text:
    Timothy F. BARBEE v. STATE.
    3 Div. 564.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.

      Timothy F. Barbee, pro se.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

This is an appeal from the denial of a petition for writ of habeas corpus. The only issue concerns the sufficiency of the indictment.

Barbee was indicted and convicted for first degree theft of property. Alabama Code 1975, Section 13A-8-2(l), defines the crime of theft of property to include one who “(k)nowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property ...” The indictment under which Barbee was convicted charged that he “did knowingly obtain or exert unauthorized control over a motor vehicle ... in violation of Section 13A-8-3 of the Alabama Criminal Code, ...”

In affirming Barbee’s conviction we noted: “No objection was made in the circuit court that the indictment omitted the phrase ‘with intent to deprive the owner of his property.’ This issue is not cited as error on appeal.” Barbee v. State, 395 So.2d 1128, 1130, n. 1 (Ala.Cr.App.1981). Barbee did not apply for rehearing before this Court or file a petition for writ of certiorari to the Alabama Supreme Court.

Now, for the first time, Barbee challenges the validity of the indictment and alleges that it is “fatally defective.”

The Attorney General recognizes the controlling principles that habeas corpus is the appropriate remedy where the indictment charges no offense, State v. Johns, 142 Ala. 61, 38 So. 755 (1905); that a specific criminal intent is an essential element of the crime of larceny, Frye v. State, 369 So.2d 892 (Ala.Cr.App.1979); and that without an expression of intent to steal or animus furandi, no crime would be described in an indictment for larceny. Frye.

“ ‘If an indictment shows no offense, there is no criminality shown, and there is nothing of which a court can take jurisdiction. And if a court has no jurisdiction its action is void — a condition which is the very object of habeas corpus to cure. Voidable informalities or irregularities are not reached by it, but fatal jurisdictional defects are ever within its range either before or after indictment, and even after conviction and judgment.’— Note 1 to Section 245 in Church on Habe-as Corpus; 15 Am. & Eng. Ency. Law, (2d ed.) 200.”
State v. Johns, 142 Ala. 61, 38 So. 755 (1905).

“If the indictment is framed under a statute which defines the offense created, and prescribes its constituents, it must allege in the words of the statute, or other words equivalent in meaning, all the statutory elements which are essentially descriptive of the offense.” Holt v. State, 86 Ala. 599, 600, 5 So. 793 (1888); Allen v. State, 30 Ala.App. 147, 2 So.2d 320, reversed on other grounds, Ex parte Allen, 241 Ala. 137, 2 So.2d 321 (1941); Alabama Code 1975, Section 15-8-21.

“An indictment, framed under a statute which creates an offense and prescribes its constituent elements, must allege all the circumstances or ingredients, which enter into the essential description of the offense. If the intent is a statutory constituent, not only the acts, in the doing of which the offense consists, but the intent with which they are done, must be alleged. Proof of the intention, without an allegation, is not sufficient. — Eubanks v. State, 17 Ala. 181; 1 Bish.Crim.Proc. Section 521; Davis v. State, 68 Ala. 58. “The statute on which the indictment is found declares: ‘Any person who, knowingly, willfully, and without the consent of the owner thereof, enters upon the lands of another person, and cuts and carries off any timber or rails, with the intention of converting the same to his own use, if the property is of the value of twenty-five dollars or more, is guilty of grand larceny; and if the value of the property is less than twenty-five dollars, the offender is guilty of petit larceny.’ Code, Section 4360. The evil ‘intention of converting the same to his own use’ is necessary to convert the prescribed acts into a crime. The indictment, omitting an allegation of the statutory intention, fails to charge an offense.”
McCord v. State, 79 Ala. 269, 270 (1885).

Holt held that the use of the term “feloni-ously” did not supply the omission to allege “not having the intent to restore the property to the owner” from an indictment attempting to charge the crime of receiving stolen property. In Holt, the objection to the fatally defective indictment was first raised on direct appeal.

Failure to charge an offense is the kind of defect involved in due process of law and it cannot be waived. Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (1973). Although the law does not compel a “ritual of words” in an indictment, “(t)he omission of an element of the crime, however, is not a mere formality that may be waived.” United States v. Purvis, 580 F.2d 853, 857, 858, rehearing denied, 585 F.2d 520 (5th Cir. 1978), cert, denied, 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463 (1979). “An indictment that fails to allege each material element of an offense fails to charge that offense.” United States v. London, 550 F.2d 206, 211 (5th Cir. 1977). “Failure to charge specific intent is but a particular aspect of the failure to charge an offense.” Purvis, 580 F.2d at 858.

A defect in the indictment associated with an essential element of the offense which leaves the accused unaware of the nature and cause of the charge cannot be waived. Crews v. State, 374 So.2d 436, 442-43 (Ala.Cr.App.1979); Andrews v. State, 344 So.2d 533, 534-35 (Ala.Cr.App.), cert. denied, 344 So.2d 538 (Ala.1977). Where an indictment is void and does not charge an offense, this Court is bound to take notice of such a defect even in the absence of an objection. Edwards v. State, 379 So.2d 336, 338 (Ala.Cr.App.1979), cert. denied, 379 So.2d 339 (Ala.1980).

The new theft of property offense defined in Section 13A-8-2 requires proof of an intent “to deprive the owner of his property”, as that phrase is defined in Section 13A-8-l(2). Commentary to Section 13A-8-5. It is clear that intent to deprive is an essential element of the offense of theft. Consequently, an indictment which fails to aver the specific intent to deprive is fatally defective. 52A C.J.S. Larceny, Section 85(b) (1968).

The fact that the indictment refers to its statutory source cannot save it from being fatally deficient. The rule is that “the indictment must contain all the essentials to constitute the offense, explicitly charged, and that they must not be left to inference.” State v. Seay, 3 Stew. 123, 131 (1830). The indictment cannot be aided by intendment, Poore v. State, 17 Ala.App. 143, 82 So. 627 (1919), and “nothing is to be left to implication or intendment, or to con-elusion.” Mastoras v. State, 28 Ala.App. 123, 126, 180 So. 113, cert. denied, 235 Ala. 519,180 So. 115 (1938). A court is “without authority to add to, or take from, any of the material averments in the indictment, which speaks for itself and is conclusive.” Crump v. State, 30 Ala.App. 241, 242, 4 So.2d 188 (1941).

A reference to a statutory source in an indictment is a “matter of convenience and not of substance.” Pate v. State, 45 Ala.App. 164, 166, 227 So.2d 583 (1969). “The statement that the facts violate a certain section of the statute is nothing more than the pleader’s conclusion, which may or may not be correct, and neither adds nor detracts from the allegation.” Harper v. United States, 27 F.2d 77, 79 (5th Cir. 1928); Allen v. State, 33 Ala.App. 70, 73, 30 So.2d 479 (1947). Reference to the statute is treated as surplusage. Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162 (1974).

Upon these authorities we conclude that a reference in an indictment to the statute defining the offense cannot be considered for the purpose of supplying an allegation of criminal intent which is an essential element of the offense and has been omitted from the indictment.

Under the cases cited by the Attorney General, we have no alternative but to find that the indictment in this case is void and fatally defective. See McCord, supra. We have been cited no authority which would warrant the finding that the indictment in the instant case is merely voidable rather than void. An indictment that fails to state an offense will not support a judgment of conviction. Mays v. City of Prattville, 402 So.2d 1114, 1117 (Ala.Cr.App.1981). The judgment of the circuit court is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

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

DeCARLO, J., concurs in result.


source: Caselaw Access Project

author: BARRON, Judge. BOWEN, Judge,

license: Public Domain

text:
    John Curtis SHEPARD v. STATE.
    5 Div. 649.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.

      William P. Fuller, J., Lafayette, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

John Curtis Shepard was convicted of murder by a Chambers County Circuit Court jury and was sentenced to fifteen years. Hence this appeal.

