author: BOOKOUT, Judge.

text:
    Carson Eugene SMITH, alias v. STATE.
    5 Div. 581.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 26, 1982 Alabama Supreme Court 81-338.

      John A. Tinney, Roanoke, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Buying, receiving or concealing stolen property; sentence: ten years’ imprisonment.

The only issue appellant presents for review is whether the delay of two years and nine months between his arrest and trial was a denial of his constitutional right to a speedy trial. U.S.Const., amend. VI; 1901 Ala.Const., art. I, § 6. The facts governing this issue are set forth in chronological order as follows:

August 2, 1978 — Appellant and two code-fendants were discovered in possession of a Chevrolet pickup truck hauling a flatbed farm trailer to which a tractor was tied.

August 4, 1978 — Appellant was arrested and charged with buying, receiving or concealing stolen property, to wit, the Chevrolet pickup truck. Appellant was also charged with other offenses arising from the same incident.

August 8, 1978 — Defendant posted bond.

August 21, 1978 — Defendant failed to appear at the preliminary hearing because he was incarcerated in Georgia.

September 18,1978 — Defendant’s preliminary hearing was held and his case was bound over to the grand jury.

September 26,1978 — Defendant was tried and convicted of theft in Georgia. He was sentenced to six years’ imprisonment.'

October 4, 1978 — Defendant entered the Georgia prison system.

October 4, 1978-May 1979 — The Randolph County deputy district attorney was associated with defendant’s attorney, Doc Davis, on several Georgia civil cases. Davis related to the deputy district attorney that the defendant was dying of cancer.

February 6, 1979 — The Randolph County grand jury returned indictment charging the defendant with buying, receiving or concealing the Chevrolet pickup truck. This was the first grand jury term since the defendant’s preliminary hearing. At this time defendant was incarcerated in Reids-ville State Prison in Georgia.

February 13,1979 — The Randolph County circuit judge’s bench notes reflect that arraignment was continued because the defendant was incarcerated in Georgia.

April 1979 — One of the codefendants pleaded guilty in Randolph County and received a probationary sentence to run concurrently with a Georgia prison term.

May 1979 — Defendant employed Georgia attorney, Frank H. Hester, replacing Doc Davis.

May 16, 1979 — Defendant was released from Georgia prison system on appeal bond in the Georgia theft case.

May 16, 1979-Feburary 6, 1980 — Defendant was free on the appeal bond. For two months during this time, defendant lived in Randolph County three-fourths of a mile from two deputy sheriffs whom he saw periodically. Defendant was in and out of Randolph County for the remainder of this interval.

February 6, 1980 — Defendant was arrested by Heard County, Georgia, authorities pursuant to charges in Randolph County, Alabama. Defendant claims this was the first knowledge he had of pending Alabama charges.

February 22, 1980 — Defendant’s arraignment was continued awaiting his extradition from Georgia.

March 21, 1980 — The Randolph County deputy district attorney mailed extradition papers to the Alabama governor’s office since he had discovered that defendant was imprisoned in Franklin, Georgia. The extradition request stated that the defendant had charges pending against him in Randolph County of buying, receiving or concealing stolen property.

June 19, 1980 — The Randolph County deputy district attorney had a telephone conversation with the Georgia governor’s office wherein he learned that he incorrectly initiated extradition proceedings when he should have followed the procedure set forth in the Alabama Uniform Mandatory Disposition of Detainers Act, post. The deputy district attorney then mailed a letter to the Georgia Department of Offender Rehabilitation informing those authorities that Alabama was placing a detainer against the defendant on charges of second degree burglary and grand larceny.

June 20, 1980 — The Alabama governor’s office received the defendant’s extradition papers which were returned from the governor of Georgia.

September 8, 1980 — The Randolph County deputy district attorney received acknowledgment from Georgia authorities that a detainer had been filed with them against the defendant based on second degree burglary and grand larceny charges.

October 1980 — Defendant was notified by Georgia authorities of the Alabama detain-er.

November 17, 1980 — Defendant filed a request to be brought to trial in Alabama on the burglary and grand larceny detainer pursuant to art. Ill of the Detainers Act.

February 16, 1981 — Defendant was returned to Alabama.

February 17, 1981 — Defendant was arraigned and an attorney was appointed for him by the court.

March 20, 1981 — Defendant filed a motion to dismiss for lack of a speedy trial.

April 16, 1981 — Defendant’s motion to dismiss was denied. Defendant was tried and convicted of buying, receiving or concealing the Chevrolet pickup truck and was later sentenced to ten years’ imprisonment. This was the first term of court since defendant’s request for trial.

There is no talismanic rule pronouncing when a criminal defendant has been denied his constitutional right to a speedy trial. Instead, we must weigh the conduct of the prosecution against that of the defendant on a case-by-case basis. Whitley v. State, 392 So.2d 1220 (Ala.Cr.App.), cert. denied, 392 So.2d 1225 (Ala.1980); Noe v. State, 391 So.2d 151 (Ala.Cr.App.1980). This ad hoc balancing process prescribed by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), involves the assessment of four factors: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant.

Length of Delay

The length of delay acts as a “triggering mechanism,” and the delay must be “presumptively prejudicial” in order to merit inquiry into the three other balancing factors. Barker, supra; Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980). A defendant’s speedy trial clock is tripped “when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.” United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Watson, supra. In cases where a formal indictment has not yet been returned, a person becomes an “accused” when he is arrested and charged. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); Prince v. State, 354 So.2d 1186 (Ala.Cr.App.), cert. denied, 354 So.2d 1193 (Ala.1977).

In the instant ease the appellant’s arrest on August 4, 1978, constituted the initiation of criminal proceedings for the purpose of applying the Barker test, rather than February 6,1979, the date on which he was formally indicted. Therefore, the length of time between appellant’s arrest and trial on April 16, 1981, was approximately two years and nine months. While we recognize that there is no fixed length of time that is considered to be per se reasonable, we conclude that this time span is “presumptively prejudicial,” Foster v. State, 45 Ala.App. 323, 229 So.2d 913, cert. denied, 285 Ala. 754, 229 So.2d 915 (1969), and mandates an investigation of the remaining Barker factors.

Reason for Delay

Appellant was duly indicted at the first scheduled grand jury term following his preliminary hearing. This preindictment delay of seven months was not inordinate and must be considered as a delay “made necessary by the law itself.” Cook v. State, 333 So.2d 855 (Ala.Cr.App.), cert. denied, 333 So.2d 858 (Ala.1976). The State claims that the delay between the date of the indictment, February 6, 1979, and May 1979, when appellant was incarcerated in the Georgia penitentiary and was available to Alabama process, must be blamed on the assertions of appellant’s attorney, Doc Davis. Davis repeatedly told the Randolph County deputy district attorney, Sandy Hol-liday, that the appellant was dying of cancer. Holliday testified at the hearing on the motion to dismiss that he “remember[s] him [Doc Davis] saying that he [appellant] was going to die and we would be wasting our time to come get him.” Holliday further reiterated that he was “led to believe Mr. Smith was in his death bed.”

Holliday claims that, while the appellant was released from the Georgia penitentiary on appeal bond from May 16, 1979, until February 6, 1980, when he was rearrested in Georgia on the Randolph County charges, his office had no knowledge of appellant’s whereabouts. However, Holliday and Sheriff I. B. Moore admitted that there were rumors during this time that appellant was in their county and was seen periodically. The State asserts that as soon as they discovered the appellant was in neighboring West Georgia in early 1980 they had him apprehended and incarcerated in the Heard County, Georgia, jail.

Apparently the appellant was charged with several sequences of criminal acts in East Alabama and West Georgia both before and after the crime charged herein occurred. Some of the delay during these thirty-three months was because of confusion arising from the different charges, some interrelated and some distinct. However, an accused’s right to a speedy trial remains undiminished even when he is serving a prison sentence in a sister state. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Randolph County officials knew as early as September 1978 that appellant was tried and convicted in Georgia. Therefore, appellant was “realistically available” to Alabama for his return from Georgia for about eight months prior to his release on appeal bond. Nevertheless, Alabama authorities never attempted to have the appellant returned to answer the Alabama charges. However, mere inaction by the State must be weighed against the State less heavily than deliberate prosecutorial delay. Corn v. State, 387 So.2d 275 (Ala.Cr.App.), writ denied, 387 So.2d 280 (Ala.1980). Moreover, the State’s inaction can be attributed here to the actions of defendant’s attorney misrepresenting to the prosecutor that appellant was going to die. Also, the appellant was not “realistically available” to Alabama for ten months while he was “at large” on the Georgia appeal bond.

The remaining delay must be weighed against the State. Turner v. State, 378 So.2d 1173 (Ala.Cr.App.), writ denied, 378 So.2d 1182 (Ala.1979). Deputy District Attorney Holliday attempted to extradite the appellant and was informed by Georgia authorities that the proper procedure was to initiate process under the Alabama Uniform Mandatory Disposition of Detainers Act, § 15-9-80 et seq., 1975 Ala.Code, an act that had been in effect for two years. Once Holliday became aware of his error, he then only partially complied with the act by writing a letter requesting that a detainer be placed on appellant while incarcerated in Georgia and based on a Randolph County indictment for burglary in the second degree and grand larceny. Georgia acknowledged receipt of this request for a detainer. Holliday never notified Georgia under art. IV of the Act requesting temporary custody of the appellant to be tried on those charges. This caused the delay from February 1980 to November 1980 when appellant requested that he be returned for trial under art. Ill of the Act. The remaining months between November 1980 and trial in April 1981 can be attributed as a necessary delay occasioned by law. Cook, supra. Therefore, roughly ten months of this thirty-three months’ delay must be weighed against the State.

