author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Gary Wayne LEWIS v. STATE.
    8 Div. 558.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.

      James M. Corder of Steele, Alexander, Corder & Plunk, Athens, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A major issue on appeal is whether defendant was entitled to a directive or instruction by the trial court that the jury should find that defendant was not guilty by reason of insanity, as pleaded by him. We have considerable doubt whether defendant presented the question on the trial in such a way that it is reviewable on appeal. However, in the absence of any contention by appellee as to the reviewability of the question, we proceed to determine it.

There is no disagreement between the parties as to the applicable governing law on the subject at the time the alleged crime was committed, on December 5, 1979, prior to the effective date of the present Alabama Criminal Code. As of that time, as summarized in the Commentary to § 13A-3-1 of the Alabama Criminal Code, effective January 1, 1980, the law in Alabama as to the defense in a criminal case was:

“Under a plea of not guilty by reason of insanity, the burden is on the defendant to clearly prove to the reasonable satisfaction of the jury that he was so affected by disease of the brain when the offense was committed as to render him so insane that he did not know right from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong and the crime must have been the product solely of such diseased mind.”

In support of the quoted statement, the Commentary cites Streeter v. State, 278 Ala. 272, 177 So.2d 826 (1965); Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960); Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957); Lakey v. State, 258 Ala. 116, 61 So.2d 117 (1952), and cases cited therein; Parsons v. State, 81 Ala. 577, 2 So. 854 (1886). The facts in the case are undisputed. This is true as to all of the evidence as to the commission of the crime, furnished by witnesses for the State exclusively, and as to the evidence pertaining to defendant’s plea of not guilty by reason of insanity, furnished by witnesses for defendant exclusively, including the officer who arrested the defendant.

We first consider defendant’s evidence bearing on the question as to defendant’s sanity. Such evidence has been correctly summarized in appellant’s brief as follows:

“Gary Wayne Lewis (hereinafter referred to as Lewis) was one of seven children, and led a basically normal childhood until the death of his father. Subsequent to the death of his father, Lewis developed emotional problems which led to depression and some drug and alcohol use. “On July 18,1979, Lewis was admitted to the Residential Mental Health Treatment Program for Adolescents at Crocket Academy, in Nashville, Tennessee, and remained in this facility until discharged on November 21,1979, because he turned 18 years of age. Mrs. Frances Priest, Lewis’ counsellor at the Crocket Academy, testified that at the time of Lewis’ release, it was her judgment that he was not always able to do what was right even though knowing the difference between right and wrong.
“As a child, Lewis had a turbulent childhood in that his father had an alcohol problem and Lewis was abused from a very early age. Lewis was administered alcohol by a family member at approximately 4 years of age. Lewis had received mental health treatment at the State Mental Health Facility in Decatur, Alabama.
“Between Lewis’ return from the Crocket Academy on November 21, 1979, and the date of the robbery on December 5, 1979, Lewis exhibited irrational conduct evidencing his insanity. Lewis would sit to himself, talking irrationally, with jerking actions and threatened suicide. During this period of time, one night he ran screaming and crying into the street saying he wanted to die and jumped into the path of a moving automobile. The automobile narrowly stopped and avoided striking Lewis, and several people found it necessary to forcibly throw Lewis to the ground and restrain him. On another occasion during this same period of time, Lewis went berserk in his sister’s home and did great damage to her room.
“While in the custody of the Limestone County Sheriff’s Department [after his arrest for another crime charged on the same day as this crime], Lewis attempted suicide by cutting his throat. From the Limestone County Hospital, Lewis was transferred on April 10, 1980, to Bryce Hospital and remained there until April 27, 1981, when he was returned to the Limestone County Jail for trial on a robbery charge [charge in the instant case]. “During the time Lewis was at Bryce Hospital, he was under the primary care and treatment of Dr. Thomas L. Smith, Jr., a Psychiatrist with a Law Degree from the University of Alabama and who performed Psychiatric Residency at the University of Alabama Hospital in Birmingham. During the time Lewis was at Bryce Hospital, he was seen by Dr. Smith a minimum of 48 to 50 times. Dr. Smith first felt Lewis’ actions while at Bryce Hospital were self-serving, but testified that he later realized that Lewis was suffering from mental illness and could not do what would be considered right. Lewis’ actions involved hallucinations, bizarre conduct, depression, barking like a dog, banging his head against a wall, and auditory hallucinations, in which Lewis felt that his deceased father was trying to control his mind and putting thoughts in his head. Lewis was determined to have a full scale I. Q. of 83 and was determined to be slightly retarded. From all of his observations and treatment, Dr. Smith testified at trial that it was his judgment that on December 5, 1979, Lewis had a mental illness and that he was unable to distinguish right from wrong and that because of his mental illness, he could not do what could be considered right. The doctor was not allowed to testify as to whether Gary Wayne Lewis was sane or insane on December 5, 1979.

In further support of his plea of not guilty by reason of insanity, defendant called Officer Blakely as a witness. Appellant summarizes the testimony of Officer Blakely as follows:

“Shortly thereafter [after the robbery], a State Trooper called to the scene of the robbery apprehended Lewis. In and about arresting Lewis, the Trooper drew his pistol on Lewis who was unarmed. Lewis walked toward the officer telling him that he would have to kill him as he wasn’t going to jail. The Trooper testified that this was extremely abnormal behavior for anyone under these circumstances.”

The undisputed facts as to the circumstances of the alleged crime were that on December 5, 1979, defendant entered Cross Key Grocery Store with a pistol in his hand, a mask on his face and sunglasses over his eyes. He was dressed in blue jeans, and he robbed the manager of the store, Mr. Billy Cook, and Mr. Franklin Kelley, who was calling on the store as a salesman. According to Mr. Kelley’s testimony, “Well, the first thing he told Billy Cook, he was facing Billy as he walked in and I had my back to him. He had this gun in his hand and he said he wanted Mr. Cook’s money and so he said okay, and he had to come by me. So, Mr. Cook just motioned me to come around the counter where he was and I turned and faced him then and told me as he walked by to go to the register, that it was his store but that he wanted my money too.” According to further testimony of Mr. Kelley, he was robbed by defendant of “around a $147.00 in cash and two cheeks,” and defendant placed the money and the checks in a “money bag someone would take to the bank.” The witness further said that “I might have seen his hand shaking maybe just a little bit and when he said he didn’t want to hurt anyone and all he wanted was Cook’s money and then later, you know, he told me he wanted my money too.”

