text:
    Arthur Larnell BAYNES v. STATE.
    2 Div. 330.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Nov. 23, 1982.
    J.L. Chestnut, Jr., of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Dallas County returned an indictment against the appellant, Arthur Larnell Baynes, charging him with the offense of rape in the second degree, a Class C felony, in violation of Section 13A-6-62 of the Code of Alabama, 1975. The appellant entered a plea of not guilty. A jury returned a verdict finding the appellant guilty of rape in the second degree as charged in the indictment. The trial court duly sentenced the appellant to the penitentiary for a period of ten years. The appellant duly appealed to this Court.

The appellant was represented at all proceedings in the trial court by counsel of his choice, and is so represented in this Court. This appeal was submitted to this Court on briefs.

The appellant states in his brief three reasons why his conviction should be reversed because of prejudicial error of the trial court: (1) in ruling that Code of Alabama, 1975, Section 13A-6-62 does not violate the equal protection clause of the fourteenth amendment, because it is strictly a sex and gender based statute; (2) in refusing to give jury charges one and three; (3) in admitting state exhibits.

State’s evidence tended to prove that on May 24, 1981 at about 2:30 or 3:00 o’clock, A.M. the victim of the crime charged against the appellant was a fourteen-year-old girl child, was asleep in her bed in her bedroom in her home in the City of Selma, Dallas County, Alabama, when the appellant, a twenty-nine-year-old male, came into her bedroom and waked her up, got on her bed, and pinned her arms down, and pulled her panties down, threatened to strike her if she screamed out, and had intercourse with her by placing his private parts in her private parts. The appellant did not testify in his own behalf. There being ample evidence in the record to sustain the jury’s verdict, a detailed statement of all the facts surrounding the charge against the appellant would serve no useful purpose.

The appellant’s first argument in his brief is that Code of Alabama, 1975, Section 13A-6-62, is unconstitutional because it is strictly a sex and gender based statute in violation of the equal protection clause of the fourteenth amendment of the Constitution of the United States of America.

Section 13A-6-62 provides:

“Rape in the second degree.
“(a) A male commits the crime of rape in the second degree if:
“(1) Being 16 years old or older, he engages in sexual intercourse with a female less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the female.
“(2) He engages in sexual intercourse with a female who is incapable of consent by reason of being mentally defective. “(b) Rape in the second degree is a Class C felony. (Acts 1977, No. 607, p. 812, Sec. 2311; Acts 1979, No. 79-471, p. 862, Sec. 1.)”

This Court and the Supreme Court of the United States Of America have recently passed upon similar statutes and held them to be valid and not in violation of the fourteenth amendment.

We quote from the case of Smith v. State, Ala.Cr.App., 409 So.2d 455, at page 460, where Judge Tyson of this Court said:

“(8) True these statutes clearly single out males for more severe punishment than that provided for females who commit a similar crime. However, Section 13A-6-61 (the only statute challenged in the instant case) will withstand constitutional scrutiny if its ‘gender-based’ classification is reasonable, not arbitrary, and rests upon some ground of difference having a fair and substantial relationship to the objective of the legislation. (Emphasis Supplied) Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Hobson v. Pow, 434 F.Supp. 362 (1977).
“The obvious objective of Section 13A-6-61(a)(l) (the only portion of this statute under attack) is to protect females from sexual attacks by males which result in nonconsensual sexual intercourse. This objective is a legitimate state interest because of the potential harm to the victim and society. [Emphasis Supplied] Female victims of nonconsensual sexual intercourse by males are subjected to a possible unwanted pregnancy and the medical, physical, sociological, moral, and psychological problems associated therewith, in addition to the physical injuries and psychological traumas potentially inflicted upon any victim of a sexual assault. This ‘unwanted pregnancy’ risk to the victims is uniquely characteristic of nonconsensual sexual intercourse perpetrated by males upon females in contrast with the similar act committed by a female upon an unwilling male. This specific characteristic of the crime described in Section 13A-6-61(a)(l), which presents the possibility of a higher degree of harm to its victims than does its counterpart described in Section 13A-6-65(a)(2), is the clearest example of a ‘ground of difference’ sufficient to justify this ‘gender-based’ classification.
“Moreover, ‘rape’ of females is a long recognized and very serious problem in this state due not only to the severity of this potential harm to its victim but also to the frequency with which it occurs. This frequency factor further distinguishes a Section 13A-6-61(a)(l) crime from a Section 13A-6-65(a)(2) crime. The appellant has not presented and we are not aware of any evidence to the effect that nonconsensual sexual intercourse by females is as serious a problem as nonconsensual sexual intercourse by males.
“Moreover, such nonconsensual sexual intercourse often results in unwanted pregnancy. This too often results in society having to care for the victims who are the result of such attacks, as well as the children born as the result of such.
“These reasons are clearly a sufficient basis for legislative action.’ ”

And again we quote from Hall v. State, Ala.Cr.App., 365 So.2d 1249, at page 1253; Certiorari Denied, Ala., 365 So.2d 1253, where Harris, Presiding Judge of this Court, said:

“The state has a vital interest in the protection of young girls from the ani-malistic instincts of such men. It is the declared public policy of this State and in no wise runs afoul of the Equal Protection Clause of the Fourteenth Amendment, or any other constitutional provision.”

We quote from the case of Michael M., Petitioner, v. Superior Court Of Sonoma County (California, Real Party in Interest), 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437, where Justice Rehnquist, speaking for the Supreme Court of The United States of America, in a case involving challenges to gender-based classifications, said:

“We have not held that gender-based classifications are ‘inherently suspect’ and thus we do not apply so-called ‘strict scrutiny’ to those classifications. See Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). Our cases have held, however, that the traditional minimum rationality test takes on a somewhat ‘sharper focus’ when gender-based classifications are challenged. See Craig v. Boren, 429 U.S. 190, 210 n.*, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (Powell, J., concurring). In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), for example, the Court stated that a gender-based classification will be upheld if it (450 U.S. 469) bears a ‘fair and substantial relationship’ to legitimate state ends, while in Craig v. Boren, supra [429 U.S.] at 197, 97 S.Ct. 451, 50 L.Ed.2d 397, the Court restated the test to require the classification to bear a ‘substantial relationship’ to ‘important governmental objectives.’
“Underlying these decisions is the principle that a legislature may not ‘make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class.’ Parham v. Hughes, 441 U.S. 347, 354, 99 S.Ct. 1742 [1747], 60 L.Ed.2d 269 (1979) (plurality opinion of Stewart, J.,). But because the Equal Protection Clause does not ‘demand that a statute necessarily apply equally to all persons’ or require ‘things which are different in fact ... to be treated in law as though they were the same,’ (Emphasis Supplied) Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497 [1499-1500], 16 L.Ed.2d 577 (1966), quoting Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879 [882], 84 L.Ed. 1124, 130 A.L.R. 1321 (1940), this Court has consistently upheld statutes where the gender classification is not invidious, but rather realisti-eally reflects the fact that the sexes are not similarly situated in certain circumstances. ...
“We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the ‘purposes’ of the statute, but also that the State has a strong interest in preventing such pregnancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades,3 have significant social, medical, and economic consequences for both the mother and her child, and the State.4 (450 U.S. 471, 101 S.Ct. 1205)
“Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion.5 And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State.6
“We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity. The statute at issue here (450 U.S. 472, 101 S.Ct. 1206) protects women from sexual intercourse at an age when those consequences are particularly severe.7
“The question thus boils down to whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female.8 We hold that such a statute is (450 U.S. 473, 101 S.Ct. 1206) sufficiently related to the State’s objectives to pass constitutional muster.
“Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct.’ ”

Even though Code of Alabama, 1975, Section 13A-6-62, is clearly gender-based, it is not necessarily unconstitutional if its classification is reasonable, not arbitrary, and is based on some grounds of difference having a fair and substantial relationship to the objective of the legislature. The State of Alabama has a vital interest in the protection of its society, and the protection of young girls from the consequences that usually follow from the pregnancy of its young girls.

We hold that Alabama Code, 1975, Section 13A-6-62, does not violate the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States of America, or any other constitutional provision. Smith v. State, supra; Hall v. State, supra; Michael M., Petitioner, v. Superior Court Of Sonoma County (California, Real Party in Interest), supra; Hepstall v. State, Ala.Cr.App., 418 So.2d 223.

The appellant’s next contention in his brief is that the trial court erred to his prejudice by refusing to give jury written charges numbers one and three requested by the appellant. Refused jury charge number one reads, as follows:

“DEFENDANT’S REQUESTED CHARGE
NUMBER ONE
“I charge you, ladies and gentlemen, of the jury that if from the evidence you are reasonably satisfied the complainant’s character for truth and veracity has been impeached you may disregard all her evidence. Harrison v. State, 28 Ala.App. 17, 178 So. 454 (1937).
“Refused — J.C. Norton, Judge”

Refused jury charge number three reads, as follows:

“DEFENDANT’S REQUESTED CHARGE
NUMBER THREE
“I charge you, ladies and gentlemen, of the jury that if you believe the alleged victim lied on her oath about any material fact in this case, you may disregard all her testimony.
“Refused J.C. Norton, Judge”

We quote from the judge’s oral charge to the jury:

“You gentlemen take the testimony of all the witnesses, together with all proper and reasonable inferences therefrom, apply your own good common sense, and in an honest and impartial way determine what you believe to be the truth. You should weigh all of the evidence and reconcile it if you can reasonably do so; but if there be irreconcilable conflict in the evidence you ought to take that evidence which you think is worthy of credit and give it just such weight, as you think it is entitled to. You may take into consideration any interest any witness might have in the outcome of this case. If you believe that any material part of the evidence of any witness is willfully false, you may disregard all of the testimony of such witness. If any witness testifying has been impeached, then the jury may disregard his or her testimony unless his or her testimony be corroborated by other testimony not so impeached.”