Defendant’s Assertion of His Right

A criminal defendant has no duty to bring himself to trial. While the defendant’s timely or untimely assertion of his speedy trial right is one of the balancing factors enumerated in Barker, supra, the Supreme Court in that landmark decision placed the primary burden on the courts and prosecutors to assure that cases are brought to trial. Appellant testified that his attorney, Doc Davis, had informed him that his Alabama charges were in the “dead file.” Appellant claims that he had no knowledge that there were any outstanding Alabama charges until he was arrested in Georgia on February 6, 1980. It was up to the State to show that the appellant had knowledge of these charges before this time. Prince v. Alabama, 507 F.2d 693 (5th Cir.), cert. denied, 423 U.S. 876, 96 S.Ct. 147, 46 L.Ed.2d 108 (1975); Mayberry v. State, 48 Ala.App. 276, 264 So.2d 198, cert. denied, 288 Ala. 746, 264 So.2d 207 (1972).

After appellant’s February 1980 arrest, there was confusion as to whether Georgia authorities would return appellant to Alabama since he still had time remaining to serve on the Georgia theft sentence. Appellant claims that he believed the matter was awaiting the decision of the Georgia governor. In the meantime, Alabama erroneously began extradition of the appellant from Georgia. On June 19, 1980, a detainer was placed against appellant and Georgia acknowledged receipt of the detainer in a letter dated September 18, 1980. This correspondence indicated that Georgia officials would inform the appellant that a detainer had been filed against him, and appellant testified that he was so notified in mid-October 1980. By mid-November, appellant had complied with the formal requirements of art. Ill of the Detainers Act without the assistance of counsel.

Article III provides the method by which a defendant incarcerated in one state may request to be transferred to another state to stand trial on charges for which the other state has placed a detainer on him. Obviously, since appellant had no knowledge of an Alabama detainer until mid-October 1980, he promptly asserted his right by initiation of art. Ill mechanisms. In addition, appellant’s motion to dismiss for lack of a speedy trial was filed on March 20, 1981, only one month after appellant was arraigned and appointed an attorney. Even though we are aware that the State complied with its duty to “make a diligent good-faith effort to secure the presence of the accused” from Georgia “upon demand” and “afford him trial” since he was tried at the first court term following his art. Ill request, we find that this factor must be weighed in favor of the appellant.

Prejudice to the Defendant

Since the preceding three factors do not unanimously coalesce in appellant’s favor, Prince v. Alabama, supra, the prejudice suffered by the appellant must still be considered in the balancing process. This prejudice must be assessed in light of the interests which the speedy trial right was designed to protect. These interests were described in Barker, 92 S.Ct. at 2193 as: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; (iii) to limit the possibility that the defense will be impaired.” The Fifth Circuit Court of Appeals in Prince v. Alabama categorized these interests into two basic types of prejudice: (1) prejudice to defendant’s defense and (2) prejudice to defendant’s person.

Throughout appellant’s hearing on his motion to dismiss for lack of a speedy trial, various witnesses testified that their memory was impaired due to the passage of time. Appellant testified that the two codefend-ants were no longer available as witnesses. However, the State offered incriminating statements given by these witnesses to the defense which the defense apparently declined. The major prejudice incurred by the appellant was the preclusion of the possibility that the Alabama and Georgia sentences could run concurrently. Appellant claims that upon receipt of the Alabama detainer Georgia transferred him from medium to close security inmate status resulting in a reduction of recreational and other privileges. The pendency of the Alabama detainer adversely affected appellant’s possible entry of rehabilitative and parole programs in Georgia. Although appellant’s testimony to this effect was self-serving and conjectural, the State advanced no evidence to contradict it, and it is thus sufficient to establish prejudice. Slaughter v. State, 377 So.2d 632 (Ala.1979).

After analyzing and weighing these factors, we find that appellant was unconstitutionally denied a speedy trial. Therefore, his motion to dismiss was erroneously denied by the trial court.

While appellant’s counsel did not raise the issue in a sufficiently specific manner at the trial below, there was a strong probability that appellant was illegally transferred to Alabama pursuant to the Detainers Act. The Act provides that the “sending state,” Georgia, shall temporarily transfer custody to the “receiving state,” Alabama, for the determination of all charges or indictments for which a detainer has been lodged against the defendant.

Appellant was tried and convicted for buying, receiving or concealing stolen property. The only detainer Georgia authorities acknowledged receiving against appellant from Alabama was for burglary in the second degree and grand larceny. There was no detainer placed against the appellant based on a buying, receiving or concealing charge. Moreover, the record reflects that a charge of burglary in the second degree was nol-prossed in 1978 and its companion case charging grand larceny was likewise nol-prossed in 1978. While other grand larceny charges stemming from different criminal incidents were outstanding against the appellant, it seems likely that these two nol-prossed companion cases were the basis of the Alabama detainer sent by Randolph County officials to Georgia. If so, the detainer had no substance or merit and was therefore ineffectual for sending the appellant back to this state. It is, however, unnecessary to rule on that issue, other than to make the above observation. Our decision in this case is based on the determination that the appellant was denied a speedy trial. Pursuant to Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), the instant charge must be dismissed.

REVERSED AND RENDERED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Billy K. FIELDING v. STATE.
    5 Div. 618.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 19, 1982 Alabama Supreme Court 81-323.
    John R. Formby, Jr., Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The petitioner filed a petition for writ of habeas corpus alleging that he was deprived of “good time” credit without due process of law. The District Attorney filed a “Motion to Deny Petition for Writ of Habeas Corpus” attached to which was a copy of the “Alabama Board of Corrections Notice of Disciplinary Board Hearing” in petitioner’s case. This completed form was not certified as being a true and correct copy or authenticated in any manner whatsoever.

The Circuit Judge granted the State’s motion to dismiss without a hearing.

A petition for habeas corpus is the proper method by which a prisoner who claims to have been deprived of his “good time” credit without due process can challenge the results of his disciplinary hearing. Williams v. Davis, 386 So.2d 415 (Ala.1980).

In order to satisfy the minimum requirements of due process in a prison disciplinary proceeding, one requirement is that there must be a “written statement by the factfinders as to the evidence relied on and reasons” for the disciplinary action. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972); approved in Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974); Williams, supra. In this case the report of the disciplinary board hearing attached to the State’s motion to dismiss only states the factual finding of the disciplinary court and the facts surrounding the charge. Nowhere in the report is there contained a written statement of the evidence relied on. Consequently, the report does not in and of itself show that the constitutional requirements of Wolff v. McDonnell, supra, were met. The circuit court erred in summarily granting the State’s motion to dismiss the petition without a hearing.

The Attorney General also argues that the petition was properly dismissed because habeas corpus does not lie to challenge prospective detention. See Judge Bookout’s dissent in Washington and Baldwin v. State, Ala.Cr.App. (1981) 405 So.2d 62. Since the petitioner would not be entitled to immediate release from custody if his petition were granted and his good time restored, the petition for writ of ha-beas corpus is premature the Attorney General argues.

Even if the “long-established rule” advocated in Judge Bookout’s dissent is followed, the petition for writ of habeas corpus in this case is not premature. This is because along with being sentenced to the loss of four months’ good time, the petitioner’s custody classification was changed from minimum to maximum.

The judge of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT, J., dissents.


text:
    Robert COOK v. STATE.
    6 Div. 376.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 26, 1982 Alabama Supreme Court 81-324.

      Arthur Parker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Burglary in the first degree; sentence: thirty years’ imprisonment.

Appellant was indicted for nighttime burglary “with intent to ravish.” Code of Ala. 1975, § 13-2-40. The jury returned a guilty verdict, and appellant contends that the State presented insufficient evidence to sustain this conviction. We agree.

Between 3:30 and 4:00 a. m. on December 30, 1979, fourteen-year-old Rosalyn Davis awoke and saw a large man standing over her bed. When she started to sit up and scream, the man placed his hand over her mouth. She turned away from her assailant toward a window next to her bed and in doing so freed herself from the man’s hand covering her mouth. She screamed and suddenly felt a pain in her side.

The victim’s father, John Davis, was awakened by his daughter’s scream. As he opened the door to his bedroom to investigate, he saw the appellant “tiptoing” out of Rosalyn’s bedroom. A chase ensued whereby appellant fled from the apartment followed by Davis, Rosalyn and a young girl who had been sleeping on another bed in the same room with Rosalyn. From their porch they watched appellant run down the street and out of sight. The three of them went back into the apartment and Rosalyn then discovered that she had been stabbed in the lower back. Davis immediately called the police and afterwards drove his daughter to a nearby hospital.

The police found scratches around the front door indicating a forcible entry. In the Davis kitchen they discerned a girl’s purse had been ransacked, its contents strewn on top of the stove. The Davises told the police that a butcher knife was missing from the kitchen. However, none of the witnesses testified that they saw appellant with a knife, nor did police discover a knife on appellant’s person upon arrest, nor did a search by the police of the area between the apartment and the point of appellant’s apprehension reveal the missing knife.