Mr. Cook testified, inter alia:

“Yes, a little after 12:00 a guy came running in the store with a ski mask on, sun glasses, an old hat pulled down over his head. He threw a pistol on me and said he wanted my money. Said he didn’t want to hurt anybody but wanted our money. There was a salesman in the store at the time standing in front of the cash out counter and after he told me that he threw the pistol on the salesman and told him he wanted his billfold and then made us move back away from the check out counter and he came around behind the counter after getting the salesman billfold. And he couldn’t open the cash register and I opened it for him. I told him not to tear it up and I’d open it for him. And he told me he wanted my billfold and I told him I didn’t have one. Then he told me to move back, me and the salesman. While he was getting the money out of the cash register I eased back toward the back of the store and as he was getting the money out of the cash register he dropped some money on the floor. And when he dropped it on the floor and reached down to pick it up I moved back to the back of the store trying to get my pistol. When he came in around the counter he dropped some more money on the floor. He reached down to pick that up and it gave me a chance to get to my pistol. And when I got to my pistol, just as he raised up off the floor, I shot at him and missed him, of course.
“Q. All right. Did the person run out the door then?
“A. He ran out the door and I ran behind him and shot at him four times. “Q. Okay. Did you notice which direction or where the person ran?
“A. Yes, he ran east of Cross Key’s Road behind the store.
“Q. Okay. Did you call the police or did someone else?
“A. I had the milkman. He was outside in the truck, call the police.”

Mr. Cook further testified that after defendant cleared the store and the immediate vicinity, Mr. Cook and someone else chased him, partly by using a truck and running defendant into a pasture, into which they followed him until he escaped them by crossing a fence. They returned from the pasture and went to the Poff Road, which was “a mile or more east of Cross Key Grocery and we turned right and I watched him as he ran into the woods.” Thereafter State Trooper Mike Blakely appeared, located the defendant and placed him under arrest. At the time of the arrest, defendant did not have a gun. Officer Blakely testified that defendant was running, that the officer fired “one warning shot for him to stop,” and that defendant stopped soon thereafter and was subdued by Officer Blakely.

Both parties rely upon Boyle v. State, 229 Ala. 212, 154 So. 575 (1934) in which it was said at 154 So. 583:

“Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form. “But courts should be careful not to invade the province of the jury in cases of this character. Although the evidence may be offered only by the defense, and all tend to one conclusion, yet, in view of the presumption of sanity, if the evidence is inconclusive, and reasonable inferences may be drawn that the act was that of a sane man as defined by law, the affirmative charge should be refused.”

In Herbert v. State, Ala.Cr.App., 357 So.2d 683, cert. denied, 357 So.2d 690 (1978), there was a reversal for the refusal of the trial court to instruct the jury, upon written request of defendant, that it should find the defendant “not guilty by reason of insanity.” It was noted in the opinion that in two cases only (Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954) and Christian v. State, Ala., 351 So.2d 626 (1977)) had there been reversals for that reason. There has since been added to the list a fourth case, Sasser v. State, Ala.Cr.App., 387 So.2d 237 (1980), cert. denied, 387 So.2d 244.

We now consider each of the four cases in Alabama in which it has been held that the defendant was entitled to an affirmative charge in his favor instructing the jury to render a verdict finding the defendant not guilty by reason of insanity. We do so in the chronological order of the cases.

In Pickett v. State, supra, defendant had appealed from a conviction of murder in the second degree. The homicide had occurred as the finale to a fish fry to the accompaniment of guitar music and dancing conducted at the home of the deceased. Participants therein included the deceased, the defendant, defendant’s brother and defendant’s father. In arriving at its conclusion in the case, the court said at 71 So.2d 107:

“This aside, we are convinced that the overwhelming evidence presented by the defense has amply overcome the presumption of sanity as to this accused; that the undisputed evidence shows this accused to be a mental defective of the mental age of four or five years, in other words, an imbecile.”

In the instant case, Dr. Smith testified that defendant’s “full scale I. Q. was 83, which is really borderline ... Just a little bit below normal.”

In each of the other three cases in which it has been held in Alabama that the jury should have been instructed to find the defendant not guilty by reason of insanity, the defendant at the time of the crime exhibited strange, irrational, bizarre and even maniacal behavior. In Christian v. State, supra, the defendant had beaten his mother to death, poured some substance over her body and set the body on fire. In Herbert v. State, supra, the defendant killed his wife in the apparent belief that she was in reality, not merely figuratively, a demon. He belonged to a religious group that believed in the existence on the earth of real demons. In Sasser v. State, supra, the defendant was convicted of an assault with a rifle upon a deputy sheriff while in the active discharge of his duties. The officer had been attempting to locate defendant 'and arrest him on a warrant for a previous crime. The defendant purloined an automatic rifle with a scope thereon that belonged to the resident of an apartment ih a motel, went out on a nearby highway, in open view of the public, pointed the rifle down the road, looked through the scope of it and finally shot it three times, one shot hitting the officer who had a warrant for defendant as the officer was driving his automobile on the highway. The defendant then returned to the motel, went into its restaurant with his rifle, ordered the occupants out of the restaurant and thereafter used the truck of the manager of the motel, drove off in the truck and wrecked it. He was then arrested by a group of officers, including the officer in the automobile at which the defendant had previously fired the rifle.

