author: PER CURIAM. TORBERT, Chief Justice

text:
    Ex parte Robert Michael DeMENT and John Dowling Thomas. (Re: STATE of Alabama v. Robert Michael DeMENT, alias and John Dowling Thomas, alias).
    80-369.
    Supreme Court of Alabama.
    Nov. 12, 1982.

      Joel L. Sogol of Sogol & Chandler and C. Delaine Mountain of Crownover & Mountain, Tuscaloosa, for petitioners.
    Charles A. Graddick, Atty. Gen., and James F. Hampton of Hampton & McLain, Sp. Asst. Attys. Gen., for respondent.
   PER CURIAM.

We granted the petition for certiorari to review the decision of the Court of Criminal Appeals, 424 So.2d 657, which held that the trial court erred in finding Act Number 520 of the 1976 Regular Session of the Alabama Legislature unconstitutional. We conclude that the Act at issue violates the clear mandate of section 105 of the Constitution of Alabama, 1906, and reverse.

The facts of the case are as follows:

Pursuant to a nighttime probable cause search warrant issued under Act Number 520, the residence of Robert Michael DeMent (DeMent) was searched, seven grams of cocaine were found, and DeMent was arrested and charged with possession of cocaine. The trial court granted DeMent’s motion to suppress the evidence, ruling that Act Number 520 was unconstitutional.

Act Number 520 provides:

Section 1. Whenever any search warrant is directed to any sheriff, or to any constable of a county, commanding him to search a person, place or vehicle in any circuit composed of one county and having not less than five nor more than seven circuit judges, where the affidavits state probable cause for believing that a violation of the laws of this state relative to narcotics or controlled substances has occurred or is occurring and that evidence of such violation may be found on such person, or in such place or vehicle, then such warrant may be executed at any time of the day or night and the magistrate issuing such warrant shall state that such warrant may be executed at any time of the day or night.
Section 2. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
Section 3. All laws or parts of laws which conflict with this act are hereby repealed.
Section 4. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

Section 15-5-8, Code 1975, provides the general state law regarding nighttime search warrants:

A search warrant must be executed in the daytime unless the affidavits state positively that the property is on the person or in the place to be searched, in which case it may be executed at any time of the day or night. The issuing judge or magistrate must state in the warrant, according to the character of the affidavits, whether it is to be executed by day or at any time of the day or night.

Code 1975, § 15-5-8.

If Act Number 520 had been passed after this court’s decision in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978), there could be no doubt that it could not withstand a constitutional challenge. In Ped-dycoart, we held that, by Section 105 of the Constitution of Alabama, 1901, “the constitutional framers have prohibited the enactment of a local act when the subject is already subsumed by the general statute.” (Peddycoart, 354 So.2d at 813.) However, with regard to legislation enacted before Peddycoart, we must apply the rules which were previously applied in similar cases.

In Gilmore v. Greene County Democratic Party Executive Committee, 435 F.2d 487 (5th Cir.1970), the court stated:

As all know, a state statute or state action which grants to some what it denies to others, violates the equal protection provisions of the federal constitution, unless the deprivation is suffered as the result of the state’s placing persons into different classes, and such classification is a reasonable one.

435 F.2d at 491.

Our own cases have held that there must be a reasonable relationship between the classification used and the purpose of the statute, or the classification will be deemed arbitrary. E.g., Dearborn v. Johnson, 234 Ala. 84, 173 So. 864 (1937), noted in Peddycoart, 354 So.2d at 810. However, it has been stated that “[a] statutory discrimination between classes is held to be relevant to a permissive legislative purpose if any state of facts reasonably may be conceived to justify it.” (Tyson v. Johns-Manville Sales Corporation, 399 So.2d 263 [Ala.1981], quoted with approval in Reese v. Rankin Fite Memorial Hospital, 403 So.2d 158 [Ala.1981].)

In the case before us, we cannot conceive of any state of facts which would establish a reasonable relationship between the classification used in Act Number 520 and its purpose. The State of Alabama argues that the classification is similar to one of population, and that “the peculiar characteristics of counties such as Tuscaloosa County and the number of drug related crimes committed therein” reasonably relate the classification to the purpose of this Act, which presumably is to allow the execution of nighttime search warrants based on probable cause in drug cases in Tuscaloosa County. The State has mentioned specifically the presence of the University of Alabama campus in Tuscaloosa County, and the “transient” nature of a large segment of the population due to the presence of the student body, as examples of the “peculiar characteristics.” However, the State points to no statistics showing that this segment of the population produces in Tuscaloosa County a more serious drug problem than exists in other Alabama counties. More importantly, there is no showing that the number of counties making up the judicial circuit or the number of judges sitting in said circuit is at all related to the purpose of the law. The particular classification used by Act Number 520 makes Montgomery County and Madison County, as well as Tuscaloosa County, subject to the Act.

