam (sic) to make some compromising statement as Nipper had been. Well, we knew for a fact that Nipper had cooperated in that endeavor. We knew for a fact that the authorities investigating the case were moving along that line, and there is no difficulty of proof along that line. I could not see where the fellow inmate would add anything to help Mr. Graham, and I could see where if we called that witness and put him on the witness stand that he could turn out to be a very surprising witness. I have a deep distrust of jailbird witnesses, and quite frankly, I did not make any real effort to locate the man.”

Mr. Trawick testified that he explored with the appellant very thoroughly any evidence of an alibi, and there simply were no alibi witnesses. There likewise were no witnesses that could be used as character witnesses in view of the appellant’s previous conviction on the first degree murder charge arising from the death of Donna Wilcynski. Trial counsel had discussed with the appellant the possible use of character witnesses, some of whom had testified in his previous trial, but the appellant “did not think well of calling them again.”

It is apparent from reviewing the testimony of the appellant’s trial counsel given during the course of the hearing on his motion for a new trial that the appellant has completely failed to reveal any undue coercion by counsel to force an involuntary plea of guilty from him. It is readily apparent that the appellant’s trial counsel had a genuine concern for his client’s life and held a well-founded belief that the State’s evidence was sufficient to support the death penalty should the appellant elect to go to trial on a plea of not guilty. Trial counsel put the facts to the appellant as objectively as possible along with his recommendation, and the appellant voluntarily chose to plead guilty rather than risk going to the electric chair. The Supreme Court of the United States has held that an otherwise valid guilty plea is not involuntary because it is induced by the defendant’s desire to limit the possible maximum penalty to less than that authorized if there is a jury trial. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Supreme Court stated:

“By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after trial. . . .
“While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’ — and permissible — ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ ... It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forego his right to plead not guilty.”
(Citations omitted.)

B

We do not agree with the appellant’s contention that the trial court coerced him into entering a guilty plea by overruling his motion for a continuance. On the date of the appellant’s arraignment on the instant charge, his trial counsel had requested a continuance until final disposition of the appellant’s prior first degree murder conviction which was in the process of being appealed. The appellant therefore contends that since the continuance was not granted he could not testify in the instant trial without fear of exposing the prior conviction to the jury. Consequently, he contends that the trial court left him with no choice but to plead guilty.

A motion for a continuance is addressed to the sound discretion of the trial court whose ruling thereon will not be reversed on appeal absent a showing of abuse of discretion. Rogers v. State, Ala.Cr.App., 365 So.2d 322, cert. denied, Ala., 365 So.2d 334 (1978); Duncan v. State, Ala.Cr.App., 355 So.2d 745 (1978). We find no abuse of discretion on the part of the trial court in refusing to continue the instant case until the prior conviction could have been disposed of on appeal.

Section 12-21-162, Code of Ala.1975, provides in pertinent part:

“As affecting his credibility, a witness may be examined touching his conviction for a crime involving moral turpitude, and his answers may be contradicted by other evidence.”

Had the appellant taken the witness stand, he could have been impeached by showing his prior conviction on the murder charge. The fact that such conviction was being appealed would have no bearing on its use for impeachment purposes. Waters v. State, Ala.Cr.App., 357 So.2d 368, cert. denied, Ala., 357 So.2d 373 (1978). In Waters the denial of a motion for a continuance was challenged on the same ground as here. There, the motion for a continuance was based upon a pending motion for a new trial on a prior conviction in another county which the State would seek to introduce for impeachment purposes if the appellant testified during his current trial. In that case we found no abuse of discretion on the part of the trial judge in denying a continuance, and we reach the same conclusion in the instant case. Appeals and review on certio-rari often take years before a final disposition is made in a criminal case. If the rule were otherwise than announced in Waters, supra, defendants could have cases continued for years until final disposition was made on any prior conviction which could be used for impeachment purposes. Such a rule would be foolhardy and unworkable. It would allow any criminal defendant with prior convictions arising out of his own criminal misconduct to perpetuate appeals in those eases thereby delaying and in some cases evading a trial on his most current misconduct. Such is not the law in this state.

We likewise find no coercion on the part of the trial court in requiring the appellant to make a written admission of his guilt and to “recite a factual basis” for the acceptance of his guilty plea. It is incumbent upon a trial judge in accepting a guilty plea to determine not only that the plea was intelligently and voluntarily made, but that there was a factual basis for that plea. For example, if a defendant is to enter a guilty plea to a charge of robbery, the trial judge should ascertain that the appellant committed a robbery rather than a mere larceny or lesser offense and was not pleading guilty out of ignorance as to the elements of the offense. See: Boykin v. Alabama, supra; Brady v. United States, supra; Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

Here, the appellant’s written statement furnished the trial court with a factual basis to determine that the appellant had committed the crime for which he was charged. Requiring the appellant to make a written admission of his guilt is no more prejudicial to him than the requirement that he stand in open court and make a verbal admission of his guilt on entering a guilty plea. The trial court’s requirement for the written statement was not made to coerce the appellant into pleading guilty. An inquiry had already been made in his behalf to the trial judge to see if such a plea would be accepted. The trial judge merely required, as a condition to his acceptance of the guilty plea, that the appellant acknowledge his guilt in writing. In fact the appellant’s written statement was sealed, was never admitted into evidence in the trial, and was only presented into evidence on the hearing on the appellant’s motion for a new trial. We therefore find no action on the part of the trial court which coerced the appellant into making an involuntary admission of his guilt.

In any event the appellant’s voluntary guilty plea waives any non jurisdictional defect including the denial of a pretrial motion for continuance. Lancaster v. State, Ala.Cr.App., 362 So.2d 271, cert. denied, Ala., 362 So.2d 272 (1978); Barnes v. State, Ala.Cr.App., 354 So.2d 343 (1978).

Ill

The appellant contends that he was ineffectively represented at trial. He bases such contention upon the failure of his trial counsel to talk to witnesses, investigate the facts of the case, or move to suppress the transcript of the appellant’s conversation with his cellmate, Robert Nipper.