Rosalyn Davis testified before the jury as follows:

“Q. What happened when you woke up?
“A. When I first woke up I was sorta still asleep and then something told me to really wake up and then I saw a man standing over my bed.
“Q. How far from your bed was he standing?
“A. About one foot. It wasn’t that much.
“Q. What happened after you awoke and saw this man standing over your' bed?
“A. I guess he realized that I was awake...
“MR. PARKER: We object to that.
“THE COURT: Just what you saw and did please, mam.
“A. I woke up and then I realized that he was there and I started to scream and I tried to scream and he put his hand over my mouth.
“Q. After he put his hand over your mouth what did he do then?
“A. Like pushed me back down on my bed and then I started to struggle with him.
“Q. What did you do as you were struggling?
“A. I was trying to struggle and then I made a quick turn left towards the window from him and then I got, I felt a pain in my side.
“Q. As I understand you had gone to sleep and you woke up and there was a man there in your room?
“A. Yes.
“Q. Did you see a knife in the person’s hands?
“A. No.
“Q. Did the person say anything to you?
“A. No.
“Q. Did you say anything to him?
“A. No.
“Q. So the first thing that you did when you saw this person standing in the room was scream, is that right?
“A. Yes.
“Q. When you looked at that person there in the room what did you see?
“A. What do you mean?
“Q. Tell me what you saw. You were lying there and you saw a person standing there?
“A. Yes.
“Q. What did you see?
“A. I saw a man with a hat on and a coat and he had a beard.
“Q. A hat, a coat and a beard?
“A. Yes.
“Q. Is that when you screamed?
“A. No. I didn’t scream at first because he didn’t let me. He put his hand over my mouth.
“Q. In other words when you woke up you moved, is that correct?
“A. Yes.
“Q. When you moved this person put his hand over your mouth?
“A. Yes.
“Q. Was your mouth or face bruised or injured in any manner.
“A. No.
“Q. And then I think you say that you turned your face away from him and pulled your head up or something like that?
“A. I turned away and then I screamed.
“Q. So when you turned away his hand came off your mouth, is that what you’re saying?
“A. Yes.
“Q. And when you screamed that’s when the person left the room?
“A. No. When I screamed after he had stuck me in the side and then after he left the room.
“Q. Then he left the room?
“A. Yes.”

This was the only testimony presented by the State of what transpired in Rosalyn Davis’s bedroom. Since appellant was compelled to flee from the apartment as soon as he exited Rosalyn’s bedroom and saw her father, he obviously rummaged through the purse in the kitchen prior to his entry into her bedroom. Appellant insists that none of the evidence reveals an intention to ravish when he burgled the Davis apartment.

The elements of the crime of first degree burglary are as follows: (1) breaking and entering, (2) in the nighttime, (3) of an inhabited dwelling house or any other house or building occupied by any person lodged therein, with the intent to steal or commit a felony. Lowman v. State, 400 So.2d 430 (Ala.Cr.App.), writ denied, 400 So.2d 434 (Ala.1981). The intent to ravish must be concurrent with the breaking and entering. Watkins v. State, 389 So.2d 186 (Ala.Cr.App.1980); Young v. State, 51 Ala.App. 400, 286 So.2d 76 (1973); Davis v. State, 44 Ala.App. 284, 207 So.2d 649 (1967). The question of intent is a question for the jury. Sullivan v. State, 340 So.2d 878 (Ala.Cr.App.), cert. denied, 340 So.2d 881 (Ala.1976).

Intent, “being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.” Pumphrey v. State, 156 Ala. 103, 47 So. 156 (1908); Hamilton v. State, 283 Ala. 540, 219 So.2d 369, cert. denied, 396 U.S. 868, 90 S.Ct. 134, 24 L.Ed.2d 121 (1969). “[I]n weighing evidence toward intent to ravish, the jury must have before it more than a mere balancing of probabilities. The State must convince the jury from the evidence beyond a reasonable doubt.” Davis v. State, 42 Ala.App. 374, 378, 165 So.2d 918, cert. denied, 276 Ala. 703, 165 So.2d 927 (1964).

The State failed to prove that the appellant broke into and entered the Davis apartment with the intent to ravish a woman therein. Instead, the fact that appellant previously entered the kitchen and went through the contents of a purse demonstrated that appellant more than likely burglarized the apartment with the intent to steal. Moreover, since the State’s testimony showed that Rosalyn was stabbed during the incident, there was enough evidence for the jury to determine whether there was an intent to murder if that specific felony had been made the basis of the indictment. We cannot understand why the State did not indict the appellant for burglary with intent to steal or intent to murder, rather than intent to ravish, of which it had no evidence.

While we are aware that the intended act need not be carried out, Yelton v. State, 56 Ala.App. 272, 321 So.2d 234, cert. denied, 294 Ala. 745, 321 So.2d 237 (1975), the State presented no evidence that appellant got into bed with the victim, kissed her, removed her clothes, took off his clothes, touched her breasts or private parts, or even spoke to her. Lowman, supra; Sashner v. State, 48 Ala.App. 246, 263 So.2d 701 (1972); Hamilton, supra; Davis, supra; Underwood v. State, 248 Ala. 308, 27 So.2d 492 (1946). Because the State’s evidence failed to disclose that appellant had the requisite intent to ravish, the proof is insufficient to support the present conviction. The scintilla rule does not apply in a criminal case, Watkins, supra; McArdle v. State, 372 So.2d 897 (Ala.Cr.App.), writ denied, Ex parte State ex rel. Attorney General, 372 So.2d 902 (Ala.1979), nor may a guilty verdict rest on speculation. See also Baker v. State, 404 So.2d 100 (Ala.Cr.App.), cert. quashed, 404 So.2d 105 (Ala.1981).

REVERSED AND RENDERED.

All the Judges concur.


author: B00K0UT, Judge.

text:
    Ricky Lee MORTON, alias v. STATE.
    6 Div. 553.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 26, 1982 Alabama Supreme Court 81-360.

      Gary L. Smith of Elledge & Smith, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   B00K0UT, Judge.

Assault in the first degree; sentence: five years’ imprisonment.

Appellant contends the trial judge committed error by refusing to give four written requested charges dealing with the defense of self-defense. He contends the evidence would require giving a charge on self-defense. We are unable to make such a determination because the refused charges are not included in the record on appeal.

Our review is limited solely to matters appearing in the record. Smith v. State, 346 So.2d 465 (Ala.Cr.App.1976). We cannot rule on the correctness vei non of a ruling on documents not in the record. Barbosa v. State, 331 So.2d 811 (Ala.Cr.App. 1976); Mayes v. State, 350 So.2d 339 (Ala.Cr.App.1977). There is a strong presumption in favor of the correctness of the trial court’s rulings, and that presumption cannot be overcome unless we have an opportunity to review the matter upon which the trial court based its ruling.

Rule 10(f), Alabama Rules of Appellate Procedure, prescribes the method to be used to correct the record in case of errors or omissions therein. The instant case was argued and submitted on the record without addition or amendment. We have reviewed all matters included in the record, and we find no error in the instant record as submitted to us.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Linda Gay WYRICK v. STATE.
    8 Div. 462.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 26, 1982 Alabama Supreme Court 81-341.

      Donald E. Holt and Joe M. Patterson, Jr., Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

The appellant was indicted for the murder of her ex-husband, John W. Wyrick, by shooting him with a pistol in violation of Ala.Code § 13A-6-2 (1977). The jury convicted her of manslaughter and the trial court fixed her punishment at ten years in the state penitentiary.

The evidence is uncontroverted that at approximately 9:54 p. m. on July 14, 1980 the deceased came to the appellant’s home. Miss Shelia Miller, a friend of appellant and appellant’s daughter, Terry, let the deceased in the front door. Appellant did not wish to see the deceased and had had Terry lock her bedroom door and tell the deceased she was not home. The deceased had called the appellant’s home several times that day desiring to see appellant and also threatening to kill “the whole g.d. bunch” of them, saying that “he was coming back.” (R. 213) The deceased had been coming to the appellant’s house two or three times a day for “two or three weeks and making phone calls . . . three or four times a day.” (R. 275)

When Terry told the deceased her mother was not home the deceased called her a “lying bitch” and “started banging” on the appellant’s bedroom door. (R. 208) The appellant had the light out in her bedroom and did not answer the deceased’s knocking or make any other sounds indicating her presence. The deceased next walked to the front porch of the house, just outside the appellant’s bedroom window, and unscrewed the light bulb to the front porch. Terry told the deceased to “get away” (R. 209) but he ignored her directions and moved towards her. The deceased then went back inside to the appellant’s bedroom door and “started beating and telling her to let him in.” (R. 210) Terry began “screaming real loud . . . just at the top of my lungs” when she “heard a shot.” (R. 210)

Hearing her daughter’s screams, the appellant fired her Charter Arms .38 Special one time through her bedroom door fatally wounding the deceased. As the deceased turned and began to fall on his back the appellant opened her bedroom door and fired four more shots from close range into the deceased, emptying the pistol. The appellant, who had earlier called the Florence Police Department when the deceased arrived at her house to request their assistance, placed a second call for an ambulance. The deceased died shortly after police officers arrived at the scene. The appellant was immediately taken into custody. Further facts will be recited as they are pertinent to the issues.

I

The appellant first alleges that the trial court committed reversible error in allowing Investigator Lawrence D. Smelley of the Alabama Bureau of Investigation to state his opinion as to the amount of force that would have been necessary to break the appellant’s bedroom door open. We disagree.

Investigator Smelley testified generally concerning his investigation at the scene. His examination of the bedroom door in question revealed that

“It was one of the old type doors that was probably — that was popular in homes built in the thirties and forties that had the wide border and then in the middle, it had a thin panel. It was just an old type door. It wasn’t the double panel type doors that you see in more modern homes nowadays.” (R. 133)

In response to a question by the trial court Smelley testified that he “examined the door to see if there had been any force placed against it.” (R. 134) The trial court then overruled defense counsel’s objection to Smelley stating his opinion, but cautioned the jury as follows:

“Well, ladies and gentlemen, I OVERRULE THE OBJECTION. I will, however, certainly say to you, that it’s for you to really determine that question. I’ll let this witness testify to it or to his opinion, although it’s not controlling on you. But I’ll let him testify as to his opinion based on his examination and familiarity with it. Now, go ahead and answer it.” (R. 135)

Smelley then testified that in his opinion, “if a person had really wanted to go through the door, he could have with not very much trouble.” (R. 135)

Smelley was cross-examined extensively by defense counsel. He admitted that he did not know how much force it would take to “pop” a particular kind of door open. Smelley further admitted that he did not test the door, or have it tested by experts, to see how much force was necessary to break it. He did not know what kind of wood the door was made from and his only inspection of the door consisted of an “eyeball examination.” (R. 137)

We believe it a fair reading of the record that Investigator Smelley was not qualified as an expert witness for the question he was asked to give his opinion.