We take judicial notice that these two counties also contain institutions of higher learning, but there is no evidence, or even a contention, that the presence of these institutions has caused an increased drug problem in Montgomery or Madison County. We must also note that Lee County, the home of Auburn University, is excluded from the application of Act 520, composing as it does a judicial circuit having fewer than the required minimum of five circuit judges. Jefferson and Mobile Counties are also excluded, having more than seven judges, although each contains several institutions of higher learning, one is a major port, and they are the most populous counties in the state, a fact that would presumably give them more cause than other counties to have drug problems. As this court has noted in Belcher v. McKinney, 333 So.2d 136 (Ala.1976), quoting Dixon v. State, 27 Ala.App. 64, 167 So. 340 (1936), “It is a fact known of all men who have reached their maturity and who have enjoyed the general experience common to mankind that populous centers are the central nurseries and hotbeds of crime....” Belcher v. McKinney, 333 So.2d at 139. We repeat, there appears to us to be no reasonable relationship between the classification and the purpose of the statute.

The expectation of the people of Tuscaloosa, Montgomery and Madison Counties to be protected from unreasonable nighttime search and seizure equally with the people of the remainder of the state is a right which should not be lightly denied. While we do not reach the question of whether such legislation would be constitutional if applied to the entire state, we cannot allow it to stand as written, denying to the citizens of the three included counties a protection that is granted to the citizens of the remainder of the state as a matter of course under Code 1975, § 15-5-8.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur in the result, but emphasize that this opinion should not be taken as overruling Dixon v. State, 27 Ala.App. 64, 167 So. 340, cert. denied, 232 Ala. 150, 167 So. 349 (1936).


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    The STATE of Alabama v. Robert Michael DeMENT, alias and John Dowling Thomas, alias.
    6 Div. 374, 6 Div. 374-A to 6 Div. 374-D.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
   AFTER REMANDMENT

BOWEN, Judge.

The judgment of the circuit court is affirmed on authority of State v. DeMent and Thomas, 424 So.2d 659 (Ala.1982), declaring unconstitutional 1976 Ala. Acts 666, No. 520 (August 24, 1976), authorizing the execution of search warrants based on probable cause at any time of the day or night.

AFFIRMED.

All Judges concur.


author: BARRON, Judge.

text:
    John David LUKER v. STATE.
    1 Div. 327.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Quashed Jan. 7, 1983 Alabama Supreme Court 81-850.

      Michael E. Box, Saraland, for appellant.
    Charles A. Graddick, Atty. Gen. and Jan A. Wade, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

John David Luker was convicted in the Circuit Court of Mobile County on July 31, 1975, for possession of controlled substances, and was sentenced to 30 years. The conviction was affirmed by this court in Luker v. State, 344 So.2d 1219 (Ala.Cr.App.); writ quashed, 344 So.2d 1224 (Ala.1977).

The trial court, pursuant to the drug recidivist statute, sentenced appellant to 30 years because of his prior narcotics convictions. The indictment under which he was tried did not aver any prior narcotics convictions. Consequently, appellant contends that the maximum sentence he could have received was 15 years.

On January 13, 1981, appellant, who was then serving his sentence in Holman Prison, filed a petition for writ of habeas corpus in the Circuit Court of Escambia County. The petition was transferred to the Mobile County Circuit Court on April 28, 1981. Upon a hearing held on September 16,1981, the petition was denied. Hence this appeal.

In his petition in the habeas corpus proceedings, the appellant contends that the sentence he received exceeded that permit ted by law because the prior drug offenses were not alleged in the indictment or proved at the trial.

In appellant’s direct appeal (Luker, supra, at page 1224), this court held:

“... The sentence prescribed and imposed was authorized by the law under which appellant was prosecuted. The evidence disclosed that he was a multiple drug convicted felon. This was his third narcotic conviction and the sentence was authorized by Title 22, Section 258(53) Code of Alabama 1940....”

Thus, the trial court’s sentencing jurisdiction was clearly established and became the law of the case. Even if errors existed in the judgment, which we do not concede, habeas corpus is not the proper remedy where the trial court’s jurisdiction is clearly established.

The writ of habeas corpus cannot be used to replace a writ of error or an appeal. The writ cannot be used to correct errors in a judgment if the jurisdiction of the court rendering the judgment is without question. The writ is against void, but not irregular or voidable, judgments. Hable v. State, 41 Ala.App. 398, 132 So.2d 271 (1961). Habeas corpus does not serve the office of appeal. Greer v. State, 49 Ala.App. 36, 268 So.2d 502 (1972).

The drug recidivist statute, Section 20-2-76(a), Code of Alabama, 1975, formerly Title 22, Section 258(53), Code of Alabama, 1940, provides:

“Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized or both.”

While the quoted statute contains no language suggesting that the prior offense must be alleged in the indictment and proved at trial, this court has considered that issue in several prior cases.