We have previously discussed the reasons given by the appellant’s trial counsel for failure to pursue the only witness suggested by the appellant. That witness, which trial counsel referred to as a “jailbird witness,” could have given no testimony concerning the commission of the offense or possible alibi of the appellant. That witness could have only testified as to whether or not the sheriff had attempted to induce him to obtain incriminating statements from the appellant while in jail. Trial counsel’s reason for not pursuing such a witness appears to be valid and reasonable, and we cannot say that his judgment in that regard constituted ineffective assistance of counsel.

We have likewise discussed pretrial motions filed by trial counsel in this case. Those motions show considerable preparation on the part of those attorneys. In fact, had the motion for discovery not been filed and the appellant had gone to trial on a not guilty plea, the surprise testimony of Robert Nipper would have been truly devastating to the appellant. The fact that his trial counsel learned of Nipper’s testimony and the existence of a tape recording, in all probability, saved the appellant’s life.

Likewise, the letter to appellant from his trial counsel, hereinabove set out, indicates great familiarity with the facts and circumstances of the appellant’s case and clearly evidences that his attorneys had investigated the case, obtained and analyzed evidence, and had exercised their professional judgment in making recommendations to him concerning his plea. The appellant has failed to show that his representation by trial counsel was so inadequate and ineffective as to make his trial a farce, sham, or mockery. Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973).

We also fail to find the appellant’s trial counsel to have been ineffective for failure to move to suppress the transcript or tape recording of the appellant’s conversation with his cellmate, Robert Nipper. Appellant’s counsel on appeal contends that the conversation could have been suppressed pursuant to Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

Neither the recorded conversation nor a transcript of that conversation was admitted into evidence in the State’s case in chief. Whether the State intended to introduce either of those items had the appellant entered a plea of not guilty is mere speculation. The State could have very well presented its testimony in such a trial as it did in the instant proceeding by way of Robert Nipper himself as a live witness. In such a case there would have been no violation of the principle set out in Massiah, supra.

The record on the hearing on motion for a new trial shows without dispute that Nipper voluntarily went to the police and informed them of the appellant’s incriminating statements. The appellant had confessed to Nipper and had discussed the possibility of Nipper escaping and committing one or two similar murders for him before any recording was made at the request of law enforcement officers. The State therefore would not have to rely upon a tape recording made by the cellmate in order to present valid evidence of the appellant’s incriminating statements or other evidence connecting him to the crime. See: Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972).

Even if the appellant’s trial counsel had been wrong in his judgment concerning the effect or admissibility of Nipper’s testimony, the mere misjudgment of counsel on such a matter is not sufficient to render the appellant’s guilty plea unintelligent or to entitle him to disavow his admission of guilt. The instant record shows that the appellant’s trial counsel acted within the range of competency required of attorneys representing defendants in criminal cases. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

It was likewise highly competent for the appellant’s trial counsel to advise him of the possibility that his prior criminal acts could be admitted into evidence against him. It has long been the law in this state that prior criminal conduct of an accused of a similar nature to the instant charge is admissible to prove identity, common plan, or design. Gamble, McElroy’s Alabama Evidence, § 69.01, et seq. (3d ed. 1977); Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944). Where a crime has been committed by some novel, peculiar, or unusual means, evidence of recent similar acts or crimes by the accused which were committed by the same means or in the same manner are admissible to prove the identity of the accused as an inference from the similarity of methods. Wilder v. State, 30 Ala.App. 107, 1 So.2d 317 (1941); Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975).

We find a definite legal basis for trial counsel’s conclusion that both Nipper’s testimony and the appellant’s prior similar crimes could possibly be used against him in the event he went to trial on a plea of not guilty. The appellant’s trial counsel believed the State’s case to be strong against his client. Confronted with the choice between life and death, the appellant quite logically chose life. When his plea is viewed in light of the evidence against him, which substantially negates his present claim of innocence, we can find no fault with the advice his trial counsel gave him in recommending the guilty plea. Effective assistance of counsel does not mean that counsel must be without error. What appellant now claims to be error appears to us to have been a wise trial tactic on the part of his trial counsel at the time. Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973).

IV

The appellant’s contention that our review of this case should be governed by Rule 45A, Alabama Rules of Appellate Procedure, is incorrect. Rule 45A has no applicability because there was no imposition of the death penalty in this case. That rule applies, by its express terms, “in all cases in which the death penalty has been imposed.” In any event the “plain error” rule would avail the appellant no relief for we have searched the record and we find no error “plain” or otherwise which would merit a reversal of the appellant’s conviction.

AFFIRMED.

All the Judges concur.

TYSON and DeCARLO, Judges,

concurring specially.

While we wish to make clear to the Bench and Bar of this State that we continue to adhere to the views expressed by both of us in Prothro v. State, Ala.Cr.App., 370 So.2d 740, at page 748 (1979); Youngblood v. State, Ala.Cr.App., 372 So.2d 34, at page 37 (1979); and Evans v. State, Ala.Cr.App., 362 So.2d 1284 (1978), overruled, Evans v. State, Ala.Cr.App., 372 So.2d 37 (1979), nevertheless, we are of the opinion that Judge Bookout has correctly stated the law with reference to the facts and issues disclosed by the record in the instant cause.

We therefore join in the affirmance of this cause.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Richard GRAHAM. (Re: Richard Graham v. State of Alabama).
    No. 79-568.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    Eric A. Bowen of Hemphill & Hayes, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ed Carnes and Nancy Perry, Asst. Attys. Gen., for respondent.
   PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS 403 So.2d 275

PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


author: BOWEN, Judge.

text:
    Keith WHITE v. STATE.
    8 Div. 366.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    On Return to Remand May 5, 1981.
    Rehearing Denied June 23, 1981.
    T. Michael Putnam of Potts, Young & Blasingame, Florence, for appellant.
    Charles A. Graddick, Atty. Gen. and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The nineteen year old defendant was indicted and convicted for buying, receiving or concealing stolen property. He was charged and tried as a Youthful Offender. Sentence was thirty days’ imprisonment in the county jail and two years’ probation.

The defendant appealed his conviction because the trial court imposed a term of incarceration as part of his sentence. The basis for the appeal is that a transcript was not made of the defendant’s trial. This was raised in the trial court by a motion for new trial.