It has been the traditional rule in Alabama that a lay witness can testify to facts which he observed but cannot testify to opinions, conclusions, deductions or inferences which are based upon facts. C. Gamble, McElroy’s Alabama Evidence § 127.-01(1) (3rd Ed. 1977). This general rule has been criticized as being unrealistic and assuming a low mentality and gullibility in jurors. C. Gamble, McElroy’s Alabama Evidence § 127.01(2) (3rd Ed. 1977) and cases cited therein. See Justice Beatty’s concurring opinion in Boatwright v. State, 351 So.2d 1366, 1367 (Ala.1977).

There are many exceptions to the general rule. C. Gamble, McElroy’s Alabama Evidence § 127.01(3) (3rd Ed. 1977). One such exception, which we find applicable here, is the “collective fact” or “shorthand rendition of fact” exceptions. Murrell v. State, 377 So.2d 1102, 1106 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979).

“A witness may testify to his opinion if it is a collective fact or a shorthand rendition of fact. This variety is most commonly referred to as the collective fact exception and arises when the facts observed by the witness are so many or so inexpressible that he is allowed to give the jury his opinion. His opinion is conceived of as being a shorthand way of giving the facts and, consequently, does not constitute a violation of the opinion evidence rule. When the witness is asked, for example, if a particular person was drunk, this is considered permissible as a shorthand way of expressing several well known facts or characteristics.”
C. Gamble, McElroy’s Alabama Evidence § 127.01(3) Variety No. 7 (3rd Ed. 1977).

As in Murrell, supra, Investigator Smelley’s examination of the door provided a logical and sufficient basis for his opinion. We thus hold that his opinion was admissible.

Even assuming error, the trial court’s instructions to the jury combined with defense counsel’s sifting and thorough cross-examination of Smelley’s testimony rendered any such error harmless. ARAP, Rule 45.

II

The appellant next contends that the trial court erred in refusing to give the following requested jury charge:

“The Court charges the Jury, that the indictment as read to you in this case includes within itself the charge of murder, and the lesser included charges of manslaughter and criminally negligent homicide. It will be your duty to determine from all of the evidence that has been presented to you in the case whether or not the Defendant is guilty of any offense whatsoever, and in the event that you find her guilty of some offense, it will then be your duty to determine what offense the Defendant is guilty of.”

The appellant at one point in her testimony stated that she fired through the door “more to scare ... make them stop,” that she thought her daughter and the deceased were together and that she didn’t think about the possibility she might hit her daughter when she fired the gun. (R. 261) It is this testimony upon which the appellant now alleges the charge on “negligent homicide” should have been given. We disagree.

The charge as requested contains more than one legal principle. Gaston v. State, 359 So.2d 1170 (Ala.Cr.App.1978). The first part of the charge, which is the only part that mentions “negligent homicide” is abstract as applied to the evidence and is not properly hypothesized on a “belief from the evidence.” Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976). Requested instructions which are mere statements of legal principles, without instruction as to the effect upon or application to the issues are abstract and may properly be refused. This is true even where a correct principle of law is set out. Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813, cert. denied, 292 Ala. 723, 297 So.2d 817 (1974).

Moreover, we do not believe that the testimony by the appellant, which is set out above, was sufficient for a charge on negligent homicide to have been properly given. At the least the appellant acted “recklessly” as that term is used for manslaughter in Ala.Code § 13A-6-3(a)(l) (1977) as defined in Ala.Code § 13A-2-2(3) (1977). See the commentary to Ala.Code § 13A-6-3 (1977). Thus, we hold the charge requested to have been properly refused.

Ill

The appellant testified on direct examination that the deceased had continually tried to “dominate” and “rule” her life since their divorce in 1974. (R. 251) The appellant stated that she and the deceased continued “dating each other off and on” after the divorce, but that she terminated all “romantic contacts” with him in February, 1980 after she learned he had been molesting her daughter. (R. 249)

On appellant’s cross-examination, it was learned that Chris Wyrick, the deceased and the appellant’s son, visited with his uncle in North Carolina in June, 1980 for approximately two weeks. The appellant stated that after Chris’s visit was over she and the deceased left Alabama in two cars to pick him up. The appellant drove her car and the deceased drove his. The appellant testified her car “started developing trouble in Atlanta ... so we just left it there and went on up in his car. . . . [W]e went . . . straight up there and straight back.” (R. 271) On the way back the deceased drove the appellant’s car, after picking it up in Atlanta, and the appellant drove the deceased’s car. The appellant’s car ran out of gas south of Moulton. According to the appellant’s testimony, the deceased “had put gas in the car .. . and . . . had primed the carburetor” when “a truck come by and blew it over and it boomed.” (R. 273)

The following exchange then occurred:

“Q Did it burn? That’s what I’m trying—
“A Not totally. I mean — the insurance totaled it, but it wasn’t a total—
“Q Had you and he talked about burning that car prior to that time?
“A No, sir! That’s the first car I ever owned.
“MR. HOLT: If Your Honor, please, this is illegal, irrelevant, immaterial, prejudicial, and I move for a mistrial. It’s totally irrelevant to the issue we’re trying. We move for a mistrial.
“THE COURT: OVERRULED.
“MR. HOLT: We move the Court to instruct the jury to disregard any such irrelevant, prejudicial testimony.
“THE COURT: MOTION DENIED. It goes to a possible motive, ladies and gentlemen, and we receive it for that limited purpose.” (R. 273, 274)

We note initially that specific objections are necessary to preserve error. Gibbs v. State, 342 So.2d 448 (Ala.Cr.App.1977). Specific grounds of objection waive all grounds not specified, and the trial court will not be put in error on grounds not assigned. Hargrove v. State, 344 So.2d 823, 825 (Ala.Cr.App.), cert. denied, 344 So.2d 826 (Ala.1977). The trial court must be apprised of the basis for the objection with sufficient particularity to allow an informed decision to be made on the particular legal issues involved. Bland v. State, 395 So.2d 164, 168 (Ala.Cr.App.1981). A trial court need not cast about for tenable grounds of an objection to evidence. Watkins v. State, 219 Ala. 254, 122 So. 610 (1929).

Here, there was no objection that the State was attempting to introduce evidence of a collateral offense as is alleged by the appellant. The appellant’s objection was of a general nature. A close reading of the appellant’s testimony reveals there was no evidence that a collateral offense had, in fact, been committed. If a trial court’s ruling is correct for any reason, it will not be reversed because the court assigned the wrong reason therefor. Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972); Knox v. State, 365 So.2d 349 (Ala.Cr.App.1978).

Furthermore, a negative response from a witness to questions relating to the accused’s prior misconduct is harmless. Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980). A negative answer to an improper question does not constitute reversible error. Scroggins v. State, 341 So.2d 967 (Ala.Cr.App.1976), cert. denied, 341 So.2d 972 (Ala.1977).

IV

Appellant further argues that during her cross-examination, the prosecution made improper references to her daughter’s juvenile record. We find no merit to this argument.

The appellant testified without objection that she and the deceased had had “arguments” or “difficulties” over her daughter after she found he had molested her and that “Terry had been in some trouble.” (R. 278) The appellant then testified, over objection, that Terry’s trouble concerned a petit larceny charge and that she (appellant) had herself charged Terry with being ungovernable. The trial court in overruling the objection informed the jury that the evidence was being received “for the limited purpose of showing an overall relationship between these parties . .. what they might have been arguing about, if they were arguing at all.” (R. 279) No juvenile records of any sort were introduced into evidence. We find Ala.Code § 12-15-101 (1975) inapplicable to this discussion.

We note that later in the appellant’s cross-examination, the following exchange occurred:

“Q Mrs. Wyrick, there’s been some talk —there’s been some testimony here from you and from Terry about- going to the juvenile office on the 12th of February, 1980, is that correct?
“A Yes.
“Q Did you go there with her?
“A I’ve gone with her most of the time.
“Q Ma’am?
“A I’ve gone there with her most of the time. I don’t know if I was with her that day or not.
“Q Well, were you with her at the time that she reported to the juvenile authorities down there about her step-father molesting her?
“A I don’t believe so.
“Q Ma’am?
“A I don’t believe so, but I come up there and told her.” (R. 299)

This testimony came in without objection. This evidence plainly states that the appellant had gone with her daughter on more than one occasion to the juvenile authorities and for reasons other than the deceased’s alleged molesting of her. The clear inference to be drawn from such testimony is that Terry had been “in some trouble” with the juvenile authorities.

We find, in addition, that Terry Wyrick had testified previously on her redirect examination by defense counsel that she had told the appellant “all the details” about the deceased molesting her. (R. 241) The appellant had, in turn, had Terry report the incidents to her juvenile probation officer, Susan Mitchell. Terry testified that the appellant wanted to prosecute the deceased, “but I didn’t want her to.” (R. 242)

Even if it is assumed that the prosecution’s questioning of the appellant about her daughter’s having been “in some trouble” with the juvenile authorities was illegal, we find no error. Where a matter has been gone into by one party to a cause, the other party has the right to explain away anything, if he can, that may have been brought out to his detriment. Johnson v. State, 265 Ala. 360, 91 So.2d 476 (1956). If illegal evidence is introduced by one party and admitted, then the opponent has the right to introduce illegal evidence in rebuttal, even though the opponent failed to object to the initial introduction of illegal evidence. Johnson, supra.

