text:
    Jody Lynn POTTS, alias v. STATE.
    4 Div. 948.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied March 23, 1982.

      Ab Powell and J. Fletcher Jones, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., and Ed Carnes, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Appellant was convicted under § 13A-5-31(a)(3) Code of Alabama 1975 for carnal knowledge of a girl under twelve years of age, or the abuse of such girl in an attempt to have carnal knowledge, during which the victim was intentionally killed by the appellant. After a hearing on aggravating circumstances, the jury returned a verdict fixing the appellant’s sentence at life imprisonment without parole. Appellant’s motion for new trial was denied, and this appeal followed.

The victim in this case was Wendy Wa-kin, a six year old girl, whose body was found floating in the Conecuh River on September 22, 1980. Dr. Thomas Gilchrist, a forensic pathologist for the State of Alabama, testified he performed an autopsy on the victim’s body on September 22, 1980. The body was markedly decomposed, and exhibited two stab wounds to the abdomen. The lungs were acutely inflated, indicating death by asphyxia. Additionally, the vaginal area indicated lacerations and extreme hemorrhaging, consistent with an attempt to have carnal knowledge of the victim. The doctor could not testify as to the exact cause of the asphyxia, but testified it could have been caused by drowning, smothering, strangulation, or traumatic compression of the victim’s chest. The stab wounds appeared to have been inflicted after death. Dr. Gilchrist estimated that the body of the victim would have floated to the surface some eight to forty-eight hours after having been placed in the river.

Chris Wakin, the victim’s eleven year old brother, testified that he along with the victim, appellant, and appellant’s younger brother, Tim, went swimming together around 5:00 p.m. on the afternoon of September 20, 1980 at Lakeside Trailer Park. Afterwards, they decided to play hide-and-go-seek with Tim and Chris hiding from appellant and Wendy. Tim and Chris left the other two at the dock, while they headed for some sand pits. The two boys made various sets of tracks to illude Wendy and appellant, and then headed toward the highway. The boys saw Tim’s grandmother and walked ahead of her along the highway. They observed two women in front of Nita’s Beauty Shop who were trying to start an automobile. They then started to return to the trailer park. The boys saw Wendy and Jody, the appellant, running and they hid behind some trailers. Tim and Chris later returned to the sand pit, but could not find Jody and Wendy. They then returned to their trailer homes in the park, where Chris’ mother inquired as to Wendy’s location. They told her Wendy was with Jody, and she instructed them to tell them to come home as it was getting dark. Some twenty-five minutes after they had seen Wendy, they heard Mrs. Wakin calling for Wendy and saw Jody coming over the fence at the horse pen and walking towards them. Mrs. Wakin asked Jody where Wendy was, and he replied he did not know, and that he thought she was with Chris and Tim. She told him that Chris and Tim said Wendy had been with Jody, and Jody then began to tell a story about Wendy being kidnapped. Chris Wakin testified Jody was the last person with whom he had seen his sister on September 20,1980. He stated he had lived at the trailer park for about three months before this incident occurred.

John Wakin, the victim’s father, recalled his wife entering their trailer about 7:00 p.m. on September 20,1980 extremely upset over Jody’s story of Wendy’s disappearance. They got in their automobile and drove slowly through the trailer park calling for Wendy. After twenty minutes they returned home and called the Sheriff’s Department. Mr. Wakin later heard Jody tell a deputy that he and Wendy had been approached by a man in an automobile and that he told Wendy to run. He ran, and the next thing he saw was that the vehicle had circled around and taken off in the other direction. He could not, however, see if Wendy was inside the automobile.

Janice Wakin, Wendy’s mother, recalled the evening of Wendy’s disappearance. Wendy had finished supper and gone out to play about 5:40 p.m. Around 6:45 Mrs. Wakin saw Chris and Timmy and she asked them where Wendy was and they told her she was with Jody. She instructed them to tell Wendy it was time to come home. At 7:00 when she had not returned, Mrs. Wa-kin went outside and began to call Wendy. She then saw Jody coming through the horse'pasture casually walking towards her. She asked him where Wendy was and he said he did not know. Mrs. Wakin then told him Chris and Timmy said she was with him, and he began to tell her about a blue automobile whose occupant had tried to get Wendy to enter the vehicle. Jody told her he and Wendy ran along the highway in front of the beauty shop and then down the road going into the trailer park. When he turned around again, Wendy was no longer to be seen. Mrs. Wakin and her husband searched for Wendy in their automobile, and then returned home and called the authorities.

David Gainey, an investigator with the Sheriff’s Department, responded to a call from John Wakin at the Lakeside Trailer Park on September 20, 1980. When he arrived he saw the appellant at the Wakin’s trailer, accompanied by his mother and grandmother. Jody was not a suspect in the disappearance at that time. However, Officer Gainey took the following investigative statement from Jody when he arrived:

“Wendy and I had been playing with her brother, Chris and my brother, Timmy, most of the day. About five P.M., Chris, Timmy and Wendy and I separated. Chris and Timmy wanted to play cops and robbers and let Wendy and I hunt them. Wendy and I went through the woods and came out on the highway below the trailer park. We had gotten some stickers in our feet and we sat down to get them out. A man came around the curve and stopped by us. He opened the car door and said, hey, come here. Wendy started to walk to the car. I told her to wait and the guy said, shut up brat. I told Wendy to let’s go and we started to walk away. The guy followed us real slow. We started to run and just as we got even with the sign to Lakeside, I cut between the fence and a tree. I ran on to the driveway, to the trailer park and stopped to look back for Wendy. I didn’t see her. I didn’t see the car either. I heard a car spin off and I saw the car spinning around and going back the way it had come from. I called Wendy and she didn’t answer. I went looking for her, but could not find her. So I went and told her mother what had happened.” (R. 317-318)

Jody also described the occupant of the vehicle to Officer Gainey, as well as the vehicle itself. The driver was a tall, slim white male with dark hair, a beard, and a scar on his right temple. The automobile was a medium shade of blue four door with Ford written in script on the rear quarter panel. The rear deck was carpeted and the arm rest was torn off one door. The vehicle’s licence plate was yellow.

Officer Gainey stated the area was searched until midnight on September 20, and then the search began again the next morning. He observed a set of large and small footprints in a sand pit area that appeared to be proceeding together. During the course of the search on Sunday, September 21, Jody repeatedly asked Officer Gainey if the river would be dragged, and how long it would take a body to float. Sunday afternoon Officer Gainey had Mr. Bill Burt draw a composite photograph from the description given by Jody of the alleged kidnap suspect.