In none of the cases in which there was a reversal for the refusal to instruct or direct the jury to render a verdict finding defendant not guilty by reason of insanity did he have anything material to gain by his crime. The crime itself, according to the circumstances, evinced fool-hardiness, which, instead of being opposed to the undisputed opinion evidence of defendant’s insanity, tended to confirm it. Not so, in the instant case, which we now contrast to cases upon which appellant relies.

Except for the fact that robbery is always unwise, as well as criminal, we find little, if anything, in the circumstances of the robbery that tends to show a deranged mind. It was cool, calculated and deliberate, stemming largely from “the root of all kinds of evil” — “the love of money.” It was successful and was conducted in a manner that is generally conducive to success in the perpetration of a robbery. It was at a time of day when customers of such a store would usually be eating their noon meals. The robbery was doubly successful in that he obtained substantial money from each of two people. The robber succeeded in averting identification at the time by his mask and sunglasses. In some way, he succeeded in eluding the shot fired from a pistol in the hand of Mr. Cook, left the store unharmed, then moved with such deftness as to prevent his being hit by shots from the pistol fired by Mr. Cook, and continued to escape Mr. Cook traveling in a truck for approximately a mile and was not captured immediately thereafter, not until Trooper Blakely had arrived and taken charge.

We do not consider, as does appellant, that the fact that defendant told his victims that all he wanted was money and that he did not wish to harm any one of them as evidence of insanity. It could as well have been the statement of a sane robber as that of an insane one. Neither do we consider the testimony of Officer Blakely that he considered the conduct of defendant while being apprehended by Officer Blakely “very abnormal,” in that defendant told him that he “would have to kill him,” that “he wasn’t going to jail” and that Officer Blakely had to wrestle with and subdue him as evidence in favor of defendant on the issue as to his sanity. Conceivably, it could be so considered, but whether it was favorable to the prosecution, the defendant, or to neither, the jury was in a better position to determine than are we.

There are some other incidents that have some bearing upon the issue now considered. The pistol in the hand of defendant as he committed the robbery and which he continued to hold in his hand until after he left the store was apparently never found. It was not on him at the time he was captured. No one knows better than he as to what happened to the pistol. His counsel, in questioning witnesses, intimated by his questions that the pistol possessed by defendant was a “blank pistol.” There is nothing in any of the opinion evidence in the case to the effect that defendant did not know what kind of pistol he had or what disposition he made of the pistol. In the light of his having the burden to reasonably satisfy the jury of his plea of not guilty by reason of insanity, it seems logical that the absence of any evidence to support any theory that the pistol was a “blank pistol” or to show what happened to the pistol, is chargeable to the defendant and not to the State. Also, it is to be noted that, according to the testimony of Mr. Cook, he was never returned about one-half of the money taken from his cash register and placed by defendant into the white money bag that he brought with him to the store. The burden was not upon the defendant on the issue raised by the plea of not guilty, nor on the State on the issue raised by the defendant’s plea of not guilty by reason of insanity, to show where the missing money was. The absence of any evidence on the point or any explanation for such absence tends to weaken the defense of not guilty by reason of insanity.

Even though we may be persuaded, with due deference to the eminent psychiatrists who testified in favor of defendant and to the other witnesses who expressed their opinions on the subject, that defendant was insane at the time of the crime, we are not convinced that such evidence was so strong and conclusive that the issue should not have been submitted to the jury.

The only other contention for a reversal is that there was error in the “failure of the court to allow testimony as to specific instances of abnormal behavior subsequent to the commission of the crime.” The contention is based upon the following portion of the transcript during the direct examination by defendant’s counsel of Dr. Smith:

“Q. Taking your records again, doctor, I think you mentioned to me and maybe to Marc there was a specific instance and some things that happened down there and I wish you would go through and relate to the jury some of the things that happened in there to demonstrate to you that he may be insane.
“MR. SANDLIN: Judge, I believe we are going to object to any accounts of certain instances. It’s not relevant. I don’t think its relevant to what happened on December 5, 1979.
“THE COURT: Well, I would have to sustain that.”

We are not certain as to what all was meant by the question or by the objection, and for that reason we cannot with reasonable certainty assay the court’s ruling. However, we readily see from the ten preceding pages of the transcript of the direct examination of the witness that the witness had already mentioned several “specific” instances found in his records that tended to confirm his opinion that defendant was insane. An answer to the question would have been largely, in our opinion, repetitive of what he had already testified, and for that reason there was no substantial injury to defendant in the sustention of defendant’s objection.

The record is free of error 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.

      . The “bench conference” from which this statement seems perhaps to have been based is not revealed by the transcript, and appellant makes no separate point with reference to it. The final diagnosis of Dr. Smith concerning Lewis was schizo health disorder and schizophrenia. Lewis was administered immense quantities of the drug Thorazine in an attempt to control his mental illness.

      . It is though by many, not by the parties in this case, that in Boyle v. State, there was a reversal by reason of the trial court’s submission to the jury of the question of defendant’s insanity instead of charging the jury that it should find the defendant “not guilty by reason of insanity.” This is not correct. Although that question was the subject of most of the outstandingly able opinion by Mr. Justice Boul-din in the case, it was decided favorably to the appellee, and the only ground of reversal was as to the action of the trial court in overruling defendant’s objection to argument of counsel for the State to the effect that if it found defendant “not guilty by reason of insanity,” he would soon be free. The case is famous for the fact that six of Alabama’s most distinguished physicians, including Dr. W. D. Partlow, Superintendent of the Alabama Insane Hospital, and other specialists in mental disease, testified almost, if not entirely, unreservedly, that defendant was insane in their opinion, in response to that which is perhaps the longest correct hypothetical question ever propounded to a witness in the courtroom. The question consisted of two sentences only, but it was two and one-half pages long, as shown by its verbatim recital in the statement of facts immediately preceding the opinion in the case. See Judge McElroy and Judge Hughes on Expert Testimony, 31 Alabama Lawyer, 489, 503 (October 1970). The appellant-defendant died before he could be tried again.