The undisputed evidence shows that appellant shot the victim on April 28, 1980, a short time after a rather heated argument between them.

The only issue presented for review relates to the admission into evidence, over proper objection, of appellant’s incriminatory written statement. A hearing was held out of the presence of the jury on appellant’s motion to suppress, at the conclusion of which the motion was denied.

Appellant urges that the trial court’s ruling on the motion to suppress was reversible error in that the written statement is an inadmissible product of a police-initiated custodial interrogation which occurred after appellant had invoked his right to counsel, in violation of the mandate of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

The evidence is in dispute as to whether appellant invoked his right to counsel. The testimony of the police officers was to the effect that appellant indicated he did not desire to give the officers a statement on the date of the incident, and that “he would rather wait and talk to his lawyer.” Appellant testified that the conversation was to the effect that “I will make a statement when ya’ll get me an attorney.” No one disputes that appellant was timely advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The trial court, in denying the motion to suppress, apparently found that appellant did not, in fact, request the appointment of counsel and further reasoned that the right to counsel had not been sufficiently invoked by appellant.

We find that appellant did sufficiently invoke the right to counsel when he revealed a desire for legal advice prior to making a statement. The record is void as to proof by the State that appellant made a voluntary and intelligent waiver of that right at any time after it was invoked and prior to making the written statement. Consequently, we hold that admission into evidence of appellant’s written statement was in violation of Edwards, supra, and was therefore erroneous.

However, the error is harmless and is without injury to the rights of appellant because of the testimony of a substantially identical oral statement of appellant, which is clearly admissible.

Chambers County Coroner A. C. Farring-ton testified concerning a spontaneous statement made to him by the appellant at the scene as follows:

“... He said they went on to the house and that the argument continued on into the house. And that he went into the kitchen to take some medication which was on top of the refrigerator. And when he came back to the door, coming in from the kitchen, into the bedroom, that Mattie [the victim] had come out of this chair that she was seated in and started going toward the bed where her purse was placed. And he reached in the chest of drawers, picked up the gun and shot. And he said she fell. He also said that he turned the coffee table up out of the way which was turned up against the sofa and that he put the pillows under her head. I didn’t write any statement. I just listened to what he said. I did not ask him anything.”

The oral statement to which Coroner Far-rington testified is substantially identical to appellant’s written statement. The only significant difference in the two statements is a portion of the written statement as follows:

“. .. I turned around and shot her in the chest. I meant to shoot lower.... ”

The only possible consequence the quoted portion of the written statement could have had relates to the matter of intent; that is, whether the appellant intentionally caused the death of the victim by shooting her with a pistol, as charged in the indictment. This distinction between the oral and written statement pales into insignificance when it is considered that the element of intent may be inferred by the jury from the use of a deadly weapon.

When a party without necessity kills another with a deadly weapon, under the law, in the absence of proof to show that it was accidental, the implication is that the act was voluntarily done. Sanders v. State, 392 So.2d 1280 (Ala.Cr.App.1980). See also Harjo v. State, 395 So.2d 1104 (Ala.Cr.App. 1980), cert. denied, 395 So.2d 1105; Steele v. State, 389 So.2d 591 (Ala.Cr.App.1980).

Additionally, the portion of the written statement that appellant “meant to shoot lower” could have been considered by the jury to lessen the intent element in causing the homicide, thus acting to appellant’s benefit, rather than to his detriment.

For the above reasons, we hold that the admission into evidence of appellant’s written statement constitutes harmless error.

The judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

DeCARLO, J., concurs.

BOWEN, J., concurs specially.

HARRIS, P. J., and TYSON, J., dissent.

BOWEN, Judge,

concurring.

Although I adhere to my views expressed in Hinshaw v. State, 398 So.2d 762 (Ala.Cr.App.), cert. denied, 398 So.2d 766 (Ala.1981), and Price v. State, 392 So.2d 1242 (Ala.Cr.App.), cert. denied, 392 So.2d 1248 (Ala.1980), I agree with the majority finding that the distinction between the oral and written confessions is insignificant.


author: BOWEN, Judge.

text:
    Dwight A. GAMBLE v. STATE.
    5 Div. 679.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Tom Radney of Radney & Morris, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of James W. Richardson. Alabama Code 1975, Section 13A-6-2. Sentence was ten years’ imprisonment. One issue is raised on appeal.

At trial, two expert witnesses presented by the State gave contradictory opinions on whether the bullet wounds on the body of the deceased were entrance or exit wounds. Dr. John Crispen examined the deceased in the hospital emergency room. He testified at trial that the bullet wound on the front of the body of the deceased was the entrance wound and the wound on the back was the exit wound.

Forensic pathologist Dr. Thomas Gilchrist testified that the entrance wound was in the back and the exit wound was in the front.

The defendant argues that the trial judge erred in permitting the State to present to the jury direct conflicting evidence by two experts.

This issue is fully answered in C. Gamble, McElroy’s Alabama Evidence, Section 165.-01(9) (3rd ed. 1977).

“One must be careful to distinguish between impeachment of a witness and contradiction of him. While one is precluded under the general rule from impeaching his own witness, he is not precluded from contradicting the testimony of his own witness. There is no rule of law which precludes a party from proving the facts of his case or defense by any witness he may call even though the testimonies of his various witnesses concerning a relevant fact may be in conflict with each other. If the plaintiff calls W as his first witness in an automobile collision case, for example, and W testifies that the defendant’s automobile was traveling 10 miles per hour at the time of the collision, this would not be a barrier to other witnesses of plaintiff testifying that defendant’s automobile was traveling at a greater rate of speed, even though the testimony of the other witnesses would incidentally discredit the testimony of W. This hypothetical illustrates contradiction which is allowed as to one’s own witness even though it has the incidental effect of impeaching him.”

“(I)t is exceedingly clear that the party is not precluded (by the rule prohibiting a party from impeaching his own witness) from proving the truth of any particular fact, by other competent testimony, in direct contradiction of his witness, though the collateral effect may be to show that the witness was generally unworthy of belief.” Jebeles-Colias Conf. Co. v. Booze, 181 Ala. 456, 460, 62 So. 12 (1913). “While it is not permissible for a party to discredit his own witness, there is no rule of law which precludes him from giving evidence varying the testimony of a witness introduced by him.” Upson v. Raiford, 29 Ala. 188, 194 (1856). Oates v. Glover, 228 Ala. 656, 658, 154 So. 786 (1924) (Plaintiff called defendant as a witness and defendant’s testimony was “strongly contradictory” of Plaintiff’s). Williams v. Schaffer, 262 Ala. 636, 80 So.2d 722 (1955), where the respondents presented conflicting evidence as to the true ownership of property.

The chief reason for this rule is “the perception that without it one could not prove the facts of his case if the first witness called were to testify untruthfully. From this point of view the discrediting of the witness is regarded as incidental only (because inevitable) to this other and necessary right.” 3A Wigmore, Evidence, Section 908 (Chadbourn Rev. 1970). See also Wigmore at Section 907.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Tyrus Cobb HOLLIS v. STATE.
    6 Div. 819.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.

      Bill Fite, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

Assault in the first degree; twenty years.

Dr. R. C. Christopher, a physician in Guin, Alabama, testified that on June 7, 1981, he treated eighty-one-year-old Mrs. Dixie Hollis in the emergency room of the local hospital. He stated that when he first examined her she was semi-conscious, covered with dried blood, and obviously had been severely beaten. The tissue on her left forearm was completely tom back and she had damage to her chest wall. In addition, she had numerous broken ribs, extensive blood clots in both lungs and her right lung had burst. Dr. Christopher said that Mrs. Hollis was “just about dead” and he did not know why the injuries she sustained had not caused her death.

Mrs. Dixie Hollis testified that she and her son, the appellant, lived in the same house. She woke up in the hospital June 7, 1981, and did not remember clearly what had occurred beforehand she stated, “Ty hit me . .. but he was drunk. I don’t blame him at all because he didn’t know what he was doing when he hit me.”