On Monday, September 22, 1980 Officer Gainey took Jody Potts into custody and brought him to the Sheriff’s Office. Because Jody was a juvenile, Officer Gainey contacted District Judge Norris and requested that he appoint appellant an attorney. Attorney Ab Powell was appointed as appellant’s counsel and came to the Sheriff’s Office to advise the appellant before appellant was questioned by Officer Gainey. After having been read his Miranda rights in consultation with his attorney, appellant signed a waiver of rights form, and gave an oral statement to Officer Gainey, which Gainey transcribed. The statement appears in pertinent part in the record as follows:

“We went to the trailer and Wendy saw Timmy and Chris in the woods between the end of the trailer park and the highway. And we ran into the woods after them.
“My side started hurting and we had to stop before we could catch them. We were about the middle of the woods. I sat down and Wendy sat down a little ahead of me. When I got my breath back, Wendy asked if I wanted to race on to the highway, which we could see from where we stopped. We did. We got to the road about the same time. We got stickers in our feet where we came out of the woods. This was about dusk. We sat down to get the stickers out. A man in a blue Ford came around the curve and stopped by us. He opened the car door and said, hey, come here. Wendy started to walk to the car. I told her to wait and the guy said, shut up, brat. I told Wendy to let’s go and we started to walk away. The guy followed us real slow. I told Wendy to run and we started to run. Just as we got even with the sign to Lakeside, I cut between the fence and a tree. I ran on to the driveway to the trailer park and stopped to look back for Wendy. I didn’t see her. I didn’t see her or the car either. I heard a car spin off and I saw the car spinning around and going back the way it had come. I called Wendy and she didn't answer. I went looking for her, but could not find her, so I went and told her mother what had happened.
“The above statement is true and correct to the best of my knowledge. Nothing follows.” (R. 356-357)

Appellant was placed under arrest at the close of this interview.

Officer Gainey testified that the law enforcement officials were never able to locate a vehicle meeting the description given by appellant.

Tommy Adams, Covington County Deputy Sheriff at the time of the incident, testified concerning footprints he observed during the search for Wendy Wakin. One large set of barefoot footprints led from the sand pit down to the water’s edge on the bank of the river. Wendy’s body was found floating in the river approximately forty feet down river from the point where the footprints were found.

Officer Ed Bundy testified he was present when the victim’s body was removed from the river on Monday, September 22, 1980. He received custody of the body after it was placed in a body bag and maintained custody until Charlie Brooks from the state laboratory arrived and took custody of the body. He testified a very strong odor came from the body at the time he observed it.

Juanita McCormick testified she operated Nita’s Style Shop, located in Gantt, Alabama, a short distance from Lakeside Trailer Park. She recalled being at her shop on Saturday afternoon, September 20, 1980. She and Jeanette Foshee were outside in front of her shop from 5:45 p.m. until 6:50 p.m. trying to get Ms. Foshee’s automobile started. She testified she did not see Jody and Wendy running down the highway nor did she observe any blue automobile pass down the highway during that time period. She did hear a shrill scream and saw what appeared to be two to four children tussling down in behind her shop while they were trying to start the vehicle. Earlier in the day she had seen two young boys, both blond, walking down the highway, followed by an older woman.

Jeanette Foshee testified and corroborated the substance of Ms. McCormick’s testimony.

Carolyn Owens Long, a former resident of Lakeside Trailer Park and neighbor of the appellant’s family, testified that she saw the appellant run by.her trailer at 1:30 a.m. on the morning of September 21, 1980 headed into the woods. She also saw him return from the same direction and run toward his trailer. She saw appellant again Sunday afternóon at which time he told her his family needed an automobile because they needed to get out of the area that night. Later that afternoon appellant came to her trailer and told her his mother had a boy friend whose father could defend him if he needed defending. Appellant returned to her trailer again Sunday night at 8:30 p.m. He was wet and had a terrible rotten odor about him. She allowed him to come in and sit in a straight chair. He kept his right hand inside of his shirt and his left hand in his pants pocket where he appeared to turn some object over and over. He stated he had been out looking for Wendy, and had what appeared to be scratches on his hand. He stayed and talked until a little after 10:00 p.m. at which time she told him to leave because she had to bathe her elderly aunt who lived with her. After he was outside, he asked her to come outside, and she refused. He asked her if she smelled anything and she said yes, it smelled like the horse lot. The appellant then replied that it was Wendy that she smelled. She asked him how he knew that, and he said it was because they were going to find her over there, and he indicated with his finger the location towards the river. He also told her to take her aunt to work with her the next day because “all hell is going to break loose tomorrow. They are going to find her right over there before lunch tomorrow.” After he left, Ms. Long heard a noise and thought she saw the appellant in the front seat of her automobile. She did not see him any more that night. On Wednesday after the body was discovered on Monday, Ms. Long found a knife blade on her back porch steps, which she held until Officer Gainey came and picked it up from her the following Sunday.

After calling Deputy Richard White to testify concerning leaving a subpoena for Ms. Long with her aunt, the state rested. Appellant’s motion to exclude the state’s case was denied.

Jody Potts, testifying on his own behalf, denied that he killed or sexually molested Wendy Wakin. He explained that a mal-formity of one of his hands was caused by a tractor injury when he was four years old. He was fifteen years old and had completed the sixth grade at the time of the trial. His family moved into Lakeside Trailer Park in September, 1980 before Wendy’s disappearance on September 20, 1980. Jody told substantially the same story at trial concerning the kidnapping as he had related previously.

Theron Covin, a staff psychologist with the Southeast Alabama Youth Services, testified he had performed a psychological evaluation of the appellant. His tests indicated appellant was not psychotic. Appellant had a full scale I.Q. of 76, with 100 being an average I.Q., and a mental age of eleven years six months. Appellant was not, however, retarded in Mr. Covin’s opinion. Mr. Covin also stated that the appellant had related the kidnapping story to him, but had changed it in one version to say the kidnapper chased them on foot, rather than in an automobile. Appellant also told Mr. Covin that he could remember hearing a girl scream and that the girl fell on some rocks, but he could remember nothing beyond that point. The defense rested at the close of Mr. Covin’s testimony.

I

Appellant contends the district court erred to reversal by allowing a transcription of testimony of a state’s witness from a previous juvenile certification hearing into evidence in the preliminary hearing over appellant’s objection. The transcription contained the testimony of Carolyn Owens Long and was introduced because Ms. Long’s whereabouts were unknown at the time of the preliminary hearing, and only after the preliminary hearing had been continued once because of Ms. Long’s absence. Appellant contends his constitutional right to confront witnesses against him was violated by the introduction of the transcription. As well, he argues that without Ms. Long’s testimony the evidence introduced at the preliminary hearing was insufficient to hold him, and that he was unlawfully incarcerated without bond during the time between the preliminary hearing and the grand jury indictment. Finally, appellant asserts that because new additional counsel was appointed to represent him between the time of the juvenile certification hearing and the preliminary hearing, his counsel was denied the right to cross-examine the witness against him by the introduction of the transcribed testimony.

The state concedes in its brief that appellant had the right to confront witnesses against him at the preliminary hearing. The state does not, however, address the question of whether appellant’s right to confront was protected by the manner in which the transcribed testimony was originally taken and subsequently introduced. Rather, the state relies on Duncan v. State, Ala.Cr.App., 369 So.2d 885 (1979), for the proposition that even where an appellant’s statutory right to a preliminary hearing is infringed, no reversible error results where an indictment has been returned. The facts in Duncan, however, were precisely opposite to the facts in the instant case. In Duncan, the issue was, “... whether the failure to grant a preliminary hearing after indictment amounts to reversible on appellate review of the case.” (Emphasis added). The court found it would be folly to reverse the case to allow a repetitious inquiry into probable cause. In the instant case, a preliminary hearing was in fact held prior to indictment, and the issue of an absolute right to a preliminary hearing was not in question.

The issue is whether when a preliminary hearing is held, does a possible procedural defect in that hearing mandate reversal, despite a subsequent finding of probable cause by a grand jury indictment.

