author: DeCARLO, Judge.

text:
    Joel MITCHUM v. STATE.
    5 Div. 475.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Rehearing Denied May 6, 1980.

      David B. Byrne, Jr., of Robison & Belser, Montgomery, Michael D. Cook, Lanett, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

The grand jury of Chambers County returned against Joel Mitchum an indictment, which charged that he did “unlawfully possess for sale marijuana, a controlled substance contrary to the provisions of the Alabama Uniform Controlled Substances Act.”

Appellant was represented by retained counsel at arraignment and entered a plea of not guilty. The trial of the case was set, and appellant subsequently filed three motions, a motion for a change of venue, a motion for a continuance, and a motion to suppress the evidence. A hearing was held on the motions for a change of venue and for a continuance, and they were denied. A hearing was held immediately prior to trial on the motion to suppress and it, too, was denied. At the trial of the cause before a jury in Chambers County, the appellant was found guilty of possession of marijuana and was sentenced to a term of five years. After considering the appellant’s application for probation, the court amended the sentence and ordered the defendant to serve four months in the county jail with the balance of the sentence on probation.

Prior to trial, a hearing on the appellant’s motion to suppress was held outside the presence of the jury. The evidence submitted at the suppression hearing was as follows:

Detective Lt. Arthur Carmack, Jr., of the West Point, Georgia, Police Department testified that he had conveyed to Lewis Hammock, an investigator with the sheriff’s department in Chambers County, the following information:

“I related to Lewis Hammock that the informant told me, that the week prior to March 21st, an $18,000.00 cocaine deal had gone down in West Point, Georgia. That, one Mr. Joel Mitchum was present when this cocaine deal went down. The informant stated, that during the week of March 21st, he had the occasion to be at Joel Mitchum’s home, on the F.O.P. Road, and he had seen marijuana and cocaine, he had seen it sold there at that home.”

Further, Carmack testified that he discussed with Chambers County District Judge Howard Bryan the same information which had been given to Hammock. However, the witness said that the information had been give over the telephone to Judge Bryan and was not given under oath.

Also, Carmack testified that, in the past, he was given information by this informer which had led to three convictions.

During cross-examination, Carmack said that the informant had related that he had been to Joel Mitchum’s house the week of March 21st that he had seen cocaine and marijuana there at the residence, and that he had seen it sold from that residence.

According to Carmack, the informer stated that the house was located on “F.O.P. Road,” but he did not identify which house. Carmack stated that the informer asked “if I knew where the F.O.P. Road was, off Highway 50, the Lafayette Highway, and I told him I did.” Also, Carmack said that the informer revealed that “they kept some in the refrigerator” and that he told Hammock “to be sure and look in the refrigerator.”

According to Carmack, he saw Hammock later that morning in West Point, Georgia, where Carmack again relayed to Hammock the information which he had received from the informant. Carmack acknowledged that, after this conversation, he had a telephone call from either Hammock or Judge Bryan, with whom he discussed the same information he had previously given Hammock in person and over the telephone.

During Carmack’s testimony at the suppression hearing, the court, at the request of the defense attorney, verified that there had been arrests and convictions resulting from the information given to Carmack by the informant.

During further cross-examination, Car-mack stated that the information he had received from this informant had always proved to be true. Carmack said that the informant did not use cocaine, but he knew cocaine when he saw it.

After continued cross-examination by the defense attorney, Carmack stated to the court that he felt answering any further questions could expose the identity of the informant. The court, at that time, ruled that the witness did not have to answer any further questions concerning the “$18,-000.00 cocaine deal.”

Investigator Lewis Hammock of the Chambers County Sheriff’s Department testified that, on March 21,1979, he received a telephone call from Carmack, who stated that he had been informed of two places in Chambers County where drugs were located on that particular date. Hammock subsequently drove to West Point, Georgia, and talked to Lt. Carmack, who again gave Hammock the same information.

After returning to Alabama, Hammock went to the appellant’s residence and obtained a description of the property in order to procure a search warrant. Hammock testified that he discussed the information with Judge Bryan and that Judge Bryan, at that time, telephoned Lt. Car-mack. According to Hammock, Bryan issued a search warrant based on the information Carmack had given Hammock and on the information Judge Bryan had received during the telephone conversation.

After obtaining the search warrant, Hammock, along with Deputies Lovelace, Gilbert and Williams, served the search warrant on the appellant on March 21,1979, about 5:30 P.M. Hammock testified that the sun was shining when the warrant was served and that Mitchum was standing in his yard talking to a person whom Hammock did not identify.

During cross-examination, Hammock again stated that he told Judge Bryan about Carmack’s information that the informant had seen marijuana and cocaine at the Mitchum’s residence. Hammock acknowledged that the affidavit for the search warrant had not been typed or presented to him until after Judge Bryan had talked to Car-mack over the telephone.

Hammock also acknowledged that the affidavit was compiled from notes which Judge Bryan had made of the conversation with the witness and with Carmack.

The witness stated that Carmack had been informed that the appellant’s house was a “brown brick house, on the P.O.P. Road . . ” Hammock mentioned that he was familiar with the appellant prior to talking with Carmack and that he knew where the appellant lived because he had gone to his house on one previous occasion. Hammock added that, according to Car-mack, the informer was reliable. Hammock stated that Judge Bryan had telephoned Carmack to verify what Hammock had said.

At the end of Hammock’s testimony on the motion to suppress, the defense moved to exclude the evidence obtained under the search warrant, based on grounds previously stated in the motion to suppress and on additional grounds.

The court denied the motion to exclude and the defense called James P. Morgan, Sheriff of Chambers County, as a witness on the motion to suppress. Sheriff Morgan testified that he was on duty the morning of March 21, 1979, but he was not sure whether he worked that afternoon. According to Morgan, he was told that the arrest occurred that night.

During cross-examination, Sheriff Morgan stated that his deputies had the “same authority and responsibilities that I have.”

Jimmy Chapman testified that he lived within a mile or a mile and a half from the Mitchums. On March 21, 1979, at approximately 6:30 P.M. he went to the appellant’s house. He explained that he left his dogs there that morning and picked them up after work. According to Chapman, an individual by the name of Jackie Turner was there with the appellant. Two other people, whom the witness did not know, were also there. Chapman testified that he stayed there only long enough to pick up the dogs. Chapman added that, when he left the appellant’s house, he met Steve Billingsley “coming down the F.O.P. Road going toward Joel’s house.”

Chapman denied seeing any “Chambers County deputies” at the Mitchum residence on that occasion. He added that his visit to appellant’s house occurred after sundown.

During cross-examination, Chapman denied seeing any scales on the kitchen table, but added that he went through the living room, not the kitchen. He also said that his statements regarding time referred to “Eastern time.”

Steve Billingsley testified that he knew that Mitchums and that he had gone to their house on March 21, 1979. Billingsley stated that he and the appellant usually ate oysters together on Wednesday nights and that he had gone to the house to pick up the appellant for that reason. He arrived there about fifteen minutes until seven o’clock and found the appellant, Jackie Turner, and two other persons who were unknown to the witness. Billingsley saw members of the Chambers County Sheriff’s Department arrive about 7:05 P.M. He said that he and the appellant were in the car ready to leave when the men arrived.

During cross-examination, Billingsley stated that he did not see a “Corvette T-top” nor did he see any scales in the appellant’s home. Further, Billingsley said that, after members of the Chambers County Sheriff’s Department came to the Mitchum home, everyone went inside. Later, the appellant told Billingsley that he could leave. Billingsley stated that the deputies were at Mitchum’s house when he left.

At the completion of Billingsley’s testimony, the case was begun before the jury and the following testimony was presented:

Detective Carmack testified before the jury, and his testimony at the trial was substantially the same as his testimony at the suppression hearing.

Hammock testified that, on March 21, 1979, he saw Lt. Carmack in West Point, Georgia. According to Hammock, after the conversation with Carmack, he “checked out” the appellant’s house in order to get a description of the residence and to learn how to get to the house. Hammock testified that the appellant’s house was “a brown house located on the F.O.P. Road, approximately four-tenths of a mile from the railroad tracks.” Hammock took notes on the description and location and went to District Judge Bryan to obtain a search warrant.

At this point in the trial, the court removed the affidavit from the search warrant and received the search warrant without the affidavit into evidence.

According to Hammock, after he and the other officers arrived and entered the Mitch-um house, the appellant advised the officers that his wife was nude in the utility room. The appellant, at that time, was allowed to go to the bedroom and get some clothes for his wife. Hammock stated that it was daytime and that, in his search of the refrigerator, he found a small medicine bottle which contained white powder. Further, he said that he also found a small diary, a scratch pad, and an address book on the bar which separated the dining area from the kitchen. These books were admitted into evidence over defense’s objection, and Hammock stated that these, along with other articles obtained in the search, were collected and placed in plastic bags. According to Hammock, the articles were inventoried at the jail, then placed in the filing cabinet. The next morning, he removed the articles and took them to the lab.