In Funches v. State, 56 Ala.App. 22, 318 So.2d 762 (Ala.Cr.App.), cert. denied, 294 Ala. 757, 318 So.2d 768 (1975), it was held:

“In order to make operative Title 22, Section 258(53)(a)(b), supra, evidence of a former conviction is not admissible unless it is alleged in the indictment and proof offered in support thereof.”

In Napier v. State, 344 So.2d 1235 (Ala.Cr.App.), cert. denied, 344 So.2d 1239 (Ala.1977), this court observed:

“We hold that it is proper for an indictment for an offense in violation of the Uniform Alabama Controlled Substances Act to contain the averment that the defendant has heretofore been convicted of an offense under the act.”

In Luttrell v. State, 357 So.2d 1021 (Ala.Cr.App.1978), it was held:

“We have examined the indictment and have found that no prior narcotic conviction is averred therein. The trial court, in the absence of such averment in the indictment, was without authority to impose an imprisonment sentence in excess of fifteen years imprisonment.”

Also, in Kidd v. State, 398 So.2d 349 (Ala.Cr.App.), cert. denied, 398 So.2d 353 (Ala.1981), this court held:

“It is reasonably clear from Napier, supra, and from Funches v. State, 56 Ala.App. 22, 318 So.2d 762, cert. denied, 294 Ala. 757, 318 So.2d 768 (1975), that when the State wishes to bring a defendant under the ambit of Section 20-2-76 the prior conviction must be alleged in the indictment and later proven at trial.”

The thrust of appellant’s contention is based on Luttrell, supra, and Kidd, supra, both of which rely on Funches, supra, and Napier, supra, for their reasoning. Also, it is noted that both Luttrell and Kidd were decided some time after appellant was sentenced.

Funches and Napier address the issue of whether an allegation of a prior narcotics offense in the indictment is so prejudicial to a criminal defendant’s right to a fair trial as to require a reversal of the conviction.

A re-examination of Funches and Napier leads us to the inescapable conclusion that neither case requires that the prior drug offense be alleged in the indictment in order for a convicted defendant to be sentenced under the drug recividist statute. Funches held, in essence, that in order to make operative the recividist statute, former drug conviction evidence is not admissible at the trial unless it is alleged in the indictment, and that everything alleged in the indictment must be proved at trial. We do not construe this to be a requirement that the prior offense be alleged in the indictment. Napier holds that it is proper for a prior offense to be alleged in the indictment.

In our view, Luttrell and Kidd incorrectly interpret Funches and Napier to require the allegation of a prior offense in an indictment. To that extent, Luttrell and Kidd are overruled.

A better reasoned view of the recidivist statute is that the prior offense may be alleged in the indictment, in which event it must be proved at trial, but the allegation of the prior offense in the indictment is not mandatory. It is noted that the utilization of the recidivist statute itself by the trial judge is permissible but not mandatory.

For the reasons stated, the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    James Edward COBURN v. STATE.
    1 Div. 352.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-232.

      W. Donald Bolton, Jr., Foster, Brackin & Bolton, Foley, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

James Edward Coburn was indicted by a Baldwin County grand jury in July of 1981 for burglary in the first degree. He was convicted and was sentenced to 30 years. Hence this appeal.

Mrs. Patricia White left her home in Daphne, Alabama, about 8:30 p.m. on March 27, 1981, to attend to some personal matters. Upon returning to her home about two hours later, Mrs. White discovered two strange men in the bedroom portion of the home in the process of ransacking the home and putting articles into a pillow case. When she called out to them, one of the men grabbed Mrs. White, threw her against the door (breaking her arm), and ran out the front door. The other man, carrying the partially filled pillow case, ran out the back door. Mrs. White went out the front door and sought the help of a neighbor who happened to be in the vicinity. The neighbor apprehended the man who went out the front door and returned him to Mrs. White’s residence. The suspect, Gary Stephen Easterling, was subsequently turned over to the sheriff’s department.

Easterling, who implicated the appellant as the man who burglarized the home with him, subsequently pleaded guilty to second degree burglary.

Appellant denied his involvement in the burglary, testifying that he was with his mother at the time at which the burglary occurred. Appellant’s mother corroborated his testimony.

I

The first issue presented for review relates to Mrs. White’s in-court identification of appellant.

About two hours before the beginning of the trial, the district attorney staged an impromptu line-up, which was viewed by Mrs. White, without the knowledge or consent of appellant’s counsel. Mrs. White identified appellant in the line-up as the man who ran out the back door of her home on the date of the burglary.

Obviously, the line-up occurred at a critical stage of the prosecution, after appellant was arraigned on the charge and was represented by counsel. Both appellant and his counsel should have been notified by the district attorney of the impending line-up, and counsel’s presence should have been a requisite to the holding of the line-up, in the absence of an intelligent waiver. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The record is silent as to any waiver.