There is no constitutional requirement in Alabama that there be two inquiries into probable cause. Duncan, supra; Ex Parte Campbell, 278 Ala. 114, 176 So.2d 242 (1965). Neither does constitutional due process require a preliminary hearing, although Alabama by statute provides that if the accused makes a demand for a preliminary hearing within thirty days of his arrest, a hearing must be held within a reasonable time following his demand. § 15-11-1 Code of Ala.1975; Nobis v. State, Ala. Cr.App., 401 So.2d 191, cert. denied, Ala., 401 So.2d 204 (1981). The appellant in the instant case was provided a preliminary hearing after making a demand for same on December 12,1980. Appellant was arrested on September 22, 1980, and certified for trial as an adult on December 10, 1980. Hence, his demand came well after the thirty day time limit provided for under the statute. After a finding of probable cause by the district court on January 14, 1981, the appellant continued to be incarcerated without bond and was bound over for action by the grand jury, which indicted him in March of 1981.

The statutory thirty day time limit for making a demand for a preliminary hearing had long expired at the time appellant actually made his demand. The indictment by the grand jury satisfied all requirements for a finding of probable cause to proceed against the appellant. Duncan, supra. The possible harm to appellant arising out of the allegedly erroneously introduced evidence at the preliminary hearing would have come from a potentially unfounded finding of probable cause which could have caused a premature and unnecessary incarceration of the appellant in the time intervening between the preliminary hearing and the return of the grand jury indictment.

Therefore, the appellant’s failure to demand a preliminary hearing within the 30-day statutory period waived his absolute right to a preliminary hearing. However, he was not prejudiced by virtue of his incarceration during the time period which lapsed before the return of the indictment by the grand jury because on October 10, 1980, a certification hearing was held at which time Ms. Long appeared and testified. Her testimony was transcribed and this transcription subsequently used at the preliminary hearing when after one continuance, it was determined that Ms. Long was not available at that time to testify. Further, there was a habeas corpus hearing held on December 10, 1980, which determined that the appellant was properly restrained and he was remanded to the sheriff to await the grand jury proceedings.

As we note here in this opinion, Ms. Long did appear at trial and was thoroughly cross-examined at that time. She was also fully cross-examined at the certification hearing held on October 10, 1980, prior to the grand jury proceedings. The appellant was represented by counsel in the certification hearing and also the preliminary hearing. We therefore find no error in this cause resulting from the use of a transcription of Ms. Long’s testimony at the preliminary hearing.

II

Appellant argues that § 13A-5-31(a)(3) Code of Alabama 1975, under which he was indicted, was declared unconstitutional and rendered void by the United States Supreme Court’s ruling in Beck v. State, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Hence he argues the offense for which he was indicted did not legally exist and his conviction is therefore a nullity and must be reversed. He further contends that the Alabama Supreme Court was without authority to judicially modify the statute to comport with the requirements of the United States Supreme Court’s Beck decision. The Supreme Court of Alabama has held otherwise in Beck v. State, Ala., 396 So.2d 645 (1980) and we are bound by the decision of that court. Roynica v. State, 54 Ala.App. 436, 309 So.2d 475 (1974), cert. denied, 293 Ala. 772, 309 So.2d 485 (1975), cert. denied 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 85 (1975). We find no error in appellant’s prosecution under § 13A-5-31(a)(3) as modified by Beck, supra. The trial and sentencing procedures outlined in Beck were followed by the trial court and no error in this regard is apparent from the record. Clisby v. State, 6 Div. 576, Ala.Cr.App., this day decided.

Ill

The appellant was fifteen years of age at both the time of trial and the time the crime was committed. Appellant argues that because the applicable code sections defining the sexual offenses of rape in the first degree and sexual abuse in the first degree, of a female who is less than twelve years old require that the assailant be sixteen years of age or older, he lacked the capacity to be guilty of the offense for which he was convicted. § 13A-5-31(a)(3) defines the offense as the “... carnal knowledge of a girl under 12 years of age, or abuse of such girl in an attempt to have carnal knowledge, when the victim is intentionally killed by the defendant.” The code sections applicable to carnal knowledge, or attempt thereof, of a female less than 12 years of age are as follows:

“§ 13A-6-61. Rape in the first degree, (a) A male commits the crime of rape in the first degree if;
(3) He, being 16 years or older, engages in sexual intercourse with a female who is less than 12 years old.
“13A-6-66. Sexual abuse in the first degree, (a) A person commits the crime of sexual abuse in the first degree if: (3) He, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.

While the code sections defining these sexual offenses do not use the term carnal knowledge, the commentaries indicate the following:

“Sections 13A-6-61, subdivision (a)(3), and 13A-6-62, subdivision (a)(1), supplant and are substantially the same as the present statutory rape sections, § 13-1-133, carnal knowledge of girl under 12, and § 13-1-134, carnal knowledge of a girl over 12 and under 16 years of age. Under the Criminal Code, it is a defense to both that the male is under 16 years of age; and § 13A-6-62(a)(l) applies only if defendant be at least two years older than a female. Present law recognizes the male’s immaturity only where the victim is over 12 but under 16. The age, immaturity and lack of judgment of the offender are the determining factors in establishing an absence of culpability, not merely the age of the victim. In any event, the juvenile courts retain jurisdiction of those cases involving youthful offenders which warrant action. § 13A-6-61 Commentary, Code of Ala.1975, p. 113. “These sections also encompass the parts of the present carnal knowledge statutes, §§ 13-1-133 and 13-1-134, which punish abuse ‘in the attempt to have carnal knowledge.’ The term ‘abuse’ under those statutes contemplate injury to the genitalia or sexual organs.” § 13A-6-66 commentary, Code of Ala.1975, p. 118.

After careful scrutiny of the pertinent code sections, it appears to us to have been the legislative intent to provide as a defense to the above referenced crimes, formally denominated as carnal knowledge, the fact that the appellant is under 16 years of age. Does this require then, that a defendant charged under § 13A-5-31(a)(3) be 16 years of age or older to be culpable for that offense? The state argues that it does not, contending that the definitional component of § 13A-5-31(a)(3) carnal knowledge is supplied by § 13-1-133 Code of Ala.1975, in that the death penalty code sections were carried forward intact from the 1975 code to the new criminal code, without any definitional changes. However, § 13-1-133 was specifically repealed by § 9901 of Acts 1977, No. 607, p. 812 (Criminal Code). The new Criminal Code which carried the death penalty statute forward became effective on January 1, 1980, after the repeal of § 13-1-133. Additionally, the policy of the legislature in the new code provides for taking into consideration the age, immaturity, and lack of judgment of an appellant under the age of 16 years for sexual offenses. As well, the new code undertakes to define sexual offenses as a group under Chapter 6, Article 4. To hold that § 13A-5-31(a)(3) creates its own sexual offense with a definition that disregards the appellant’s age, may appear to controvene the apparent legislative policy of Chapter 6, Article 4, as well as recognizing § 13A-5-31(a)(3) as creating a sexual offense not incorporated under Chapter 6, Article 4, which undertakes to define sexual offenses. However, it appears to us that the legislature intended to do exactly that by codifying separately those crimes it deemed worthy of capital punishment. As Justice Maddox stated in Beck, supra:

“Without question, the legislature has spelled out specifically what offenses it considers to be capital offenses. The Alabama legislature has substantially followed the Model Penal Code in describing with specificity those offenses which are deemed capital offenses. Code 1975, § 13A-5-31. Each of the fourteen crimes specified requires an intentional killing with aggravation, and not some crime other than homicide under aggravated cii’cumstances. Horsley v. State, Ala.Cr.App., 374 So.2d 363 (1978); aff’d, Horsley v. State, Ala. 374 So.2d 375 (1979), Ala., 396 So.2d 645 (1981).”