During cross-examination, Hammock said that the search warrant was given to him at approximately 4:00 P.M., Eastern time and that, in addition to searching the refrigerator, he searched the outside of the Mitchum house. Hammock did not search the vehicles, nor did he search the Mitchums.

Greg Lovelace, a captain in charge of the day shift of the Chambers County Sheriff’s Department, testified that, on the day in question, he took part in the search of the Mitchum residence, along with other officers. Lovelace stated that it was daylight when they arrived at approximately 5:30 P.M., and that the Mitchum residence was a brown brick house with an open carport. According to Lovelace, he entered the house and proceeded to the kitchen area, where, on the kitchen table, he found a set of scales, a toothbrush, a couple of metal spoons, a small plastic sifter, several sandwich bags, and one small bag which contained white powder. He explained that the bag which contained the white powder appeared to be the corner of a sandwich bag. Lovelace said that he searched the mantel on the fireplace and found “a reasonably large plastic bottle containing some black capsules.” He testified that this container was in “open view.” Next to the couch he found, on a metal tray, three clear plastic bags containing “a greenish brown vegetable matter.” On the same tray, he also found one small plastic bag which contained some black capsules. Lovelace stated that, to the right of the couch, there was a “cedar chest” and that, in the chest, he found a small, clear plastic bag which contained “crystal” white powder. Also, in the cedar chest he found a cardboard box containing black capsules.

According to Lovelace, all of these items were placed on the kitchen table with other evidence found during the search. Lovelace stated that, during the search, Mrs. Mitch-um came from the rear of the house with a blue money bag. He said that she placed the money bag in the fireplace, and, at that time, Lovelace asked if he could see the bag. The money bag was handed to him, and it contained a brown paper sack with photographs, a quantity of money, and a clear plastic sandwich bag containing white powder. Lovelace explained that this powder “was crystalized,” too. Lovelace said that, inside the paper sack, they found four clear plastic bags containing a “greenish-brown vegetable matter.” He stated that these bags, the bag containing the white crystalized powder, and the other evidence, were taken to the jail along with the Mitch-ums. According to Lovelace, the money bag was laid on the mantel after the brown paper sack and its contents had been removed and turned over the him. Lovelace admitted that the appellant had made no attempt to hide the articles found on the serving tray. Lovelace stated that he was not aware that the scales found in appellant’s kitchen were the type used by veterinarians and that he did not know the appellant clipped dogs.

During further examination, Lovelace stated that two weapons, a twenty-two caliber pistol and a double barrel shotgun, were found in the house. The witness denied seeing any “dog trimmings” on the table or on the floor, nor did he see any clippers on the kitchen table. Further, he said that the powder he saw around the scales on the table did not resemble any gunpowder which he had seen.

Deputy Charles Mark Williams participated in the search of the appellant’s residence along with other officers. Williams stated that, when they arrived at the appellant’s house, Hammock presented the copy of the search warrant to the appellant, who was talking to someone in the yard.

After the appellant was allowed to take clothes to his wife, Williams entered the bedroom and began to search. According to Williams, he found on top of the chest of drawers, a spoon which contained a powder residue. He also found, on the dresser, several bags containing powder and “a metal object that had a ball on one end, — [a] clip was attached to a paper, a piece of paper wrapped around some brown looking material . Williams said that, in the bathroom, he found a handful of “greenish-brownish vegetable looking material in the commode.” Also, at the end of the hall he found “a wooden box containing approximately twenty-five or thirty orange tablets.”

After finding the tablets, Williams was sent by Capt. Lovelace to the front of the house to guard the evidence which was on the table and to guard the appellant and his wife who were in custody.

Williams stated that he recalled seeing the blue money bag in a “pocket book” in the master bedroom. He said that when he “unzipped the bag” and saw money inside, he zipped the bag closed and informed Hammock and Mrs. Mitchum of what he had found. Williams saw the money bag when the appellant turned it over to Capt. Lovelace. According to Williams, Capt. Lovelace, at that time, unzipped the bank bag and took out a brown paper sack which contained “greenish-brownish vegetable material.” Also found in the bank bag was a small plastic bag containing a “white powder substance.” Williams testified that, during this period, the appellant appeared to be “anxious.”

During cross-examination, Williams said that he did not recall accompanying the appellant to the back bedroom to get clothing for his wife, nor did he recall the appellant yelling “anything” to his wife when the officers arrived at the house.

Robert Stanley Gilbert of the Chambers County Sheriff’s Department stated that, on March 21, 1979, he accompanied other officers to make a search at the appellant’s residence. Gilbert stated that it was daylight when he and the other deputies arrived and that the first thing he noticed was the appellant standing in the front yard talking to someone. Gilbert was told to go to the back bedroom, where he found a plastic bottle containing some green-yellow capsules.

Gilbert testified that he had known the appellant for about three or four years and that, in conversing with him after searching the bedroom, his demeanor was “kind of relaxed.”

Gilbert recalled that he saw the blue money bag when one of the deputies asked the appellant to take it out of the fireplace. Gilbert stated that he did not see the blue money bag at the jail while the inventory was being made. He explained that the bag had been forgotten and that he, along with Lovelace and the appellant, returned to the house. When they arrived, the door was locked. They unlocked the door, the appellant retrieved the money bag, and they returned to the jail.

During cross-examination, Gilbert stated that they returned to the appellant’s house at approximately “7:30 or 8:00 P.M. Central time.” Further, he said that the return trip occurred about forty-five minutes after they had originally left the house.

Hammock was recalled by the State. He testified that, when the officers left the appellant’s residence after the search, the blue money bag was not in his possession. He said that the money bag was turned over to him some thirty to forty-five minutes after they had returned to the jail. According to Hammock, he did not examine the contents of the blue money bag when it was turned over to him. The bag was placed in a safe-deposit box in the bank across the street from the jail.

Taylor Nogel, a Drug Chemical Coordinator for the Department of Forensic Sciences, stated that on March 22, 1979, he received a box from Hammock. The witness stated that he analyzed the contents of the box and found some of the items were not controlled substances. Nogel testified, however, that some of these items could be used to make controlled substances. Several of the items taken from the appellant’s house did prove to be cocaine and marijuana, both of which were controlled substances. He stated that State’s Exhibit No. 8, the powder which was contained in the small plastic bag, revealed the presence of cocaine as did the residue in the spoon taken from the Mitchum’s residence.

According to Nogel, the contents of the four zip-lock plastic bags containing the vegetable matter did show, after being analyzed, the presence of marijuana. Nogel testified that the marijuana found in the items turned over to him from the search of the appellant’s house, equaled a total weight in grams of 78.50. Also, he stated that the total weight of cocaine which he analyzed was 0.2319 grams, plus a small amount of residue. He testified that there are 28.3495 grams in an ounce.

Nogel also stated that, in his analysis of the pills turned over to him, he found only one-half of a tablet which contained a controlled substance.

During cross-examination, Nogel testified that one of the non-controlled substances could be converted to a controlled substance by a person who is not a trained chemist if that person were given a step-by-step procedure. Nogel acknowledged that the procedure “was not extremely involved.”

Robert Stanley Gilbert was recalled, and he testified that the blue money bag contained $2,730.00 in cash. The money was admitted into evidence over the objection of the appellant.

During cross-examination, Gilbert acknowledged that the appellant’s wife did own and operate a beauty shop.

At the end of Gilbert’s testimony, the defense moved to exclude the State’s evidence on the ground that there existed a fatal variance between the pleading and the proof regarding the crime alleged in the indictment. He argued also, that a prima facie case had not been proved and that the testimony was based on illegal evidence obtained under a search warrant not issued bn probable cause.

I

The appellant maintains that the affidavit supporting the search warrant did not aver sufficient probable cause to sustain the issuance of a search warrant for the property which was the subject of the search.

The supporting affidavit, omitting the formal parts, reads as follows:

“My name is Lewis Hammock and I am a Deputy Sheriff with the Chambers County Sheriff’s Office. I know Arthur Car-mack and I know that he is a Lt. on the West Point, Georgia, police department. I talked with Lt. Carmack on March 21, 1979. Lt. Carmack told me that he had received information concerning the described premises from a reliable informant. Lt. Carmack said that informant has provided accurate information on at least three occasions where such information led to arrests and convictions. Said informant is familiar with the appearance of cocaine and marijuana and knows each substance when he sees it. Informant has seen cocaine and marijuana sold inside the described premises within the last week.”

The search warrant, omitting the formal parts, reads as follows:

“Affidavit having been made before me by Lewis Hammock that he has reason to believe that on the premises known as [a] brown brick house trimmed in white with black shutters. To reach said house travel toward Cusseta from the cross roads in Huguley where Huguley School is located. Turn onto FOP Road going generally toward U. S. Highway 50. Cross railroad tracks and said house will be located on the left .4 mile past railroad tracks said premises includes any out buildings. “[TJhere is being concealed certain property, namely COCAINE.”