Therefore, the question now presented is whether the denial of appellant’s motion to exclude Mrs. White’s identification testimony constitutes error requiring reversal. We conclude and find that the admission of Mrs. White’s in-court identification of appellant, without first determining that it was not tainted by the line-up but was of independent origin, would be a constitutional denial of appellant’s right to counsel. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

On voir dire examination, prior to the in-court identification and out of the presence of the jury, Mrs. White testified as follows:

“THE COURT: Let me ask you this, Mrs. White. Have you seen this man since the incident which you were accosted in your house?
“THE WITNESS: No, sir.
“THE COURT: And you got a good view of him at that time, you said?
“THE WITNESS: Yes, sir.
“THE COURT: And can you identify that man now?
“THE WITNESS: Yes, sir, I certainly can.
“THE COURT: Where is he?
“THE WITNESS: Sitting right there (indicating).
“THE COURT: All right. Did this view, which you went in and looked in this room, did you recognize him instantly?
“THE WITNESS: They had each one, they had me look at each one and have them turn around. I didn’t look at them as a whole, I had to look at each one.
“THE COURT: But you say that’s the man you recollect being in your house that day?
“THE WITNESS: Yes sir, it really is.
“BY MR. NORTON:
“Q. The question is, my ultimate question is, could you and can you identify this person without regard to that?
“THE COURT: That’s what I asked her, did she independently recognize him now without having to go through that and she said yes.”

Additionally, Mrs. White testified on direct examination that she got a good view of appellant at the scene of the robbery, that she and appellant at one point were only about three feet apart, and that she observed him for about ten seconds as he unlocked and opened the exit door. The burglary incident was about eight months before the trial date.

Based on Mrs. White’s opportunity to observe appellant at the scene about eight months prior, as shown by her direct testimony, and the voir dire colloquy between the trial judge and the witnesses, we hold that the in-court identification of appellant by Mrs. White was based on her independent recollection and was not tainted by the illegal line-up. Accordingly, we find that the trial court properly denied appellant’s motion to exclude.

II

Appellant urges a fatal variance between the date alleged in the indictment and the date proved at trial.

The charging part of the indictment provides:

“The Grand Jury of said County charge that before finding this indictment on to-wit: March 4, 1981, James Edward Coburn whose name is otherwise unknown to the Grand Jury other than as stated, did; knowingly and unlawfully enter or remain in a dwelling of Pat White with intent to commit a crime therein to-wit: Theft of Property and while in immediate flight therefrom said defendant did cause physical injury to Pat White by knocking her to the ground and breaking her arm in violation of Title 13A-7-5 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

The record before us reveals that the indictment was returned in July 1981, and that the offense occurred on March 27, 1981.

It is not necessary to state the precise time at which an offense was committed in an indictment, but it may be alleged to have been committed on any day before the finding of the indictment, or generally before the finding of the indictment, unless time is a material ingredient of the offense. Section 15-8-30, Code 1975.

Time is not a material ingredient in the charge of burglary. Time would be a material ingredient of the offense only if it were a new offense, or when the grade of an offense has been raised from a misdemeanor to a felony and covers a period both when the act was and was not an offense, or when it was of a lesser grade. Such is not the case here.

Inasmuch as time is not a material ingredient of the offense charged in this indictment and since the indictment charges that the offense occurred “before finding this indictment,” we hold that the allegation of a specific date in the indictment is mere surplusage and that the terminology of the indictment gave sufficient notice to the appellant of the accusation he was called on to answer.

Appellant relies on Brown v. City of Tuscaloosa, 196 Ala. 475, 71 So. 672 (1916), as authority for the proposition that the variance is fatal. In that case, the offense proved at trial occurred after the date the defendant was charged, which divested the trial court of jurisdiction. In the instant case, the offense occurred prior to the time the indictment was returned; therefore, Brown has no application.

Ill

Appellant contends that the trial court erred to reversal by depriving him of the right to cross-examine witnesses against him.

Gary Stephen Easterling, who identified appellant as the one who burglarized the house with him, had previously pleaded guilty to burglary in the second degree in this incident and was awaiting sentencing at the time of this trial. Easterling initially invoked the privilege against self-incrimination and refused to testify concerning appellant’s alleged involvement in the burglary. The State then made known its desire to call Easterling as a hostile witness. On voir dire examination by appellant on the issue of hostility, Easterling changed his prior position, indicating that he intended to testify and “tell about the burglary, the way it happened.”

Appellant’s specific contentions relate to the cross-examination of Easterling as to (1) the reason for changing his mind and testifying against appellant, and (2) Easter-ling's alleged attempted suicide.

A

Appellant cross-examined Easterling extensively in an apparent attempt to discredit Easterling’s testimony and to show that it was given in exchange for a promise by the State of a lesser sentence. During that cross-examination, Easterling testified that he entered a guilty plea on his attorney’s recommendation in order that he “might get a light sentence, but not for my testimony.” He also testified that he had no prearranged agreement with the district attorney and that he had not “ever talked to a D.A.”