We hold that the Rule of Law sought to be stated by the refused charges was substantially and fairly given to the jury in the Court’s oral charge. There was no error in the Court’s refusal to give written charges one and three. Code Of Alabama, 1975, Sec. 12-16-13; Allred v. State, Ala.Cr.App., 390 So.2d 1109, Certiorari Denied, Ala., 390 So.2d 1114.

The appellant’s third contention in his brief is that his objections to the admission of all of state’s exhibits should have been sustained because the chain of evidence had not been sufficiently proven because: First, the panties that were thrown into the dirty clothes basket were not proven to be the panties plaintiff initially had on; Second, the rape kit administered by nurse Porifory was left out in the open and unattended for hours; Third, the panties and gown secured at the alleged scene of the crime were left at the police station unattended.

From a careful examination of the record it appears that the injured party identified the gown and panties introduced into evidence as being the same clothing she had on at the time the crime was committed; that the rape kit was sealed by the night nurse and was sealed when she turned it over to the day nurse and when the day nurse turned it over to the police officer, and during the time it was on the counter in the emergency room either the day nurse or night nurse was present. The chain of possession of all the exhibits that were allowed into evidence was sufficiently proven to allow them into evidence.

We quote from Bowen, Judge of this Court, in the case of Sexton v. State, Ala. Cr.App., 346 So.2d 1177, Certiorari Denied, Ala., 346 So.2d 1180:

“To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.”

From our examination of the record we are of the opinion that all of state’s exhibits were properly identified and allowed into evidence. Sexton v. State, supra.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Charles Edwin OWEN v. STATE.
    3 Div. 498.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Nov. 23, 1982.
    L. Gilbert Kendrick, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence to imprisonment for fifteen years on a trial without a jury, the judgment reciting that defendant had withdrawn “his demand for trial by jury.” The two-count indictment charged, inter alia, in the first count that defendant “did, unlawfully, wilfully and feloniously possess Marijuana” and in the second count that he “did, unlawfully, wilfully and feloniously possess Lysergic Acid Diethylamide.”

As a part of appellant’s brief bearing the caption “STATEMENT OF THE CASE,” is the following:

“... Apparently the defendant and the prosecution entered into an agreement to submit the case to the court for a determination of guilt or innocence on the basis of the testimony presented at the hearing on defendant’s Motion to Suppress the evidence. However, this agreement does not appear in the record, nor is there any direct reference to any such agreement anywhere in the record. In any event the trial court, on the basis of the evidence before it, adjudged the defendant guilty on both counts as charged in the indictment and continued the case for sentencing. (R. 40).”

Under the same caption in appellee’s brief, it is stated: “Appellee herein adopts Appellant’s Statement of the Case as being substantially correct.”

Notwithstanding the undesirable state of the record, we proceed to consider the issues raised by appellant, which, though three in number, focus on whether the evidence was sufficient to support the trial court’s denial of defendant’s motion to suppress and its judgment convicting the defendant.

The ORDER of the trial court denying defendant’s motion to suppress is as follows:

“This case is submitted to the Court upon a Motion to Suppress based upon allegations of an illegal search. The Defendant contends that a warrantless search of the automobile he was driving violated the Defendant’s Constitutional rights and that evidence obtained pursuant to the search should be suppressed at trial.
“The Court has conducted an evidentiary hearing and has heard testimony from the officer who conducted the search in question. On the day of the search the officer, J.E. Russell, received information from an unidentified informant to the effect that the Defendant was seen going to his automobile with marijuana in his possession. The automobile searched met the description of the automobile given by the informant to the officer. The information that the officer received was in substance that the Defendant was headed towards a party with the contraband in his possession. The reliability of the unidentified informant was adequately proven.
“The Court is of the opinion that there was probable cause to arrest the defendant for either constructive or actual possession of a controlled substance. This probable cause was based upon the information from the informant as heretofore set forth. Whether one is concerned with probable cause to arrest or probable cause to search, the amount of evidence required is generally the same. Nikolic v. State, [ (Ala.Cr.App.) ] 384 So.2d 1141, at page 1144.
“It is the opinion of the Court that with probable cause to arrest the officers were entitled to search the vehicle in question under the facts and circumstances of this case and considering the totality of all of the circumstances. Only a very short period elapsed between the receipt of the information from the informant and the sighting of the vehicle. There is evidence that the processing of a search warrant to search the vehicle was impractical after the vehicle was sighted because of the bona fide problems confronted by the officers, i.e., imminence of escape or loss of evidence.
“The probable cause as set forth above, coupled with the exigent circumstances of the mobility of the vehicle, in this Court’s opinion, formed a reasonable basis to search. The search of the vehicle in the glove compartment thereof was justified and did not violate the Defendant’s constitutional rights. Carrol [Carroll] v. United States, 267 U.S. 132 [45 S.Ct. 280, 69 L.Ed. 543].
“Accordingly, the Motion to Suppress be and the same is hereby DENIED.
“DONE this the 3rd day of November, 1981.
(Sgd.1 Joseph D. Phelps
CIRCUIT JUDGE”

Appellant’s brief is commendably comprehensive as to the authorities pertaining to the question whether a law enforcement officer who relies principally upon information given him by an informant is justified in making a warrantless arrest of, or in conducting a warrantless search of the vehicle of, a person accused of the possession of a controlled substance. Many cases are cited that purport to apply the two-pronged test as to the existence vel non of probable cause established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and expanded in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Appellant’s brief states little to the effect that the circumstances shown by the evidence in this case fail to meet the “veracity prong” but strongly and lengthily contends that they do not meet the requirements of the “basis of knowledge prong” of the Aguilar test.

The parties are in agreement that a “warrantless search” was not involved in either Aguilar or Spinelli but that the principles set forth therein as a test of the sufficiency of the requirements of probable cause for conducting the search are at least as stringent as the test applied in Aguilar and Spinelli in the matter of the issuance of a valid search warrant. Murray v. State, Ala.Cr.App., 396 So.2d 125 (1980); Consalvo v. State, Ala.Cr.App., 372 So.2d 44 (1979).

As there is no issue between the parties here as to the established reliability of the informant, we will now devote attention exclusively to that part of the testimony of Officer J.D. Russell as to what he observed, as to what his informant had told him, as to the time and the place where each of them was when the dialogue between them occurred and as to the time and the place where the defendant and Officer Russell were from the time he first observed the motor vehicle in which the controlled substances were found until it was found in the glove compartment of the vehicle. Officer Russell testified, inter alia:

“Q. Now, what, if anything, did this source state to you at or about 7:40 p.m. on the 21st of March of this year?
“A. He stated that he was familiar with a Charles Owen who lived at 26 Polaris Drive. He stated this subject drove a white Ford Mustang, and that he was, at that time, preparing to leave his residence; that he was in that vehicle with a quantity of marijuana.
“Q. Now, did he state to you how he was aware that this was happening?
“A. Yes, sir, he did.
“Q. Did he state whether or not he had personal knowledge that the Defendant was about to leave, or would have marijuana in his car?
“A. Yes, sir, he did.
“Q. After receiving this information from the source, what, if any, action did you take?
“A. I advised Investigator Cochrane of the information that I had received. At that time, we got en route to the Polaris Drive area.
“Q. Now, let me ask you this before we go further. With respect to this source you had, other than comments about Mr. Owens conduct, did he make any further comments to you?
“A. Concerning any other activities, or concerning Mr. Owens?
“Q. Do you know whether or not your source knows and recognizes marijuana? “A. Yes, sir, he does.
“Q. Did he state to you how he knows marijuana?
“A. He has told me that he has personally used marijuana on previous occasions.
“Q. Did he tell you this on the 21st of March of this year at about 7:40?
“A. Yes, sir, he did.
“Q. Now, after you received, or got, this telephone call from the source, what, if any, action did you take?
“A. Investigator Cochrane and I went to the area of Polaris Drive. As we were coming down Air Base Boulevard we observed a white Ford Mustang pulling off of Polaris. The tag number on this vehicle was the same one that the confidential source had given me during the phone call.
“Q. Did you all have an occasion to park your car, or were headed into the area when you saw the vehicle?
“A. We were still moving.
“Q. Upon seeing this automobile, you say the tag number matched?
“A. Yes, sir, it did.
“Q. What about the vehicle itself?
“A. It was a white Ford Mustang.
“Q. And what, if anything, did you notice about this vehicle with respect to the occupants?
“A. The vehicle appeared to be occupied by three people, two persons in the front of the vehicle, and one in the back. The vehicle was driving in a very erratic manner; turned off of Air Base Boulevard into Day Street. The speed varied anywhere from twenty-five to sixty-five miles an hour, constantly up and down. Some swerving. It appeared that the persons inside the car were drinking some type beverage. At that time we decided to have a patrol unit stop the vehicle instead of attempting to stop it ourselves, and this was done at the intersection of Court Street and Finley.
“Q. A patrol unit stopped the vehicle at that location?
“A. Yes, it did.
“Q. Did the patrol unit stop the vehicle at you-all’s direction?
“A. Yes, sir, they did.
“Q. After the vehicle was stopped, did you all — did you witness the stopping of it?
“A. Yes, sir, we did.
“Q. What did you all do next, once the vehicle had come to a halt?
“A. I stepped out of our police vehicle. Mr. Owens stepped out of his car and came toward our vehicle.
“Q. Who, if anyone, was driving the white Mustang?
“A. Mr. Owens was.
“Q. Now, you say Mr. Owens headed back toward you all’s vehicle, as you stopped him?
“A. Yes, sir. He jumped from his vehicle and came to ours.
“Q. What happened after he did this?
“A. He talked with Investigator Co-chrane, and I continued on to the Mustang that was stopped.
“Q. When you continued on to the Mustang that was stopped, what, if any, action did you take at that vehicle?
“A. I asked the two subjects in the vehicle their names, and for identification.
“Q. And did you receive their names and identification?
“A. I received both names — the names of both subjects, and identification from the white male who was in the back seat. The female stated she did not have any.
“Q. At this time, did you have an occasion to look into, see, or search the white automobile?
“A. I asked the persons in the vehicle if they had any weapons in the vehicle, and they replied that they did not. I asked the female subject to open the glove compartment so I could check it.
“Q. Where was she seated?
“A. In the right front passenger seat.
“Q. And did they open the glove compartment?
“A. She did.
“Q. And what, if anything, did you note or observe?
“A. Observed a large plastic bag that contained plant material that I believed to be marijuana, at that time.”

