text:
    Tony Glen ALLRED v. STATE.
    8 Div. 349.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied July 29, 1980.

      Robert Straub, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Parnell, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was put to trial upon a two-count indictment charging him with assault with intent to rob and assault with intent to murder. Throughout the trial proceedings he was represented by counsel of his choice and at arraignment pleaded not guilty. The jury returned a verdict finding him guilty under both counts of the indictment and the court sentenced him to ten years imprisonment in the penitentiary. After sentence was imposed he gave notice of appeal and trial counsel represents him on appeal.

There was no motion to exclude the State’s evidence; there was no motion for a new trial; no exceptions were reserved to the court’s oral charge, but there was a written request for the affirmative charge which, of course, was refused.

Mrs. Jill Ann Love, the victim, was working at Handy Foods Store located on 8th Street, S.W., in Decatur, Morgan County, Alabama, on May 20, 1978, when she was stabbed six times by a young white male. She was alone in the store when this man entered the store and began looking around. May 20th was the first time Mrs. Love worked the late night shift. The young man asked Mrs. Love for some thin spaghetti and he was directed to the last aisle in the store. He did not find the kind of spaghetti he wanted and he asked Mrs. Love the price of an item in the frozen foods section. In the meantime another young white male came in the store and talked to the first man a few seconds and left the store. Mrs. Love stated that the first one to enter the store remained twenty-five or thirty minutes just looking around and she kept watching him. He was not disguised in any manner and she had a clear view of his face. This young man, later identified as appellant, asked Mrs. Love the price of the french fries. Mrs. Love did not know the price and walked to the frozen foods section where appellant was standing. She opened the top and the first package did not have a price on it. She picked up the second package and told him the amount was $1.15. As she stood up next to appellant he grabbed her and began to stab her. He stabbed her six times, threw her on the floor and went to the cash register and pushed the buttons making a ringing noise. She heard the ringing sound and it appeared to her that he was pushing the buttons trying to get the register open.

Mrs. Love further testified that the exit and entrance doors had bells attached to them and while she lay prostrate and bleeding on the floor she heard these bells ring but did not know if the second young man who talked to appellant a few seconds earlier had returned. After hearing these bells ring the second time Mrs. Love got up from the floor and ran from the store calling a Mrs. Woods next door. Mrs. Woods’ grandson came to the aid of Mrs. Love and assisted her to Mrs. Woods’ yard. He then called the police and the ambulance. She was taken to the hospital for treatment of the stab wounds and remained in the hospital about two weeks.

Mrs. Love said she saw her assailant’s face several times during the period of time he was in the store at close range and at times when they were standing side by side. She made a positive in-court identification of appellant as the person who stabbed her and threw her to the floor.

She did not see her assailant from the date of the attack until 15th of October, 1978, when she saw him at a U-Totem Store on Sandlin Road. She was sitting in a car at the U-Totem Store waiting for her husband who was in the store when appellant got out of a car. She recognized him and got the number on the license tag, and she and her husband drove home and called the police and gave them the tag number.

On cross-examination she testified that she talked to an unidentified officer at the hospital following the attack on her but did not know if he wrote down her statement. Later she talked to Detectives Collier and Crowell. She told them her assailant was wearing a reddish t-shirt and blue jeans. The shirt was short-sleeved. He was not wearing glasses and did not have a beard or mustache. She admitted that at the preliminary hearing she was uncertain about the mustache. She further said he was five feet, six or seven inches tall. At the U-Totem Store in October they pulled in behind the car occupied by appellant, which was a Toyota or Volkswagen station wagon occupied by three people, appellant, another boy and a girl. She stated appellant went into the store, came out and went to a telephone booth. Prior to the time she saw appellant at the U-Totem Store she had viewed a number of photographs but appellant was not in that photographic array. On October 17, 1978, she viewed a handful of photographs and picked out a photograph of appellant. On redirect examination she testified she did not go back to work after being released from the hospital because she was afraid.

Sergeant Kenneth Collier of the investigative division of the Decatur Police Department testified that he and Sergeant Crowell processed the Handy Food Store after the crime. They made photographs of the store and Sergeant Collier testified as to the accuracy of the scene depicted in these photographs and they were admitted into evidence over the objection of appellant.

Sergeant Robert Clark of the Decatur Police Department was called as a defense witness and testified that he received a telephone call from Mrs. Love on October 15, 1978, in which conversation she gave him the tag number of the car parked at the U-Totem Store. He traced the tag number and found that it was registered in the name of Hubert Allred, appellant’s father. Later he called Mrs. Love to the police station and showed her a number of photographs including one of appellant. Mrs. Love unhesitatingly and unequivocally identified the photograph of appellant.

On October 17, 1978, Sergeant Clark conducted a lineup consisting of five persons. Mrs. Love, without the slightest hesitation, identified appellant as her assailant. The officer then removed Mrs. Love from the viewing room while the positions of the five people were rearranged. Then Mrs. Love was returned to the viewing room and again identified the appellant.

On cross-examination he identified State’s Exhibit 8 which was a photograph of the five persons in the lineup. The photograph was introduced into evidence.

Appellant testified that he was 19 years of age at the time of the trial and would be 20 on May 6, which made him 17 at the time the crime was committed. He had a twelfth grade education and took a GED test after serving a short time in the Marines. At the time the offense allegedly occurred he was employed by Mr. James Guyse putting in central air and heat. He emphatically denied the stabbing. He stated he had been in the store a number of times both before and after Mrs. Love was stabbed. The store was on the route from his home to the place where his mother worked and he often took her to her place of employment. He said he had never seen Mrs. Love before and knew nothing about the stabbing. He stated he did not carry a knife and never had. He had been in and around Decatur from the time of the offense until the trial, but he could not state where he was at the time and place of the stabbing.

From the record:

“Q. Were you in that store on May 21, 1978, looking for spaghetti and french fries?
“A. No, sir. I am not saying I wasn’t in the store. I could have been over there, because I don’t know where I was at, but I know I wasn’t in there doing anything wrong.”

He further testified that he was presently employed as a caretaker at Johnson’s Chapel in the Danville Cemetery taking care of the cemetery and digging graves.

On cross-examination he testified that he had stopped at this store many times as it was just a handy place to stop when he needed to stop there. He was asked when the stabbing took place and replied and responded, “It happened in May; I know that.” He admitted he heard all the witnesses testify but he still maintained he didn’t stab Mrs. Love. He again said he did not know where he was on May 21, 1978.

Appellant’s mother and four other witnesses testified appellant enjoyed a good reputation in the community; that his reputation for truth and veracity was good, and they would believe him on his oath.

Appellant contends that his sole defense was an alibi and the trial court failed to adequately charge the jury on the law of alibi and erred to a reversal in refusing to give his requested charge no. 6. This charge reads as follows:

“The Court charges the jury that if you are reasonably satisfied from the evidence in this case that the defendant was at some other place and was not at the Handy Food Store, at the time and place testified to by the State’s witnesses, then, under the law, it will be your duty to find the defendant not guilty.”

The court charged the jury on the law of alibi in the following language:

“The defendant has among other defenses plead what we know in the law as an alibi. An alibi in effect means that the defendant was not present at the time and place in question, and therefore could not have committed the offense. You look to all the evidence from the case to determine from that evidence whether or not you are satisfied from the evidence beyond a reasonable doubt that he was present at the time and place in question, and whether or not he is the one who participated in the acts of violence which are charged here in this indictment. Use your common sense and judgment, as I stated before.”