Apparently, the only evidence submitted at the hearing of the motion for new trial, and the only evidence in the record, is an affidavit of Helen Murphy, the official court reporter for the Circuit Judge who tried the defendant. The pertinent portions of her affidavit appear as follows:

“At trial, on February 7, 1980, defendant was represented by attorney John Barnes. When asked by the trial judge whether he wanted me to attend the trial as court reporter, Mr. Barnes apparently said no. I was not called into the courtroom during the trial of defendant, nor is there to my knowledge any notes, memo-randa, or record of the oral testimony given during said trial.”
* * * * * *
“I did not attend, nor do I have any notes pertaining to the trial held on February 7, 1980. To my knowledge, no court reporter attended said trial, nor were any notes made of the testimony when given.”

The defendant contends that due process of law requires a verbatim record of testimony in Alabama Youthful Offender proceedings and that trial counsel’s waiver of or failure to request the presence of a court reporter constitutes incompetent and ineffective assistance of counsel. However, the defendant does not contend, either in brief or in oral argument, that he was denied a fair trial, that any errors were committed during the course of the trial, or that the State’s evidence at trial was insufficient to support the verdict. From the record, it does not appear that the defendant is indigent or required court appointed counsel.

This Court is bound by the record. The record here does not show that the defendant was denied a transcript — only that trial counsel “apparently” waived the presence of a court reporter during trial.

Defendant’s appellate counsel did not attempt to create a record of the proceedings under Rule 10(d) A.R.A.P. providing for a statement of the evidence or proceedings when no report was made' or when the transcript is unavailable. Allegedly this was because the defendant simply did not remember what occurred and was unfamiliar with court proceedings, but this fact does not appear in the record. Defendant’s trial counsel was not contacted or called as a witness at the hearing of the motion for new trial because appellate counsel thought he would be hostile and uncooperative since appellate counsel had alleged trial counsel was incompetent. While there have been implications, there has been no showing that trial counsel would refuse to aid in the “preparation of a statement of the evidence or proceedings from the best available means source” pursuant to Rule 10(d) A.R.A.P. The aid of the trial judge or the district attorney was not sought by appellate counsel in an attempt to comply with Rule 10(d).

Under the present state of the record, we cannot declare that the defendant was denied his constitutional right to appeal and the effective assistance of counsel. On the other hand, we cannot presume the waiver of the right to a transcript on appeal from a silent record under the circumstances here present.

In this situation, we remand this cause to the Circuit Court of Lauderdale County with directions that counsel comply with Rule 10(d) or (e) A.R.A.P. If such compliance is impossible, or insufficient as determined by the trial judge, the reasons for such impossibility or insufficiency, with supporting evidence, shall appear on record.

If the trial judge, in the exercise of her discretion, determines that compliance with Rules 10(d) or (e) is impossible or that the resulting record would be insufficient, then it is ordered that an evidentiary hearing be held to determine the circumstances surrounding the “apparent” waiver of the presence of the court reporter during the defendant’s trial and to determine the facts of the other issues presented in the defendant’s Motion for New Trial.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Judge.

The record on return to remand establishes that the nineteen year old defendant and his father retained Attorney John R. Barnes to represent the defendant on the charge now on appeal. Mr. Barnes is an experienced trial attorney having both prosecuted and defended individuals in criminal trials in his thirty-one years of practice.

Attorney Barnes testified that “(a)fter a conference with Billy White, the father of Keith White (the defendant), in the presence of Keith White, I recommended that we not have a court reporter.”

“Q. Did you specifically ask them whether they wanted the court reporter waived?
“A. Yes, I did, and Mr. White said, ‘That’s up to you.’ ”

Barnes then told the trial judge that a court reporter would not be needed.

Mr. Barnes testified that he waived a court reporter because:

“I thought it best not to have a court reporter at this time. I though I could beat the State from what the Defendant, Keith White, and his father told me.”

Mr. Barnes also testified that what the defendant had told him about the case was not consistent with what the State’s case proved.

David Howard, the Assistant District Attorney who prosecuted the defendant, testified that the defendant gave three different stories as to how he came into possession of the stolen property: two different stories to two different individuals during the investigation of the crime and a third completely different story which the defendant told at trial.

Mr. Barnes testified that he talked with the defendant and his father about appealing the case:

“And I told them — we talked about appealing it and I advised him not to appeal it, that I thought that His Honor would be reasonable with his sentence. He just announced that he found him guilty and he set it later, I believe, in March sometime, and this conference was out in the room on the hearing for sentencing. And this fellow, Osborne, said, ‘If it was a son of mine, I’d appeal it.’ And I told him, I said, ‘You don’t know anything about it.’ But that’s, I believe, when he decided to get more learned counsel rather than me.”

The defendant’s father testified, in direct conflict to Mr. Barnes’ testimony, that Mr. Barnes never consulted with him about the necessity of a court reporter and that he never asked either his or the defendant’s permission to waive the presence of a court reporter. Mr. White stated:

“A. Well, I asked Mr. Barnes to appeal it if it was an unfavorable ruling and I just took it for granted that there would be a court reporter because if you don’t have — you can’t appeal it if you don’t have the proceedings of the hearing.
“Q. Did Mr. Barnes prior to the trial ever explain to you that you had a right to the presence of a court reporter?
“A. He didn’t explain nothing, no, of that sort.”

The defendant’s father stated that Mr. Barnes did talk with the defendant “on the outside of the courtroom” and that he did not know what that conversation was about but he asked the defendant about the court reporter and the defendant “never mentioned anything pertaining _ to that — court reporter.”

The defendant did not testify and did not even attend the hearing. It was undisputed that the defendant was “looking for a job.”

The decision to waive the presence and services of a court reporter in the trial of a criminal case is a most serious decision which should only be made for a compelling reason. However, we are not willing to state, as a matter of law, that such a waiver, in and of itself, constitutes ineffective assistance of counsel. Generally see Anno. 2 A.L.R. 4th 27 (1980).

The evidence before this Court on the return to remand shows that the trial was not a farce or mockery of justice and that the defendant was not denied constitutionally effective assistance of counsel. McKinnis v. State, 392 So.2d 1266, 1267 (Ala.Cr.App.), cert. denied, 392 So.2d 1270 (Ala.1980); Bridges v. State, 391 So.2d 1086 (Ala.Cr.App. 1980).

