text:
    L. C. BROWN v. STATE.
    1 Div. 104.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Delano J. Palughi, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant has been convicted twice on an indictment charging him with the unlawful killing of Clarence Carson. On the first trial, he was found guilty of murder in the second degree. On his appeal therefrom, judgment was reversed and the cause remanded for another trial by reason of errors occurring on the first trial. Brown v. State, Ala.Cr.App., 369 So.2d 56 (1979). On the second trial, he was found guilty of manslaughter in the first degree. On the instant appeal from the second conviction, no issue is presented that requires a consideration of details of the evidence. It suffices to state substantially what was stated in the opinion on the appeal from the first conviction.

The victim had been living for a considerable period of time with appellant’s wife most of the time that appellant and his wife had been living separate and apart from each other. Appellant and his wife were the only surviving eyewitnesses to the killing of Carson. It was her testimony that as she and Carson returned from the Elks Lodge, where Carson was playing in a band, at about 4:00 A.M., and were in the process of entering the house where they were living together, defendant appeared with a pistol in his right hand and shot Carson in the back of his head with one shot that, according to. the undisputed evidence, caused his death. Brown’s testimony was to the effect that he had been threatened by Carson and was afraid of him; that he was at the house where the killing occurred to check on the welfare of his children living there; that he approached Carson and his wife with caution; that he hit Carson with his pistol and the pistol went off, and that he did not intend to kill Carson or to shoot the pistol.

The evidence was sufficient to support the verdict of the jury. Except for the possible effect of the sole contention of appellant on the instant appeal, there is no contention to the contrary.

When defendant’s wife was called upon by the State to testify on the second trial, she claimed and was granted the privilege that is given a husband and wife not to be compelled to testify either for or against each other in a criminal case. Code of Alabama 1975, § 12-21-227. Her testimony on the first trial as certified by the court reporter in the first trial was then introduced in evidence over the objection of defendant. Appellant says that this action of the court constituted reversible error.

In Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837, 843, cert. denied, 254 Ala. 74, 46 So.2d 847 (1950), in which there was involved the question of the admissibility of testimony of the wife of the defendant who had testified against him on peace bond proceedings arising out of his alleged criminal conduct but who claimed her privilege not to testify against him on a trial for such criminal conduct, the court held:

“The testimony of a witness at a former trial is admissible in a second trial when at the time the witness is dead, under disability, is permanently absent from the state, or becomes unavailable by reason of claim of privilege at the second trial. Mims v. Sturdevant, 36 Ala. 636; Jeffries v. Castleman, 75 Ala. 262; McCoy v. State, 221 Ala. 466, 129 So. 21. . . . ”

Appellant says that the former testimony of the witness should have been presented by the testimony of the court reporter on the previous trial instead of by the court reporter’s certified transcript. This contention of appellant is answered as follows:

“Upon the showing of proper grounds for the failure of the witness to be present, the former testimony of that witness may be given orally by the witness who was present at the trial or by a court reporter’s transcript properly identified, Harper v. State, 16 Ala.App. 53, 79 So. 632 (1918); Todd v. State, 13 Ala.App. 301, 69 So. 325 (1915); Alabama Western Railroad Co. v. Downey, 177 Ala. 612, 58 So. 918 (1912).” Howard v. State, 49 Ala.App. 548, 274 So.2d 104, 106 (1973).

There is some undesirable vagueness as to the exact status of the court reporter who reported and certified the transcript of the proceedings on the first trial, that is, whether she was an official court reporter of the trial court, but we do not understand that such vagueness is included within the grounds of appellant’s contention. We note that it was not the same court reporter as the court reporter on the second trial, which may shed some light upon the fact that the court reporter’s certified transcript was used rather than the court reporter’s testimony. We note also that the same trial judge presided on both trials and that he manifested an excellent recollection of the testimony of the witness on the first trial and that he sustained several objections of defendant to some of the testimony of the witness that was admitted in evidence without objection on the first trial. We mention this as additional assurance that the method followed in presenting the former testimony of the witness was not a cause of any injury to defendant.

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

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Thomas BLAKE v. CITY OF MONTGOMERY.
    3 Div. 193.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    L. Wayne Collier, Montgomery, for appellant.
    J. Bernard Brannan, Jr., City Atty., Montgomery, for appellee.
   DeCARLO, Judge.

This appeal is from two convictions after a trial de novo before a circuit jury in Montgomery County on charges of indecent exposure and disorderly conduct. Both charges involved the same victim on two separate occasions. The cases were consolidated for trial after consent was given by the appellant and his attorney, and a jury found the appellant guilty on both charges. He was sentenced to six months in jail and fined $500 on the disorderly conduct charge and was sentenced to six months in jail on the indecent exposure charge.

On the morning of March 29, 1979, at approximately five minutes after eight o’clock, Betty Downs was on her way to work. She walked down Washington Avenue in the city of Montgomery, Montgomery County, Alabama. As she reached the intersection of Washington and Ripley, the appellant, Thomas R. Blake, yelled to her. When she turned and looked, he stated, “Hey, come here and let me f_you.” According to Downs, the appellant had his clothes unzipped and was sitting there masturbating. She then turned and walked away.

According to Downs, the appellant was sitting in a blue Chevrolet with a gold fender. She said that when she crossed the street she copied the tag number of his automobile.

Mrs. Downs recalled that on April 2,1979, while on her way to the bank at approximately ten o’clock in the morning, she was confronted again by the appellant. As she approached the Washington Avenue branch of the Alabama National Bank, the appellant drove to the curb close to where Mrs. Downs was standing and went through the motions of masturbating.

According to Mrs. Downs, the appellant was in the same automobile, a blue Chevrolet with a gold fender. Mrs. Downs testified that she did not copy the tag number of the car on this occasion, but she recalled that the tag number and the person were the same ones previously seen by her. She identified the appellant as the man in the car.

The witness testified that after the first incident she notified the police and gave them a description of the appellant. On the second occasion, she also notified the police department. During cross-examination, she testified that she was absolutely sure the appellant was the man involved on both occasions. Also, she recalled that after the second occasion she accompanied the police to a trailer park where she identified the car and the appellant. On cross-examination, she acknowledged that there was no doubt in her mind that the appellant was the person she saw on the two occasions in question.

At the end of Mrs. Downs’ testimony, the City rested its case, and the appellant called his wife, Debra Hughes Blake, who gave alibi testimony. Mrs. Blake testified that from June of 1978 until March of 1979 her husband was unemployed and that the couple owned only one vehicle, a gold Chevrolet Impala. Further, she stated that she drove the automobile to and from work, and she specifically remembered that she had the automobile in her possession from 7:00 a. m. until 5:30 p. m. on March 29, 1979.

Bertie Chambless, the appellant’s aunt, testified that the appellant was employed by her on April 2,1979, to clean up after he and his father had reroofed a storage house. According to the witness, he had worked at her house until about 2:00 p. m. She had received a receipt from the appellant for payment for the work he had done. The receipt, which was submitted into evidence, contained the name of the appellant, the amount of $50, and the date, April 2, 1979.

The appellant took the stand in his own behalf and denied that on the morning of March 29, 1979, he was parked in a car at the intersection of Washington and Ripley. Further, he denied that on that date he exposed himself or uttered any obscene words to Mrs. Downs. Also, he denied being in the vicinity of Washington and Ripley streets on the morning of April 2, 1979, and denied making any obscene motions in the presence of Mrs. Downs on that date. The appellant reiterated that on April 2, 1979, he was working at his aunt’s house.