Moreover, the appellant’s testimony that she had gone with her daughter “most of the time” to the juvenile authorities, in response to questioning by defense counsel, cured any error which may have previously been committed by the prosecution. A defendant cannot complain of the admission of improper evidence where he himself testifies to the same facts. Romine v. State, 384 So.2d 1185 (Ala.Cr.App.), cert. denied, 384 So.2d 1188 (Ala.1980). Again, we find that the reception of the evidence to which the appellant objected was harmless. ARAP, Rule 45.

V

No error occurred during the cross-examination of the appellant’s character witnesses when they were asked if they had heard she shot her first or second husband. Each witness asked this question responded negatively. The question and answer came in without objection on at least four occasions. In addition, the trial court admonished the jury that the question was being asked to test the credibility of the character witness and not for the purpose of reflecting upon the character of the appellant. See Pierce v. State, 228 Ala. 545, 154 So. 526 (1934).

We have examined each issue raised by appellant. In addition, we have searched the record for errors prejudicial to appellant’s substantial rights and have found none. The Circuit Court’s judgment of conviction is, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Howard William BARR v. STATE.
    8 Div. 522.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 19, 1982 Alabama Supreme Court 81-325.
    L. Thomas Ryan, Jr., Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted for murder of Larry Frank Russell, pursuant to Criminal Code § 13A-6-2, which provides in pertinent part:

“(a) A person commits the crime of murder if:
“(3) He commits or attempts to commit . . . ‘burglary in the first or second degree’ and, in the course of and in furtherance of the crime that he is committing or attempting to commit . .., he, or another participant if there be any, causes the death of any person.”

A jury found him guilty, and he was sentenced to imprisonment in the State Penitentiary for life without the benefit of parole. The sentencing was pursuant to due notice to defendant and a hearing charging that he was an habitual offender. The undisputed evidence shows that he had been previously convicted of three felonies, which according to Criminal Code, 1981 Cumulative Supplement, § 13A-5-9(c)(3), requires punishment “by imprisonment for life without parole.”

The undisputed evidence shows that on November 9, 1980, the defendant and two other men forced an entry into the back door of the residence where the deceased lived, and the deceased was killed by a slug from a shotgun shell or a long rifle cartridge. There was some evidence that one of the other two men fired the shot, and there was some evidence that defendant did so. According to the express language of the pertinent provision of the Criminal Code, defendant was guilty irrespective of whether he, as distinguished from one of the other two men, fired the shot. The jury was amply justified in returning the verdict against the appellant. It appears incidentally that the other two men have been indicted and probably tried. We intentionally refrain from any comment at this time that might bear upon the merits of any appeal in either of the other two cases.

We do not agree with the contention of appellant that defendant’s confession was erroneously admitted in evidence. It should be noted that defendant did not admit that he fired the fatal shot, but claimed that one of the other two men did so. A law enforcement officer, after having been called by the defendant to talk with him, testified comprehensively as to the giving of the requisite warnings and instructions as to all of the pertinent constitutional rights of the defendant. We find that the confession was voluntarily, knowingly and understandingly given by defendant without any inducement whatever on the part of anyone else.

Appellant argues that there was an entry and search of the house in which defendant lived without his consent, that violated his security against unreasonable searches and seizures.

Officer James Parker testified that, about five hours after the homicide, he went to the home of defendant and the following occurred:

“Q. Did you knock on the door?
“A. Yes, sir, I did.
“Q. And who answered the door?
“A. Mrs. Barr (defendant’s mother).
“Q. And what did you say to her, please, sir?
“A. I asked her if Bud [the appellant] was there.
“Q. And what did she say?
“A. She advised yes, that he was.
“Q. And did you ask if you could enter the house?
“A. Yes, sir, I did.
“Q. What did she say?
“A. She said yes, come on in.
“Q. And what occurred when you went in?
“A. We went inside the house and walking through the living room, Sergeant Yearick and Investigator Duffey and myself, and Officer Balance came in later. After we got inside and just as we were going through the living room, a subject came down from upstairs.”

Thereupon, there was a lengthy hearing out of the presence of the jury, which included intensive interrogation and cross-interrogation of Officer Parker, which chiefly related to his arrest of Howard William Barr, who was the “subject” that the witness said “came down from upstairs.” During this hearing out of the presence of the jury the witness was comprehensively examined and cross-examined as to his taking Mr. Barr to headquarters and as to Mr. Barr’s confession of his participation in the breaking and entry into the residence of Mr. Russell, but in which he denied that he had fired the shot that killed him. Upon the conclusion of the hearing out of the presence of the jury, defendant’s counsel moved as follows:

“Your Honor, we would move to exclude his testimony based on the fact that this was a nighttime search of the house and also it was an arrest — or that he could have secured the warrant for the arrest prior to coming in during the nighttime.”

The court then overruled the motion, the jury was returned to the courtroom and the trial was resumed, at which time there was largely a repetition of what the witness had testified out of the presence of the jury, and at which time he was questioned both by the State and by defendant’s counsel. Following is a part of the interrogation by defendant’s counsel:

“Q. What I’m asking, Officer Parker, is these weapons that are right here presently have been identified as belonging to the owner of the house. Did you subsequently locate those weapons?
“A. Yes, sir, I did.
“Q. And where were the weapons found?
“A. They were under Mr. Barr’s mattress in his house. I didn’t locate them. I had taken him out to the car. Sergeant Yearick, Officer Balance and Investigator Duffey located those.
“Q. But they were located at his house, where he said in his statement they were located; is that correct?
“A. Yes, sir.
“MR. TINGLE: I have no further questions.”

Whatever evidence there was, which was nebulous, as to the seizure of any property in the house of Mrs. Barr was limited to weapons found under Mr. Barr’s mattress in his house, which was brought out by defendant. For this reason, it can furnish no basis for an assertion of error on appeal.

Appellant’s contention that there was no probable cause for his arrest is utterly without merit. The homicide had obviously been committed. Mr. Barr had not confessed at the' time of his arrest, but Officer Parker had conducted an intensive investigation for a few hours and had interviewed eyewitnesses to what occurred immediately before, immediately after and at the time that Mr. Russell was killed, which constituted more than probable cause that he was guilty thereof as a principal or as an aider or abettor.

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

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

AFFIRMED.

All the Judges concur.


text:
    Dorothy SCOTT v. STATE of Alabama.
    8 Div. 543.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 19, 1982 Alabama Supreme Court 81-327.

      William L. Chenault, III, and Stephen V. Hammond of Chenault, Chenault & Hammond, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Dorothy Scott was tried and convicted of “receiving stolen property in the first degree” in violation of § 13A — 8—17, Code of Alabama 1975. She was later sentenced by the trial court to two and one-half years’ imprisonment.

On January 30, 1980, Mike Beavers and Steve Leeth found some old silver flatware in a muddy plastic bag in a field behind the residence of Jack and Elizabeth Watson. Mike took the items to Mrs. Watson, who informed him that she did not know to whom the items belonged. While Mike was inside the Watson residence, Mrs. Watson or her child pulled open her silver chest under a table in the living room.

The next morning Mike and Steve and Steve’s brother Doug Leeth sold for $5.00 the silverware that Mike and Steve had found. According to their testimonies in the trial court below, the three boys sold this old silverware to Dorothy Scott, the appellant, owner and operator of the S & S Jewelry Store.

Furthermore, the boys each testified that the appellant and her son, Joe Spell, explained to them the difference between silver plated items and sterling silver items and informed the boys that they would buy any additional items that the boys brought them. Consequently, the boys burglarized the Watson residence on two separate occasions, and removed sterling silver and silver plated items from the silver chest that Mike had seen earlier. After each burglary, the second perpetrated by the Leeth brothers alone, the boys took the items to the S & S Jewelry Store and sold them to the appellant. The total value of the items stolen by the three boys and sold to the appellant was over $5,000.00, but she paid the boys only about $185.00.

In her defense, the appellant testified that she had never seen the three boys before and definitely had not purchased any silverware from them. Appellant’s husband, son, and daughter-in-law, each of whom was, allegedly, in the S & S Jewelry Store during some portion of the appellant’s negotiations with the three boys, also testified that they had never seen the three boys prior to trial.

On February 2, 1980, the day after the second burglary, the three boys confessed to Mr. Watson that they had stolen the silverware and had sold it to the appellant. That night, Mr. Watson and Doug Leeth went to the S & S Jewelry Store where Doug asked the appellant to return the merchandise because it was stolen property. The appellant denied any knowledge of the silverware and asked Doug to leave.

A short time later, after Mr. Watson had contacted the authorities, Mr. Watson, two of his friends, the three boys, a police investigator and two uniformed policemen returned to the S & S Jewelry Store to try and recover the stolen merchandise “before it could be disposed of.” After banging on doors and windows for over 30 minutes, the officers telephoned the appellant and told her they were downstairs and needed to speak to her.

Mr. Watson and the police officers were soon greeted at the rear door by the appellant.

Mr. Watson and all three police officers testified that the appellant invited them into the store. One of the officers then explained what they were looking for and read the appellant the Miranda warnings. According to Mr. Watson and the police officers the appellant “voluntarily” suggested that they search the premises because she “had nothing to hide.”

The appellant, her husband, and her son stated that she did not invite the searchers in and did not suggest a search of the premises. All three stated that they permitted the search without protest because they thought the appellant was already under arrest and consequently, that they had no choice.