The above portion of the court’s oral charge adequately and sufficiently covered the law of alibi. If the jury was uncertain as to what action they should take if they believed appellant’s alibi was proven that uncertainty was completely dispelled by given charge no. 5. Given charge no. 5 is as follows:

“The defendant sets up an alibi in the case, and the burden of proof is not changed when he undertakes to prove it, and, if by reason of the evidence in relation to such alibi, when considered with all other evidence, the jury entertáin a reasonable doubt as to defendant’s guilt, he should be acquitted, although you may not be able to find that the alibi has been fully proven.”

The law is well settled that a refused charge, stating correct principles of law, which is adequately and substantially covered in the court’s oral charge or in given charges does not constitute error. Langley v. State, Ala.Cr.App., 381 So.2d 223; Section 12-16-13, Code 1975, and the cases there annotated.

We have repeatedly held that a conflict in alibi testimony and identification testimony is peculiarly within the province of the jury to resolve. Smith v. State, 53 Ala.App. 27, 296 So.2d 925; Lindsey v. State, Ala.Cr.App., 331 So.2d 797; Mullins v. State, Ala.Cr.App., 344 So.2d 539. See Ala. Dig., Criminal Law, Key No. 747, for a collection of cases on this proposition of law.

Next appellant contends the trial judge made two remarks that prejudiced his case and this case should be reversed because of these statements. The first of these statements was made at the beginning of the trial and before any evidence was taken. The court stated:

“We are entering the case of the State of Alabama vs. Tony Glen Allred. This is a charge of assault with intent to rob and assault with intent to murder. Give me your attention, jurors, just one minute please. We will ask that no other jurors remain in the courtroom because of another case that is to be tried that may have something that would interlock it with this case to some extent. You should not be exposed to that.”

Because of this statement appellant made an objection and a motion for a mistrial without assigning any grounds. The court overruled the motion for a mistrial. We are not convinced that appellant was prejudiced in any manner, form or fashion. The remark was not addressed to the jury sworn and empanelled to hear this case but to the other prospective jurors present in the courtroom. From the record we cannot say the jury in the present case even heard the statement and if they did, whether they had any idea that appellant was charged with another offense.

In McCovery v. State, Ala.Cr.App., 365 So.2d 358, this court held:

“Remarks by the trial judge may be open to criticism, but they are not error unless they have affected the result of the trial. (Case omitted). It is not every erroneous expression of opinion by a trial judge, during trial, that will furnish a ground for reversal. To do so it must, in some manner, influence the result of the cause, or be supposed to do so.” (cases omitted).

The statement made by the trial judge in this case was harmless and certainly there was no error in denying the motion for a mistrial.

The second statement complained about was made at the close of the court’s oral charge to the jury:

“Ladies and gentlemen, we are going to let you retire to the jury room over on your front right and consider your verdict. Some time later in the afternoon if you do not reach a verdict, then we will let you go to the motel for the night. If you do reach a verdict, of course, we will discharge you until tomorrow. But do not let that affect your judgment one way or the other in the case. Give it full consideration and take such action as you think is proper according to the instructions and the evidence in the case. You can retire now.”

Appellant’s counsel responded as follows:

“Judge, I would like to enter an objection. The court said if they didn’t reach a verdict he was going to send them to the motel for the night.”

From the record:

“The Court: Do you have my full statement about that, about that not affecting their verdict in any way?
“The Reporter: Yes, sir.
“The Court: Overruled.”
“Mr. Straub: We except, to that statement.”

Appellant contends, in brief, that this “had the effect of coercing the jury to return a speedy verdict or spend the night sequestered.” We do not construe the remark of the trial judge as coercive or threatening. He charged them in plain terms not to let that affect their judgment one way or the other but to give the case full consideration according to the instructions of the court and the evidence in this case. McCovery v. State, supra.

Finally, appellant contends the trial court erred in allowing the State to bolster the testimony of the chief prosecuting witness, Mrs. Love. We do not agree.

On cross-examination appellant’s astute and resourceful counsel tried by every honorable means known to a trial lawyer to cast doubt on Mrs. Love’s identification of appellant as her assailant. On redirect the prosecutor asked Mrs. Love the following question:

“Is there any doubt in your mind whatsoever that the defendant seated over there at the table is the individual who stabbed you 6 times out there on May 20th, 1978, at the Handy Food Store?”

Counsel for the appellant objected “on the grounds that that is what the jury is to decide.” The objection was overruled. The question was not answered but was re-framed:

“Q. Is there any doubt in your mind whatsoever that the defendant seated over here at the table by his attorney, Mr. Straub, is the person who stabbed you 6 times on May 20th, 1978, at the Handy Food Store here in Decatur?”
“A. No, sir, there is no doubt.”

There was no objection to the question as reframed. Absent an objection and an adverse ruling nothing is presented to this court for review. Review on appeal applies only to rulings by the trial court. Cooper v. State, Ala.Cr.App., 331 So.2d 752; Ala.Dig. Criminal Law, Key No. 1030(1).

We have carefully searched the record for errors affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    Ex parte Tony Glen ALLRED. (Re: Tony Glen Allred v. State of Alabama).
    79-845.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   ADAMS, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Benjamin McLOYD v. STATE.
    4 Div. 782.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Oct. 7, 1980.
    E. H. Graves, Jr., Eufaula, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of rape. The court fixed his punishment at imprisonment for life and sentenced him accordingly-

Appellant says that the trial court should have granted defendant’s motion for a new trial on grounds alleging in effect that the verdict was contrary to the great weight of the evidence.

The undisputed evidence shows that the alleged victim, a married woman, was raped at her home. This undisputed fact is not questioned by appellant. His attack upon the sufficiency of the evidence is aimed exclusively at the question of the identity of the rapist. Defendant testified that he was not the guilty person. The victim, the only other eyewitness to the crime, was unable to identify defendant as the criminal. The only person at the home of the victim at the time was her seven-month-old child. According to the victim, the man who raped her ran from her home, and about that time she ran screaming from the house pleading for help.

Richard James testified that on the occasion of the crime he was sitting in a truck across the street from the victim’s residence. He shouted at the man he saw running from the victim’s residence, whom he identified as the defendant, but lost sight of him as he went behind a neighboring house. He and a neighbor, Don Ward, who was a witness also identified the man as the defendant, then pursued him in Mr. Ward’s automobile to some pecan trees, where the man left the road running; Mr. James called law enforcement authorities, and Mr. Ward remained until authorities arrived. There was other corroborative evidence, including testimony that bloodhounds were brought to the area where defendant had been seen running, that they took up the scent for a while, but that defendant obtained a taxi, and he was taken to an address that he said was the home of his uncle and aunt, but which was an apartment of Jerome Grimsley, at which defendant was living at the time.

With the exception of the testimony of the defendant, the evidence, including circumstantial evidence and some expert testimony, was extraordinarily strong against him. We see no necessity for stating further details in support of our conclusion that the verdict was amply supported by the evidence and that it was not palpably wrong or unjust.

We do not agree with appellant’s contention that the trial court was in error in overruling defendant’s motion to suppress evidence of the contents of the apartment where defendant was living with the permission of the tenant thereof on the day of the crime. The tenant, as stated above, was Jerome Grimsley, a cousin of defendant. No search warrant was obtained, but Jerome Grimsley freely and voluntarily gave his consent. Thereby there is an exception to the necessity for the procurement of a search warrant, and the fruits of the search were admissible against defendant to the same extent that they would have been admissible against Grimsley. Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Cobb v. State, Ala.Cr.App., 355 So.2d 741, (1978); United States v. Woods, 560 F.2d 660 (5 Cir. 1977).

Another issue presented by appellant is stated by him as follows:

“Did the trial court err in denying bail to the Defendant before trial? ”

Defendant filed a motion for bail on August 16, 1979. On August 24, the motion was denied. He argues that the case is not a capital case and for that reason he was entitled to bail. In Ex parte Bynum, 294 Ala. 78, 312 So.2d 52, 55 (1975), it was held:

“... The only effect of Furman, was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment.”