I

The appellant insists that the trial court committed reversible error in denying his motion for a new trial. He maintains that the prosecutor’s repeated questioning concerning prior arrests and prior convictions for crimes not involving moral turpitude were prejudicial. The questions complained of occurred in the following sequence during the cross-examination of the appellant by-the City:

“Q. Okay. Have you ever been arrested for indecent exposure before?
“MR. COLLIER: Your Honor, I am going to object to that line of questioning.
“THE COURT: Sustained.
“Q. Have you ever been convicted before of indecent exposure?
“MR. COLLIER: The same thing and I move for a mistrial.
“THE COURT: Ladies and gentlemen, would you please step back into the jury room for a moment.”

At the end of the recess, the court made the following remarks:

“I’m going to deny the defendant’s'motion; however, ladies and gentlemen, let me say this: The questions that were just asked by the City Prosecutor were highly improper. We don’t know if he knows that they’ve got anything like that or don’t have anything like that. If he didn’t know he should have known that they were improper and therefore you ladies and gentlemen should totally disregard the question. The lawyers are not under oath in this case in any way. There are certain matters of procedure that should be followed and that is a matter between the Court and the lawyers and that matter will be handled; but you ladies and gentlemen should not in any way take what a question is and consider it in any way in this case. It has nothing to do with this case in any way whatsoever and you should totally disregard the question that was asked. It shouldn’t have been asked and we don’t know whether it has any basis or foundation or anything else so just forget it and I will handle it.”

Generally, the granting of a mistrial comes within the sound discretion of the trial court, and the court has widé discretion in making that determination. Only upon a showing of abuse of that discretion will an appellate court interfere with the trial judge’s determination. Shadle v. State, 280 Ala. 379, 194 So.2d 538; Scott v. State, 47 Ala.App. 509, 257 So.2d 369. See also Franks v. State, 45 Ala.App. 88, 224 So.2d 924; Moore v. State, 49 Ala.App. 408, 272 So.2d 615.

In the present case, we notice from the cited portion of the record that the trial court immediately sustained the appellant’s objections and, subsequently, charged the jury to disregard the question even though no answer had been given. Under these circumstances, we believe the trial court properly overruled the appellant’s motion for a mistrial. Lowe v. State, 48 Ala.App. 740, 267 So.2d 529; Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, cert. denied, 292 Ala. 718, 299 So.2d 312; Maness v. State, 57 Ala.App. 431, 329 So.2d 120.

II

The appellant complains that he was denied a fair trial due to the improper conduct of the city prosecutor when he asked questions which suggested that the appellant had been arrested or convicted on a similar charge of indecent exposure.

As can be seen from the cited portion of the record, sustaining of the objection by the appellant was followed by curative instructions from the court.

Because of the quick, curative action by the trial judge, any prejudicial effect was removed, and the motion for a new trial was properly overruled. Scott v. State, 47 Ala.App. 509, 257 So.2d 369; Poellnitz v. State, 48 Ala.App. 144, 262 So.2d 631.

We have searched the record, and, no error appearing, the judgment and conviction of the Montgomery Circuit Court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    J. L. WILLIAMS v. STATE.
    7 Div. 674.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    William E. McGriff, II, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

J. L. Williams, the appellant, was arrested in Calhoun County for the offense of first degree murder. He was indicted and arraigned with his attorney present. The appellant entered a plea of not guilty by reason of insanity. On September 1, 1976, he was confined, pursuant to a court order, to Bryce Hospital for a mental examination.

On April 14, 1978, the appellant was returned to the Calhoun County jail after being evaluated by Bryce Hospital authorities as “restored to his right mind.” After a jury trial on November 30, 1978, the appellant was found guilty of murder in the second degree and was sentenced to life imprisonment.

The facts presented by the State were not in dispute and were sufficient to make out a prima facie case. Those facts are that on January 28, 1976, Hilda E. Nelson had rented the upstairs rooms of her home to the appellant and his brother, Alfred Williams. Around noon on that date, she heard a noise upstairs which sounded as if people were fighting or scuffling on the floor. Later she heard something hit the floor and then heard a shot. Subsequently, the appellant came downstairs and called the police. After the police and . an ambulance arrived, Mrs. Nelson went upstairs and saw Alfred Williams, who had been shot, lying on the floor.

According to Mrs. Nelson, the appellant had lived in the upstairs apartment for approximately a year, and his brother had been there for four years. During the year that both men lived there, she had not witnessed any difficulties between the brothers. Mrs. Nelson recalled that the deceased was a taxi driver who owned a gun. She indicated that she was unaware of the fact that the appellant had been a patient in a mental hospital.

Carlos Lamar Raybren, Toxicologist for the State of Alabama, performed an autopsy on the body of the deceased. His examination revealed that the cause of death resulted from massive bleeding within the abdominal area which was associated with a gunshot wound in the left side of Williams’ back. During the examination, Raybren recovered a bullet projectile which was marked and turned over to Ralph Phillips.

Ralph Phillips, the Coroner of Calhoun County, responded to a call at 1120 Quin-tard Avenue where he saw the body of the deceased. He examined the body and determined that the victim was dead as a result of being shot in the back.

The body was removed by a rescue squad and taken to a funeral home. Later the body was removed to Auburn for an autopsy. On January 29,1976, the morning after the autopsy, Phillips received a projectile which had been taken from the body. He delivered the projectile to John Case in Jacksonville, Alabama.

Anniston Pólice Officer John Stubbs responded to a call at Mrs. Nelson’s house at 1120 Quintard. On his arrival, he found the dead body of Alfred T. Williams at the head of the stairs. The identity of the victim was disclosed, by the appellant. After the appellant admitted that he had fired the shot, Stubbs placed him under arrest and informed him of his constitutional rights. After being informed of his rights, the appellant “shook his head, nodded his head” that he understood those rights.

Stubbs recovered from the upstairs rooms two weapons, a .22 automatic and a .25 automatic, both of which he turned over to Hughes.

Captain Jack Hughes, a homicide detective with the Anniston Police Department, investigated the shooting at 1120 Quintard Avenue. On arrival he found, on the front stairs, second floor, the dead body of a white male, lying face down. The man appeared to have been shot in the back.

During that time, Officer Hughes received from Stubbs two pistols and a shell case. Hughes later recovered a blanket. These items were turned over to Captain Ezell and were taken to the crime lab the next day.

Hughes, before speaking to the appellant, informed him of his constitutional rights. The witness stated that the appellant appeared to be lucid. According to Hughes, the appellant refused to give a written statement, but he did make an oral statement. In that statement, the appellant said that “his brother had not been treating his ex-wife right and had not been paying his child support and he had to do something about it, and so he shot him.” At that time, Hughes requested a written statement of the appellant, but the appellant said “that he wanted to get a lawyer or talk to a lawyer.” Consequently, Hughes discontinued the questioning. The witness was “a little curious” about the appellant’s mental state; however, Hughes said, “It seems unusual when anybody kills somebody to me.”

Hughes, during his investigation, talked to the appellant’s brother, G. B. Williams, and was informed that the appellant had been recently released from a mental institution somewhere in the Midwest. Regarding the appellant, Hughes recalled, “At the time I talked with him, he was — I think he knew what he was doing — I can’t say whether he was sane or insane. I said I think he knew what he was doing.”