After the testimony of the two Guin police officers who found Mrs. Hollis and called an ambulance, the State rested. The appellant moved to exclude the evidence because the prosecution had not established a prima facie case of assault in the first degree. The motion was denied and the defense rested without presenting any evidence.

I

Appellant contends that his motion to exclude should have been granted on the grounds that there was no evidence of his criminal intent to assault his mother and no evidence of the use of a “deadly weapon” or “dangerous instrument” required under § 13A-6-20, Code of Alabama 1975, for assault in the first degree.

The indictment charged that appellant caused serious physical injury to Dixie Hollis “by means of a deadly weapon, or a dangerous instrument, to-wit: by beating her with his fists.” In Stewart v. State, 405 So.2d 402 (Ala.Cr.App.1981) this court stated the following:

“Certainly the use of an adult man’s fists to beat a seventeen month child may appropriately allow those fists to be classified as a deadly weapon or dangerous instrument.” 405 So.2d at 405.

In our judgment, the same classification is appropriate when an adult man uses his fists to beat his eighty-one-year-old mother, and under the facts of this case, we hold that appellant’s fists were a “deadly weapon” or “dangerous instrument,” Stewart v. State, supra.

Furthermore, we believe the criminal intent necessary to constitute the offense may be inferred from the “circumstances of violence and brutality” attending appellant’s attack on his mother without a weapon. See Helton v. State, 372 So.2d 390, 393 (Ala.Cr.App.1979).

II

Appellant claims that the trial court erred by overruling his objection to the following statement made during closing argument by the prosecution: “how come she’s got nearly every bone in her body broken?”

Although the statement is not supported by the evidence, in that only the victim’s ribs were broken, we do not believe the comment was prejudicial to appellant in view of Dr. Christopher’s detailed description of Mrs. Hollis’ injuries, including the following:

“Evidently one of the ribs punctured the lung under the broken ribs. She had other multiple injuries, just abrasions all over. You can well imagine. Maybe, I have painted a picture about how she looked. She was just about dead.”

Moreover, following appellant’s objection to the comment by the State, the following occurred:

“Continuing argument by Mr. Tidwell: ‘. .. and she has a punctured lung as well.’
“MR. CREEL: Objection ... there’s no testimony that she had a punctured lung. “THE COURT: Overruled. The jury will remember the testimony.”

In our judgment, the trial court’s admonition to the jury to “remember the testimony,” following as closely upon the district attorney’s reference to broken bones and appellant’s first objection as it did, served to impress upon the jury their responsibility to recall the evidence from the witness stand. Further, in its oral charge, the court fully explained to the jury what it could and could not consider as evidence. We find no error prejudicial to appellant’s substantial rights here.

III

The record discloses that at 4:40 P.M. the jury retired, to deliberate, and at 4:45 P.M. the jury returned to the courtroom to announce the verdict. Appellant insists that the short time the jury deliberated proved that they could not have fully considered the evidence before reaching their verdict. He claims the abbreviated time for deliberation amounted to a denial of due process of law for him.

The duration of jury deliberations is a matter vested entirely within the discretion of the trial court. See Lake v. State, 390 So.2d 1088 (Ala.Cr.App.1980), cert. denied, 390 So.2d 1093 (Ala.1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1715, 68 L.Ed.2d 207 (1981); Martin v. State, 29 Ala.App. 395, 196 So. 753 (1940). The record supports no finding of an abuse of discretion here.

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

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Earnest MILTON v. STATE.
    6 Div. 829.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rocco J. Leo, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was convicted by a Jefferson County Circuit Court jury of receiving, etc., stolen property in the second degree in violation of § 13A-8-18, Code of Alabama 1975. Appellant was sentenced to two and one-half years’ imprisonment.

The State’s first witness was Delbert Allen. Mr. Allen came home around 10:30 p. m. on the night of March 2, 1981, and discovered that his house had been burglarized. Among the items missing were two class rings. Mr. Allen testified that one of the rings was a gold high school class ring from Austin High School, with an orange stone. The ring had “1971” on it and in the band of the ring were inscribed the initials “D.J.A.” The second ring was a college class ring from Samford University. It was a yellow gold ring with an aquamarine stone. In the band was inscribed “Dell J. Allen” and the date “1975.”

Mr. Allen further testified that he had purchased the Austin ring in 1971 for around $55 and the Samford ring in 1975 for $110 to $115. He also testified that •both rings were in substantially the same condition when stolen as when they were purchased. When asked to give a fair market value of the rings, Mr. Allen estimated that they were worth “at least $200.”

After Mr. Allen reported the burglary to the police, he called numerous gold and silver dealers around Birmingham asking them to be on the lookout for the rings.

On March 6, 1981, an employee of the Gold and Silver Shack called Mr. Allen and said that she had his rings. He went to the dealer and was able to identify his rings by the initials on them. He called Sergeant J. A. Robinson of the Birmingham Police Department who took custody of the rings.

Dell Rogers, an employee of the Gold and Silver Shack, testified that on March 2, 1981, the night Mr. Allen’s rings were stolen, he bought two rings from appellant. Appellant had given his name and presented his driver’s license for identification. Mr. Rogers described them as two class rings, one from Austin High School and the other from Samford University. Mr. Rogers identified Mr. Allen’s rings as the rings appellant had sold to him.

Mr. Rogers also identified a copy of a form he was required to fill out whenever he bought gold or silver. Appellant’s name was on the form Mr. Rogers filled out when he purchased Mr. Allen’s rings. . ■ •

Mr. Rogers estimated the value of the rings to be from $100 to $150.

On cross-examination, Mr. Rogers, after initially stating that the value was not less than $100 when he bought the rings, testified it was possible the rings were worth from $75 to $150.

Sergeant J. C. Robinson, a detective for the Birmingham Police Department, testified that he recovered Mr. Allen’s rings from the Gold and Silver Shop.

After the State rested, appellant called Anthony Smith to the stand. Mr. Smith testified that he was a neighbor and friend of appellant’s and that a little after noon on March 2 he went to appellant’s house. He testified that he bought two rings for $50 on March 1,1981, from a “Charles.” He did not know “Charles’ ” last name. He asked appellant to sell the rings for him because he had no identification. That afternoon he and appellant went to the Gold and Silver Shop, and, after appellant sold the rings, they split the proceeds.

Appellant testified in his own behalf. Appellant stated that he asked Mr. Smith if the rings were stolen and Smith replied that they were not. He also testified that he sold the rings at evening, not during the daylight. He also denied splitting the money with Smith.

Appellant contends that the trial court improperly allowed Mr. Allen, a lay witness, to testify to the value of the rings without a proper foundation being established. He specifically argues that the prosecution did not show that Mr. Allen had an opportunity for forming a correct opinion and did not establish that the witness had indeed formed an opinion.

In Tice v. State, Ala.Cr.App., 386 So.2d 1180, cert. denied, Ala., 386 So.2d 1187 (1980), this court stated:

“The only predicate necessary for receipt of such testimony is that the witness has had an opportunity to form a correct opinion of the market value which is a question to be determined by the trial court. State v. Self, 293 Ala. 541, 307 So.2d 11 (1975). The trial court’s determination will not be reversed on appeal unless its ruling is shown to be clearly unjust. Thomas v. State, Ala.Cr.App., 338 So.2d 1045 (1976); Morns v. State, 25 Ala.App. 494, 149 So. 359 (1933). Our review of the record leads us to the conclusion that Smith had sufficient familiarity with the coins so as to state an opinion as to their fair market value. We therefore find no abuse of discretion in the trial court’s ruling.”