Perhaps strictly speaking it can be said that since the effective date of Code of Alabama 1975 the crime of rape is not “categorized” as a capital offense, in view of the deletion from the Code of the punishment of “death” from that previously prescribed and its omission from the crimes now punishable by death proscribed by the Death Penalty and Life Imprisonment Without Parole Act as codified in §§ 13-11-1 through 13-11-9. Nevertheless, we hardly see a reasonable basis for not applying the rationale of Bynum, supra, merely because the legislative department of the State has acted, as the judicial department has done, to meet the demands of Furman. Whether the rationale of Bynum still applies or not, there is other law (Code of Ala.1975, § 15-13-3(a)) that stands as an answer to appellant’s contention.

“A defendant cannot be admitted to bail when he is charged with an offense which may be punished by death if the court is of the opinion, on the evidence adduced, that he is guilty of the offense in the degree punished capitally, nor when he is charged with a personal injury to another which is likely to produce death and which was committed under circumstances such as would, if death arises from such injury, constitute an offense which may be punished by death, (emphasis supplied)”

Section 15-13-3(a) was obtained intact from Code 1940, recompiled 1958, Tit. 15, § 195, effective at the time of the rendition of Bynum, supra.

By Code of Alabama § 13-ll-2(a)(3), rape when the victim is intentionally killed by the defendant constitutes a death penalty and life imprisonment without parole crime.

There was evidence, strong evidence, of the brutal nature of the crime, including the use by the rapist of a large knife, with which he cut the victim on her hand. He choked her with both hands and threw her to the floor. The evidence is not sufficient to convince us that the victim sustained “a personal injury .. . likely to produce death,” but it cannot be said with certainty as of the time bail was denied, that the trial court was not convinced that her injury was not “likely” to produce death,” nor that defendant did not intend to kill the victim. It appears that on the hearing of the motion for bail, the parties submitted to the trial court the transcript of the evidence on the preliminary hearing, which chiefly pertained to the question whether there was probable cause for believing that defendant committed the crime of rape and not whether he was entitled to bail.

It is to be said also that if the trial court was in error in denying defendant’s motion for bail, then was the time for defendant to have attempted to review the action of the trial court. He evidently elected not to do so. We cannot assume, as he now claims, that if he had been allowed bail he would have provided bail and would then have been in a better position to defend himself by counsel than he was while confined in jail until the time of trial. There was no substantial injury to defendant, insofar as the verdict of the jury is concerned, that resulted from his failure to be granted the right to make bail.

Appellant states that the trial court was in error in not granting defendant a continuance of the case, which he requested by a written motion. The court conducted a hearing on the motion, at which no evidence was offered, but counsel for the parties presented at length their respective views. The gist of appellant’s view at the present time is stated in his brief as follows:

“The Defendant did not have the same attorneys for the preliminary hearing that he did for trial. Defendant’s trial counsel did not have adequate time, with the Defendant confined in jail with no bail, to adequately prepare the case for trial. The trial Court was advised that the defense would be alibi and that counsel needed his client to go over the ground where he had been on the date of the alleged crime and that he could not adequately get the facts without the assistance of Defendant.... The trial Judge obviously abused his discretion when he denied defendant even one short continuance to adequately prepare his defense-particularly in view of the extra security placed around Defendant.”

We are favorably impressed with the argument made by defendant’s counsel on the motion for a continuance as to the desirability and advisability perhaps of having more time to prepare the defense, as applied to the facts that the indictment was returned on August 3, defendant was arraigned on August 13, and the case was set for trial on August 27, 1979. However, we are not favorably impressed with the contention that the “trial Judge obviously abused his discretion” in the context stated above. The colloquy among the court and respective counsel for the parties on the motion for a continuance constitutes over nineteen pages of the transcript. The most specific statement by defendant’s counsel as to a need for further time to establish defendant’s claim of an alibi was with reference to the unknown whereabouts of Wallace Jerome Grimsley, a cousin of defendant mentioned hereinabove on another subject, with whom defendant was living at the time. Defendant’s attorney said:

“... Wallace Jerome Grimsley has consented [sic] himself or concealed himself or left.the State. We don’t know. We are trying to locate him through his family and tried to ascertain his whereabouts and have a talk with him. There is another point. As I said, the race question was purely for the sake of letting the emotions subside.”

Thereupon, the court made a statement which is as follows:

“... I wasn’t aware that race is an issue and if it is, I think the Defendant has made it an issue.”

Counsel for the State then said:

“Judge, I might say in response to Mr. Grave’s supposed showing that what Grimsley told the Defendant’s Mama, I would like to state that he made a statement to the police that he had no idea where the Defendant was during that period of time. He specifically stated that he was not in his apartment at that time. And the Defendant made a statement saying that he was not anywhere around Grimsley at that time.”

After further colloquy, defendant’s counsel told the court that Grimsley’s family had “been reluctant to cooperate” and that he should be ready in a “maximum of six months.” The remainder of the hearing on the motion for a continuance is shown by the transcript as follows:

“THE COURT: No, sir. We no way we wait six months to try anything around here.
“MR. GRAVES: I don’t know how long you try cases, but would it be in the next thirty days or the next sixty days before the end of the year would be fine. If you will just give us a little more time to work on this thing to establish the_ the District Attorney said in one breath, said it is so serious that he should not be allowed bail and then the next breath said that there is nothing to it. He could get out and establish his Defense right here in jail. Seems to be a little bit inconsistent. If it is that serious to be denied bail, perhaps we should have a continuance to properly present the defense.
“THE COURT: All right. Motion for Continuance denied.”

Perhaps it is significant to note that in defendant’s motion for a new trial containing twenty-three alleged grounds there was one ground alleging that the court erred in failing to grant a continuance to allow defendant “to properly prepare his Defense,” but that there was no ground pertaining to any newly discovered evidence. The motion for new trial was filed on September 27, thirty days after the verdict and judgment. It is reasonable to assume that during that thirty-day period no evidence had come to the attention of defendant or his attorney of a material or substantial nature that would have enabled defendant to have presented a stronger defense than he did. Otherwise, it seems that he would have called it to the court’s attention in his motion for a new trial.

It appears that defendant’s trial counsel had become his counsel by employment soon after defendant’s preliminary hearing, that prior to and during such hearing he was also represented by retained or employed counsel in the city of Dothan. After defendant appealed from his conviction, the trial court appointed his trial counsel, the defendant’s indigency having been established to the satisfaction of the trial court, said counsel having his office in Eufaula.

We cannot say, as appellant urges, that the trial judge “obviously abused his discretion” in denying defendant’s motion for a continuance. Appellant fails to convince us that the trial court in its consideration of all of the circumstances abused the discretion vested in it in ruling on defendant’s motion for a continuance. In the absence of an abuse of such discretion, its ruling does not constitute reversible error. Brown v. State, Ala.Cr.App., 377 So.2d 1139, cert. denied, 377 So.2d 1142 (1979); Williamson v. State, Ala.Cr.App., 370 So.2d 1054, aff’d 370 So.2d 1066 (1978); Rogers v. State, Ala.Cr.App., 365 So.2d 322, cert. denied, 365 So.2d 334 (1978).