The test for determining whether probable cause existed for the issuance of a search warrant was set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. This court has, on many occasions, re-stated the Aguilar “two-prong test” as it was applied in Spineili v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. In Spineili, the Supreme ‘Court emphasized that an affiant must make more than a conclusory statement concerning the reliability of the informant and must support the tip which was given with facts to show why the conclusion that defendant was in possession of contraband or was committing illegal acts was reached.

See Pilkington v. State, Ala.Cr.App., 343 So.2d 548.

As to the first prong in the Aguilar test, “the veracity prong,” concerning the reliability of the informer, evidence shows that the affiant, Hammock, asserted that the informant had “provided accurate information on at least three occasions” and the information had led to arrests and convictions. Judge Bryant, during the suppression hearing, verified this information. These facts, in our judgment, were sufficient to justify the conclusion that the informer was credible or that his information was reliable. Further, the facts were certainly sufficient to enable the magistrate to make a judicial determination of reliability. See Waters v. State, Ala.Cr.App., 360 So.2d 347; Neugent v. State, Ala.Cr.App., 340 So.2d 55; Bates v. State, 51 Ala.App. 338, 285 So.2d 501.

Regarding the second prong of the Aguilar test, the “knowledge prong” which requires some knowledge of the underlying facts to support the conclusion that a crime had been, or is about to be committed at the premises to be searched, the affiant in the present case stated that the informant had seen “cocaine and marijuana sold inside the described premises within the last week.” Further, the affiant averred that the informant was familiar with the appearance of cocaine and marijuana and knew each substance when he saw it. This information was based on personal observation in sufficient enough detail to enable a detached magistrate to conclude that the evidence was probably located at the place sought to be searched. A detached magistrate could preclude that these allegations were based on suspicion, casual rumor, or an off-hand remark heard at the neighborhood bar. See Yielding v. State, Ala.Cr.App., 371 So.2d 951.

It was not necessary that the affidavit state who owned the premises where the controlled substances were found. Cabbie v. State, Ala.Cr.App., 347 So.2d 546. Also, the description given in the search warrant was sufficient. That description would enable a prudent officer to locate the premises with reasonable certainty. The testimony shows that Hammock was familiar with the house described as a “brown brick house trimmed in white with black shutters,” which belonged to the appellant. Hammock mentioned during his testimony that he was familiar with the appellant’s house and its location. See Neugent v. State, supra, and Hutto v. State, 50 Ala.App. 636, 282 So.2d 75.

The appellant has stated that the magistrate’s failure to examine, under oath, the witnesses relied upon in determining the existence of probable cause was in violation of § 15-5-4, Code of Alabama 1975. Although the substance of the conversation which the magistrate, District Judge Bryan, had with Officer Carmack over the telephone is not made part of the record, there is no evidence to suggest that the judge learned anything from Carmack which he had not already heard from Hammock. In fact, during the suppression hearing, Hammock testified that the judge’s conclusion was based on the information which he had given to the judge and on the judge’s telephone conversation with Lt. Carmack. This court, in Oliver v. State, 46 Ala.App. 118, 238 So.2d 916, addressed a similar issue. There, this court stated that the magistrate’s failure to reduce the evidence to writing would not vitiate an otherwise valid search warrant. Therefore, the magistrate in this case had been provided with all the necessary “facts,” which had been sworn to by Hammock.

The affidavit in the present case was sufficient and did not lack corroboration. The supporting facts of the affidavit, although hearsay, were augmented by a statement that the informant had provided reliable information in the past. Under these facts, the information supplied to the magistrate was not “hearsay alone.” In Neugent v. State, supra, the fact that the informant observed the drugs at the house, coupled with a statement that they were being sold and that he had observed the sale during the past week, was sufficient.

Regarding the contention that the information did not meet the “time test” of Davis v. State, 286 Ala. 117, 237 So.2d 640, we are of the opinion that there were sufficient facts to show that the information given in the affidavit was in fact “fresh.” The affidavit contained a statement that the informant had seen cocaine and marijuana sold inside the described premises “within the last week.” Under these facts, we distinguish Davis. In the present case, the affidavit incorporated the date of March 21, 1979, indicating when Carmack received the information from the informant. In Davis, no such date appeared. We believe that the information was not remote and contained the requisite “freshness.”

In support of his contention that the information asserted in the affidavit was remote rather than “fresh,” the appellant cites Horzempa v. State, 292 Ala. 140, 290 So.2d 220. In Horzempa, although the affidavit stated that drugs were purchased on several occasions “recently,” the court said, “What is meant by ‘recent’ is incapable of exact or precise definition . . ..” Also, in Horzempa, the Alabama Supreme Court said that the affidavit failed to show “that the informants had purchased drugs ‘recently’ in the house or that they had actually seen drugs ‘recently’ in the house.” The Supreme Court stated that the informants did not say that they had “recently seen” drugs in the residence, therefore, if the affidavit included that the drugs been recently seen in the residence, the affidavit would have been sufficient. See Buckles v. State, 50 Ala.App. 548, 280 So.2d 810.

In the case at bar, “within the last week” incorporates a definite period of time which at the most would mean six days ago. Under these circumstances, we believe that the facts outlined in the affidavit were sufficient to assure the necessary “freshness” of the information.

As to the question concerning the re-entry of the appellant’s residence, after the original search had been made, we are of the opinion that this re-entry did not constitute a search and was made only to retrieve something which had already been found. The re-entry occurred some forty-five minutes after the original search had ended and the residence was re-entered merely to get the money bag which had inadvertently been left behind. No searching or probing occurred at that time. Under these particular circumstances, it is our judgment that the obtaining of a second search warrant before éntering the premises the second time was not necessary.

Further, it is our judgment that the affidavit supporting the search warrant in the present case, met the two-prong test laid down in Aguilar v. Texas, supra, despite the fact that the information relayed to Hammock by Carmack could be considered hearsay based on hearsay. In our judgment, such information was acceptable as long as both levels of hearsay meet the two-prong test spelled out in Aguilar v. Texas, supra.

It is our judgment that the affidavit supporting the search warrant met the constitutional requisites, and the ultimate search of the appellant’s residence was permissible.

II

The appellant contends that the law enforcement officers executing the search warrant conducted a constitutionally impermissible general exploratory search.

During the search for cocaine of the appellant’s premises, cocaine was found and several other items of a suspicious character were discovered. In our judgment, the seizure of these additional items was justified under the plain view doctrine. The requirements of the plain view doctrine, an exception to the warrant requirement in the Fourth Amendment, are to be found in Coolidge v. New Hamshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. In Coolidge v. New Hamshire, supra, the United States Supreme Court indicated that the seizure of unnamed items was permissible where police officers have a warrant to search a particular residence for certain items and where, during the course of the search, they “come across some other article of an incriminating nature.” The seizure of these articles does not conflict with the warrant requirement because the police have limited their search to the areas designated in the search warrant. Under these circumstances, an object in plain view and inadvertently discovered can be seized by the police. The court in Coolidge v. New Hamshire, supra, said:

“Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous—to the evidence or to the police themselves—to require them to ignore it until they have obtained a warrant particularly describing it.”

Under Coolidge v. New Hamshire, supra, even though an item is found in “plain view” during a search with a search warrant naming other items, such occurrence does not, necessarily, justify the seizure of that particular item. The court in Coolidge v. New Hampshire, noted it must be an “article of an incriminating nature.” See also Herrin v. State, Ala.Cr.App., 349 So.2d 103.

In the present case, the items seized during the search of cocaine, which was specifically authorized by the search warrant, were items “inadvertently discovered.” These items were of a sufficiently suspicious nature to come within the “incriminating nature” requisite of Coolidge v. New Hamshire, supra. In Herrin v. State, supra, this court noted:

“It is not necessary that the recognition of the object as evidence be made beyond a reasonable doubt but only that the recognition satisfy a probable cause requirement.”

Further, this court in Herrin v. State, supra, adopted the rationale that the “plain view doctrine” authorizes a seizure of items which officers “reasonably suspect” contain controlled substances. The court in Herrin specifically pointed out that, although an article’s “incriminating nature” is not discovered until after analysis has been performed, the seizure is not constitutionally impermissible where the officer, in the beginning, reasonably suspected the items contained controlled substances. In our judgment, the officers in this case could have “reasonably suspected” that the item seized contained controlled substances because of the circumstances existing at the time of the search. For example, the location of items, such as vegetable matter in the commode, the presence of paraphernalia which could be considered “drug paraphernalia,” and the large quantities of items found, such as pills in the amount of 650, all are circumstances, which considered as a whole, authorized the officers to seize the various items.

The supporting affidavit in the present case, stated that the informer had seen cocaine and marijuana sold on the premises. Under the rationale of the “plain view doctrine” in Herrin v. State, supra, the seizure of the scales, the sack containing the white powder, the approximately 650 pills, the spoon with a powder residue, the money bag containing approximately $2,700.00, and the other items taken during the search of the appellant’s residence was justified.