Mr. Allen testified that he bought the rings and he testified as to what he paid for them. He also testified that the rings were in substantially the same condition when stolen as when he bought them. He was also obviously familiar with the rings, having owned and worn them. We believe that, based on his knowledge of the rings, appellant had an opportunity to form a correct opinion of the market value, and the trial court, in overruling appellant’s objection, did not err in deciding so. Thomas v. State, Ala.Cr.App., 338 So.2d 1045 (1976). The prosecution having shown that the witness had an opportunity to form a correct opinion of the rings’ value, the proper predicate was established. Tice, supra.

Appellant also contends that the trial court improperly allowed the prosecution to make allegedly prejudicial statements during its closing remarks to the jury.

From the record:

“MR. WHISONANT: The defense called a sparkling witness to the stand who was one of the most blatant liars I have ever seen—
“MR. LEO: Objection, Your Honor. “THE COURT: What?
“MR. LEO: The remarks of counsel are highly prejudicial.
“THE COURT: In what way?
“MR. LEO: He has branded the witness a liar, he is using terminology that will do nothing but to arouse the jury.
“THE COURT: Overruled.
“MR. WHISONANT: Why do people burglarize houses? To get cash for items—
“MR. LEO: Your Honor, I am going to object to this, this has nothing to do with the trial here.
“THE COURT: Overruled. This is argument. Overruled.
“MR. WHISONANT: Well, ladies and gentlemen, the defense counsel would have to say, well, this man said that he was told it was stolen. Well, ladies and gentlemen, what is he saying to you? Is he saying that a burglar can go into your house and steal your jewelry and give it to his accomplice—
“MR. LEO: I will object, Your Honor— “MR. WHISONANT: —and nobody can do anything about it.
“THE COURT: Overruled.
“MR. LEO: He is talking about accomplices, Your Honor, he is talking about burglaries that has nothing to do with this charge.
“THE COURT: Overruled.
“MR. LEO: I except.

Appellant first contends that the trial court should have sustained his objection to the prosecutor’s remarks labeling appellant’s witness “a blatant liar.”

Counsel for both the State and appellant are allowed wide latitude in drawing reasonable inferences from the evidence in their closing arguments. A prosecutor as well as defense counsel has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference. Manigan v. State, Ala.Cr. App., 402 So.2d 1063, cert. denied, Ala., 402 So.2d 1072 (1981).

There was certainly evidence in the testimony of Anthony Smith (appellant’s witness) from which a legitimate inference could be drawn that he was not being truthful. He gave a very weak and evasive story as to how he got the rings, saying that a “dude named Charles” sold them to him. He did not know “Charles’ ” last name and did not know where he lived. He did not notice the inscriptions on the rings.

More importantly, the credibility of Mr. Smith’s account of when he obtained the rings and when he sold them was severely tested on the stand. He claimed that he bought the rings from “Charles” on the day before the rings were stolen. It was established in the record that the rings appellant sold for Smith were the rings stolen on the night of March 2,1981. Smith testified he bought them on March 1. He also testified that he and appellant sold the rings a little after noon on March 2, while the victim of the burglary testified that the rings were stolen on the night of March 2, and both appellant and the employee who bought the rings from appellant testified that the transaction occurred on the night of March 2. The form the employee filled out also sets the time at night.

Furthermore, the credibility of a witness is a legitimate subject of criticism and discussion. Flint v. State, Ala.Cr.App., 370 So.2d 332; Smith v. State, Ala.Cr.App., 344 So.2d 1239, cert. denied, 344 So.2d 1243 (Ala.1977). This court has previously up held a prosecution’s closing remarks to the effect that a defendant’s witness was either lying to the jury or lying to a police officer when the witness gave a different account on the stand from what he told a policeman. Smith, supra. The court in Smith stated:

“The witness admitted talking with Sergeant White; he admitted making some statements and denied making others. Under these circumstances, the Deputy District Attorney’s argument went to the credibility of the witness and as such was within the proper scope and limit of argument. The credibility of witnesses as shown by the reasonableness of their story and many other considerations, are legitimate subjects of criticism and discussion. Peek v. State, 19 Ala.App. 370, 97 So. 374 (1923); Jackson v. State, 239 Ala. 38,193 So. 417 (1940); Wall v. State, 2 Ala.App. 157, 56 So. 57 (1911); Cook v. State, 152 Ala. 66, 44 So. 549 (1907); Thomas v. State, 206 Ala. 416, 90 So. 295 (1921).” (Emphasis added.)

The trial court did not commit reversible error in allowing the prosecution to attack the credibility of the witness.

Appellant also contends that the trial court committed reversible error in allowing the prosecution to imply that appellant may have been involved in the original burglary when there was no evidence that appellant was involved in the burglary.

This court has addressed this exact issue in Eddy v. State, Ala.Cr.App., 353 So.2d 67 (1977). In Eddy, a pickup truck was stolen at 3:00 p. m. from a parking lot, and at 7:00 the same day the defendant sold it at an auction. Appellant was charged with buying and receiving stolen property, not with the theft of the property. In closing remarks, the prosecution accused the defendant of originally stealing the truck from the parking lot. In addressing the defendant’s claim of error, the court stated:

“If the first and fourth parts of the argument referred to the initial theft from the Woolco parking lot, it would also be admissible due to the facts and issues of this case. As noted above, permissible argument depends on the issues of the case. Here, knowledge by the appellant that the goods were stolen was in issue. Of course, a thief would know goods he stole were stolen. Here, there were facts from which it could be inferred that appellant was in possession of a recently stolen vehicle. From this possession, the inference he stole the truck could be drawn. Kilpatrick v. State, 43 Ala.App. 667, 199 So.2d 682. The arguments in parts one and four, if considered to mean appellant initially stole the truck from the Woolco parking lot, were proper. Sears v. State, 106 Tex.Cr.R. 219, 291 S.W. 547.”

In light of Eddy, we find no reversible error.

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

AFFIRMED.

All the Judges concur.


text:
    David Byron LANEY v. STATE.
    7 Div. 882.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Ronald S. Held, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Calhoun County Grand Jury for robbery in the first degree in violation of § 13A-8-41, Code 1975. At arraignment, appellant entered a plea of not guilty. The jury returned a verdict of guilty, and the court sentenced appellant to twelve years’ imprisonment in the state penitentiary.

Pat Quigley, store manager of Jerry’s Super Yalu in Bynum, Calhoun County, Alabama, testified he observed appellant in the store at 4:00 p. m. on December 18, 1980. Appellant was in the wine section and was “stuffing a bottle of wine down his trousers.” As appellant walked towards the front of the store, he tucked another bottle of wine underneath his coat. By the time Mr. Quigley reached the front door, appellant had exited the store without paying for the wine.

Another store employee, Rodney Minton, followed appellant into the parking lot. When Quigley got outside, appellant and Minton were “exchanging words.” Appellant said he didn’t have anything, and then attempted to flee. Mr. Quigley chased appellant and caught him approximately thirty feet from the front door of the store.

As Mr. Quigley held appellant around the arms from behind, appellant stated “I am not coming back,” and “You don’t know what it is like to be an alcoholic.” At this point, Minton was in front of appellant, picking up a wine bottle appellant had dropped. Quigley heard a clicking sound as he held appellant, and he asked Minton if appellant had a knife. When Minton replied “No, he has a razor,” Quigley threw appellant to the ground, feeling that appellant was maneuvering to attack him with the weapon. Quigley identified a box opener knife as similar to the one he saw appellant with the day of the robbery.

A Lincoln policeman who happened to be stopped at a traffic light near the store, observed the struggle. He took appellant into custody, and held him until the local sheriff’s deputy arrived.

Mr. Quigley stated appellant had taken three bottles of wine from the store during the course of the robbery.

Rodney Minton, another store employee, testified he observed appellant exit the store on December 18, 1980 with a bottle of wine in his pants and two bottles inside of his jacket. He followed appellant outside and told him to come back to the store. Appellant refused to do so, and at that time Mr. Quigley ran out and stopped the appellant from fleeing. Minton confirmed that appellant had a weapon, and that he told Quigley appellant was armed with a razor. Appellant tried to cut Mr. Quigley, and when Quigley threw appellant to the ground, Minton kicked the knife away.

