author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Robert Eric LADD v. STATE.
    6 Div. 680.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.
    Rehearing Denied Dec. 28, 1982.
    Certiorari Denied Feb. 25, 1983 Alabama Supreme Court 82-344.

      J.T. Simonetti, Jr., Birmingham, for appellant.
    Charles A. Graddiek, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of robbery in the first degree. Thereafter, a proceeding was conducted under the Habitual Felony Offenders Act, which, after proof of his previous commission and conviction of three felonies, resulted in the court’s imposition of a sentence of imprisonment for life without parole. This, according to Alabama Criminal Code, § 13A-5-9(c)(S), when considered with § 13A-8-41(c), was the only punishment that could have been legally imposed upon defendant.

There was positive eyewitness testimony that defendant was one of two robbers who, about eight or nine P.M. on July 28, 1980, came into Zippy Mart on Lomb Avenue in Southwest Birmingham and, that while defendant was pointing a pistol at one of the employees of the convenience store, he ordered her “to get on the floor” and to “give him the money out of the cash drawer,” which she did. Defendant did not testify in the case, and no witness testified in his behalf. There is no contention on appeal to the effect that the evidence was not sufficient to sustain the verdict and judgment, and we find no reasonable basis for such a contention.

Only two contentions are made on appeal, which we now discuss.

Appellant urges that his “conviction should be voided because there was no probable cause to arrest him.” We find that appellant is not thereby referring to any arrest of defendant for the robbery for which he was convicted in the instant case. Appellant’s counsel is referring to appellant’s arrest for another robbery, which robbery was committed the afternoon of July 28, 1980, approximately eight hours before the robbery in the case now under consideration. Defendant was not arrested for the first robbery until after the robbery now under consideration. After he was arrested and placed in jail for the first robbery, a lineup transpired, at which he was identified by the eyewitness in the present case as one of the two robbers who had robbed her. Appellant’s attorney ingeniously argues that the arrest for the first robbery, which seemingly was originally without a warrant, was without probable cause and that such asserted illegal arrest renders inadmissible any evidence as to a lineup identification by the eyewitness in this case while defendant was still in jail by reason of such arrest. Without consideration of any collateral problem that could be presented as to appellant’s interesting contention, we proceed directly to a determination of it. The question under consideration was raised in the trial court in connection with defendant’s motion to suppress testimony as to the identification of defendant as one of the robbers. It was stipulated by the parties that the testimony of Birmingham Police Officer William Patterson as to the arrest of this appellant as one of those accused of the other robbery would be considered as evidence in this case. The testimony of Officer Patterson was taken in the case in which the appellant herein was convicted of the other robbery, from which an appeal was taken and the judgment of the trial court affirmed without an opinion in Ladd v. State, Ala.Cr.App., 6 Div. 554, on June 30, 1981, about twenty days after appellant was sentenced in the case sub judice.

In a companion case to that of Ladd v. State, supra, Johnson v. State, Ala.Cr.App., 406 So.2d 446 (1981), appellant raised the issue as to whether the conduct of law enforcement officers on patrol in stopping the automobile near the scene of the reported robbery, observing a pistol near one of the three occupants of the automobile, searching the automobile, finding “evidence of the robbery on one of the passengers, along with another pistol,” after receiving details of the robbery, all without a warrant, met constitutional requirements of a warrantless search of the vehicle and each of the occupants. It was held therein that it did, and that the incriminating evidence found on the robbers and in the automobile was admissible in evidence against the defendant and that the motion in the trial court to suppress such evidence was properly denied. In the opinion in Johnson v. State, there is a review of controlling authorities on the subject, as well as the following concise summary of the pertinent facts:

“A review of the evidence reveals that Officer Patterson had the following facts before him when he stopped the appellant’s car: (1) A robbery had just been committed, (2) He had observed the appellant’s car a short distance from the store and only moments after the radio dispatch concerning the robbery had been received, (3) The appellant’s car was the only vehicle on the road at the time he observed it, and (4) immediately prior to stopping the appellant’s car, he had seen several people near the store pointing in the direction of the appellant’s car.”

The opinion in Johnson, by Judge Bookout, also shows that a prompt showup followed the search and seizure, at which “the clerk identified the robbers and the items taken.” The rationale of Johnson v. State is controlling here as to whether there was probable cause for the arrest of this appellant. The motion to suppress evidence as to the lineup identification of the appellant herein as one of the robbers in the instant case, on the sole ground that his arrest and incarceration in the other case was illegal, is not supported by the facts. Whether otherwise deficient or not, the motion was properly denied.

Appellant’s only other contention for reversal is thus stated in his brief:

“Appellant continues to assert that, because of the mention of his name in the presence of certain members of the ve-nire who sat in a case that had concluded the previous day, the jury venire was tainted and such requires reversal of the trial court’s judgment. The trial judge’s attempt to exclude those members of the venire had no curative effect.”

In the early stage of the proceeding after this case was called for trial, and before a panel of jurors from whom the jury was to be selected had been brought to the courtroom, the following occurred:

“THE COURT: I told Mr. Sullivan [defendant’s attorney on the trial, not his attorney on appeal] this but I want to tell it in the presence of Mr. Ladd. We have just finished trying a robbery case involving a Johnson.
“MR. BOUDREAUX [prosecuting attorney]: Matthew Charles Johnson.
“THE COURT: Matthew Charles Johnson. The jury found him guilty of robbery in the first degree. In the course of that trial — not on 'the voir dire of the jurors, it wouldn’t come up there, in the course of that trial the name of Ladd was mentioned several times as being one of the three, one of the three robbers. He was never identified and was not charged with this robbery. It went on and finished. To make sure that those jurors who heard the name of Ladd, and I assume if Ladd came down here right now, like he is, they might connect him even though he wasn’t charged. His name was used in a lineup and so on. To make sure that they wouldn’t be involved at all I excused them to 10:30 this morning. Their cards are not in the box. I’m holding their cards. That’s why I wanted to get my 27 jurors out of the jury assembly now, so when the jurors came in there would be no discussion. The name of Ladd wasn’t that significant. To make real sure I told them not to come in until 10:30. That’s why I’ve got the box now so there will be no mixup. I thought I would put that on the record to make sure everyone understands that.
“MR. SULLIVAN: Judge, we would enter a formal objection to proceeding with the trial at this time. It would be our contention that the jury venire has been contaminated by that fact, plus the fact the other co-defendants are presently being tried and juries have been struck in those cases.
“THE COURT: When this jury returned a verdict it was late yesterday afternoon. They went straight home. They never did return to the jury assembly room. I don’t know what time that was — it was about a quarter of 5. Anyway, the jury assembly was locked. I called the bailiff to find out about trying to get the box early and he was already gone. Lidge is also being tried in Judge Nice’s court, right?
“MR. SULLIVAN: Yes, sir.
“THE COURT: Is Lidge involved, in this particular robbery?
“MR. SULLIVAN: Yes, sir, he is the co-defendant in this particular robbery. “THE COURT: Well, of course, that jury is in the process of trying that case. They aren’t running into this problem. The jury that tried this, Lidge was also named in the case I tried yesterday as a co-defendant. I think he is a co-defendant in the same robbery.
“MR. SULLIVAN: Yes, sir.
“THE COURT: Is he a co-defendant in this particular robbery?
“MR. SULLIVAN: Willie Lidge is in this robbery. Johnson is not in this robbery. “THE COURT: I heard your objections. I’ll overrule them. The time your name was mentioned, you were in a lineup that Johnson was in. They didn’t identify you. You were just one of the people in the lineup. They identified Lidge and Johnson, but no one identified you. But you were in the lineup. That’s how your name got in the case. I guess you were over there with someone else — for something else. That’s where they got the lineup people.”

Thereupon, the panel of jurors from whom the jurors in this case were selected by the process of striking were brought into the courtroom, and the trial jury was selected without any further reference to the matter contained in that part of the transcript quoted above.

By objecting “to proceeding with the trial at this time” on the ground that the jury venire had been contaminated by what had just been disclosed, defendant and his counsel were placed in the same position as if they had moved that the jury venire be quashed on such ground. Although there was some danger that some of the panel of jurors from whom the jury was to be selected to try the case could have heard, in and about the courthouse, some remark pertaining to this case, or to the appellant, that would have been prejudicial to him, we think the action of the trial judge, in deleting the names of the jurors in the other case from the list of jurors from which the jury was selected to try this case, removed any serious doubt as to their having thereby been protected against contamination by the references that had been made to appellant in the case over which the same trial judge had presided the day before. Even if there was some danger of contamination, the governing principle is thus stated by Judge Bowen in Cole v. State, Ala.Cr.App., 352 So.2d 17, 19 (1977), writ denied, 352 So.2d 20:

“The trial judge acted properly in overruling the motion to strike the entire jury venire. A challenge to the array or a motion to quash or strike the venire will not be sustained unless it is alleged and proved that the whole venire is tainted with prejudice. Nickerson v. State, 283 Ala. 387, 217 So.2d 536 (1969); Junior v. State, 47 Ala.App. 518, 257 So.2d 844, cert. denied, 288 Ala. 744, 257 So.2d 852, cert. denied, 407 U.S. 923, 92 S.Ct. 2473, 32 L.Ed.2d 810 (1971); Lane v. State, 40 Ala.App. 174, 109 So.2d 758 (1959); Burton v. State, 194 Ala. 2, 69 So. 913 (1915). The objection goes to the individual jurymen and not to the whole venire or panel”

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

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Danny Eugene MOULDS v. STATE.
    6 Div. 655.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    Rehearing Denied Feb. 1, 1988.