After that, the record reveals the following cross-examination:

“BY MR. BOLTON: [Appellant’s attorney]
“Q. I want to know, Mr. Coburn, why you — excuse me, I mean, Mr. Easterling, why you changed your mind from earlier today until now to testify.
“A. (Pause) Because I believed it was in my best interest.
“Q. You believed it was in your best interest. Okay. Now, is that best interest measured by the sentence that you get?
“MR. NORTON: [District Attorney] Objection, Your Honor, he has no control over that.
“THE COURT: That’s right. He says he thinks it’s best because it’s his best interest. Sustain the objection.
“BY MR. BOLTON:
“Q. Explain to me what you mean by your best interest.
“A. (Pause) I can’t really tell.
“Q. Well, you said it was in your best interest to testify. What do you mean by that?
“MR. NORTON: Judge, I object on the grounds that he stated he thinks it’s in his best interest and it’s irrelevant and immaterial why.
“THE COURT: I think it’s very obvious that he hopes he can get a lesser sentence. Now, Mr. Easterling, what you are testifying to now, is that the truth? What you are testifying to now, is that the truth?
“THE WITNESS: Yes, Your Honor, it is.”

Appellant contends that the sustention of the State’s first objection, quoted above, was erroneous.

The cross-examiner is allowed great latitude in questioning a witness to ascertain his motive in testifying. Noble v. State, 253 Ala. 519, 45 So.2d 857 (1950); Williams v. State, 44 Ala.App. 503, 214 So.2d 712 (1968).

However, the trial court here was not in error for two reasons. The question had been answered by the witness in prior cross-examination when he testified that his attorney advised him that he “might get a lighter sentence, but not for my testimony.” No error occurs when the court sustains objections to questions which have already been answered by the witness. Pickett v. State, 391 So.2d 154 (Ala.Crim.App.1980); Collins v. State, 364 So.2d 368 (Ala.Crim.App.1978); Brown v. State, 392 So.2d 1248 (Ala.Crim.App.), cert. denied, 392 So.2d 1266 (Ala.1980). Secondly, the rule, is well established that when an objection is sustained to a question asked on cross-examination, the questioning party must make an offer of proof, calling the attention of the court to the expected answer and the materiality of the answer; otherwise, the party cannot predicate an appeal upon the sustaining of the objection as an erroneous ruling. Collins v. State, supra.

B

Appellant questioned Easterling on cross-examination concerning attempted suicide while in jail, and the trial court sustained the State’s objection to the question. Appellant contends that constitutes error. We do not agree.

The scope of cross-examination in a criminal proceeding is within the discretion of the trial judge, and it is not reviewable except for the trial judge’s prejudicial abuse of discretion. The right to a thorough and sifting cross-examination of a witness does not extend to matters that are collateral or immaterial and the trial judge is within his discretion in limiting questions which are of that nature. Collins v. State, supra.

The question of whether the witness attempted suicide while he was in jail is wholly irrelevant to the issues of the trial.

We find no abuse of discretion in the trial judge’s sustaining of the objection.

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

AFFIRMED.

All the Judges concur.


text:
    Jackie Curtis HAYNES v. STATE.
    1 Div. 410.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-240.

      G. Wayne Ashbee of Hall, Friedman, Ashbee & Laden, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for rape in the first degree under Alabama Code 1975, Section 13A-6-61(3). He was sentenced as an habitual offender to life imprisonment without parole. Two issues are presented on appeal.

I

The act changing the number of jury strikes in a criminal case so as to give the State and the accused an equal number of strikes is not an ex post facto law as applied to the defendant.

The crime occurred and the defendant was indicted in 1981. At that time Alabama Code 1975, Section 12-16-100 was in effect and provided that the defendant would strike two prospective jurors and the district attorney would strike one. This section was amended in April of 1982 to provide one-for-one jury strikes. Now the defendant and the State strike alternately with each having only one strike.

The defendant argues that this decrease in his number of jury strikes works a substantial detriment to the accused and falls within the constitutional prohibition of ex post facto laws. A similar issue was considered by our Supreme Court in South v. State, 86 Ala. 617, 619, 6 So. 52 (1889), where it was held that a new statute reducing the number of peremptory challenges allowed in a criminal case applies to prosecutions for offenses committed prior to its passage:

“It is further insisted, if the position considered above be not well taken, that the defendant was entitled to fifteen peremptory challenges, because this was the number allowed when the offense was committed, and the act of 1887 reducing the number is, as applied to this case, ex post facto, and void. Without enlarging argumentatively on this point, it will suffice to say, that the great weight of authority is against this position. Manifestly, laws of this class affect the remedy— the procedure by which actions are maintained, and defended and determined. They in no degree affect the right itself. As to crimes, their effect is, in no sense, to make an action criminal, which was innocent when done; nor to add to the criminality of an offense after its commission; nor to increase the punishment, or to authorize a conviction on less or different testimony, than that required when the crime was committed. Relating, as they do, to procedure, laws of this character may be modified at any time by the legislature, and, as modified, will apply in all subsequent proceedings, with respect to offenses committed before, as well as those committed after their adoption. ‘There is no such thing’, says Mr. Bishop, ‘as a vested right in any remedy.’ Bishop’s Cr.Proc. Section 178. ‘So far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place.’ Cooley’s Const.Lim., p. 329. ‘The legislature has power at all times to increase or diminish the number of peremptory charges to be allowed the State, or the defendant, in a criminal cause.’ Thomp. & Mer. on Juries, Section 165. And the doctrine of these texts has been repeatedly sustained by courts of last resort, including this court. Lore v. State, 4 Ala. 173; Perry v. Commonwealth, 3 Grat. (Va.) 632; Walson [Walston] v. Com., 16 B. Monroe (Ky.) 15; People v. Mortimer, 46 Cal. 114; People v. Campbell, 59 Cal. 243; State v. Ryan, 13 Minn. 370; Stokes v. People, 53 N.Y. 164.”

What our Supreme Court said in South foreshadowed the decision of the Supreme Court of the United States in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

“It is equally well settled, however, that ‘(t)he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.’ Gibson v. Mississippi, 162 U.S. 565, 590, 16 S.Ct. 904, 910, 40 L.Ed. 1075 (1896). ‘(T)he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, see Malloy v. South Carolina, 237 U.S. 180, 183, 35 S.Ct. 507 [508], 59 L.Ed. 905, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.’ Beazell v. Ohio, supra [269 U.S. 167], at 171, 46 S.Ct. [68], at 69 [70 L.Ed. 216].
“Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. For example, in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), as of the date of the alleged homicide a convicted felon could not have been called as a witness. Subsequent to that date, but prior to the trial of the case, this law was changed; a convicted felon was called to the stand and testified, implicating Hopt in the crime charged against him. Even though this change in the law obviously had a detrimental impact upon the defendant, the Court found that the law was not ex post facto because it neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided greater punishment, nor changed the proof necessary to convict. Id., at 589, 4 S.Ct., at 210.
“In Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898), a defendant was convicted of murder solely upon circumstantial evidence. His conviction was reversed by the Missouri Supreme Court because of the inadmissibility of certain evidence. Prior to the second trial, the law was changed to make the evidence admissible and defendant was again convicted. Nonetheless, the Court held that this change was procedural and not violative of the Ex Post Facto Clause.” Dobbert, 97 S.Ct. at 2298.

The rule is summarized in 16A Am.Jur.2d Constitutional Law, Section 648 (1979).

“(I)t has been held that the granting or withholding of peremptory challenges is solely a matter of procedure; and the rule is established that a law curtailing the number of peremptory challenges which a defendant may have in the. impaneling of a trial jury, enacted after the commission of the offense charged, is not ex post facto as to such offense (citing Ash [Ashe] v. United States, 270 U.S. 424, 70 L.Ed. 662, 46 S.Ct. 333; People ex rel. Pincus v. Adams, 274 N.Y. 447, 9 N.E.2d 46, 110 A.L.R. 1303; Harris v. United States, 4 Okla.Crim. 317, 111 P. 982; People ex rel. Chandler v. McDonald, 5 Wyo. 526, 42 P. 15.). On the same principle a subsequent act increasing the number of the State’s peremptory challenges is not ex post facto (citing State v. Hoyt, 47 Conn. 518; Harris, supra; State v. Eaton, 316 Mo. 995, 292 S.W. 70).”

Upon this authority we find that Section 12-16-100 as amended in 1982 by Acts 1982, No. 82-221, so as to give the State and the accused an equal number of strikes does not operate as an ex post facto law in prosecutions for offenses committed before the amendment.

II

The victim in this case was an eleven-year-old girl. In examining her in order to determine if she was competent to testify as a witness, the trial judge twice addressed her as “sugar”, told her that “nobody is going to bother you”, and gave her a “candy sucker” to keep her from being nervous. The defendant argues that these words and gestures of the trial judge indicated his partiality towards the witness and prejudiced the defendant before the jury.

As in Terry v. State, 397 So.2d 217, 222 (Ala.Cr.App.), cert. denied, 397 So.2d 223 (Ala.1981), “we cannot say that the trial judge’s conduct was so solicitous as to bolster the credibility of the witness and deny the appellant a fair trial.” Defense counsel made no objections to the trial judge’s words and gestures toward the witness and the record fails to reflect any improper conduct of the trial judge which prejudiced the defendant. Terry, supra. • Without objection having been made at trial, the defendant has no basis of complaint on appeal.