Appellant testified on his own behalf, and admitted taking the wine. However, he denied that he was armed with a weapon of any kind at the time of the robbery.

Appellant argues that there was a material variance between the indictment and the proof at trial in that there was no evidence presented of the use of force or threat of force in the taking of the wine. He contends the evidence of the possession and use of the weapon was too remote from the commission of the theft to be used to elevate his crime to first degree robbery. Citing the commentary to §§ 13A-8-40 through 13A-8 — 44, Code 1975, he argues that a successful theft followed by use of force to resist apprehension later does not constitute robbery.

Appellant’s argument fails, of course, in that the statement in the code commentary is not made in reference to threats or assaults made to effect an immediate escape. Indeed, the commentary to §§ 13A-8-40 through 13A-8-44 specifically points out that the immediate case is the exact type of situation intended to be covered by the newly expanded definition of robbery under the new code.

§ 13A-8^41 defines robbery in the first degree as follows:

“(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
(1) Is armed with a deadly weapon or dangerous instrument; or
(2) Causes serious physical injury to another.
“(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.”

Included in the definition of robbery in § 13A — 8-43 is the term “in the course of committing a theft.” § 13A-8-40(b) defines that phrase accordingly:

“(b) ‘IN THE COURSE OF COMITTING A THEFT’ embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission. (Acts 1977, No. 607, § 3301.)”

There is no doubt from the record before us that the state presented sufficient evidence that appellant was armed with a deadly weapon and attempted to use the same while in immediate flight after the commission of the theft. See, Petty v. State, 414 So.2d 182 (Ala.Crim.App.1982). No error harmful to the substantial rights of appellant having been demonstrated, this case is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Raymond L. CHANEY v. STATE.
    8 Div. 644.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.

      James D. Walker, Albertville, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted and convicted for the attempted murder of his ex-wife. Alabama Code 1975, Section 13A-4-2. Sentence was twenty years’ imprisonment.

On appeal the only issue raised is whether or not the State presented sufficient evidence to prove that the defendant intended to actually kill Mrs. Chaney. As the defendant acknowledges, the basic facts are not disputed.

The defendant and Mrs. Chaney had a brief conversation at the defendant’s car in a parking lot of the plant where Mrs. Chaney was employed. Mrs. Chaney testified that the defendant wanted to know when she was going to let him see their five children. She replied that she would get their oldest son to “bring them over this weekend.” The defendant responded that “that’s not the way he wanted it” and that he would “just put an end to it all.” Mrs. Chaney left and walked away. The defendant got out of his car, removed a .20 gauge shotgun from the back seat, pointed it at Mrs. Chaney and fired. Mrs. Chaney was approximately 60 feet from the defendant when she was shot. She suffered severe injuries on her neck and face.

Mrs. Chaney testified that the defendant had threatened her life “several times” before the shooting occurred. She had last seen the defendant three weeks before the shooting when the defendant told her that he was going to kill her if she did not “come back” to him. On that occasion the defendant told her that if she did not leave with him that night the next time Mrs. Chaney saw him he was “gonna have some ammunition.”

In formulating a general definition of what constitutes an attempt to murder “(t)he universally accepted guiding principle is that the fundamental elements of the crime of attempted murder are a specific intent to commit murder and an overt act in furtherance of that object.” Anno. 54 A.L.R.3d 612, 617 (1973). In Alabama, a person commits the crime of attempt to murder if he intends to cause the death of another person and does any overt act towards the commission of that intent. Alabama Code 1975, Sections .13A-4-2 (the attempt statute) and 13A-6-2 (murder).

The element of the “overt act” is clearly present in this case. “The requisite actus reus need only be, indeed can only be, some deed short of consummation, e.g., falling short or wide of the goal.” Huggins v. State, 41 Ala.App. 548, 550, 142 So.2d 915," cert. denied, 273 Ala. 708, 142 So.2d 918 (1962).

Prior to the adoption of Title 13A, case law included a third element in the crime of attempt — the failure to consummate the crime. Reed v. State, 372 So.2d 876 (Ala. 1978).

Intent may be presumed from the act of using a deadly weapon, McArdle v. State, 372 So.2d 897 (Ala.Cr.App.), cert. denied, 372 So.2d 902 (Ala.1979), and from the character of the assault, including the na ture and amount of force used in inflicting the fatal injury. Flint v. State, 370 So.2d 332 (Ala.Cr.App.1979).

Under Section 13A-4-2 “(i)t is no defense that the offense charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such offense could have been committed had the attendant circumstances been as the defendant believed them to be.” This is in accord with the well accepted rule.

“That the crime of murder was impossible of consummation for some reason unknown to the accused at the time of his alleged attempt has been consistently rejected as a defense to a charge of attempted murder, the courts frequently saying that it is not necessary that the contemplated murder be factually possible, if it was apparently possible to the accused.”

54 A.L.R.3d at 632.

Although Section 13A-4-2(c) pro-, vides for a “renunciation” or “abandonment” defense to the crime of attempt, it requires the avoidance of the offense attempted by an abandonment of criminal effort. The fact that the defendant did not shoot Mrs. Chaney a second time does not provide any evidence of abandonment for the overt act in furtherance of the criminal intent had already occurred. “If a man resolves on a criminal enterprise and proceeds so far in it that his act amounts to an indictable attempt, it does not cease to be such even though he voluntarily abandons the evil purpose.” 54 A.L.R.3d at 633.

Evidence of the defendant’s previous threats to kill his wife were admissible to show the intent with which the defendant acted in shooting her. Padgett v. State, 49 Ala.App. 130, 269 So.2d 147, cert. denied, 289 Ala. 749, 269 So.2d 154 (1972); Shiflett v. State, 262 Ala. 337, 78 So.2d 805 (1955).

The State presented cogent and convincing evidence that the defendant intended to kill Mrs. Chaney. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Rosemary WILSON v. STATE.
    8 Div. 708.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.

      Alice J. Hancock of Malone, Owens, Hancock & Totten, Athens, for appellant.
   BOWEN, Judge.

The judgment of the circuit court revoking the defendant’s probation is reversed. This appeal is submitted on an agreed statement of the facts and issues as provided by Rule 10(e), Alabama Rules of Appellate Procedure.

I

Since the defendant was not arrested on a warrant issued by the circuit court, and the probation officer failed to file a written report showing in what manner the defendant had violated probation, the circuit court had no jurisdiction to revoke her probation. Phillips v. State, 52 Ala.App. 297, 301, 291 So.2d 751 (1973); Alabama Code 1975, Section 15-22-54. An arrest of the probationer, either on a warrant of arrest issued by the court or a written statement by a probation officer, is a prerequisite to revocation of probation. Sparks v. State, 40 Ala.App. 551, 119 So.2d 596 (1959), cert. denied, 270 Ala. 488, 119 So.2d 600 (1960). See also Bullock v. State, 392 So.2d 848 (Ala.Cr.App.), cert. denied, 392 So.2d 852 (1980).

II

In September of 1978, the defendant was indicted for grand larceny. She was adjudged a youthful offender and was sentenced to two years probation in December of 1978. On the last day of this two-year term, the circuit court entered an order extending her probation “until further order.” No further action was taken on this matter until her probation revocation hearing was held in May of 1982, almost three and one-half years after the defendant had been originally sentenced to probation.

“Code of 1975, Section 15-19-6(a)(2) establishes the maximum probationary sentence or period allowable for a youthful offender, i.e., three years.” Jackson v. State, 415 So.2d 1169 (Ala.1982) (emphasis added). The term of probation must commence with sentencing. Jackson. Under Jackson, the defendant’s probation could only be extended until December of 1982— three years from the date of sentencing in December of 1978. Since the maximum three year statutory period of probation had already expired when the defendant’s probation was revoked in May of 1982, the circuit court was without jurisdiction or authority to revoke that which had already expired by operation of law. Jackson; Brantley v. State, 340 So.2d 901 (Ala.Cr.App.), cert. denied, 340 So.2d 902 (Ala.1976).