      George C. Lucas, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Appellant was indicted and convicted under Alabama Code § 13A-5-31(a)(2) (Supp. 1977) for robbery or attempts thereof when the victim is intentionally killed. His punishment was fixed at life imprisonment without parole.

The sufficiency of the State’s evidence is not raised on appeal. Therefore, a lengthy recital of the facts is unnecessary. Briefly stated, Ms. Gail Nix, the victim was abducted by appellant around 7:18 p.m. on February 12,1979, at the Green Springs branch of the First National Bank of Birmingham. The victim had just made a ten-dollar withdrawal from her checking account by using her “William Teller” card at the bank’s automatic teller system. Bank records demonstrated that Ms. Nix’s “William Teller” card was used twice more during the next two hours. Eighty dollars was withdrawn from Ms. Nix’s checking account at the Century Plaza branch at 8:46 p.m. and ten dollars was withdrawn at the Center Point branch at 9:13 p.m.

Charles Edward Vanderford, who was with appellant when Ms. Nix was abducted, and appellant’s wife, Christine Moulds, also used the victim’s credit cards to purchase clothing at Penney’s and Zayre’s department stores that night. After making the clothing purchases, Vanderford and Mrs. Moulds returned to appellant’s residence where they met appellant and the victim.

Appellant removed certain rings the victim was wearing, took her back to her car and instructed Vanderford and his wife to “follow him.” Appellant drove the victim to the Graysville area on Highway 78, pulled off the side of the road and summarily shot her in the back of the neck with his pistol. Appellant later admitted to State witness George Curtis Burnett, Jr. that the victim “was sitting there begging me for her life” and “I blew her brains out.”

I

Appellant’s motion for change of venue was properly denied by the trial court. The trial court conducted an extensive voir dire examination of the prospective jurors and ascertained that many of the jurors had read about the case in the newspaper or had seen something about the case on television. When these prospective jurors were questioned further, individually, in the trial court’s chambers, a large majority of the jurors stated that they could not remember any of the details about the pretrial publicity and that the publicity would not influence their verdict. The few prospective jurors who felt that the pretrial publicity would influence them were successfully challenged for cause. We have carefully reviewed this matter and find no error in the trial court’s ruling. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

The granting of an accused’s motion for change of venue rests within the sound discretion of the trial court and its ruling thereon will not be disturbed except for gross abuse. Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Burnett v. State, 350 So.2d 718 (Ala.Cr.App.1977). As this court stated in Anderson v. State, 362 So.2d 1296, 1298-1299 (Ala.Cr.App.1978):

“Section 15-2-20, Code of Alabama 1975, authorizes a defendant to have his trial removed to another county if he cannot receive a fair and impartial trial in the county in which the indictment is found. Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973). However the existence of widespread publicity alone does not indicate that a defendant will not get a fair trial. The law focuses on the impartiality of the trial jury. Turk v. State, 348 So.2d 878 (Ala.Cr.App.1977); Mathis v. State, 52 Ala.App. 668, 296 So.2d 755, cert. quashed, 292 Ala. 732, 296 So.2d 764 (1973), cert. denied, 419 U.S. 1106, 95 S.Ct. 777, 42 L.Ed.2d 802 (1975). Actual prejudice directed toward the accused resulting from the extensive publicity must be shown. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835 (1974), cert. denied, 293 Ala. 745, 309 So.2d 844 (1975); Annotation, 33 A.L.R.3d 17 (1970).
“On motion for a change of venue in a criminal case, the defendant has the burden of showing, to the reasonable satisfaction of the court, that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Boutwell v. State, 279 Ala. 176, 183 So.2d 774 (1966); Godau v. State, 179 Ala. 27, 60 So. 908 (1913).
“Newspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).
“Except in the situation where there is a showing of ‘inherently prejudicial publicity which has so saturated the community, as to have a probable impact upon the prospective jurors’, the trial court’s primary responsibility in dealing with allegedly prejudicial pretrial publicity is whether, as a result of such publicity, it is reasonably unlikely that the defendant can secure a fair and impartial trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); United States v. Jones, 542 F.2d 186 (4th Cir.1976); McWilliams v. United States, 394 F.2d 41 (8th Cir.1968).
“In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), the United States Supreme Court recognized that:
“ ‘Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
“ ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption Of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
“ ‘At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’
“Recently the Supreme Court affirmed the principles expressed in Murphy.
“ ‘Petitioner’s argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But under Murphy, extensive knowledge in the community of neither the crimes nor the putative criminal is sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a trial atmosphere utterly corrupted by press coverage.’ Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977).
“The proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.”

Applying the foregoing principles of law to the facts in this case, we find that the jury was impartial and adhered to its sworn duty to base its verdict upon the evidence adduced and the law as explained in the court’s instruction. Bowen v. State, 274 Ala. 66, 145 So.2d 421 (1962); Anderson, supra. The fact that jurors knew of the case did not establish that at the time of empaneling they were biased against the defendant where they swore that their knowledge would not affect their judgment. Hale v. United States, 435 F.2d 737 (5th Cir.1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). Absent inherently prejudicial publicity which has so saturated the community as to have a probable impact upon the prospective jurors, there must be some showing of a connection between the publicity generated by the news articles, radio and television broadcasts, and the existence of actual jury prejudice. Anderson, supra.

II

The trial court did not abuse its discretion by requiring the prosecutor and defense counsel to begin striking the jury after both sides had been given approximately one hour to review the prospective juror lists. From the record we find the following:

“THE COURT: All right, Larry, we have got to get this jury, we can’t just keep them sitting.
“MR. SHEFFIELD: I know that, Judge, and I’m not holding it up, but we just got the thing, we haven’t even had time to look at it. I want the record to show that at the time we are being, I presume it’s ordered, to strike this jury, that we have just got our strike lists in order and have not had time to study the jurors and study our notes as to the desirability of the jury and we do not feel that we are at this time adequately prepared or in anywise ready to strike the jury, and we object to being forced to strike a jury at this time due to the fact that we are unprepared to do so.
“THE COURT: Well, as far as your being forced, I’m not forcing anyone to strike in a certain fashion but both sides have had approximately an hour to go over the lists. That was done, and as a matter of fact, I originally gave thirty minutes and I have extended it for an additional thirty minutes and during that period of time I went back out and reseated the jury, reidentified them as to location as to where they were actually seated so I feel like the additional thirty minutes of time offered by the Court for the selection of the jury is ample at this time so I am going to overrule your motion.”

The conduct of a trial rests squarely in the discretion of the presiding judge and unless it clearly appears that there had been an abuse of discretion the appellate courts will not interfere. Roberts v. State, 338 So.2d 466, 472 (Ala.Cr.App.1976) and authorities cited therein.

Ill

The trial court did not abuse its discretion in having the witness Vanderford declared a court’s witness, or in effect a witness adverse to the prosecution, when it became apparent that Vanderford was reluctant to testify.

Vanderford was initially called by the State. He had been previously convicted and sentenced as a juvenile for his participation in the crime. He had also made prior statements to the prosecution incriminating appellant and had testified at appellant’s preliminary hearing. When Vander-ford demonstrated a sudden reluctance to testify, the prosecution claimed “surprise” and requested the trial court to declare Vanderford a hostile witness. After further attempts to refresh Vanderford’s recollection failed, Vanderford was declared a court’s witness subject “to cross-examination by either party.” This ruling was proper.

Our Supreme Court in Kissic v. State, 266 Ala. 71, 94 So.2d 202, 205 (1957), quoting from Anderson v. State, 35 Ala.App. 111, 44 So.2d 266 (1950), observed:

“It is within the sound discretion of a trial judge, in the interest of truth and justice, to call to the stand and examine, or permit to be examined by both parties, any witness who may be able to shed light upon the issues, the court being careful to preserve an attitude of impartiality.”

Further, in McCullough v. State, 40 Ala. App. 309, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912 (1959), a request by the State to have the court call an apparently reluctant witness was held to be a matter addressed to the sound discretion of the trial court. Lawrence v. State, 57 Ala. App. 639, 331 So.2d 284 (1976).

This court recognized in Lawrence, supra, the following rule regarding adverse witnesses:

“ ‘In a number of instances the propriety of the court’s action in calling as its own witnesses persons who were personally present at the transaction forming the basis of the prosecution, or whose testimony was material to the issues in the case, has been upheld under the facts and circumstances shown. In some instances, accomplices and co-indictees have been held properly called as court’s witnesses, and the propriety of the trial court’s making a witness its own after the latter had commenced to testify as a witness of the prosecution, has occasionally been recognized.’ ” 331 So.2d at 287.

The practical effect of characterizing a witness as “adverse” or “hostile” merely allows the party calling that witness to consider him as the witness of his opponent for purposes of examination. This allows the party to examine the witness by use of the tools available on cross-examination, including contradition and impeachment. Anderton v. State, 390 So.2d 1083 (Ala.Cr.App.), cert. denied, 390 So.2d 1087 (Ala.1980). Therefore, the application of this rule must be guided by the sound discretion of the trial judge. Anderton, supra.

IV

The appellant’s Sixth Amendment right to confront witnesses was not violated by the prosecution’s use of Vanderford’s prior statements and testimony at appellant’s preliminary hearing in questioning Vanderford.