The legislative policy for protecting youthful offenders by weighing their immaturity and lack of judgment in committing sexual offenses has no place in determining the culpability of a defendant who has been determined to be an adult and responsible for the criminal conduct he has undertaken which resulted in a capital murder. To hold otherwise would create the anomalous situation of finding the appellant culpable for the intentional murder portion of the crime, but not culpable for the sexual offense attached to the same crime. We therefore hold that § 13A-5-31(a)(3), patterned after repealed § 13-1-133, itself defines the aggravating sexual offense and purposefully does so without regard to the age of the defendant.

IV

Appellant argues the trial court erred in failing to charge the jury as to the lesser included offense of manslaughter. The jury, in capital cases, must be instructed on each lesser included offense which has any basis in the evidence. Beck, supra. The trial judge instructed the jury as to the lesser included offense of murder, but refused to instruct as to manslaughter. We have reviewed the evidence in detail, and find no factual basis for instructing the jury as to manslaughter.

V

Appellant’s final contention is that the circumstantial evidence was insufficient to sustain the jury’s verdict. For circumstantial evidence to be sufficient to sustain the jury’s verdict, the circumstances proved must be consistent with the hypothesis of the defendant’s guilt and inconsistent with the hypothesis of his innocence, as well as inconsistent with every other rational hypothesis except that of his guilt. Thomas v. State, Ala.Cr.App., 363 So.2d 1020 (1978). Circumstances, even of the strongest nature, which merely arouse a suspicion of guilt, are insufficient to serve as the foundation for conviction. Thomas, supra.

The evidence presented at trial proved that appellant was the last person with whom the victim was seen alive. Appellant’s carefully detailed story of running down the highway to escape from the kidnapper was directly contradicted by two eye witnesses who were outside of the beauty shop before, during, and after the time of the alleged events detailed by appellant. They saw neither the two children nor the man and automobile described by appellant. Appellant made numerous incriminating statements to the neighbor, Ms. Long, including his statements made on Sunday after Wendy disappeared on Saturday, in which appellant said he needed an automobile to get out of the area immediately and that he had connections who could provide him with a defense attorney if he needed one. Again on Sunday night he visited Ms. Long and was wet and smelled of a strong odor of decay. As the appellant left Ms. Long’s trailer, he told her the odor was Wendy, and pointed towards the river where he said Wendy’s body would be found the next day. During his visit with Ms. Long, he kept one hand hidden, and constantly rotated an object in his pocket with the other hand. One hand also appeared to be scratched. Testimony also indicated numerous inconsistencies in the kidnapping story told by appellant, including one version of the story in which the kidnapper chased Wendy and appellant on foot, rather than following them in an automobile.

We find that the state’s evidence was sufficient to sustain the jury’s verdict. Although the question is a close one, the incriminating statements made by appellant, when weighed in conjunction with the other surrounding facts and circumstances, preclude any reasonable hypothesis of appellant’s innocence.

We have reviewed the entire record and find no error harmful to the substantial rights of appellant.

AFFIRMED.

HARRIS, P.J., and DeCARLO and BOWEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Jody Lynn POTTS. (Re Jody Lynn Potts, alias v. State of Alabama)
    81-564.
    Supreme Court of Alabama.
    Jan. 7, 1983.
    Rehearing Denied Feb. 11, 1983.

      Ab Powell, III of Powell & Powell and J. Fletcher Jones, Andalusia, for petitioner.
    Charles A. Graddick, Atty. Gen., and Edward W. Carnes, Asst. Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for respondent.
   PER CURIAM.

The appellant was convicted, pursuant to Code 1975, § 13A-5-31(a)(3), of having carnal knowledge and of killing a girl under 12 years of age, or the abuse of such girl in an attempt to have carnal knowledge, during which the victim was intentionally killed by the appellant. The following issues are raised on appeal; (1) Did the court improperly admit the tranwribed testimony of an absent witness at the appellant’s preliminary hearing? (2) At the time the appellant was indicted had the United States Supreme Court declared Code 1975, § 13A-5-31(a)(3) (the statute under which appellant was prosecuted) unconstitutional? (3) Did the procedures applied at the appellant’s trial violate the ex post facto clause of the United States Constitution? (4) Did the defendant’s age bar his conviction for carnal knowledge or rape? (5) Should there have been a jury instruction regarding the lesser included offense of manslaughter? (6) Did the State introduce sufficient evidence at trial to sustain the defendant’s conviction?

I. FACTS

A detailed account of the tragic facts in this case is adequately recorded in the decision of the Court of Criminal Appeals. Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982). Only a condensed version of that account needs to be repeated here.

Jody Lynn Potts, the appellant, was convicted of having carnal knowledge and the intentional murder of Wendy Wakin, a six-year-old female. Potts was convicted under Code 1975,13A-5-31(a)(3), and sentenced to life without parole. When the killing occurred, in September 1980, the appellant was 15 years old. Potts and Wendy lived with their families in a trailer park in Cov-ington County. Witnesses testified that they had seen Potts playing with the victim on the evening she disappeared. One witness, Carol Owens Long, testified at trial that on the evening authorities discovered Wendy’s body, she had a discussion with the appellant. Long testified at Potts’s juvenile hearing, that Potts came to her trailer that night wet and smelling of a terrible odor. Potts allegedly said he had been searching for Wendy and asked Long if she smelled anything. Long testified that she told him that she smelled an odor like a horse lot and that Potts responded, “No it’s not. It’s Wendy.” The appellant allegedly continued, “They are going to find her right over there,” while indicating with his finger down towards the river. Later that evening, the authorities dragged the Conecuh River and found the victim’s body. Evidence was presented showing that the victim had been stabbed and raped. Throughout his trial, the appellant admitted that he had been with Wendy on the evening she disappeared. Potts further claimed that while they were playing, a man in a blue Ford automobile beckoned them into his car and that he and Wendy ran from the car. Wendy allegedly was abducted and drove off with the man in the automobile. Authorities made a search for the driver and the car, but never located anyone fitting the description given by Potts.

II. DID THE COURT IMPROPERLY ADMIT THE TESTIMONY OF AN ABSENT WITNESS AT THE APPELLANT’S PRELIMINARY HEARING?

Three separate hearings were conducted, a juvenile hearing, a hearing on Potts’s petition for writ of habeas corpus, and a preliminary hearing. Long did not appear at the preliminary hearing and her transcribed statement which had been taken at the juvenile hearing was introduced over the appellant’s objection. She did appear and testify at appellant’s trial, when the jury returned a guilty verdict.

The appellant asserts that the court improperly admitted transcribed testimony at the preliminary hearing. We do not agree. An accused in Alabama has a statutory right to demand a preliminary hearing after arrest and if that demand is made within 30 days of arrest it must be granted. Code 1975, § 15-11-1. When Potts demanded a preliminary hearing, the thirty-day period had run. The court, acting within its discretion, nevertheless, granted the appellant’s motion for a preliminary hearing.