Appellant tends to base prejudicial error upon the court’s denial of defendant’s motion for a change of venue. He begins his argument by saying, “The victim of the rape was a white woman, wealthy and prominent family, and the Defendant was a black man.” He has not shown in the trial court or here that that fact would have been any barrier to his obtaining a “fair and impartial trial” in Houston County, which is a requisite to the change of venue. Code of Alabama, 1975, § 15-2-20(a). He relies upon, and we follow, Gilliland v. State, 291 Ala. 89, 91-92, 277 So.2d 901 (1973),

“Our statute provides that this Court’s review of the trial court ruling is to be de novo, without any presumption in favor of that ruling. Title 15, § 267, supra. However, the burden was on the defendant to show to the trial court that a fair trial could not be expected. Welch v. State, 28 Ala.App. 273, 183 So. 879 (1938). Let us proceed to examine the matter as if in the shoes of the trial judge.
“The policy of our change of venue statute balances the inconvenience and administrative inefficiency of a change with the knowledge that certain crimes so arouse the public in a particular locality that a fair trial there is impossible. A study of the cases reveals that these crimes are invariably of a notorious or spectacular nature, involving violence to the person; specifically, murder and rape....”

On the hearing of the motion for a change of venue, defendant’s counsel made a two-page statement in which he stated that “there was a story that was circulating . .. it did have currency in Dothan, Houston County to the effect that ... persons who are otherwise unknown to us, had offered ten thousand dollars for the death of Benjamin McLoyd.” During his discussion of this “story,” the following occurred:

“MR. GRAVES: We would think with Sheriff Clark and the jailer and all that we can establish that it was true.
“THE COURT: It is strictly up to you, whatever evidence you want to put on. That is what I am here for.
“MR. GRAVES: All right. But, that is the evidence we propose to put on if you would like at this time.
“THE COURT: It is up to you. I am here to hear whatever you have to offer.”

Defendant then called Sheriff Clark as a witness. Sheriff Clark testified:

“Q. Have you heard or do you know of any story that was circulated subsequent to that rape that there was a reward or a contract out on Benjamin McLoyd of ten thousand dollars being offered for his death?
“A. Just routine stuff.
“Q. Did you hear it?
“A. Yes, routine.
“Q. And you and your department took extra security measures to insure the safety of Benjamin McLoyd?
“A. That is our job to insure that nothing happens. But, we have had this a number of times. We just don’t let anything happen.
“Q. I commend you for it. But, you did hear it and you did take extra precautions?
“A. I did hear it.
“Q. No effort was made at this time and he remains in your custody from the day of his arrest until the present time?
“A. Yes, sir.”

On cross-examination, Sheriff Clark testified:

“Q. You haven’t heard it out in the community anywhere?
“A. No, sir.
“Q. That is the only place you got it?
“A. Only place. [He had said that one of the people working in his department had heard two or three people talking about it while at coffee.]
“Q. No one has made any attempts on him that you know of?
“A. Not that I know.
“Q. You haven’t heard any talk around the community?
“A. No, sir. I haven’t.
“Q. You get around the community pretty much don’t you, Sheriff Clark?
“A. See a lot of people.
“Q. And all of that is going around the County and everything, the only time you have ever heard anything on this was one occasion?
“A. One time.
“Q. And somebody in your department told you about it and as usual, you made extra security precautions? Not because your thought it was real or_
“A. We didn’t want anything to happen. Routine.
“Q. In your opinion, can he get a fair trial here in Houston County?
“A. In my opinion, he could.
“Q. Okay.”

After Sheriff Clark testified, defendant’s attorney stated:

“Your Honor, the Sheriff was pretty much it. We had a jailer and so forth, but Your Honor has gotten that and there is no need, it will probably be cumulative. It is going to be pretty much the same thing, that they took_ Your Honor sees that, so I don’t know that we need them.”

Thereafter, defendant called as a witness defendant’s mother, who testified that she had heard stories that a contract for ten thousand dollars had been placed on defendant’s life.

Appellant’s attorney also argues, as he did in the trial court, that the “newspapers, T.V., and radio in the area had given prominent play to the details of the rape and the arrest of the Defendant.” There was no claim, and certainly no evidence, that such publicities were slanted in any way against defendant. Appellant argues that “Defendant’s cousin had been involved in an alleged rape and been acquitted and later convicted for a subsequent rape.” In addition, he reminds us that McLoyd v. State, Ala.Cr.App., 373 So.2d 1175 (1979) was an appeal from a conviction of rape in Houston County. Whether the McLoyd in that case was a kinsman of appellant, we are not informed, and the writer does not know. There is no statement of fact in the record proper or in the transcript, by testimony or otherwise, that prospective jurors in the county had been generally impressed by anything they had heard relative to the case. The transcript does not show that any of the panel of jurors from whom the jury that tried the case was selected had any knowledge or information relative to the case.

The record, including the transcript of proceedings, shows the possibility of the inability of defendant to obtain a fair trial in Houston County. It does nothing more. There is no showing of error prejudicial to defendant in the denial of his motion for a change of venue. McLaren v. State, Ala.Cr.App., 353 So.2d 24, cert. denied, 353 So.2d 35 (1977); Burnett v. State, Ala.Cr.App., 350 So.2d 718 (1977).

Appellant’s final insistence on reversible error is as to the action of the court is allowing a witness to testify as to incriminating statements made by defendant to him, which were taped and which the witness said had been transcribed by typing and that thereafter the taped material had been erased from the tape, in accordance with normal practice. The transcribed statement was not offered in evidence. The witness was a person who took the statement by tape and said he was thoroughly familiar with all the questions and answers therein, although it appears that he used the transcribed statement in refreshing his recollection. This was permissible.

“The law recognizes the right of a witness to consult a memorandum to aid in his recollection in two instances. The first is when the witness is able to look at a memorandum and, from it, have his memory so refreshed that he can testify, as a matter of independent recollection, to facts pertinent to the issue Gamble, McElroy’s Alabama Evidence § 116.01 (1977)

Appellant’s reliance upon Pinkston v. State, Ala.Cr.App., 365 So.2d 364 is misplaced, for in Pinkston, the particular question involved was as to the introduction of a memorandum itself without a proper predicate.

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

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

AFFIRMED.

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

BOOKOUT, J., concurs in result.

      . Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 26, 33 L.Ed.2d 346 (1972).


author: MADDOX, Justice.

text:
    Ex Parte: Benjamin McLOYD. (Re: Benjamin McLoyd v. State of Alabama).
    80-70.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   MADDOX, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: BOWEN, Judge.

text:
    Leslie Leroy CARTEE v. STATE.
    3 Div. 232.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.

      J. Cliff Heard, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for burglary in the first degree. Sentence was ten years’ imprisonment. The defendant is represented by retained counsel both at trial and on appeal.

The State contends that the defendant broke into a trailer and attempted to sexually assault Mrs. Ruby Odom and her eleven year old daughter, Wanda. Only the eyewitness testimony of Mrs. Odom and her daughter identified the defendant as the intruder. There was no physical evidence placing the defendant at the scene of the crime.

On appeal the only contention by the defendant is that the pretrial identification procedure was so unnecessarily suggestive of and conducive to irreparable mistaken identification as to deny him due process of law.

Within minutes after the crime had occurred, Mrs. Odom and Wanda had identified the defendant as the intruder. The defendant was apprehended almost immediately having been found sitting on the front steps of his trailer which was located only one or two streets from Mrs. Odom’s trailer. The crime occurred about 1:30 on the morning of August 4, 1979. When discovered, the defendant was perspiring “profusely”. The police brought the defendant back to Mrs. Odom’s trailer and asked both Mrs. Odom and her daughter to identify “the suspect”.

Mrs. Odom and her daughter both testified that Wanda first identified the defendant. (Officer L. L. Beavers testified that Mrs. Odom saw and identified the defendant before her daughter did.)

Mrs. Odom testified that she initially refused to identify the defendant because she was scared that “he would come back and hurt” them. At that time, Wanda “jumped up off the couch and went to the door and said, that that was the man that had broken in our house.”

Wanda testified that she observed the defendant who was standing on the patio to their trailer. A police officer was standing beside him “[a]nd the others were near; checking fingerprints.” There were “in between four and eight” officers present. The officer with the defendant was “asking the guy some questions, or something like that.”