      . Not included is Woods v. State, Ala.Cr.App., 364 So.2d 1178 (1978), cert. denied, 364 So.2d 1186, in which the issue was as to the weight of the evidence as raised by defendant’s motion for a new trial.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    James Otis CRITTENDEN v. STATE.
    4 Div. 880.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.

      Denny L. Holloway, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

The appellant was indicted by a Houston County Grand Jury for violation of Code of Alabama, 1975, Section 13A-8-41, robbery in the first degree. On October 10, 1980, a Houston County Circuit Court jury found the appellant guilty of the charged offense. On January 16, 1981, in a presentencing hearing, the State presented a certified copy of a prior robbery conviction, and appellant admitted he had committed the pri- or act. The trial court then sentenced appellant to thirty (30) years imprisonment under the Habitual Offender Act.

Debbie Adams, the robbery victim, testified that, around 10:00 a.m. on February 13, 1980, while she was working as a cashier at Sav-A-Minit Foods in Dothan, Alabama, appellant came into the store, asked about money orders, bought a beer, then left. About noon the same day, the appellant re-entered the store and told Debbie that he wanted four one-dollar money orders. When she walked over to get them, he said, “I’ll take them all.” He then told her, “Lady, I don’t want to shoot you,” and pulled out a gun, pointing it at her.

Appellant, after taking the money orders, pulled Ms. Adams by the arm to the cash register and took fifty-four dollars out of the cash register. He then demanded that Ms. Adams give him her wallet. After Ms. Adams handed appellant her wallet, which she described as being brown, he tore the phone off the wall, told Ms. Adams to lie down on the floor and left. Ms. Adams then made an in-court identification of appellant as the man who robbed her. She also identified a gun found in a car appellant was in when arrested as the gun used in the robbery. Ms. Adams also testified that she picked out appellant’s picture from a photographic array.

The State then called Willie Adams who testified that, while sitting in a car near the Sav-A-Minit some time in February, he saw the appellant walk into the store and leave a few minutes later, carrying something that looked like “a little brown pocketbook or a bag.” He also made an in-court identification of appellant as the man he saw enter the store.

Mrs. Clemmie Barnes then testified, stating she was an employee of Hilmac Sporting Goods Store in Enterprise, Alabama, the day the robbery occurred. She testified that appellant tried to purchase goods with money orders. She also made an in-court identification of the appellant.

The State then called Detective Dewey Heath of the Albany, Georgia, Police Department, who testified that he arrested the appellant at the First National Bank in Albany. Detective Heath found thirteen money orders in the car appellant had been riding in that had the same serial numbers as the money orders taken during the robbery. Detective Heath further testified that he found a gun in the car, the gun that Ms. Adams testified was pointed at her during the robbery.

Robert Jenkins, an officer in the Dothan Police Department, who investigated the robbery, testified he talked with Ms. Adams just after the robbery and that she described the assailant, the gun used in the robbery, and what was stolen. He also identified a photograph of the photographic array he had shown Ms. Adams. He testified that Ms. Adams picked out appellant from this group of photographs.

The State rested and appellant called Mike Barefield, who testified he sold appellant a blue Izod windbreaker on February 19, 1980. Ms. Adams had testified that appellant was wearing a blue windbreaker on the day of the robbery.

Appellant then called Mary Walker, a clerk for the Circuit Court in Ozark, Alabama, who testified that, between 11:45 a.m. and 12:30 p.m. on the day of the robbery, appellant, as was his habit, brought her lunch, although she did not actually see appellant bring in the lunch. She stated that she talked with him that day while she ate her lunch. She also testified that appellant did not bring her lunch every day. During cross-examination, Ms. Walker testified that appellant was living with her during this time; and that she was still in love with appellant.

Ms. Elena Clark then took the stand. She testified that she worked with Ms. Walker and knew both Ms. Walker and appellant personally. She also testified that appellant brought Ms. Walker her lunch around noon on the day of the robbery.

Finally, appellant took the stand. He testified that he did not rob the Sav-A-Min-it Store, nor was he in Dothan that day. He testified that he got the money orders from a Charles Perkins. He testified he had ridden with Perkins to Enterprise and remained in the car while Perkins attempted to purchase goods at the Hilmac Sporting Goods Store.

Appellant also testified that he had been arrested in Albany, Georgia, and had in his possession the money orders. He testified that he was convicted of forging the money orders in Georgia. He further testified that he was convicted of robbery in 1974 and sentenced to ten years imprisonment. Appellant testified that he had lied when talking to Sergeant Jenkins who was investigating the instant robbery.

Appellant contends that the trial judge committed reversible error in allowing the State to introduce into evidence a photograph of a photographic array Officer Jenkins had shown the victim. Appellant argues that the pictures were prejudicial and their introduction warranted reversal because of the use of mug shots and because the pictures were not properly identified as to accuracy and time.

A review of the record does not support appellant’s contention. Appellant’s counsel, not the State, introduced the photograph into evidence. The State requested that the photograph be marked as State’s Exhibit Three and presented it to Officer Jenkins for identification. Officer Jenkins then testified that, after he showed the photographic array to the victim, Ms. Adams, she identified appellant as the man who robbed her. The State never introduced the photograph into evidence.

Subsequently, during cross-examination of the police officer by appellant, the following exchange occurred:

“MR. HOLLOWAY [attorney for appellant]:
“When did you show her these pictures?
“OFFICER JENKINS: February — February 20th.
“MR. HOLLOWAY: February 20th?
“OFFICER JENKINS: Yes, sir.
“MR. HOLLOWAY: Now did you ever show her this picture of Mr. Hart?
“OFFICER JENKINS: No, sir, not that picture.
“MR. HOLLOWAY: I move to offer the pictures in evidence — the picture here that he showed to Mrs. — State’s Exhibit 3,1 move to make it a defendant — exhibit and offer it in evidence to the jury.”

The court then admitted the picture into evidence as defendant’s Exhibit One.