No violation of the guaranty of due process results from the failure to provide a court reporter to preserve a record of testimony in the absence of a request therefore. Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965); Commonwealth ex rel. Turk v. Ashe, 167 Pa.Super. 323, 74 A.2d 656, cert. denied, Turk v. Claudy, 340 U.S. 907, 71 S.Ct. 274, 95 L.Ed. 656 (1950); Jones v. State, 149 Tex.Cr.R. 594, 194 S.W.2d 766, cert. denied, 329 U.S. 783, 67 S.Ct. 203, 91 L.Ed. 672 (1946); Commonwealth ex rel. Jones v. Rundle, 204 Pa.Super. 316, 204 A.2d 487 (1964); Christopher v. District Court in and for Black Hawk County, 255 Iowa 694, 123 N.W.2d 892 (1963).

A similar issue to that presented here was addressed in State v. McFarland, 287 N.W.2d 162 (Iowa 1980).

“Appellant asserts that the unavailability of a transcript through no fault of his own automatically entitles him to a reversal. Only one of the cases he cites supports his assertion. In United States v. Atilus, 425 F.2d 816 (5th Cir. 1970), defense counsel had failed to perfect an appeal despite the defendant’s directions, and apparently the stenographic notes were destroyed; the court ruled that because ‘no transcript (was) available, the conviction must be reversed.’ No other cases cited by the appellant, including the one relied on by the Fifth Circuit Court of Appeals in Atilus, stand for that proposition. They all involve the right of an indigent to equal access to the appellate process; refusal by the government to provide indigents a sufficient transcript at public expense was the basis for those decisions. See Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967) (equal protection); Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) (construction of federal statute); Weaver v. Herrick, 258 Iowa 796, 140 N.W.2d 178 (1966) (equal protection). What that line of cases requires is only ‘(a) “record of sufficient completeness” to permit proper consideration of (indigents’) claims ... (so as to) ensure . . . (them) a right to review of their convictions as adequate and effective as that which (is) guarantee(d) to nonindi-gents.’ Draper v. Washington, 372 U.S. 487, 499, 83 S.Ct. 774, 781, 9 L.Ed.2d 899, 907 (1963). This does not always require a complete transcript.
“Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge’s minutes taken during trial or on the court reporter’s untranscribed notes, or a bystander’s bill of exceptions might all be adequate substitutes, equally as good as a transcript.
“Ibid, at 495, 83 S.Ct. at 779, 9 L.Ed.2d at 905.
“To adopt appellant’s argument would have the effect of a presumption that error occurred at trial and would place the burden upon the State to disprove it. However, there is a presumption of regularity in trial proceedings. State v. McKee, 223 N.W.2d 204, 206 (Iowa 1974). We have never before been confronted with a situation where there was a total lack of a transcript. However, where a defendant asserted that an error occurred during unreported portions of the proceedings, we have held that the bill of exceptions was an adequate substitute for a transcript. Ibid.; State v. Whitfield, 212 N.W.2d 402, 407 (Iowa 1973). In Whitfield we ruled that it was not error for a trial judge to refuse to allow closing arguments to be reported because of the adequacy of this alternative to provide a record for appeal. Ibid.
“The trial of this case was brief. The State’s ease consisted only of the testimony of the prosecuting witness and one corroborative witness. The defendant presented no evidence. The argument that the alternative record is inadequate is grounded on the fact that it reflects the recollection of defense counsel recorded quite some time after trial. There is some indication that it was apparent very early after trial that the reporter’s notes might never be transcribed. If so, it was incumbent on defense counsel to act with dispatch in creating a record. A delay which could have been avoided provides a weak basis upon which to claim it is impossible to compile an adequate alternative record. We do not, however, base our determination on the ramifications of counsel’s failure to act more expeditiously in developing the alternative record. Rather, our determination is based on the total absence of a showing that the record is inadequate. Appellate counsel argued that it is difficult for any attorney to remember all of the objections he made at trial. However, there has been no attempt to show by testimony of the defense counsel that he made objections which he cannot recall or that he considers his summary, albeit short, in any way incomplete.
“The absence of a transcript did not deprive the defendant of a full and fair appellate review. Thus, its absence did not violate due process.”
McFarland, 287 N.W.2d at 163-164.

The remedy provided by the Alabama Rules of Appellate Procedure requiring a criminal defendant to employ a substitute for an unavailable transcript does not deny due process of law. Ruetz v. State, 268 Ind. 42, 373 N.E.2d 152 (1978).

“Relatively few courts appear to have considered whether requiring a criminal defendant to employ a substitute for an unavailable transcript denies due process. The Kansas Supreme Court has concluded that requiring a defendant to attempt reconstruction of a lost portion of a trial record did not deny the defendant ‘meaningful appellate review.’ State v. Jefferson (1969), 204 Kan. 50, 460 P.2d 610. The Florida Court of Appeals and the Illinois Court of Appeals have both held that substitution of certified or agreed statements of evidence do not deny criminal defendants due process. Griffin v. State (Fla.App.1975), 314 So.2d 243; People v. Hanson (1977), 44 Ill.App.3d 977, 3 Ill.Dec. 778, 359 N.E.2d 188.
“We are unable to find any denial of due process in requiring appellant to submit a statement of the evidence pursuant to Rule 7.2, under the facts of this case.”
Ruetz, 373 N.E.2d at 154-155.

The defendant has not convinced this Court that the absence of a court reporter at his trial deprived him of a full and fair appellate review. Undoubtedly that absence made review more difficult and inconvenient, however the defendant has not shown that the substitute for an unavailable transcript provided by the Alabama Rules of Appellate Procedure is inadequate in this particular case. While our order on remand was not fully complied with, the defendant’s “statement of evidence” pursuant to ARAP 10(d) does not reveal any error which would require a reversal of the judgment of the Circuit Court. We further note that the defendant has not fully complied with Rule 10(d) in that there is no indication that this statement was ever approved by the trial judge.

In conclusion, the defendant seeks a reversal of his conviction because he has been denied a record of his trial. Yet, as we noted in our original opinion, the defendant does not contend that he was denied a fair trial (other than ineffective assistance of counsel with regard to the preparation of a transcript), that any errors were committed during the course of the trial, or that the State’s evidence at trial was insufficient to support the verdict. All this is compounded by the fact that the defendant was not even present at the hearing .on remand of his appeal to the Circuit Court.