Therefore, the admission of these items was not error, and the motion to suppress was properly denied.

Ill

The appellant asserts that the trial court erroneously received evidence of other crimes or misconduct. He maintains that the introduction of approximately 650 pills, sacks containing white powder, which was later determined to be lactose, and more than two thousand dollars in cash was “clearly calculated to prejudice the accused by wrapping the mantle of ‘drug pusher’ about the defendant’s shoulders.”

The admissibility of evidence of other separate and distinct criminals acts is addressed in Brantley v. State, 294 Ala. 344, 317 So.2d 345. There, the Supreme Court of Alabama stated that the admission of other drugs into evidence is permissible where the other items would show the “complete story.” See also Satterwhite v. State, Ala.Cr.App., 364 So.2d 345; Smith v. State, Ala.Cr.App., 351 So.2d 668.

In the present case, the marijuana, the 650 pills, the scales, the money, and the packages containing lactose show the complete story of whether the appellant did unlawfully possess marijuana for sale. Therefore, the admission by the trial court of the other items was not error.

IV

The appellant complains that certain remarks by the prosecutor during the qualification of the jury venire and during closing argument amounted to a comment on the appellant’s failure to take the stand.

During voir dire examination by the prosecution, the following exchange occurred: “Hon. R. C. Wallace, Jr. — Is there anyone of you, if the evidence was presented to you, and it was not rebutted in any way, would you make an effort—

“MIKE COOK: If it please the Court, we object, I, at this time, move to disqualify the whole jury venire at this time, because Mr. Wallace has just told the whole jury venire, if the State puts on evidence, and there is no rebuttal whatever presented, then, would you find the defendant guilty. Implying that the defendant has to take the stand and testify, and he emphasized ‘no rebuttal.’ “COURT: Motion denied.
“MIKE COOK: Respectfully reserve an exception.
“COURT: You have your exception. Mr. Wallace, come here to the bench. (Out of hearing of jury venire) You know the defendant doesn’t have to testify so keep away from that, and watch how you phrase your questions. Go ahead.”

Also during the voir dire, the prosecution made the following comment, which the appellant says was a comment on the appellant’s failure to take the stand.

“R. C. WALLACE, JR: Alright. Say, they asked they just try one at the time. Then that person is not being tried, takes the stand and says, ‘it’s mine, it wasn’t my husband’s’ or, ‘it wasn’t my wife’s’ then, whatever it was, was in clear view, or both parties had access to it at all times, whether or not you would give that any weight?
“MIKE COOK: I object to this question, on the same grounds previously stated, it tries to give a false impression as to the law, it has done nothing but prejudice the minds of the jury, it’s an effort to inhibit the defendant’s fair trial, and on all the previous stated grounds, I still move to quash the venire.
COURT: You jurors can have a seat, thank you.
“R. C. WALLACE, JR: They are not going to have to answer that question Judge?
“COURT: No sir. You are getting back to the question of the defendant taking the stand.
“MIKE COOK: I didn’t want to state that at this time, Judge, but I want to put it on record, this is the second time the State has alluded to the necessity of the defendant taking the stand.”

The first comment was incomplete, and the intent of the prosecutor cannot be truly comprehended. We also note that, due to the fragmentary nature of the comment, it is difficult for this court to determine whether this remark was in fact improper.

Regarding the second comment, we note that, during the voir dire examination, there were remarks by the prosecution that the defense attorney had raised the same issue. We also note that the defense attorney objected to the remark as an improper statement of the law and did not object on the ground that the remark was a comment on appellant’s anticipated failure to take the stand.

In our judgment, it is difficult to perceive that the remarks made during the qualifying of the jury had the prejudicial nature attributed to them by the appellant.

The appellant has also complained that, during the closing argument of the prosecution, the following remarks, which the appellant contends were comments on his failure to take the stand, were made:

“CONTINUE WITH ARGUMENT BY JOEL HOLLEY:
“And, I’m not going to take up any more of your time, because I think you are twelve intelligent people. Take this evidence back with you, and you look at it. And you remember that you are the enforcers of the law, the District Attorney’s Office can’t enforce the law, the police officers can only go so far, and the Court can only go so far. It’s up to you all. And I want you to pay close attention to what the defendant has to say, and pay close attention to what the Court has to say. And, if you can reason away, taking what the Toxicologist said about the amount of marijuana here, that in his opinion you can make between 100 or 150 cigarettes — I don’t smoke, but how many cartons of cigarettes do you all buy at a time? You go back there and reason away all this evidence, and you are either going to let this defendant go, and find him not guilty, or you going to come up with something beyond my reason.” [Emphasis added]

The appellant insists that the foregoing remarks were improper because they were comments on defendant’s failure to testify. In our judgment, these remarks by the prosecution were not improper. Clearly the remarks were a call by the prosecution for the jury to pay close attention to what the defendant had said and not to what he was going to say. At this point in the trial, all the testimony had been completed; therefore, no other evidence was forthcoming. We do not believe that any of the remarks made during the voir dire examination nor during the closing argument were comments on the appellant’s failure to take the stand. Neither do we believe that these remarks taken in combination would constitute a comment on this appellant’s failure to take the stand.

We have searched the record and transcript of evidence in this case and, finding no error, we affirm the judgment of conviction by the Chambers Circuit Court.

Affirmed.

All the Judges concurred.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte Joel MITCHUM. (Re: Joel Mitchum v. State of Alabama).
    79-612.
    Supreme Court of Alabama.
    June 27, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Amos WILLIAMS v. STATE.
    3 Div. 819.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Frank L. Thiemonge, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jimmy L. Debardelaben, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Murder; life.

The State has filed a motion to strike the court reporter’s transcript of the evidence and to dismiss the appeal, contending that the transcript was not filed with the circuit court within the time allowed by law. Under Rule 2, A.R.A.P., we exercise our discretion and review the record.

On October 9, 1974, Daisy Johnson, cashier at Delchamps in Montgomery County, Montgomery, Alabama, was present during a robbery of the store in which Crawford Herring, an employee, was shot and killed. She testified that, at approximately 8:30 P.M. on the evening of the alleged incident, she was operating cash register number four when she heard a “clatter at the door like something hit the glass.” When she turned around, she saw “these men standing there with shotguns.” According to Johnson, two men stayed at the front, one holding a shotgun and one holding a pistol and the others dispersed in different directions over the store. She said that the men were dressed in dark, long coats and wore ski masks.

The man with the pistol pointed it at her and attempted to open the register. When he was unable to open the register, she opened it, removed the money, and placed it in a bag which he had slung over his shoulder. Johnson stated that another man stood at the front holding the shotgun on the other people in the store. All were directed to lie on the floor, face down. While lying on the floor, she heard one of the men tell Crawford Herring “to get up and open the other register.” According to Johnson, Crawford got up and opened the register. She then heard the man say, “This white man thinks I’m playing.” At that point, she heard a gunshot and after the shot, she heard the man say, “Let’s go.” She then heard “a lot of people running,” as the men were leaving the store.

Johnson testified that she was afraid during the incident. When she got up after the robbers were gone, she saw Herring lying on the floor in a puddle of blood. He had been shot in the neck and was not breathing. Further, the witness stated that there was a nurse in the store and, after examining Herring, she determined that he was dead. The police, the manager and the assistant manager of the store arrived later.

Johnson could not identify any of the people who had robbed the store. She recalled that she was directed to open the register by the man holding the pistol.

During cross-examination, the witness acknowledged that she could not identify the voices of any of the men involved in the robbery. She stated that, when the men first entered the store, the man with the shotgun approached her register and said, “This is a holdup,” or, “This is a robbery.” According to Johnson, the man with the pistol was standing beside the man with the shotgun.

On the night of the robbery, Floyd Stin-son had gone to the Delchamps Supermarket to make some purchases. He testified that he was there at approximately 8:30 P.M., when four men ran into the store. Two of them ran to the back and two stayed at the front. Stinson said that all the men wore masks over their faces and that one of the two men who remained at the front of the store carried a shotgun while the other man held a pistol.

Stinson described the man holding the pistol as approximately five feet and seven inches tall and weighing about 140 pounds. The witness described the pistol as a .38 with a long barrel. He stated that the armed man removed the money from the register and placed it into a bag.

Stinson testified that, after he got on the floor and immediately before the men ran from the store, he heard a shot. He said that, after the men left the store, he saw Herring lying in a puddle of blood with a hole in his neck.

During cross-examination, Stinson acknowledged that the leader appeared to be the man armed with the shotgun. Stinson recalled that, when the money was being removed from the register, the man with the pistol said, “Get it all.”