Those principles announced in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), cited by appellant, are inapplicable to the facts in this case, because Vanderford was subjected to a rigorous and thorough cross-examination by defense counsel. Although Vanderford attempted to invoke his privilege against self-incrimination, the trial court, finding that Vanderford had already been convicted and was “not subject to prosecution for any matters that occurred,” instructed Vander-ford to answer the questions under penalty of contempt. Vanderford, with counsel present, then complied. The examination of Vanderford by the prosecution and the defense was extensive. Vanderford’s prior statements and testimony at appellant’s preliminary hearing, as well as Vander-ford’s present recollection of what transpired when the victim was killed, were carefully scrutinized by both sides.

The facts in this case are markedly similar to those in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). In that case it was held that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and is subject to full and effective cross-examination. 399 U.S. at 158, 90 S.Ct. at 1935.

“[T]he Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.” 399 U.S. at 164, 90 S.Ct. at 1938.

It was further held in California v. Green, supra, that even had there been an absence of opportunity for full cross-examination of the witness (Porter) at trial, the admission into evidence of the preliminary hearing testimony would not violate the Constitution.

“We also think that Porter’s preliminary hearing testimony was admissible as far as the Constitution is concerned wholly apart from the question of whether respondent had an effective opportunity for confrontation at the subsequent trial. For Porter’s statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel — the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter’s statement would, we think, have been admissible at trial even in Porter’s absence if Porter had been actually unavailable, despite good-faith efforts of the State to produce him. That being the case, we do not think a different result should follow where the witness is actually produced.
“This Court long ago held that admitting the prior testimony of an unavailable witness does not violate the Confrontation Clause. Mattox v. United States, 156 U.S. 237 [15 S.Ct. 337, 39 L.Ed. 409] (1895). That case involved testimony given at the defendant’s first trial by a witness who had died by the time of the second trial, but we do not find the instant preliminary hearing significantly different from an actual trial to warrant distinguishing the two cases for purposes of the Confrontation Clause....
“... It may be that the rules of evidence applicable in state or federal courts would restrict resort to prior sworn testimony where the declarant is present at the trial. But as a constitutional matter, it is untenable to construe the Confrontation Clause to permit the use of prior testimony to prove the State’s case where the declarant never appears, but to bar that testimony where the declarant is present at the trial, exposed to the defendant and the trier of fact, and subject to cross-examination. As in the case where the witness is physically unproducible, the State here has made every effort to introduce its evidence through the live testimony of the witness; it produced Porter at trial, swore him as a witness, and tendered him for cross-examination. Whether Porter then testified in a manner consistent or inconsistent with his preliminary hearing testimony, claimed a loss of memory, claimed his privilege against compulsory self-incrimination, or simply refused to answer, nothing in the Confrontation Clause prohibited the State from also relying on his prior testimony to prove its case against Green.” 399 U.S. at 165-168, 90 S.Ct. at 1938-1940.

In applying the foregoing principles of law from California v. Green, supra, to the facts in this case, we find that appellant’s Sixth Amendment right to confront Van-derford was not violated.

V

Appellant next contends that Van-derford should not have been required to testify after attempting to invoke his Fifth Amendment privilege against self-incrimination because his testimony may have placed him in jeopardy of being charged with perjury. This argument fails because appellant does not have standing to assert Vanderford’s Fifth Amendment rights.

“[T]he Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial.” United States v. Nobles, 422 U.S. 225, 234, 95 S.Ct. 2160, 2168, 45 L.Ed.2d 141 (1975). The Fifth Amendment “privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him.” Nobles, 422 U.S. at 233, 95 S.Ct. at 2167. In any event, the Fifth Amendment privilege against compulsory self-incrimination provides no protection for the commission of perjury. United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980).

VI

Appellant maintains that the trial court erred in not allowing him to attempt to impeach Vanderford with a tape recorded statement made to defense counsel.

It is noted that a proper predicate was not established for the admission of the tape recorded statement. See Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858 (1969). A magnetic tape recording may be used in evidence when it is of matter otherwise legal, and provided that proper safeguards are shown to have been used so as to protect the recording against error or spoliation and the speakers recorded are properly identified and adequate safeguards are taken to insure authenticity. Fikes v. State, 263 Ala. 89, 81 So.2d 303, 311 (1955), rev’d on other grounds, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957). As this court stated in Voudrie v. State, 387 So.2d 248 (Ala.Cr.App.), cert. denied, 387 So.2d 256 (Ala.1980):

“The rules for testing the admissibility of recordings have been outlined as follows: “ ‘(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.’ 58 A.L.R.2d at 1027-8.
“Thus not only is a proper request necessary but a proper predicate is necessary before a sound recording can be admitted into evidence.”

The admission of tape recordings into evidence is within the sound discretion of the trial judge. Bufford v. State, 382 So.2d 1162 (Ala.Cr.App.) cert. denied, 382 So.2d 1175 (Ala.1980), rev’d on other grounds, 399 So.2d 894 (Ala.Cr.App.1981). Since Vanderford’s taped conversation was not properly authenticated, we find no abuse in the trial court’s exercise of its discretion on this issue.

Moreover, defense counsel, in his efforts to impeach Vanderford, asked several questions concerning the contents of the taped conversation which the witness answered. There was no indication by defense counsel that Vanderford’s testimony in this regard was any different than the taped conversation. Therefore, even if the tapes were erroneously excluded, which they were not, it would have been harmless.

VI

During the cross-examination of Sergeant James Earl Smith of the Jefferson County Sheriff’s Department, who was present when appellant was arrested, the following exchange occurred:

“Q. Okay, now let me ask you this: When he was arrested, did Danny make any statement to you, at the time now when he was just actually taken into custody?
“A. Well, yes, he did.
“Q. Do you recall what it was?
“MR. BARBER: We object, may it please the Court.
“THE COURT: Sustain.”

Appellant maintains that he made a spontaneous declaration, “This has got to be a frame up,” at the time of his arrest and that this evidence should have been presented to the jury.

While the trial court’s reasoning for its ruling is not shown, we hold that the ruling resulted in harmless error at most. After an examination of the entire cause it is our opinion that the rejection from evidence of appellant’s alleged statement, “This has got to be a frame up,” did not injuriously affect his substantial rights. Rule 45, ARAP.

Having found no error prejudicial to appellant’s substantial rights, the judgment by the Jefferson Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . Our review of this case is not governed by Rule 45A, Alabama Rules of Appellate Procedure, the “plain error” rule, because there was no imposition of the death penalty. Owen v. State, 418 So.2d 214 (Ala.Cr.App.1982); Graham v. State, 403 So.2d 275 (Ala.Cr.App.1980), cert. denied, 403 So.2d 286 (Ala.1981).


author: BOWEN, Judge.

text:
    STATE of Alabama v. Robin Jean MILLER.
    3 Div. 666.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.

      Joseph G.L. Marston, III, Asst. Atty. Gen., for appellant.
    C. Michael Mclnnish, Montgomery, for appellee. (No brief filed).
   BOWEN, Judge.

Pursuant to Alabama Code Section 12-12-72 (1975), the District Court of Montgomery certified the following question of law as the basis of this appeal:

“Does Act No. 82-850, passed by the Alabama State Legislature in the third Special Session of 1982 violate Section 125 of the Alabama Constitution of 1901, thereby rendering said act null, void and invalid?”

Act. No. 850 (August 22, 1982), 1982 Ala. Acts, attempted to amend Alabama Code Sections 12-15-1, -30, -33 and -34 relating to juvenile court proceedings. That act was one of many included in what has commonly been referred to as “the Governor’s Crime Package.”

On authority of State v. Eley, 423 So.2d 303 (Ala.Crim.App.1982), cert. denied, 423 So.2d 305 (Ala.1982), we hold that Act No. 82-850 is unconstitutional in that it was not properly deposited with the Secretary of State as required by Section 125 of the Alabama Constitution of 1901 and therefore never became law.

The judgment of the district court is affirmed.

AFFIRMED.

All Judges concur.


text:
    William Aston PALMER v. STATE.
    5 Div. 701.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.

      Frank W. Riggs, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the unlawful possession of cocaine in violation of Alabama Code Section 20-2-70 (1975). He was sentenced as a second time offender under Section 20-2-76 to a term of 21 years’ imprisonment and fined $5,000. Six issues are raised on appeal.

I

The existence of probable cause was sufficiently established to satisfy the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The basis of knowledge prong was satisfied when the informant told Auburn Police Detective Bart Ingram, Jr. that within the past twenty-four hours he had been to the defendant’s residence and “had seen a fairly large quantity of cocaine, and also had used some over there at that period of time.”

The veracity prong of Aguilar (informant credible or information reliable) was also satisfied. The informant’s statement against penal interest established a substantial basis for crediting his tip based on personal information. United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 2081-82, 29 L.Ed.2d 723 (1971).

Another reason to believe that the informant was credible was because he provided other information that “squared” with Detective Ingram’s prior knowledge of other people involving drug related activities.

II

Although Ingram stated that his informant had only observed cocaine in the defendant’s residence, the warrant authorized a search for “cocaine, ... or any other illegal substances as described under the provisions of the Alabama Uniform Controlled Substances Act.” The defendant argues that this improperly authorized a “general exploratory search.”

General exploratory searches and seizures, with or without a warrant, can never be justified and are forbidden and condemned. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). The specific command of the Fourth Amendment to the Constitution of the United States is that no warrants shall issue except those “particularly describing the ... things to be seized.”

However, the description of things to be seized contained in the warrant under review is not so broad that the authorization constitutes a general exploratory search. Certainly, “an otherwise unobjectionable description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based.” Vonderahe v. Howland, 508 F.2d 364 (9th Cir.1974); W. LaFave, 2 Search and Seizure, Section 4.6, n. 11 (1978) (hereinafter Search).