Under these circumstances, we feel justified in affirming the judgment of the Circuit Court.

OPINION EXTENDED;

AFFIRMED.

All Judges concur.

      . Ind.R.App. p. 7.2(A)(3)(c) provides:

        "Statement of the evidence or proceedings when no report was made or when the transcript is unavailable. If no report of all or part of the evidence or proceedings at the hearing or trial was or is being made, or if a transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including his recollection. If submitted contemporaneously with the matter complained of, the statement may be settled and approved by the trial court. If submitted thereafter, the statement shall be served on other parties who may serve objections or prepare amendments thereto within ten (10) days after service. The statement and any objections or prepared amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall become a part of the record and be included by the clerk of the trial court in the record.
      “If statements or conduct of the trial judge are in controversy the statement shall be supported by sworn affidavit which shall be submitted to the trial judge for his certification. If he refuses to certify the statement he shall file opposing affidavits. All such affidavits shall be included in the record by the clerk of the trial court.”


author: TORBERT, Chief Justice.

text:
    Ex parte Keith WHITE. (Re: Keith White v. State of Alabama).
    No. 80-689.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    T. Michael Putnam of Potts, Young & Blasingame, Florence, for appellant.
    No briefs filed for respondent.
   TORBERT, Chief Justice.

The duty is not on the defendant to request a court reporter. He is entitled to a court reporter but can waive the right.

By denying the writ, we are not to be understood as approving the statement by the Court of Criminal Appeals that “[n]o violation of the guaranty of due process results from the failure to provide a court reporter to preserve a record of testimony in the absence of a request therefore,” for which proposition that court cited Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965).

WRIT DENIED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: HARRIS, Presiding Judge. BOOKOUT, Judge,

text:
    Phillip L. RICHARDSON v. STATE.
    5 Div. 508.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    John A. Tinney, Roanoke, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was jointly indicted with Jack L. Whitten for murder in the first degree involving the death of David Dukes whose death occurred in a cemetery in the Pot Ash Community of Randolph County, Alabama, on December 9, 1979. A severance was granted and appellant was arraigned on the indictment in the presence of his attorney. He waived the reading of the indictment and pleaded not guilty and not guilty by reason of insanity. He was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. After sentence was imposed he gave notice of appeal and was found to be indigent. He was furnished a free transcript and trial counsel was appointed to represent him on this appeal.

On December 9, 1979, appellant and the deceased along with four other persons left Columbus, Georgia, en route to Randolph County, Alabama. The purpose of the trip was to visit the cemetery in the Pot Ash Community and clean the grave of Danny Richardson, the brother of appellant. Before leaving Columbus, they bought a half gallon of whiskey and all the occupants of the car started drinking and they were joking, talking and generally having a good time. Appellant and the deceased became intoxicated before reaching the cemetery.

The evidence tended to show that appellant and the deceased were good friends and lived together in appellant’s mother’s house in Columbus prior to the date the deceased was killed. Upon arriving at the cemetery appellant and the codefendant started gathering flowers from various graves and put them on the grave of appellant’s brother. While they were in the process of getting the flowers, the deceased sat on the grave slab or marker of appellant’s father. Appellant told the deceased that he was going to kill him because his sister had shot and killed his brother. Appellant told the deceased to get off his father’s grave and when he refused a fight ensued. The deceased was handicapped by reason of having an artificial leg resulting from an automobile wreck in which he was involved previously. Because of this physical disability and his degree of intoxication he was disadvantaged in protecting himself in combat with appellant. Appellant grabbed the deceased and removed him from his father’s grave and the deceased rolled on the ground between two graves and tried to cover his face from the blows from appellant’s fists and started begging appellant not to kill him. He told appellant that he did not kill his brother but that his sister was the person who shot him. Appellant picked up two bricks and struck the deceased on the side of his head with one of the bricks and the deceased died where he was lying between the two graves.

The expert who performed the autopsy testified the deceased’s right leg was amputated eleven inches below the crest of the hip, “and there was a prosthetic device in place, or what is commonly referred to as an artificial leg.” As to the cause of death he stated:

“The individual sustained a very forceful blow on the right side of the head from an object that was somewhat blunt, as opposed to being sharp. What this did was, jar the head and the brain internally rupturing blood vessels which produced hemorrhage in the head, producing pressure on the brain stem and vital portions of the brain, which resulted in death in my opinion.”

Appellant testified that the deceased was his best friend and that he did not intend to kill him. He stated the deceased was sitting on his father’s grave and he told him to move and when he did not he grabbed him by the arm and tried to pick him up and get him off the grave; that the deceased swung at him and he swung back and they started fighting. He then picked up a brick and hit him; that he was trying to protect himself; that in the fight with the deceased he received a scrape and a bruise on his head which caused him to bleed. It is clear that appellant was relying on self-defense.

After the conclusion of the direct examination and before a single question was asked by the District Attorney the court asked appellant the following questions:

“COURT: How far away was David from you when you threw that brick at him?
“A. About from here to that brown suitcase.
“Q. COURT: You were about 8 or 10 feet away?
“A. Yes sir.
“COURT: Is that correct?
“A. Yes sir.
“COURT: Did Dukes have a gun or any sort of weapon he could have hurt you with?
“A. No sir.
“COURT: He had a bad leg, didn’t he?
“A. Sir?
“COURT: You knew he had a bad leg, didn’t you?
“A. Yes sir.
“COURT: He couldn’t run fast, could he?
“A. No sir.
“COURT: He couldn’t even walk fast, could he?
“A. He could walk good.
“COURT: You can run fast, can’t you?
“A. Yes sir.
“COURT: You could run fast on that day, couldn’t you?
“A. Yes sir.
“COURT: If you were scared, you could have just have just turned around and run away from him, couldn’t you?
“A. I guess.”

At the conclusion of the questions posed to appellant by the court counsel for appellant stated: “Judge, please note an objection to this entire line of questioning by the court.” The court refused to rule on the objection.

The record reflects that the court asked numerous questions during the entire trial but none so devastating as those quoted above which had the effect of destroying appellant’s attempt to establish self-defense.

In Sprinkle v. State, Ala.Cr.App., 368 So.2d 554, this court held:

“The trial judge is more than a mere moderator and it is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of witnesses. Thus he may ask any question which would be proper for the prosecutor or defense counsel to ask so long as he did not depart from a standard of fairness and impartiality.”