Sixteen-year-old Mickey Hodge was working at Delchamps on the evening of the robbery, and he, along with Harold A. Henderson, was in the “ware room” at the time of the robbery. Hodge testified that, as he was about to go to the front of the store, one of the men wearing a mask rushed through the door to the ware room and asked, “Is there anybody upstairs?” Hodge recalled that he informed the man that no one was upstairs. The man then left and went back to the front of the store. Hodge said that, after a second, the man came running back to the ware room and ordered, “Get on the floor.” The witness said that a “sawed off shotgun” was in the man’s hand and that he and Harold fell to the floor. When the man turned and ran back through the ware room to a door toward the front of the store, Hodge heard a loud noise like a shot.

According to Hodge, after a minute, he heard a noise at the back of the building. When he looked out the back door he saw a group of men running down the street, all dressed in masks and overcoats. Hodge closed the back door and locked it, then walked to the front of the store. He said that Daisy Johnson was yelling that “they shot Crawford and to call the police.” Hodge saw Crawford Herring, bleeding from the back, lying near register number two. He said that Herring did not moan or say anything at that time. During further questioning, Hodge stated that he had never had a “sawed-off shotgun” pointed at him before the robbery at Delchamps and that he was afraid.

Harold Henderson, Jr., an employee at Delchamps on the night of the robbery, gave testimony which was substantially the same as that given by Mickey Hodge. Henderson stated that he saw approximately four or five men running down the street when he and Hodge looked out the back door after the robbery.

Wayne Bullard was the assistant manager of Delchamps on the evening that it was robbed. He testified that he was called to the store where he checked the registers and determined that $630.00 had been taken during the robbery. On the night of the robbery, Bullard saw Herring lying on the floor in a puddle of blood near the second register. Bullard said that it was his observation that Herring was dead.

Detective Cecil H. Humphrey of the Montgomery Police Department investigated the Delchamps’ robbery on the night of its occurrence. He testified that he found several shotgun shells outside, strewn from the front door, south, to Hannon Street, then, west, toward the rear of the store. According to Humphrey, about ten, twenty gauge shotgun shells were found, and only one shell was spent or fired. The officer said that the spent shell was turned over to Dr. Charles White, a State toxicologist.

Humphrey recalled that, on Saturday, October 12,1974, three days after the robbery, he went to the WPAX radio station. At that time, Arthur Lewis, along with others came out of the radio station. Humphrey acknowledged that, on that occasion, he had found more than one shotgun in the station.

During the trial, he identified State’s Exhibit No. 5 as the twenty gauge pump shotgun that he found inside the radio station. Humphrey testified that this gun had been turned over to State Toxicologist, Dr. Charles Smith.

During cross-examination, Humphrey stated that he did not see the appellant on October 12,1974, nor did he see him on the night of the robbery at Delchamps.

On further questioning, this witness stated that he saw three individuals come out of the radio station. They were Julian Davis, Reginald Reese Robinson and Arthur Lewis. According to Humphrey, three weapons were found inside the station.

Dr. Charles Wesley Smith, of the State Department of Toxicology and Criminal Investigation in Montgomery, testified that he made a comparison test on a Remington twenty gauge spent, rifle slug and a twenty gauge sawed-off shotgun, both of which had been turned over to him by Detective Humphrey. Smith stated that the comparison test on the twenty gauge shell and the twenty gauge shotgun indicated that the shell had been fired in the receiver of the shotgun to the “exclusion of all other guns of similar make and caliber.”

James H. Evans, District Attorney for Montgomery County, Alabama, testified, outside the presence of the jury, that he talked to the appellant on January 25, 1975. The district attorney stated that he had advised the appellant of his constitutional rights prior to the conversation and that he made a tape recording of the conversation with the appellant.

During the trial, transcriptions of the tape recording were read into the record. The transcriptions showed that the appellant had been made aware of his constitutional rights and indicated that he had signed a waiver of those rights. In the taped interview, the appellant admitted his participation in the Delchamps’ robbery, but denied shooting Crawford Herring. The appellant admitted that he was standing beside Herring when he was shot. According to the appellant, he had with him a .38 caliber pistol and did remove money from the register.

Further, the transcription revealed that the appellant said that Arthur Lewis carried a twenty or a twelve gauge shotgun during the robbery and that Charles Williams had a “cut-off — .22 rifle.” The appellant chose not to reveal, in his statement, who shot Crawford Herring. The appellant denied shooting the deceased. Also, the appellant stated that all of the men were involved in the planning of the robbery and that all wore “ski masks” during the robbery.

At the end of Mr. Evans’ testimony, the State rested its case, and, after overruling the defense’s motion to exclude the State’s evidence on the ground that the State had failed to make a prima facie case, the defense called its first witness, Alphonso Davis.

Davis testified that he had been charged with the murder of Crawford Herring. The witness stated that he knew Arthur Lewis with whom he had become acquainted through a karate class. Davis testified that the robbery at Delchamps occurred about a week or a week and a half after he attended his first karate lesson. Also, Davis said he had no knowledge that the robbery had been planned. He stated, “It was something to my knowledge that just come about right prior to the time in which it happened.”

Davis testified that Arthur Lewis had directed him to buy the ski masks and that, later, Lewis told them that the masks were to be used in the robbery of the Delchamps store. The witness recalled that Lewis told the men that he had been sent by God and that he was God.

During cross-examination, Davis stated that, after the robbery, he heard Arthur Lewis “speak about” the killing of Crawford Herring. Further, he admitted that “there were words exchanged” by all of them concerning the killing and that the appellant was present at the time. Charles Williams, witness for the defense, was not willing to testify in the case against the appellant. Williams testified that he was in custody at the city jail for the Delchamps robbery and that he had previously testified for the district attorney in the trials of Arthur Lewis and Julian Davis. The defense attorney, at that time, moved for production of the transcripts of Williams’ testimony given at the previous trials, but the motion was denied by the court.

Amos Williams, the appellant, testified that sometime after 1973, he met Arthur Lewis, then later met Reginald Robinson, Julian Davis, Charles Williams and Alphonso Davis. The appellant acknowledged that Lewis had claimed to be “Allah.” Williams stated he did not know what to believe and said, “I was mixed up because knowing the power which he had he could have been anybody.” According to Williams, he and the others were students of Arthur Lewis.

Williams testified that he was arrested in Kentucky on charges arising from the robbery of Delchamps. He was taken before a judge in Kentucky and, when asked if he wanted a lawyer, the appellant answered affirmatively. According to appellant, he did not receive an attorney, was later transferred to Montgomery, and remained in the county jail until he talked with the district attorney.

Williams testified that he had participated in the Delchamps’ robbery and that he had a gun at the time. Further, he acknowledged that he never intended to shoot anyone and that he had not been given any instructions to shoot anyone.

Immediately after the robbery, the men returned to Lewis’ apartment. The appellant carried the money in a sack and placed it on a table. He stated that he had asked “Teacher” Lewis to give him some of the money so that he could buy food for children. According to Williams, he was given ten dollars to purchase food. The appellant denied that he got any money for his personal use and added that the money taken during the robbery was to be used for the poor.

During cross-examination, Williams admitted that he was involved in the robbery and that he “got the money out” of the store. Further, he stated that he went to Kentucky because the police were after him. The appellant denied shooting Herring and denied having any knowledge that Herring was to be killed. Williams also denied that he “stuck” his gun in Herring’s back.

Amos L. Williams, Sr., father of the appellant, testified that, his son had been “sickly” most of his young life and had not appeared to be a normal baby. According to the witness, the appellant had been hit on the head with a baseball bat during an early period in his life and had experienced hallucinations. Williams testified that his son, in his opinion, was abnormal, and on October 9, 1974, at the time of the robbery, his son was “insane.”

The testimony of Alvetta Bell Williams, mother of the appellant, paralleled that of her husband, Amos L. Williams, Sr. She stated that, in her judgment, on October 9, 1974, at the time of the robbery, her son was not normal.

Dr. Stickney, a psychiatrist and clinical director at Montgomery Mental Health Center, testified that he had examined and re-evaluated the mental condition of the appellant at the request of the appellant’s attorney. This evaluation occurred during an interview with the appellant which lasted for approximately forty-five minutes to an hour. Based on observation of the appellant, the history which the Dr. obtained and a discussion with appellant’s parents, Dr. Stickney’s diagnosis was that the appellant suffered from a condition known as “hysterical personality.” According to Dr. Stickney, this condition is characterized as a mental disease in the diagnostic Manual of the American Psychiatric Association. The witness doubted that the appellant appreciated the gravity of his offense at the time he was arrested. Dr. Stickney had “strong doubts” about appellant’s capacity, at the time of the robbery, to form the intent to take a human life. Further, he said that, in his opinion, the appellant did not have the capacity to premeditate or deliberate a criminal offense.

During cross-examination, Dr. Stickney admitted that his clinical impressions were based on a forty-five minute interview with the appellant. However, on further examination, the doctor said that the length of the interview was “just about standard form for diagnostic interview.”

At the end of Dr. Stickney’s testimony, the defense rested, and the case was submitted to the jury.