However, a less precise description is required of property which is, because of its particular character, contraband.

“ ‘If the purpose of the search is to find a specific item of property, it should be so particularly described in the warrant as to preclude the possibility of the officer seizing the wrong property; whereas, on the other hand, if the purpose is to seize not a specific property, but any property of a specified character, which by reason of its character is illicit or contraband, a specific particular description of the property is unnecessary and it may be described generally as to its nature or character.’ ”

2 Search, p. 101, citing People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970).

The fact that there was no probable cause to believe that other controlled substances were within the defendant’s residence does not taint the entire warrant so that nothing seized during the course of the execution of the warrant was admissible. That part of the warrant authorizing a search for “any other illegal substance”, although invalid because not based on probable cause, was severable from that portion of the warrant which authorized a search for cocaine. “(I)t would be harsh medicine indeed if a warrant which was issued on probable cause and which did particularly describe certain items were to be invalidated in toto merely because the affiant and the magistrate erred in seeking and permitting a search for other items as well.” 2 Search, p. 112.

Despite the fact that no probable cause existed to issue a warrant for “any other illegal substances under the Alabama Controlled Substances Act”, the officers were justified in seizing the other controlled substances found in the defendant’s residence under the plain view doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). This is not the situation where the other substances were discovered after the particularly described property in the warrant had been found for the reasons that the police did not know how much cocaine they were searching for or that it would be located in one specific area and because other controlled substances would naturally be found in places where the cocaine could be located. Since the police had a valid warrant to search for one controlled substance in the defendant’s residence, they could properly seize any other article of incriminating character, including other controlled substances, they inadvertently came across in the course of the search. Coolidge. See C. Moylon, The Plain View Doctrine: Unexpected Child Of The Great “Search Incident” Geography Battle, 26 Mercer L.Rev. 1047 (1975). “(I)t is generally the rule that when officers in the course of a bona fide effort to execute a search warrant for narcotics or dangerous drugs discover articles which although not included in the warrant are reasonably identifiable as contraband, they may seize them whether they are in plain sight or come into plain sight subsequently as a result of the officers’ effort.” 28 C.J.S. Drugs And Narcotics Supplement, Section 138 (1974).

III

The defendant argues that under Alabama Code Sections 15-5-5 and -7 (1975) a search warrant must be “directed to the sheriff or to any constable of the county” and can only “be executed by any one of the officers to whom it is directed.” Rivers v. State, 406 So.2d 1021 (Ala.Cr.App.), cert. denied, 406 So.2d 1023 (Ala.1981).

Lee County Deputy Sheriff Gene Spencer was one of the six law enforcement officers who was present when the warrant was executed. Detective Bart Ingram of the Auburn Police Department was in charge of the search and responsible for the collection of evidence. When Ingram knocked on the door of the defendant’s residence, Deputy Spencer was “somewhere on the curtilage of the property.”

The search warrant was issued by a judge of the city Recorder’s Court of Auburn to “any Sheriff, Deputy and/or Municipal Police.”

In Hicks v. State (Ms. 6 Div. 907, December 28, 1982) (Ala.Cr.App.1982), this Court held that Sections 12-14-4 and -32 authorize municipal judges to direct the execution of search warrants to municipal law enforcement officers. That holding does not conflict with Rivers as we explained. Under Hicks, a city police officer, unaccompanied by any sheriff, deputy sheriff or constable, may properly execute a search warrant issued by a municipal judge.

IV

Because the search warrant was issued for a violation of state law, it should have been made returnable “to any state court.” Alabama Code Section 12-14-32 (1975). Return should not have been made to the recorder’s court.

Under our holding in Donovan v. State, 359 So.2d 1181 (Ala.Cr.App.1978), we hold that the fact that the warrant was improperly returned to the municipal judge who issued the search warrant instead of to “any state court” does not invalidate the search warrant that was properly issued and served. The return is merely a ministerial act. Since no prejudice to the defendant is even alleged, we see no need to hold otherwise. We find no reason or cause to invalidate a valid search because of a faulty and subsequent return. 79 C.J.S. Searches and Seizures, Section 84 (1952).

V

It is undisputed that Detective Ingram gained entry into the defendant’s residence by identifying himself as a real estate agent, even though he had a search warrant in his possession.

Detective Ingram testified:

“(W)hat I did was knock on the door for a while. Apparently Mr. Palmer was asleep. When he finally came to the door, I believe I told him I was with Evans Realty, or whoever the realty company was, and asked him if I could come in, I needed to check something. Once I gained entry into the building, I said, ‘I’m actually with the Auburn Police Department, I’m Detective Sergeant Bart Ingram, I’ve got a search warrant.’ ”

The defendant contends that because Detective Ingram did not properly identify himself and announce his purpose before entering the defendant’s residence, he violated Alabama’s “knock and announce” statute, Alabama Code Section 15-5-9 (1975), thereby rendering the search illegal.

An entry obtained by deception or ruse, without the use of any force, is not violative of the knock and announce statute. “The reasoning underlying this conclusion is that the purposes of the notice requirement are not offended by such a practice: there is again no damage to property; there is not an unexpected entry which could result in violence; and there is no invasion of privacy because the occupants were expecting his return (or initial entry).” Search, Section 4.8 at pp. 127-28.

VI

The defendant was properly sentenced to twenty-one years’ imprisonment as a second time offender under Alabama Code Section 20-2-76 (1975) although the indictment did not allege any prior conviction. Luker v. State, 424 So.2d 662 (Ala.Cr.App.1982).

We have answered every issue raised on appeal. The judgment of the circuit court is affirmed.

AFFIRMED.

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

TYSON, J., concurs in result.


author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR, Complainant, v. William E. WHITLOCK, III, Respondent.
    No. 60445.
    Supreme Court of Florida.
    May 27, 1982.
    Rehearing Denied March 10, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Michael C. Whittington and John A. Boggs, Bar Counsels, Tampa, of The Florida Bar, for complainant.
    Richard T. Earle, Jr. of Earle & Earle, St. Petersburg, for respondent.
   PER CURIAM.

We have for review the report and recommendation of the referee in the case of The Florida Bar v. William E. Whitlock, III. Jurisdiction is pursuant to article V, section 15, Florida Constitution.

The report of the referee included the following findings.

As to Count I

1. Respondent, WILLIAM E. WHIT-LOCK III, is and was at all times hereinafter a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

2. Respondent handled a real estate closing in May 1977, concerning Apt. 214, Lodge 15, at Innisbrook at Tarpon Springs, Florida, wherein the purchaser was Mrs. Patricia L. Finck.

3. Mrs. Finck through her New York attorney, David C. Laub, sent Respondent a check for $2,996.47 on or about May 31, 1977, which check was to cover the club initiation fee for Mrs. Finck’s quarterly dues, quarterly maintenance and other items. Respondent was to send Innis-brook $2,787.04.

4. On or about May 31, 1977, Respondent sent a check in the amount of $287.04 to Innisbrook which check was received by Innisbrook and deposited to its account.

5. Innisbrook made numerous contacts with Respondent and his law office employees, including a certified mail letter dated March 1, 1978. Respondent failed to pay Innisbrook the additional $2,500.00 due until April 18,1978 after intervention by The Florida Bar.

6. Respondent claimed that he had sent a $2,500.00 check to the real estate agent handling the sale of the subject condominium on May 31, 1977, but the real estate agent failed to deliver any such check to Innisbrook and Respondent failed to determine this or take any action to correct the situation until April 18, 1978, after intervention by The Florida Bar.

7. From May 1977 through April 1978, Respondent failed to make any reconciliations of his trust account records which reconciliations would have disclosed the alleged outstanding trust account check in the amount of $2,500.00 payable to Innisbrook, which may have been in the hands of the real estate broker.

As to Count II

8. Because of the irregularities in Respondent’s trust account, The Florida Bar engaged James T. Ayers, a Certified Public Accountant, to audit Respondent’s trust account. The audit was commenced on July 31, 1978 and disclosed the following irregularities in the trust account:

(a) There had never been any reconciliation of Respondent’s trust account records.
(b) As of the date of The Florida Bar audit, said trust account was short approximately $20,000.00.
(c) In July 1978, after Respondent had received notice of The Florida Bar audit, a check for $1,210.00 was written by Respondent’s secretary, which was to pay for two months’ rent and a late charge on Respondent’s personal apartment.
(d) Payroll checks for Respondent’s office employees were written on Respondent’s trust account in May and June of 1977.
(e) Checks in the amounts of $1,500.00, $5,000.00, and $7,500.00 were drawn on the trust account and transferred to Respondent’s general office account or to Respondent personally without a pri- or determination of whether earned fees justified such transfers. Such checks were drawn against the trust account when Respondent’s office or Respondent personally needed money.
(f) Real estate closing statements were subject to Respondent’s supervision and, consequently, were prepared incorrectly causing overpayments from the trust account in excess of $7,000.00.
(g) One closing statement was improperly prepared to the extent that a $36,-199.78 check was returned for insufficient funds. The check should have been for $19,263.36.
As to Count III
9. The Florida Bar concluded its audit of Respondent’s trust and general office accounts on February 15, 1979.
10. The final audit revealed an additional shortage of at least $1,437.92, which may have existed in whole or in part at the time of the first audit.
11. On July 31, 1978, the Respondent had agreed to use a new trust account for all transactions after that date but failed to comply with such promise and had not, in fact, audited checks for a new account by February 15, 1979. ■
12. Cost deposits were routinely deposited in and commingled with Respondent’s general office account along with earned fees and other monies belonging to Respondent.
13. Respondent’s records of deposit were inadequate to show the source of such deposits as determined by the audit of February 15, 1979.
14. Overdraft checks were presented for payment 27 times against Respondent’s general office account, # 2-431-7, the Clearwater Oaks Bank, from October 1978 through January 1979.
15. On October 26,1978, less than one week after the account above described was opened, a check for $1,000.00 was presented for payment creating overdraft of $832.15 and Respondent knew or should have known there were insufficient funds on deposit to cover such check.
16. Respondent allowed his non-lawyer employee to manage and control his trust and general accounts without adequate supervision or control by Respondent during the period July 21, 1978 through February 15, 1979.