III

This case must also be reversed for failure of the circuit court to comply with Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

The judgment of the circuit court revoking the probation of the defendant and imposing a sentence of two years’ imprisonment is hereby reversed and rendered.

REVERSED AND RENDERED.

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

DeCARLO, J., concurs in result.


author: BOYD, Justice.

text:
    I. Irving WEINTRAUB, Petitioner, v. Clara L. WEINTRAUB, Respondent.
    No. 60524.
    Supreme Court of Florida.
    April 8, 1982.
    Guyte McCord, III, of Spector, Tunnicliff & McCord, Tallahassee, for petitioner. .
    Huntley Johnson of Cushman & Johnson, Gainesville, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of a decision of the district court of appeal, which the court certified to have passed upon the following question of great public importance:

Does Section 732.702(2) validate premarital agreements otherwise invalid under Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962), when the agreement is questioned on grounds of non-disclosure in a marriage dissolution or other proceedings affecting property during the lifetimes of the spouses?

Weintraub v. Weintraub, 395 So.2d 302, 303 (Fla. 1st DCA 1981). We have jurisdiction. Art. Y, § 3(b)(4), Fla.Const.

In an action for dissolution of the parties’ marriage, the petitioner-husband interposed an antenuptial agreement in bar to the respondent-wife’s claim for alimony. The trial court ruled that the agreement was invalid because petitioner did not disclose the extent of his resources before its execution, nor did respondent have knowledge of his resources through other means.

On appeal, the district court upheld the trial court ruling, finding that section 732.-702, Florida Statutes (1979), which abolished the disclosure requirement in probate proceedings is not applicable to the dissolution process. We approve the decision of the district court of appeal.

This Court considered the validity of antenuptial agreements in Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962). There it was said that such agreements may be upheld on either one of two grounds. First, if the agreement makes a fair and reasonable provision for the less financially secure party, it is presumptively valid. In the absence of a fair and reasonable provision, the agreement may still be upheld if the less secure party entered into it with an understanding of the rights being waived. Such an understanding can be assumed if the less secure party had knowledge of the assets of the wealthier party. That knowledge may be obtained either directly through a disclosure by the wealthier party, or indirectly, from other sources. Id. at 20.

Del Vecchio established standards for antenuptial agreements in the probate setting, but the same standards were later applied to dissolution hearings in Posner v. Posner, 233 So.2d 381 (Fla.1970). There the Court noted that while contracts which were intended to encourage or facilitate divorce were illegal as contrary to public policy, an antenuptial agreement negotiated in good faith could encourage marital tranquility. Id. at 382-83. Where the antenup-tial agreement met the Del Vecchio standards and the divorce was prosecuted in good faith, the agreement would be upheld. Id. at 385. Thus, as of 1970, antenuptial agreements could be upheld in both probate and dissolution proceedings only when they either met the fairness standard or were entered into knowingly.

The rule as to probate was changed in 1974 when the legislature enacted what is now section 732.702(2), Florida Statutes (1979). That statute makes valid all agreements entered into before marriage, even in the absence of disclosure. The statute is only applicable to probate proceedings and no parallel statute exists pertaining to the validity of antenuptial agreements in dissolution proceedings.

Petitioner asks that we reverse our holding in Posner, and change the common law rule pertaining to dissolution to correspond with the statutory change in the probate code. If we were to so hold, petitioner’s agreement would be valid despite the lack of disclosure and would be dispositive of the question of alimony. Petitioner’s main argument is centered on public policy grounds and focuses on the disparity first mentioned by the Posner court. Simply stated, if a spouse enters into a disadvantageous agreement without disclosure or knowledge of the other’s assets, the discrepancy in the rules could promote divorce. That is, if the marriage is maintained until the death of the wealthier spouse, the antenuptial agreement will be valid in the absence of disclosure under section 732.702(2), and the spouse may possibly receive little or nothing from the estate. If the spouse pursues a divorce, however, the agreement will be invalid because of the lack of disclosure under Posner and the spouse could receive property and alimony in excess of what is provided for in the agreement. The disparity in the rules, it is argued, creates an incentive for divorce. See Posner v. Posner, 233 So.2d at 383.

We find petitioner’s argument lacking for several reasons. First, it should be remembered that an agreement that promotes divorce is invalid on public policy grounds. Here, petitioner is asking that the agreement be held valid, and a rule of law invalid on such grounds. We are asked to apply the public policy rule in a convoluted manner.

More importantly, the rule announced in Del Veeehio and given further application in Posner is clearly designed to protect a prospective spouse of modest means from contracting away valuable rights. When the wealthier party is able to conceal assets, the less secure party may relinquish rights unknown to him. As the Del Vecchio decision pointed out, such agreements are not characterized by arm’s length dealing, and the parties “must exercise a high degree of good faith and candor.” 143 So.2d at 21.

In its revision of the probate code, however, the legislature chose to validate these agreements even in the absence of a disclosure. This can be understood, at least in part, as a result of the difficulty that the estate might encounter in proving disclosure after the death of the wealthy spouse. But no such rationale exists in the dissolution context where both of the competing parties are present to give testimony on the question of disclosure.

If the legislature believes that the discrepancy between the rule as to antenuptial agreements in the probate and dissolution contexts promotes divorce, it may change the laws and eliminate the discrepancy. This Court, however, believes that the Pos-ner decision serves an important function in protecting prospective spouses from being bound by unfair agreements, and that it should therefore not be overruled.

For the above reasons, we answer the certified question in the negative and approve the decision of the district court of appeal.

It is so ordered.

OVERTON, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, Acting C. J., dissents.

      . Section 732.702 provides:
      (1)The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homestead, exempt property, and family allowance, or any of them, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party. Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead property, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to either from the other by intestate succession or by the provisions of any will executed before the waiver or property settlement.
      (2) Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.
      (3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.

      . Section 732.702 is found in Part VII of the Florida Probate Code, entitled “Contractual Arrangements Relating to Death.”


author: ADKINS, Justice. BOYD, Justice,

text:
    John Errol FERGUSON, Appellant, v. The STATE of Florida, Appellee.
    No. 55498.
    Supreme Court of Florida.
    July 15, 1982.

      Michael S. Hacker of Hacker, Phelps & Matters, Miami, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz and Calvin L. Fox, Asst. Attys. Gen., Miami, for appellee.
   ADKINS, Justice.

Appellant, John Errol Ferguson, was found guilty on two counts of first-degree murder, one count of involuntary sexual battery, one count of robbery, one count of attempted robbery, one count of unlawful possession of a firearm while engaged in a criminal offense, and one count of possession of a firearm by a convicted felon. He now appeals his convictions on the above and the resulting sentences of death .and imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Brian Glenfeld and Belinda Worley were last seen leaving a Youth for Christ meeting around 9:00 p. m. on Sunday, January 8, 1978. The two seventeen-year-olds were supposed to meet friends at an ice cream parlor. The next morning their bodies were discovered in a wooded area by two passersby.

Brian’s body was behind the wheel of the car. He’d been shot in the chest and arm. A bullet to the head had killed him. Belinda’s body was several hundred yards away in a dense growth. All she had on were her jeans; her other clothes were next to her body. She’d been shot in the back of the head. An autopsy indicated she’d been raped.

Brian’s father testified that Belinda was wearing two rings, a gold bracelet and a pair of earrings when she and Brian left on Sunday evening. None of the jewelry was found with the bodies. Belinda’s earlobe was torn where an earring had been taken. Brian’s empty wallet was found in Belinda’s purse near her body. His father had seen both the wallet and some cash in Brian’s possession the previous evening.