Before the search was over, Mrs. Watson arrived and joined the police officers at their request. Shortly after her arrival, Mrs. Watson identified her “bon-bon” spoon which had been taken from her silver chest by the three boys. This identification was made in the presence of the appellant, her husband and her son. The “bon-bon” spoon was the only item belonging to the Watsons that was found and seized during this search. However, Mrs. Watson also identified in the same pile with the “bon-bon” spoon some of the old silverware that Mike Beavers had shown her and “allegedly” had sold to the appellant. (R. 121).

The “bon-bon” spoon was later introduced as evidence at trial and was again identified by Mrs. Watson (R. 124). A script letter, “W”, which Mrs. Watson had had engraved on the spoon had been partially ground down when Mrs. Watson identified the spoon in the appellant’s store. Before trial the remainder of the script “W” had been obliterated as a result of an attempt by the “crime lab” to raise the letter with chemicals. Mrs. Watson’s in-court identification was possible because she recognized the “pattern” on the spoon, the places where the silver plating had been worn because of her constant peculiar use of the spoon as a “baby spoon”, the ground area which was on the spoon when she saw it at the appellant’s store, and the spoon’s general appearance. (R. 138-140).

The appellant produced evidence to dispute Mrs. Watson’s identification of the spoon. Appellant’s daughter, Mary, testified that the “bon-bon” spoon seized during the search was hers. She and appellant’s son, Joe, testified that at Mary’s request, Joe had attempted to engrave a script letter “M” on the handle of the spoon but that he “messed it up”. Therefore, Mary left the spoon with Joe, who tossed it over on a pile of other old silverware.

However, neither Joe nor Mary could explain why they did not inform the authorities immediately after their mother was arrested that the “alleged” stolen spoon seized during the search was actually “Mary’s old spoon.” Joe was present when the spoon was seized and Mary learned of the incident soon thereafter.

All of this disputed evidence was presented to the jury which determined that the appellant was indeed “guilty as charged.”

I

Appellant’s first contention on appeal is that, because the “bon-bon” spoon was the product of an illegal search, the trial court erred in denying her “motion to suppress” said spoon as evidence.

The fact is undisputed that the search of appellant’s store and her apartment above the store was conducted without a warrant. The prosecution’s theory for justifying this “warrantless” search was that the appellant invited the searchers into the store and “voluntarily consented” to a search of the premises. The evidence on this “consent” theory was in sharp conflict.

Mr. Watson and the three law enforcement officers who conducted the search testified that the appellant, after she had been informed about the nature of their visit and had been read the Miranda warnings, in fact, initiated the search by suggesting that they search the premises because she “had nothing to hide.” Mr. Watson and the officers never asked to search because the appellant suggested it first.

The appellant countered with testimony by her husband, her son, and herself that she never “consented” to the search, but merely “submitted” because she thought she had no choice.

The law is clear in Alabama that a “voluntary consent” will vitiate the requirement of a search warrant. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973); Garrett v. State, 369 So.2d 827, 832 (Ala.Cr.App.1978), rev’d on other grounds, 369 So.2d 833 (Ala.1979); and cases cited therein; Delarosa v. State, 384 So.2d 876 (Ala.Cr.App.), cert. denied, 384 So.2d 880 (Ala.1980).

It is also clear, as we have often held, that the trial court is in the best position to determine this “consent” or lack thereof. Jones v. State, 49 Ala.App. 438, 272 So.2d 910 (1973); Garrett v. State, supra; Holmes v. State, 342 So.2d 28 (Ala.Cr.App.1976), cert. denied, 342 So.2d 36 (Ala.1977).

The trial court must make its determination of the “voluntariness” of consent, as the United States Supreme Court prescribed in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), from the totality of the circumstances surrounding the event. Garrett v. State, supra; Holmes v. State, supra; Delarosa v. State, supra. It is only through this “careful sifting of the unique facts and circumstances of each case” that the trial court can ascertain whether the consent was in fact “voluntary” or coerced. Schneckloth v. Bustamonte, supra.

Here, the trial court was apparently persuaded by the prosecution’s four witnesses who testified that the appellant “voluntarily consented.” The trial court was obviously unimpressed by appellant’s assertion that she did not “consent” but rather “submitted” because of the intimidation factors involved (i.e. four men coming to her door late at night implying that she was under arrest.) The facts revealed that the appellant had been contacted about the stolen goods when she was visited earlier in the evening by Mr. Watson and Doug Leeth who had requested a return of the silverware. She was also notified by a police telephone call immediately prior to the search, that officers were downstairs and had been trying to attract the attention of the occupants of her store and apartment for over 30 minutes. These factors along with appellant’s subsequent evidence that the spoon seized during the search belonged to “her daughter” instead of Mrs. Watson support the prosecution’s contention that the appellant invited a search because she felt that she “had nothing to hide.”

Having reviewed these and other facts surrounding the incident search, we find nothing to indicate that the trial court’s finding of “voluntary consent” was erroneous. Compare, Jones v. State, supra; Holmes v. State, supra; Garrett v. State, supra.

The appellant further argues that the officers involved had plenty of time to obtain and should have obtained a search warrant for her store and apartment. We disagree.

We are reminded in Schneckloth v. Bustamonte, supra, of situations where as a practical matter, search warrants need not be obtained:

“In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence. In the present case for example, while the police had reason to stop the car for traffic violations, the State does not contend that there was probable cause to search the vehicle or that the search was incident to a valid arrest of any of the occupants. Yet, the search yielded tangible evidence that served as a basis for a prosecution, and provided some assurance that others, wholly innocent of the crime, were not mistakenly brought to trial. And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent search may still be valuable. If the .search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.” (Footnotes omitted.)

The trial record does not disclose the reason why a search warrant was not obtained in this case. Perhaps the officers in charge did not feel that the statements from the three boys, who had confessed to the theft, would satisfy the “probable cause” requirement. More than likely, however, the search merely followed a normal step in the chain of a police investigation, a step which undoubtedly would have been followed by an attempt to obtain a search warrant had “consent” not been given.

In any event, there was sufficient evidence presented by the prosecution to justify the trial court’s determination that the appellant gave her “voluntary consent” to a search.

II

Appellant also contends that her “motion to suppress” was erroneously denied because the “bon-bon” spoon produced at trial was not in “substantially the same condition” as it was when it was seized at the appellant’s store. Appellant, therefore, argues that the required “unbroken chain of custody” was not sufficiently shown.

In the instant case, however, any defects in the “chain of custody” of the “bon-bon” spoon were cured, for admissibility purposes, when the spoon was positively identified in court by Mrs. Watson (R. 98-139) and by Mike Beavers (R. 174) as the same spoon that was stolen from the Watson residence and later seized by police officers at appellant’s store. Douglas v. State, 366 So.2d 373 (Ala.Cr.App.1979); Humphrey v. State, 370 So.2d 344 (Ala.Cr.App.1979). In fact, Mrs. Watson described the numerous identifying marks on the spoon (R. 98-139), which had not been altered between the seizure and the trial, that left no doubt in her mind that the spoon seized was the one introduced at the trial, her silver plated “bon-bon” spoon that she had used for many years as a “baby spoon” for her children.

In establishing the authenticity of an item of evidence, an “unbroken chain of custody” is usually shown to prove that no one has “tampered” with said item. Humphrey v. State, supra. Part of the usual “chain of custody” proof is testimony “that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.” Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert denied, 346 So.2d 1180 (Ala.1977); Douglas v. State, supra.

Appellant argues that this spoon was not “substantially in the same condition” at trial because a small portion of a script engraving on the handle had been obliterated by the police lab in an effort to raise the entire engraving which had been ground out before the spoon was seized. We disagree.

This slight alteration was not “substantial” enough to affect the spoon’s admissibility, especially in light of the positive identification by Mrs. Watson and Mike Beavers, as herein noted.

Furthermore, the appellant also produced evidence that the same spoon, the one introduced at trial, was the one seized and that it belonged to her daughter.

The appellant’s arguments concerning the identification of the spoon are, therefore, applicable to its weight and credibility, not to its admissibility. Williams v. State, 375 So.2d 1257 (Ala.Cr.App.), cert. denied, 375 So.2d 1271 (Ala.1979).

We are of the opinion that the testimony presented by the prosecution was sufficient to justify the trial court’s denial of appellant’s “motion to suppress” on this ground and to put to the jury the question as to whether or not the spoon presented at trial (and seized in the appellant’s store) was the one stolen from Mrs. Watson’s home. Bills v. State, 49 Ala.App. 726, 275 So.2d 706 (1973); Humphrey v. State, supra.

Ill

Appellant finally argues that the trial court erred in its denial of appellant’s request (R. 249), after the direct examination of Steve Leeth (R. 247), for the production of all prior statements made to the police investigators by Steve and Doug Leeth and Mike Beavers.

Immediately after appellant made her request for the production of prior statements, the trial court and both counsel discussed the issues involved and the trial court correctly denied her request because no predicate had been laid to justify it. Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953); Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957); Pate v. State, (Ms. May 8, 1981) (Ala.1981); Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973).

This requirement, that a proper predicate be laid prior to the request for production, was established to prevent “fishing expeditions.” Jencks v. United States, supra. Usually, this requirement is satisfied by establishing that a specific prior statement was made by a particular witness and that said statement is necessary for the cross-examination of said witness. Pate v. State, supra; Gillogly v. State, 55 Ala.App. 230, 314 So.2d 304, cert. denied, 294 Ala. 200, 314 So.2d 306 (1975).