The referee recommended that respondent be found guilty as to all counts, and that he be disbarred from the practice of law in Florida.

We do not feel that the misconduct in this case, when considered with punishment imposed on other attorneys for similar misconduct, is sufficient to justify disbarment. See, e.g., The Florida Bar v. Bryan, 396 So.2d 165 (Fla.1981); The Florida Bar v. Allen, 355 So.2d 778 (Fla.1978); The Florida Bar v. Blalock, 325 So.2d 401 (Fla.1976); The Florida Bar v. DuBois, 322 So.2d 498 (Fla.1975); The Florida Bar v. Weaver, 279 So.2d 298 (Fla.1973); The Florida Bar v. Pahules, 233 So.2d 130 (Fla.1970).

Furthermore, the record discloses the following facts in mitigation:

1. The $20,000 shortage in Respondent’s Trust Account mentioned in paragraph 8(B) of the Referee’s report was promptly reimbursed when discovered.
2. The $1,437.92 shortage in Respondent’s Trust Account mentioned in paragraph 10 of the Referee’s report was promptly reimbursed.
3. The Respondent’s misconduct caused no economic loss to anyone other than Respondent.
4. Respondent cooperated fully with The Florida Bar in its investigation and audit of his accounts and made all of his books and records available.

We find that in this case a three-year suspension with proper proof of rehabilitation is the proper penalty. Accordingly, William E. Whitlock, III, is hereby suspended from the practice of law for three years and may then be readmitted only upon proper proof of his rehabilitation. The suspension shall be effective June 28, 1982, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. Costs in the amount of $2,421.50 plus any other costs that have been incurred with respect to this proceeding are hereby taxed against the respondent.

It is so ordered.

SUNDBERG, C.J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

In my view, disbarment, as recommended by the referee, is the appropriate discipline for Whitlock’s misconduct.

Whitlock violated Florida Bar Code of Professional Responsibility, Disciplinary Rule 6-101(A)(3) by grossly neglecting the handling of a real estate closing and neglecting the proper handling of his trust account and making unauthorized withdrawals therefrom. He violated Florida Bar Integration Rule, article XI, Rule 11.-02(4) and Florida Bar Code of Professional Responsibility, Disciplinary Rule 9-102(A) by mishandling trust funds entrusted to him and not following procedures provided by Rule 11.02(4). He violated Florida Bar Integration Rule By-laws, article XI, section 5(b), (c), (d) by failing to make reconciliations of his trust account and completely failing to follow the basic requirements of trust account procedures and by commingling his trust funds with his general operating office funds. He violated Florida Bar Code of Professional Responsibility, Disciplinary Rule 9-102(B)(3) by failing to maintain proper trust account records, by drawing against such trust account without proper explanation, and by not rendering appropriate accounts to his clients, particularly insofar as concerned several real estate closings. He violated Florida Bar Code of Professional Responsibility, Disciplinary Rule 1-102(A)(6) when he mishandled his trust account to such an extent that it adversely reflected on his fitness to practice law. He violated Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(2) and 3-104(C) by permitting his secretary to manage and control his trust fund.

Penalties imposed against attorneys who violate the Code of Professional Responsibility should correspond to the seriousness of their offenses and should be severe enough to deter others who might be tempted to engage in similar violations. In assessing the penalty for the misuse of clients’ funds, in The Florida Bar v. Breed, 378 So.2d 783, 785 (Fla.1979), we said:

However, we agree with the referee that misuse of clients’ funds is one of the most serious offenses a lawyer can commit. ... We give notice, however, to the legal profession of this state that henceforth we will not be reluctant to disbar an attorney for this type of offense even though no client is injured.

Applying these standards, I find that in the present case Whitlock should be disbarred.


author: ADKINS, Justice.

text:
    FERRY-MORSE SEED COMPANY, a California Corporation, Plaintiff-Appellee, v. William F. HITCHCOCK, d/b/a Hitchcock Packing House, Defendants-Appellants.
    No. 60722.
    Supreme Court of Florida.
    Jan. 27, 1983.

      Peter L. Dearing of Mahoney, Hadlow & Adams, Jacksonville, for plaintiff-appellee.
    Milton H. Baxley II of Baxley & Jones, Gainesville, for defendants-appellants.
   ADKINS, Justice.

This case comes before us on certification from the United States Court of Appeal, Eleventh Circuit (formerly the Fifth Circuit). Ferry-Morse Seed Co. v. Hitchcock, 644 F.2d 515 (5th Cir.1981). Our jurisdiction vests under article V, section 3(b)(6), Florida Constitution.

Appellant, Hitchcock, defendant in the district trial court, purchased several shipments of vegetable seeds from Ferry-Morse Seed Co., hereinafter Ferry-Morse. The invoices totalled $14,719.34, no part of which was ever paid. Hitchcock planted these seeds in the spring of 1976, in effort to produce various agricultural crops. One of these crops, Gator Green Bean # 15, encountered problems of an undetermined cause. Hitchcock alleged that the beans deteriorated so rapidly after harvest that he was unable to sell them on the fresh vegetable market.

When Hitchcock failed to pay for these seeds Ferry-Morse filed a diversity suit in the United States District Court for the Northern District of Florida to recover the purchase price for the seeds delivered. This suit was filed almost two years after Hitchcock became aware of the alleged seed problem. Hitchcock responded with a general denial, affirmative defense of failure of consideration and a counterclaim for negligence and breach of warranty. Ferry-Morse then moved to strike the counterclaim and affirmative defense, arguing that Hitchcock’s failure to comply with section 578.26(1), Florida Statutes (1977), complaint and notice requirements precluded his bringing legal action. [It remains undisputed that Hitchcock failed to file a complaint with the Florida Department of Agriculture and give notice to Ferry-Morse within ten days after discovering the seed defect as required by the Florida Seed Law, section 578.26(1).] Hitchcock opposed this motion to strike arguing that:

(1) the ten day filing requirement of Section 578.26(1) was not a statute of limitations barring claims of breach of warranty or negligence; and

(2) even if the counterclaims are barred by the statute, he could still raise the alleged defects in the seeds as an affirmative defense of failure of consideration.

A jury trial was then held solely on the issue of Ferry-Morse’s compliance with the Florida Seed Law’s labelling requirement, section 578.09, Florida Statutes (1977). The jury concluded that Ferry-Morse had complied with the statutory labelling requirement. The district court then granted Ferry-Morse judgment on the pleadings and final judgment. Hitchcock appealed to the United States Court of Appeals, Eleventh Circuit, raising for the first time the additional argument of estoppel and waiver. The Court of Appeals certified the following questions to this Court:

When a Florida farmer has purchased seed which he alleges failed to perform as represented by the seller, but the farmer did not file a complaint with the Florida Department of Agriculture within ten days after the defect became apparent although the requirement for filing such a complaint was legibly typed or printed on the analysis label attached to the package of seed when purchased by the farmer, then (1) is said farmer barred from maintaining a legal action for damages against the seller based on theories of negligence or breach of warranty; and (2) is said farmer barred from pleading lack of consideration as a defense in an action by the seller for payment for the allegedly defective seed?
In either case, if such action or defense by the farmer is otherwise barred, is the seller estopped from raising this bar or has the seller waived the bar, if the seller has actual knowledge of the alleged defects in the seed, although such knowledge was not acquired within ten days of the discovery of the defect by the farmer?

644 F.2d 515 at 517.

These certified questions focus upon three major issues: (1) the scope and impact of the Florida Seed Law’s notice requirements; (2) the viability of an affirmative defense of failure of consideration where these notice requirements are not complied with; and (3) the applicability of the estoppel and waiver doctrines in the given situation.

In order to adequately address these three issues we find it necessary to separate the certified questions into three component parts, each discussed below.

QUESTION 1;

By failing to file a complaint with the Florida Department of Agriculture within ten days after defect in the seed became apparent is said farmer barred from maintaining a legal action for damages against the seller based on theories of negligence or breach of warranty?

Hitchcock contends that section 578.-26 administrative complaint requirements should be applicable only to those claims based upon alleged defects in the labelling of the seed and do not compel the filing of a complaint where the farmer’s claim is based upon breach of warranty and negligence. We do not agree.

Hitchcock’s counterclaim provided in pertinent part:

(Count One) Counter-Defendant breached its implied warranty at the time of sale to Plaintiff by mislabeling the variety of seed and as a direct result of said breach of implied warranty the Counter-Plaintiff was caused to lose the fair market value of his bean crop.
(Count Two) As a direct result of Counter-Defendant’s negligence, seeds of a variety different than “Gator Green 15” bean seeds were produced, and were negligently mislabeled and sold as “Gator Green 15” bean seeds to Counter-Plaintiff WILLIAM F. HITCHCOCK d/b/a HITCHCOCK PACKING HOUSE in Ala-chua, Alachua County, Florida.