The law in Alabama is that, “It does not seem consonant with sound principles of judicial administration to allow a party to introduce evidence and assert on appeal that the trial court erred to reversal by admitting that evidence.” Peterson v. Jefferson County, Ala., 372 So.2d 839, 842 (1979). The Peterson court then quoted 32 A C.J.S. Evidence Section 1040(1) (1964) as stating that, “[A] party who has introduced certain evidence cannot subsequently object that ... it should not be given such consideration as its natural probative value entitled it to, or that it is insufficient to sustain a judgment based thereon.” (Footnotes omitted.)

This court, although not ruling precisely on the same point, implied the same in Merriweather v. State, Ala.Cr.App., 364 So.2d 374, cert. denied Ex parte Merriweather, Ala. 364 So.2d 377 (1978). In that case, the court held that the jury improperly viewed a document in the jury room. The court held that, since both parties shared responsibility of raising any question to the court as to which documents should or should not be allowed to go to the jury room, neither party could complain that the jury improperly viewed a document in the jury room. In Merriweather, both attorneys shared responsibility for the alleged impropriety. In the present case, appellant was solely responsible for the allegedly prejudicial evidence being introduced. As the Peterson court held, it would violate judicial principles of justice to reverse the trial court for admitting an exhibit that appellant introduced into evidence. See also Chambliss v. State, Ala.Cr.App., 373 So.2d 1185, 1210, cert. denied, Ala., 373 So.2d 1211 (1979).

Appellant cites McKee v. State, 44 So.2d 777, 35 Ala.App. 174, rev. McKee v. State, 44 So.2d 781, 253 Ala. 235 (1950) in support of his argument that the photographic array was not properly introduced. The case is no longer good law on this point because the Supreme Court of Alabama reversed the appellate court on this very issue. McKee v. State, 44 So.2d 781, 253 Ala. 235 (1950).

Appellant contends that the trial court committed reversible error when it allowed, over appellant’s objection, the State to introduce evidence that appellant was in jail and had escaped.

Appellant claims that the State’s sole purpose for introducing such evidence was to reveal to the jury that appellant had a prior criminal record.

The record does not support this contention. The law allows proof of flight in order to shed light on the guilt or innocence of one accused of criminal activity.

Apparently, appellant was in jail for trial in the present case since he was in the Dothan City Jail, although he had been previously tried and convicted in Georgia for forging the money orders stolen in the robbery. The record shows that appellant escaped from the Dothan City Jail on September 13, 1980. This escape was subsequent to the crime for which he was being tried. It would be unreasonable for the jury to infer from this evidence flight after commission of the crime that appellant had a criminal record. Even if such an inference arose, it was rendered harmless by defendant’s own admission of prior convictions. The State, in response to appellant’s objection, stated that its purpose in introducing the evidence was to show flight.

This court in Casher v. State, Ala.Cr.App., 368 So.2d 565, 567, cert. denied Ex parte Casher, Ala., 368 So.2d 567 (1979) recited the general rule of evidence in regard to flight. The court stated that, “Flight has long been held by our courts to be admissible as tending to show an accused’s consciousness of guilt. See Gamble, McElroy’s Alabama Evidence, 3d Ed. Section 110.01, and cases cited therein.”

Specifically, and on point, the Alabama Court of Appeals held that the State may introduce evidence of escape from lawful custody after the case was previously set for trial. Green v. State, 73 So.2d 387, 37 Ala.App. 610 (1954).

The record shows that the case was set for trial on August 26, 1980, and the escape was on September 13, 1980. Therefore, in light of Green, supra, and the general admissibility of evidence of flight, the trial court properly admitted evidence of appellant’s escape from jail.

Appellant cites Andrews v. State, Ala.Cr.App., 359 So.2d 1172 (1978), which stated the general rule that any proof which tends to show that an accused is guilty of other offenses is inadmissible. Andrews does not apply because, as discussed above, the record does not support the contention that the evidence was introduced to show other offenses. Instead, the evidence tends to show “consciousness of guilt” and as such had probative value and was properly admitted.

Appellant also contends that the trial court committed reversible error in not declaring a mistrial after the prosecutor made certain remarks in his closing arguments. From the record:

“MR. HOLLOWAY: I’m going to object to the statement by the state, ‘What would he have done if Debbie Adams had refused to give him the money?’ that’s not in evidence.
“THE COURT: I sustain the objection.
“MR. HOLLOWAY: Move for a mistrial.
“THE COURT: Your motion is denied.”

This court addressed almost the same issue in another robbery case in Hall v. State, Ala.Cr.App., 352 So.2d 40, 43 (1977). This court stated:

“Finally, appellant claims that the trial court erred in overruling his objection to the prosecuting attorney’s closing argument. The argument is not set out and we do not know precisely what the prosecuting attorney said. The record reveals the objection and the ruling thereon as follows:
“ ‘We object to the Prosecutor stating if she hadn’t seen him she may not be here to tell us. If she hadn’t seen him in the car she may not be able to tell us what happened. The inference being she might have been killed. We object to that as prejudicing the jury.’
“The Court: ‘Overruled.’
“Assuming the above was the argument of counsel for the state we do not think it constituted reversible error. We think it is more like the argument in Elston v. State, 56 Ala.App. 299, 321 So.2d 264, (1975), wherein the prosecutor said, ‘... I submit to you ladies and gentlemen of the Court (sic) that we were lucky no one was hurt in the robbery, and the next time that may not be true.’
“In Elston, supra, this court said:
“ ‘This argument was reasonably calculated to call the jury’s attention to the serious aspect of robbery and appeal for law enforcement. It was within the realm of a legitimate appeal to the jury.’ ”

Beyond the fact that such remarks are not reversible error, the trial court in the present case, unlike the court in Hall, supra, did not overrule appellant’s objection to such remarks but instead sustained the objection. Thus, the trial court properly denied appellant’s motion for a mistrial.