After her request had been denied and during her cross-examination of Steve Leeth, the appellant, arguably, did lay the requisite predicate for obtaining Steve’s prior inconsistent statement (R. 278—281). The appellant solicited testimony from Steve that he had made a prior erroneous statement which he later corrected by making a second statement to the investigating officers. (R. 280). The discrepancies between these two prior statements were explained by Steve on “re-direct” by the prosecution (R. 291), when he testified that he had incorrectly reported some of the “times” in the first statement which he corrected in the second. He further stated that the statements were consistent in that in both he admitted stealing the silverware and selling it to the appellant.

In any event, after laying the predicate, the appellant did not renew her request for production of the statements. The record does not disclose appellant’s reasons for not renewing her request.

For aught that appears she was satisfied with the information obtained from Steve Leeth on further examination and decided that the statements themselves would not aid her defense.

Since no request was made and consequently no ruling was invoked after the predicate was laid, there is nothing further for us to review. We therefore hold that the only “request for production” which was made (R. 247) was premature and the trial court’s denial of said request at that time was proper.

There is no error in this record.

For the foregoing reasons, this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    James Michael WARRICK v. STATE.
    1 Div. 209.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    William L. Utsey, Butler, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Presiding Judge.

The appellant was indicted for the first degree murder of Bobby Rufus Cooper by shooting him with a 30.30 rifle. He was convicted of first degree manslaughter and the jury fixed his punishment at five years in the state penitentiary. Appellant pleaded not guilty at arraignment in the presence of counsel and has at all times been represented by the counsel of his choice.

The facts in this case are not complicated. On December 9, 1979, Jimmy C. ■ Acton, Chief of Police for the City of Millry, Alabama, received a telephone call from the deceased’s sister-in-law, Mrs. Paul Cooper, around 4:00 p. m. Chief Acton drove to the Big Wheel Service Station on Highway 17 in Washington County, and Mrs. Cooper gave him directions to where the incident occurred. Chief Acton saw Mrs. Lillie Mae Williams standing near a fence approximately two hundred yards from the highway and spoke to her. Chief Acton next saw the appellant walking out of a nearby cornfield. The appellant had a rifle in his hands and a binocular case hanging on his shoulder.

Mrs. Williams had been in the company of Bobby Rufus Cooper, the deceased, and his eleven year old son Matthew. The three had driven behind the Big Wheel, which was owned by the deceased’s brother, Paul Cooper, and had walked through the woods to “where we had seen some turkeys the day before.” The deceased carried a rifle and Matthew carried a 410 shotgun. After walking towards a field separated by a fence, Mrs. Williams sat down. The deceased continued to walk along the fence and finally sat down along the middle of the fence line. There were bushes where the deceased was situated. After approximately thirty or forty minutes the deceased fired a shot and indicated to Mrs. Williams and Matthew he had shot a turkey.

Mrs. Williams testified that the deceased attempted to point out where the turkey was, but “we still couldn’t see it.” The deceased then “walked to the fence and told us to come on.” Mrs. Williams stated that as she went over to pick up her thermos and jacket “the first shot was fired. So, all I remember is hitting the ground.” Mrs. Williams saw the deceased “lying on the ground. . . There wasn’t nothing to see. His face was turned the other way, just laying there.” Mrs. Williams heard a second shot a couple of minutes later. She stated that, after the second shot, she and Matthew “decided we better go try to get help.” Mrs. Williams heard a third shot a few minutes later as she and Matthew retraced their steps back to the Big Wheel.

Mrs. Williams left Matthew at the Big Wheel and went with Paul Cooper to the edge of the woods pointing out to Paul “where the turkeys were and about where I thought Bobby’s body was.” Mrs. Williams saw Chief Acton meet appellant coming out of the cornfield.

Matthew Cooper testified that, shortly after his father had shot the turkey and had walked over to him and Mrs. Williams, “we heard a shot. And then I told him we better hit the ground because somebody was shooting close to us.” Matthew stated that his father was about five feet from him when he fell down. Matthew next observed his father “just laying there... I was calling him and he wouldn’t answer me.” Matthew heard two more shots before he and Mrs. Williams made it back to the Big Wheel.

Chief Acton testified that, when he first saw appellant coming out of the woods, he asked appellant who he was. Acton stated that appellant was not a suspect and was not in custody at that time. Acton next asked appellant if he heard any shots being fired and appellant responded, “Yes, I fired two shots in the air.” Before relating any other statements made by appellant, Chief Acton was taken on voir dire outside the presence of the jury.

Acton, on voir dire, stated that the report he received over the telephone was that a person had either been shot or was hurt. “They told me over the phone they didn’t exactly know what had happened.” Acton stated that he responded to the call to try “to find out what happened.” When Acton saw Mrs. Williams she was unsure whether the deceased had been shot. “She said Bobby was laying there and never would answer .. . [S]he heard some shots.” At the time Acton first saw appellant “I wanted to know who he was. ... I hadn’t gotten to the scene yet, I didn’t know what had happened.” Acton stated he was “trying to determine if somebody had been hurt or what. Maybe somebody fell and hurt their self. I didn’t know. . .. ” Acton stated that, when he asked appellant if he had heard any shots being fired, “I didn’t know anybody was shot. At that time I didn’t suspect or didn’t know anything. I was trying to find out if there had been a crime committed, or if there had been an accident that happened.”

At the conclusion of this voir dire the trial court overruled defense counsel’s objection to Chief Acton’s testimony relating appellant’s statement. “I will allow you to ask him questions about what was said. I don’t think at this time there was a suspect.”

Chief Acton next testified before the jury that, after appellant admitted he had fired two shots in the air, Mrs. Williams “spoke and said you’re the one that shot Bobby.” Defense counsel outside the jury’s presence, argued that, when Mrs. Williams accused appellant of shooting the deceased, appellant became a suspect, the investigation had focused upon him and he was entitled to the Miranda warnings. The objection was overruled.

Back in the presence of the jury Chief Acton testified that, after Mrs. Williams had accused appellant of shooting the deceased, appellant responded, “I didn’t shoot nobody, if I had, I wouldn’t have missed.” Appellant then made the statement, “I’m tired of people hunting on my land.” Appellant told Chief Acton he had “chased” some people back to the Big Wheel and that one of them wore a blue denim jacket.

Chief Acton then told appellant, “you own this land, let’s go ahead and check it out and find out exactly what did happen. ... At that time we left and went over into the area of the direction Mrs. Williams give me where .. . the incident took place.” Acton testified that, as he walked with Mrs. Williams and appellant, he saw Paul Cooper’s truck. “As I got down just a little ways, I was still unsure, you know, where the subject was or anything. And I hollered, I said, Paul is everything okay?” Acton stated that, when he found out what had happened he immediately turned to appellant, took away his gun and placed him in custody. Acton escorted appellant to Officer W. A. Taylor’s car and “sat him in the back seat of the patrol car.” Acton testified that he then read appellant his Miranda rights while Officer Taylor was standing beside the car. Appellant informed Acton that “he didn’t want to talk” and made no further statement to Acton after he was advised of his rights. Acton transferred custody of appellant to Officer Taylor. Chief Acton concluded his direct examination by identifying several State’s exhibits, including photographs of the deceased at the scene.

On cross-examination Chief Acton testified that, when Paul Cooper told him his brother was dead, he (Acton) determined that an incident had occurred and called for assistance over the radio. “It was questionable whether it was a homicide or accidental.”

Officer W. A. Taylor testified that, when he arrived at the Big Wheel, Chief Acton placed appellant in his patrol car. “[H]e told me to sit there with him and don’t let him out or don’t let nobody get into the car.” Officer Taylor testified that appellant made a statement to him while he was in his custody in the patrol car. Appellant’s statement was made in response to questioning by Officer Taylor. It is this statement that is the crux of this appeal and which mandates a reversal of appellant’s conviction.

From the record it does not appear that Officer Taylor actually heard Chief Acton advise appellant of his constitutional rights under Miranda. It is clear that Taylor did not read appellant his Miranda rights.

Chief Acton was recalled by the State to establish what Miranda warnings he had actually given appellant when he placed appellant in Officer Taylor’s patrol car. In concluding his testimony Chief Acton testified:

“Then I asked him further do you understand each of these rights I have explained to you. He said, yes. I said with these rights in mind do you wish to talk to me now. He (sic) answer was, no, I’d rather talk to my family and to my lawyer.
“At that time I turned him over to Officer Taylor.” (Emphasis added.)

Officer Taylor was then recalled and attempted to establish a voluntariness predicate for appellant’s statement. Then over repeated and persistent objections by defense counsel Taylor testified that he asked appellant, “[W]hat in the world was going on.” Appellant responded to this question, “It’s a dead man down there.” Officer Taylor continued to question appellant. In pertinent part we find in the record:

“I asked him did he get killed, die or what. He says I shot him....
“. . . Then I says I’m not questioning you — I hope I’m not questioning you too much but he must of made you mighty mad to shoot him. Then he said I’m tired of folks hunting on my land. I says I didn’t know you owned any land over here. Do you own this land. He said, well, yes and no. And that kind of shook me up. I didn’t ask him too many more questions until somebody else come by and told me exactly who it was shot. He didn’t tell me who it was shot.
“Well, that’s the most that he told me because I kind of hushed up.... ”

Upon consideration of these facts in light of the Supreme Court of the United States’ decision in Edwards v. Arizona, 450 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), we are required to reverse appellant’s conviction. The law is plain:

“[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” 101 S.Ct., at 1884.

Further recitation from Edwards, supra, is unnecessary. Appellant in no way made a waiver after he had specifically invoked his right to counsel.

The judgment of the lower court is hereby reversed and this cause is remanded.

REVERSED AND REMANDED.

All the Judges concur.


text:
    James Lee LAWRENCE, Sr. v. STATE.
    4 Div. 939.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.