The transcribed testimony of witness Long which had been taken at the appellant’s juvenile hearing was introduced at the preliminary hearing. The record shows that the court reporter and the presiding judge at the juvenile proceeding testified as to the authenticity of Long’s transcribed testimony. Further, the record indicates that a subpoena had been issued for Ms. Long to appear at the preliminary hearing and that the authorities were unable to serve her.

The appellant cites Holman v. Washington, 364 F.2d 618 (5th Cir.1966), as authority for the proposition that transcribed testimony cannot be properly introduced at a preliminary hearing unless a proper predicate is laid. In Holman, the court established requirements for introduction of transcribed testimony at trial, not at preliminary proceedings. While a defendant has numerous procedural and substantive constitutional protections at trial, all these rights do not extend to preliminary hearings. A defendant in Alabama does not have an absolute right to a preliminary hearing. Duncan v. State, 369 So.2d 885 (Ala.Cr.App.1979); see also Nichols v. Estelle, 556 F.2d 1330, cert. denied 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 767 (5th Cir.1977). The Court of Criminal Appeals did not err in holding that no reversible error occurred at the appellant’s preliminary hearing.

The grand jury of Covington County indicted Potts during the March term, 1981, some two months after the preliminary hearing. Once an accused has been indicted, no grounds for reversible error exist when the accused’s demand for a preliminary hearing is not satisfied. Duncan v. State, 369 So.2d 885 (Ala.Cr.App.1979). Potts’s subsequent indictment, the predicate laid at the preliminary hearing regarding the transcribed testimony, the lack of a constitutional obligation to provide a defendant with a preliminary hearing, and Long’s presence and testimony at the defendant’s trial, are all reasons to find that the trial court did not commit reversible error by admitting the transcribed testimony at the preliminary hearing.

III. AT THE TIME THE APPELLANT WAS INDICTED HAD THE UNITED STATES SUPREME COURT DECLARED CODE 1975, § 13A-5-31(a)(3) (THE STATUTE UNDER WHICH APPELLANT WAS PROSECUTED) UNCONSTITUTIONAL?

The offense with which Potts was charged occurred on September 20 or 21, 1980. The grand jury indicted him under Code 1975, § 13A-5-31(a)(3). The appellant argues that the United States Supreme Court declared this statute unconstitutional in its Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), decision on June 20, 1980, three months before the grand jury returned its indictment. Potts asserts that because the statute under which he was indicted was unconstitutional, his conviction must, therefore, be void and reversed on appeal. We do not agree.

The United States Supreme Court did not declare § 13A-5-31 unconstitutional in Beck v. Alabama. In a recent decision, the United States Supreme Court examined its holding in Beck v. Alabama, and Chief Justice Burger wrote for the Supreme Court:

“Subsequently, in Beck v. Alabama, 447 U.S. 625 [100 S.Ct. 2382, 65 L.Ed.2d 392] (1980), we held that the sentence of death could not be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included noncapi-tal offense, provided that the evidence would have supported such a verdict.
“Our opinion in Beck stressed that the jury was faced with a situation in which its choices were only to convict the defendant and sentence him to death or find him not guilty. The jury could not take a third option of finding that although the defendant had committed a grave crime, it was not so grave as to warrant capital punishment. We concluded that a jury might have convicted Beck but also might have rejected capital punishment if it believed Beck’s testimony. On the facts shown in Beck, we held that the defendant was entitled to a lesser included offense instruction as a matter of due process. Id., at 637 [100 S.Ct. at 2389].
“It is important to note that our holding in Beck was limited to the question submitted on certiorari, and we expressly pointed out that we granted the writ in that case to decide whether a jury must be permitted to convict a defendant of a lesser included offense ‘when the evidence would have supported such a verdict....’ 447 U.S., at 627 [100 S.Ct. at 2384]. Thus, our holding was that the jury must be permitted to consider a verdict of guilt of a non-capital offense ‘in every case’ in which ‘the evidence would have supported such a verdict.’
“Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only-when the evidence warrants such an instruction. The jury’s discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence.... ”

Hopper v. Evans,-U.S. ——, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

Thus, the United States Supreme Court’s holding in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), did not declare the entire Alabama death penalty statute unconstitutional but only that portion of the statute that did not allow the jury to consider a verdict of guilt for a non-capital offense. On remand this Court, in Beck v. State, severed the preclusion clause from the death penalty statute. There this Court opined:

“The remainder of the Alabama Capital Punishment Statute is complete within itself, sensible, and capable of execution after the preclusion clause is stricken. Absent the fourteen words which constitute the preclusion clause, the long established Alabama statutory and common law rule will apply so that juries in capital cases will be instructed on any lesser included offenses supported by the evidence. That rule applies in every state in this country, see, Beck v. Alabama, 100 S.Ct. at 2388-2389 n. 12; it was the rule in every case tried in Alabama for more than a hundred years before Furman; it is still the rule in non-capital cases tried in Alabama, see, Beck v. Alabama, 100 S.Ct. at 2385 n. 5, 2388-2389; and it would unquestionably have been the rule in Alabama’s post-Furman capital cases had the Alabama legislature not misinterpreted Furman."

This Court acted within its power and modified the statute to comport with the United States Supreme Court’s holding in Beck v. Alabama.

IV. DID THE PROCEDURES APPLIED AT THE APPELLANT’S TRIAL VIOLATE THE EX POST CLAUSE OF THE UNITED STATES CONSTITUTION?

The Court of Criminal Appeals correctly held that all the procedures at Pott’s trial and sentencing followed the guidelines set forth in this Court’s Beck v. State, 396 So.2d 645 (Ala.1980), decision. The appellant’s argument that applying in his trial the procedures we set forth in Beck v. State, 396 So.2d 645 (Ala.1980), violated the ex post facto clause of the United States Constitution is without merit. The United States Supreme Court in an analogous decision involving Florida’s death penalty statute, found no violation of the ex post facto clause existed. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

V. DID THE DEFENDANT’S AGE BAR HIS CONVICTION FOR CARNAL KNOWLEDGE OR RAPE?

The appellant was indicted under Ala.Code § 13A-5-31(a)(3), which has been repealed by 1981 Ala.Acts No. 81-178. That section of the Criminal Code provided for a death penalty or life sentence without parole for a defendant that has “carnal knowledge of a girl under 12 years of age, ..., when the victim is intentionally killed by the defendant.” Id. There was no reference to the age of the defendant in § 13A-5-31(a)(3).

The appellant argues that “carnal knowledge” in § 13A-5-31(a)(3) was the same offense as rape in the first degree, codified at § 13A-6-61(a)(3). The latter statute says that a male “... being 16 years or older” commits rape in the first degree when he “engages in sexual intercourse with a female who is less than 12 years old.” Because Potts was 15 years old at the time the crime occurred, he argues that he could not have committed the crime of rape.

For a better understanding of the legislature’s intent when passing § 13A-6-61, it is necessary to look to the pertinent committee comments.

“Sections 13A-6-61, subdivision (a)(3), and 13A-6-62, subdivision (a)(1), supplant and are substantially the same as the present statutory rape sections, § 13-1-133, carnal knowledge of girl under 12, and § 13-1-134, carnal knowledge of a girl over 12 and under 16 years of age. Under the Criminal Code, it is a defense to both that the male is under 16 years of age; and § 13A-6-62(a)(l) applies only if defendant be at least two years older than a female. Present law recognizes the male’s immaturity only where the victim is over 12 but under 16. The age, immaturity and lack of judgment of the offender are the determining factors in establishing an absence of culpability, not merely the age of the victim. In any event, the juvenile courts retain jurisdiction of those cases involving youthful offenders which warrant action.”