John M. Case, a criminalist with the Alabama Department of Forensic Sciences in Jacksonville, Alabama, received a manila envelope from Hughes on January 29, 1976. The package contained a Titan .25 caliber automatic pistol, seven live automatic caliber cartridges, one spent .25 automatic cartridge casing, a clip from a .25 automatic Titan pistol, an I.M.P. brand Model .7222 short caliber revolver, a red blanket, and a vial of blood which was identified as coming from Alfred T. Williams. On the blanket, Hughes had found several stains which were positively identified as bloodstains. The blood in the vial was analyzed and was found not to contain ethyl alcohol. Hughes had compared the bullet coming from the body with those he had test fired from the .25 automatic and found that the “evidence bullet” taken from the body of the deceased had been fired from a .25 automatic pistol.

At the conclusion of Case’s testimony, the State rested its case, and the defense moved to exclude the State’s evidence and for a directed verdict. The court, stating that it was a jury question, denied the motion. The defense made further objection on the grounds that the defendant was presently insane and was not able to comprehend the proceedings or to aid in his defense. The court denied that motion also and said, “Well, unless something has changed since tomorrow — since yesterday, I have already ruled on that and I’ll deny that motion.”

The appellant did not take the stand, but called his brother, G. B. Williams. G. B. Williams had been the appellant’s guardian for a number of years. According to Williams, he had noticed his brother’s behavior when the appellant was discharged from the Army in 1954. The appellant was committed to the Veteran’s Hospital in July, 1956, where he remained for ten years. In 1966, when he was released, he had gone to Lawrence County and while there had scared an aunt with a gun. The scare resulted in the aunt suffering a heart attack. After that incident, the appellant was taken to the county jail in Moulton, Alabama, where he remained for two or three months. Later he was declared incompetent and was sent to the Veteran’s Administration Hospital in Tuscaloosa, Alabama, in 1967. The appellant was transferred to St. Elizabeth’s Hospital in Washington, D.C., where he remained for a few months. He was subsequently taken to Topeka, Kansas, Veteran’s Hospital until 1971 when he was sent to the Lawrence State Mental Hospital, Lawrence, Kansas. The appellant remained in the mental institution until Christmas of 1975 when G. B. Williams arranged for him to get his necessary medication through the Mental Health Center in Birmingham, Alabama.

According to Williams, he got his brother a room at the Quintard address because being around children upset the appellant. Williams had been told by the appellant that he had experienced dreams in which he had “cut up” children. Williams testified that in his opinion his brother, at the time of the shooting, was not of sound mind. Williams felt that the appellant should be hospitalized.

During further questioning, the witness stated that the appellant had, from 1954 until the present, spent all but two years in a mental institution.

Dr. Samuel J. Crawford, a psychiatrist, first saw the appellant in June, 1975. Crawford testified that he had seen the appellant at the Mental Health Center on a couple of occasions and that, during the time he was in jail, he had been seen by someone from the Mental Health Center on a weekly basis. Treatment continued until the appellant was committed to Bryce Hospital in June or July, 1976. In Dr. Crawford’s opinion, the appellant was “completely psychotic.” Crawford stated, “By that I mean he was incapable of dealing with appropriate functions in any manner. He was delusional, completely out of contact with reality and pretty much remained so throughout the entire period of time. The patient was diagnosed at that point as a paranoid schizophrenic.” A paranoid schizophrenic, according to Dr. Crawford:

“[H]as constant feelings that everything around him, the people, buildings or anything is out to get him, out to do him in. Consistently feels that there is no positive action whatsoever. Everything about it, about his own input is a negative kind of feeling, so that they constantly react to all those feelings. They react against them and that basically is what a paranoid schizophrenic is.”

It was also Dr. Crawford’s opinion that “without a doubt,” on February 4,1976, the appellant could not distinguish right from wrong.

During questioning by the court, Dr. Crawford stated that he remembered that the shooting was due to an argument over money which had been owed to the appellant by his brother. Dr. Crawford acknowledged that at the time he examined the appellant on February 4,1976, the appellant could not distinguish right from wrong, nor was he capable of forming an intent.

During cross-examination, Dr. Crawford testified that, with the appellant’s past history of mental disorders, it would be impossible for him not to have been a “paranoid schizophrenic” on the date of the shooting.

Johnny Pogue had been acquainted with the appellant at the Calhoun County jail. Pogue testified that he had observed the appellant eat off the floor and wash his face in the water in the commode instead of that in the sink. According to Pogue, the appellant had to be given a bath and had to be shaved. Pogue recalled that the appellant had intentionally set his cell on fire. Pogue also testified that, as far as the sanity of the appellant was concerned, he could not distinguish right from wrong.

G. B. Williams was recalled by the defense, and he testified that in his opinion, at the time of the shooting on January 28, 1976, the appellant was not able to distinguish right from wrong. On further questioning, Williams acknowledged that he had not seen the appellant eat off the floor or wash his face in the commode. The witness also acknowledged that on January 28, 1976, he had no knowledge of his brother’s having engaged in such behavior.

Deputy M. L. Kirby’s testimony was read into the record pursuant to an agreement between the parties. That testimony revealed that Deputy Kirby had observed the appellant in jail since April, 1978, and that, in his opinion, “he is of an unsound mind.” Deputy Kirby felt that J. L. Williams “should be in a hospital instead of a jail.” Additionally, Kirby did not think that “you could sit down and have a conversation with Mr. Williams at all.”

I

The appellant contends that the trial court erred in denying the appellant’s pretrial motion for a sanity examination. He argues that the trial should have been deferred to a later time because the appellant was incompetent to stand trial, and, thus, was not able to intelligently consult with counsel or assist in the preparation of his defense. Counsel feels that the appellant was, therefore, denied his right to a fair trial.

On the date of the trial, November 30, 1978, a hearing was held out of the presence of the jury before the trial judge on the pretrial motion. At that time, the court took under consideration evidence that a petition had been filed on September 26, 1978, seeking a civil commitment of the appellant.

Testimony was taken from the appellant’s brother, George Williams, indicating that he had sought the petition for the commitment of the appellant. Williams stated that his brother had spent twenty-four years in mental institutions and that the appellant needed treatment.

Johnny Pogue gave testimony concerning the appellant’s bizarre behavior.

Gus Colvin, an attorney in Anniston, Alabama, who was appointed the appellant’s guardian, talked to the appellant after he had been indicted. Colvin testified that he was the guardian for approximately fifteen incompetent veterans and that the appellant was in worse shape mentally than all the others. Colvin also indicated that, since the appellant’s return from Bryce, he had noticed a deterioration in the appellant’s ability to communicate.. Colvin stated that he had received a number of telephone calls from the appellant while he was in Bryce.

Colvin stated that “it would be next to impossible” for the appellant to assist in his defense. The witness added that the appellant “doesn’t appear to be upset or anything, he’s just blank.” When asked whether the appellant could aid in his defense, Colvin testified, “I don’t know whether he could or couldn’t.”

Juan Burke, Sheriff’s Jailer of Calhoun County, testified that the appellant was “on two or three different types of medicine” when he was returned from Bryce. Burke indicated that all of the medicine had been used and that no request had been made to refill the prescription. At that time, Burke was admonished by the court that the sheriff had the responsibility of seeing “that any mental patient continues to have his medicine whether he asked for it or not.” The judge added, “He has to have medicine to stay sane.” In closing, Burke acknowledged that the appellant’s condition had gotten worse since he had first known him.