While a judge must remain impartial, he is not a robot or a “stone-cold computer draped in a black robe.” Allen v. State, 290 Ala. 339, 342, 276 So.2d 583 (1973). Just as a trial judge has a duty to be just and impartial, he must also be courteous and patient. While a judge’s thoughtfulness of or consideration toward a witness may be so pronounced as to operate to deny the accused a fair trial, we find no such criticism of the judge’s actions available or proper here.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Albert VAN ARCKEN v. STATE.
    3 Div. 476.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 2, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-140.
    Julian L. McPhillips, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Defendant was convicted of rape in the first degree and sentenced, under the habitual offender statute, to life imprisonment without parole.

On appeal, defendant raises a number of issues which we need not reach, since, in our judgment, his conviction is due to be reversed for the error of allowing the prose-cutrix to state that she was “raped.” During direct examination of the prosecutrix by the State, the following occurred:

“Q. [By Mr. Gillis, Assistant District Attorney] Well, after he went and locked the door, what happened then?
“A. He came back into the — he came back into the bedroom.
“Q. What, if anything happened at that time?
“A. He raped me.
MR. McPHILLIPS [Defense Counsel]: Objection, your Honor.
“Q. (By Mr. Gillis) When he came back in the room what, if anything ...
“MR. McPHILLIPS: Excuse me and move to strike on the legal characterization that she used.
“THE COURT: Overruled.”

Appellant admitted the act of sexual intercourse but defended the charge on the basis that the act took place without forcible compulsion and with the consent of the prosecutrix. Under these circumstances, it was for the jury to resolve the conflicting testimony and to determine whether the crime as charged had been committed. Harvey v. State, 41 Ala.App. 526, 138 So.2d 270 (1962); Stewart v. State, 27 Ala.App. 315, 172 So. 675 (1936), cert. denied, 233 Ala. 480, 172 So. 678 (1937).

For the error in overruling appellant’s objection and failing to grant his motion to strike the foregoing testimony of the prose-cutrix, the judgment of conviction by the Montgomery Circuit Court is reversed, and the case is remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ronnie McNeall HALL v. STATE.
    6 Div. 779.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-228.
    Virginia A. Vinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

This is an appeal from a denial of a petition for a writ of error coram nobis.

Appellant was convicted of first degree murder on March 9, 1978, and sentenced to life imprisonment. This court affirmed the conviction after oral argument, without opinion, on October 29, 1979.

The petitioner alleges ineffective assistance of counsel and recounts specific occurrences in furtherance of that allegation. Petitioner requested a hearing on the petition.

The circuit court, on its own motion and without a hearing on the merits, denied the petition.

The trial judge, in the instant case, stated in his memorandum that an earlier, substantially similar coram nobis petition filed by this petitioner had been denied. He denied this petition on that basis. We have reviewed the petition for writ for error coram nobis which was filed in this court on January 30, 1980, by the same petitioner, which the lower court was correct in terming “substantially similar.” That earlier petition was denied. We affirmed the lower court’s denial of that earlier petition without opinion, with all the judges concurring.

Petitioner’s claim of “ineffective assistance of counsel” is recognized as an appropriate ground for coram nobis relief. Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978). Notwithstanding that fact, the mere assertion of ineffective assistance of counsel does not trigger an automatic right to a hearing on a coram nobis petition. See Stephens v. State, 420 So.2d 826 (Ala.Cr.App.1982).

For the reasons pointed out by the trial court that the current petition is substantially similar to appellant’s prior petition, which was previously denied and the denial was affirmed on appeal to this court, we find that the trial court properly denied the petition in this case. See Waldon v. State, 284 Ala. 608, 227 So.2d 122 (1969).

The actions of the trial court are in all things affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Ervin FITCHARD v. STATE.
    8 Div. 674.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-223.

      Fulton S. Hamilton, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

First degree robbery; life imprisonment.

Eyewitness accounts conclusively demonstrated that appellant was one of three black males who entered Mason Jewelers in Huntsville, Alabama, on the afternoon of August 20, 1981, and, at gunpoint, forced employees there to give them “roughly about seven hundred dollars” from the cash register and a substantial amount of jewelry worth approximately $110,000. Appellant and one accomplice were apprehended very shortly after the robbery by police officers arriving on the scene in response to a silent alarm. At the time of his arrest, appellant had $633 in his pocket.

I

Appellant contends that the eyewitnesses’ out-of-court and in-court identifications were impermissibly suggestive and prejudicial and should have been excluded.

Two employees from Mason Jewelers testified that they were present in the store when the robbery occurred. Everett Ramsey, the store manager, testified that he observed appellant the entire ten or fifteen minutes he was in the store. Appellant pointed a pistol at Ramsey and ordered Ramsey to give him the money from the cash register, to open the vault, which was empty, and to empty several trays of diamond rings into a pillow case he was holding. Ramsey made a positive in-court identification of appellant, noting that appellant had worn a ball cap and “some kind of makeup” on the day of the robbery. He stated that there was “no question at all” in his mind that appellant was one of the robbers.