During the cross-examination of Officer Russell, he testified that his confidential informant told him that “he personally observed drugs” and that “Mr. Owens had approximately a quarter pound of marijuana in his possession.” He further testified in part on cross-examination:

“Q. And the drugs were in the glove compartment?
“A. Yes, sir.
“Q. And after the glove compartment was opened by somebody else, you looked in the glove compartment; am I correct?
“A. Yes, sir.
“Q. What was in the glove compartment?
“A. I do not recall all of the contents. The plastic bag contained three bags of marijuana, and a plastic Tylenol bottle which contained the LSD.
“Q. And you stuck your flashlight, and then saw the marijuana; am I correct?
“A. Best of my recollection, the glove compartment was lighted.
“Q. All right. Did you recognize this immediately as marijuana?
“A. I believed it to be, yes, sir.
“Q. You believed it to be?
“A. (Witness indicating in an affirmative manner).
“Q. You were not certain, but you thought it was; am I correct?
“A. In my opinion, it was marijuana; yes, sir.
“Q. You did not make any test on the scene, did you?
“A. Not on the scene, on the street, no, sir.
“Q. Did you taste it or smell it at the scene, or anything, when you took it out of the glove compartment before you arrested him?
“A. I handled it and examined it and then advised him that he was under arrest.
“Q. You opened it up? Opened up the celophane and examined it there before you arrested him? Is that what you are trying to tell me?
“A. I am sure that I did.
“Q. No, sir, I do not want you—I am just—answer my question, if you will, please, sir. Did you open up the celo-phane and examine it there at the scene before you arrested him?
“A. I feel certain that I did, because I examined the LSD which was in the plastic bottle.
“Q. All right. You did not place him under arrest for any misdemeanor at the time, did you?
“A. Not that I recall^ no, sir.”

We do not agree with appellant’s insistence that “the basis of knowledge prong of the Aguilar test” was not met in this case as to the time factor, that is, that what defendant was doing in regard to marijuana, as related by the informant to Officer Russell, was too remote in time from the subsequent search to have met the “basis of knowledge test.” It is reasonably clear, we think, that what the defendant was doing, as reported by the informant to Officer Russell, was so closely related in time to the observance by the officer of the automobile being driven by defendant and the resultant discovery of the marijuana as to leave no doubt in Officer Russell’s mind, or in the mind of any other reasonable person, if the information was credible, that marijuana was probably in the automobile, in the actual or constructive possession of defendant, at the time the officers converged on the automobile and thereafter found the marijuana in the glove compartment thereof. We find nothing to the contrary in any of the cases cited by appellant.

Appellant raises also the question of the possible remoteness in distance between the informer and the defendant when, according to the informer, the defendant was “preparing to leave his residence” in a “Ford Mustang” with a “quantity of marijuana.” The transcript of Officer Russell’s testimony shows that the informer let it be known to Officer Russell that this information was based upon the informer’s “personal knowledge” and such personal knowledge could have come to the informer only by one or more of his five senses, by which any and all personal knowledge is obtained. To have been obtained by any one of the five, we must conclude, after excluding the sense of hearing as a possible medium, that a credible informer must have been close enough to the defendant and the marijuana during a part of the apparently short period of time in which the defendant was in the process of leaving with it in his motor vehicle from his residence on this particular occasion.

Testimony of Officer Russell that his informer stated that “he had personal knowledge” of the gist of what defendant was unlawfully doing is sufficient also, we think, to overcome appellant’s argument that the “record is absolutely silent as to how the informant obtained the information” communicated to Officer Russell as well as appellant’s argument that the information transmitted from the informer to Officer Russell was “a mere conclusion of the informer unsupported by any factual basis to justify or substantiate that conclusion.”

We are of the opinion that the evidence was ample to show that Officer Russell had probable cause for believing that the defendant was in possession of marijuana at the time he asked the passenger in the front seat of the automobile to open the glove compartment thereof, where the marijuana and the other controlled substance were found.

The defendant did not testify either on the trial or on the motion to suppress. No question was raised on the trial, and none is raised on appeal, as to the sufficiency of the evidence to show that the substances found in the glove compartment of the motor vehicle constituted controlled substances as charged in the first and second count of the indictment. At any rate, there was substantial evidence thereof and of defendant’s guilt of their possession. Whether the evidence was sufficient to show defendant’s guilt beyond a reasonable doubt was, on the non-jury trial conducted, a question of fact for the trial judge to decide. The judgment of the 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, except BOWEN, J., who concurs in the result only.


text:
    Thomas C. O’SUCH v. STATE.
    3 Div. 596.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Nov. 23, 1982.
    Thomas C. O’Such, pro se.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment which “DENIED AND DISMISSED on motion of the State of Alabama as being without merit” appellant’s “Petition for Writ of Habeas Corpus.”

The petition was a pro se petition that alleged petitioner’s incarceration at Fountain Correctional Center, Escambia County, and that he had been found guilty by prison officials at a disciplinary hearing of “Violation of Rule 10,” for the offense of gambling, and that, as a result of a finding of the officials composing the board that conducted the hearing, petitioner “lost two months good time” credit, which, in effect, sentenced him to two months imprisonment for playing cards. He alleged that the only evidence against him was to the effect that he was observed “playing cards.” He contends in his petition that if he was gambling, he would “have had to been gambling with himself” and that the proceeding and the hearing were a “denial of the due process and equal protections of the laws in violation of his constitutional rights.”

We find no appearance on behalf of the individual respondent. There was an appearance of the “State of Alabama” by its district attorney in the form of a Motion to Dismiss. Among the grounds of the Motion to Dismiss is the allegation that the petition “is not verified by oath,” et cetera.

On May 20, 1982, the judgment appealed from was entered. On May 25, 1982, petitioner filed his “OPPOSITION TO RESPONDENTS’ MOTION TO DISMISS,” in which he cited Williams v. Davis, Ala., 386 So.2d 415-16, and continued to assert that he had been deprived of due process of law and equal protection of the law.

Appellant files a pro se brief and argument in which he urges that the judgment appealed from “be reversed and set aside and the same remanded for an evidentiary hearing upon the merits of the petition.” Immediately after the concluding paragraph of the petition for habeas corpus is the purported signature of the petitioner. Thereinafter is petitioner’s motion “for leave to proceed in forma pauperis” and for the appointment of counsel to represent him; then follows what is captioned as “Pauper’s oath” and petitioner’s certificate of service. Each of the two commences, “I, Thomas C. O’Such, hereby declare under penalty of perjury by my signature below ... . ” In no part of the petition or defendant’s accompanying papers is there any semblance of a jurat; the signature of no one other than that of the petitioner appears thereon.

One of respondent’s grounds for his motion to dismiss states that the petition “fails to conform to § 15-21-4 of the Code of Alabama,” which provides in pertinent part that a petition for habeas corpus “must be verified by the oath of the applicant to the effect that the statements therein contained are true to the best of his knowledge, information and belief.” We must conclude, as the trial court did, that a dismissal of the petition was proper.

We do not now decide whether it would have been permissible and better for the trial court to have given petitioner an opportunity to verify the petition than for it to have dismissed the petition without giving him that opportunity. It is to be noted that in petitioner’s “OPPOSITION TO RESPONDENTS’ MOTION TO DISMISS” he attaches what he captions an “AFFIDAVIT” and a “CERTIFICATE OF SERVICE.” There is no jurat in either, but petitioner continues to declare in each that what he subscribes is “under penalty of perjury.” We also pretermit as unnecessary and premature the question of the validity vel non of the trial court’s qualification of the judgment appealed from to the effect that the petition was “without merit.” We fully realize the necessity of adherence to Williams v. Davis, supra, relied upon by appellant, and of its possible applicability to the circumstances in the instant case, which could be expected to be set forth more clearly in any future petition than in the petition presently considered.