William E. McGriff, the appellant’s defense counsel, testified: “I haven’t been able to get any help from him or any aid in his defense, and I am convinced that he doesn’t understand the charges against him.”

At the close of the testimony, the trial judge stated that he perceived the issue in the hearing to be “whether he [the appellant] is able to assist in his defense or not, and I have been aware of Mr. Williams here in the Courtroom.” He further stated:

“His expressions, that is to say, it’s not possible. It’s apparent that he’s cooperative and friendly and interested in the procedure and alert and this is simply from watching Mr. Williams. So what I am going to do is put off this question of sending him down to Bryce Hospital. It’s not of immediate importance that the Jury can’t try him today. So ordering him down there, he wouldn’t go down there for at least a week or possibly two weeks or maybe a month. And I am going to decide that he is capable of assisting in his defense, that he was pronounced capable in April of 1978 by a committee of doctors at the Bryce Hospital, April 14th, 1978. And that in view of Mr. Williams and reading the exhibits and listening to the testimony I feel fairly certain that he will be able to furnish whatever assistance may actually be necessary in this case. So, I’m going to put him on trial at the present time and defer the question of ordering him to Bryce until a later date. . . . ”

The question as to whether an investigation should be made concerning the sanity of the accused is a matter addressed to the sound discretion of the trial court. The decision of the trial judge on such a matter is raised on appeal only upon proof of abuse of discretion. Wheeler v. State, 47 Ala. App. 457, 256 So.2d 197. See also Richardson v. State, Ala.Cr.App., 354 So.2d 1193; Pierce v. State, 52 Ala.App. 422, 293 So.2d 483.

This court in Atwell v. State, Ala.Cr. App., 354 So.2d 30, addressed the question regarding an accused’s competency to stand trial. There, the court said:

“The competence of an accused to stand trial is determined by whether at the time of the trial he has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and whether he has rational as well as factual understanding of the proceeding against him.” (Citations omitted.)

In Atwell, the court stated that, when there are facts before the trial judge which would create a “reasonable and bona fide doubt as to the mental competency of the accused to stand trial, there is no question but that the trial judge must take steps to assure a reasonable legal determination of such questions.” The court in that case further stated:

“Where reasonable cause is shown to believe that the accused may be incompetent to stand trial, the judge, under Alabama law, has two alternatives: (1) He may empanel a jury as provided by Title 15, § 426, Code of Alabama 1940, Recompiled 1958, or (2) he may, within his discretion, refuse to grant relief under § 426 and establish some alternate method of determining the competence of the defendant to stand trial. Seibold [v. Daniels, 337 F.Supp. 210 (D.C.)], supra; Brinks v. Alabama, 465 F.2d 446 (5th Cir. 1972).”

According to Atwell, in determining the existence of circumstances raising a reasonable doubt of the accused’s competency, an examination of the facts existing after the appellant’s return from Bryce Hospital on April 14, 1978, should have been made. In Atwell, this court recognized that the comments of defense counsel concerning an accused’s competency to stand trial are not conclusive; however, they should be considered by the court along with the other evidence in determining whether the appellant is competent to stand trial. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103; Goulden v. State, 53 Ala.App. 276, 299 So.2d 321; Moore v. State, 52 Ala. App. 179, 290 So.2d 246.

Absent a change in the appellant’s mental condition subsequent to a determination of competency by Bryce Hospital authorities, the trial judge has a right to rely upon the certification by the Bryce Hospital authorities. See Atwell, supra.

In the present case, the trial court heard the witnesses and observed the appellant during the pretrial hearing on the motion. The trial judge is in a far better position to determine the appellant’s competency to stand trial than is a reviewing court who relies on the record. Richardson v. State, supra. The evidence indicates that there had been a change in the appellant’s condition after his return from Bryce Hospital. We have reviewed the testimony that the appellant had eaten off the floor, had washed his face in the commode, and had intentionally set fire to his cell. We are also aware that the appellant’s brother had stated that he was not aware of the appellant’s bizarre behavior.

From the facts presented in this case, we are convinced that the appellant was not competent to stand trial. See At-well, supra. Also, we are convinced that the trial court abused its discretion in failing to initiate a second inquiry regarding the competency of the appellant to stand trial. See Atwell, supra; Pate v. Robinson, 383 U.S. 375, 85 S.Ct. 836, 15 L.Ed.2d 815; Pierce v. State, 52 Ala.App. 422, 293 So.2d 483.

Therefore, the judgment and conviction of the Calhoun Circuit Court must be reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Michael Steven BICE v. STATE.
    8 Div. 300.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    George W. Cameron, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of robbery. The court fixed his punishment at seventy-five years imprisonment in the penitentiary and sentenced him accordingly.

The undisputed evidence, by the eyewitness testimony of a number of witnesses and corroborative circumstantial evidence, showed that defendant was one of two men who committed the robbery alleged in the indictment. There is no contention to the contrary. A summary of the evidence is not necessary.

At the conclusion of the allocution and pronouncement of sentence on August 22, 1979, the following occurred:

“MR. CHENAULT: [Appointed attorney for defendant]: Could you advise the defendant of his right for appeal at this time because there is a question as to whether or not he will be entitled to court appointed counsel on appeal or private retained counsel and could you advise him?
“THE COURT: You have the right to appeal, of course. I would suggest you talking with your lawyers and see whether you want to do that or not.
“THE DEFENDANT: I do.
“THE COURT: Anything else?
“THE DEFENDANT: How many days do I have to appeal?
“THE COURT: I’m not sure, you will have to talk with your attorneys. We will be adjourned.”

The record shows that on September 27, 1979, the defendant, while in the Morgan County Jail, filed in the office of the Circuit Clerk a notice of appeal, which included the statement, “Defendant-Appellant is indigent and requests the court to appoint an attorney to represent him on appeal.” Under circumstances discussed hereinafter, it appears that no counsel was appointed for appellant by the trial court. In this circumstance, this Court appointed counsel to represent appellant, who has duly made an appearance by brief disclosing that he had commendably searched the record for error prejudicial to defendant and presents a close question for our determination. The issue in effect is whether prejudicial error was committed by reason of an apparent hiatus in active representation by counsel for a period of thirty days after the pronouncement of sentence, within which time a motion for a new trial could have been filed. Our first answer to the issue presented by appellant’s resourceful counsel is that in many cases it would be of tremendous importance that a defendant be afforded appointed counsel within a thirty-day period in order for him to have the benefit of counsel’s advice and judgment as to the desirability from defendant’s standpoint of filing a motion for a new trial and, if such a motion is filed, the benefit of the services of said attorney in the prosecution and submission of such motion.

It should be made clear that neither appellant’s counsel nor anyone else suggests any fault on the part of the defendant’s appointed trial counsel either in the handling of the defense of the case or in not filing a motion for a new trial. It is clear that it was correctly understood by defendant’s appointed trial counsel that under the circumstances hereinafter discussed the attorney-client relationship between appointed trial counsel and defendant ceased at the end of the trial.