At trial Wanda testified that she could not remember if the officers “was reading [the defendant] his rights, or asking him some questions.” The defendant was facing Wanda and she positively identified him. She was never shown any pictures of the defendant.

Mrs. Odom also identified the defendant. However, when she looked out the window of the trailer to make her identification, the defendant was “sitting on a concrete block right below the window.” Mrs. Odom only saw the back of the defendant’s head and never saw his face. Despite this she testified that she could identify the defendant “from being the guy that was in my daughter’s room when I went in there.” Mrs. Odom stated that, based on her examination of the man while he was in the trailer, there was no doubt that the man in the trailer was the same man she saw outside.

On August 6th, Mrs. Odom was shown three photographs of the defendant. She was not shown photographs of anyone else. She was told that the defendant had a past record for burglary.

Even if there has been an unduly suggestive pretrial identification procedure, the in-court identification testimony need not be excluded if the prosecution can establish by clear and convincing evidence that the in-court testimony, rather than stemming from the unfair pretrial confrontation, has an independent source. Brazell v. State, 369 So.2d 25, 29 (Ala.Cr.App.1978) cert. denied, 369 So.2d 31 (Ala.1979).

“Whether an in-court identification has been so tainted by an extrajudicial identification as to vitiate the in-court identification is not to be determined solely by the circumstances of the extrajudicial identification, but all of the circumstances relative to the identification of defendant by the witness are to be taken into consideration, and if it is determinable therefrom that an in-court identification was independent of the extrajudicial identification, evidence of the in-court identification is admissible.”
Matthews v. State, 361 So.2d 1195 (Ala.1978).

In Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), the United States Supreme Court listed five factors which should be considered in determining whether an independent basis exists for the in-court identification. See also Griffin v. State, 356 So.2d 723 (Ala.Cr.App.) cert. denied, 356 So.2d 728 (Ala.1978).

We now apply the Neil standards to the facts of this case.

A. Both Mrs. Odom and Wanda had an opportunity to view the criminal at the time of the crime. Both observed the defendant’s face in Wanda’s bedroom where a light from the bathroom was shining directly on the bed. Wanda stated that she observed the defendants face for “one or two minutes”. Although Mrs. Odom did not state how long she observed the defendant, she testified that she “stared” at him.

B. There is no direct testimony on the witnesses’ degree of attention. Both were extremely frightened. Mrs. Odom stated that when she realized that the intruder was not her boyfriend her “mind went blank” and she was “petrified” and for those reasons did not think about shooting the man when he jumped up and ran out of the trailer although she was holding a pistol and had threatened to shoot. She testified that she was nervous and scared to death. The police helped calm her down. Wanda testified that she was so scared that she could not scream.

C. The witnesses’ prior descriptions of the criminal were very accurate. One investigating officer testified that the defendant fit the description “they” had given “per word”. Another officer stated that the defendant fit the description the “young lady” had given him “exactly”. Neither witness mentioned a tattoo on the defendant’s left upper arm or a scar on his face. However, we have no picture of either of these distinguishing features and have no idea of how distinctive or prominent they were, if indeed, they were at all.

D. Both witnesses exhibited a high level of certainty at the confrontation. Mrs. Odom stated that she positively identified the defendant even though she only saw the back of the defendant’s head. She testified that she was positive that the defendant was the intruder and that her identification was “from [the defendant’s] being the guy that was in my daughter’s room when I went in there” and that her in-court identification was not based on the time she observed the defendant outside her trailer after his capture. One investigating officer stated that when Mrs. Odom identified the defendant she said that she “thought” or “believed” that he was the intruder. While the fact that Mrs. Odom only observed the back of the defendant’s head at the confrontation does give us some concern, we do not think that it invalidates her identification. See United States v. Lee, 485 F.2d 1075 (D.C.Cir.1973), where it was held that a confrontation in which the robbery victim viewed the defendant while he was lying face down on the floor and was handcuffed with his arms behind his back was permissible and was not highly suggestive. Additionally, we note:

“It undoubtedly is true that face-to-face encounters are involved in most cases where on-the-scene identification evidence is held to be admissible.... However, a witness’ close observation of facial characteristics is not necessary to warrant such a confrontation. Where a witness has had sufficient opportunity to observe the figure of a person committing a crime, and has a vivid impression of such characteristics as height, build, race, hair style, and clothing, an on-the-scene identification may be appropriate.”
Nichols v. United States, 343 A.2d 336, 344 (D.C.App.1975).

Wanda testified that she identified the defendant because “he resembled the man very close, very much.” She stated that she was positive about her identification and that her identification was based “on the looks, the identity that I had given” the police.

E. The length of time between the crime and the confrontation was extremely short. Immediately after the intruder ran away, Mrs. Odom telephoned the police. While she was still on the telephone the police arrived and Mrs. Odom initially thought that the criminal had returned. There was testimony that the police arrived when the criminal had “just left”. Two or three minutes after the first policemen arrived, another officer arrived with the defendant in custody.

One-man showups that are conducted shortly after a crime has been committed are not per se violative of due process and evidence obtained through the use of such an identification procedure is not necessarily inadmissible. The question is whether under the totality of the circumstances the identification was reliable even though the confrontation procedures may have been suggestive. United States v. Howard, 426 F.Supp. 1067, 1070 (W.D.N.Y.1977). The test to be applied in determining whether due process is denied by introduction of proof of the results of a pretrial “showup” is whether in the totality of circumstances the process was so suggestive as to create a very substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 196-201, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Although the opportunity of the witnesses to observe the defendant during the crime was brief, the showup occurred only minutes later and the witnesses were able to identify the defendant by distinctive characteristics of his clothing and general appearance. See United States v. Caades, 549 F.2d 1303, 1305-1306 (9th Cir. 1977). As was noted in U. S. ex rel. Moore v. People of State of Ill., 577 F.2d 411, 413 (7th Cir. 1978):

“[W]e are not free to suppress a witness’s identification of a suspect at trial merely because the suspect had been exposed to the witness in a highly and unnecessarily suggestive manner. Rather, in asserting whether the suspect’s right to due process of law has been violated by the admission of an in-court identification, we are bound to weigh the corrupting effect of the suggestive confrontation against indi-cia bearing on the reliability of the identification for ‘reliability is the linchpin in determining the admissibility of identification testimony.’ ”
Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

Weighing the “totality of the circumstances” bearing on the question of whether the suggestive confrontation gave rise to a “very substantial likelihood of misidentifi-cation” and taking into account many factors, including those listed in Neil, 409 U.S. 188, 198-200, 93 S.Ct. 375, 382, we conclude that Mrs. Odom’s and Wanda’s identifications of the defendant at trial were reliable even though their initial confrontations with him after the crime were suggestive.

These same factors reveal that the witnesses’ in-court identification of the defendant was based upon observations of him independent of the pretrial confrontation. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

The justification for the return of a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before is found in Russell v. State, 408 F.2d 1280, 1284 (D.C. Cir.), cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969).