We are not unmindful of the apparent good faith of the petitioner in thinking that he had verified his petition by his oath, in view of the common use today of the expression “under penalty of perjury” in various formal declarations. The modern practice was fortified in 1976 by the enactment of Congress as now found in 28 U.S.C. § 1746, which provides:

Whenever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).
(Signature)”
(2) If executed within the United States, its territories, possessions or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).”

In 1980, the troublesome question of whether an application for habeas corpus in the courts of the United States that bore no jurat but which petitioner or applicant had subscribed “under penalty of perjury” was sufficient to require action on the merits of the petition, was considered by the United States Court of Appeals for the Fifth Circuit in two separate and distinct cases: Carter v. Clark, 616 F.2d 228 (1980) and Dickinson v. Wainwright, 626 F.2d 1184 (1980). In Carter v. Clark, a local rule of court provided that all pleadings by prison inmates that required verification should be notarized. The court held that the local rule was invalid by reason of its contravention of 28 U.S.C. § 1746. In Dickinson v. Wainwright, supra, it was held that a habeas corpus petition signed by the petitioner under his declaration “that under penalty of perjury ... the foregoing is believed correct” would constitute perjury if it was not true and for that reason was sufficient as a verified statement. In contrast with the federal court cases on the point is that of the Supreme Court of Nevada, also in 1980, September 18, in Sheriff, Clark County v. Scalio, 96 Nev. 776, 616 P.2d 402, in a two-paragraph opinion as follows:

“Indicted for a felony, respondent filed a pretrial petition for a writ of habeas corpus. The petition was considered and granted by the district court, and the state has appealed.
“We need not consider the merits, if any, of the appeal. Respondent’s habeas petition was not verified by oath or affirmation as clearly required by NRS 34 370(3). Therefore, the petition was not cognizable in the district court. Sheriff v. Arvey, 93 Nev. 72, 560 P.2d 153 (1977). Accordingly, we sua sponte reverse and instruct the district court to dismiss the habeas petition.”

In Ex parte Rockholt, 271 Ala. 68, 69, 122 So.2d 162, it is stated:

“The practice to be pursued in obtaining the writ [of habeas corpus] from this court was very deliberately and carefully prescribed in Ex parte Croom, 19 Ala. 561. The party aggrieved by the decision of the inferior jurisdiction in the matter of his discharge must on oath present a petition or application to this court disclosing a state of case which will show that the inferior jurisdiction has erred to his prejudice and that upon the case made before that jurisdiction he is entitled to the relief he seeks. (Emphasis supplied). Ex parte Croom, supra; Ex parte Winnagle, supra, [269 Ala. 668, 115 So.2d 261].”

There is no collision between the federal law and the state law on the subject. The federal law controls, of course, as to procedure in federal courts, and the state law controls as to procedure in state courts. Otherwise, turmoil results. We do not endeavor to assay what the trial court would have concluded if it had heard the petition on its merits, if any. Its judgment in dismissing the petition was correct, in our opinion, and 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.


text:
    Charles Cartwright JACKSON v. STATE.
    1 Div. 385.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.
    John W. Coleman, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On a trial on an indictment charging him with murder, a jury found appellant guilty of manslaughter, and the court fixed his punishment at imprisonment for ten years and sentenced him accordingly.

According to an abundance of undisputed evidence, the alleged victim, Charles Ryal Hall, was killed by one of two blasts from a shotgun fired by defendant, while the victim was standing in the doorway of the Ranch Club and while the defendant and his brother were sitting in an automobile near the entrance to the club. The undisputed evidence also shows that defendant and his brother had previously been in the club that night for a long period of time and had left the building on orders of the management and Mr. Hall, the alleged victim, who was one of three “bouncers” on duty at the time. Some time after they left the club building and before the fatal incident, Mr. Hall, acting as a bouncer, sprayed mace in the face of defendant, and one of the other bouncers kicked defendant.

There was no scarcity of eyewitnesses, which included the owner, the two surviving bouncers, other employees of the club, the defendant, the defendant’s brother and some acquaintances of the defendant and his brother who were at the club that night. Other witnesses, not eyewitnesses to the homicide or the circumstances prior to the homicide, included law enforcement authorities and an expert witness, a criminalist, who testified to the effect that the alleged victim was killed by some pellets from a shotgun shell from the shotgun fired by defendant.

The agreement among the witnesses generally as to many of the facts as indicated above is in marked contrast with their disagreement as to some of the other material facts. Witnesses for the State testified that defendant’s conduct while in the club was greatly disruptive and annoying to employees and customers; witnesses for the defendant, including defendant himself, testified to the contrary. Witnesses for the State testified that appellant left the club of his own volition soon after his brother left the club and that the mace that was sprayed in appellant’s face by the victim and the kicking of the appellant by another bouncer had not occurred at that time. Their testimony was that the spraying of the mace in defendant’s face, and the kick administered to him, occurred while the defendant and his brother were attempting to re-enter the club after they had been refused permission to re-enter. Defendant and some of his witnesses testified that there was never any effort by defendant to re-enter the club and that the spraying of the mace in defendant’s face, and the assault on defendant’s brother by one of the bouncers, occurred while defendant and his brother were in the process of being ejected from the club. Witnesses for the State testified that defendant and his brother left in their automobile which was in the parking lot of the club and in about forty-five minutes returned to the parking lot in the automobile, and, while in the vicinity of the front door of the club, defendant fired at least two shots from a shotgun pointed in the direction of the door where the victim was when he was killed. Defendant and some of his witnesses testified that they did not leave the parking lot before the shooting occurred, that they made no attempt to return to the club, that defendant was in pain from the mace in his face that required washing his eyes and face and that soon thereafter they were in the process of leaving the premises, or the general area of the premises, of the club, when defendant fired the shotgun, after the alleged victim had shot two shots at defendant and his brother. They left the general area in their automobile and were apprehended soon thereafter by law enforcement authorities.

The first three paragraphs of the argument in appellant’s brief are as follows:

“The single issue presented for review on this appeal is whether the trial court should have allowed into evidence a prior specific act of the deceased.
“In this instance the Defendant shot the deceased after having had MACE sprayed in his face and had been fired upon by the deceased. (T.R. 229). The deceased had been involved in an incident on December 10, 1980, wherein the facts were almost identical. He had been involved where MACE was sprayed in a man’s face and shot in the back after a very minor disturbance at the same club. (T.R. 228).
“The law in Alabama is clear on this point in holding that prior actions are not admissible. Hall vs. State, [Ala.Cr.App.], 375 So.2d 536 [1979], Though the reputation of the murder victim for turbulence, violence and bloodthirstiness is admissible to show that the killing was in self-defense, Bankston vs. State, [Ala.] 358 So.2d 1040 [1978].”

The next sentence of appellant’s brief is thus stated:

“Your appellant urges this court to make an exception to the rule which prohibits the admission of prior specific acts of the deceased ...”

The remainder of the brief is devoted to a serious effort to effectuate “an exception to the rule,” or as Judge Bookout expressed it, in Hall v. State, supra, at page 538, “That an exception should be carved out of the . .. rule.” As much as we might have been disposed to do so at times, certainly extremely rare, if we could, it is not for us to attempt to change the law as declared by the Alabama Supreme Court. Nevertheless, we are emboldened, by appellant’s insistence upon a careful consideration of the proposition he advances, to express our views as to it.

In Hall v. State, supra, appellant sought to show a basis for an exception to the governing principle of evidence that “prior crimes of the victim” are not admissible in evidence at the instance of the defendant in a homicide case, by showing that illegal evidence of the prior crimes by defendant had been admitted against him. The effort to obtain an exception to the governing principles was rejected for two reasons: (1) it would have been repetitious of evidence already admitted of “prior crimes of the victim,” and (2), citing Gamble, McElroy’s Alabama Evidence, § 14.01 at page 13, the doctrine of “curative admissibility” is limited to the “extent that it cures the effect of the admission of the first illegal evidence.” Appellant does not claim any support in Hall v. State, supra, for his advocacy of the admissibility in evidence of any prior crimes of the victim, but he seems to think that the rejection by the court, on the grounds stated, of appellant’s contention therein that such evidence was admissible, opens the road for him to argue effectively in favor of the admissibility of the proposed evidence. In doing so, he attempts to analogize the proposed exception to one or more of the recognized exceptions to the general rule of exclusion of an accused’s commission of other crimes, as set forth in various Alabama cases on the subject and in Gamble, McEl-roy’s Alabama Evidence, §§ 69.01-70.-01(28). Appellant expressly refers to only two groups or categories of exceptions, namely, identity and plan, design, scheme or system. He does not discuss, and we see no possible applicability of, the identity exception, as there is no semblance of any dispute as to the identity of either the victim or the defendant. As to the other suggested exception, he quotes:

“Evidence of the accused’s commission of another crime is admissible if such evidence, considered with other evidence in the case, warrants a finding that both the now-charged crime and such other crime were committed in keeping with or pursuant to a single plan, design, scheme or system. This rule is applicable whether such plan, design, scheme or system is narrow and specific in scope or is measurably broad and general in scope.” Gamble, McElroy’s Alabama Evidence, § 69.-01(6) (1977)

To the material just quoted, should be added what Judge McElroy states as to the exception of “plan, design, scheme or system” in homicide cases at § 70.01(12)(d):

“In a homicide prosecution, the State is permitted to show another crime committed by the accused, prior or subsequent to the now-charged crime, if both crimes are part of a general plan, design, scheme or system. A variant of the common plan or scheme exception is the principle which permits the State, in a murder prosecution, to prove prior attempts by the accused to kill the victim of the now-charged crime.”