Finally, appellant claims that the trial court committed reversible error while sentencing appellant under the Habitual Offender Act. Specifically, appellant contends that the trial court, in reviewing appellant’s past convictions, improperly accepted a judgment entry into evidence which had a typographical error. Appellant also contends that the trial court committed reversible error in ordering appellant to respond to his inquiry of whether appellant was the same person as the person in the inaccurate judgment entry. Appellant further argues that the trial court erred in not requiring the State to prove that the court convicting appellant of the prior crime had proper jurisdiction. We find no merit in appellant’s contentions.

During a pre-sentencing hearing, the State, pursuant to Alabama’s Habitual Offender Act, introduced into evidence a certified minute entry of a prior conviction. The minute entry indicated that a black male with the same full name as appellant was convicted by a Houston County Circuit Court of robbery and sentenced to ten years imprisonment. However, the entry listed the defendant’s age as 69, while appellant was only 29 at the present trial. The entry also listed the defendant’s birthdate as “10-9-5_”. (sic)

The State placed the Circuit Clerk of Houston County on the stand. The Clerk had researched the defendant’s particular filed used in typing up the 1974 minute entry. The Clerk testified that upon conviction of the robbery, the defendant told the Clerk’s office that he was born on 10-9-51. She further testified that, upon receiving this information, she made a notation on the defendant’s file. The Clerk produced this file which was numbered the same as the minute entry, and testified that the age on the minute entry was a typographical error which should have read “age 29” and listed “10-9-51” as the date of birth.

The court accepted a copy of this folder as well as the certified minute entry. After appellant’s counsel continued to object to its admission, the court asked appellant if he was the same James Otis Crittenden who was convicted of robbery on November 5, 1974. Appellant, over the objection of his counsel, answered that he was.

Rule 6 of the Alabama Rules of Criminal Procedure states that burden of proof is on the state to prove a previous felony conviction. This court has held that a proper method in proving such a prior conviction is the introduction of a certified minute entry. Hope v. State, Ala.Cr.App., 381 So.2d 676 (1980). Therefore the trial court properly considered the offered minute entry as proof of a prior conviction. Any possible error in accepting into evidence the contested minute entry was rendered harmless by the Circuit Clerk’s testimony which corrected any error or confusion found in the entry. Rule 45, A.R.A.P.

Moreover, the introduction of a certified minute entry is only one of two acceptable methods of proving prior convictions. Rule 6 of A.R.Cr.P. states that the court may question a defendant in a pre-sentencing hearing on matters relating to possible prior convictions. This court has also held that the admission of a defendant himself is a proper method of proof. Hope, supra. Thus, the questioning was a proper method of ascertaining a prior conviction. Furthermore, appellant, while testifying on his own behalf, had already twice admitted to a prior Houston County Court conviction in 1974 for robbery resulting in a ten-year sentence. The trial court, in asking appellant if he was the defendant named in the judgment entry, was only eliciting information already properly in the record. Therefore the court did not violate defendant’s rights by questioning him on this matter.

Appellant also claims that the judgment entry was improperly admitted because it failed to show that the trial court convicting appellant of the prior felony had proper jurisdiction. This court cannot review appellant’s claim. The record shows that appellant objected to the admission of the prior conviction only on the specific grounds that the judgment entry was defective because of the age and birthdate errors. Appellant did not object on jurisdictional grounds. The law is well settled in Alabama that specific grounds of an objection to evidence waives all other grounds. Ward v. State, Ala.Cr.App., 376 So.2d 1112, cert. denied Ex parte Ward, Ala., 376 So.2d 1117 (1979).

A careful search of the record does not reflect errors affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Fannie Mae SANDERS v. STATE.
    4 Div. 964.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.

      Bill Kominos, Ariton, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Murder; twenty years. Appellant entered a guilty plea to an indictment charging that she had intentionally caused the death of her paraplegic husband by “drowning him by force.”

After the appellant was indicted by the Dale County Grand Jury in July, 1980, she was sent to Searcy Hospital for examination, where Department of Mental Health officials concluded that she was competent to stand trial.

On May 29, 1981, the appellant and her attorney executed an “explanation of rights and plea of guilty form,” which contained the rights outlined in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). At that time the trial judge also instructed the appellant about her rights, and she responded in a manner which indicated her understanding of those rights. The form signed by the appellant and her attorney stated that she understood the rights which had been explained to her, and also that she was not, at that time, under the influence of any “drugs, medicine, or alcoholic beverages.”

On June 26, 1981, the appellant filed a motion to withdraw her plea of guilty, the motion was set the following day, and after an evidentiary hearing, it was denied.

I

The appellant contends that the trial court erred when it denied her request to withdraw the guilty plea. She maintains that at the time she entered the plea she was under the influence of an overdose of medication prescribed by Dr. R. J. McLaughlin. She claims that the over-medication rendered her fully incapable of understanding the consequences of her guilty plea and therefore her plea was involuntary.

At the motion hearing, a letter from Dr. McLaughlin showing that Florinal tablets for headaches had been prescribed for the appellant, was admitted. The dosage was two tablets every four hours as needed, with up to three doses in a twenty-four hour period. Dr. McLaughlin wrote that a side effect of the medication was drowsiness and “it would possibly affect judgment.” Further, he wrote “an excess of these tablets would affect judgment a great deal.”

During the hearing, appellant testified that she had taken “over the limit” of the medication prescribed by Dr. McLaughlin, adding “I think I took over four or five.”

There was no testimony at the motion hearing concerning the appellant’s appearance or demeanor at the time she pleaded guilty which would have supported her allegation of incompetency due to an overdose of medication. Neither of her two attorneys suggested, at the time of her plea, any doubt about her mental competency or intimated that she was under the influence of an overdose of medication. The trial judge who accepted the plea was in a far better position to determine whether the appellant voluntarily, intelligently and understandingly made her plea of guilt. See Williams v. State, 386 So.2d 506 (Ala.Cr.App.1980). The court’s order denying the motion to withdraw the plea stated that the appellant was “competent and fully aware of the charges against her.” Further, the court stated that she “was aware of the rights she waived in the event she pleaded guilty and knew the maximum and minimum punishment for the offense charged.”