      C. Kerry Curtis of Curtis & Curtis, Phe-nix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the first degree assault of his eight year old son. Section 13A-6-20, Alabama Code 1975 (Amended 1977). He was sentenced to twenty-five years’ imprisonment as an habitual felony offender.

I

The defendant contends that the trial court erred in allowing the State to present evidence of his bad character in its case in chief violating the rule that the prosecution may not take the initiative, in its case in chief, to introduce any kind of evidence as to the accused’s evil character, disposition or reputation in order to establish probability of guilt. C. Gamble, McElroy’s Alabama Evidence, Section 27.02(1) (3rd ed. 1977). On direct examination by the State of defendant’s wife, the following took place:

“Q. Now, let me stop you a minute. You say he told James to go get the gun. Is that your little boy, James Lawrence, Jr.?
“A. Uh-huh.
“Q. And what happened then?
“A. And so James told him, said, T ain’t getting no gun, Daddy. Every time you get drunk you be wanting to get the gun.’
“Q. ‘Every time you get drunk you be wanting to get — ’
“A. ‘Every time you get drunk you be wanting to get the gun.’
“MR. BRASSELL (Defense Counsel): Now, we object to this type statement.
“THE COURT: Overruled.”

Specific objections or motions are generally necessary before the ruling of the trial judge is subject to review, unless the ground is so obvious that the trial* court’s failure to act constitutes prejudicial error. Ward v. State, 376 So.2d 1112 (Ala.Cr.App.1979), cert. denied, Ex parte Ward, 376 So.2d 1117 (Ala.1979); Slinker v. State, 344 So.2d 1264 (Ala.Cr.App.1977). If only a general objection is interposed, or only general grounds are assigned in support of the objection, no error results in overruling the objection unless the evidence is illegal for any purpose and cannot be made legal by other evidence or by supplying additional evidence. Ward v. State, supra; Moates v. State, 40 Ala.App. 234, 115 So.2d 277, cert. denied, 115 So.2d 282 (1959); Todd v. State, 380 So.2d 370 (Ala.Cr.App.1980). An objection without specifying a single ground, such as “I object”, “objection”, or “we object” is not sufficient to place the trial court in error for overruling the objection. Smoot v. State, 381 So.2d 668 (Ala.Cr.App.1980); Tuck v. State, 384 So.2d 1240 (Ala.Cr.App.1980). The only exception to the rule that an objection must fairly and specifically point out the particular grounds on which error is alleged to have occurred is where there is no purpose at all for which the evidence could have been admitted. Cook v. State, 384 So.2d 1158 (Ala.Cr.App.1980), cert. denied, Ex parte Cook, 384 So.2d 1161 (Ala.1980); Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958).

After a question is asked and a responsive answer given, an objection comes too late, and the trial court will not be put in error for overruling the objection. Chambers v. State, 356 So.2d 767 (Ala.Cr.App.1978); Wright v. State, 380 So.2d 398 (Ala.Cr.App.1980). No objection was made until after the reiterated question was asked and answered a second time. Therefore the objection, even if it be considered sufficient, was not timely and preserved nothing for review.

In addition, when the victim, James Lawrence, Jr., took the stand the following took place on direct examination:

“Q. He had the gun in your mother’s stomach, and what happened then?
“A. And then I told him to — I told him every time he gets drunk he always comes home and gets that gun.
“Q. You told him that every time he gets drunk he always comes home and gets that gun?
“A. Yes, sir.”

These questions and answers came in without objection or motion to exclude.

Prejudicial error may not be predicated on admission of evidence which has been admitted without objection or motion to exclude at some other stage of trial. Langford v. State, 54 Ala.App. 659, 312 So.2d 65 (1975); Pitts v. State, 291 Ala. 136, 279 So.2d 119 (1973). The admission of incompetent evidence is harmless error where the fact to which such evidence relates is otherwise established by competent evidence. Chambers v. State, 400 So.2d 436 (Ala.Cr.App.1981).

II

Defendant also claims error in the trial judge’s overruling defendant’s objection to the introduction into evidence of State’s exhibit number 1, which was a diagram of the scene of the crime with pictures attached. At trial defense counsel argued that the pictures were inflammatory and should have been excluded.

State’s exhibit 1 consisted of a large piece of poster paper with a diagram of the walls and two entrances of a house indicated. In and around the diagram are seven photographs taken on the night of the shooting. Some of the pictures represent different angles of the same area of the house.

In three of the pictures, smudges or droplets of blood were photographed on the floor. Although we do not find these photographs gruesome or revolting, a finding to the contrary, in and of itself, would constitute no ground for excluding the photographs from evidence. Palmore v. State, 283 Ala. 501, 218 So.2d 830 (1969); Retowsky v. State, 333 So.2d 193 (Ala.Cr.App.1976); McKee v. State, 253 Ala. 235, 44 So.2d 781 (1950). If a photograph illuminates issues in any way and is relevant, it is admissible in a criminal proceeding, though the photograph would have a tendency to inflame the minds of the jury. Hurst v. State, 54 Ala.App. 254, 307 So.2d 61 (1974), cert. denied, Ex parte Hurst, 293 Ala. 548, 307 So.2d 73 (1975).

In his brief the defendant also contends that the photographic exhibit does not accurately represent the scene of the crime.

At trial, defense counsel’s objection was: “Your Honor, we object to the introduction of those pictures. The blood is shown to influence the jury, just to inflame them, and we object. This case is tragic enough and we feel like that’s the reason they want to show it to the jury.”

Where a specific objection to admission of evidence is made at trial, all other grounds are waived. Howell v. State, 369 So.2d 297 (Ala.Cr.App.1978), writ denied, Ex parte Howell, 369 So.2d 303 (Ala.1978); Johnson v. State, 365 So.2d 123 (Ala.Cr.App.1978), writ denied, Ex parte Johnson, 363 So.2d 130 (Ala.1978).

The ground that the photographs misrepresented the scene of the crime is without merit. After examining the pictures and exhibit as a whole, this Court finds that the pictures were not misleading as contended, but are merely shots of different angles of portions of the house. Even though there were two pictures of the fireplace, and three pictures of the bullet fired, oral evidence presented by the State clearly indicated that there was only one fireplace in the house and only one bullet fired.

Defendant also claims that the photographs lacked probative value. The fact that a photograph has very little probative value does not prevent its admission in evidence where the photograph will tend to shed light on, strengthen or illustrate the truth of other testimony, or where the photograph has reasonable tendency to prove or disprove some material fact or issue in the case, or is used to identify the deceased or to illustrate the location, nature or extent of a wound. Gilmore v. State, 346 So.2d 1193 (Ala.Cr.App.1977). The eviden-tiary rule in this state favors the admission of photographs and affords the trial court a wide and liberal latitude in the admission of photographs illustrative of a criminal transaction and the surrounding circumstances. Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.1977), cert. denied, Ex parte Arnold, 348 So.2d 1097 (1977); Lewis v. State, 339 So.2d 1035 (Ala.Cr.App.1976), cert. denied, 339 So.2d 1038 (Ala.1976).

Here the photographs depicting the blood of the child on the floor of the house were properly admitted into evidence as illustrative of violence and shooting employed. Arnold, supra; Green v. State, 252 Ala. 513, 41 So.2d 566 (1949). As such, the photographic evidence was relevant and probative in establishing a prima facie case of assault by the State.

This Court has carefully reviewed the record as required by law and have found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Joe Curtis HERRON v. STATE of Alabama.
    5 Div. 603.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Lois N. Brasfield, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

On December 19, 1980, Joe Curtis Herron shot and killed Robert Turner with a .20 gauge shotgun. The shooting occurred at the appellant’s home where several of appellant’s friends, including the victim, had been “sitting around drinking and watching television.” Appellant, having gone to a “back” bedroom, fired the fatal shot when Robert Turner proceeded down the hall on his way to the bathroom. The motive for the shooting was never clearly established.

At trial the jury found appellant guilty of “murder” and the trial court sentenced him to 25 years’ imprisonment.

Appellant does not challenge the sufficiency of the evidence on this appeal.

I

Appellant contends that reversible error occurred when the trial court refused to “strike for cause” a member of the jury venire who was being represented at the time in a pending civil action by one of the assistant district attorneys. Since the trial court would not strike for cause, the appellant was forced to use one of his strikes to remove the prospective juror from the panel.

The mere fact that a juror is being represented by an assistant district attorney does not disqualify that person without some further showing of bias or prejudice. See Lowe v. State, 384 So.2d 1164 (Ala.Cr.App.), cert. denied, 384 So.2d 1171 (Ala.1980). For aught that appears in the record and in appellant’s brief, no questions were asked of this prospective juror to establish bias as a matter of law.

Therefore, the trial court did not err in refusing to strike for cause this juror.

II

Appellant further contends that the trial court erred in admitting his confession which he claims was not voluntarily given, because he is illiterate.

There is nothing in the record tending to prove that this 57 year-old appellant is or was illiterate. Furthermore, a showing of “illiteracy” will not in and of itself render a confession inadmissible as involuntary. Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977).

The officer who transcribed appellant’s statement testified that it was voluntarily given and that it was read to and approved by appellant before appellant signed it.

The trial court’s ruling was proper.

III

Appellant’s final contention is that the trial court erred in refusing a written requested jury charge concerning the requisite “intent” for murder. The charge refused was not necessary because the principles of law contained therein were covered by the trial court’s oral charge. In any event, this issue was not preserved for our review because no exception was taken to the trial court’s refusal of the charge. Section 12— 16-13, Code of Alabama 1975. Allen v. State, [Ms. Nov. 24, 1981], (Ala.Cr.App.1981).

There is no error in this record. Therefore, the judgment is affirmed.

AFFIRMED.

All the Judges concur.