On April 5, 1978, the defendant was arrested at his apartment pursuant to a warrant for unlawful flight to avoid prosecution; he was under indictment for another multiple-murder, the so-called Carol City murders. The defendant was read his Miranda rights each time he was questioned. He signed a consent to search form and allowed the officers to search the apartment. His roommate, Virginia Polk, also consented to the search. After the search, which produced probable evidence in another robbery, the defendant confessed to killing the “two kids.”- At the time of his arrest he had in his possession a .357 magnum capable of firing .38 caliber bullets like those which killed Brian and Belinda.

The gun was registered to Livingston Stocker, a victim of the Carol City murders. Margaret Wooden, a survivor of that incident, testified that the defendant had been in Stocker’s Carol City house on July 27, 1977, the night he was murdered.

The defendant was convicted on two counts of first degree murder. The jury recommended the death penalty and the judge concurred in imposing the death sentence.

We reject the constitutional challenges to the death penalty. It is neither cruel and unusual punishment, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), nor a violation of due process or equal protection. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 918 (1976).

The trial court denied defendant’s pre-trial motions to suppress statements made on April 5, 1978, the day of his arrest. Evidence at the suppression hearing showed that defendant was represented by counsel as of about 3:00 p. m. the day he was taken into custody. Defendant’s attorney visited his client and claimed that he advised the officers involved that he didn’t want anyone talking to his client unless he was present. This was contradicted by the state’s evidence and the trial court found that such communication did not take place. The defendant was questioned at least twice after this and admitted the crimes without his attorney being present.

The trial judge in the case before us specifically found that the defendant knowingly and voluntarily waived his Fifth Amendment right. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). The waiv- • er is effective even though the defendant is represented by counsel and the officers are aware of that fact. United States v. Brown, 569 F.2d 236 (5th Cir. 1978); United States v. Vasquez, 476 F.2d 730 (5th Cir. 1973). The defendant in this case was questioned by three different officers investigating three separate incidents. Each time he was approached, the defendant was advised of his rights and clearly consented to talking without an attorney. When he finally did ask to speak with his lawyer, all questions ceased. Michigan v. Moseley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The statements were properly admitted into evidence.

The trial court also admitted physical evidence taken from defendant’s apartment on the day of his arrest. The detective who searched the apartment did so after obtaining consent from a woman who had been living with the defendant. The test for a valid third-party consent to a warrantless search is whether the third party has joint control of the premises. United States v. Matlock, 415 U.S. 164,98 S.Ct. 218, 54 L.Ed.2d 152 (1974); Silva v. State, 344 So.2d 559 (Fla.1977). In this instance the entire living space, including closets, of the one-bedroom apartment had been shared by the defendant with the third party. At the suppression hearing there was conflicting evidence as to whether the woman had ceased to reside in the apartment a few days earlier. The trial court resolved this question against the defendant, finding that the third party had joint access and control at the time she gave permission. There is nothing in the record to overcome the presumption of correctness with which that finding reaches this Court. State v. Nova, 361 So.2d 411 (Fla.1978).

Having found a valid third-party consent, we need not reach the validity of the defendant’s consent in signing a consent to search form. The evidence obtained at the apartment was not taken in violation of defendant’s constitutional rights.

Yet another pre-trial motion was denied by the trial court; this alleged that the defendant was insane at the time of the offense and incompetent to stand trial at all times thereafter. The Florida standard for sanity at the time of the offense is the ability to distinguish right and wrong. Witt v. State; Wheeler v. State, 344 So.2d 244 (Fla.1977), cert. denied, 440 U.S. 924 (1979). The test for competency to stand trial is whether a defendant has sufficient present ability to consult with and aid his attorney in the preparation of a defense with a reasonable degree of understanding. Although the medical evidence was conflicting, there was adequate testimony to support the trial judge’s finding that defendant was competent to stand trial. Byrd v. State, 297 So.2d 22 (Fla.1974); Fowler v. State, 255 So.2d 513 (Fla.1971), later appeal, 263 So.2d 202 (Fla.1972). Defendant’s sanity at the time of the offense was a factual issue determined adversely to him by the jury’s verdict. The evidence is sufficient to sustain this finding by the jury.

During the trial, Margaret Wooden was allowed to testify over defendant’s objection that the defendant had been present at the scene of the Carol City murders. The trial court properly denied the defense motion for a mistrial since this evidence tended to establish the defendant’s identity as perpetrator of the crime. Dean v. State, 277 So.2d 13 (Fla.1973); Ashley v. State, 265 So.2d 685 (Fla.1972); Williams v. State, 110 So.2d 654 (Fla.1959). One of the crucial pieces of evidence in this case was the .357 magnum revolver found in defendant’s possession upon his arrest. Since nearly four months had elapsed between the date of the crime and the date of arrest, the point at which defendant obtained possession of the weapon was obviously important to the state’s case. Another witness testified he’d been present in Stocker’s house on July 27, 1977, when a similar .357 magnum was taken from the bedroom. Margaret Wooden was the only person who could place the defendant in Stocker’s house on that date, some five and one-half months prior to the day the two teenagers were killed. Review of the testimony shows that both the court and the prosecutor made every effort to avoid prejudicing the defendant by referring to the Carol City homicides. The record supports the admission of the evidence as relevant to identity.

The defendant also contends that the prosecutor improperly commented in closing argument on the defendant’s failure to testify:

[S]o there is a lot of reasons why that glitter was on that blue shirt and you’ll also remember John Ferguson said, excuse me, Virginia Polk said that John Ferguson washed the clothes.. ..

Taken in context, the prosecutor obviously said the defendant’s name when he meant to say Virginia Polk. He immediately corrected the error. This is not an example of resort to improper methods to obtain convictions as suggested by the defendant. Rolle v. State, 268 So.2d 541 (Fla. 3d DCA 1972). The trial court acted within its discretion in denying the defendant’s motion for mistrial. Johnsen v. State, 332 So.2d 69 (Fla.1976).

At the close of the state’s case the defendant moved for a judgment of acquittal on the two counts of robbery. The court denied the motions and the jury found defendant guilty of robbery of Brian and attempted robbery of Belinda. In circumstantial evidence cases the evidence must not only be consistent with guilt but also be inconsistent with any reasonable hypothesis of innocence. Davis v. State, 90 So.2d 629 (Fla.1956). The crux of the matter is that all the state could show was that the victims had valuables on their persons before they were killed and that the jewelry was missing when the bodies were discovered. The defense argues that since the bodies were in the wooded area overnight, anyone passing by could have stolen the money and jewelry. We agree with the state that this is not a reasonable hypothesis of innocence: there was evidence that the jewelry was taken with some degree of violence; it rained very hard that night; and the bodies were found just a few hours after sunrise. See People v. Hubler, 102 Cal.App.2d 689, 228 P.2d 37 (2d Dist. 1951).

The defendant’s final point on appeal concerns the actual execution of the death sentence. Essentially he argues that he has a First Amendment right to have his execution televised. We need not reach the merits of this argument inasmuch as the claim is not properly before this Court. The execution of the death sentence is regulated by statute and carried out by the Department of Corrections, a part of the executive branch of government. § 922.10 and .11, Fla.Stat. (Supp.1978). The defendant raised this issue in a post trial motion before the trial court. Other than specifically described post trial motions, there is no jurisdictional basis for that court to act in this cause after the imposition of sentence. See, e.g., Fla.R.Crim.P. 3.700; 3.810; and 3.850.

The trial court made written findings of fact in support of the death sentence. The finding, as an aggravating circumstance, that the defendant was under a sentence of imprisonment at the time that he committed the crimes for which he was sentenced is improper. At the time of the murders, defendant was serving a two-year period of probation which followed an eighteen-month period of incarceration. He was not confined in prison at the time, nor was he supposed to be. In Peek v. State, 395 So.2d 492 (Fla.1981), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981), we held that:

Persons who are under an order of probation and are not at the time of the commission of the capital offense incarcerated or escapees from incarceration do not fall within the phrase “person under sentence of imprisonment” as set forth in section 921.141(5)(a).