“Unquestionably, confrontations in which a single suspect is viewed in the custody of the police are highly suggestive. Whatever the police actually say to the viewer, it must be apparent to him that they think they have caught the villain. Doubtless a man seen in handcuffs or through the grill of a police wagon looks more like a crook than the same man standing at ease and at liberty. There may also be unconscious or overt pressures on the witness to cooperate with the police by confirming their suspicions. And the viewer may have been emotionally unsettled by the experience of the fresh offense.
“Yet, on the other hand, recognition of a person or face would seem to be as much the product of a subjective mental image as of articulable, consciously remembered characteristics. A man may see clearly in his ‘mind’s eye’ a face or a figure which he is hard put to describe adequately in words. Though the image of an ‘unforgettable face’ may occasionally linger without any translation into words, photographic recall is most often ephemeral. Vivid in the flash of direct observation, it fades rapidly with time. And the conscious attempt to separate the ensemble impression into particular verbalized features, in order to preserve some recollection, may well distort the original accurate image so that it is the verbalized characteristics which are remembered and not the face or the man.
“Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations in circumstances like those of this case will ‘if anything promote fairness, by assuring reliability * *.’ ”

An “unusual number” of policemen present at the time of the identification and “nervousness on the part of the eyewitness” do not, in and of themselves, inject those “special elements of unfairness” rendering the confrontation procedure so unduly suggestive as to violate due process. United States v. Hines, 455 F.2d 1317, 1328 (D.C.Cir.1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972). The same is true of the fact that the two victims were together when they identified the defendant. United States v. Wilson, 435 F.2d 403, 405 (U.S.App.D.C.1970). These are only factors which must be weighed and balanced against the reliability of the identification. After examining the totality of the circumstances we do not believe that the identification procedure was so unnecessarily suggestive and the identification itself so unreliable as to require a reversal of this case under the prevailing case law. Dominant aspects of the circumstances in this particular case are that the identifications were made virtually within minutes of the crime; that both witnesses were positive in their identifications; and that the witnesses had given accurate descriptions of the criminal.

In addition to addressing the single issue raised on appeal, we have searched the record for error as required by law. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: JONES, Justice.

text:
    Ex Parte Leslie Leroy CARTEE (Re: Leslie Leroy Cartee v. State of Alabama).
    80-29.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   JONES, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: TYSON, Judge.

text:
    Tommy Frank HARE v. STATE.
    6 Div. 101.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.
    J. Louis Wilkinson and Charles M. Purvis, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Tommy Frank Hare was indicted for unlawfully possessing eleven different narcotic drugs, contrary to the Alabama Uniform Controlled Substances Act. The jury found the appellant guilty as charged, and the trial court set sentence at ten years imprisonment.

The appellant’s attorneys filed a pretrial motion to suppress, which was heard and denied just before trial.

At the suppression hearing Birmingham Detective Sergeant John Cameron Guy, Jr., testifies that, in May, 1977, he obtained a search warrant for the residence located at 1417 Fourth Avenue, West, in Birmingham, from Judge W. W. Stewart, and, immediately thereafter, accompanied by other officers, went to the Hare residence on May 8, 1977, about 1:15 a. m., and knocked on the front door. At first, there was no answer in reply to the officers’ knock and announce. After repeating this and sending fellow officers to the rear door of the residence, the front door was opened and Sergeant Guy went in, served the search warrant and arrested the appellant as he was coming out of an upstairs bedroom at his parents’ home. They also arrested his brother, Robert Hare, who was observed coming out of another bedroom. Detective Guy stated that he first observed the appellant and the appellant’s wife as they walked from an upstairs bedroom into the hallway. He stated that he had gone in the front entrance with Lieutenant Bibb and that Sergeant Trucks and Officer Jim Reed had entered through the rear door of the residence.

Officer Guy indicated that the appellant’s mother had belatedly answered the front door, and that, after serving the search warrant, the officers went into the bedroom from which Tommy Frank Hare and his wife had emerged and there found a brown paper bag containing a large number of drugs of various kinds. These drugs were seized pursuant to the warrant and delivered to the State Department of Forensic Sciences for identification and examination.

Sergeant Guy and Sergeant Trucks stated that they had sent a confidential informant to the home of Tommy Frank Hare’s parents where, on the evening of May 7, 1977, the source had purchased narcotic drugs from Tommy Frank Hare and returned with a pinkish heart-shaped drug which they believed to be amphetamines. Within a very short time thereafter, the two officers went to the home of Judge Stewart and obtained a search warrant for the Hare residence, based upon the information supplied by the confidential informant and the drugs which were delivered to them shortly before 10:00 on the evening of May 7, 1977.

The appellant’s pretrial motion to suppress was overruled.

At trial both Sergeant Charles Trucks and Sergeant John Cameron Guy repeated their testimony concerning the events on the evening of May 7,1977, establishing the sending of an informant to the Hare residence, the informant’s return with the pinkish heart-shaped amphetamine capsules, and the subsequent obtaining of a search warrant, based on this information, from Judge Stewart at his home. The two officers then told of going to the Hare residence, knocking several times and announcing their presence and purpose before finally being admitted at the front door by the appellant’s mother and serving the search warrant on her. The officers described the residence as a two-story dwelling, white in color, and stated they were admitted to same about 1:10 a. m. on the early morning of May 8, 1977, that shortly thereafter, upon observing the appellant and his wife coming from a bedroom, they went to the bedroom and found the brown paper bag containing the eleven different amphetamine and barbiturate drugs. These drugs were each identified at trial by State Crimi-nalist Arthur Craig Bailey, whose qualifications were admitted by stipulation at trial. Among the drugs found in the brown bag in the bedroom occupied by the appellant were: 48 capsules of a depressant known as ethchlorvynol, 50 capsules of meprobamate, another depressant, 49 capsules of methamphetamine, which is used to control obesity, 156 tablets of methylphenidate, a stimulant, 93 pethidine tablets, which is a pain killer, 178 capsules of pentobarbital, which is designed to induce sleep, 487 tablets of phenobarbital, also a sleeping tablet, and 185 capsules, which were a combination of secobar-bital and amobarbital, also a sleeping tablet, and 992 capsules of butalbital.

Mr. Bailey indicated that all these drugs were controlled items under the Alabama Controlled Substances Act and required the prescription of a registered medical practitioner. Mr. Bailey stated that the substance butalbital was a salt derivative of barbituric acid, and, as such, was found in Schedule Three of the Controlled Substances Act. This was in response to questioning by defense counsel.

Sergeant Trucks was recalled and stated that only the appellant and his brother, Robert, were taken into custody on the early morning of May 8, 1977.

Mr. Bailey, State Criminalist, was recalled and stated that the eleven different types of drugs found at the Hare residence and delivered to him on May 9, 1977, were examined by him at his Birmingham office on July 28, 1977, and that no one else had custody of the drugs other than himself.

The appellant’s motion to exclude the evidence, made at the close of the State’s case, was overruled.

The appellant’s sister, Barbara Hare, testified that she was a school teacher in Birmingham and it was necessary for her mother to have several different types of drugs as a result of surgery in 1975, in which part of her intestines were removed. She admitted on cross-examination, however, that she was not familiar with some of the drugs exhibited to her at trial.

The appellant’s wife, Daphne Lynn Hare, testified that she and her husband were in bed asleep when his brother, Robert, banged on their bedroom door and stated that some police officers were downstairs and to get up. She stated that her husband was just partially dressed and walked out in the hallway where the police officers arrested him.

The appellant’s mother, Mrs. Dorothy Hare, testified that she had a son named Robert, a son named Tommy, and a son named Johnny, and a daughter named Barbara. She indicated that she usually slept downstairs in her home after surgery in 1975 and she had taken some medicine and was sound asleep when she heard some banging on her front door. She stated she finally opened the door and that her son, Robert, ran to her and asked her not to open the door unless the officers had a search warrant. She stated that her son Tommy and his wife were still upstairs when a number of uniformed officers came into the home with a search warrant and that later she saw them leave with a large sack. She stated that she had a prescription for certain drugs which were needed as a result of extensive surgery.

I

Appellant first argues that the State did not sufficiently prove the allegations of the indictment in that a substance known as “butalbital” was not properly shown to be on the controlled substances list, therefore, his motion to exclude should have been granted.

