author: BOWEN, Judge.

text:
    Timothy Trent GRISWOLD v. CITY OF ENTERPRISE.
    4 Div. 802.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.

      George E. Trawick, Ariton, for appellant.
    Richard W. Whittaker of Pittman, Whit-taker & Hooks, Enterprise, for appellee.
   BOWEN, Judge.

The defendant was convicted on four city traffic violations in the Municipal Court of Enterprise. The charges were driving while intoxicated, reckless driving, running a red light and failing to yield to an officer’s blue light. They are misdemeanors. The defendant appealed his convictions to the Circuit Court of Coffee County and pled guilty to three offenses (reckless driving, running a red light and failure to yield) and not guilty to the charge of driving while intoxicated.

On appeal it is argued that the guilty pleas were not voluntarily and intelligently entered because the trial judge did not accept the recommendation of the prosecutor as to punishment.

Before accepting the defendant’s guilty pleas, the trial judge examined the defendant and informed him of the maximum and minimum punishments (sentences and fines) available in each case. A portion of that colloquy follows.

“THE COURT: Have you been made any promises or given any assurances by anyone what punishment you would receive if your plea of guilt is accepted?
“THE DEFENDANT: No, sir.
“THE COURT: Has anyone told you or promised or suggested to you that you would receive a lighter sentence or probation or any other favor to get you to say that you are guilty?
“THE DEFENDANT: No.
“THE COURT: In the event there has been some discussions between you and your lawyer or either of you and the district attorney pertaining to a recommendation as to punishment in these cases, that is a recommendation only which the Court may or may not accept because the responsibility for fixing your punishment is with the Court alone. Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: Any reason you know of, Mr. Jordan, why he should not plead guilty?
“MR. JORDAN (Defense Counsel): No, Your Honor.
“THE COURT: Anything you want to ask me before I determine whether to accept your plea of guilty?
“THE DEFENDANT: No, sir.”

The judge then accepted the defendant’s pleas of guilty in the three cases.

The following then occurred:
“THE COURT: Now, is there any reason you know of why the sentence of the law should not now be imposed upon you? “MR. JORDAN: Your Honor, at this time we would request that the sentence be delayed or postponed until the determination of the two felony cases against Mr. Griswold next week.
“THE COURT: All right. Let me ask you this. Is there any reason why you know that the sentence of the law should not now be imposed against you?
“THE DEFENDANT: Well, other than the criminal cases, no.
“THE COURT: All right. I will carry these over for sentencing until Monday at 9:00 o’clock.
“MR. JORDAN: Thank you, Your Hon- or.”

On the day set for sentencing, the court asked the City if it had any recommendations. On the reckless driving case, the City recommended a fine of $150.00 and court costs. The court did not accept this recommendation and fined the defendant $500.00 and sentenced him to ninety days in jail. The court accepted the City’s recommendation and dismissed the driving while intoxicated case. On the running a red light case, the City recommended a fine of $50.00 and court costs. The court did not accept this recommendation and fined the defendant $100.00 and sentenced him to ten days in jail. On the failure to yield charge, the City recommended a fine of $100.00 and court costs. Again, the court refused to accept the City’s recommendation and fined the defendant $100.00 and sentenced him to ten days in jail.

Defense counsel filed a Motion to Vacate Judgment and a Motion to Set Aside Plea and Judgment which asserted that the defendant pled guilty “with the understanding and agreement that a fine alone in a lesser amount than that imposed would be the judgment of the court.”

At the hearing on this motion the defendant presented evidence to show the involuntariness of the guilty pleas. The defendant himself did not testify at this hearing. Richard Whittaker, a City attorney, testified that he told Mark Jordan, the defendant’s attorney, that he would make the recommendations that he in fact made if the defendant wished to plead guilty. Mr. Whittaker stated that prior to this he had never had a recommendation on a City case refused by the court and that he had made five to ten recommendations, “at the most”, within the past three years. Mr. Whittaker initially made his recommendations to the court immediately before sentencing and first learned that these recommendations were not accepted when the court actually sentenced the defendant. The record shows that the prosecutor for the City made every recommendation he promised and fully complied with the plea bargain agreement.

Attorney Mark Jordan testified that he represented the defendant in the four cases. He stated that he “enterfed] negotiations or discussions looking toward a settlement of those cases with Mr. Dick Whittaker.” Attorney George E. Trawick represented the defendant on a related felony charge. Both Trawick and Jordan advised the defendant to plead guilty.

Jordan testified that it was his “understanding and belief that the sentence which would be imposed would be in keeping [with the] recommendation made by the City of Enterprise” and that in his three years of practicing law he never “had any experience of having the court reject any such agreement.” He stated that he advised the defendant to plead guilty because of the City’s recommendation and that when he did so he fully expected the court to impose punishment in accordance with the City’s recommendation.

Under examination by the court, Jordan testified:

“I told Mr. Griswold that the judge did not have to accept the plea but that it would be highly uncommon if he did not and in my three years of practice I have never seen the court not accept a plea— or accept a recommendation from the prosecutor or City Attorney on a City appeal.
“THE COURT: So, you did advise him that the court did not have to take the recommendation. Okay.
“MR. JORDAN: Yes, sir.”

Jordan further testified that he believed that the recommendation would be followed and that he conveyed this same belief to the defendant. He stated:

“I assured him (the defendant) that it (plea bargaining) was legal and I told him — informed him that the Court ordinarily and customarily does take the recommendation of the City attorney or prosecuting attorney; I believe I told him that they did not necessarily have to.” * * * * # *
“I believe I told him that the Court was not bound to follow the recommendation.”

Jordan testified that he believed that the defendant understood the statement that the court was not duty bound or legally bound to accept the recommendation, but Jordan also assured the defendant that the court always did. Jordan stated that the defendant expected to receive a sentence based on the recommendation of the City.

The due process concept in accepting a plea of guilty requires that the acceptance

“must be attended by safeguards to insure what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971).

However, unlike Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), this is not a case of an unkept plea bargain. It is undisputed that the City attorney made his recommendations as requested. This is a case where the trial judge refused to grant all of the concessions or recommendations embodied in the plea bargain and further refused to permit the defendant to withdraw his guilty pleas. Annot., 66 A.L.R.3d 902 (1975). For this very reason this case must be reversed and remanded.

This result is dictated by the case of English v. State, 56 Ala.App. 704, 708, 325 So.2d 211, 215, cert. denied, 295 Ala. 401, 325 So.2d 216 (1975), wherein this Court ruled:

“Our holding today is not to be considered as binding the trial court to the agreement struck between the prosecutor and defense counsel. What we do hold is that if the trial court decides not to carry out the agreement reached between the prosecutor and counsel for the accused, the accused must be afforded the opportunity to withdraw his guilty plea on motion promptly made, as was done in this case.”

See Shepard v. State, 347 So.2d 1017 (Ala.Cr.App.1977) (recognizing rule); Waldrop v. State, 54 Ala.App. 163, 306 So.2d 29, cert. denied, 293 Ala. 777, 306 So.2d 33 (1974); Blow v. State, 49 Ala.App. 623, 274 So.2d 652 (1973). See also Gill v. State, 380 So.2d 1008 (Ala.Cr.App.1980).

The fact that the defendant told the trial judge that there were no promises made to him by anyone as to what his sentence would be cannot be considered binding.

“Santobello teaches us that a defendant’s ‘no promises’ declaration when he pleads guilty pursuant to ‘plea bargaining’ is not inviolable. We agree that an ‘[Examination of the defendant alone will not always bring out into the open a promise that has induced his guilty plea. It is well known that a defendant will sometimes deny the existence of a bargain that has in fact occurred, * * * out of fear that a truthful response would jeopardize the bargain.’ Walters v. Harris, 460 F.2d 988,993 (4th Cir. 1972). It is within the sound discretion of the sentencing judge to determine whether the interest of justice will be served by accepting the prosecutor’s recommendation. However, ‘the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.’ 404 U.S. p. 262, 92 S.Ct. p. 499.” United States ex rel. Culbreath v. Bundle, 466 F.2d 730, 734 (3rd Cir. 1972).

The rule announced in English and here followed “eliminates the necessity of the often practiced charade of putting into the record the defendant’s statement that he has not been promised anything in exchange for his plea of guilty, when everyone involved knows that a ‘deal’ has been made.” Alabama Rules of Criminal Procedure (Advisory Committee Draft) June 1, 1977, p. 192, Rule 14.3(c); A.B.A. Standards for Criminal Justice, Standard on the Function of the Trial Judge, Rule 4.1.

For the refusal of the trial judge to grant the defendant’s timely request to withdraw his guilty plea, the judgment of the Circuit Court is reversed and remanded.

REVERSED AND REMANDED.

All Judges concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Parker WALLACE, alias v. STATE.
    6 Div. 28.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    John H. England, Jr. of England, Bivens & Hardaway, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Parker Wallace was indicted by the Tuscaloosa Grand Jury and charged with robbery. At a jury trial held in Tuscaloosa County, the appellant was found guilty of robbery and sentenced to forty years in the penitentiary.

The appellant, an indigent, is before this court with a free transcript and appointed counsel, who was also the defense attorney at the trial.

The sufficiency of the evidence was not raised, and a complete recitation of all the facts is not warranted.

The facts, briefly, are that the prosecu-trix, on August 25, 1972, was living in a second story apartment in an old house in Tuscaloosa, Alabama. She occupied the apartment with a friend who, on the night of the incident, was not at home. The prosecutrix had gone to bed about 10:30 P.M. and was awakened around midnight when she felt something on her neck. She awoke and found the appellant, a black male, whom she positively identified in court, holding a knife to her neck. She was told not to scream or she would be killed. At that point, her gown and panties were removed, and the appellant raped her. After the appellant had had sexual intercourse with her, his companion also raped her. The prosecutrix stated that, while the companion was sexually assaulting her, the appellant removed her billfold from her purse. The two then left and she did not see either one until she saw the appellant in a lineup.