Code 1975, § 13A-6-61 and -62, Commentary. In its opinion, the Court of Criminal Appeals explained the relationship between the pertinent Code sections and the appellant’s age. Judge Tyson wrote:

“After careful scrutiny of the pertinent code sections, it appears to us to have been the legislative intent to provide as a defense to the above referenced crimes, formally denominated as carnal knowledge, the fact that the appellant is under 16 years of age. Does this require then, that a defendant charged under § 13A-5-31(a)(3) be 16 years of age or older to be culpable for that offense? The state argues that it does not, contending that the definitional component of § 13A-5-31(a)(3) carnal knowledge is supplied by § 13-1-133 Code of Ala.1975, in that the death penalty code sections were carried forward intact from the 1975 code to the new criminal code, without any definitional changes. However, § 13-1-133 was specifically repealed by § 9901 of Acts 1977, No. 607, p. 812 (Criminal Code). The new Criminal Code which carried the death penalty statute forward became effective on January 1, 1980, after the repeal of § 13-1-133. Additionally, the policy of the legislature in the new code provides for taking into consideration the age, immaturity, and lack of judgment of an appellant under the age of 16 years for sexual offenses. As well, the new code undertakes to define sexual offenses as a group under Chapter 6, Article 4. To hold that § 13A-5-31(a)(3) creates its own sexual offense with a definition that disregards the appellant’s age, may appear to contravene the apparent legislative policy of Chapter 6, Article 4, as well as recognizing § 13A-5-31(a)(3) as creating a sexual offense not incorporated under Chapter 6, Article 4, which undertakes to define sexual offenses. However, it appears to us that the legislature intended to do exactly that by codifying separately those crimes it deemed worthy of capital punishment. As Justice Maddox stated in Beck,
‘Without question, the legislature has spelled out specifically what offenses it considers to be capital offenses. The Alabama legislature has substantially followed the Model Penal Code in describing with specificity those offenses which are deemed capital offenses. Code 1975, § 13A-5-31. Each of the fourteen crimes specified requires an intentional killing with aggravation, and not some crime other than homicide under aggravated circumstances. Horsley v. State, Ala., 374 So.2d 375 (1979), Ala., 396 So.2d 645 (1981).’
“The legislative policy for protecting youthful offenders by weighing their immaturity and lack of judgment in committing sexual offenses has no place in determining the culpability of a defendant who has been determined to be an adult and responsible for the criminal conduct he has undertaken which resulted in a capital murder. To hold otherwise would create the anomalous situation of finding the appellant culpable for the intentional murder portion of the crime, but not culpable for the sexual offense attached to the same crime. We therefore hold that § 13A-5-31(a)(3), patterned after repealed § 13-1-333, itself defines the aggravating sexual offense and purposefully does so without regard to the age of the defendant.”

Potts v. State, 426 So.2d 886, 894 (Ala.Cr.App.1982). We agree with the reasoning of the Court of Criminal Appeals. We find that Potts’ age did not prohibit his conviction under § 13A-5-31.

VI. SHOULD THERE HAVE BEEN A JURY INSTRUCTION REGARDING THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER?

The trial court correctly refused to give a jury instruction regarding the lesser included offense of manslaughter. The essential elements of manslaughter are (1) the reckless killing of another person, or (2) the killing of a person due to a sudden heat of passion caused by a provocation recognized by law. Code 1975, § 13A-6-3(a)(l)(2). The appellant presented no evidence at trial which could possibly form the basis for a manslaughter instruction. Pott’s defense consisted of a complete denial of killing the victim, and no evidence was ever introduced to prove that the death of Wendy Wakin was due to recklessness or heat of passion.While the trial court properly refused to give a manslaughter instruction, it did give the jury instructions regarding the lesser included offense of murder pursuant to § 13A-6-2(a)(l). Therefore, the jury had the option to find Potts guilty of murder, absent the aggravating circumstances of carnal knowledge or rape, and fix his punishment at something less than life imprisonment without parole. § 13A-6-2(a)(3), (c).

VII. DID THE STATE INTRODUCE SUFFICIENT EVIDENCE AT TRIAL TO SUSTAIN THE DEFENDANT’S CONVICTION?

Finally, this Court is urged to reverse this case because the evidence presented at trial did not sustain a conviction of homicide against the defendant. A homicide conviction can be sustained solely on circumstantial evidence. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied 368 So.2d 877 (Ala.1979). There are numerous cases when the appellate courts have reviewed homicide convictions on the grounds of insufficient evidence to support a guilty verdict. See Graham v. State, 374 So.2d 929 (Ala.Cr.App.1979), writ quashed 374 So.2d 942 (Ala.1979); Johnston v. State, 387 So.2d 891 (Ala.Cr.App.1980), writ denied 387 So.2d 905 (Ala.1980); Dolvin v. State, 391 So.2d 133 (Ala.1980). This Court has established the standard to review such convictions:

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).
“We must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):
“ ‘Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thorn-berry’s words, * * * the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude. Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied).
‘The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is to examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged. McGlamory, 441 F.2d at 135 and 136.’ ”

Dolvin v. State, 391 So.2d 133, 137-138 (Ala.1980), (quoting Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978)). After examining the record on appeal, we find that the “jury might reasonably conclude” that Potts was guilty and, therefore, we refuse to reverse this conviction because it was based on circumstantial evidence.

For the reasons set forth, the conviction of the appellant should be upheld and the judgment of the Court of Criminal Appeals is due to be affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES and ADAMS, JJ., concur. "

BEATTY, J., concurs in Parts I, II, III, IV, VI and VII; but dissents in Part V.

EMBRY, J., not sitting.


author: DeCARLO, Judge.

text:
    Akiyoshi YAMADA v. STATE.
    7 Div. 894.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied April 20, 1982.
    John Baker, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

After a guilty plea, appellant was convicted of forgery in the second degree and sentenced to two years. The trial judge ordered that appellant serve four months in the penitentiary, suspending the remainder of the sentence and allowing the appellant to be placed on probation. He also ordered that restitution in the amount of $37,000. be made.

The trial court explained to the appellant all of the rights he would relinquish by pleading guilty, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The following then occurred:

“THE COURT: Are you pleading guilty voluntarily and of your own free will and accord?
“MR. YAMADA: Yes, Your Honor.
“THE COURT: Are you pleading guilty because you are, in fact, guilty of the offense with which you are charged in the indictment?
“MR. YAMADA: No, Your Honor. I am not pleading guilty because I am guilty. I maintained that I had no criminal intent and I’m not guilty; however, I acknowledge that I did supply the endorsement of W.R. Inman to the check which was presented to the Northeast State Bank. I have never tried to hide that fact, but, Your Honor, I did not attempt to copy or make the signature look like that of W.R. Inman. I supplied that endorsement on the instructions of the owner of the funds who was my then employer, who stated that W.R. Inman was not entitled to the funds. He further instructed me to supply the endorsement. I believed he had the authority to ask me to do that. I again state I am willing to make complete and total restitution to any party who lost money because of my action. I am pleading guilty as a compromise and in order to avoid the expense and possible more serious consequence which might occur as a result of a trial. “THE COURT: All right, is the State in the position to make a showing as to what the evidence in this case would be? “MR. IGOU: I believe so, Your Honor. Judge, the State would expect to show, through its witnesses and testimony in evidence, that some meetings occurred prior to July, or prior to, at least, July 13, 1979, between Mr. Yamada and some of his associates and Mr. W.R. Inman of Higdon, Alabama, Jackson County, Alabama, and his associates regarding some coal property, and we expect to show that an agreement was reached for the payment of $75,000 to Mr. Inman and/or his associates for a coal mine which was in existence at that time. We expect to show that on or about the 13th of July, 1979, that the defendant called Mr. In-man and said he had his money, and that he was at the Atlanta Airport and he would call later to make arrangements to deliver the money. We expect to show that there was a meeting on the next day arranged, and it was at the office of Mr. Morris Beck, Mr. W.M. Beck, Sr’s son and law partner. That that meeting was held the next day and that the witness, Mr. Inman, was offered less than the $75,000 agreed upon consideration, and that he refused that offer and said that there was no deal at that time. We expect to show also that on or about the 13th of July, 1979, that Mr. Yamada and an associate of his at that time, one George Hambert, went to the Northeast State Bank at Henagar, here in DeKalb County; that Mr. Yamada had in his possession at that time a $75,000 cashiers check. Furthermore, we expect to show that he deposited this check with the endorsement of W.R. Inman on the check to a new account that was opened by Mr. Ya-mada and Mr. Hambert, in the name of Midnight Coal Company. We expect to show further that Mr. Inman will testify that he never endorsed that check and he did not endorse anyone, or did not authorize anyone to endorse his name on the check. We expect to show that Mr. Ya-mada made the statement, or made a statement, under the proper Miranda warning, to the fact that he did sign the name, W.R. Inman, on the check. Further, we would expect to show that on or about the 15th of July, the Northeast State Bank from the account of Midnight Coal Company; that one cashiers check was made payable to Mrs. Yamada, Shelia Yamada, in the amount of $10,000, and was later deposited to her own account at Central Bank of Alabama, in Fort Payne, and another cashiers check drawn on that account was made payable to Mr. Jimmy Lindsey, the Clerk of the Court, here in DeKalb County, for payment of an action which Mr. Yamada owed the Court; and the third check was in the amount of $4,000, and it went to Mr. George Hambert, and on July 16 it was deposited to his account in Central Bank, and on the same day he wrote a check to Mrs. Yamada in the amount of $4,000, and on that date Mrs. Yamada paid some $13,600 to a real estate firm here in Fort Payne. That, basically, is what the State expects to show.
“THE COURT: All right. The Court finds that there is a basis of fact upon which to support the guilty plea, and the Court will accept the plea of guilty. In view of everything that has been stated, Mr. Yamada, and the things that I have explained to you, do you still wish to enter your plea of guilty in this case?
“MR. YAMADA: Yes, Your Honor. “THE COURT: The Court adjudges you guilty of the offense of forgery in the second degree as charged in the indictment. ...”

After sentencing, appellant filed a motion to withdraw his guilty plea, which was denied by the court. In our judgment, appellant’s cause must be remanded because the above quoted portion of the record demonstrates that the procedure used in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), was not followed.

In Alford, supra, the United States Supreme Court held that a guilty plea, entered over the accused’s protestations of innocence, was valid as long as the accused was represented by competent counsel and the evidence strongly supported his guilt.

After the accused in Alford claimed he was innocent of murder, the trial court heard the actual testimony of State’s witnesses which pointed strongly to the defendant’s guilt. The Supreme Court observed:

“If Alford’s statements were to be credited as sincere assertions of his innocence, there obviously existed a factual and legal dispute between him and the State. Without more, it might be argued that the conviction entered on his guilty plea was invalid, since his assertion of innocence negatived any admission of guilt, which, as we observed last Term in Brady, is normally ‘[cjentral to the plea and the foundation for entering judgment against the defendant * * *.’ 397 U.S. at 748, 90 S.Ct. at 1468.
“In addition to Alford’s statement, however, the court had heard an account of the events on the night of the murder, including information from Alford’s acquaintances that he had departed from his home with a gun stating his intentions to kill and that he had later declared that he had carried out his intention. Thereupon, with the State’s telling evidence and Alford’s denial before it, the trial court proceeded to convict and sentence Alford for second-degree murder.”

In the present case, appellant admitted that he supplied the endorsement, but denied criminal intent. He contended that he signed the check on the instructions of his employer, whom he believed was authorized to issue such instructions. The trial judge then listened to the State’s offer of proof and adjudged appellant guilty.

Section 13-4^61 of the Alabama Code 1975, the statute under which appellant was convicted, provides, in pertinent part, the following:

“Any person who, with intent to injure or defraud, falsely makes, alters, forges, counterfeits or totally obliterates any ... instrument, being or purporting to be the act of another, by which any right or interest in property is, or purports to be transferred, conveyed, or in any way changed or affected; ... is guilty of forgery in the second degree.” [Emphasis added]

Intent to defraud is necessary to constitute the crime, Espalla v. State, 108 Ala. 38, 19 So. 82 (1896), but intent may be presumed from the forgery itself in the absence of proof to the contrary. Hall v. State, 21 Ala.App. 476, 109 So. 847 (1926).

The State’s offer of proof in support of the plea showed not only the false indorsement, but also a subsequent diversion of the funds for appellant’s benefit. From these proposed facts, a presumption of fraudulent intent undoubtedly may have arisen. However, appellant’s explanation of his conduct provided a possible defense (albeit implausible) to the crime charged, which was arguably “proof to the contrary.” See Hall v. State, supra.

In contrast to Alford, here the State presented no evidence to support appellant’s guilt. Assertions of counsel are not evidence, and an offer of proof is not sufficient, especially when the accused maintains his innocence.

We therefore hold that the proposed evidence recounted by the district attorney did not comply with the procedure used in Alford. In our judgment, once an accused protests his innocence, the court must, in order to determine whether there is a “factual basis for the plea,” Alford, supra 400 U.S. at 37, 91 S.Ct. at 167, require the State to present its case in the form of legal evidence to the trial court. A mere offer of proof simply cannot overcome the accused’s assertion of innocence or provide the “strong evidence of actual guilt,” Alford at 37, 91 S.Ct. at 167, necessary to acceptance of a plea which is coupled with a claim of innocence.

Therefore, we remand this cause to the DeKalb Circuit Court for compliance under the principles outlined in this opinion. Further, we ask the DeKalb Circuit Court, within a reasonable time, send this court a record of its proceedings complying with the foregoing order.

REMANDED WITH DIRECTIONS.

HARRIS, P.J., and TYSON and BOWEN, JJ., concur.


author: TORBERT, Chief Justice.

text:
    Ex parte: State of Alabama. (In re: Akiyoshi YAMADA v. STATE of Alabama).
    81-626.
    Supreme Court of Alabama.
    Aug. 6, 1982.
    Rehearing Denied Dec. 30, 1982.

      Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for petitioner.
    John Baker, Fort Payne, for respondent.
   TORBERT, Chief Justice.

Defendant Yamada pleaded guilty to a charge of forgery in the second degree. The trial court accepted the guilty plea, sentenced Yamada to two years’ imprisonment, ordered him to serve four months of the term, and suspended the remainder. Yamada appealed and the Court of Criminal Appeals, 426 So.2d 903 remanded because of a failure to follow the procedure set forth by the United States Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); that is, the trial court must find a factual basis for the plea. The Court of Criminal Appeals held that assertions by the prosecuting attorney of what he expects the evidence to show are insufficient to show a factual basis to support a guilty plea when the defendant asserts his innocence. We reverse.