Some light is shed upon the troublesome question by what the transcript shows when the case was called for trial on August 20, at which time one at least of his two appointed counsel appeared, but defendant did not appear. A forfeiture was taken as of course, and the case was passed until the afternoon of the same day (Monday, August 20) when it appeared likely that he would be present. At 1:30 that afternoon, there was an in camera hearing at which defendant and his counsel, as well as State’s counsel, were present. The defendant explained his absence that morning, and in the course of his statement said, “I hired an attorney Friday in Birmingham [he named said attorney or attorneys] and he’s in Gadsden in Judge Wad’s [Waid’s] court, he’s trying a case in Judge Wad’s [Waid’s] in Gadsden, Alabama, and I retained him and I talked to him this morning and told him about my car being stolen and asked him what to do and he told me the best thing to do was get here as quick as I could and, you know, talk to the lawyers up here and have them talk to you.” After further colloquy among the court, defendant and State’s counsel, the transcript shows the following:

“THE COURT: Will he be here in the morning?
“THE DEPENDANT: Yes, sir. I’ll make sure when I leave here I go straight to his office.
“THE COURT: We will keep the forfeiture in effect then and we’ll tell the jailer to let him call his lawyer in Birmingham and have him be up here in the morning. You’ll have to stay in the county jail tonight.”

The transcript shows nothing else relative to any retained lawyer until after the conclusion of the evidence in the case on the morning of August 22, when the following occurred in the judge’s chambers:

“THE COURT: What is this here?
“THE DEFENDANT: That’s what attorney — Okay. I, Michael Bice, Michael Steven Bice, I have — I do not want a court appointed lawyer. I have a lawyer that is on trial — in trial in Gadsden and cannot be here with me on this trial. I feel that I am not getting a fair trial without my lawyer here on this trial because I feel I am not getting a fair trial and my lawyer cannot be here with me because he is in a jury trial in Gadsden and has been on a jury trial for some few days now before my trial started.
“THE COURT: When did you have assets enough — when did you allegedly retain this lawyer?
“THE DEFENDANT: Today is the 22nd, so the 10th of this month, the 10th day.
“THE COURT: This Court has not had any correspondence or no word. Who is the lawyer?
“THE DEFENDANT: [The lawyer’s name]. My lawyer says right here my lawyer’s office called up here and talked to the Judge telling the Judge that my lawyer was in Gadsden on another trial and could not be here for this trial.
“THE COURT: That’s true. One of the members of that firm, not Mr. [name stated] himself, but the other lawyer that was up here on another case called the morning after the jury was struck and impaneled and told me that and I told him this jury was already struck and impaneled. That was the first word I had about any other lawyer.
“THE DEFENDANT: I said something the morning we came back here and we talked. I told you I had a lawyer. I did not want court appointed lawyers because I had a lawyer representing me that could not be here.
“THE COURT: And I’m saying that I didn't have any word from that lawyer following that. That conversation was a conversation we had on record. Anything else you gentlemen want to say?
“MR. CHENAULT: No, sir.
“THE COURT: Anything else you want to say?
“THE DEFENDANT: No, sir.
“THE COURT: All right.”

Counsel for both parties argued the case to the jury, and the court orally charged the jury. There is no further reference in the transcript to the matter of any retained attorney.

There is an entry in the record of the case action summary as follows:

“9/27/79
Clerk’s Notation: Docket sheet was presented to Judge Coggin for order to appoint attorney on appeal as defendant is indigent. Judge Coggin made no order to this effect.”

We are reasonably confident that the trial judge concluded from the last remarks made by defendant relative to appointed counsel that he did not desire to be represented by appointed counsel beyond a judgment in the trial court, and that the trial judge had some good reason to continue in that belief nofwithstanding defendant’s written request for the appointment of “an attorney to represent him on appeal,” and notwithstanding the Clerk’s Notation on the Case Action Summary quoted above, but the record does not permit a certain conclusion that defendant effectively waived his right to an appointed attorney through every critical stage of the prosecution.

Were it not for the totality of the circumstances in this particular case, we would be unable to determine with reasonable certainty that defendant has not been deprived of a constitutional right to which he was entitled. However, there is no contention that defendant had a valid ground for a motion for a new trial, and we find from our search of the transcript and the record proper that there is nothing therein that would have entitled defendant to a new trial. We find no error prejudicial to defendant. The failure to file a timely motion for a new trial and obtain a ruling thereon caused no substantial injury to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Gary Dewayne GRISSOM v. STATE.
    8 Div. 350.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.

      Rodney B. Slusher, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

On the trial on an indictment charging appellant with possession of marijuana, a jury found him guilty of the possession thereof for personal use only and fixed his punishment at a fine of one thousand dollars, to which the court imposed additional punishment of twelve months imprisonment in the county jail and sentenced him accordingly.

According to the undisputed evidence, about 4:00 P.M. on July 31, 1979, officers found a plastic bag, containing three smaller plastic bags that contained marijuana, inside the bedroom chest in the front bedroom of the residence of defendant at 608 North Washington Street, Tuscumbia, while they were in the process of searching the house under a search warrant issued by a judge of the District Court of Colbert County.

Appellant insists, as he did in the trial court, that the search was unconstitutional in that the warrant was issued on the basis of an affidavit that was insufficient to show probable cause for believing that marijuana was in the house to be searched. He raised the question by a pretrial motion to suppress the evidence as to the finding of the marijuana. The court conducted a hearing of the motion at which the affidavit and warrant were introduced in evidence and six witnesses testified in person. At the conclusion of the hearing, the court overruled the motion to suppress.

The affidavit was signed and sworn to by officer Randy Jones, a police officer of the city of Florence, on assignment with the North Alabama Drug Unit and was as follows:

“I have received information from a reliable informant who has proved to be reliable in the past and upon whose information I have acted and upon whose information drugs have been found and cases made prior to this date, that there is presently contained in the residence of Gary Dewayne Grisson, 608 North Washington Street, Tuscumbia, Colbert County, Alabama, illegal drugs, to-wit: marijuana. The aforesaid informant stated that he saw the illegal drugs at said residence within the past 48 hours and that the substance at said residence did in fact appear to be marijuana and was in the possession of the said Gary Dewayne Grisson. This information was given to me by the informant within the past 12 hours prior to the making of this affidavit.
“Based upon the above information received from my reliable informant I have probable cause for believing and I do believe that there is contained in the residence of Gary Dewayne Grisson, 608 North Washington Street, Tuscumbia, Colbert County, Alabama, illegal drugs, to-wit: marijuana.
“Upon this information and belief I request that the magistrate to whom this affidavit is directed to make a determination if there is sufficient probable cause to issue a search warrant for the person and premises hereinabove described.
“I make this affidavit for the purpose of securing a search warrant to search the said Gary Dewayne Grisson and his residence located at 608 North Washington Street, Tuscumbia, Colbert County, Alabama.”

Appellant is correct in relying upon Davis v. State, 46 Ala.App. 45, 237 So.2d 635, aff’d 286 Ala. 117, 237 So.2d 640 (1970) for the following proposition asserted by appellant:

“In order to show a substantial basis for crediting an informer’s hearsay as a basis for the issuance of a warrant to search for narcotics, the magistrate must be informed of (a) some of the underlying circumstances from which informant concluded that narcotics were where he claimed they were, and (b) some of the circumstances from which the officer concluded that the informant was credible or that his information was reliable.”