I

The appellant contends that the State failed to prove that part of the indictment which charged Amos Williams with the killing of Crawford Herring by shooting him with a sawed-off shotgun. The appellant argues that malice aforethought was not proved.

Title 14, § 14, Code of Alabama 1940, Recomp.1958, provides, in pertinent part:

“[All] persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, . . .”

The law is well settled in this State that, although an appellant may not have fired the fatal shot, such fact does not bar his conviction because one who aids another in the commission of a criminal offense is as equally responsible as the actual doer of the act. King v. State, 49 Ala.App. 111, 269 So.2d 130; Brown v. State, 41 Ala.App. 641, 148 So.2d 255. See also, Miles v. State, Ala.Cr.App., 343 So.2d 801; Roberson v. State, 218 Ala. 442, 118 So. 654. Title 14, § 314, Code of Alabama 1940, Recomp.1958, provides, in pertinent part:

“Every homicide . . committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery . is murder in the first degree.”

The fact that the specific allegation concerning the shooting with a shotgun was not shown was not error under the rationale of Brown v. State, supra, and King v. State, supra. That the appellant was present, willing and able to aid in the commission of the Delchamps store robbery was sufficient for a conviction of murder in the first degree, even though he did not fire the fatal shot.

Because there was evidence showing that a robbery had been committed and that a homicide had resulted from that robbery, then the homicide was murder in the first degree and the criminal intent which is involved in the commission of the robbery itself “supplies the place of malice aforethought.” Hardley v. State, 202 Ala. 24, 79 So. 362.

II

The appellant maintains that the shotgun identified by Detective Humphrey as the one taken from the radio station was erroneously admitted into evidence because the gun was in “no way linked directly to the defendant.” Appellant argues that there was no eyewitness to testify that the shotgun appeared to be the shotgun used at the time of the robbery.

“As a general rule, articles, including those found at the scene of the crime, which are properly identified and which tend to show the commission of the crime or the manner in which it was committed, or to elucidate some matter in issue, are admissible in evidence for inspection and observation by the jury.” Lackey v. State, 41 Ala.App. 46, 123 So.2d 186.

In Jackson v. State, Ala.Cr.App., 337 So.2d 130, this court, in addressing a similar question, said:

“[T]he jurors were, of course, entitled to give this evidence such weight as they deemed sufficient under all the facts duly presented to them in this case. We think the jury could deduce that the appellant was connected to the weapon used in the commission of the crime.”

See also, Kyzer v. State, 250 Ala. 279, 33 So.2d 885; Means v. State, 51 Ala.App. 8, 282 So.2d 356.

In the present case, all the witnesses present during the shooting at the Del-champs store stated that they heard a loud noise like the firing of a shotgun and that the noise occurred immediately before the robbers ran from the store. Some of the witnesses stated that, immediately after the robbers left, Crawford Herring was seen lying in a puddle of blood with a hole in his neck.

Further, the witnesses, testified that the two men who were at the front of the store during the robbery were armed with a pistol and a shotgun. Also, the appellant stated that he was armed with a .38 revolver, while his companion, Arthur Lewis, was armed with a shotgun.

Detective Humphrey stated that, during his investigation of the robbery he found several twenty gauge shotgun shells. One of the shells was spent. These shells were turned over to Dr. Charles Smith of the State Toxicology Department.

Dr. Charles Smith testified that he ran a comparison test on the spent twenty gauge shell and the twenty gauge pump shotgun and it was his conclusion that the spent twenty gauge shotgun shell was, in fact, fired from the twenty gauge shotgun found in the radio station. In our judgment, the shotgun was properly identified and was properly admitted into evidence for the jury’s consideration as to whether the shotgun found at the station was in fact the same one used during the robbery and the shooting at the store. The jurors were entitled to give this item of evidence whatever weight they deemed sufficient under the facts presented in the case. Further, we believe the jury could determine that the appellant was “linked” to this weapon and its use during the commission of the robbery.

Ill

It is asserted that the transcript of the recorded confession of the appellant should not have been admitted into evidence. The appellant argues that the State failed to prove the appellant knowingly, intelligently, and voluntarily made the statement. Further, appellant contends that he was not represented by counsel at the time of the statement and was not capable of personally waiving his right to counsel.

The appellant bases his argument on a United States Supreme Court decision, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199,12 L.Ed.2d 246. The appellant’s argument seems to be that Massiah prohibits any confession obtained post-indictment, in absence of counsel, notwithstanding the fact that the confession was voluntarily made after a knowledgeable waiver of the constitutional rights outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Supreme Court of the United States, in Massiah v. United States, supra, was confronted with the admissibility of an incriminating statement made by the defendant to a confederate who had been previously wired with a transmitter. The conversation between the defendant and the co-defendant-confederate was monitored by a police officer with a radio receiver. In Massiah, the court was concerned with the admission of incriminating words which had been deliberately elicited from Massiah after he had been indicted and while he was unattended by counsel.

We recognize that in Massiah v. United States, supra, certain special circumstances existed which tainted the extrajudicial statements made voluntarily, after indictment and without counsel. In our judgment, our reading of Massiah v. United States, supra, requires that there be some additional circumstance other than mere absence of counsel before a defendant’s post-indictment confession is rendered inadmissible. United States v. DeLoy, 421 F.2d 900 (5th Cir.); Coughlan v. United States, 391 F.2d 371 (9th Cir.); Arrington v. Maxwell, 409 F.2d 849 (6th Cir.); United States v. Garcia, 377 F.2d 321 (2nd Cir.); United States v. Gardner, 347 F.2d 405 (7th Cir.); United States v. Accardi, 342 F.2d 697 (2nd Cir.); Wilson v. United States, 398 F.2d 331 (5th Cir.). In the present case, there is no special circumstance which would render appellant’s statement inadmissible.

The testimony by the district attorney positively showed that the appellant was properly advised of all his rights immediately before he made a statement. This statement was recorded and transcribed, and there can be no doubt that the appellant understood these rights and intelligently waived them. He signed a waiver of those rights which was witnessed by one of the Montgomery officers. The trial court, prior to the admission of the recorded confession, which was later transcribed, conducted a hearing outside the presence of the jury and determined that the defendant was properly advised of his rights and that he understood those rights prior to any waiver.

The record is clear that the confession was freely and voluntarily made after the appellant had been informed of his rights and that he effectively waived his constitutional rights as per Miranda. Under these circumstances, we believe that Williams’ confession to the district attorney was properly admitted into evidence.

IV

Regarding appellant’s contention that his motion for a judgment of acquittal was erroneously denied, we find no ruling by the trial court on the motion. Under these circumstances, this point is not before this court for review. Wetzel v. State, 32 Ala. App. 32, 21 So.2d 557.

V

The appellant complains that he should have been provided additional counsel and a special venire because this was a capital case. Cases involving first degree murder at the time of this offense were not considered capital felonies. Avery v. State, Ala.Cr.App., 363 So.2d 1036; Fisher v. State, 57 Ala.App. 310, 328 So.2d 311; Usrey v. State, 54 Ala.App. 448, 309 So.2d 485. Also, under Alabama law, there is no provision entitling a defendant to more than one attorney in any felony.

Therefore, after carefully examining the record and finding no error, it is our opinion that the judgment of the Montgomery Circuit Court should be affirmed.

AFFIRMED.

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    John B. KIMBER v. STATE.
    6 Div. 208.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 17, 1980.
    James L. O’Kelley, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction of rape and sentence to imprisonment for fifteen years.

Appellant’s counsel strenuously argues that the evidence was insufficient to support the verdict of the jury. No question as to identity is involved; no question as to penetration is involved. The sole question of fact is whether defendant committed the act “forcibly and against the consent” of the alleged victim. Code of Alabama 1975, § 13-1-131.

According to the undisputed evidence of either the alleged victim or the defendant, the only two eyewitnesses as to the transaction between them on the night of September 30,1978, she boarded the automobile he was driving in the Roebuck area of Birmingham about 6:00 P.M. They went together through an edge of the downtown section of Birmingham to the See’s Lounge in the Ensley area of Birmingham. Considerably later that night defendant drove her to where she was living, a home with her foster mother in the Gate City area of Birmingham.

The victim testified that she boarded defendant’s automobile at the point of a gun held by defendant, that though she did not scream or actively seek protection, she submitted to his threats, that she was afraid to make an outcry at See’s Lounge as she was in a section unfamiliar to her, that after leaving See’s Lounge defendant drove to a convenience store and “went in there and got something and came on back out” in about five minutes and then drove to the area of Daniel Payne College, where “he turned off onto this little dirt road” and stopped close to it. She left the automobile and started running. He followed her. He caught her as she fell in a hole and hurt her ankle. He had a gun in his hand and told her to quit acting “like a damn fool.” With considerable details, unnecessary to be repeated here, she testified that he ravished her. She steadfastly denied any consent express or implied.