During the trial, the trial judge explained the rights that would be relinquished by the defendant by pleading guilty. The defendant was then asked if he was pleading guilty because he was in fact guilty. The following occurred:

“MR. YAMADA: No, Your Honor. I am not pleading guilty because I am guilty. I maintained that I had no criminal intent and I’m not guilty; however, I acknowledge that I did supply the endorsement of W.R. Inman to the check which was presented to the Northeast State Bank. I have never tried to hide that fact, but, Your Honor, I did not attempt to copy or make the signature look like that of W.R. Inman. I supplied that endorsement on the instructions of the owner of the funds who was my then employer, who stated that W.R. Inman was not entitled to the funds. He further instructed me to supply the endorsement. I believe he had the authority to ask me to do that. I again state I am willing to make complete and total restitution to any party who lost money because of my action. I am pleading guilty as a compromise and in order to avoid the expense and possible more serious consequence which might occur as a result of a trial.
“THE COURT: All right, is the State in the position to make a showing as to what the evidence in this case would be?
“MR. IGOU: I believe so, Your Honor. Judge, the State would expect to show, through its witnesses and testimony in evidence, that some meetings occurred prior to July, or prior to, at least, July 13, 1979, between Mr. Yamada and some of his associates and Mr. W.R. Inman of Higdon, Alabama, Jackson County, Alabama, and his associates regarding some coal property, and we expect to show that an agreement was reached for the payment of $75,000 to Mr. Inman and/or his associates for a coal mine which was in existence at that time. We expect to show that on or about the 13th of July, 1979, that the defendant called Mr. In-man and said he had his money, and that he was at the Atlanta Airport and he would call later to make arrangements to deliver the money. We expect to show that there was a meeting on the next day arranged, and it was at the office of Mr. Morris Beck, Mr. W.M. Beck, Sr.’s son and law partner. That that meeting was held the next day and that the witness, Mr. Inman, was offered less than the $75,000 agreed upon consideration, and that he refused that offer and said that there was no deal at that time. We expect to show also that on or about the 13th of July, 1979, that Mr. Yamada and an associate of his at that time, one George Hambert, went to the Northeast State Bank at Henager, here in DeKalb County; that Mr. Yamada had in his possession at that time a $75,000 cashier’s check. Furthermore, we expect to show that he deposited this check with the endorsement of W.R. Inman on the check to a new account that was opened by Mr. Yamada and Mr. Hambert, in the name of Midnight Coal Company. We expect to show further that Mr. Inman will testify that he never endorsed that check and he did not endorse anyone, or did not authorize anyone to endorse his name on the check. We expect to show that Mr. Yamada made the statement, or made a statement, under the proper Miranda warning, to the fact that he did sign the name, W.R. Inman, on the check. Further, we would expect to show that on or about the 15th of July, the Northeast State Bank from the account of Midnight Coal Company; that one cashier’s check was made payable to Mrs. Yamada, Shelia Yamada, in the amount of $10,000, and was later deposited to her own account at Central Bank of Alabama, in Fort Payne, and another cashier’s check drawn on that account was made payable to Mr. Jimmy Lindsey, the Clerk of the Court, here in DeKalb County, for payment of an action which Mr. Yamada owed the Court; and the third check was in the amount of $4,000, and it went to Mr. George Hambert, and on July 16 it was deposited to his account in Central Bank, and on the same day he wrote a check to Mrs. Yamada in the amount of $4,000, and on that date Mrs. Yamada paid some $13,600 to a real estate firm here in Fort Payne. That basically, is what the State expects to show.”

From this, the trial court found a basis to support the guilty plea, entered a judgment of conviction and sentenced the defendant as stated above.

The issue, therefore, becomes whether a factual basis for a guilty plea may be established by the District Attorney’s assertions of what he expects the evidence to show. The Court of Criminal Appeals held that the State must present “legal evidence,” but the State alleges that a factual basis may come from several sources. United States v. King, 604 F.2d 411 (5th Cir.1979). See also, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the United States Supreme Court held that a factual basis was required for the trial court to accept a guilty plea. While evidence was taken from witnesses in Alford, the Court made no statement that it was required that such evidence be taken as “legal evidence.” The Court stated:

“Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

400 U.S. at 37, 91 S.Ct. at 167. The Court of Criminal Appeals recently followed that holding in Young v. State, 408 So.2d 199 (Ala.Cr.App.1981), in which it stated:

“Where the offense is simple and the charge is quite specific, even Rule 11(f), requiring that the judge determine that there is a reasonable basis for the plea, may be satisfied by the reading of the charge. Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980).
“In order to insure that a guilty plea is made knowingly and intelligently, it is not necessary that the factual basis of the plea be established through the statements of the defendant where there is other information before the trial judge from which he can make this determination. An accused may plead guilty without admitting the acts of the crime if he intelligently concludes that his interest so requires and the record strongly evidences guilt.”

408 So.2d at 201.

Likewise, in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), it was observed:

“On June 16, 1969, petitioner accordingly withdrew his plea of not guilty and entered a plea of guilty to the lesser charge. Petitioner represented to the sentencing judge that the plea was voluntary and that the facts of the case, as described by the Assistant District Attorney, were true. The court accepted the plea and set a date for sentencing.”

404 U.S. at 258, 92 S.Ct. at 497. While the conviction in that case was overturned, it was because of a failure to uphold a plea bargaining agreement, not because of the method by which the District Attorney presented his “evidence.”

A case more factually similar to this one is United States v. King, 604 F.2d 411 (5th Cir.1979). In that case, the defendant claimed that the court erred by not addressing him in determining whether a factual basis existed. The court, while holding that the defendant was addressed, specifically held that “As long as the factual basis is developed on the record, it may come from several sourced’ (emphasis supplied). The record, as shown in footnote 1 of the opinion in King, clearly indicates that the prosecutor showed what he expected the evidence to prove. The trial court accepted that showing and the sentence was pronounced.

It is apparent that the defendant in this case voluntarily and understandingly entered his plea of guilty. It thus becomes conclusive of his guilt. Knowles v. State, 280 Ala. 406, 194 So.2d 562, cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967); Camp v. State, 359 So.2d 1187 (Ala.Cr.App.1978). Such a plea “serves as a stipulation that no proof by the prosecution need be advanced, except as expressly provided by statute, and it supplies both evidence and verdict, thereby ending the controversy.” Albright v. State, 50 Ala.App. 480, 484, 280 So.2d 186, cert. denied, 291 Ala. 771, 280 So.2d 191 (1973). A guilty plea is an admission of all the elements of the offense charged. Barnes v. State, 354 So.2d 343 (Ala.Cr.App.1978).

In this case it is clear that Yama-da voluntarily and understandingly entered his plea of guilty, finding it in his best interests to do so, and the mere fact that he denied any criminal intent is insufficient to override such a guilty plea. We likewise hold that a factual basis for accepting a guilty plea may be established by several sources, including a prosecuting attorney’s assertions of what he expects the evidence to show. For these reasons, the decision of the Court of Criminal Appeals is reversed and the cause remanded.

REVERSED AND REMANDED.

FAULKNER, ALMON, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.