However, appellant is incorrect in urging that the affidavit in the instant case is of the same or similar mold as the affidavit held to be insufficient by both appellate courts in Davis. The affidavit in the instant case includes the essential features of such an affidavit stated in both (a) and (b) of appellant’s quoted proposition. Omitted from the affidavit in Davis, but included in the affidavit in the case now on appeal, are (a) the underlying circumstances of the informant’s statement as to the location of marijuana, “that he saw the illegal drugs at said residence within the past 48 hours” and (b) circumstances from which the affiant concluded that the informant was credible as shown by the affidavit that the informant “has proved to be reliable in the past and upon whose information I [affiant] have acted and upon whose information drugs have been found and cases made” prior to the date of the affidavit. As to the specific essentials (a) and (b), we observe marked similarity to, and material difference from, the affidavit held sufficient in Funches v. State, Ala.Cr.App., 318 So.2d 762 (1975). The trial court was not in error in denying defendant’s motion to suppress the evidence.

The only other issue presented by appellant is as to the action of the court in overruling defendant’s motion to exclude the State’s evidence on the asserted ground that there was a “failure of the State to make out a prima facie case against the defendant.” It is significant that this point is addressed to the state of the evidence at the time the State rested and before defendant had called his witnesses, including himself, in defense of the case.

Officer Randy Jones testified that accompanied by other officers he went to 608 North Washington Street, Tuscumbia, to execute the search warrant that he then possessed. Defendant was in the carport, and the search warrant was presented to him at that time. Aided by the “Canine Unit,” Officer Hugh Mills and his dog, the entire residence was searched. Officer Don Harmon found a plastic bag containing three small plastic bags of marijuana in the top drawer of the bedroom chest in the front bedroom. After defendant had been advised and warned as to his constitutional rights in connection with answering any questions asked him, the testimony of Officer Jones shows:

“Q. Now, did you ask any questions to Mr. Grissom at that time?
“A. Yes, sir, I did.
“Q. What did you say?
“A. I asked Mr. Grissom if that bedroom where the marijuana was found was his bedroom, and he relayed to me at that time that it was his bedroom.
“Q. He said it was his bedroom?
“A. Yes, sir.”

The testimony of Officer Mills was largely cumulative of that of Officer Jones. In addition, he testified specifically:

“Q. Do you remember anything about the type of clothing found in the room where the marijuana was found?
“A. Yes, I remember the defendant did make a statement that that was his room.
“Q. You did hear that?
“A. Yes, sir, but as to the fact of the marijuana being his, I did not hear him say that.
“Q. But you did hear him make the statement that was his room?
“A. Yes, sir, I did.
“Q. What I’m asking you, what I just asked you though, do you remember anything about what type clothing was in that bedroom?
“A. Yes, sir, it was male clothing and if you can tell any difference nowadays, it was very evidently a male’s bedroom, and not a female’s, as far as there was no little doilies on the dresser or anything like that.”
Officer Don Harmon testified inter alia:
“MR. HARMON: Well, Mr. Grissom stated that was his bedroom, so I took it for granted that was his clothes in the bedroom.
“MR. HUTCHISON CONTINUES: Are you saying it was men’s clothing?
“A. Yes, sir, it was.
“Q. Did you see any women’s clothing of any kind?
“A. No, sir, I did not.
“Q. And you did hear Mr. — You are telling the Court you did hear Mr. Grissom make the statement that was his bedroom?
“A. Yes, sir, I did.”

At the time defendant presented his motion to exclude the evidence, at the conclusion of the evidence for the State, there was no evidence of any joint occupancy of the house searched.- The evidence was that defendant lived there. There was evidence, by defendant’s own statement, that the bedroom searched was defendant’s bedroom. Defendant was present at the time the officers arrived; and they showed him the search warrant. He was apparently in charge of the premises at the time and responded to their informing him of the search warrant by telling them to go ahead. After the State rested, defendant presented evidence by witnesses who to a great extent at least were joint occupants of the house. Their testimony did present a serious question as to the possibility or the likelihood that the marijuana found in the top dresser drawer of the front bedroom was placed there by the defendant, or on the other hand by some other joint occupant of the house. Appellant does not present any issue as to the sufficiency of the evidence to support the verdict in the case at the time the case was submitted to the jury. For that .reason, we will limit most of our further discussion to the issue raised by appellant as to the sufficiency of the evidence at the time the State rested its case. At that time, the evidence was to the effect that appellant was the sole occupant of the room in which the marijuana was found and there was no evidence that there was any joint occupancy of any part of the house. He was the only person who confronted the officers when they arrived to conduct the search or who talked with them while the search was conducted. According to the testimony of one of the officers, the defendant said after the officers found the marijuana in the top drawer of the bedroom that they would find no more “dope” in the house.

Appellant relies upon a number of cases in which there was evidence of joint occupancy of the premises, in some of which there was joint occupancy of the room in which the controlled substance was found. It has been repeatedly held that the prosecution is required to show more against an accused under circumstances of joint occupancy than when he is the exclusive occupant of premises on which the contraband is found.

“A review of these and numerous other cases convinces this Court that the law in Alabama is clear that where a person is in possession, but not exclusive possession of premises, it may not be inferred that he knew of the presence of any controlled substance found there unless there are other circumstances tending to buttress this inference. 56 A.L.R.3d 948, 957 (1974). See also Mulligan v. State, 513 P.2d 180 (Wyo.1973); Feltes v. People, 178 Colo. 409, 498 P.2d 1128 (1972). This holding is simply a corollary of the presumption of innocence and the rule that to convict a person on circumstantial evidence it is necessary that the evidence exclude all rational conclusions except that of the defendant’s guilt. Campbell v. State, 28 Ala.App. 240, 182 So. 89 (1938); Copeland v. State, 23 Ala.App. 91, 121 So. 445 (1929). While nonexclusive possession may raise the suspicion that all occupants had knowledge of the contraband found, a mere suspicion is not enough. Campbell, supra. What is required is some evidence that connects the defendant with the contraband that is found.” Temple v. State, Ala.Cr.App., 366 So.2d 740, 743 (1979)

In Temple, supra, the controlled substance was found in the freezer compartment of the refrigerator in the kitchen of the house in which defendant, defendant’s wife and her children lived. Defendant was not at home at the time the controlled substance was found by the officers. He testified “that he had no knowledge of the presence of the cocaine; that his kitchen had been recently remodelled and that several workmen had access to the refrigerator.” In holding that the evidence was not sufficient to warrant a submission of the case to the jury, the facts therein were expressly distinguished from those in McHellen v. State, Ala.Cr.App., 351 So.2d 689, 692 (1977), where it is stated:

“We think the evidence sufficiently supported an inference for the jury’s consideration that appellant knew the controlled substance was in his house:
“(a) Appellant was home when the search was made and had lived at such address since 1938.
“(b) Even though appellant testified that he rented one bedroom to a young lady, the heroin was found in the kitchen area, a neutral part of the house.
“(c) The heroin was found underneath a loose piece of linoleum tile in front of the refrigerator, a place which is not easily unnoticed.”

Although presence of the accused at the place where the controlled substance is found is not in and of itself sufficient to show his knowledge of the character and the presence of the controlled substance, it is a circumstance to be considered against him when coupled with the fact that he is in exclusive control of the place at the time the substance is found. In the light of the testimony at the time the motion to exclude the evidence was presented, there existed the possibility that someone other than defendant placed the marijuana in the top drawer of the dresser of his bedroom but there was no evidence that pointed to anyone other than the defendant. The circumstances narrated were sufficient, in the absence of any other evidence on the subject, to present a jury question as to the guilt vel non of defendant. The trial court was not in error in overruling defendant’s motion to exclude the evidence.