We also note that approximately three weeks elapsed after the guilty plea before the appellant advanced her contention of incompetency. The tardiness of the appellant’s claim reflects upon its good faith, sincerity and credibility. Based on the foregoing, it is our judgment that the appellant failed to carry the burden of proving her allegation and the trial court properly denied her motion to withdraw the plea.

II

Additionally, the appellant maintains that no evidence was presented to establish her involvement or participation in the murder. She argues that the trial court did not have a “factual basis” from which to determine her guilt after she insisted she was innocent of the murder.

From the record of the guilty plea hearing on May 29,1981, we find the following:

“Q. [By the Court] And do you understand that you are charged with murder?
“A. [By the Appellant] Yes sir I do.
“Q. And this fellow that you are charged with killing was your husband, do you understand that?
“A. Not necessarily, but I plead guilty because — I will plead guilty. I just plead guilty. I didn’t kill him but I saw it happen.
“THE COURT: From your investigation, Mr. Fuqua, what facts have you got that would form a basis for her entering into a plea of guilty?
“MR. FUQUA: [Defense Attorney] Your Honor, from the confession of Mr. McLeod that we obtained through the State’s permission. The confession of Mrs. Sanders through the State’s permission, we have got a copy of that. Based upon that and from discussions with the Defendant, we have come to the conclusion that her involvement in the case in the killing of the husband; her involvement whether she actually did the pushing in the river or not, but her involvement of not stopping it or helping to plan, or what have you, was enough within the eyes of the law if it was presented to a jury, we are confident if this was brought out that a jury could very easily find her guilty of murder as charged.
“THE COURT: And Mr. Matthews, if you would state for the record what the State would expect to prove so far as this offense is concerned.
“MR. MATTHEWS: [Assistant District Attorney] The State would expect to prove that the Defendant and Mr. McLeod entered into a conspiracy to kill her husband who was a paraplegic, and that this conspiracy was consummated by McLeod pushing this man who was in a wheel chair into the creek, and he drowned. And that they also, I think, made some attempts to hide the wheel chair and the suitcase. So these things tie the Defendant directly to the commission of the crime.
“THE COURT: Have you got a copy of the two confessions?
“MR. MATTHEWS: Yes.
“THE COURT: If you would introduce those into evidence and let me see those.”

In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the United States Supreme Court held that a guilty plea, entered over the accused’s protestation of innocence, was valid as long as the accused was represented by competent counsel and the evidence strongly supported his guilt.

In Lett v. State, 333 So.2d 859 (Ala.Cr.App.1976), and in Young v. State, 408 So.2d 199 (Ala.Cr.App.1981), this court relied on the principles laid down in North Carolina v. Alford, supra, and recognized that pleas of guilty coupled with assertions of innocence could not be accepted unless there was a factual basis to support the plea.

In the present case, the trial court had before it two very detailed confessions, by the appellant and by Johnny V. McLeod, each outlining the appellant’s participation in the killing of her husband. Appellant admitted to the trial court that she had read her statement, and her attorney acknowledged that her involvement would probably result in a conviction if presented to a jury.

This case can be distinguished from the recent case of Yamada v. State, [Ms. 7 Div. 894, March 2, 1982] (Ala.Cr.App. 1982), in which the prosecution presented only an offer of proof as a factual basis for the plea. Here, actual evidence in the form of two confessions strongly supported appellant’s guilt and was sufficient to satisfy the requirement of North Carolina v. Alford, supra.

It is our judgment that the trial judge had a sufficient factual basis to determine that the appellant was guilty of the murder notwithstanding her assertion of innocence at the time of her guilty plea.

We have examined the record in this case and find no error. The judgment of conviction by the Dale Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Quinton Lee FOUST v. STATE.
    4 Div. 970.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.

      David C. Emery, Ozark, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Robbery in the first degree; ninety-nine years. Appellant entered pleas of not guilty and not guilty by reason of insanity.

Mr. Jim Harris, the owner and operator of Andrews’ Drug Company in Ozark, Alabama, testified that on September 23, 1980, the appellant entered the store, pulled out a pistol, pointed it at him and Patty Powell, the salesclerk, and demanded drugs and money. After appellant fired a warning shot, Mr. Harris began putting drugs into a bag, and Ms. Powell removed the money from the cash register and gave it to the appellant.

Two customers came into the store and appellant ordered Mr. Harris, Ms. Powell and the customers to the storeroom in the back of the pharmacy. Another customer then entered the store and Mr. Harris, followed by the appellant, went to wait on him. As the customer left, Mr. Harris was able to overpower the appellant, remove his gun, and subdue him on the floor until the police arrived. Mr. Harris testified without objection that, based on his fifteen years’ experience as a pharmacist who had seen individuals under the influence of drugs, appellant was, in his opinion, “of his right mind ... very calm ... and in complete control” during the robbery.

Patty Powell and two of the customers corroborated Mr. Harris’ testimony and the State rested.

The defense called Dr. Carl Kirkland, a psychologist who interviewed and tested the appellant for four hours in jail following his arrest. Dr. Kirkland testified that, based on his personal observation of the appellant, along with tests administered to the appellant and appellant’s personal history, it was his opinion that on the day of the robbery appellant “did not understand the criminality of his behavior and could not conform his behavior to the law.” Dr. Kirkland stated that, in his opinion, on the date in question appellant was suffering from a “borderline personality disorder” and “an anti-social personality disorder” aggravated by drug and alcohol abuse.

On cross-examination, the State asked Dr. Kirkland whether he had seen “the report from the Department of Mental Health in Searcy Hospital” after appellant was evaluated there between May 7, and May 25, 1981. The report was not introduced into evidence. Dr. Kirkland replied, without objection, that he had reviewed the report and differed with the conclusion of the Searcy Hospital staff, that, although appellant had an “anti-social personality,” he knew right from wrong and was sane at the time of the robbery.