(Emphasis added). After a thorough examination of both sections 578.09 and 578.26(1) of the Florida Seed Law, the trial court aptly found Hitchcock’s counterclaim to be subject to the Seed Law’s notice requirements, stating:

Section 578.26, Florida Statutes (1977) provides, in pertinent part:
(1) When any farmer is damaged by the failure of agricultural, vegetable, flower or forest tree seed to produce or perform as represented by the label attached to such seed as required by Section 578.09, as a prerequisite to his right to maintain a legal action against the dealer from whom such seed were purchased, such farmer shall make a sworn complaint against such dealer alleging damages sustained and file same with the department within ten days after the defect or violation becomes apparent and send a copy of said complaint to said dealer by United States registered mail; provided that requirement for filing complaint therein set forth appears legibly typed or printed on the analysis label attached to the package containing such seed at the time of purchase by the farmer.
(2) The department shall refer the complaint and the answer thereto to the arbitration council provided in § 578.27, for investigation, findings and recommendation on the matters complained of.
Section 578.09 requires that agricultural seed “sold, offered for sale, exposed for sale or distributed for sale” within the State of Florida “shall bear thereon or have attached thereto” a label containing, inter alia, the “[cjommonly accepted name of kind and variety of each agricultural seed component in excess of five per cent of the whole ...” Fla.Stat. § 578.-09(2)(a).
When these two sections of the statute are considered together, it becomes apparent that a claim of damage due to variance in variety is encompassed within a failure of agricultural seed “to produce or perform as represented by the label attached to such seed as required by Section 578.09 ...”

Ferry-Morse Seed Company v. Hitchcock, GCA No. 78-0033, Slip op. at 2 (N.D.Fla. Sept. 18, 1979) (emphasis added).

Section 578.09 of the Florida Seed Law requires that the variety of the seeds be correctly identified on the package label. Although Hitchcock’s causes of action are not specifically framed in “violation of the labelling requirement” language, both his negligence and breach of warranty claims allege incorrect identification of seed variety. One cannot avoid the impact of a law by mere word choice. Whether couched in terms of negligent mislabelling, intentional mislabelling, or breach of warranty through mislabelling, Hitchcock’s claim is inextricably bound to section 578.09 labelling requirements and in turn must comply with the statutory conditions imposed on those bringing actions based on that section of the statute.

In order to assert a statutory cause of action, the claimant must comply with all valid condition precedents; for an action cannot be properly commenced until all essential elements of the cause of action are present. 1 Fla.Jur.2d Actions § 30 (1977). The right to recover against the seed dealer is conditioned upon the aggrieved farmer’s compliance with the administrative complaint and notice requirements of section 578.26(1). For reasons unclear to this Court, Hitchcock chose to disregard these notice requirements. Moreover, Hitchcock’s actions fail to evidence any substantial attempt to comply with these conditions.

We find that Hitchcock’s cause of action rested solely upon alleged violations of the Florida Seed Law’s labelling requirements. By failing to comply with the statutory notice requirements Hitchcock is barred from bringing action for damages against the seed merchant, notwithstanding his couching the claim in terms of negligence or breach of warranty.

QUESTION 2:

Is said farmer barred from pleading lack of consideration as a defense in an action by the seller for payment for the allegedly defective seed?

Ferry-Morse contends that the purpose of the Florida Seed Law would be emasculated if the affirmative defense of failure of consideration was allowed to operate where the party raising this defense failed to comply with the statute’s complaint and notice requirements. We do not agree.

This Court, in Finlayson v. Conner, 167 So.2d 569, 573 (Fla.1964), determined that:

The obvious purpose of the “Florida seed law,” and particularly those provisions that deal with the sale of cleaned, processed, packaged and labeled seed, is the improvement of the quality of such seed and the protection of the public against fraud in the sale thereof. The purposes of the seed law are enforced primarily through the inspection services rendered by the State through the Department of Agriculture.

(Emphasis added). While the Florida Seed Law serves to assist in the resolution of disputes among farmers and seed dealers, the bottom line is that the statute was established to protect the farmer. See Harl, Agricultural Law, State Regulation of Agriculture, vol. 12, § 114.05(1). Accordingly, the Florida Seed Law should not be construed to prevent a farmer from raising a viable defense to a contractual claim brought by the seed dealer, Ferry-Morse fails to recognize that the right to raise the affirmative defense does not automatically establish this defense. The burden of proof remains on the party raising the defense and he must persuade the jury, by a preponderance of the evidence, that there was a failure of consideration. See Captain’s Table, Inc. v. Khouri, 208 So.2d 677, 679 (Fla. 4th DCA 1968).

Agricultural produce, by its very nature, is subject to rapid deterioration. In order to establish the requisite proof of failure of consideration it may well have been wise for Hitchcock to make a timely investigation and report of the alleged problem. However, where a farmer does not comply with the Florida Seed Law’s notice requirements he should not be absolutely prohibited from raising failure of consideration as an affirmative defense. Section 578.26(1), Florida Statutes (1977), establishes the proper procedure under which a farmer may bring an action against the seed dealer for problems arising in the seed. It does not provide an obligatory method by which the farmer must defend himself. There are many reasons why a farmer might forego bringing action against the seed merchant. Perhaps the farmer finds judicial recourse financially burdensome or perhaps out of sheer benevolence he refuses to press the seller to make good on his part of the bargain. Whatever the reason, by not exercising his privilege to file suit, the farmer should not be left defenseless where the seed merchant brings an action against him.

QUESTION 3:

If such action or defense is otherwise barred, is the seller estopped from raising the bar, or has the seller waived the bar, if the seller has actual knowledge of the alleged defects in the seed, although such knowledge was not acquired within ten days of the discovery of the defect by the farmer?

Hitchcock submits that Ferry-Morse waived the complaint and notice requirements of section 578.26(1), Florida Statutes (1977), in that after the time for filing the administrative complaint and giving notice had expired, the seller became aware of Hitchcock’s problem with his crop. In the alternative Hitchcock submits that Ferry-Morse is estopped from raising Hitchcock’s failure to comply with section 578.26(1) as a bar to his bringing legal action. We do not agree.

Hitchcock relies upon two cases, Rabinowitz v. Town of Bay Harbor Island, 178 So.2d 9 (Fla.1965); and City of Jacksonville v. Hinson, 202 So.2d 806 (Fla. 1st DCA) cert. denied, 207 So.2d 688 (1967); both of which focus upon similar city charters which mandate written notice to the municipality as a prerequisite to maintaining a civil damages action against the city. In each case agents of the municipality, by their own representations, lulled claimants into believing compliance with the city charter’s notice requirements was unnecessary. Estoppel and waiver doctrines were found operable in both Hinson and Rabi-nowitz so as to prevent the respective municipalities from benefiting from their own deceptions. We find no evidence that Ferry-Morse purposefully or inadvertently deceived anyone in the case sub judice.

This Court in Rabinowitz provided a useful distinction between the sometimes interrelated doctrines of waiver and estoppel stating:

that when responsible agents or officials of a city have actual knowledge of the occurrence which causes injury and they pursue an investigation which reveals substantially the same information that the required notice would provide, and they thereafter follow a course of action which would reasonably lead a claimant to conclude that a formal notice would be unnecessary, then the filing of such a notice may be said to be waived. If the claimant as a result of such municipal conduct, in good faith fails to act, or acts thereon to his disadvantage, then an es-toppel against the requirement of the notice may be said to arise.

178 So.2d at 12-13. The crux of the waiver doctrine rests upon conduct demonstrating an intent to relinquish a known right. Firemans Fund Ins. Co. v. Vogel, 195 So.2d 20 (Fla. 2d DCA 1967). In the case sub judice Ferry-Morse had a right to receive notice of a claim alleging seed defects within ten days of the farmer’s discovery of the problem. Correlatively, Hitchcock had a statutory duty to supply this notice. Ferry-Morse learned of the alleged seed problem many months after the seed transaction and filed suit to collect the purchase price two years after the expiration of the administrative complaint period. We find such conduct in no way evidences an intent to relieve Hitchcock of his duty to comply with the notice requirement in section 578.26(1). Furthermore, Ferry-Morse’s knowledge of the seed defect was not “substantially equivalent” to the information which would have been obtained had Hitchcock given the required notice. One of the obvious purposes of this ten-day filing limitation is to provide for an accurate investigation of seed claims while the evidence is fresh and the facts are readily available. Given the perishable quality of agricultural crops, it is highly unlikely that any physical evidence of Hitchcock’s claim existed when Ferry-Morse was finally made aware of the problem. Hence the waiver doctrine does not apply.

For estoppel to operate in the case sub judice, Ferry-Morse’s conduct must have induced Hitchcock to forego compliance with these notice requirements. We find no such inducement here. In the Rabinowitz and Hinson cases the municipalities’ conduct, upon which claimants detrimentally relied, occurred during a period when compliance with the notice requirements could have been accomplished. Such is not the case here. Hitchcock had surrendered his claim by failing to comply with the ten-day notice limitation long before Ferry-Morse was made aware of the alleged seed defect.

We therefore find that Ferry-Morse’s knowledge and conduct regarding the alleged seed defect did not induce Hitchcock to forego compliance with the statutory notice requirements. Accordingly, there is no merit to Hitchcock’s estoppel defense.