Defendant testified that the victim flagged him down, that she voluntarily proceeded with him in his automobile, to See’s Lounge and to the convenience store. He said he recognized her as a girl he had known. He said that instead of taking her to the area of Daniel Payne College, he took her to his apartment in the Five Points West area of Birmingham, that while there they drank and danced and engaged in sexual intercourse.

In appellant’s brief, it is stated:

“The jury obviously believed the victim’s story more than they believed that of the Appellant.”

We agree. Whether the jury was right or wrong is not for us to say. Although there was ample evidence to support a conclusion that defendant’s testimony was more credible than the victim’s, the determination by the jury was well within its province, a province that we have no right to invade. The jury had the opportunity to observe and hear both witnesses as they testified. Each juror had the right to take into consideration the appearance of each of the eyewitnesses as he (she) testified, the disparity in age — the alleged victim seventeen years old and defendant about thirty-five— the difference between the familiarity of one and that of the other as to the environs of the area in which the major part of the transactions between them that night occurred, and the difference between them, if any, in worldly wisdom.

The foster mother of the alleged victim was called as a witness for the defense. The significance of her testimony is rather vague, but defendant’s counsel developed by her testimony that there was some acquaintance between members of her family and members of defendant’s family, that defendant’s mother had come to her some time before the alleged crime and had sought the witness’ aid in helping her in behalf of defendant who “was in serious trouble.” During the interrogation of the witness on direct examination, she testified:

“Q. O.K. Mrs. _, is it a fair categorization to say that you are a type of a faith healer or a person that prays with people? [emphasis supplied]
“A. I pray for people, sir.
“Q. All right.
“A. And I lay hand on the people and God do the healing. I cannot claim no healing of my own.”

Further interrogation of the witness and her answers disclose that the first time she saw defendant, after the incident made the basis of the prosecution herein, was when she, while accompanied by the alleged victim, saw defendant at a parking lot in downtown Birmingham. Her testimony continued as follows:

“Well, now this was all before September 30th?
“A. No. She said, Mama, she said that’s the man that raped me. I said, are you sure? She said, Mama, I’m sure.
“Q. Excuse me, Ma’am. I didn’t ask you that. I’m asking you if that was before September 30th?
“A. No. When she was raped, you mean?
“Q. Have you ever — first of all, Judge, would you instruct her to stay away from the categorization of rape so I won’t have to stop every question.
“THE COURT: That’s a very difficult thing to do with this witness.
“Q. O.K. Mrs._, on the two occasions that you saw Mrs. -[de-
fendant’s mother] how did she get to your house?
“A. She said the lady was a friend of hers.”

Appellant urges that the last quoted statement of the trial court constituted erroneous action of the trial court prejudicial to the defendant. Neither party purports to give any explanation of the unique way in which the trial judge responded to the also unique request of defendant’s counsel, but we can see nothing substantially prejudicial to defendant in the statement the court made or in its failure to respond categorically to “instruct” the witness “to stay away from the categorization of rape” so that defendant’s counsel would not “have to stop every question.” The transcript shows that defendant’s attorney, not the same attorney representing him on the appeal, continued his direct examination of the witness and that thereafter there was no repetition of her “categorization” of the incident between defendant and the alleged victim as “rape.” The word “rape” is not found in any of the remainder of the testimony of the witness.

We have discussed the only issue raised by appellant. In our search of the record for any error prejudicial to defendant, in accordance with our duty pursuant to Code of Alabama 1975, § 12-22-240, we have some concern as to the following portion of the transcript of the proceedings during the closing argument of counsel for the State:

“MR. HODGES: Miss_[the alleged victim] wasn’t supposed to be out that time of night. She wasn’t supposed to be out on Saturday night. She was supposed to come home to her Mama because her Mama was worried about her.
“MR. COLEE: I object. There was no testimony about that whatsoever. Not a single witness testified to that fact, and I object.
“THE COURT: I must confess I don’t remember any, either.
“MR. HODGES: I didn’t say that, Judge. Am I not entitled to my version of the story?
“THE COURT: But provided it’s based on the evidence. The law says you can argue the evidence. But you can’t argue something that’s not even in the evidence. I understand that to be the law. Maybe you don’t, but I do.
“MR. HODGES: Well, are you overruling that?
“THE COURT: I am certainly not overruling it. I’m sustaining his objection.”

Although it is our view that there was no testimony that the victim “wasn’t supposed to be out that time of night . wasn’t supposed to be out on Saturday night . . . was supposed to come home to her Mama because her Mama was worried about her,” we are not fully convinced that counsel for the State was purportedly arguing or attempting to argue such statements as a matter of fact as distinguished from what he deemed to be a reasonable inference from some of the testimony. If the former, it was not proper argument; if the latter, it was. We view it as a borderline situation. By his statement, “I didn’t say that, Judge. Am I not entitled to my version of the story,” it is made reasonably clear to us that he did not intend his argument as a statement of fact but as a reasonable inference from the evidence, but we are not confident that he made such point clear to the trial court or that there was a meeting of the minds of the two on the subject. Furthermore, we are not confident that the argument to which the objection was made sufficiently showed in and of itself that counsel was not injecting into his argument claimed facts extraneous to the evidence as distinguished from inferences that counsel deemed could have been reasonably drawn from the evidence.

One reason for a constantly recurring difficult problem whether a particular statement of counsel in argument constitutes a purported statement of a fact in evidence on the one hand or, on the other hand, a statement of counsel’s view as to the existence of an inference from the evidence of such a fact, is that often only the one making the argument knows with certainty whether he means the one or the other. If counsel in the instant case had prefaced his argument with a statement, such as “It is submitted to you that it is reasonably inferable from the evidence and that it should be inferred from the evidence,” there probably would have been no objection, and no ruling of the court would have been required. Although to us it seems that State’s counsel disavowed his argument as a statement of fact, there was some ambiguity in what he said in justification of his argument. We do not have a copy of his entire argument or that of its context immediately before or immediately after the statement. Under all the circumstances, we conclude that reversible error is not chargeable to the trial court as to the matter.

We find no error in the record prejudicial to defendant, and 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.


author: TYSON, Judge.

text:
    Johnny Tom GREEN v. STATE.
    3 Div. 185.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.

      L. H. Walden, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., James F. Hampton, J. Anthony McLain, Sp. Asst. At-tys. Gen., for appellee.
   TYSON, Judge.

The three-count indictment charged Johnny Tom Green with the unlawful possession of Cocaine, Phencyclidine, and Marijuana, contrary to the provisions of the Alabama Uniform Controlled Substances Act (Act No. 1407, Acts of Alabama, 1971 Regular Session).

The jury found the appellant guilty as charged on each of the three counts, but declined to assess a fine. The trial court then set sentence at thirteen years and nine months on each count, the said sentences to run concurrently.

The appellant filed a motion for a new trial, challenging the weight and sufficiency of the evidence and the sentence imposed, which motion was duly overruled following a hearing thereon.

Prior to trial a hearing was conducted by the trial court on the appellant’s motion to suppress the evidence seized at his residence, 111 Davis Street, Montgomery, Alabama, on April 24, 1979.

Charles West, an ABC Board agent, stated that he had received information on April 23,1979, from an informant, whom he had used on four or five occasions in the past and whose information had resulted in four convictions, that Marijuana was being sold at the residence of Johnny Tom Green, 111 Davis Street, Montgomery, Alabama, the appellant, and that his informant had seen the Marijuana there the previous day. Mr. West indicated that he went before Judge Mark Kennedy and made an affidavit which set forth this information, and that Judge Kennedy then issued a search warrant directing that a search be conducted of the residence of Johnny Tom Green at 111 Davis Street in Montgomery for Marijuana or other drugs or paraphernalia. Agent West also stated that he accompanied Montgomery Deputy Sheriff M. Wayne Ward and fellow ABC Agent Van Kominit-sky, along with three other officers, to the appellant’s home shortly after 4:00 o’clock on the afternoon of April 24, 1979. He stated they knocked on the door and appellant opened the door. Deputy Ward then read a copy of the search warrant to Green, handed it to him, and explained that the officers were there to conduct a search for drugs. He stated that all six officers were involved and they found several plastic bags and baggies containing a total of 7.9 ounces of Marijuana, four foil packets of Cocaine, and one wax paper packet containing Phen-cyclidine. Agent West indicated that all of these drugs were found in a brown grocery bag on the roof, which sloped toward the front of the house. He stated that the paper bag was retrieved, that it was wet on top, but the bottom of the bag was dry. He stated that he personally saw the appellant standing in the front yard of the house.

Agent Van Kominitsky testified that he was one of six officers who went to 111 Davis Street, Montgomery, Alabama, the home of the appellant, where a search warrant was served on the appellant as he opened the door. He stated that he personally found one set of scales and he and his fellow agent retrieved a brown grocery bag containing Marijuana, Cocaine, and Phency-clidine, which was on top of the roof. Agent Kominitsky stated he carried the drugs to the State Toxicology office.