It may be difficult to account for the scarcity of precedents as to the admissibility of evidence of prior crimes by a victim as contrasted to the great number of precedents as to the admissibility of prior crimes of a defendant in criminal cases, but we suggest that the innumerable precedents as to the latter are largely by reason of the proper protection of the defendant against an untrue verdict in a criminal case by reason of his having committed other crimes. However, it is readily to be seen that it is only when the commission by defendant of other crimes has genuine probative effect as to the question of defendant’s guilt or innocence that the proposed evidence is admissible. We are convinced that the proposed evidence in the instant case was utterly irrelevant and immaterial to the question of the guilt or innocence of the defendant as to the express charge of the indictment, or as to any lesser included offense. There is no contention that either defendant or his brother knew or had been informed at the time of the homicide that the victim had sprayed mace in the face of another person and had thereafter shot him. Appellant does not question the soundness of the principle that proof of the victim’s reputation for violence and the like is limited to evidence as to his general reputation therefor.

We are in disagreement with appellant’s contention that “the trial court should have allowed into evidence a prior specific act of the deceased,” the only “issue presented for review on this appeal.” 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.

      . There was some confusion and uncertainty as to how many shots were fired from the shotgun. Defendant stated that three were fired. There was some evidence that five were fired. There was also evidence that defendant’s brother fired a pistol.


author: BOWEN, Judge.

text:
    Tommie Lee BRAZELL v. STATE.
    1 Div. 400.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.

      Robert F. Clark, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the capital offense involving the robbery and intentional murder of Joseph Eugene Nichols. Alabama Code Section 13A-5-31(a)(2) (1975). A jury found him guilty of murder. Alabama Code Section 13A-6-2 (1975). Sentence was life imprisonment.

I

In his oral instructions the trial judge charged the jury on the minimum and maximum sentences for various lesser included offenses (murder; robbery I, II and III; theft I; and manslaughter). The trial judge also instructed the jury that “it is the burden of the Judge to impose the penalty. You are not burdened with that responsibility.”

Defense counsel objected to that portion of the court’s oral charge “going into the punishment for lesser included offenses”: “That’s not a concern of the jury.”

Alabama Code Section 13A-5-l(a) (1975) provides that “(e)very person convicted of any offense ... shall be sentenced by the court.” This provision of our new Criminal Code, placing the responsibility for sentencing exclusively with the trial judge, changed Alabama law. Commentary to Section 13A-5-1.

In view of this new provision, we have held that requested charges stating the minimum and maximum punishments are properly refused because they do not contain “matter proper for the determination of the jury.” Brown v. State, 401 So.2d 213, 218 (Ala.Cr.App.), cert. denied, 401 So.2d 218 (Ala.1981). See also Tait v. State, 37 Ala.App. 130, 65 So.2d 208, cert. denied, 259 Ala. 16, 65 So.2d 212 (1953); Glover v. City of Birmingham, 36 Ala.App. 51, 52 So.2d 520, cert. denied, 255 Ala. 596, 52 So.2d 521 (1951); Hogg v. State, 18 Ala. App. 179, 89 So. 859 (1921).

Clearly, permitting the jury to actually fix punishment is error requiring reversal where the duty of fixing punishment on conviction is upon the court. Beard v. State, 37 Ala.App. 189, 65 So.2d 542 (1953).

The general rule is:

“In criminal cases where the assessment of the punishment is by the court and not the jury, any instruction as to the punishment is unnecessary and should not be given, because it can be of no aid to the jury in determining the issue of guilt. However, the giving of such an instruction does not necessarily constitute error .... Indeed, there is authority to the effect that the court may, without committing error, instruct as to the penalty for the charged offense.”

75 Am.Jur.2d, Trial, Section 888 (1974). In this regard, see also 28A C.J.S. Criminal Law, Section 1290 (1961), which states that “merely reading to the jury the statute which fixes the punishment (where the fixing of the punishment is the duty of the court and not of the jury), although perhaps not to be commended, is not error.”

We distinguish an instruction on the minimum and maximum punishment from an instruction or comment on the possibility of pardon or parole or the possibility of the release of one found not guilty by reason of insanity. Boyle v. State, 229 Ala. 212, 154 So. 575 (1934); McCray v. State, 261 Ala. 275, 74 So.2d 491 (1954).

Although our specific holding is one of first impression, it is not without the guidance of precedent. Under the “old” criminal code, the judge fixed the punishment for the crime of assault with intent to commit murder. Alabama Code Section 13-1-46, Section 15-18-20 (1975). In Lowery v. State, 33 Ala.App. 401, 34 So.2d 191 (1948), it was held that an instruction authorizing the jury to fix the punishment for that crime was harmless error.

In Harris v. State, 39 Ala.App. 99, 102, 94 So.2d 884 (1957), it was held that the punishment for possessing a still is prescribed by the judge, but where the court erroneously charged the jury that its verdict of guilt should include punishment, “this is treated as surplusage not affecting the power of the court.” In Harris and Lowery, it was noted, at least by implication, that such error would have required a reversal before the institution of the harmless error rule now found in A.R.A.P., Rule 45. See Leonard v. State, 96 Ala. 108, 11 So. 307 (1892); Leoni v. State, 44 Ala. 110 (1870).

Even where the jury actually fixes punishment where that duty rests with the judge, that part of its verdict should be treated as surplusage. Freeman v. State, 151 Ala. 10, 44 So. 46 (1907).

Because “(t)he verdict of a jury in a criminal case should be based solely upon the evidence adduced on the trial and be absolutely free from outside influences”, McCray, 261 Ala. at 280, 74 So.2d 491, we do not approve of the practice of instructing the jury on punishment where the fixing of punishment is the responsibility and duty of the trial judge. However, in view of the fact that the trial judge also instructed the jury that the burden for imposing the penalties for the lesser included offenses was upon the trial judge and upon the authorities we have cited, we find that these extraneous instructions constitute harmless error. A.R.A.P., Rule 45.

II

It is argued that the trial judge erred in failing to instruct the jury that the State’s use of evidence of the defendant’s prior arrests in cross examining the defendant’s character witnesses should be considered only with regard to the credibility of the witness and not the character of the defendant.

The rule is found in C. Gamble, McElroy’s Alabama Evidence, Section 27.01(5) (3rd ed. 1977).

“(I)f a witness testifies at the calling of the accused to the accused’s good general reputation as a whole, the State, on cross examination, may ask such witness whether, prior to the time of the alleged offense, he heard reports, rumors or statements derogatory of the accused. This allowance for the State to introduce testimony of the accused’s prior specific bad acts is justified upon the basis that such tests the credibility of the character witness — i.e., it tests whether he does indeed know the accused’s good general reputation .... Whenever the State utilizes this method of introducing prior specific bad acts, the attorney for the accused should move for an instruction to and ultimately a charge to the jury that they can only consider the existence of such prior acts in testing the credibility of the character witness and that they cannot consider such acts as they might reflect upon the character of the accused.”

The first time defense counsel orally requested such instructions, the trial judge denied the request stating, “Well, the instruction that you are referring to, I mean may be given to the Court in a charge at the end of the trial. This was on the State’s cross examination of defense witness Ann Robertson. At this point I would deny the motion.”

Witnesses Wesley Tillman, Bernice Spra-gue, and Pauline Moody also testified to the defendant’s good general reputation. However, there was no objection to the State’s attempted impeachment of the credibility of these witnesses by questions concerning the defendant’s prior arrests for grand larceny and fraudulent use of a credit card.

A second request was denied without comment during the State’s cross examination of witness Gilda Degeer. After this witness had been excused, defense counsel made his third request for limiting instructions.

“MR. DEEN (Defense Counsel): I would ask for instruction from the Court as to the District Attorney’s questioning about the prior arrests of the defendant, it would go towards his, Tommie Lee’s ... go towards the witness’s credibility, not towards the character of Tommie. I just ask for an instruction.
“THE COURT: I think what you are trying to ask me to do with the jury ... Members of the jury, the area relating to reputation, where on cross examination matters or specific acts are brought to the attention of the party testifying as to the good reputation, those matters relate just to the area of this particular reputation-type evidence. They don’t go to the question of guilt or innocence as to the defendant. And, of course, the defendant is not being tried on any other charges, other than the charge set out in the indictment.”

Defense counsel made no objection to this charge and did not request additional instructions. Witnesses Earl Wheeler and Erlene Wheeler were later questioned by the State about the defendant’s prior arrests, but no objection was made.