Appellant does not present an issue to the effect that at the conclusion of the trial there was not substantial evidence of defendant’s guilt, and we feel it unnecessary to narrate the evidence presented after the motion to exclude the evidence was overruled. We deem it sufficient to state that there was evidence showing that defendant was not the only person who lived at the residence. Also living there were defendant’s father and mother who occupied bedroom three and defendant’s paternal grandfather who occupied bedroom two. For about six months a brother and sister-in-law of defendant lived at the house and at times would sleep in bedroom one. Occasionally another sister-in-law of defendant would come to the house and sleep in the front bedroom (bedroom one) on occasions when defendant was not at home or would sleep on a couch in the living room or den. The evidence was strong to the effect that the bedroom was primarily defendant’s bedroom even though it was used to some extent by some of the others mentioned, either when he was away from home or slept on a couch in another part of the house. The evidence was strong also that the dresser in which the marijuana was found was defendant’s dresser exclusively, except that at times the bottom drawer thereof was used by others for some of their personal belongings. The evidence was extraordinarily strong that the top drawer, the one in which the marijuana was found, was used exclusively by defendant. To the credit of defendant, it should be said that in his testimony, although he denied knowledge of the presence of the marijuana, he did not attempt to charge anyone else with the crime.

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

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

AFFIRMED.

All the Judges concur.

      . As shown here and otherwise throughout the affidavit the name is spelled with an “n” as the last letter, but in the warrant it is spelled with an “m” as the last letter, as it almost uniformly appears throughout the record.


author: BOYD, Justice. ENGLAND, C. J., and OVERTON and SUNDBERG, JJ.,

text:
    John GIBSON, Petitioner, v. AVIS RENT-A-CAR SYSTEM, INC., et al., Respondents.
    No. 55553.
    Supreme Court of Florida.
    May 15, 1980.
    Rehearing Denied Aug. 28, 1980.

      B. K. Roberts of Roberts, Miller, Bagget, LaFace, Richard & Wiser, Tallahassee, and Richard Baron of Corrigan, Baron & Zel-man, Miami, for petitioner.
    Robert L. Dubé and Richard M. Gale, Miami, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review a district court decision affirming the trial court’s order directing a verdict for the respondents. Gibson v. Avis Rent-A-Car System, Inc., 362 So.2d 960 (Fla. 3d DCA 1978). For the reasons given in the discussion to follow we have determined that the district court’s decision creates conflict giving us jurisdiction under article V, section 3(b)(3), Florida Constitution.

The petitioner Gibson sued the respondents for damages resulting from a multiple car collision on an interstate highway. Defendant Arata, while intoxicated, stopped his automobile for no apparent reason in one of the inner lanes of the divided highway. A second car stopped behind him; the driver got out and began directing traffic around the two cars. Seeing the stationary cars and the second driver, petitioner Gibson managed to bring his car to a halt a few feet from the second car. He was immediately struck from behind by a fourth vehicle driven by codefendant McNealy. The force of the impact propelled Gibson’s car into the second car.

Gibson sued Arata, McNealy, and Avis Rent-A-Car System, Inc., the owner of the car operated by Arata. After the plaintiff presented his case to the jury, the defendants moved for directed verdict. The court granted the motion as to respondents Arata and Avis and denied McNealy’s, holding that McNealy’s negligence was an efficient intervening cause of petitioner’s damages. Gibson and McNealy settled their dispute and Gibson appealed the ruling as it applied to Arata and Avis. The district court affirmed, citing Nuno v. Balz, 255 So.2d 714 (Fla. 3d DCA 1971) cert. dismissed 265 So.2d 10 (Fla.1972), and Pass v. Friedman, 140 So.2d 883 (Fla. 3d DCA 1962) cert. denied 146 So.2d 752 (Fla.1962).

This Court has certiorari jurisdiction based on conflict when a district court of appeal misapplies the law by relying on a decision which involves a situation materially at variance with the one under review. Wale v. Barnes, 278 So.2d 601 (Fla.1972); Arlt v. Buchanan, 190 So.2d 575 (Fla.1966).

The district court here relied on Pass v. Friedman, which involved a multiple car collision where the plaintiff was the driver of the third car and sued the drivers of the first car which was stopped on the highway and the fourth car which struck him from behind. The defendant driver of the stopped car had a flat tire and left his lights on. Half an hour passed before the collision. The trial court granted him summary judgment and the district court of appeal affirmed on the ground that, as a matter of law, the driver was not negligent. Arata’s conduct here was different; here the issue is not whether Arata was negligent but whether McNealy’s conduct was an efficient intervening cause breaking the chain of causation between Arata’s negligence and the petitioner’s damages. The court below relied on a case with facts materially distinguishable from those of the case at bar and thus misapplied the law.

The district court also relied on Nuno v. Bate, which upheld a summary judgment for the defendant on the ground of the plaintiff’s contributory negligence. This Court abolished the doctrine that contributory negligence of a plaintiff precludes recovery in Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Conflict certiorari jurisdiction exists when a district court relies on a decision that has been overruled by this Court. Giannini Controls Corp. v. Eubanks, 190 So.2d 171 (Fla.1966).

The issue we must decide is whether the trial court erred in finding that as a matter of law McNealy’s negligence was an intervening cause relieving the respondents of liability.

Gibson in bringing his action alleged that Arata’s negligent conduct partially caused his damages. A person who has been negligent, however, is not liable for the damages suffered by another when some separate force or action is “the active and efficient intervening cause,” National Airlines, Inc. v. Edwards, 336 So.2d 545, 547 (Fla.1976); Kwoka v. Campbell, 296 So.2d 629 (Fla. 3d DCA 1974) cert. denied 304 So.2d 450 (Fla.1974), the “sole proximate cause,” Atlantic Coast Line R. Co. v. Ponds, 156 So.2d 781, 784 (Fla. 2d DCA 1963); accord, 349 So.2d 1187 (Fla.1977), or an “independent” cause. Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175, 177 (Fla. 1976); Tuz v. Burmeister, 254 So.2d 569 (Fla. 1st DCA 1971) cert. denied 260 So.2d 514 (Fla.1972).

On the other hand, one who is negligent is not absolved of liability when his conduct “sets in motion” a chain of events resulting in injury to the plaintiff. Sardell v. Malanio, 202 So.2d 746, 747 (Fla.1967); Loftin v. McCrainie, 47 So.2d 298, 302 (Fla.1950). The court below based its ruling on the rationale that Arata’s negligence did not cause or produce McNealy’s negligence, and that the latter’s negligence was “an efficient intervening cause” relieving Arata of liability. Gibson v. Avis Rent-A-Car System, Inc., 362 So.2d at 961.

While the holding of the courts below that McNealy’s conduct was the sole cause may be seen as correct from the standpoint of physical causation, the question of whether to absolve a negligent actor of liability is more a question of responsibility. W. Prosser, Law of Torts, § 44 (4th Ed. 1971); L. Green, Rationale of Proximate Cause, 14270 (1927); Comment, 1960. Duke L.J. 88 (1960). If an intervening cause is foreseeable the original negligent actor may still be held liable. The question of whether an intervening cause is foreseeable is for the trier of fact. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977); Exchange Bank of St. Augustine v. Florida Nat’l Bank of Jacksonville, 292 So.2d 361 (Fla.1974); Cruz v. Hundley, 371 So.2d 698 (Fla. 3d DCA 1979); Railway Express Agency, Inc. v. Garland, 269 So.2d 708 (Fla. 1st DCA 1972) cert. denied 275 So.2d 14 (Fla.1973); Savarese v. Hill, 128 So.2d 775 (Fla. 3d DCA 1961).