The timing of the questions posed by the court to appellant precludes any argument that the examination conducted by him was necessary to produce needed evidence, create clarification, or do justice, which are the basic reasons such questions are allowed to be asked by the trial court. We hold the conduct of the trial court amounted to an abdication of his duties as a fair and impartial judge. His cross-examination of appellant was highly improper and prejudicial to the rights of appellant and constituted reversible error.

Jurors give great weight to testimony produced by questions from the trial judge. The series of questions asked by the trial court had the cumulative effect of negating any other testimony by appellant or other witnesses that would indicate he was acting in self-defense. The cross-examination of appellant by the court created an undue influence upon the jury and an atmosphere of ineradicable bias and prejudice toward appellant. No instructions from the judge could have removed the baneful effect of his questions.

The position of a presiding judge is stated in Griffin v. State, 90 Ala. 596, 8 So. 670, 673: “The weight to be given to evidence is wholly within the province of the jury, and any invasion of this province by the court in its orders is error; and any statement by the court, however unintentional, made in the presence of the jury, calculated to control the jury in its consideration of the weight to be given to testimony, will work a reversal, unless it be clearly shown that such remarks have been explained and excluded from them. It may be thought that the criticism of the court is too restricted and technical; but the principle involved is of such paramount importance, it would be dangerous to permit the least infringement of the rule to pass without correction. The separate province of the court and of the jury must be jealously guarded, and carefully recognized and preserved. It is an ‘anchor sure and steadfast’ to protect those on trial for a violation of law, and to restrain the courts from exercise of undue influence upon the juries, to whom is committed the important and exclusive right of weighing the evidence.”

The “anchor sure and steadfast” was torn asunder and left in shambles by the conduct of the trial judge all to the great prejudice of the appellant.

Other issues are raised in which appellant contends reversible error was committed by the trial court but in view of what we have said we do not deem it necessary to treat them.

For the single error of the trial judge in taking over the cross-examination of appellant, in the circumstances shown by the record and set out herein, this case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur, except BOOK-OUT, J., who dissents with an opinion.

BOOKOUT, Judge,

dissenting:

In Holmes v. State, 22 Ala.App. 373, 115 So. 849 (1928), the then court of appeals stated:

“In the case of Register v. State, 19 Ala.App. 11, 94 So. 778, this court stated:
“ ‘It was not only within the power of the court to propound questions to witnesses, but if justice required, or if it appeared necessary, it was the duty of the court so to do, and such action upon the part of the court cannot be construed as an aid to the prosecution or as being prejudicial to the substantial rights of the defendant.’
“The above excerpt is in line with well-recognized legal authorities which hold that, with certain exceptions, no rule of law exists which limits the power of a judge in a criminal trial to interrogate a witness during his examination. He may ask any question which either the state or the accused had the right to ask, or which it was their duty to ask, but which has been omitted, if the answer may be relevant. But the court should be very careful to let fall no remarks, and to put no questions, which assume the prisoner’s guilt. . . . When a witness is examined by the court, the questions put by the court should follow the rules as to form observed on criminal trials. The judicial power to examine a witness should be carefully exercised so as not to prejudice the accused, and questions by the court which assume the prisoner’s guilt, or which assume the witnesses are testifying falsely, or which give to the jury the impression that the court has determined that the accused is guilty, furnish a basis for reversal.”

Likewise, in Johnston v. City of Birmingham, Ala.Cr.App., 338 So.2d 7 (1976), this court, citing Holmes, supra, reiterated that a trial judge should not ask any question which assumes the guilt of the accused. We then went on to say:

“However, a trial judge is more than a mere moderator. It is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of the witnesses. He may ask any question which would be proper for the prosecutor or defense counsel to ask so long as he does not depart from a standard of fairness and impartiality. . . . ”

In my opinion the appellant’s answers to the trial court’s questions in the instant case were devastating to the appellant only because they elicited the truth from him and thus negated self-defense. The trial court’s questions were phrased to elicit facts and did not assume the accused’s guilt nor express the trial court’s opinion as to the guilt or innocence of the appellant. The fact that the truth is devastating to a defendant is no ground for excluding the question which elicits that truthful answer. I do not think that the trial court in the instant case transgressed the bounds of judicial propriety in propounding the questions set out in the majority opinion herein-above. I therefore respectfully dissent.


author: MADDOX, Justice.

text:
    Ex parte State of Alabama. (Re: Phillip L. RICHARDSON v. STATE of Alabama).
    80-378.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    Charles A. Graddiek, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for petitioner.
    John A. Tinney, Roanoke, for respondent.
   MADDOX, Justice.

This is a petition by the State of Alabama to review a decision of the Court of Criminal Appeals which reversed a murder conviction and remanded the case to the trial court for a new trial.

Respondent Phillip Richardson was convicted in the Circuit Court of Randolph County of first degree murder and was duly sentenced to life imprisonment. He appealed and the Court of Criminal Appeals overturned his conviction on the grounds that certain questions posed by the trial judge to him had a prejudicial effect on his plea of self defense. This Court granted certiorari, and after carefully examining the opinion of the Court of Criminal Appeals, the briefs of the parties, and the trial record for a better understanding of the facts, we affirm.

The judges on the Court of Criminal Appeals were not in agreement that the conduct of the trial judge was prejudicial. It was primarily because of that fact that we granted the State’s petition for certiorari to determine whether the principles of Holmes v. State, 22 Ala.App. 373, 115 So. 849 (1928), which sets forth the applicable standard for judicial questioning of a witness in a case, were followed. Holmes, citing Register v. State, 19 Ala.App. 11, 94 So. 778 (1922), states:

It was not only within the power of the court to propound questions to witnesses, but if justice required, or if it appeared necessary, it was the duty of the court so to do, and such action upon the part of the court cannot be construed as an aid to the prosecution or as being prejudicial to the substantial rights of the defendant.

In the interest of justice, a trial judge is given the authority to pose questions to a witness for the purpose of clarifying the issues for the jury’s consideration and to aid in the orderly conduct of the trial process. This is a long-observed rule. See Johnston v. City of Birmingham, 338 So.2d 7 (Ala.Cr.App.1976).