On cross examination of the defendant the State elicited testimony that the defendant pled guilty to the offense of attempting to fraudulently use a credit card.

The defendant did not present the trial judge with any written requested charge covering or concerning the oral instructions previously requested. The court’s oral charge to the jury did not mention this issue.

Although the instructions the trial court gave to the jury at the defendant’s request during the trial could have more clearly expressed the principle that the jury can only consider the existence of the prior arrests in testing the credibility of the character witness and cannot consider such acts as they might reflect upon the defendant’s character, there was no objection to the instruction as given and no request for further instruction on this principle. In view of this fact, we find no adverse ruling of the trial judge to review on this appeal.

On appeal, the defendant argues that the given instruction “was not responsive to the one requested and ... is vague and misleading.” This objection was nowhere made at trial and hence review is precluded. The proper procedure for preserving the right to assert error on appeal for the giving of an erroneous, misleading, incomplete or otherwise improper oral charge is for the defendant to object thereto, before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed, 414 So.2d 993 (Ala.1982).

Ill

After deliberating for a while, the jury returned to the courtroom and asked the trial judge to again charge them on the elements of murder and robbery. The question was, “Please describe the elements that have to be present to the charge of Murder and Robbery in the First Degree?”

The trial judge charged the jury on the elements of murder and of robbery in all three degrees. Defense counsel objected to the court’s failure to charge the jury on the heat of passion under legal provocation defense codified in the same statute which defines murder. Alabama Code Section 13A-6-2(b) (1975). In response to the exception the trial judge stated: “(T)he Court was not asked by the jury to go into these areas. And I did not, of course, go into other related areas of the charge. * * * And I limited the Court’s answers to the questions made, to strictly what the elements were of those crimes, which was all that was embodied in the question.” The trial judge then asked the jury, “Was there any desire on behalf of the jury that the Court go further in the explanation of the elements of the crime?”, to which the record reflects the jury responded, “No”.

A similar argument was advanced in East v. State, 339 So.2d 1104, 1106 (Ala.Cr.App. 1976), where this Court held, “when a jury calls for additional instruction and clearly delineates the area of its request, it is usually better for the trial court to remain within such area.” There we held it was not error for the trial judge to fail to charge the jury on the heat of passion principle where the jury requested the court “to reread what constituted first-degree murder, second-degree murder, first-degree manslaughter and second-degree manslaughter.” See also Thomas v. State, 393 So.2d 504 (Ala.Cr.App.1981) (no error where trial judge did not reread full charge on self-defense where jury returned and requested court to reread instructions on first-degree and second-degree manslaughter).

In view of the fact that the judge fully answered the jury’s specific request and upon the court’s inquiry, the jury made it clear that no further instruction was desired, we find no error in the judge’s refusal to give any additional instructions.

We have answered every issue raised on appeal. The evidence fully justifies the verdict of the jury. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Marion DENT v. STATE.
    I Div. 444.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.

      James H. Lackey, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Alabama Code Section 13A-8-41 (1975). After proper proof of three prior felonies, he was sentenced as an habitual offender to life without parole. Four issues are presented on appeal.

I

The defendant had no constitutional right to counsel at a preindictment showup. Jackson v. State, 414 So.2d 1014, 1018 (Ala.Cr.App.1982).

II

The trial judge denied the motion to allow the defendant to sit among the spectators in the courtroom with other black males. This is a matter within the discretion of the trial judge. Tucker v. State, 398 So.2d 417, 419 (Ala.Cr.App.1981); McCullough v. State, 40 Ala.App. 309, 312-13, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912 (1959). In-court identifications of an accused are not rendered improper by the fact that the accused is the only member of his race present in the courtroom. “(T)he Government is (not) faced with the choice of providing a defendant with members of his race to sit with him or foregoing in-court identification.” United States v. Moss, 410 F.2d 386, 387 (3rd Cir.1969). The defendant had no right to an in-court lineup.

III

Mobile policeman Mark Cook was properly allowed to testify that he was “made aware that there was a robbery in progress” through a “radio broadcast”. Cook’s testimony concerning the radio dispatch was used to explain the reason Cook stopped and arrested the defendant. It was not offered to prove the truth of the contents of the dispatch. As such, it was admissible and did not constitute hearsay. Cory v. State, 372 So.2d 394, 399 (Ala.Cr.App.1979); Crews v. State, 375 So.2d 1291, 1294 (Ala.Cr.App.1979).

IV

The fact that Officer Cook observed one of the victims identify the defendant at the showup held shortly after the crime was committed is an independent fact to which he could testify just as to any other fact. Abercrombie v. State, 382 So.2d 614, 615 (Ala.Cr.App.), cert. denied, Ex parte Abercrombie, 382 So.2d 616 (Ala.1980). This is an exception to the hearsay rule. Such testimony is limited for the purpose of identification and may not be considered as evidence of the truth of the matter asserted.

There are additional reasons why this alleged error will not work a reversal. The objection came too late as it was made only after the responsive answer was given. Lawrence v. State, 409 So.2d 987 (Ala.Cr.App.1982). Nothing is preserved for review as there is no ruling by the trial judge. Parker v. State, 406 So.2d 1036 (Ala.Cr.App.1981). Prior testimony had already established the fact that both victims identified the defendant, thereby “curing” any error in the officer’s testimony. Garner v. State, 53 Ala.App. 209, 298 So.2d 630, cert. denied, 292 Ala. 721, 298 So.2d 633 (1974).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Carolyn Teresa DUKES v. STATE.
    1 Div. 445.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.
    Paul Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment revoking an order of probation which was granted the appellant upon her conviction of theft of property in the third degree, for which she was sentenced to imprisonment for six months, which sentence was suspended for six months upon terms which expressly included that she “stay out of Gaylords,” a department store in Mobile, where the theft of the property for which she had been convicted and sentenced had occurred. At the probation hearing, there was testimony by the security manager of Gaylords that appellant and another female were in Gaylords within the six-month probationary period, each dressed with a maternity blouse. According to the witness, the appellant was observed by him “placing some blouses up under the maternity blouse,” and thereafter she headed toward the front door, then “went back to ladies wear, pulled the blouses out.” The store security manager then had them go to his office, from which he called for the police and both of the females wearing maternity blouses were arrested. The store security manager further testified that when he saw appellant thereafter at the District Court she was not wearing a maternity blouse and did not appear to be pregnant. No testimony was presented on the probation hearing by appellant or by anyone else in her behalf. The store security manager was the only witness on the hearing.

We have not been provided with the exact terms of the order of probation granted defendant. The term recited by the trial judge herein as the one violated by appellant, that she should “stay out of Gaylords” or, as contained in his executed written order, that she “was not to go back into Gaylords,” does not precisely accord with the charge recited in the State’s Motion to Revoke Probation, which recites that “Defendant is charged with: 1, New arrest for theft of property -2.” All of this may cause some concern as to whether there was compliance with due process standards and guidelines as set forth in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and related cases. Nevertheless, we limit our determination herein to issues raised by appellant.

Appellant continues to take the position that she took at the hearing of the motion to revoke her probation that the “probation revocation proceeding should await the resolution of the underlying criminal charges upon which those proceedings are based.” Substantially the same question has been decided adversely to appellant in a number of cases in Alabama, including the relatively recent case of Free v. State, Ala.Cr.App., 392 So.2d 857, 859, writ denied, 392 So.2d 859 (1981), in which Judge Tyson stated, supported by a wealth of authorities in Alabama and elsewhere:

“[I]t is equally clear that neither our statute, § 15-22-54 Code of Alabama 1975, nor the Constitution requires a final conviction of probationer on the offense charged before his probation may be revoked.”

The cases considering the question involve situations in which proceedings for revocation of probation were based exclusively upon the charge that the one on probation had violated a particular criminal law. It can hardly be reasonably questioned that the established principle stated in Free v. State, supra, should not apply to situations such as the one presented here, in which the term of probation that was allegedly violated was not conditioned upon the commission of any crime by appellant at the time of her return to Gaylords. Appellant was not entitled to a postponement of the proceeding for revocation of her probation until the termination of the concurrent criminal prosecution against her.

The only other insistence on a reversal is thus stated in appellant’s brief:

“That the defendant stay out of Gaylords constitutes an unconstitutional infringement of the probationer’s constitutional rights.”

We do not now attempt to pass upon whether the stated term of probation would have been an unconstitutional infringement upon a defendant’s constitutional rights under circumstances entirely different from those presented in the instant case. However, we have no doubt that in this particular case such a term or condition of probation was not an unconstitutional infringement of appellant’s constitutional rights in any respect. It appears without dispute and without question that, in the case in which she had been granted probation, she had been convicted of shoplifting or theft in the same store. The trial judge in that case manifested good judgment, in our opinion, in foreseeing that appellant’s presence in the store within the probationary period of six months would likely provoke such a disturbance as the one that actually occurred, one that would have been prevented by compliance with the particular condition of the order of probation that appellant contends was invalid. Appellant cites no authority to support her contention. Contrary to the only argument in appellant’s brief in support of it, that “it constitutes an unconstitutional burden on the probationer’s freedom of movement and bears no relationship to the delineated condition of probation, of Code of Alabama Section 15-22-52,” we note that it is related to, though not as stringent as, condition (6) of § 15-22-52, “Remain within a specified place.” Appellate courts of California have had occasion, in several recent cases, to consider the question of the validity of various conditions of probation. We agree with what was held in Gilliam v. Los Angeles Municipal Court, 97 Cal.App.3d 704, 159 Cal.Rptr. 74, 77 (1979), cert. denied, 445 U.S. 907, 100 S.Ct. 1084, 63 L.Ed.2d 323, and previous cases cited therein:

“Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.”