When the men were gone, the prosecutrix called her sister and brother-in-law. After they arrived, the police were called. The prosecutrix reviewed three lineups and, on the second occasion, identified the appellant. On the third occasion, she identified his companion.

Sgt. Horace W. Hodges, of the Tuscaloosa Police Department, responded to the call from the prosecutrix’s residence. On his arrival, he found two people and the prose-cutrix, with whom he talked. According to Hodges, the victim was crying and was very distraught. After being informed of what had happened, Sgt. Hodges walked through the apartment and found an open window in the bedroom. Also he observed a “pallet” on the floor and a fan nearby. He found a pair of panties and a man’s belt in the living room. These items were turned over to Detective Jerry Ingram when he and Officer Shirley Fields arrived.

Detective Ingram made an investigation of the alleged robbery and rape involving the prosecutrix and, during that time, talked with the prosecutrix. Ingram conducted three lineups, but the appellant was present in only the second one. The prose-cutrix identified Parker Wallace, the appellant, in the second lineup, and in the third lineup, she identified Lewis Willis as the second man who had raped her.

Detective Ingram talked with the appellant after warning him of his constitutional rights, and the appellant admitted going into the apartment of the victim and raping her. According to the statement which the appellant made, he climbed through a window and opened a locked door so that his companion, Lewis Willis, could enter the apartment. The appellant said that he took a knife from the kitchen and that he and Willis raped the prosecutrix by holding a knife to her throat. The appellant admitted that he had taken a ring and a knife from the prosecutrix after the assault. Also, the appellant admitted that the belt found in the prosecutrix’s apartment belonged to him.

Ingram stated that he was not aware that the appellant had denied making the statement and added, “I remember taking the statement from him and this is the statement that I took.”

At the end of Ingram’s testimony, the State rested its case, and the defense called only one witness, Chad Nall. Nall gave alibi testimony that he and the appellant were at Nall’s mother-in-law’s residence on the night of the offense. Further, Nall testified that he and the appellant remained there until about 3:00 A.M.

I

The only issue raised in this appeal involved the trial court’s overruling of the appellant's plea of autrefois convict. The appellant argues this overruling was erroneous because appellant’s robbery conviction arose out of the same set of facts from which a previous rape conviction arose, and both convictions involved offenses against the same person.

Dispositive of this issue is the holding in Jones v. State, 50 Ala.App. 174, 277 So.2d 920. There, this court said:

“Robbery and rape are two separate and distinct offenses and are completely unrelated. To successfully plead former jeopardy, the plea must allege that the offense charged in the two prosecutions is the same in law and fact. Shirley v. State, 35 Ala.App. 639, 51 So.2d 702; Green v. State, 37 Ala.App. 610, 73 So.2d 387.”

See also, Smith v. State, Ala.Cr.App., 346 So.2d 382.

We have carefully examined the record and have found no prejudicial error. Therefore, the judgment of conviction by the Tuscaloosa Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Gary Anthony WILLIAMSON v. STATE.
    6 Div. 57.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.

      Belle H. Stoddard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jimmy L. DeBardelaben, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant, a fifteen year old, was by the Family Court of Jefferson County found to be a delinquent child who cannot be made to lead a correct life, and cannot be properly disciplined under the provisions of Section 12-15-34, Code of Alabama 1975. He was therefrom transferred to the jurisdiction of the Circuit Court to be tried as an adult for armed robbery. He was indicted for robbery and counsel was appointed to represent him. At arraignment, in the presence of appointed counsel, he pleaded not guilty. He was subsequently convicted of robbery and the trial court sentenced him to ten years imprisonment in the penitentiary. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel represents him on this appeal.

Albert Ray was employed by Hendon Parking Company on October 13, 1978, and was in the main office located at 209V2 Twenty-First Street, North, Birmingham, Alabama. He was employed as a “lot audit” to collect the daily proceeds from forty-two parking lots run by the company. The attendant at each lot would take the daily receipts to Mr. Ray’s office at the close of business each day. On October 13,1978, all lot attendants had checked in with Mr. Ray except one and he was sitting in the office awaiting the arrival of the last lot attendant. The door to the office could not be opened from the outside. Mr. Ray saw a man approach the door and thought he was the last lot attendant coming to check in. It was dark outside and Mr. Ray could not see the man well enough to recognize him. He opened the door and was immediately grabbed from the rear by a man wearing a cap. Another man immediately entered the office with a gun and told Mr. Ray to “lay down, lay down, I don’t want to hurt you.” Mr. Ray complied with this command. The office was well lighted and while Mr. Ray was on the floor the man held the gun about one foot from his head and he got a good clear view of the gunman’s face from ten to twenty seconds. The gunman was wearing a toboggan type cap and he described the gun as chrome plated and it looked like a .32 caliber pistol. While Mr. Ray was held captive the first intruder took approximately $818.00 from the desk drawer and placed the money in a night deposit bag. Then both bandits quickly departed.

After the robbers left the office Mr. Ray called the Police Department and two uniformed officers soon responded to the call. Shortly thereafter a technician from the fingerprint division arrived but no latent fingerprints were lifted. Mr. Ray stated the robbers did not touch anything in removing the money from the drawer.

Mr. Ray made a positive in-court identification of appellant as the robber who held the pistol at his head in a well lighted place without a disguise of any kind during the robbery. He stated that he next saw appellant about a week later in the county jail.

On cross-examination Mr. Ray did not waver in his identification of appellant as the gunman. He estimated that appellant was about five feet eight inches tall and weighed between 140 and 150 pounds. He denied testifying at the preliminary hearing that the gunman weighed 160 pounds. He admitted stating at the preliminary trial that the gunman had dark eyes, “like all colored people.”

Sergeant Paul Hurst stated he is a robbery investigator with the Birmingham Police Department and was assigned to investigate this robbery. He first contacted Mr. Ray on October 16,1978. His next contacts with Mr. Ray were on November 2 and November 8, 1978. Officer Hurst testified that he did not have a report, or any reports or records relative to any investigation by an evidence technician. He was about to testify that later he and Mr. Ray went to the county jail but the trial judge interrupted him and stated he could not go into what transpired at the county jail at this time.

Thereupon the State rested subject to recalling Sergeant Hurst. At this point appellant moved to exclude the State’s evidence and asked for a directed verdict of not guilty. The motion was overruled and the defense proceeded with its case.

Mr. Robert A. Jones, Jr., an attorney, was called as a witness for the defense. He represented appellant at the preliminary hearing at which time he questioned Mr. Ray. He stated Mr. Ray testified at this hearing that the gunman’s eyes were dark like all colored people’s and that the gunman weighed about 160 pounds. He said appellant’s eyes were “sort of lightish green in color, greenish brown, with a light colored greenish.”

On cross-examination Mr. Jones was asked to leave the witness stand and describe appellant’s eyes from a closer vantage point. Mr. Jones left the stand and got a closer look at appellant’s eyes and said his eyes were greenish brown in color.

Appellant testified in his own behalf and stated he lives with his mother at 2702 Twentieth Avenue, North. He said he was at home on the evening of October 13,1978. He denied going to the Hendon Parking Company’s office or the adjacent car lot. He also denied participating in the robbery of Mr. Albert Ray.

On cross-examination appellant stated that he was at home with his mother all day on October 13,1978. He said he was not ill that day and no one other than his mother saw him at home on that day. He was unable to give his height but stated he weighed 120 pounds. He further testified that he did not know where he was on October 14, or 15,1978, but that on October 28 he was sure he was in the county jail.

On rebuttal the State recalled the robbery victim who testified that Sergeant Hurst showed him four or five photographs at their first meeting at the City Hall and asked him if he recognized anyone in those photographs and he stated:

“I told Sergeant Hurst that the man looked familiar but I wasn’t going to identify him by the picture, that I wanted to see him in a lineup.”

Mr. Ray further stated that he now knew that it was Anthony Williamson’s photograph that looked familiar.

Four or five days after viewing the photographs Mr. Ray attended a lineup of five black males and without the slightest hesitation he identified appellant as the robber who held the pistol at his head during the robbery. He denied that the police officer directed his attention to the photograph of appellant in any manner and stated that he did not look at the background of the photographs. He was looking at the faces and trying to identify the face.

Sergeant Hurst testified on recall that he showed Mr. Ray five photographs on November 2, 1978, at the City Hall and told him:

“. . . that I had five photographs that I wanted him to look at, that the person that robbed him may, or may not, be in there, but I wanted him to look and if he was, I wanted him to throw the picture aside.”

Sergeant Hurst was requested to produce the five photographs which were shown the robbery victim and they were produced and marked as State’s Exhibits A, B, C, D, and E for identification. The defense requested that they be permitted to voir dire Sergeant Hurst out of the presence of the jury and the request was granted.

On voir dire Sergeant Hurst testified that when he showed the robbery victim the five photographs he did not have any particular suspect in mind and that he did not have any particular reason for including appellant’s photograph in the photographic array as he was not a suspect at that time.

Appellant moved to exclude all the photographs from the evidence on the ground that the complexions of the individuals, other than appellant’s, were either lighter or darker than appellant’s complexion and this tended to single out appellant. He also contended that certain marks in the background of the photographs constituted a height chart which also tended to single out appellant. This motion was overruled.

Sergeant Hurst further testified that appellant was the only individual to appear in both the photographic array and the lineup. The lineup was composed of six individuals. At the time of the lineup appellant was not a suspect and had not been charged with this robbery and was not represented by counsel at the lineup. He admitted that he knew appellant was fifteen years of age at the time of the lineup.