On cross-examination, Agent Kominitsky indicated that, after he entered the home, he saw the appellant’s baby boy drop a light bulb, and the appellant and his wife went over suddenly to sweep up the glass as the baby was reaching for it. He saw the appellant sweep this into a trash bag, then start out the door. He saw the appellant’s arm make a move and heard a “flutter" type sound, then a “thud” on the roof just above his head.

Johnny Tom Green then took the stand at the suppression hearing to testify that his wife had just pulled in the driveway and that he went outside to help her bring in some groceries. Immediately after doing so, he heard a knock at the door and three officers were standing there. They showed him a search warrant to search his home. He stated that one of them showed him a badge, but did not read the warrant until they came inside the house.

Green indicated that his wife used some scales for measuring various materials as she baked cakes and that sort of thing. He stated that he had gone outside to put out some trash after his baby had broken a light bulb, but denied throwing anything, or tossing a sack on the roof of his house.

The appellant’s motion to suppress was overruled, whereupon the appellant was duly arraigned and entered not guilty pleas, and the cause proceeded to trial.

Allen Raymond Adaire testified he was a criminalist with the Department of Forensic Sciences, dealing with drug identification, in April, 1979. Mr. Adaire indicated that, on April 25,1979, he received a brown paper bag from ABC Agent Van Kominit-sky which contained five green plastic bags of various shapes, each containing a brown plant material. Mr. Adaire indicated he made several tests on this plant material and determined same to be Marijuana. Mr. Adaire stated there were eighteen small manila envelopes inside the brown paper bag, each of which contained Marijuana.

Mr. Adaire further stated that he also received four aluminum foil packets and tested the material contained therein and determined this to be “Cocaine” in each. He further tested the material contained in the wax paper, also in the brown bag, and determined this to be Phencyclidine. Mr. Adaire stated that all three drugs were prohibited substances under the Alabama Uniform Controlled Substances Act.

Montgomery County Deputy Sheriff M. Wayne Ward testified that he went to 111 Davis Street in Montgomery on the afternoon of April 24,1979, accompanied by two ABC agents, West and Kominitsky, and several Montgomery County deputies. After knocking on the door, about 4:30 in the afternoon, it was opened by Johnny Tom Green. Deputy Ward indicated that he read the search warrant to Green and explained it, and the officers were invited inside. He indicated that ABC Agent Van Kominitsky acted as “property agent” for the search, and that within twenty to thirty minutes the officers found a brown paper bag on the roof of the appellant’s residence which contained several packets. He stated that this brown bag was directly above the front door and on top of the roof, which was in plain view, and that the top of the bag was wet, as it was raining, but the bottom of the bag was dry. It was retrieved by one of the officers from the roof, and when opened it contained plastic bags which had a greenish brown plant material, eighteen in number, four aluminum foil packets, which contained powdery substances, and a wax paper packet, which contained another substance. All of these items were marked and turned over to Agent Kominitsky as property officer in the search.

On cross-examination Mr. Ward indicated that he went outside the residence as the appellant went outside and saw the bag on the roof and noticed that the door to the appellant’s Datsun automobile was open when the car door had been closed earlier. He stated that the brown paper bag was in plain view on the roof. Deputy Ward also stated he found one set of scales inside the residence, which he turned over to Officer Kominitsky.

ABC Agent Van Kominitsky corroborated Deputy Ward’s testimony and stated that he found a second set of scales inside the residence in a bedroom. The scales were marked as Exhibit Six.

Agent Kominitsky related that, while he was inside the house with the appellant seated at a table near him, he observed the appellant’s baby break a light bulb and reach for the glass. He saw the appellant and his wife grab the baby, then sweep up the pieces of glass. He saw the appellant grab up what appeared to be some trash and start toward the front door. He said that, after watching Green go through the door, he heard a “fluttering” type sound to his right and had the impression that something was being thrown, then he heard a “thumping” noise. He stated he immediately asked Green what he had thrown, and Green denied throwing anything. Agent Kominitsky stated that he observed Green’s arm in a throwing type motion and thereafter climbed onto the roof on the front of the house where he retrieved a paper bag. He stated that the bag was wet on top but it was dry on the bottom though it was raining outside. Inside the brown paper bag were eighteen plastic bags which contained a greenish brown leafy plant material, four aluminum packets of a powdery substance, and a wax paper packet of a different substance. Agent Kominitsky stated he took all of the items contained in the brown paper bag to the Department of Forensic Sciences on April 25, 1979, and turned them over to Mr. Allen Adaire. Agent Kominitsky then identified a set of scales which he found, and also a second set of scales which Deputy Ward found at the appellant’s residence.

ABC Agent Charles West also testified and corroborated the testimony of the other officers.

The appellant’s motion to exclude the State’s evidence was overruled.

Mrs. Maybell Green stated she was the mother of Johnny Tom Green, but that she lived at 129 Wade Street in Montgomery. Mrs. Green indicated that she received a telephone call from her daughter-in-law, who was crying, on April 24,1979. She told her that some officers were at their home. Mrs. Green stated that she drove over there. She stated that she talked with Officer Kominitsky in the yard, and he told her he was arresting her son for some items found in a bag, one of which he thought was grass or Marijuana. Mrs. Green said that Agent Kominitsky told her he found the bag on top of the house, and she asked him how he could charge her son for something found on top of the house. She also asked him if he saw her son throw it and Kominitsky told her he did not. Mrs. Green indicated that her daughter-in-law owned a blue Dat-sun automobile, which was parked in the driveway, and that she had seen her son drive this car, but that the vehicle belonged to his wife. She stated that the couple had a two-year old baby, the only child.

After an extension of the oral charge of the court, both sides announced, “Satisfied.”

I

The appellant asserts as error the admission of the trial court of two sets of scales found within the residence of the appellant on the afternoon of April 24,1979, pursuant to the search under the search warrant. The scales in question were properly admitted into evidence by the trial court to show “the complete story” concerning the items found within the residence, and they would be relevant on the issue of whether Green possessed Marijuana with an intent other than for his personal use. Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975).

II

The appellant also challenges the admission into evidence of the aluminum packets containing Cocaine, and the wax paper packet containing Phencyclidine, inasmuch as these items would constitute evidence of separate offenses and should not have been included in the same indictment and admitted into evidence at the same trial with the Marijuana.

This argument overlooks that line of Alabama cases which have determined that, where one or more controlled substances are contained within the same bag or pouch, such are relevant evidence as being part of the same transaction, Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert. denied, 292 Ala. 743, 290 So.2d 213 (1973), and authorities therein cited, and, moreover, such items are properly admitted as showing the “complete story” as to the various drugs and paraphernalia found at the home. Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975), and authorities cited.

III

Finally, the appellant contends the trial court erred in denying his motion to exclude the evidence and erred in overruling his motion for a new trial due to the fact that the State did not prove beyond a reasonable doubt that the appellant had knowledge of the presence of the controlled substances at his home.

In Daniels v. State, 49 Ala.App, 654, 275 So.2d 169 (1973), this Court stated:

“In a prosecution for unlawful possession of narcotics it is not necessary to prove manucaption but constructive possession may be shown, and where such possession is relied upon the State must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520; Spruce v. State, 43 Ala.App. 487, 192 So.2d 747. See cases in 16 Alabama Digest, Poisons, Keynote 9.
“Such guilty knowledge may be established by circumstantial evidence and guilt does not necessarily depend upon ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761.”

We believe the evidence sufficiently supported an inference for the jury’s consideration that the appellant knew the three controlled substances were in his home by the following:

(a) The residence was that of the appellant and his wife and child, and no one else lived at this address, 111 Davis Street.
(b) Two officers testified that they saw the appellant, Green, grab up some trash after his child broke a light bulb and start out the door with same.
(c) Agent Kominitsky testified he heard a “whirring” or “fluttering” sound and saw the appellant’s arm make a motion, then heard a “thud” of something which apparently struck the roof just outside. Three officers stated they saw a brown paper bag sitting on top of the roof in the rain, and when Agent Kominitsky retrieved this bag it was damp on top, but the bottom of the bag was dry.
(d)All of the controlled substances, as such, were inside the brown paper bag which three officers saw on the roof of the appellant’s porch, and this was immediately after the appellant went outside to throw out some trash.

Where, as here, such evidence raises a question of fact for the jury and which evidence, if believed, is sufficient to sustain the conviction, the trial court did not err in overruling the motion to exclude and the motion for new trial, challenging the evidence in question. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Fields v. State, Ala.Cr.App., 333 So.2d 861 (1976); Henderson v. State, Ala.Cr.App., 347 So.2d 540, cert. quashed, Ala., 347 So.2d 543 (1977); McHellen v. State, Ala.Cr.App., 351 So.2d 689 (1977), and authorities therein cited.

We have carefully examined this record and find no error therein. The judgment is

AFFIRMED.

All the Judges concur.