In summary we find:

(1) Hitchcock’s counterclaims sounding in breach of warranty and negligence are basically claims of variance in variety and are subject to the Florida Seed Law’s administrative notice requirements. Hitchcock’s claims are therefore barred by his failure to comply with these requirements.

(2) Hitchcock’s failure to comply with these administrative complaint requirements does not bar his raising the affirmative defense of “failure of consideration.”

(3) Hitchcock’s estoppel and waiver doctrine defenses are inapplicable to the given situation.

These certified questions are answered pursuant to Rule 9.030(2)(c), Florida Rules of Appellate Procedure, and the record for the cause returned to the United States Court of Appeal, Eleventh Circuit, for appropriate disposition.

It is so ordered.

ALDERMAN, C.J., and BOYD, OYER-TON, McDonald and EHRLICH, JJ., concur.


author:
McDONALD, Justice.
      ALDERMAN, Chief Justice, BOYD, Justice,

text:
    Matthew FAISON, Petitioner, v. STATE of Florida, Respondent. STATE of Florida, Petitioner, v. Matthew FAISON, Respondent.
    Nos. 60792, 60782.
    Supreme Court of Florida.
    Feb. 10, 1983.

      Marsha L. Lyons, Sp. Asst. Public Defender, Coral Gables, for Faison.
    Jim Smith, Atty. Gen., and Anthony C. Musto and Calianne P. Lantz, Asst. Attys. Gen., Miami, for the State.
   McDONALD, Justice.

This case is before us on cross-petitions to review a decision of a district court, reported at 399 So.2d 19 (Fla. 3d DCA 1981). Because that decision conflicts with State v. Hegstrom, 401 So.2d 1343 (Fla.1981), and Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980), we have jurisdiction.

Faison was convicted of five offenses committed during the course of separate sexual attacks on two women. After discovering that the only employee present in a small contractor’s office was the receptionist, Faison entered the office and attacked the young woman. To do so, he dragged her from her desk in front of a large window to the rear of the office where he sexually assaulted her. He then forced her into a nearby restroom and raped her again.

About ten minutes later, the receptionist spotted Faison across the street, and her employer attempted to stop him. Faison escaped into a residential area and broke into the home of another young woman. He attacked her and violently dragged her from the kitchen down a hallway into the bedroom. The two continued to fight until the woman was nearly unconscious; Faison then sexually assaulted her.

The jury convicted Faison of two counts of kidnapping, two counts of sexual battery, and one count of first-degree burglary. The court sentenced him to three consecutive 99-year prison terms for the kidnappings and burglary and suspended the sentence on the two sexual battery convictions. The trial judge, citing Faison’s nine prior felony convictions, found him to be a serious threat and a danger to society and entered an order retaining jurisdiction over Faison for the first third of his sentence. The Third District Court of Appeal upheld the convictions and sentences for both kidnappings, but reversed the conviction for the sexual battery committed during the burglary of the home on the authority of State v. Pinder, 375 So.2d 836 (Fla.1979). Both the state and Faison sought review in this Court.

The state questions the district court’s decision to vacate the sexual battery conviction. Faison was convicted of both first-degree burglary, that is, burglary of the victim’s home and making an assault upon her, and the sexual battery which constituted the assault in the burglary charge. Relying on Pinder, the district court found the sexual battery to be a necessary element of the first-degree burglary and vacated the conviction.

Subsequent to Pinder, we decided State v. Hegstrom, 401 So.2d 1343 (Fla.1981). In Hegstrom this Court decided that it is permissible to convict a defendant of both felony murder and the underlying felony but that only one sentence, for the greater offense, is proper. In the instant ease the sexual battery was charged as the underlying assault in the first-degree burglary count. Faison was found guilty of both the burglary and the sexual battery, but was sentenced only for the burglary. Distinct crimes were committed, and the conviction for the sexual battery was proper.

Faison seeks disapproval of his kidnapping convictions on the grounds that the victims’ detention and confinement were merely incidental to and were not materially different from the detention necessarily involved in the course of the sexual batteries. He was convicted under subsection 787.01(l)(a)2, Florida Statutes (1979), which provides that kidnapping means to forcibly, secretly, or by threat, confine, abduct, or imprison another person against his will with the intent to commit or facilitate the commission of any felony. Sexual battery is a felony, so the issue is whether the threats and force used to transport the victims, and their subsequent detention, constitute a separate crime of kidnapping.

In Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980), the Fifth District Court of Appeal construed section 787.01 and reasoned that, if it were literally applied, it would convert every first-degree robbery and every forcible rape into two life felonies. The court, using the test enunciated in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), went on to find that a kidnapping had occurred. Several courts have subsequently applied the Harkins construction of Buggs with seemingly inconsistent results.

In the instant case the district court also applied the test found in Buggs, where the Supreme Court of Kansas construed the Kansas kidnapping statute and established these requirements:

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

219 Kan. at 216, 547 P.2d at 731. In applying the facts of the instant case to these requirements the district court reasoned:

Each of the separate episodes involved in this case conforms with these requirements.
(a) The movements of both victims were effected by substantial force and violence inflicted by Faison to overcome their resistance and to make them to go where he wanted. It cannot be said, therefore, that the asportations were either slight, inconsequential or merely incidental to the sexual batteries which followed.
(b) These movements were not inherent or necessarily required in the commission of the sexual batteries, which could have been accomplished on the spot without any asportation whatever.
(c) Both abductions were from an area where the rape could have been more easily observed through a window — in the first victim’s office, and the second one’s kitchen — to the “relative seclusion” of the rear and restroom of the office and the bedroom of the home, respectively. Moreover, each asportation removed the victim from access to a door — again, in the office and in the kitchen — through which she might have escaped. Hence, each made the sexual battery substantially easier to commit and substantially reduced the danger of detection. Compare, Simpkins v. State, [395 So.2d 625 (Fla. 1st DCA1981) ] (mere forced movement from bedroom to living room to accomplish sexual battery not kidnapping). The fact that relatively short distances were involved makes no difference.

399 So.2d at 21-22 (citations omitted, footnote omitted, emphasis in original).

Subsequent to the district court decision in the instant case, this Court interpreted section 787.01 in Mobley v. State, 409 So.2d 1031 (Fla.1982). In Mobley we observed that a literal construction of subsection 787.01(l)(a)2 “would apply to any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery.” Id. at 1034. We then adopted the view that subsection 787.01(l)(a)2 did not apply to unlawful confinements or movements that were merely incidental to other felonies, but recognized an exception in the case of hostages.

Because of the facts in Mobley, we did not consider the standard to be applied in determining whether a particular movement or detention constituted kidnapping. After reviewing the decisions of our district courts and the courts of other jurisdictions, we are persuaded that the district court reached the correct result in the instant case. We do not approve, however, of the language and reasoning used by the court in note 2 to Faison, where the third district, apparently, argues for a literal interpretation of subsection 787.01(l)(a)2. We find that Harkins sets out the proper construction of the kidnapping statute, i.e.,

that “confining, abducting, or imprisoning another person ... with intent to commit or facilitate commission of any felony” does not include movement or confinement that is inconsequential or inherent in the nature of the felony.

380 So.2d at 528. We therefore approve Harkins and the Buggs test.

As hereinabove recited, the holding of the district court concerning Faison’s conviction for sexual battery is quashed; the holding affirming the convictions for kidnapping is approved.

It is so ordered.

OVERTON, EHRLICH and SHAW, JJ., concur.

ALDERMAN, C.J., concurs in result only with an opinion, in which ADKINS, J., concurs.

BOYD, J., concurs in part and dissents in part with an opinion.

ALDERMAN, Chief Justice,

concurring in result only.

I concur only in the result of this opinion affirming the convictions for kidnapping and quashing the district court’s holding concerning Faison’s conviction for sexual battery. By approving the Fifth District’s construction of section 787.01(l)(a)2 in Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980), the majority is rewriting the statute. I would approve the rationale of the decision of the Third District Court presently before us and particularly the language and reasoning contained in note 2 of its decision. The Third District determined that the facts in the present case met the criteria for establishing kidnapping under the Kansas statute that were set out in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), and subsequently recognized by the Fifth District and the First District as a proper interpretation of our kidnapping statute. It therefore found it unnecessary to pass on the validity of the statutory interpretation in Harkins v. State, Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980), and Simpkins v. State, 395 So.2d 625 (Fla. 1st DCA 1981). It did, however, question the correctness of these interpretations. It emphasized that Florida’s statute is significantly broader than the Kansas statute involved in Buggs, pointing out that “the present Kansas statute requires an abduction or confinement with the intent to ‘facilitate flight or the commission of any crime.’ K.S.A. 21-3420(b). § 787.01(l)(a)2, on the other hand, requires an intent either to ‘commit or facilitate commission of any felony.’ (e.s.) Under statutes like ours, it has been widely held, apparently by a majority of the jurisdictions which have considered the question, that it is the fact of any forcible movement or confinement with the forbidden felonious intent — regardless of its length, distance or purpose — which constitutes kidnapping.” Faison v. State, 399 So.2d 19, 20 n. 2 (Fla. 3d DCA 1981).

The Third District also pointed out that the Harkins-Friend-Simpkins view of Florida’s kidnapping statute is incongruous with section 775.021(4), Florida Statutes (1979), which provides “[wjhoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode .. .. ” Finally, it expressed grave doubts about the wisdom of the statement made in Buggs, quoted in Harkins, and adopted in Simpkins that “ ‘[t]he removal of a rape victim from room to room within a dwelling solely for the convenience of the rapist is not a kidnapping.’ ” 399 So.2d at 21 n. 2. It correctly concludes that we should not be so willing to accommodate the convenience of a rapist.