While still on voir dire Sergeant Hurst stated that he conducted the lineup but did not know who arranged the details of it. He said he called the county jail and spoke to a Sergeant and requested that a lineup be arranged. When he and the robbery victim arrived to view the lineup they viewed the participants through a cardboard screen. Six young black males were placed in the lineup. The names, ages, heights and weights as related by each participant were: Gary Anthony Williamson, 15, 5 feet 6 inches, and 100 pounds; Vincent Woodard, 14, 6 feet, and 154 pounds; Lorenzo Miller, 14, 5 feet 6 inches, and 133 pounds; William Lathen, 16, 5 feet 7 inches, and 130 pounds; Theodus Emerson, 15, 5 feet 6 inches, and 100 pounds; and Donald Williams, 19, 5 feet 5 inches, and 110 pounds. Appellant’s skin is medium brown in color and the others were various shades of brown and. black. The lineup participants stood in the hallway about 10 or 15 feet from Sergeant Hurst and Mr. Ray. There was no special lighting in the hallway. No height charts were placed behind those in the lineup and each person was bareheaded. Each was dressed in blue jeans and denim shirts.

Sergeant Hurst said to Mr. Ray prior to the lineup:

". . . that the person that robbed him, may or may not be in the lineup, that I wanted him to take a good look and take his time, and if he saw the guy in there to tell me where he was standing which he did.”

After viewing the lineup Mr. Ray pointed to appellant and said, “That’s him, right there . . . the first one on this end,” pointing to the one on the left end of the line.

At the conclusion of the voir dire appellant moved to exclude all evidence concerning the lineup on the ground that appellant was a juvenile without counsel or a friendly adult; and that appellant was not told that he was going to be placed in a lineup; was not told of the charge against him or that a charge might result therefrom; that he was denied counsel; and was the only person to appear in the photographic array and the lineup. The trial court denied the motion and found nothing was suggestive about the procedures used by the police. The court noted that two days prior to the lineup Judge Bell of the Family Court had ordered appellant transferred to the county jail on another charge, "on the basis of incorrigibility.”

On rebuttal the State introduced into evidence Exhibits A, B, C, D, and E, which were photographs viewed by Mr. Ray on November 2, 1978. Sergeant Hurst testified that before showing these photographs to Mr. Ray he told him the person who robbed him may or may not be in this array but if he recognized the robber to put that photograph to one side. After viewing the five photographs Mr. Ray put Exhibit C to the side — this was the photograph of appellant. However, Mr. Ray wanted to be certain that he had not identified the wrong man and for that reason he requested to view this man in a lineup. At the lineup he picked appellant as the gunman who held the pistol to his head while his companion robbed the place. Mr. Ray also made a positive in-court identification of appellant.

Appellant made four contentions that this case is due to be reversed: (1) The trial court erred in overruling his motion to exclude the State’s evidence on the ground of the insufficiency of the evidence to sustain a robbery conviction; (2) that the lineup procedure was so impermissibly suggestive as to create a substantial risk of misidentifi-cation; (3) that the introduction into evidence of the photographic display was error; and (4) the absence of counsel or a friendly adult at the lineup constituted error. We will treat these contentions in the order presented.

Contention 1. Appellant argues, in brief, that there was no evidence of the commission of a robbery, or if one was committed there is no evidence to implicate appellant except the testimony of the victim.

In Godbee v. State, 56 Ala.App. 174, 320 So.2d 107, this court held:

“The State made out a prima facie case with the testimony of the robbery victim. We have repeatedly held that in our system of criminal justice we do not travel on the numerical number of witnesses. A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community.”

In Arnold v. State, Ala.Cr.App., 348 So.2d 1092, this court held that the testimony of the victim alone was sufficient to establish a prima facie case of robbery.

Contention 2. The United States Supreme Court rejected a per se exclusionary rule and adopted a rule whereby identification evidence gained by suggestive identification procedures would be admitted if under the totality of the circumstances there did not exist a substantial likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140. In this case the court said:

“. . . that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall [v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199] confrontations. The factors to be considered are set out in Biggers. 409 U.S., at 199-200, 93 S.Ct., at 382. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.”

The prerequisite for the application of the factors spelled out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, is that suggestive procedures were used in obtaining out-of-court identification. The trial court below heard testimony on voir dire outside the presence of the jury concerning all aspects of the photographic array and the subsequent lineup. The court concluded that the procedures followed were not suggestive. A close scrutiny of the State’s Exhibits A, B, C, D, and E and of the testimony lead fairly to the conclusion that the procedures were not suggestive. There is absolutely no evidence of prompting the witness or use of any procedures which might tend to focus attention on the defendant.

An application of the factors enunciated in Biggers further demonstrates the lack of opportunity for a substantial risk of mis-identification.

1.The opportunity of the victim to view the assailant at the time of the crime. The victim viewed the robber, who was holding a pistol within a foot of the victim’s head, in a well lighted room, for ten to twenty seconds. Neither assailant wore a mask or face covering.

2. The victim’s degree of attention. The victim was able to describe the gun in detail and described the gunman as being about 5'9" tall and weighing 140 to 150 pounds.

3. The accuracy of the victim’s prior description. The record does not disclose any description of the gunman before the preliminary hearing. The victim remembered testifying at the preliminary hearing that the gunman had dark eyes, “like all colored people.” He denied testifying that the gunman weighed 160 pounds.

4. The level of certainty demonstrated by the witness at the confrontation. When Mr. Ray viewed the photographic array he indicated that the defendant was his assailant but he wished to reserve judgment until he could see him in person. Upon the holding of the lineup Mr. Ray positively identified the defendant as his assailant.

5. The length of time between the confrontation and the crime. The robbery occurred on October 13, 1978. On November 2, 1978, Mr. Ray viewed the photographic array and indicated a tentative identification of the defendant. On November 8, 1978, Mr. Ray viewed the lineup and positively identified the defendant as his assailant.

Reliability is the linchpin upon which the question of suggestiveness creating a substantial danger of misidentification turns. Weaver v. State, Ala.Cr.App., 350 So.2d 734. The procedures followed in this instance were not suggestive and the identification was reliable. See Williams v. State, 51 Ala.App. 1, 282 So.2d 349, cert. denied, 291 Ala. 803, 282 So.2d 355 (1973); Hood v. State, 47 Ala.App. 192, 252 So.2d 117; Quinn v. State, Ala.Cr.App., 337 So.2d 162.

The defendant did not object when Mr. Ray testified on rebuttal about the photographic array and the lineup, but only upon the introduction of the photographic array through the testimony of Sergeant Hurst. There is no error in the ruling of the trial court in admitting the State’s Exhibits A through E.

Contention 3. The defendant questions whether the introduction into evidence of the photographic display constituted reversible error.

The defendant relies on Holsclaw v. State, Ala.Cr.App., 364 So.2d 378, in which this court held that it was reversible error to introduce mug shots that depicted the defendant in such a manner that the jury could reasonably infer that he had a prior criminal record, where the manner of introduction drew particular attention to the mug shots, and where the State did not have a demonstrable need to introduce the mug shots in light of reliable in-court identifications. The defendant in Holsclaw was convicted of assault with intent to ravish. The State presented testimony from the victim and a witness in the form of in-court identifications made particularly reliable by the circumstances involved.

At trial the State introduced twelve police photographs of six people used by the arresting officer in obtaining an identification of Holsclaw from the victim and the witness. Holsclaw was depicted by two of the photographs in the standard profile and frontal views used in mug shots. Hanging from his neck was a placard bearing:

“Police Department
Huntsville, Alabama
1-13-75
056567”

These photographs were admitted over the defendant’s objection.

On appeal, this court followed the analysis adopted by the United States Court of Appeals for the Fifth Circuit in United States v. Bowers, 567 F.2d 1309 (5th Cir. 1978) which was originally set forth in United States v. Harrington, 490 F.2d 487 (2nd Cir. 1973). In Harrington the court held that it is reversible error to admit “mug shot” type photographs unless:

“1. The Government must have a demonstrable need to introduce the photographs; and
“2. The photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and
“3. The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs.”

The court in Harrington balanced these elements and the scales of justice tilted against the State. Although the State had a demonstrable need to introduce the photographs, this factor was greatly outweighed by the others.

The photographs in Harrington were juxtaposed full face and profile photographic displays normally associated with “mug shots.” The court said:

“. . . it is helpful to recall Judge Leventhal’s discussion in Barnes [v. United States, 365 F.2d 509 (D.C.Cir.)] that the ‘double shot’ picture produces a ‘natural, perhaps automatic’ inference of prior encounters with the police and that crude and inartful masking of these pictures heightens, rather than diminishes, their significance to the jury. 365 F.2d at 510-511. The photographs herein were ‘masked’ but in a grossly incompetent fashion. Without basing our resolution of appellant’s ‘mug shot’ contention on the second element of the test we propose, we think that the preferable course of action when mug shots are to be introduced would be to produce photographic duplicates of the mug shots. These copies would lack any incriminating indicia— i. e., inscriptions of identification numbers, and they would also avoid use of the juxtaposed full face and profile photographic display normally associated with ‘mug shots.’ ” 490 F.2d at 495.

In Harrington the entire debate over the propriety and admissibility of the photographs took place in the presence of the jury thereby drawing particular attention to the source or implications of the photographs.

The court noted that Harrington did not take the stand saying:

“Of course, as we have pointed out earlier, if the defendant should take the stand or be responsible, without proper reason, for placing his prior record before the jury, then different rules would apply. Harrington did not testify on his own behalf. Nor was he responsible for the jury’s acquiring its knowledge of his previous conviction.” Footnote 3, 490 F.2d at 495.

In Holsclaw, the defendant also did not take the stand in his own behalf. The court stated, “. . . the defendant not having taken the stand and having been identified positively in court by two witnesses, did not place his identity in issue.”