Careful examination of the record in this cause and the testimony of Mr. Arthur Craig Bailey clearly establishes that he stated at trial that “butalbital” was one of the thirteen different narcotics or controlled substances found in the bag which was brought to him, and that the same was a “controlled substance” under Schedule Three of the Code of Alabama 1975, § 20-2-27(a)(2)(a). Clearly, therefore, the State properly proved the allegations of the indictment, hence, the trial court properly overruled the appellant’s motion in this respect.

II

The appellant next asserts that the affidavit and warrant obtained from Judge Stewart were faulty in that such was a “nighttime warrant” and there was no positive averment that drugs were present at the specified home.

Examination of the affidavit, executed before Judge Stewart, reveals that the affi-ant stated twice that he had “probable cause” to believe that drugs or narcotics were present at the home of Tommy Frank Hare and in his possession at 1417 Fourth Avenue, West, which was the residence of the appellant’s parents. This court is of the opinion that there was a sufficient specific averment, as required by the provisions of the Code of Alabama 1975, § 15-5-8. We believe that Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975), is dispositive of the issue here presented.

Ill

The appellant finally asserts that the State did not sufficiently prove the appellant to be in possession of the drugs seized at his parent’s home on the night of May 7-8, 1977.

Two officers testified that they saw the appellant walk from the bedroom door, partially clothed, and the appellant asked permission to return to get his shoes and shirt. As the appellant did so, the brown sack inside the bedroom was in plain view of the officers and was observed by them. This was the bedroom in which the appellant and his wife were sleeping and which the appellant’s mother had indicated was the appellant’s bedroom.

We believe that the State, therefore, properly proved possession of the seized drugs and that the trial court properly submitted this issue to the jury for its determination. McHellen v. State, 351 So.2d 689 (Ala.Cr.App.1977), and cases therein cited.

We have carefully examined this record and find same to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


text:
    Ex Parte Tommy Frank HARE. (Re: Tommy Frank Hare v. State of Alabama).
    80-31.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   MADDOX, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


text:
    Cary HAWKINS v. STATE.
    6 Div. 109.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.

      Ferris S. Ritchey, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., and Charles M. Allen, II, Montgomery, for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for a violation of the state statute prohibiting the sale of any obscene work. Alabama Code § 13-7-181 (1975). The obscene matter was an issue of the magazine “Cie-Lav-ie”. The jury imposed a fine of one thousand dollars to which the trial judge added a prison term of one year.

I

In Holderfield v. City of Birmingham, 380 So.2d 990 (Ala.Cr.App.1979), cert. denied, 380 So.2d 994 (Ala.1980), this Court held that the statute requiring that all cases in municipal courts shall be tried by a judge without a jury is not unconstitutional as it applies to an obscenity prosecution in the municipal court. Holderfield, 380 So.2d at 993.

II

The defendant also contends that he was entitled to a trial by jury in the District Court because the maximum authorized penalty for a violation of Alabama Code § 13-7-181 (1975) is a ten thousand dollar fine and one year imprisonment. We need not determine whether this offense is “serious” or “petty” within the meaning of Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976), held that even where the Constitution guarantees an accused a jury trial, it does not also require that he be permitted to exercise that right at the first trial in the lower tier of a two-tier system of trial courts, where under the system a person accused of a crime is tried without a jury in the first instance in the lower tier and then may take timely “appeal” to the second tier, and if he so desires have a trial de novo by jury.

Ill

The defendant’s allegations of unconstitutional discriminatory enforcement were answered by this Court in Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Cr.App.), cert. denied, 377 So.2d 1134 (Ala.1979).

We have searched the record for error and found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: SHORES, Justice.

text:
    Ex Parte Cary HAWKINS. (Re: Cary Hawkins v. State of Alabama).
    80-36.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   SHORES, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: BOWEN, Judge. BOWEN, Judge.

text:
    Roy Frank CLEMENTS, alias Roy F. Clements, alias Roy Clements v. STATE.
    7 Div. 739.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 28, 1980.

      Myron K. Allenstein and Charles C. Hart, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of Dora Mae Ford. Sentence was life imprisonment.

I

The defendant was originally indicted and convicted under the Alabama Death Penalty Act for the robbery and first degree murder of Dora Mae Ford. He was sentenced to death. Clements v. State, 370 So.2d 708 (Ala.Cr.App.1978). This conviction was reversed and remanded on appeal. Clements v. State, 370 So.2d 723 (Ala.1979), on remand, 370 So.2d 730 (Ala.Cr.App.).

The defendant was then tried twice under the original indictment. Each trial resulted in a mistrial when the jury could not agree upon a verdict. Although the defendant states that the second mistrial was granted over his objection, the actual propriety of and necessity for the mistrials are not questioned on appeal. Since there is no record of the occasions of these mistrials, the actions of the trial judge must be presumed proper. After these two mistrials, the defendant was reindicted for murder in the first degree and robbery in a two count indictment. The robbery count was dismissed before trial because of the statute of limitations and the defendant was tried only on the murder charge. A jury convicted him of first degree murder and the trial court sentenced the defendant to life imprisonment. After the defendant’s conviction, the Supreme Court of the United States held that the death penalty may not constitutionally be imposed in the manner provided by the Alabama Death Penalty Act. Beck v. Alabama, - U.S. -, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

The defendant maintains that the “rein-dictment” provision of the Alabama Death Penalty Act is unconstitutional and violates the constitutional provisions against double jeopardy. We disagree. The act only authorizes the State to do what it can do in any case.

Alabama Code Section 13-ll-2(c) provides, in pertinent part:

“The court may enter a judgment of mistrial upon failure of the jury to agree on a verdict of guilty or not guilty or on the fixing of the penalty of death. After entry of a judgment of mistrial, the defendant may be tried again for the aggravated offense, or he may be reindicted for an offense wherein the indictment does not allege an aggravated circumstance.”

Section 9 of the Alabama Constitution of 1901 and Alabama Code Section 12-10-233 (1975) give the trial judge the authority and discretion to discharge a jury upon a failure to agree. Parham v. State, 285 Ala. 334, 231 So.2d 899 (1970); Parham v. State, 47 Ala.App. 76, 250 So.2d 613 (1971); Orr v. State, 40 Ala.App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). A jury’s inability to agree either on a verdict or punishment is a proper reason for the declaration of a mistrial. After such a mistrial, the retrial of the defendant is not barred by double jeopardy. Alford v. State, 243 Ala. 404, 10 So.2d 373 (1942); Curry v. State, 203 Ala. 239, 82 So. 489 (1919); Parker v. State, 51 Ala.App. 362, 285 So.2d 526, cert. denied, 291 Ala. 795, 285 So.2d 529 (1973); Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973); Powell v. State, 37 Ala.App. 192, 65 So.2d 718 (1953). “A mistrial is no trial.” Willingham, 50 Ala.App. at 366, 279 So.2d 534. When the jury fails to agree on a verdict, the whole proceeding is completely nullified and nothing remains which can benefit the defendant. Powell, 37 Ala.App. at 193, 65 So.2d 718.

The fact that a second indictment was filed against the defendant is of no constitutional significance. An indictment is not subject to abatement because another charge is pending against the defendant for the same offense. Howard v. State, 29 Ala.App. 199, 194 So. 853, cert. denied, 239 Ala. 274, 194 So. 857 (1940).

“It is generally held that a grand jury may find a valid indictment notwithstanding another indictment . .. against accused for the same offense .... It has been so held, even though accused has been ... tried thereon where the jury have failed to agree, ...”
42 C.J.S. Indictments & Informations § 34a (1944).
* * * * * #
“It is also well settled that the fact that an indictment is pending does not prevent the finding of another indictment for the same act as constituting another or a higher or lesser offense.”
42 C.J.S. Indictments & Informations § 34b (1944).