Although the facts of this case meet the test announced in Buggs and recognized in Harkins, Friend, and Simpkins, this is not the appropriate test in Florida. Florida’s kidnapping statute is broader than the Kansas statute, and the requirements announced in Buggs are more stringent than Florida’s requirements. The majority, in adopting standards more stringent than required by the legislature, has, in effect, rewritten this statute. This we cannot do. I would not find the general statements in Mobley v. State relative to the unfeasibility of the literal construction of section 787.-01(l)(a)2 to be controlling precedent here. In Mobley, we were concerned only with situations where prisoners have confined persons against their will with the intent of escaping from prison and the special problems which these situations present.

Accordingly, I would approve the decision of the Third District Court of Appeal.

ADKINS, J., concurs.

BOYD, Justice,

concurring in part and dissenting in part.

I agree with the majority opinion that the district court erred in reversing one of the sexual battery convictions. The crime of sexual battery in the home was a separate offense from the crime of burglary. Separate convictions and sentences are proper. I disagree, however, with the majority’s conclusions concerning the kidnapping convictions, and I must respectfully dissent.

The majority opinion, like the opinion of the court below, explicitly accepts the principle that confinements and abductions that are merely incidental to the commission of other crimes do not constitute kidnapping. The standards which the district court used to apply the principle, however, and the results that it reached, are erroneous. I dissent to the majority’s approval of those standards and results.

In Mobley v. State, 409 So.2d 1031 (Fla.1982), we observed that if subsection 787.-01(l)(a)2, Florida Statutes (1979), were construed literally, “this subsection would apply to any criminal transaction which inherently involves the unlawful confinement of another person, such as robbery or sexual battery.” 409 So.2d at 1034. With regard to the fact situation in the present case, I do not believe that the confinements and removals of the victims were of sufficient separate significance to constitute the separate offenses of kidnapping.

Many courts, construing statutes similar to ours, have declined to apply them literally where such application would turn a confinement incidental to another crime into the separate crime of kidnapping. See, e.g., People v. Daniels, 71 Cal.2d 1119, 459 P.2d 225, 80 Cal.Rptr. 897 (1969); State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976); State v. Ware, 63 Ohio St.2d 84, 406 N.E.2d 1112 (1980). It has even been suggested that a literal application of such a statute may lead to a kind of “stacking” of criminal convictions based on a single offense in violation of due process principles. See, e.g., People v. Bridges, 199 Colo. 520, 612 P.2d 1110 (Colo.1980); People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973); State v. Morris, 281 Minn. 119, 160 N.W.2d 715 (1968); State v. Fulcher, 34 N.C.App. 233, 237 S.E.2d 909 (1977), cert. dismissed, 294 N.C. 503, 243 S.E.2d 338 (1978).

Where one is accused of a crime other than kidnapping that inherently involves some degree of involuntary detention, confinement, or removal, a charge and conviction of the separate crime of kidnapping should only be allowed when the detention, confinement, or removal takes on sufficiently independent significance to justify the separate charge and conviction. This principle guards against the improper literal application of the statutory language and facilitates applying the statute according to the true legislative intent. In determining whether an abduction or confinement has sufficient independent significance, a court should consider the location, duration, method, manner, and purpose of the abduction or confinement. These factors should be considered not only in the light of whether the abduction or confinement facilitates the commission of another crime, but also, and principally, in light of whether the factors expose the victim to a risk of physical or mental harm substantially greater than the risk of harm ordinarily encountered by the victim of the forcible felony being committed, such as robbery or sexual battery.

Applying these principles to the present case I conclude that there is no basis for separate kidnapping convictions. One of the main reasons why society views kidnapping as such a serious offense and prescribes severe penalties for its commission is the danger, terror, uncertainty, and helplessness experienced by the victim and the victim’s loved ones. Therefore the duration of the abduction or confinement is an important factor in determining whether there has been a kidnapping. The longer the duration, the greater is the exposure of the victim to the danger of violence and the more terror, uncertainty, and violence the victim feels.

In the present case the abductions and confinement of the victims was of minimal duration. In each instance Faison spent only as much time with the two victims as was involved in committing the sexual batteries against them. The significance of the short duration of the ordeals of the women is that it strongly suggests that neither victim was exposed by the confinement to a significantly greater risk of harm than was inherent in the crime of rape itself.

The location of the confinement after removal and the distance of the abduction are also significant considerations because a victim probably feels more terror, uncertainty, and helplessness, and is exposed to more danger in unfamiliar surroundings than in a familiar place. The perpetrator is more likely to abuse or harm the victim in an isolated area than in the victim’s home or workplace. In the present case the abductions were from one room to another and the confinements were in familiar places. One victim was assaulted in her home, the other in her office. In both instances the victims were in familiar surroundings and were certain that someone they knew would be returning there that day. Therefore, they faced less danger and uncertainty than they would have had they been abducted a greater distance or confined in a place where their chances of being discovered and receiving help would have been reduced.

Another significant factor is the manner or method of the abduction or confinement. Of course the victims were subjected to the use or threat of physical force when they were raped. But in considering whether the separate crime of kidnapping has been committed, a court should look at the use of physical force beyond that which inheres in the crime of sexual battery alone. In the present case neither victim was bound or gagged or locked in an automobile trunk or a closet. In other words, neither victim was rendered completely helpless in a way that was significantly independent of the rape itself.

A final consideration is whether the purpose of the abduction or confinement attains independent significance or substantially increases the risk of harm to the victim. While practically all instances of sexual battery include a minimal amount of movement of the victim, the purpose of which is to make the crime harder to detect while it is being committed, I do not believe that such movement, which inheres in the crime of sexual battery itself, substantially increases the risk of harm to the victim. Instead, the risk of harm is substantially increased only if the abduction or confinement of the victim, serving to prevent detection or to facilitate the perpetrator’s escape, occurs after the sexual battery has been committed or if the perpetrator uses the victim as a shield or hostage. In the present case neither victim was abducted or confined for any reason other than to make the commission of the crime of sexual battery possible through movement from one room to another. The confinement did not continue after the sexual battery had occurred, and neither victim was used as a hostage.

Since the evidence does not show that the victims were subjected to a substantial increase in risk of harm, either by the duration, location, distance, manner, method, or purpose of the abductions or confinements, I must conclude that the abductions and confinements of the victims were merely incidental to the crimes of sexual battery and did not attain a sufficient independent significance to justify the convictions for kidnapping.

It should be understood that I take this position not out of concern for the rapist or to accommodate his convenience, but because criminal laws, if they are to retain their deterrent force, must not be applied overbroadly. The deterrent effect of a criminal law depends on its being applied with surgical precision to the situation the legislature intends to cover. If rapists and robbers can be encouraged to detain, confine, or move their victims no more than is necessary to commit rape or robbery, and to leave them at the scene of the crime, having been moved only a room or two away from where first encountered, the kidnapping statute will have served one of its purposes. But if all rapists and robbers are held to be kidnappers too, then the additional deterrent force of the kidnapping law is lost on one who has already decided to commit rape or robbery.

      . Art. V, § 3(b)(3), Fla.Const.

      . § 787.01(l)(a)2, Fla.Stat. (1979) (kidnapping); § 794.011, Fla.Stat. (1979) (sexual battery); § 810.02(2)(a), Fla.Stat. (1979) (burglary).

      . § 947.16, Fla.Stat. (1979).

      . 399 So.2d 19 (Fla. 3d DCA 1981).

      . § 787.01 reads as follows:
      (1)(a) “Kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
      1. Hold for ransom or reward or as a shield or hostage.
      2. Commit or facilitate commission of any felony.
      3. Inflict bodily harm upon or to terrorize the victim or another person.
      4. Interfere with the performance of any governmental or political function.
      (b) Confinement of a child under the age of 13 is against his will within the meaning of subsection (1) if such confinement is without the consent of his parent or legal guardian.
      (2) Whoever kidnaps a person is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Faison v. State, 399 So.2d 19 (Fla. 3d DCA 1981) (kidnapping affirmed, rape victim’s removal from front of office to rear and from kitchen to bedroom not inherent or necessarily required in the commission of the sexual batteries); Simpkins v. State, 395 So.2d 625 (Fla. 1st DCA 1981) (kidnapping reversed, rape victim’s removal from bedroom to living room was without independent significance and not materially different from restraint involved in sexual battery); Ayendes v. State, 385 So.2d 698 (Fla. 1st DCA), review denied, 392 So.2d 1371 (Fla. 1980), (attempted kidnapping affirmed, confinement in victim’s own home with further detention during escape threatened); Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980) (kidnapping reversed, confinement of four employees in a bathroom for approximately five minutes during robbery was without independent significance in that it was not materially different from the restraint necessarily involved in the felony of armed robbery); Bass v. State, 380 So.2d 1181 (Fla. 5th DCA 1980) (kidnapping affirmed, abduction in automobile not inconsequential nor inherent in sexual battery).

      . See infra note 6.

      . See cases collected at Annot., 43 A.L.R.3d 699 (1972) and 1981 supplement at 40-48.

       I do not accept the suggestion made in the opinion of the court below that taking this position indicates a willingness “to accommodate the ‘convenience’ of a rapist or any other criminal by excusing any additional offense he may commit in order to indulge his personal tastes and predilections.” Faison v. State, 399 So.2d 19, 21 n. 2 (Fla. 3d DCA 1981).