In the instant case appellant did take the stand and his identity was placed in issue. Furthermore, the in-court identification was not as strong as in Holsclaw where the witness had known the defendant for some time before the crime and the victim had examined Holsclaw’s driver’s license prior to the crime. Clearly the State in the instant case had a demonstrable need to introduce the photographs. We note that this is not a “mug shot” case.

The photograph presently before the court is vastly different from those in Hol-sclaw and Harrington. In each of those cases the courts were considering the effects of “mug shots” consisting of juxtaposed frontal and profile views of the defendant complete with police identification numbers and name of police department. The particular photograph of the instant appellant consists of merely a frontal view of the defendant standing before a height chart. This rather innocuous photograph is devoid of markings which imply past criminal behavior.

One cannot fairly say that the photograph in question was introduced in such a manner as to draw attention to its source or implications. The appellant examined the State’s witness, Sergeant Hurst, on voir dire outside the presence of the jury prior to the court’s admission of the photographs avoiding the highly prejudicial circumstances found in Harrington.

In sum, the introduction of the photograph of the appellant did not prejudice his right to a fair trial.

Contention 4. Appellant questions whether the absence of counsel or of a friendly adult at the lineup in which a juvenile was made to participate taints the lineup to such an extent that it was reversible error to admit this evidence.

Appellant alleges that the State did not satisfy its burden of establishing a basis for the in-court identification of the appellant independent of the lineup which was fatally tainted by the absence of counsel. He relies on Robinson v. State, 45 Ala.App. 236, 228 So.2d 850 (1969); Davis v. State, 49 Ala.App. 587, 274 So.2d 360, cert. denied, 290 Ala. 364, 274 So.2d 363 (1972); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Appellant had been adjudicated “incorrigible” on the basis of another charge pending below and transferred from juvenile court to the Circuit Court to be tried as an adult two days prior to the lineup. § 12-15-34, Code of Alabama, 1975.

The defendant was placed in a lineup on November 8, 1978 before he was indicted on February 9, 1979. There is no right to counsel at a pre-indictment lineup. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), Mullins v. State, Ala.Cr.App., 344 So.2d 539, and the evidence of the lineup was not rendered illegal by the absence of counsel.

Appellant received a fair trial and that is all he was due. There is no error in the record and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Billy Wayne DUNCAN v. CITY OF BIRMINGHAM.
    6 Div. 68.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.

      John H. Lair, Birmingham, for appellant.
    Rowena M. Crocker, Asst. City Atty., Birmingham, for appellee.
   DeCARLO, Judge.

Billy Wayne Duncan was tried by a jury in Jefferson Circuit Court for violation of § 36-39 of the General Code of the City of Birmingham, 1964, as amended, an offense which is commonly referred to as “interfering with a police officer.” The appellant was found guilty and was fined $75.00 and costs. In addition, the trial judge sentenced the appellant to thirty days hard labor for the City of Birmingham. The appellant had been charged in Birmingham Municipal Court with interfering with a police officer, disorderly conduct and public drunkenness. He was found guilty of two of these charges. On the charge of public drunkenness he was fined twenty-five dollars and costs, which he paid. On the charge of “interfering with a police officer,” he was fined $300.00 and costs and was sentenced to sixty days of hard labor for the City of Birmingham. He appealed the municipal court conviction of “interfering with a police officer” and, from his conviction in the Jefferson Circuit Court, the appellant brings the present appeal.

Ben Barnes, Associate Professor of Electrical Engineering at Auburn University, stated that, on December 2,1978, he attended the Auburn-Alabama football game. Following the game, Barnes, who was dressed in an orange jacket and a blue cap, started walking down Greymont Avenue toward his parked car. Barnes noticed that the appellant and his brother were walking ahead and shouting, “Go to hell War Eagle,” at people across the street as they were leaving the stadium. According to Barnes, as he started across the side street, he encountered the appellant’s brother. At that time, the appellant’s brother shoved Barnes in the chest, and Barnes fell backwards three or four steps. Barnes acknowledged that at no time did he make any direct comments to, or “physical motions” toward, the appellant’s brother.

According to Barnes, a Birmingham police officer appeared, grabbed the appellant’s brother, pinned his arms behind his back, and told him he was under arrest. Barnes recalled that the appellant’s brother struggled to free himself and, in that struggle, he and the police officer fell to the ground. Further, Barnes stated that, after the appellant attempted to persuade the police officer to release the brother, the appellant struck the officer. Also, Barnes stated that, during the struggle, the police officer struck the appellant in the mouth. Barnes testified that he had observed many intoxicated people in the past and that, in his opinion, the appellant and his brother were intoxicated at the time of the incident.

Birmingham Police Officer Thomas Fields testified that, on December 2, 1978, he was directing traffic following the Auburn-Alabama football game. Fields stated that he had observed the appellant’s brother having words with a man in an orange coat in the middle of the intersection. Fields said that he observed that, the appellant had “grabbed hold” of his brother and that the brother then jerked away from the appellant.

According to Fields, he then went over to the appellant’s brother, MacArthur Duncan, grabbed his arm, and began to lead him away from the difficulty when he jerked away. Fields then grabbed Duncan’s arm again and informed him that he was under arrest. Fields recalled that, as he started to lead the appellant’s brother away, the appellant grabbed Fields from behind. At that time, Fields released the appellant’s brother and grabbed the appellant. Fields remembered that he was hit in the back of the head “and everything went black.” According to Fields, the next thing he remembered was that he had MacArthur Duncan on the ground and was using a night stick on his chest to hold him. The appellant grabbed Fields’ arm and attempted to pull him away from MacArthur Duncan.

Officer Fields testified that he did not strike either the appellant or his brother at any time during the struggle. Also, Fields said that, when other officers arrived in the area, he handcuffed MacArthur Duncan while the other officers handcuffed the appellant. Fields stated that the appellant and his brother were calling the officers “m-f’s and s-o-b’s.” Fields said that, in his opinion, the appellant and his brother were intoxicated on that occasion. Fields stated that on Monday following the incident, he went to the emergency room at University Hospital and received medical attention.

Curry Ward testified that he witnessed the incident between Barnes, the appellant, Duncan, and Fields. Ward’s testimony substantially corroborated that of Fields and Barnes. According to Ward, when Officer Fields informed MacArthur Duncan that he was under arrest, Ward heard Duncan say, “I haven’t done anything. You’re not going to arrest me.” At that time, MacArthur Duncan attempted to escape, Officer Fields pursued him and, according to the witness, “Got him down on the ground, trying to arrest him.” Ward said the appellant got on top of the officer and struck two blows on the back of his head. Ward recalled that he and several others intervened and pulled the appellant off the officer. Immediately after Ward and the others had intervened, a black female officer appeared and was told to place the larger of the two men under arrest. The appellant said, “There’s no black bitch going to arrest me.” At that point, the female officer called for assistance and, subsequently, a number of police officers arrived and assumed control of the situation.

Ward stated that there were a large number of spectators at the time of the incident and that he did not see the officer strike either the appellant or his brother. Ward testified that, in his opinion, the appellant and his brother were intoxicated at the time of the incident.

Richard Callahan testified that, on December 2, 1978, he was walking down Grey-mont Avenue with two other men when they came upon a disturbance. According to Callahan, he could see a police officer attempting to arrest a man, whom he identified in court as MacArthur Duncan. Callahan stated that, while officers had custody of Duncan, the appellant was striking and shoving a police officer about his head. Subsequently, another officer arrived and took custody of the appellant. Callahan heard the appellant say that he had “not done anything” and did not deserve to be arrested. Further, the witness said that the appellant was cursing the officers at the time. Callahan did not see the police officers strike the appellant or his brother.

Kenneth Barclay testified that, following the Auburn-Alabama game on December 2, 1978, he and his wife came upon a police officer talking with a man whom the officer held by the arm. According to Barclay, he identified the man in custody as MacArthur Duncan. Further, the witness stated that Duncan escaped from the police officer and ran. At that point, the officer ran after Duncan and caught him. Barclay recalled that he saw the appellant strike the officer in the back of the head. Barclay and others positioned themselves between the appellant and the officer who was subduing the appellant’s brother.

Mitchell Alverson, who had accompanied Callahan, gave testimony which was substantially the same as that of Callahan and the other witnesses. Alverson, on cross-examination, stated that he saw the appellant approach the officer from behind, but he did not see the appellant strike the officer. However, Alverson did say, “There was pushing.”

Officer R. H. Landers was also directing traffic along Greymont Avenue and Sixth Street and observed a large crowd of people around Officer Fields. He was attempting to handcuff a man on the ground, while another man was on Officer Fields’ back. Landers identified the man Fields was attempting to handcuff as the appellant’s brother and the man on Fields’ back during the struggle as the appellant. Landers stated that he pulled the appellant from the officer’s back, took him over to a car, and handcuffed him. According to Landers, both the appellant and his brother were using loud, obscene language during the incident, and, in Lander’s opinion, both were intoxicated.

Donald Champion testified that as he and his wife were leaving the football stadium, he saw two people scuffling with a police officer. According to Champion, the police officer regained custody of the smaller man who attempted to escape while the officer was trying to handcuff him. Champion said the larger man, whom he identified in court as the appellant, pulled the officer’s hair and struck him on the head from behind. Champion stated that, at that time, he along with some others left the scene to find another police officer to assist the officer involved in the scuffle. Finding another policeman, Champion returned to the scene with the other officer, who assisted Fields in making the arrest. Following the testimony of Champion, the City rested its case, and the appellant, outside the presence of the jury, moved to exclude the City’s evidence on the ground that a prima facie case had not been proved. The motion was overruled, and the defense presented its case.