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.

      . The quotation is from the court reporter’s transcript as to the order recited by the trial court herein in revoking appellant’s probation. In accordance therewith, the name “Gaylords,” will be hereafter used in referring to the store even though there are indications in portions of various documents herein that the word should be “Gaylord’s,” a shortened rendition of the name of the store.


author: BARRON, Judge.

text:
    Bill MARDIS v. STATE.
    3 Div. 499.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.

      Larry E. Craven, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BARRON, Judge.

Defendant was convicted of robbery in the first degree and sentenced to life without parole.

The State’s evidence established that at 7:30 P.M. on July 22, 1981, two white males entered the Carter Hill Drugstore in Montgomery, Alabama, and, at gunpoint, robbed the pharmacist of narcotics and $90 in cash. Three eye-witnesses testified for the prosecution: Mr. Alan Rosenthal, the pharmacist; Mr. William Sanders, the deliveryman; and Mrs. Marsha Jackson, another employee.

At trial, neither Mr. Rosenthal nor Mr. Sanders was able to positively identify the defendant as one of the robbers. Rosenthal said the defendant was “similar” and had “a very close resemblance” to one of the robbers. Sanders stated that the defendant “looked just like” one of the robbers adding that he was “pretty sure it’s him.”

Mrs. Jackson, on the other hand, pointed out the defendant at trial and testified that she was sure he was one of the men who had participated in the robbery. She said that when the two men entered the store, they told her they were looking for a birthday card, and she walked with them over to the card counter. The taller man then walked back to the pharmacy, but the shorter one, whom she positively identified as the defendant, stayed with her.

After Mrs. Jackson picked out a card and handed it to him, the defendant put his arm around her waist and led her back to the office, telling her to be quiet and no one would be hurt. At one point, a customer entered the store and the defendant went to the front to wait on him. Then, according to Mrs. Jackson, the defendant returned to the office and taped the hands and feet of the three store employees while his companion loaded drugs into a sack.

Mrs. Jackson also recalled that she had seen the defendant earlier the same day. She testified that about noon on the day of the robbery, he came into the drugstore with a female companion and another individual whom she identified as James Meeks, who was also tried for robbery arising out of the same incident.

Ms. Rhonda Thornton testified that on July 22, 1981, she, James Meeks, and the defendant went to the Carter Hill Drugstore about lunchtime. As they left, the defendant stated that the drugstore “would be an easy lick” and “easy to do around closing time when there was just three people in there.” Ms. Thornton said that later the same evening James Meeks and the defendant came to her apartment, told her that they had just robbed Carter Hill Drugstore, and showed her the drugs they had taken.

Corporal Ronnie Davis of the Montgomery Police Department testified that on October 1, 1981, he advised the defendant of his Miranda rights and obtained from him a signed waiver of rights form. According to Davis, the defendant then orally admitted his participation in the drugstore robbery, telling Davis that he had waited on a customer who came into the store. Davis stated that the defendant “even laughed about charging the customer sales tax.”

On cross-examination, Davis conceded that he had not reduced the defendant’s oral statement to writing and acknowledged that he had only the following notation of any statement made by the defendant:

“Bill, have I advised you of your rights, and told you that you didn’t have to talk to me if you didn’t want to? Yes.
“Do you want to tell me about the Car-terhill Drugs robbery that you were involved in? No, I’ll just wait until a later date.
“Q. Is it anything else that you would like to add to this statement at this time?
“A. No.”

Davis explained that, as he started the typewritten statement, the defendant asked whether the codefendant Meeks had made a written statement. When the officer responded that Meeks had not given a written statement, the defendant stated that he did not want to say anything further. At that point, Davis discontinued the questioning.

I

The defendant claims that the trial court erroneously denied portions of his “Motion for Discovery” inquiring about the criminal records of, or the immunity promised to, any of the State’s witnesses. He also contends that the court erred by not granting his pre-trial “Petition for Transcript for Indigent Defendant,” in which he sought a copy of the trial transcript of his co-defendant James Meeks.

Both requests were properly denied. The “Petition for Transcript for Indigent Defendant” was a discovery device, as indicted by counsel’s statement in brief:

“At the trial of James Meeks, the State called witnesses to the stand against Mr. Meeks which were in fact the same witnesses called against Appellant at his trial. Appellant requested a transcript of said proceedings in order to assist counsel for Appellant in preparation of the case against him.”

Section 12-22-190, Ala.Code 1975, authorizes a free transcript only for a convicted defendant for purposes of appeal. See Mayola v. State, 344 So.2d 818 (Ala.Cr.App.), cert. denied, 344 So.2d 822 (Ala.1977).

There is no constitutional right to discovery in a criminal case. Brown v. State, 401 So.2d 213 (Ala.Cr.App.), cert. denied, 401 So.2d 218 (Ala.1981). Furthermore, it is within the trial court’s discretion to deny disclosure of material which might impeach the credibility of the State’s witnesses, see Oliver v. State, 399 So.2d 941 (Ala.Cr.App.1981); Mack v. State, 375 So.2d 476 (Ala.Cr.App.1978), affirmed, 375 So.2d 504 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3044, 65 L.Ed.2d 1134 (1980). The defendant has shown no abuse of discretion here.

II

The defendant also contends that the in-court identifications of him made by three of the State’s witnesses should have been suppressed because they were tainted by prior out-of-court identifications. He claims that the extra-judicial identifications resulted from a suggestive photographic array.

Initially, we note that the photographs shown to the three eyewitnesses were not introduced into evidence and it is impossible for us to determine, based upon the testimony appearing in the record, whether the photographic array was unduly suggestive. Further, we note that only one of the eyewitnesses, Mrs. Jackson, made a positive in-court identification of the defendant. Thus, it is immaterial whether the other two eyewitnesses — Mr. Rosenthal and Mr. Sanders — were presented with suggestive out-of-court photographs, since neither was able to identify the defendant at trial.

“[Cjonvictions based on eyewitness identification at trial following a pre-trial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermis-sibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968) (emphasis added).

However, even if we assume that the photographic array shown to Mrs. Jackson was impermissibly suggestive, it is clear that her in-court identification of the defendant had a basis independent of the photos she was shown. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Flowers v. State, 402 So.2d 1088 (Ala.Cr.App.), cert. denied, 402 So.2d 1094 (Ala.1981); Carter v. State, 406 So.2d 1076 (Ala.Cr.App.1981).

Applying the five factors set out in Neil v. Biggers, supra, it is clear that:

(1) Mrs. Jackson had ample opportunity to view the defendant during the robbery. She led him to the card counter, handed him a birthday card, and was escorted by him back to the pharmacy.

(2) Mrs. Jackson’s attentiveness to the defendant was evidenced by her ability to recall that he had come into the drugstore earlier that same day, and her recollection on this point was corroborated by the testimony of Rhonda Thornton.

(3) The description Mrs. Jackson gave investigating officers related to the defendant’s height and the fact that he was wearing a cap on the day of the robbery, items further corroborated by the testimony of Rhonda Thornton.

(4) During the photographic lineup, Mrs. Jackson picked the defendant’s photograph as one of two pictures resembling the man who had robbed her, stating that the people in the two photos were very similar and she would have to “see them in person.”

(5) The time between the robbery and the photographic lineup was relatively short, three and one-half weeks.

We conclude that the identification testimony was reliable and the defendant’s motion to suppress was correctly denied.

Ill

Finally, the defendant argues that testimony regarding the statement he made to officer Davis was erroneously admitted because the alleged confession was “untrustworthy,” presumedly a reference to the fact that the police officer did not reduce the oral statement to writing.

Once the proper voluntariness and Miranda predicates are established, as here, the fact that the incriminating statement was not recorded in some manner affects only its weight and not its admissibility. Beckham v. State, 389 So.2d 573 (Ala.Cr.App.1980), and authorities cited therein. Corporal Davis’s account of the defendant’s statement was, therefore, properly admitted and his credibility properly left to the jury to decide. See Sparks v. State, 376 So.2d 834 (Ala.Cr.App.1979).

We have examined the issues presented on appeal and have found no error. The judgment of conviction by the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    James Wesley GEORGE v. STATE of Alabama.
    3 Div. 578.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.

      James Wesley George, pro se.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

James Wesley George was indicted for robbery in the first degree pursuant to § 13A-8-41, Code of Alabama 1975. The jury found the appellant guilty “as charged in the indictment” and he was sentenced to life imprisonment in the penitentiary, without parole under the Habitual Offender Act. The appellant’s trial began on May 11, 1982. Just before trial, the appellant filed a formal request with the trial judge, asking that he be allowed to wear civilian clothes during the trial, particularly since he was going to represent himself at trial. The request was denied by the trial judge.