Applying the rule to this ease, however, and in view of the fact that the trial judge put his questions to the accused after the direct examination of defense counsel, but before the District Attorney had cross examined him, we are of the opinion that the Court of Criminal Appeals could have found that the trial judge’s conduct crossed the line into the area of impermissible conduct. Even though the questions posed by the trial judge did not assume the accused’s guilt, the Court of Criminal Appeals, from a full review of the record, could have concluded that the judge’s conduct in this case was prejudicial. In affirming the Court of Criminal Appeals, we do not necessarily agree with that portion of the opinion of the Court of Criminal Appeals which states: “ ‘anchor sure and steadfast’ was torn asunder and left in shambles by the conduct of the trial judge,” but we do agree that the Court of Criminal Appeals could have found from the record in this case that prejudicial error did occur.

The judgment of the Court of Criminal Appeals is due to be affirmed.

AFFIRMED.

TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.


text:
    Ex parte: The State of Alabama, Petitioner, ex rel. Charles A. Graddick, Attorney General. In re The STATE of Alabama, Plaintiff, v. Dorothy Sims ADAMS, Defendant.
    3 Div. 371.
    Court of Criminal Appeals of Alabama.
    Feb. 25, 1981.
    Rehearing Denied March 17, 1981.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner.
    George W. Cameron, Montgomery, for defendant.
   PER CURIAM.

Petitioner has filed a petition for writ of mandamus directed against the Honorable Perry 0. Hooper, Judge of the Circuit Court of Montgomery County, challenging his ruling sustaining a demurrer to an indictment against Dorothy Sims Adams.

The Alabama Supreme Court stated in the case of Ex parte Harold Pugh, Ala. [Ms. February 18, 1981]:

“Mandamus will not lie to compel the trial court’s exercise of discretion in a particular manner, nor to review the lower court’s proceedings for error, nor as a substitute for appeal. State v. Cannon, 369 So.2d 32 (Ala.1978).”

PETITION DENIED.

All the Judges concur.


author: PER CURIAM. MADDOX, Justice

text:
    Ex parte State of Alabama Ex rel. Attorney General. (Re Ex parte: State of Alabama Ex rel. Charles A. Graddick, Attorney General. (Re STATE of Alabama v. Dorothy Sims ADAMS)).
    No. 80-429.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner.
    No brief for respondent.
   PER CURIAM.

WRIT DENIED. NO OPINION.

TORBERT, C. J., and FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

MADDOX and ADAMS, JJ., dissent.

MADDOX, Justice

(dissenting).

I would grant the writ because I believe that the Court of Criminal Appeals, in denying mandamus, probably relied upon this Court’s original opinion in Ex parte Nice, [MS. February 18, 1981].

On rehearing, this Court withdrew the original opinion in that case and reached a different conclusion from that reached on original deliverance. Ex parte Nice, [MS. July 17, 1981],

Because I think that the Court of Criminal Appeals should review the original petition for mandamus in that court based upon the latest expression of our opinion in Ex parte Nice, I respectfully dissent.


author: TYSON, Judge.

text:
    Paul Eugene WEBSTER, v. STATE of Alabama.
    5 Div. 554.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.
    Richard D. Lane, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Deborah Hill Biggers, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Paul Eugene Webster was indicted for escape in the first degree, entered a not guilty plea which was subsequently withdrawn after conferring with counsel, and thereafter a plea of guilty was entered and a sentencing hearing was conducted at which the appellant admitted five prior felony convictions. The trial court determined that the appellant should be sentenced as a habitual offender and sentenced the appellant to imprisonment in the penitentiary for life with this sentence to run concurrently with the five prior sentences. The appellant gave notice of appeal and requested counsel, who now prosecutes this appeal.

In open court, following questions by the trial judge, the appellant stated that he was a high school graduate, twenty years of age, fully understood the English language, and could read and write. The appellant then stated that he had conferred with his trial counsel and wished to withdraw his not guilty plea and enter a plea of guilty and thereafter agreed that the trial court would proceed with a habitual offender hearing pursuant to law.

Thereafter the trial court explained the nature of the charges against the appellant and took evidence on his plea of guilty to the charge of escape in the first degree. The record is as follows: (R. 3-8).