John Wesley Duncan, brother of the appellant and MacArthur Duncan, testified that, after the football game on December 2, 1978, he noticed his brother, MacArthur, having difficulty with a bearded man. The witness saw the man wrestle MacArthur to the ground from behind and saw Officer Fields attempt to separate the two men. Duncan stated that, as his brother was attempting to get up from the ground, Fields hit MacArthur in the face twice with a nightstick. The witness stated that the force of the blow knocked his brother to the ground and caused his face to bleed. According to Duncan, at that point, the appellant intervened on behalf of MacArthur. Duncan stated that the appellant asked Fields why he hit MacArthur and the officer then turned and hit the appellant with the nightstick. Duncan testified that, as Fields began to handcuff MacArthur, another police officer approached and handcuffed the appellant. Duncan testified that neither of his brothers struck Officer Fields at any time.

During cross-examination, Duncan admitted that he and his brothers had had one mixed drink each. Also, he denied that he or his brothers had used any profanity during the incident. Further, he stated that neither of his brothers struggled, fought, nor hit the officer.

MacArthur Duncan’s account of the incident was substantially the same as that of his brother, John. The witness reiterated the fact that he was accosted from behind and thrown to the ground by a “big guy.” According to Duncan, when he got up, he was hit by Officer Fields with a nightstick and knocked to the ground. Fields, according to Duncan, then got on top of him, placed one knee in his stomach and the other on his throat, and, simultaneously, swung the nightstick at his head. Duncan stated that his brother, the appellant, walked over and asked the officer why he was arresting the witness, and the officer turned and hit the appellant twice with the nightstick. According to MacArthur Duncan, Fields said, “If you don’t stand there I’m going to knock hell out of you again.” At that time, other officers arrived and arrested the three brothers. The three were taken to Legion Field to a “lock-up.” Duncan said that, shortly afterwards, they were taken to the hospital for examination.

MacArthur Duncan denied that he, or the appellant made any racial slurs toward anyone, nor did they use any profanity during the incident. Further, he also denied that he or his brother had struggled or hit the police officer.

The appellant’s testimony concerning the incident was substantially the same as that of his two brothers. The appellant denied that he or his brother used any profanity or that they struggled with the police officer. The witness denied hitting the officer or interfering in any way with Officer Fields during the time he was attempting to arrest MacArthur Duncan.

At the end of appellant’s testimony, the defense rested, and the City of Birmingham called Officer Fields in rebuttal. He testified that his uniform was torn and his badge was ripped from his shirt during the struggle with the appellant.

Fields stated that, when a person being arrested has been seriously injured, standard procedure is to immediately take the injured person to the hospital, otherwise the arrest reports are made out prior to any transfer to the hospital. During cross-examination, the officer acknowledged that he escorted the appellant and MacArthur Duncan directly to the jail rather than to the hospital. Further, the witness acknowledged that he had conferred with an attorney about suing the defendants. At the end of Officer Fields’ rebuttal testimony, the case was submitted to the jury for their consideration.

I

The appellant complains that the trial court erred when it refused to give certain requested charges. We have carefully reviewed and examined approximately forty-four charges which were refused to the appellant and have found that they were substantially and fairly covered in the court’s general charge. Therefore, the refusal is not error. § 12-16-13, Code of Alabama 1975; Mains v. State, Ala.Cr.App., 375 So.2d 1299.

II

The appellant complains that the trial court committed reversible error when it incorrectly administered the oath to the jurors. He argues that the following oath given to the jurors did not comply with § 12-16-170, Code of Alabama 1975.

From the record:
“THE COURT: Y’all please stanu and raise your right hand.
“Do each of you solemnly promise that you will well and truly try the issues joined between the City of Birmingham and MacArthur and Billy Wayne Duncan and render a true verdict according to the evidence, so help you God. If you do, say I do.
“(Whereupon, the jury answered in the affirmative.)
“MR. LAIR: Your Honor, can I take exception to the swearing of the jury? “THE COURT: Could you, for the record, tell what’s wrong with it? I might even correct it, if you tell me what the problem is?
“MR. LAIR: My recollection is it doesn’t —I could be wrong, I probably am. My recollection is I don’t believe it follows the code.
“THE COURT: Overruled.
“MR. LAIR: We except.”

This court in Goolsby v. State, 17 Ala.App. 545, 86 So. 137, stated:

“An oath is defined to be:

“ ‘A solemn adjuration to God to punish the affiant if he swears falsely. The sanction of the oath is a belief that the Supreme Being will punish falsehood; and whether that punishment is administered by remorse of conscience or in any other mode in this world, or is reserved for the future state of being, cannot affect that question, as the sum of the matter is a belief that God is the avenger of falsehood.’ Beeson v. Moore, 132 Ala. 391, 31 So. 456; B.R., L. & P. Co. v. Jung, 161 Ala. 461, 478, 49 So. 434, 18 Ann.Cas. 557.
“In other Words and Phrases, p. 4871, is found the further definition.
“ ‘An oath is a declaration or promise made by calling on God to witness what is said. * * * An oath is defined to be an outward pledge, given by the person taking it, that his attestation or promise is made under an immediate sense of his responsibility to God. * * * The term “oath,” in its broadest sense, includes all forms of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully, and that the person who takes it imprecates the vengeance of God upon him if the oath taken is false.’ ”

As can be seen from the above quoted portion of the record, the trial judge administering the oath to the jury substituted the word “promise” for the words “swear and affirm.” However, the significant portion of the oath, that is “the sanction that the Supreme Being will punish falsehood,” was present. We find this in the court’s admonishing words, “and render a true verdict according to the evidence, so help you God . . . ” [Emphasis added.] In our judgment, it is clear that the jurors had to be aware they were making a pledge to “well and truly try” the issues adjoined between the City of Birmingham and the appellant. Further, there was an imprecation that the vengeance of God would come down upon those who made a false oath.

In the present case, we believe that the court’s use of “promise” instead of “swear and affirm” did not render the oath ineffective, causing reversible error. The necessary elements, including calling upon the deity to witness what the individual juror says, are present. Also, as required by the trial judge, all jurors stood and raised their right hands when making their oath, and all answered in the affirmative. Consequently, the trial court’s substitution of the word “promise” did not constitute reversible error.

Ill

The appellant insists that the trial court committed reversible error when it sustained the City of Birmingham’s objection to the following question by the defense:

“Q. How much are you going to sue for, Officer Fields?
“MS. CROCKER: Objection. Irrelevant and immaterial.
“THE COURT: He hasn’t filed it yet.
How does he know?
“Q. Have you discussed an amount that you were going to sue for?
“MS. CROCKER: Object.
“THE COURT: Sustain.
“MR. LAIR: We except.”

This court in Maund v. State, Ala.Cr. App., 361 So.2d 1144, restated the rule that it is a discretionary matter with the trial judge as to what limitations are to be placed when questioning a witness concerning his pecuniary interests in the outcome of a trial. There, the court said:

“ ‘It is the law, of course, that the pecuniary interest a witness may have in the outcome of a trial is a proper subject of inquiry for the purpose of questioning the credibility of a witness. However, there must be a limit to which such questioning extends and that limitation is placed within the sound discretion of the trial court and rulings on such limitations will not be revised by this court unless there has been a clear abuse of discretion. Smith v. State, 30 Ala.App. 346, 5 So.2d 648; Broadway v. State, 35 Ala.App. 86, 45 So.2d 480.’ ”

The record in the present case indicates that the trial judge afforded the appellant great latitude in pursuing the pecuniary interest of the officer. The. appellant was permitted to elicit from the officer the fact that he had talked to an attorney concerning a suit against the appellant, that the officer was contemplating filing a suit for damages, and the fact that he would be asking for money in the event of a suit. Under these circumstances, we do not believe that the limitation placed upon the appellant was improper, nor do we believe that the trial court abused its discretion.

IV

The appellant asserts that the trial court committed reversible error when it allowed Officer Fields to testify concerning the standard operating procedure of the Birmingham Police Department as to when an injured suspect should be taken to the hospital. According to the appellant, the court also erred when it allowed Officer Fields to testify as to why he waited until the Monday following the incident to seek medical attention for an injury which allegedly occurred as a result of the incident. Regarding the first assertion, the record clearly reflects that Officer Fields had been a policeman for the City of Birmingham for some eight years and would be competent to testify as to the standard operating procedures concerning the hospitalization of injured suspects.

As to the second assertion, we believe that it in no way, prejudices the substantial rights of the defendant. If error was present, it was harmless. Rule 45, A.R. A.P.

V

The appellant argues that the trial court erred when it did not allow him to have his plea of former jeopardy heard by the jury.

We have reviewed the evidence presented on the plea and have found that the trial judge, in making his ruling, stated that the plea presented only a question of law for the court to determine and did not present a factual issue for the jury’s determination.

The appellant’s plea of former jeopardy, omitting the formal parts, reads as follows: “Comes now the Defendant and for plea says:

“He has once been in jeopardy for the offense of which he is now charged in this Complaint, and that on the, to-wit: 17 day of January, 1979 the Defendant was by the Recorder’s Court of the City of Birmingham found not Guilty of Disorderly Conduct and Guilty of Public Drunk and fined Twenty-five Dollars and Court Costs. Defendant did on said occasion pay the said fine and costs in full. Defendant avers that the present charge of Interfering with Officers in this instance was included in and adjudicated by the said Recorder’s Court on to-wit: January 17, 1979 and that Defendant was thus in jeopardy.
“Defendant avers that the events, acts, allegations, facts, circumstances, setting, date, time and place upon which are based the present Complaint, are the same events, allegations, facts, acts, circumstances, setting, date, time and place upon which defendant was previously tried on the said charges of disorderly conduct and public drunk and that defendant was thus in jeopardy.”

Although the general rule is that an accused is entitled to have a jury hear issues of fact raised by a plea of former jeopardy, it is also the rule that, where the issue presented by the plea is a matter of law, then the issue need not be submitted to the jury for their consideration. Billups v. City of Birmingham, Ala.Cr.App., 367 So.2d 518. The circumstances of the particular case will determine whether a question of fact or a question of law is at issue. - In the present case, we have reviewed the transcript of evidence concerning the hearing on the plea of former jeopardy, and it is our judgment that no issues of fact were presented.