The State’s only witness was the victim, James Gibson. Gibson testified that on December 20,1981, he was an employee of the Alabama Board of Corrections at Holman Prison. On that day, at approximately 3:00 p.m., he was patrolling the main hall of the prison when he was approached by an inmate who said he was having trouble with the ice machine. Gibson went to the ice room with the inmate and saw the appellant at the ice machine flicking the switch up and down. When Gibson stooped to look at the machine, another inmate, Billy Joe Moore, placed a prison-made knife in his back and said, “Don’t make a sound, don’t make a move or I’ll kill you right where you’re at.” (R. 8).

The appellant then put a handkerchief in Gibson’s mouth and wrapped masking tape around his head. The inmates then took Gibson into the bathroom in the Chaplain’s office, took his uniform off and tied his feet and hands. Another inmate put on Gibson’s uniform.

They then took Gibson’s billfold, which contained his American Express card and a twenty dollar bill, his keys, his pocketknife and some change from his pockets.

After the inmates left, Gibson managed to free his feet and kick open the door to get to the telephone in the Chaplain’s office. He pushed the receiver off the hook and dialed central control with his hands tied behind his back. Gibson removed the gag from his mouth and told central control there was an escape in progress and to lock the prison.

The appellant put Billy Joe Moore on the witness stand. He testified that Gibson had agreed to help the inmates stage an escape and the events of that afternoon were part of a pre-arranged plan which was unsuccessful.

The appellant testified to basically the same facts as Billy Joe Moore. On cross-examination, the appellant testified to twenty prior convictions which he, the appellant, had for burglary, larceny and theft of property, three prior convictions for escape and one prior conviction for crime against nature.

I

The appellant contends the trial court committed reversible error by failing to grant the appellant’s request to wear civilian clothing during the trial itself. We agree with the appellant that in the majority of cases, courts have held that a defendant should not be compelled to attend trial in prison clothing because it would tend to prejudice the jury against the defendant and, thereby, negate the presumption of innocence. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). However, “[a] different result may be appropriate where the defendant is on trial for an offense allegedly committed while he was in prison, because the jury would learn of his incarceration in any event.” Estelle v. Williams, supra.

The appellant was on trial for an offense committed while he was an inmate at Holman prison. The jury was, therefore, certain to find out that he was in prison at the time he committed the robbery and during the course of the trial. “No prejudice can result from seeing that which is already known.” United States ex rel. Stahl v. Henderson, 472 F.2d 556 (U.S.C.A., 5th Cir.1973), cert. denied, 411 U.S. 971, 93 S.Ct. 2166, 36 L.Ed.2d 694 (1973); Estelle v. Williams, supra.

Therefore, we do not agree with the appellant’s contention and therefore hold that he was properly tried in his prison clothing.

II

The appellant next contends that he was improperly sentenced under the Habitual Offender Act. Immediately after the trial judge excused the jury, the following occurred: (R. 35-36).

“THE COURT: James Wesley George, you heard the verdict of the jury, have you anything to say why the sentence of law shouldn’t be imposed upon you at this time?
“THE DEFENDANT: No, sir.
“THE COURT: It is the judgment of the court, as found by the jury, that you are guilty of robbery in the first degree as averred in the indictment.
And in accordance with the habitual offender act, it appearing from you (sic) own testimony you have been convicted of quite a number of felonies in the past, many over three, and under the habitual offender act it says, ‘In all cases where it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony he must be punished as follows: For a conviction of a Class A felony he must be punished by imprisonment for life without parole.’
The statute doesn’t seem to give this court any alternative, therefore I sentence you to life without parole.
Now, of course, even though you have been convicted, you have a right to appeal this matter to the appellate courts of this state. If you need a transcript of the record of this court for the purpose of appeal and you cannot pay for it that will be given at state expense. If you need the assistance of counsel in perfecting an appeal and cannot hire your own lawyer that will be given at state expense. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: All right.
“THE DEFENDANT: I would like to appeal.
“MR. LOVELACE: You have forty-two days.
“THE COURT: Let me say this: When you give notice of appeal your time for having it perfected starts running at that moment. I want to advise you of that since you are not a lawyer.
“MR. LOVELACE: If you want, I would recommend you wait two or three weeks and then appeal.
“THE COURT: Because your forty-two days start and then you must have everything in the appellate courts in forty-two days. I don’t want you to get caught out and not have things get up there on time.
“THE DEFENDANT: All right, sir.”

The appellant urges that his prior convictions were not properly established. This court has held that the admission of such prior convictions, by the defendant himself, is a proper method of proving those convictions. Lyner v. State, 398 So.2d 420 (Ala.Crim.App.1981); Hope v. State, 381 So.2d 676 (Ala.Crim.App.1980); Palmer v. State, 54 Ala.App. 707, 312 So.2d 399 (1975). The following excerpt from Childers v. Holmes, 207 Ala. 382, 92 So. 615 (1922) has been cited several times by this court:

“The defendants’ objection raised the question. They objected ‘because it was not the proper manner to prove a conviction.’ The proper manner was not by this witness, but by a certified copy of the record showing it, or by the oral testimony of the person convicted. The court erred in overruling that objection to the question.” (Emphasis added, citations omitted).

See Hope v. State, supra; Palmer v. State, supra.

Thus, we hold the trial judge properly considered the testimony of this appellant concerning his prior convictions, and therefore properly sentenced him.

III

The appellant alleges he was not given a proper sentencing hearing as required by Rule 6(b)(3)(ii) of the Alabama Rules of Criminal Procedure Temporary Rules.

After the opening statements of both the state and the defense, the following occurred outside the presence of the jury. (R. 4-6).

“THE COURT: All right, what motion do you have?
“THE DEFENDANT: I have been given to understand that I am to be tried as a habitual offender; is that right?
“THE COURT: Nobody has said what you are being — whether you fall under the act or not yet. That usually comes after a conviction.
“MR. KIRKLAND: I don’t know whether he does or not. I can ask the prison officials.
Mr. Caudle says that he does fall under the habitual offender act or that he will.
“MR. LOVELACE: I think what he is wanting, if it is true, he wants proof more than just at the end. He wants proof brought out.
“THE COURT: Well, they will have to show that he is convicted before they put him under the habitual offender act.
“THE DEFENDANT: That is what I was interested in is the hearing — the habitual offender hearing. This is after the trial.
“THE COURT: This is after the trial. In other words, they ask you be sentenced as a habitual offender.
“THE DEFENDANT: Yes, sir.
“THE COURT: Your guilt or innocence is what is to be determined by the jury now of offense. If you are convicted, then they bring out whether or not you are a habitual offender before sentence is imposed by the court. I do the sentencing.
“MR. KIRKLAND: That would be proven by a presentence investigation by the probation officer — state probation officer.
“THE COURT: That would be done at the conclusion, after the jury has made their verdict one way or the other. If the jury acquits you there wouldn’t be anything to raise about a habitual offender.
“MR. LOVELACE: You wouldn’t want to raise it ahead of time and let the jury know how many convictions you have. What they are saying is that it come up until after the trial.
“THE DEFENDANT: I’m sorry. Thank you.”

On February 8, 1980, the Supreme Court of Alabama promulgated the “Alabama Rules of Criminal Procedure-Temporary Rules.” Rule 6(b)(3)(i), (ii), (iii) sets out the procedure that is to be followed for hearings pursuant to the Habitual Offender Act, and the section of that Rule relevant to this case, Rule 6(b)(3)(ii) reads as follows:

“(ii) At a reasonable time prior to the hearing the defendant shall be given notice of the prior conviction or convictions upon which the State intends to proceed.”

Advance notice is not required prior to the trial on the offense which triggers the operation of the Alabama Habitual Offender Act. Holley v. State, 397 So.2d 211 (Ala.Crim.App.1981). ... “[D]ue process of law is satisfied by ‘reasonable notice’ with ‘an opportunity to be heard relative to the recidivist charge.’ ” ... Smith v. State, 401 So.2d 251 (Ala.Crim.App.1981).

Notice of the state’s intention to proceed under the Habitual Offender Act is effectuated when the defendant is informed of this fact in open court.

Formal notice was given in this cause after the opening statements had been made, but before testimony had begun. The record seems to indicate the appellant understood he was to be tried as a habitual offender even before the trial began. (R. 4). The Supreme Court of the United States recognized in Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) that the habitual offender issue may be combined with the trial of the substantive offense or it may be the subject of a separate hearing. From the record, it appears that the trial court intended to hold a separate hearing, after a sentence investigation. However, when the appellant admitted over twenty prior convictions in open court during this trial, the judge saw no reason to delay sentencing, especially because the judge was required to give the appellant a particular sentence.

The trial judge asked the appellant at the hearing whether he had anything to say before he imposed sentence. Even though the appellant chose to represent himself, a court appointed lawyer was seated with him throughout the trial, and when he was sentenced. Neither the appellant nor his attorney raised any objection, or sought a continuance on the ground that there had been inadequate notice. The appellant had an opportunity to be heard and an opportunity to object but chose not to do so.

In these circumstances, we must reject the appellant’s argument that he was deprived of due process of law because he was not given a fair opportunity to contest his prior convictions. Oyler v. Boles, supra. We hold the trial court complied with requirements of Rule 6(b)(3) of the Alabama Rules of Criminal Procedure — Temporary Rules in sentencing the appellant to life imprisonment without parole.

This record is free of error. Therefore, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.