The appellant’s wife, mother and stepfather all testified that while appellant was “normal” at other times, he was “crazy” when under the influence of drugs. His wife and mother both stated that on the night before the robbery they knew appellant had taken a large quantity of drugs after an argument with his wife.

Dr. Fernando Lopez, a psychiatrist who interviewed appellant on December 19, 1980, for forty minutes, stated that in his opinion on the day of the robbery appellant’s mental functioning was impaired from ingesting drugs, he was suicidal, and he “could not discern the criminality of his actions.”

Appellant testified that on the night before the offense he had an argument with his wife and wanted to kill himself. He took 70 milligrams of Valium and injected a large quantity of Dilaudid from a syringe. He stated that he did not remember anything after injecting the Dilaudid until the following day when he found that he had been wrestled to the floor of Andrews Drug Company.

I

Appellant contends, first, that the verdict of the jury was contrary to the weight of the evidence on the defense of insanity. Next, he claims that the verdict was contrary to the weight of the evidence on the issue of whether, due to drug intoxication, he was incapable of forming the intent necessary for the offense of robbery.

Every criminal defendant is presumed to be sane. Ala.Code, § 15-16-2 (1975). The burden of proving insanity rests upon the defendant and must be established by a preponderance of the evidence. Christian v. State, 351 So.2d 623 (Ala.1977); Ala.Code, § 15-16-2, supra. In the case before us, two expert witnesses testified for the defense that appellant was suffering from a mental “impairment” or “disorder” which made him unable to appreciate the criminality of his actions. See Ala.Code, § 13A-3-1 (1975). Three of appellant’s family members stated that appellant was “crazy” when he was taking drugs.

In opposition to this evidence, the drugstore owner and robbery victim testified that appellant was in “control” of his faculties and appeared to be in his “right mind” on the day of the offense. In addition, on cross-examination of one of the defense experts, the State brought out the fact that mental health officials at Searcy Hospital had previously determined appellant to be sane at the time of the offense.

Based on the foregoing evidence, the proof of insanity was not overwhelming and uncontradicted. See Herbert v. State, 357 So.2d 683 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978), and the verdict of the jury was fully supported by the evidence on this issue. Bowen v. State, 386 So.2d 489 (Ala.Cr.App.), cert. denied, 386 So.2d 492 (Ala.1980). Even undisputed medical testimony concerning insanity is not conclusive on the jury, Bowen v. State, supra. Here, the expert defense testimony was contradicted by both expert and lay testimony brought out by the prosecution. Under these circumstances, we do not believe the verdict of the jury was contrary to the preponderance of the evidence on the issue of insanity.

Although voluntary intoxication caused by alcohol or drugs is not a defense to a criminal charge, Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969); Ala.Code § 13A-3-2 (1975), it may render the accused incapable of forming the intent necessary to constitute the offense, Patterson v. State, 30 Ala.App. 135, 1 So.2d 759 (1941); Ala.Code, § 13A-3-2 (1975).

The question of larcenous intent in a robbery prosecution is one for the jury, Garrison v. State, 372 So.2d 55 (Ala.Cr.App.1979); Odom v. State, 348 So.2d 277 (Ala.Cr.App.), cert. denied, 348 So.2d 282 (Ala.1977), and here the jury resolved the issue against the appellant. In our judgment, the jury had ample evidence before it to warrant its finding on the question of appellant’s intent.

We have searched the record and have found no evidence prejudicial to appellant. Therefore, the judgment of conviction by the Dale Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Billy ALSTON v. STATE.
    5 Div. 646.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Jim Zeigler, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Billy Alston was indicted for second degree theft of property belonging to one Betty Jones, to-wit, one picture, one sofa and one seed planter, of the total value of $120.00, contrary to law.

At trial appellant was permitted, to withdraw his not guilty plea and enter a plea of guilty after signing an “Ireland” form which sets forth his constitutional rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The form in question discloses that the appellant was advised that punishment in the case at bar was from “one to ten years.” At the sentencing hearing, the court entered its adjudication of guilt and sentenced the appellant to 15 years’ imprisonment. (R. 7-8).

I

The issue raised in this appeal is whether or not the trial court properly sentenced the appellant, inasmuch as there is no notice disclosed by the record that the state intended to proceed under the Alabama Habitual Offender Statute, § 13A-5-9, Code of Alabama 1975 as amended 1977, 1979. There is the additional issue raised that where, as here, there is simply a reference to “the range of sentence” without advising the appellant on record as to both the maximum and minimum punishment, will the plea proceeding and subsequent sentencing proceeding withstand constitutional scrutiny?

It is our judgment that this cause must be reversed and remanded as the proceeding below is clearly in conflict with the opinion of the Supreme Court of Alabama in Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973), wherein Mr. Justice Faulkner stated:

“We hold that a defendant, prior to pleading guilty, must be advised on the record of the maximum and minimum potential punishment for his crime.”

Moreover, the cause was continued in the trial court from November 16, 1981 until December 7, 1981, in order for the trial court to allow the appellant to “apply for probation and conduct a sentencing hearing.” The record fails to disclose any notice by the state to the appellant that the state was going to proceed under the Habitual Offender Statute, § 13A-5-9, Code of Alabama. Thus, this matter was not included in the advice given the appellant at the time of taking his plea of guilty.

This court in an opinion by Judge DeCar-lo has previously upheld the constitutionality of the Alabama Habitual Offender Statute, Watson v. State, Ala.Cr.App., 392 So.2d 1274, cert. denied, Ala., 392 So.2d 1280 (1980). In the proceeding before us, the trial court failed to explain to the appellant that he could and would be charged under the Habitual Offender Statute, thus the proceeding below must be vitiated and the cause reversed.

For the errors shown, this cause is hereby reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.