As can be seen from the appellant’s plea of former jeopardy, the contention that the appellant was improperly charged with two offenses arising out of the same set of facts is made. The Alabama Supreme Court enunciated the rule regarding a plea of former jeopardy in Racine v. State, 291 Ala. 684, 286 So.2d 896. There the court stated:

“A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law.”

See also, Colston v. State, Ala., 350 So.2d 337.

Therefore, it is our judgment that the court was correct in overruling the plea of former jeopardy without intervention of a jury.

VI

The appellant avers that the trial court committed reversible error when it permitted the City, in closing argument, to comment, “My client is all of you and all of these people out there.”

We have reviewed that portion of the record involving this comment and find:

“MS. CROCKER: My client is all of you and all of these people out there.
“MR. LAIR: I object.
“THE COURT: Sustain, as to the statement ‘all of you.’ You’re not involved as clients in this case. You’re the jury. “As regards the people out there, I’ll overrule.”

From the foregoing portion of the record, we find that the defense’s objection was sustained and that the trial judge made the necessary curative instructions. If any prejudice was created by the prosecution’s remarks it was eradicated by the trial court’s prompt action; therefore, we find no error.

VII

The appellant also complains that, during closing argument, the prosecution, referring to the officer’s injury, remarked, “He was injured to the point that he had a concussion.” Although there was no specific evidence concerning the term “concussion,” there was testimony by Officer Fields that, after he received the blow to his head, he blacked out.

Under the facts presented, it is our judgment that no error was shown.

The law in Alabama is clear that, when arguing a case to a jury, counsel is allowed great latitude in drawing reasonable inferences. McQueen v. State, Ala.Cr.App., 355 So.2d 407; Henry v. State, Ala.Cr.App., 355 So.2d 411; Hurst v. State, Ala.Cr. App., 356 So.2d 1224.

VIII

The appellant urges that the trial court’s failure to grant his motion for a mistrial after the prosecution had made the comment complained of in VI was error.

The statutory authority for granting a mistrial is found in § 12-16-233, Code of Alabama 1975, which reads as follows:

“The court or presiding judge in all cases of jury trial may discharge the jury without giving a verdict, with the consent of all parties to the trial or without the consent of the parties, when, in the opinion of the court or judge, there is a manifest necessity for the discharge or when the ends of justice would otherwise be defeated. In all cases in which the jury is discharged without a verdict, a mistrial shall be entered upon the minutes of the court, assigning the reason or cause for the mistrial, and no person shall gain any advantage by reason of such discharge of the jury. (Code 1907, § 7314; Code 1928, § 8696; Code 1940, T. 30, § 100.)”

This section clearly states the reason for discharging a jury when declaring a mistrial. The section also states that the trial judge has discretion in determining whether any reason for discharging the jury exists. Andrews v. State, 174 Ala. 11, 56 So. 998; Willingham v. State, 50 Ala.App. 363, 279 So.2d 534.

Discharging a jury on a motion for a mistrial is an extreme measure, and leaving this choice tQ the trial court’s discretion is proper because he heard what transpired and has seen the scenario unfold. He is in a far better position to determine whether a jury should be discharged and a mistrial granted. Hurt v. State, Ala.Cr.App., 361 So.2d 1163. See also, Carroll v. State, 45 Ala.App. 92, 225 So.2d 198.

We have examined the record and transcript of evidence and have found no error prejudicial to this appellant. Therefore, the judgment of conviction by the Jefferson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Gabe Peter TUCK v. STATE.
    6 Div. 187.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.

      John E. Amari, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

During the early morning hours of September 29, 1978, the appellant shot and killed his ex-wife, Helen Tuck, with a sixteen-gauge shotgun at her home in Birmingham.

Prior to the fatal shooting, the appellant and the deceased had been together at a local lounge where they had had an argument. It appears that the couple had been recently divorced. The evidence is undisputed that the appellant committed the crime and that the State presented sufficient evidence to establish a prima facie case. Consequently, a more complete rendition of the facts is unnecessary.

I

The appellant contends that the trial court erred in overruling his objections to questions propounded to Jay Glass, Chief Medical Inspector of the Jefferson County Coroner’s Office, concerning injuries sustained by the deceased. He asserts that such testimony was not relevant to the cause of death and was introduced solely to prejudice and inflame the jury.

The questions and answers complained of are:

“A. A contusion by definition is a breakage of blood vessels beneath the skin without breaking the skin and it is consistent with some form of blunt injury. “Q. Could it be consistent with a blow of the fist?
“MR. PICKARD: Objection.
“THE COURT: Overruled.
“A. It could be.
“Q. These injuries that you described around the neck, could they be consistent with fingernails, caused by someone’s hands around one’s neck?
“A. They could.
“MR. PICKARD: We object.
“THE COURT: Overruled.”

The trial court committed no error in allowing the witness to answer the first question quoted above. The qualifications of Mr. Glass as an expert witness were extensive and were stipulated to by the appellant. He was certainly qualified to describe the nature and extent of the wounds and injuries found on the deceased’s body and to state his opinion as to the manner or means by which they could have been inflicted. White v. State, 294 Ala. 265, 314 So.2d 857 (1975); Thomas v. State, 249 Ala. 358, 31 So.2d 71 (1947).

The appellant’s objection to the second question and answer above was raised after the witness had answered. There was no motion to exclude the answer. The objection therefore came too late. Hicks v. State, Ala.Cr.App., 372 So.2d 61 (1979); Burlison v. State, Ala.Cr.App., 369 So.2d 844, cert. denied, Ala., 369 So.2d 854 (1979); 6A Alabama Digest Criminal Law § 693.

We likewise note that both objections above were general. General objections to evidence are unavailing if the evidence is admissible for any purpose. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Stringer v. State, Ala.Cr.App., 372 So.2d 378, cert. denied, Ala., 372 So.2d 384 (1979).

II

The appellant contends that the trial court erred in refusing to exclude the answer to the following question asked Samuel Dumas, a friend of the deceased’s son who was his house guest on the night of the shooting:

“Q. How did he [appellant] appear to you?
“A. Really, it only appeared to me that he was in anger. Mad.”

We find no error on the part of the trial judge in this instance. The law in Alabama is clear that a witness may testify whether another person appeared to be mad or angry. Tagert v. State, 143 Ala. 88, 39 So. 293 (1905); Dozier v. State, Ala.Cr.App., 337 So.2d 148 (1976); Gamble, McElroy’s Alabama Evidence, § 127.01(3), (3d ed. 1977). In Carney v. State, 79 Ala. 14 (1885), Chief Justice Stone wrote:

“Human emotions and human passions are not, in themselves, physical entities, susceptible of proof, as such. Like the atmosphere, the wind, and some acknowledged forces in nature, they are seen only in the effects they produce. Pleasure, pain, joy, sorrow, peace, restlessness, happiness, misery, friendship, enmity, anger, are of this class. So, tenderness, sympathy, rudeness, harshness, contempt, disgust, the outcrop of emotional status, can not, in their constitution, be made so far physical facts, or entities, as to become the subject of intelligible word description. They are proved by what is called opinion evidence. Not the mere unreasoning opinion, or arbitrary conclusion of the witness, but his opinion based on experience and observation of the conduct, conversation, and facial expression of others, in similar emotional conditions. Facial expression and vocal intonation are so legible, as that brutes comprehend them; and yet human language has no terms by which they can be dissected, and explained in detail. The reasoning in such cases is a posteriori, and the major proposition is but the sum or resultant of every one’s experience and observation.

Ill

Appellant asserts that the trial court erroneously instructed the jury on the defense of voluntary intoxication as it applies to second degree manslaughter, a lesser included offense of first degree murder. We note that, after the trial court had completed its instructions and before the jury retired to deliberate, counsel for the appellant announced that he was satisfied with the trial court’s oral charge.

The appellant also contends the trial court erred in failing to instruct the jury that voluntary intoxication may negate the first degree murder elements of premeditation and deliberation. However, the appellant did not request the trial court to so instruct the jury, nor did he submit a written charge covering that proposition. Without an exception to the oral charge being raised, neither of those assertions may be considered on appeal. Cox v. State, 280 Ala. 318,193 So.2d 759 (1967); Sellers v. State, Ala.Cr.App., 353 So.2d 535 (1977).

AFFIRMED.

All the Judges concur.


text:
    Newbern Ray WILSON v. STATE.
    6 Div. 245.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    A1 Tidwell, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Sp. Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the court sentenced him to forty years in the penitentiary. Prior to arraignment appellant was found to be indigent and counsel was appointed to represent him. At arraignment, in the presence of counsel, he waived reading of the indictment and pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel represents him on this appeal.

Prior to trial a motion to suppress an alleged confession was conducted out of the presence and hearing of the jury. At the conclusion of the hearing the trial court ruled that the incriminating statement made by appellant to an investigator from the District Attorney’s Office and a Deputy Sheriff of Marion County was voluntary. These two witnesses were assigned to transport appellant from the Jefferson County Jail to the jail in Hamilton, Marion County, Alabama, to stand trial on a robbery indictment, following an order from the Circuit Judge of Marion County. Appellant was given the Miranda rights and warnings on at least two occasions and responded that he knew his constitutional rights, but declined to sign a waiver of rights form.

At no time was the inculpatory statement of appellant even referred to during the robbery trial in Marion County and it would serve no useful purpose or add anything to this opinion to further refer to the statement made by appellant. The case against appellant was tried on the testimony of two eye witnesses to the robbery who made positive in-court identifications of appellant as one of the bandits who robbed the drug store in Winfield, Marion County, Alabama.

Appellant did not testify during the trial in chief nor did he offer any evidence in his behalf.