Another way of stating the question whether the intervening cause was foreseeable is to ask whether the harm that occurred was within the scope of the danger attributable to the defendant’s negligent conduct. A person who creates a dangerous situation may be deemed negligent because he violates a duty of care. The dangerous situation so created may result in a particular type of harm. The question whether the harm that occurs was within the scope of the risk created by the defendant’s conduct may be answered in a number of ways.

First, the legislature may specify the type of harm for which a tortfeasor is liable. See Vining v. Avis Rent-A-Car, above; Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1976) cert. denied 348 So.2d 946 (Fla.1977). Second, it may be shown that the particular defendant had actual knowledge that the same type of harm has resulted in the past from the same type of negligent conduct. See Homan v. County of Dade, 248 So.2d 235 (Fla. 3d DCA 1971). Finally, there is the type of harm that has so frequently resulted from the same type of negligence that “ ‘in the field of human experience’ the same type of result may be expected again.” Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441, 443 (Fla.1961) (emphasis in original).

We find that the third method of establishing the scope of risk is applicable to this case. Arata’s stopping his car in the middle of an interstate highway is the type of negligence which “in the field of human experience” may result in the type of harm that occurred here. In this day of multi-lane freeways and fifty-five mile per hour speed limits, a reasonable person would have to conclude that stopping a car in the middle of an interstate creates a risk that other cars may collide as a result of trying to avoid hitting the stopped vehicle. In fact, the courts of this state have been confronted with such a situation several times. E. g., Davis v. Sobik’s Sandwich Shops, Inc., 351 So.2d 17 (Fla.1977); Johnson v. Stroud, 189 So.2d 206 (Fla. 2d DCA 1966) cert. denied 195 So.2d 565 (Fla.1966); Haislet v. Crowley, 170 So.2d 88 (Fla. 2d DCA 1964); Pass v. Friedman, 140 So.2d 883 (Fla. 3d DCA 1962) cert. denied 146 So.2d 752 (Fla.1962). In such multiple car accidents the jury may find more than one driver responsible. Davis v. Sobik’s Sandwich Shops, Inc.; Johnson v. Stroud.

We therefore quash the district court of appeal’s decision and remand this case with instructions that it be sent back to the circuit court for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, ALDERMAN and MCDONALD, JJ., concur.

ENGLAND, C. J., and OVERTON and SUNDBERG, JJ.,

would discharge the writ of certiorari as having been improvidently granted because of the absence of direct conflict between this decision and the decisions asserted as creating conflict jurisdiction.


author: PER CURIAM. BOYD, J., BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Melvyn GREENSPAHN, Respondent.
    No. 57958.
    Supreme Court of Florida.
    May 15, 1980.
    Rehearing Denied Aug. 27, 1980.
    Scott K. Tozian, Asst. Staff Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.

      Melvyn Greenspahn, Miami, in pro. per.
   PER CURIAM.

This disciplinary proceeding against Mel-vyn Greenspahn, a member of The Florida Bar, is before us on complaint of The Florida Bar, report of the referee, petition for review by the Bar, and cross-petition for review by Greenspahn.

The Bar seeks review of only the referee’s recommended penalty of three months’ suspension with automatic reinstatement on the basis that it is too lenient. Rather, the Bar proposes that six months’ suspension with proof of rehabilitation is more appropriate. On the other hand, Greenspahn takes the position that the recommended penalty is too severe and should be diminished. We find that in view of Green-spahn’s prior misconduct and the cumulative misconduct presently before us, a six months’ suspension is appropriate discipline.

These disciplinary proceedings were commenced by a six-count complaint against Greenspahn. The referee recommends that Greenspahn be found guilty of Counts I, III, and VI of the complaint, and the Bar does not challenge the referee’s recommendation of not guilty as to the other three counts. The factual basis for Counts I, III, and VI is succinctly stated in the referee’s report as follows:

As to Count I
(1) That the Respondent received funds belonging to clients (Norma and Julio Serrano) in the sum of $5,000.00, resulting from an insurance claim in October of 1975.
(2) That he failed to maintain said funds in a trust account and to promptly pay said funds to the clients.
(3) That in January of 1976, he did make restitution ... in mitigation the Respondent explained that he was engaged in difficulties with the Internal Revenue Service for which he was about to be incarcerated and was incarcerated in January of 1976.
As to Count III
(1) That the Respondent received the sum of $980.00 on behalf of a client and failed to retain said funds in a trust account.
(2) That he failed to promptly pay said funds to the parties entitled to receive said funds, having received the funds on July 31, 1975, and having paid them to the parties entitled to receive them on April 19, 1977.
As to Count VI
(1) That the Respondent had undertaken to represent a client in a dissolution of marriage proceeding. He received $325.00 as fees and costs.
(2) The Respondent admits that he undertook the matter and received the funds and did not perform any services on behalf of the client.
(3) The Respondent did return the funds, but part was returned after the Grievance Committee hearing on this matter.

Finding that Greenspahn’s past disciplinary record was a public reprimand resulting from a federal misdemeanor conviction and determining that Greenspahn’s period of difficulties from 1974 to 1977 stemmed in part from his difficulty with the Internal Revenue Service which eventuated in his misdemeanor conviction, the referee recommends a three-month suspension with automatic reinstatement.

The Florida Bar suggests that this disciplinary penalty is too lenient when compared with penalties meted out in other cases for similar cumulative misconduct.

In considering the appropriate penalty in a disciplinary matter, we consider prior misconduct and cumulative misconduct as relevant factors. The Florida Bar v. Welch, 272 So.2d 139 (Fla.1972). In The Florida Bar v. Vernell, 374 So.2d 473 (Fla.1979), which is analogous to the present disciplinary .proceeding, we said:

This Court deals more severely with cumulative misconduct than with isolated misconduct. The Florida Bar v. Rubin, 362 So.2d 12 (Fla.1978). In view of Vernell’s prior breaches of professional discipline and his cumulative misconduct in the present case, we hold that a suspension is appropriate. See The Florida Bar v. Solomon, 338 So.2d 818 (Fla.1976).

374 So.2d at 476.

We likewise find under the circumstances of the case before us, a six-month suspension with proof of rehabilitation is warranted by Greenspahn’s cumulative misconduct and prior disciplinary record.

Accordingly, we hereby suspend Melvyn Greenspahn from the practice of law for a period of six months, effective June 16, 1980. Greenspahn is further directed to pay the costs of these proceedings in the amount of $1,107.00.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

BOYD, J.,

concurs in part and dissents in part with an opinion, with which ADKINS, J., concurs.

BOYD, Justice,

concurring in part and dissenting in part.

I would favor the recommendation of the referee providing for a three-month suspension with automatic reinstatement together with payment of costs.

ADKINS, J., concurs.

      . Greenspahn was previously publicly reprimanded by this Court as a result of a federal misdemeanor conviction for willful failure to file income tax returns for the years 1968-1971. The Florida Bar v. Greenspahn, 366 So.2d 396 (Fla.1978).