This is not a case where the defendant was convicted of a higher offense on retrial or where the State gained some advantage by the retrial. See Galloway v. Beto, 421 F.2d 284 (5th Cir. 1970); Smith v. State, 253 Ala. 277, 44 So.2d 250 (1950); May v. State, 55 Ala. 164 (1876). This is not a case of prosecutorial manipulation.

The defendant’s plea of former jeopardy is without merit. Howard, supra. We find no error in the declaration of the mistrial, the reindictment and the retrial of the defendant.

II

The defendant requested the following written charge:

“INSTRUCTION NO. 33
“Under the felony murder doctrine, if an accused is involved in the commission of one felony and two individuals are killed during the commission of such felony, the accused is guilty of only one charge of murder in the first degree.”

The defendant bases his argument on Kilpatrick v. State, 257 Ala. 316, 318, 59 So.2d 61 (1952). However, the entire principle stated in Kilpatrick is correct and reveals the defendant’s argument to be without merit.

“Sometimes as a part of a single transaction more than one offense is charged to have been committed. If a person does a single act which results in the injury or death of more than one person, only one offense can be fastened upon him. But if in that occurrence he shoots different persons by different discharges of his firearm, an offense can be fastened separately as to each person so injured or killed, although there was but one transaction, and upon a trial for one such offense the whole transaction is admissible.”

III

Count II of the indictment charged the defendant with robbery. Prior to trial this count was dismissed on motion of the defendant because the three year statute of limitations on the crime of robbery had expired. Alabama Code Section 15-3-1 (1975). The defendant contends that since a felony murder was involved and prosecution for the underlying felony (robbery) is barred by the statute of limitations, the defendant cannot be prosecuted for felony murder. By statute, “There is no limitation of time within which a prosecution must be commenced for any public offense which may be punished capitally, murder in the first or second degree, ...” Alabama Code Section 15-3-5 (1975). Also, by statute, “Every homicide ... committed in the perpetration of, or attempt to perpetrate, any ... robbery, .. is murder in the first degree.” Consequently, there is no statute of limitations for a homicide constituting felony murder.

With regard to the defendant’s arguments involving the felony murder doctrine, we note that the defendant was indicted for murder in the first degree. The indictment does not specifically charge felony murder.

In giving its oral charge, the trial judge instructed the jury, among other things, on the elements of murder in the first degree and on the principles of accomplice liability. Only in giving some of the written charges requested by the defendant was the jury introduced to the felony murder doctrine. From the record, it appears that the State was content to try the defendant for his actions as an accomplice as it had done and been required to do in the three prior capital cases. Clements, 370 So.2d 708. Since the defendant injected the felony murder doctrine into this case he should not be heard to complain.

IV

The defendant questions the sufficiency of the evidence to support this conviction. The facts of this case are substantially identical to those reported in Clements, 370 So.2d 708. There we found the evidence sufficient to support the verdict. There, under the Alabama Death Penalty Act, the felony murder doctrine could not be applied to supply the intent for the intentional killing necessary in a capital prosecution. As Judge Bookout, in his dissent, noted:

“He [the defendant] could be charged equally with Beck for the murder of Mrs. Ford even though he did not personally do the killing. Under the facts set out in the record, the jury could infer that Clements had reason to know before going to the residence that Beck was sharpening his knife for a killing should such become necessary to effect the planned robbery.” Clements, 370 So.2d at 723.

In brief, the defendant states, “Defendant would agree with Judge Bookout’s assessment of the evidence., ”

We need not delve into the differences between felony murder versus accomplice liability. Ex parte Ritter v. State, 375 So.2d 270, 273-4 (Ala.1979). A review of the record convinces us that the facts present a question for the jury and are sufficient to support a conviction for murder in the first degree.

V

As part of its case in chief the State called the defendant’s ex-wife to the witness stand. All that occurred in the jury’s presence is as follows:

“MR. RAYBURN [District Attorney]: Judge, the State now calls Deborah Ann Clements.
“(Whereupon, the following proceedings were had at the bench, in the presence of but outside the hearing of the jury, as follows:)”

Defense counsel requested a recess so he could research the law on a wife’s testimony against her former husband.

Then, in the judge’s chambers, the witness invoked her privilege not to testify. Defense counsel’s motion for a mistrial because the witness was called in open court was denied, the trial judge specifically finding that no prejudice had occurred. We find no showing of prejudice. This Court will not interfere with the trial court’s exercise of discretion in declaring a mistrial unless there is a clear abuse of that discretion. Woods v. State, 367 So.2d 982 (Ala.1978).

The prosecutor made no comment upon the failure of the wife to testify. Billingsley v. State, Ala.Cr.App., 7 Div. 710 (Ms. April 22, 1980); see also, Shockley v. State, 335 So.2d 659 (Ala.Cr.App.), affirmed, 335 So.2d 663 (Ala.1973).

VI

The defendant pled guilty to the first degree murder of Roy Malone who was killed in the same incident as Mrs. Ford. The defendant was sentenced to life imprisonment on that guilty plea. That conviction and sentence did not preclude a consecutive sentence for the murder of Mrs. Ford. The two murders were sufficiently distinguishable to permit the imposition of consecutive punishments. Clift v. State, 352 So.2d 838 (Ala.1977).

VII

The defendant contends that his confession should not have been admitted because his arrest was illegal in that (1) he was arrested merely on suspicion without probable cause and (2) because he was arrested at his home without a warrant.

Before the defendant was arrested, Gilbert Beck, his partner in crime, had already been placed in custody. The investigating officers had been at Beck’s house and seen his truck with bloodspots on the floorboard. While it does appear that they received some information from Mary Ann Thrasher Ledbetter, the woman who had been living with Beck, the record does not disclose what this information consisted of and whether it was received before or after the defendant’s arrest. In short, the record contains no explanation of how the investigating officers connected the defendant to Mrs. Ford’s murder. More specifically, the record contains no showing that the officers had probable cause to arrest him.

Taking a person into custody for questioning on less than probable cause to arrest violates the Fourth Amendment to the United States Constitution. Confessions obtained during such detention are inadmissible even if the Fifth Amendment has been complied with unless there has been a sufficient break in the causal connection between the illegality of the arrest and the confession. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

From the record, it is apparent that the prosecutor and the trial judge assumed that the officers had probable cause to arrest the defendant. This assumption is understandable in light of the fact that this was the fourth time that the defendant had been tried for the intentional killing of Mrs. Ford. Yet, while it clearly appears that the officers had reason to believe that a felony had been committed, the record does not show what reasons they had to believe that the defendant was involved. In the absence of such proof, his statement given after his arrest was inadmissible. Duna-way, supra.

However, the record does not show that the officers did not have probable cause to arrest the defendant. If it did, this case would have to be reversed. The record is deficient in that it simply does not reflect what probable cause, if any, existed. The trial court never made a specific ruling on the existence or lack of probable cause. For this reason, we remand this cause to the Circuit Court with instructions that a hearing be held to determine whether the officers had probable cause to arrest the defendant. If agreeable to the defendant, this determination may be made upon the facts as stipulated by the parties.

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Since the major purpose of Payton is “to deter official invasions of individual privacy protected by the Fourth Amendment” and not “to overcome an aspect of the criminal trial that substantially impairs its truthfinding function”, we hold that Payton is not retroactive for the reasons stated in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971).

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Judge.

The record submitted to this Court in response to our direction shows without question that the law enforcement officers had ample probable cause to arrest the defendant. The application for rehearing is overruled and the judgment of the Circuit Court is affirmed.

APPLICATION FOR REHEARING OVERRULED;

AFFIRMED.

All Judges concur.


text:
    Ex Parte Roy Frank CLEMENTS. (Re: Roy Frank Clements, alias v. State of Alabama).
    80-104.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   JONES, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.