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 to the jury, and there were no objections to the introduction of testimony which contained any merit. There was a request for the affirmative charge which was refused.

Mr. David Corbin testified that he was employed as a pharmacist at the Oden Shi-rey Drug Store, Incorporated, on November 2,1978, when the store was robbed between 5:30 and 6:00 p. m. He first saw appellant standing about twelve feet from him waving a .45 caliber automatic in the air. Appellant ordered everyone to lie down. There were eight or nine persons in the drug store at the time of the robbery and all lay face down on the floor at the command of the bandit. The bandit asked who was the druggist and Mr. Corbin stated he was the pharmacist. The bandit ordered Mr. Corbin to get off the floor and to give him all the narcotics in the store. Mr. Corbin started putting the narcotics in a paper bag and the bandit passed him a pillow case and told him to put the drugs in it. Mr. Corbin filled the pillow case full of narcotics and handed the pillow case to the robber. Mr. Corbin looked at the bandit several times while he was putting the drugs in the pillow case and the bandit ordered Mr. Corbin not to look at him, but every time the bandit said anything Mr. Corbin would look at him. The store was brightly lighted and at times the bandit was about two feet from him and he got a clear and unobstructed view of the bandit’s face. The bandit did not have his face disguised in any manner.

While Mr. Corbin was getting the drugs an employee was on the floor about three or four feet away and he made a move. The bandit told the employee that if he moved again he would blow his head off. In addition to the drugs four or five hundred dollars were taken from a brief case on top of the drug cabinet.

After giving the pillow case to the bandit, the bandit asked Mr. Corbin for his car keys and Mr. Corbin told him he did not have a car. The bandit asked the employee whom he threatened to shoot for his car keys and was told he did not have his car with him as he walked to work that day. The bandit then asked who owned the Lincoln that was parked nearby and he was told it belonged to Mr. Henry Lindsey. Mr. Lindsey was one of the owners of the drug store and he surrendered his keys to the bandit.

Mr. Corbin described the bandit as having a mustache and scars on his face. He also had long brown hair and was larger in stature than Mr. Corbin and he had very distinctive eyes. He was not wearing a suit but Mr. Corbin did not remember the type of clothing he had on. Mr. Corbin further stated the bandit had a companion who was armed with an old type pistol and was wearing a ski mask. He could not identify this man.

After the robbery was completed everyone in the store was ordered to pile up in a back room and remain there for ten minutes after they left the store.

The indictment listed some thirty different type drugs, all under the Controlled Substances Act, in addition to a 1978 Lincoln automobile, as being taken during this robbery. The warrant of arrest stated the combined value of the stolen items to be $14,700.00.

The only other witness who testified for the State was Mrs. Gerry Ann Sanford who was employed as a clerk at the time of the robbery. She made a positive in-court identification of appellant as one of the robbers. She stated her identification was based solely on seeing appellant at close range in a well lighted store at the time of the robbery.

Appellant contends that the State failed to prove venue and he was entitled to a directed verdict for that reason. We do not agree. Venue may be established by the testimony of one witness. White v. State, 55 Ala.App. 58, 312 So.2d 639; Ligon v. State, 50 Ala.App. 658, 282 So.2d 97.

From the record:

“Q. David (Corbin) is Oden Shirey Drug Company you testified about where this robbery took place, is it located in Marion County?
“A. Yes, sir.”

Appellant next asserts that he was deprived of a fair trial by the action of the court in not granting him a continuance so that he could adequately prepare for trial.

The law is well settled that a motion for a continuance in a criminal case is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed on appeal unless clearly abused. Fletcher v. State, 291 Ala. 67, 277 So.2d 882; Rogers v. State, Ala.Cr.App., 365 So.2d 322.

The record reflects that appellant was transported to Marion County no later than February 23, 1979, a month before trial. Counsel for appellant had ample time to prepare this case for trial. Appellant’s astute and resourceful counsel performed a very remarkable and professional job in defending him both at trial and on appeal.

“The conviction of a client does not prove lack of skill or zeal on the part of counsel.” Torris v. State, Ala.Cr.App., 339 So.2d 1073.

We find no abuse of discretion on the part of the trial court in denying a continuance in this case.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. This was such a clear-cut case of robbery it took the jury only 15 minutes to return a guilty verdict. The judgment of conviction is, in all things, affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Preston AVERITTE, Jr. v. STATE.
    7 Div. 732.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.

      William E. McGriff, II, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of murder in the first degree and fixed his punishment at life imprisonment. He was sentenced accordingly.

There is no contention that the evidence was not sufficient to support the verdict. Our review of the evidence convinces us that there is no reasonable basis for such contention. Even so, the tragedy is not to be considered without some ambivalence. For the victim, a boy of fifteen years of age, and his bereaved family there is tremendous natural sympathy; for the defendant, only a couple of years older than the victim and generally the victim’s friend, and his family there is also natural sympathy by reason of extraordinary circumstances that indicate that probably he was not a murderer at heart and that he is now sincerely remorseful.

In the trial court, defendant was represented by employed counsel. By reason of his indigency, the trial court appointed counsel to represent him on appeal, who strongly urges that the court committed reversible error in not granting defendant’s motion to exclude the evidence and in not declaring a mistrial at the conclusion of the State’s evidence after the State announced that it rested.

About 1:30 P.M., November 12, 1979, the jurors from whom the jury to try the case was to be selected were brought in the court room for that purpose. The court instructed and interrogated them fully as to their qualifications, and an attorney for each of the parties “questioned the Jury venire” without objection. A jury was then selected by the process of striking, and the selected jurors were duly sworn and seated in the jury box. Thereupon, the following occurred:

“THE COURT: Does either side invoke the rule?
“MR. FIELD: [District Attorney]: Yes, sir.
“THE COURT: All persons except the Defendant and one representative for the State who are going to testify in this case, please go into one of these two witness rooms right here across the little hall behind me and we will call you in one at a time as we may need you. Ladies and Gentlemen in the jury box. [At this time the court gave the jury some appropriate instructions and sent them to a jury room ‘upstairs.’] . .
“(Whereupon, a brief recess was had, after which the following occurred:)
“THE COURT: All right, bring the jury down.
“(Whereupon, the Jury was returned to the Jury box in the Courtroom after which the following occurred:)
“THE COURT: All, call your first witness.”

Six witnesses were called and testified on behalf of the State. At the conclusion of the testimony of the sixth witness, the court again appropriately instructed the jury as to their conduct and said, “All right, with that instruction, we are now in recess until nine o’clock in the morning.” As the court convened the following morning, the record shows:

“THE COURT: Don’t bring the Jury down yet.
“MR. FIELD: Your Honor, we rest. “THE COURT: Very well. You have a motion to make?
“MR. CLINTON: Yes, sir.
“THE COURT: All right, sir. Go ahead.”

At that time, or a short time before on the same day, defendant filed and submitted to the court a motion “to exclude the State’s evidence and dismiss charges against the Defendant.” It was alleged in substance in the motion that, during the presentation of the State’s case, a brother of the victim and one Kendrick Jones were in the balcony of the courtroom while witnesses for the State were testifying and relayed the progress of the testimony and the evidence to prospective witnesses for the State. The motion further alleged that defendant’s rights under “The Rule” were violated “by dissemination of evidence between witnesses.” There was a hearing on the motion out of the presence of the jury. Three witnesses were presented by defendant. The testimony of two of them tended to substantiate the averments of the motion. The third witness, Kendrick Jones, denied that there was any transmission of information by him or the brother of the victim to any witnesses in the case as to what preceding witnesses had testified.

It appears that the court never ruled on the motion to exclude the evidence. Whether this was an oversight or whether the court concluded that defendant was not insisting on his motion, we are not informed. The parties on appeal seem to be in agreement that if the court had ruled on the motion, it would have denied it. Assuming that the motion had been denied, it is clear that there was ample basis for such a denial. The court could have believed the testimony of Jones to the effect that the material allegations of the motion were not true. It is not within our province to disturb this finding of fact by the trial court.

We think it appropriate also to emphasize at this time the breadth of the discretion that is vested in the trial court as to questions arising in connection with whether there has been a violation of that which is often called the placing of witnesses “under the Rule,” that is, the exclusion of them from the courtroom so that they will not hear each other testify and ordering them not to talk with one another about the case, not to talk with anyone about it except the lawyers or the parties, and not to talk with them in the presence of other witnesses. On matters related to any violation of “the Rule,” we repeat:

“The sequestration of witnesses under ‘The Rule’, while rarely to be withheld upon request, is nevertheless discretionary with the trial court. And, where, for instance, a witness has remained in the courtroom in violation of the rule, the trial court’s decision as to his testifying or not is not open to review. Wilson v. State, 52 Ala. 299; Teague v. State, 245 Ala. 339, 16 So.2d 877. ...” Beddow v. State, 39 Ala.App. 29, 96 So.2d 175, 177, cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), cert. denied, 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414.

Even if the trial court was of the opinion that there had been some substantial violation of the rule, our attention is called to no case or authority to the effect that it would have justified the granting of a motion “to exclude the State’s evidence and dismiss charges against the Defendant.” In this connection it is to be noted that the testimony of the first witness for the State, when considered with that of the second witness, a pathologist who performed the autopsy on the victim and said his death was caused by “a shotgun wound to the head,” was sufficient to support the verdict in the case. Even if the testimony of all the subsequent witnesses were excluded from the consideration of the jury, there remained an issue of fact for it to decide.

To appellant’s contention that the trial court should have declared a mistrial, there is the obvious answer that defendant did not request a mistrial and it would have been highly improper for the court to have granted one in the absence of a request or motion by defendant. To have done so in that circumstance would have opened the door to a claim by defendant that a new trial would constitute double jeopardy.

There is no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed. The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


text:
    Anthony RODEN v. STATE.
    8 Div. 324.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    John E. Higginbotham, Florence, for appellant.

      Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant pled guilty to an indictment charging the unlawful possession of marijuana in violation of Alabama Code 1975, Section 20-2-23(3). The trial court accepted the plea agreement between the defendant and the District Attorney and sentenced the defendant to two years imprisonment. A second case against the defendant was nol-prossed in accordance with the agreement.

I

The record shows that the guilty plea was intelligently and voluntarily entered according to the standards of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The defendant executed an “Ireland” form. Cooper v. State, 53 Ala.App. 36, 297 So.2d 169, cert. denied, 292 Ala. 717, 297 So.2d 175 (1974); Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971).

“A guilty plea, if voluntarily and understandingly made, waives all nonjuris-dictional defects in the prior proceedings against an accused.” Barnes v. State, 354 So.2d 343 (Ala.Cr.App.1978). Such nonju-risdictional matters include the court’s refusal to suppress certain evidence and to grant a request for a preliminary hearing. Barnes.

II

The defendant contends that the denial by the trial court of his motion for rehearing on application for probation was violative of his due process rights in that he “was not apprised of the allegations in the presentence investigation report (probation report) in sufficient time to dispute and refute the same.” The record contains no proof of this allegation. The first time it appears is in a “Petition and Affidavit in Support of Petition for Assignment of Counsel for Leave to Appeal in Forma Pau-peris” sworn to by the defendant. The defendant never made any request of the trial court that he be allowed time to “dispute and refute” the contents of the presen-tence investigation report. While the “Motion for Rehearing” does allege that the “statements and conclusions submitted by the probation officer . . , reflects bias and prejudice against the defendant” and “is fraught with statements and conclusions from a tainted source” there is no evidence in the record to support these allegations.

Alabama Code 1975, Section 15-22-53(c) provides:

“In no case shall the right to inspect said [probation] report be denied the defendant or his counsel after said report has been completed or filed.”

There is no showing that this section was violated in this case.

Furthermore, the original granting or denial of probation is entirely within the discretion of the trial court and is not reviewable upon appeal from a judgment of conviction. Turner v. State, 365 So.2d 335 (Ala.Cr.App.), cert. denied, 365 So.2d 336 (Ala.1978); Driggers v. State, 344 So.2d 226 (Ala.Cr.App.1977).

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

AFFIRMED.

All Judges Concur.


author: BOYD, Justice. OVERTON, Justice,

text:
    James T. KIMBALL, etc., et al., Petitioners, v. Robert T. MANN et al., Respondents.
    No. 55901.
    Supreme Court of Florida.
    April 17, 1980.
    Rehearing Denied July 21,1980.
    James T. Kimball, in pro. per.
    Richard M. Davis and J. B. Curasi of Curasi & Davis, Tallahassee, for Lindo’s Tours U.S.A., Inc. and Central Florida Bus Lines, Inc.
    John P. Bond of Bond & Woitesek, Miami, for A-l Bus Lines, Inc. and Airocar, Inc.
    Prentice P. Pruitt and M. Robert Christ, Tallahassee, for Robert T. Mann.
    John H. Wilbur and James F. Valenti, Jr. of Milam & Wilbur, Jacksonville, for Greyhound Lines, Inc.
    Gregory A. Presnell and Robert B. Na-deau, Jr. of Akerman, Senterfitt & Eidson, Orlando, for Tamiami Trial Tours, Inc. d/b/a Trialways, Florida Limousine Service, Inc. d/b/a Florida Tour & Limo.
    Ansley Watson, Jr. of Macfarlane, Ferguson, Allison & Kelly, Tampa, for Gulf Coast Motor Line, Inc.
    Robert A. Ginsburg, County Atty., and James G. Roth, Asst. County Atty., Miami, for Dade County.
    Phillip Schiff of Dubbin, Schiff, Berkman & Dubbin, Miami, for Red Top Sedan Service, Inc.

      John A. Sutton, Orlando, and Richard B. Austin, Miami, for amicus curiae.
   BOYD, Justice.

Petitioners seek review of a Public Service Commission order denying their applications for certificates of registration as interstate commerce carriers under section 323.28, Florida Statutes (1977). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Petitioners wanted to extend their motor vehicle transportation services to arriving or embarking airline passengers. Believing their services would constitute interstate commerce, they applied for a certificate of registration under section 323.28, which exempts interstate commerce carriers from having to obtain certificates of public convenience and necessity. After a hearing examiner recommended that the certificates be granted, several other companies filed objections, claiming they had insufficient notice of the proceeding and requested a hearing. Their requests were granted and a hearing was held over petitioners’ objections. Again the hearing examiner recommended that the certificates be granted. In this order he specifically found:

1. None of the applicants propose to have any “common arrangements” with either air or water carriers.
2. None of the applicants propose to provide “through ticketing” with either air or water carriers.
3. Each of the applicants state that the services will be provided on a pre-ar-ranged or reserved basis with the arrangements for such services being made either by the passenger himself or a travel agent or tour agent.
4. Each of the applicants state that in many cases the services will be provided in connection with a “package tour” whereby the passenger pays his one price which includes among other things round-trip ground transportation to and from airports or seaports.

The commission accepted these findings of facts, but concluded as a matter of law that the petitioners’ services were not interstate commerce. Petitioners claim that the commission erred by holding a public hearing and by not finding that petitioners were operating in interstate commerce.

Petitioners state that section 323.28(2), Florida Statutes (1977) specifically provides: “The certificate of registration shall be granted as a matter of right without public hearing.” They point out that this Court interpreted similar language in section 323.05, Florida Statutes (1975) to mean that a business competitor was not entitled to a hearing. ASI, Inc. v. Florida Public Service Commission, 334 So.2d 594 (Fla. 1976). In that case we stated: “It was a simple matter for the Commission to compare [the] application with the statute, and decide that the proposed transportation fell within the purview of the statute.” Id. at 596. In this case the commission decided that it was not such a simple matter. It found that whether petitioners were entitled to a certificate of registration was a mixed question of fact and law which required an evidentiary hearing. If it had sufficient evidence to determine whether petitioners were entitled to a certificate of registration, it could have just as easily denied the requests for a hearing.

Petitioners argue that the commission had sufficient evidence to make a decision. An applicant who is engaged in interstate commerce must either be certified by the Interstate Commerce Commission or fall within one of the categories exempting certain interstate commerce activity from certification. Petitioners claim that their services fall within the statutory exemption for “transportation of persons or property by motor vehicle when incidental to transportation by aircraft . . . .” 49 U.S.C. § 303(b)(7a). They say this exemption automatically applies when the transportation is confined to passengers who are utilizing the airlines and is within a twenty-five mile radius of the airport. 49 C.F.R. § 1047.-45(a). They further argue that the commission does not have the authority to determine whether a business is engaged in interstate commerce since the Interstate Commerce Commission has preempted the field.

Clearly the Public Service Commission has the authority to decide whether a business is engaged in interstate commerce. Otherwise it would be bound by the assertions of the applicants, foreclosing the possibility of any investigation into the validity of the assertions. This would completely nullify the commission’s regulatory authority-

In deciding whether petitioners fell within the exemption claimed, the commission looked to the I.C.C.’s decisions on the matter. The I.C.C. has required motor vehicle transportation to be part of a “through ticket” or commonly arranged with the interstate carrier.

The question of whether the motor transportation of passengers between an airport and a point in the same State is interstate commerce when those passengers have an immediately prior or subsequent interstate movement by air was dealt with in Motor Transp. of Passengers Incidental to Air [95 M.C.C. 526, 536]. In that proceeding the Commission affirmed numerous past decisions and found that a motor carrier of passengers operating wholly within a State, selling no through tickets, and having no common arrangements with connecting out-of-State carriers is not engaged in interstate or foreign commerce regardless of the intentions of any passengers to continue or complete an interstate journey.

Wisconsin-Michigan Coaches, Inc., 124 M.C.C. 448, 450 (1976). The I.C.C. is not bound, as petitioners contend, by an ironclad rule of twenty-five miles. Freight Forwarders Inst. v. United States, I.C.C., 409 F.Supp. 693 (N.D.Ill.1976); I. C. C. v. Howard, 342 F.Supp. 1112 (W.D.Mich.1972). The I.C.C. may vary the zone of the exemption based on “considerations of the inherent characteristics of the specific carrier involved.” Zantop Air Transport, Inc. v. United States, 272 F.Supp. 265, 266 (E.D. Mich.1967). Thus the standard employed by the I.C.C. and borrowed by the commission is within the I.C.C.’s statutory authority. The Public Service Commission, therefore, did not depart from the essential requirements of law by holding that the applicants’ transportation services must provide for either “through ticketing” or “common arrangements.”

The hearing examiner specifically found that none of the petitioners provided “through ticketing” or had “common arrangements” with any interstate carriers. The complete package tours which include petitioners’ sen ices were arranged by travel or tour agents, and not the airlines. After selling these package tours, the airlines would pay the tour agents. In this situation the tour agent, by making the necessary arrangements and collecting the money, intervenes between the airline and the motor carrier, dispelling any notion that the airline and the motor carrier had a common arrangement between themselves. Therefore the hearing examiner’s findings of fact were based on competent substantial evidence and the commission correctly applied the law to those facts.

The motions to strike the motion to confess error, filed after oral argument, are granted and the motion to confess error is stricken.

The petition for certiorari is accordingly denied.

It is so ordered.

ENGLAND, C. J., and ADKINS and SUNDBERG, JJ., concur.

OVERTON, J., dissents with an opinion, with which ALDERMAN, J., concurs.

OVERTON, Justice,

dissenting.

I dissent. I would not decide this cause on the merits at this time in view of the confession of error by the Public Service Commission, who is a party litigant in the instant proceeding. I would remand to the Commission for a complete rehearing on the merits, with an opportunity for all interested parties to be heard.

ALDERMAN, J., concurs.