Id. at 499. Thus defendant was not a “person under sentence of imprisonment.”

Our negation of said aggravating circumstance would not, however, change the result of this case in the absence of mitigating circumstances. In such cases, a reversal of the death sentence is not necessarily required, as any error that occurred in the consideration of the inapplicable aggravating circumstances was harmless. See Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103,101 S.Ct. 899, 66 L.Ed.2d 829 (1981); Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 101 S.Ct. 3000, 64 L.Ed.2d 862 (1980).

The trial court also found that the defendant had previously been convicted of three felonies involving the use of threat or violence to some person and that the crime was committed in the commission of a robbery and for the purpose of avoiding or preventing a lawful arrest. In support of the latter, the court observed:

It is obvious that the execution style of terminating the lives of the two victims was the result of a thoughtful plan to make certain that there would be no witnesses to the robberies and/or the involuntary sexual battery committed. This conduct is reflective of a well thought out plan to make certain that this defendant would not be discovered or his identity ever revealed.

The final finding in aggravation was that the crime was especially heinous, atrocious, and cruel:

The facts reveal that the two victims were seated in an automobile and while seated therein a gunshot was fired through the window striking Brian Glen-feld in the arm and chest area. A significant amount of bleeding followed and this victim’s blood was found throughout many areas of the front of the automobile as well as on the clothing of Belinda Worley. Following the shooting, the female victim ran many hundreds of feet from the car in an attempt to allude [sic] the defendant and was finally overtaken in some rather dense overgrowth and trees. She was subjected to many physical abuses by this defendant, including but not limited to, sexual penetration of her vagina and anus. The discovery of embedded dirt in her fingers, on her torso both front and back and in many areas within her mouth and the findings of hemorrhaging around her vagina and anal cavity would indicate that she put up a significant struggle and suffered substantially during the perpetration of these indignities upon her body. Expert testimony indicates that she was a virgin at the time of the occurrence of this crime. The position of her body and the location of the wounds on her head would indicate that she was in a kneeling position at the time she was shot through the top of the head. She was left in a partially nude condition in the area where the crime was committed to be thereafter fed upon by insects and other predators. Physical evidence would substantiate that following the attack upon Belinda Worley the defendant went back to the car and shot Brian Glenfeld through the head.

See § 921.141(5), Fla.Stat. (1977).

The only possible mitigating circumstance involved the defendant’s mental state and his ability to appreciate the criminality of his conduct. § 921.141(6)(b) and (f), Fla. Stat. (1977). In rejecting this as a mitigating factor the trial court said:

At the time of an appearance before the Court on another matter wherein a plea of not guilty by reason of insanity was entered the Court appointed three disinterested psychiatrists; Drs., Harry Graff, Charles Mutter and Albert Jaslow. Subsequent thereto, Dr. Norman Reichen-berg was also appointed to do psychological testing.
This defendant has a history of mental disorder and has been previously committed to The State Hospital. His mental disorder has been the subject of more than one diagnosis. He was found competent prior to his sentencing in The Criminal Division of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, in 1976, and thereafter concluded his period of incarceration in The State Prison System and was placed on probation. Following the filing of the reports by the referenced physicians and in a pre-trial conference, counsel represented the defendant in the other pending matter indicating that he was not going to present the issue of insanity in that case. This Court thereafter specifically found that the defendant was competent to stand trial, to understand the seriousness of the charges and able to assist his counsel in his defense. During the trial of the other matter which took place in May, 1978, the defendant aided his counsel and participated in his own defense. During the course of that trial he made some observations about people in the courtroom and these observations were minimally disruptive. His comments at that time were consistent with a person diagnosed as a sociopath.
Communications by the defendant to the Court following adjudication in the other matter relating to his treatment in the jail and his inability to have confidence in his Court appointed counsel to represent him in the instant ease caused this Court to hold a hearing which ultimately led to the release of prior counsel and appointment of an attorney requested by the defendant who had represented him or members of his family in other matters. Upon the appointment of the new counsel, Michael Hacker, Esquire, additional physicians were retained by the defendant and a plea of not guilty by reason of insanity was filed in the instant case. A hearing was duly called to determine not only the defendant’s competency to be tried on the instant ease but also a test of his competency at the time of the commission of the crimes in the other matter and at the trial of the other matter. Testimony was taken from at least seven professional witnesses, all with generally conflicting opinions and/or evidence upon which opinions were reached. This Court determined that the defendant was competent to aid counsel at the time of the trial of the instant case, was competent at the trial of the last case, was competent at the commission of the crimes in the instant case and at the times of the commission of the crimes in the other matter. The Court specifically held that the defendant knew the difference between right and wrong and was able to recognize the criminality of his conduct and to make a voluntary and intelligent choice as to his conduct based upon knowledge of the consequences thereof.
The defendant has been diagnosed as suffering from a number of mental disorders: a basic paranoia schizophrenia psychotic process; Ganser syndrome; malingering, and a behavior characteristic commonly referred to as sociopathic. This defendant’s conduct from crime through trial is indicative of an individual who has an absolute understanding of the events and the consequences thereof. There is nothing that would indicate that this defendant did not recognize the criminality of his conduct at the time of the commission of the subject offenses. The evidence requires the finding that this defendant was sane at the time of the commission of the instant offense consistent with the standards of the M’Naghten Rule and therefore this mitigating circumstance is not applicable. (Emphasis supplied.)

Apparently the judge applied the wrong standard in determining the presence or absence of the two mitigating circumstances related to emotional disturbance, so we have no alternative but to return this case to the trial judge for resen-tencing. As we stated in Mines v. State, 390 So.2d 332, 337 (Fla.1980), cert. denied, 447 U.S. 1, 101 S.Ct. 1994, 64 L.Ed.2d 681 (1981):

Under the provisions of section 921.-141(6), Florida Statutes (1975), there are two mitigating circumstances relating to a defendant’s mental condition which should be considered before the imposition of a death sentence: “(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance”; and “(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” From the record it is clear that the trial court properly concluded that the appellant was sane, and the defense of not guilty by reason of insanity was inappropriate. The finding of sanity, however, does not eliminate consideration of the statutory mitigating factors concerning mental condition.

The sentencing judge here, just as in Mines; misconceived the standard to be applied in assessing the existence of mitigating factors (b) and (f). From reading his sentencing order we can draw no other conclusion but that the judge applied the test for insanity. He even referred to the “M’Naghten Rule” which is the traditional rule in this state for determination of sanity at the time of the offense. It is clear from Mines that the classic insanity test is not the appropriate standard for judging the applicability of mitigating circumstances under section 921.141(6), Florida Statutes.

In the absence of any mitigating factors, the death sentence would be held appropriate on review. Other execution style murders have warranted imposition of the ultimate penalty. See Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979); Gibson v. State, 351 So.2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1661, 56 L.Ed.2d 93 (1978); and Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). Evidence of mental or emotional distress does not necessarily outweigh a heinous, atrocious or cruel crime. Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979).

However, in our review capacity we must be able to ascertain whether the trial judge properly considered and weighed these mitigating factors. Their existence would not as a matter of law, invalidate a death sentence, for a trial judge in exercising a reasoned judgment could find that a death sentence is appropriate. It is improper for us, in our review capacity, to make such a judgment.

The judgment of conviction is affirmed. The death sentence is vacated and the cause is remanded to the trial court for the purpose of determining an appropriate sentence. An additional sentence advisory verdict by a jury is not required.

ALDERMAN, C. J., and OVERTON and McDONALD, JJ., concur.

SUNDBERG, J., concurs in result only.

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

BOYD, Justice,

concurring in part and dissenting in part.

I would affirm the convictions and would also affirm the death penalty.