“THE COURT: Let me explain this to you, now. You are charged here, with escape in the first degree. That last Code Section that I have just referred to, the Code Section referring to the Alabama Habitual Offender Act, it provides that anyone who is convicted of a Class B Felony, which escape in the first degree is, and who has been convicted prior to that time for three other felonies, prior to the commission of the present offense shall be punished upon conviction at life in the penitentiary. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Now, before a Habitual Offender Hearing can be held, you have certain rights. The Habitual Offender Hearing is set for a day certain. In addition to that you must be served, you have the right to be served, with notice of the prior convictions that the District Attorney intends to present against you. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: And you have, of course, the right to produce evidence to show that you have not been convicted of these offenses in the past. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: In other words, the entire burden of proof is not only on the State of Alabama to allege these prior convictions; but the burden is on them also to prove that you have been in fact convicted of these prior convictions. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Now, with you understanding that, do you at this time waive your right to notice of these prior convictions?
“THE DEFENDANT: Yes, sir.
“THE COURT: Waive your right to have the proof adduced as to the prior convictions; do you waive that right?
“THE DEFENDANT: Yes, sir.
“THE COURT: And you are prepared at this time to proceed not only with the sentence hearing on this particular charge, that is escape in the first degree, but also to proceed on the hearing as a Habitual Offender?
“THE DEFENDANT: Yes, sir.
“THE COURT: Is this after going over with your attorney, Mrs. Davis, all of your rights in connection with this?
“THE DEFENDANT: Yes, sir.
“THE COURT: Mrs. Davis, have you gone over all of these rights with him?
“MRS. DAVIS: Yes, sir, because of the nature of this plea we have been over them extensively.
“THE COURT: Very well. Well, then, let me explain to you, Mr. Webster, what you are charged with. You are charged here in this case with escape in the first degree. Let me explain what it is.
“A person commits the crime of escape in the first degree if: he employs physical force, a threat of physical force, a deadly weapon or dangerous instrument in escaping or attempting to escape from custody; or having been convicted of a felony he escapes or attempts to escape from custody imposed pursuant to that conviction; or that he escapes, or attempts to escape, from a penal facility.
“Escape in the first degree is a Class B felony, as I have already explained to you.
“Now, I think in this case that it is not alleged that you used a dangerous instrument, but I think it is being alleged that at the time when you escaped that you had been convicted of a felony; is that correct?
“THE DEFENDANT: Yes, sir.
“THE COURT: Anyone who is found guilty of escape in the first degree can be punished by not less than two nor more than twenty years in the penitentiary. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: But, as I have already explained to you this being a Class B felony, if you had been previously to that time convicted of three or more other felonies, then the punishment would be as the Code provides life in the penitentiary. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Now, in this particular case, Mr. Webster, you are charged with having escaped or attempting to escape from a penal facility, that is the Opelika City Jail, in violation of Section 13A-10-31 of the Code of Alabama; which is one of the alternates that I have just read to you a while ago.
“Now, are you guilty of that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Tell me what you did?
“THE DEFENDANT: I knocked a hole — well I dug a hole in the wall of the City Jail, and went out and went to the back door, a screen door there that has a small lock on it. I stuck the blade of a pocket knife in the lock trying to open it and the knife broke off in it. And I figured that I couldn’t get out and I crawled back in the hole, and got stuck trying to get back in the hole.
“THE COURT: You got stuck?
“THE DEFENDANT: Yes, sir.
“THE COURT: You mean you got your body stuck?
“THE DEFENDANT: Yes, sir.
“THE COURT: And you had already broke out?
“THE DEFENDANT: Yes, sir.
“THE COURT: And you were trying to get back in to unlock the door?
“THE DEFENDANT: No, sir. I got out, I was out trying to unlock the door, and well, I couldn’t get the door unlocked, so, I tried to crawl back in the cell.
“THE COURT: All right. What were you trying to open the door for?
“THE DEFENDANT: So I could get on the outside.
“THE COURT: In other words, you had gotten out of the cell there?
“THE DEFENDANT: Yes, sir.
“THE COURT: But you hadn’t gotten out of the building; is that correct?
“THE DEFENDANT: Yes, sir.
“THE COURT: So, you tried to get back in the cell and that’s when you got stuck?
“THE DEFENDANT: Yes, sir.
“THE COURT: So, you are telling me that you are guilty of escaping, or attempting to escape from the Opelika City Jail?
“THE DEFENDANT: Yes, sir.”

Following the above colloquy, the trial court then allowed the appellant to confer with his counsel and the record thereafter contains a full Boykin v. Alabama colloquy, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), at which each of appellant’s rights were fully explained, including the nature of the charges and the punishment which would be imposed under the law. The appellant then entered his guilty plea and the court proceeded with the habitual offender hearing, at which certified copies of five prior convictions were placed in evidence, these being grand larceny in Montgomery County on June 3, 1976, kidnapping in Montgomery County on September 22,1976, a second kidnapping in Montgomery County on September 22, 1976, grand larceny in Lee County on October 12, 1977, and theft in the second degree in Lee County on May 27, 1980. Each of these prior convictions were established through the use of a certified minute entry, which demonstrated that the appellant was represented by counsel in each of these prior convictions as required by Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (1975), and authorities therein cited.

Following this explanation and having these matters explained to the appellant by the trial judge and his attorney, the trial court made its determination that the appellant should be sentenced as a habitual offender and that he should be sentenced to life imprisonment, pursuant to the provisions of § 13A-5-9(c)(2), Code of Alabama 1975, as amended 1979.

I

The issue presented on this appeal is whether there is a conflict within the Alabama Statutes dealing with punishment where a party has been adjudged guilty of “attempted escape.” Counsel calls our attention to provision of § 13A-10-31 and § 13A-10-32, Code of Alabama 1975 as amended 1979. These two sections read as follows:

“§ 13A—10-31. Escape in the first degree.
“(a) A person commits the crime of escape in the first degree if:
“(1) He employs physical force, a threat of physical force, a deadly weapon or a dangerous instrument in escaping or attempting to escape from custody; or
“(2) Having been convicted of a felony, he escapes or attempts to escape from custody imposed pursuant to that conviction.
“(b) Escape in the first degree is a Class B felony. (Acts 1977, No. 607, p. 812, § 4606; Acts 1979, No. 79-471, p. 862, § 1; Acts 1980, No. 80-753, § 2.)”
“§ 13A-10-32. Escape in the second degree.
“(a) A person commits the crime of escape in the second degree if he escapes or attempts to escape from a penal facility.
“(b) Escape in the second degree is a Class C felony. (Acts 1977, No. 607, p. 812, § 4607.)”

Specifically, counsel urges that attempted escape is a Class C felony rather than a Class B felony and therefore the trial judge was in error in sentencing the appellant to life imprisonment as is provided for in § 13A-5-9(c)(2), Code of Alabama 1975, as amended 1979. It is apparent from the portion of the above quoted colloquy that the appellant’s body became stuck while he was endeavoring to escape from the Opelika City Jail, after having previously dug a hole in the wall of the jail with the use of a pocket knife. When, according to appellant’s own statement, he could not get the door unlocked, and attempted to crawl back into his cell, he became stuck in the wall of the cell. (R. 7-8).

It is also clear that the appellant was being held in custody under two prior convictions from Lee County, to say nothing of his Montgomery County convictions, at the time he either escaped or attempted to escape from custody pursuant to the aforesaid Lee County convictions.

We are of the opinion that the trial judge, therefore, properly sentenced the appellant under § 13A-5-9(c)(2), Code of Alabama, 1975, amended 1979, which reads as follows: “(2) On conviction of a Class B felony, he must be punished for life in the penitentiary.”

It is clear from appellant’s own testimony that he is guilty of escape in the first degree and therefore the trial judge properly sentenced him as a habitual offender under the authorities cited herein.

The Alabama Habitual Felony Offender Statute has been clearly determined to be constitutional. Williams v. State, 393 So.2d 492 (Ala.Cr.App.1981); Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1271 (Ala.1981); Smith v. State, 392 So.2d 1273 (Ala.Cr.App.1980).

This record is free of error and the judgment of the trial court is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Paul Eugene WEBSTER. (Re: Paul Eugene Webster v. State of Alabama).
    80-691.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.