Ramsey testified that police detectives came to the store approximately two weeks after the robbery and showed the employees some photographs of black males. He thought there were around ten photographs in the group. He stated that he was able to positively identify appellant’s picture as that of one of the three men who robbed him. Ramsey further testified that the detectives did not tell him anything about the people in the photographs prior to his identification of appellant.

During cross-examination, defense counsel introduced a picture appearing on the front page of the Huntsville news after the trial of appellant’s accomplice, Aaron Jackson. Both appellant and Jackson appeared in the picture and were identified by name in the caption. Ramsey testified that this picture did not influence his identification of appellant because “that was one of the scariest points of my life and I can still see that man’s eyes, his eyes, holding that gun on me.”

Steve Seat also made a positive in-court identification of appellant as one of the robbers. He stated that he observed appellant some two or three minutes before the robbery actually began. He explained that he was watching appellant during this time because he and Ramsey had been suspicious of appellant and his companion when they entered the store. Seat described the clothing appellant was wearing on the day of the robbery and stated that appellant had appeared to have black mascara smeared on his face. He further stated that there was no question in his mind that appellant was one of the three robbers.

On cross-examination, Seat testified that he picked appellant’s picture out of a group of photographs shown to him by detectives “a couple of days” after the robbery. He stated that there were five or six photographs in this group. There was no suggestion by the detectives as to which picture he should choose. Seat testified that he did not see the newspaper picture until the day of trial and did not then read the caption.

Detective Perry Petty testified that he and Investigator Turner went to Mason Jewelers the day after the robbery and showed photographs to all the employees. He stated that they made no suggestion to any employee as to which photograph they should choose.

When a pre-indictment photographic array is used, the primary concern is the potential for misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Each case is to be considered on its own facts in determining whether the “photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, supra. On the facts involved in this case, we hold that the identification procedure was neither unnecessarily suggestive nor conducive to a mistaken identification. Both eyewitnesses testified that they were in no way influenced in making their decision. Further, neither was exposed to a one-photograph display. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Moreover, as this court stated in Flowers v. State, 402 So.2d 1088 (Ala.Cr.App.), cert. denied, 402 So.2d 1094 (Ala.1981):

“Even had the confrontation procedures been suggestive, which we hold they were not, reliability remains the linchpin in determining the admissibility of identification testimony. The United States Supreme Court has set out the following five factors to be considered in determining reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.” [Citations omitted]

Based on these five criteria, we conclude that the identifications by Ramsey and Seat were reliable. Our opinion is not changed by the fact that appellant’s picture appeared in the Huntsville news. Ramsey testified that the newspaper picture had no influence in his identification of appellant. Further, it does not appear that the picture had any influence on Seat’s identification of appellant.

II

Prior to the presentation of any testimony, the trial court entertained appellant’s motion to suppress the identification testimony. The trial judge denied the motion, but stated:

“[P]rior to the actual pointing out of any person pursuant to questions I will permit cross-examination or voir dire examination on the points that you have raised to see if the identification process should be permitted to go with each individual witness. ...” [Emphasis added]

Appellant later objected “based upon our prior motion” to both eyewitnesses’ in-court identification. He did not, however, request to take the witnesses on voir dire or a hearing outside the presence of the jury. He now complains that he was denied an opportunity to test the reliability of the identification procedures.

Determining the reliability of an identification is similar in nature to determining the voluntariness of a confession. In regard to the voluntariness of a confession, we have held that “the burden is not on the trial court to withdraw the jury ex mero motu, hear evidence.. . outside the jury’s presence, and expressly rule.” Harris v. State, 406 So.2d 1074 (Ala.Cr.App.1981); Carroll v. State, 370 So.2d 749 (Ala.Cr.App.), cert. denied, 370 So.2d 761 (Ala.1979). It follows that the trial court is under no duty to ex mero motu conduct a hearing outside the presence of the jury in determining the reliability of an identification. Even though the trial judge in this case stated that he would permit cross-examination or voir dire examination of the witnesses prior to an in-court identification, he was under no burden to do so in the absence of a request by the appellant.

Ill

Subsequent to his arrest, appellant gave a tape recorded confession to Huntsville police officers. This confession was admitted into evidence and played for the jury. (The admissibility of the confession is not an issue on appeal.) After beginning their deliberation, the jury requested to hear the confession again. The trial court granted the request. Appellant asserts that this was reversible error because it was highly prejudicial and placed undue importance on the confession.

It is well-established that the rereading of testimony to the jury at its request is within the sound discretion of the trial judge. Martin v. State, 371 So.2d 460 (Ala.Cr.App.1979); Cooper v. State, 340 So.2d 91 (Ala.Cr.App.1976). Before replaying appellant’s confession, the trial court instructed the jurors as follows:

“I caution you do not because we give you this portion of the testimony, do not take it to the exclusion of all other testimony but you must, indeed, consider it in conjunction with all of the other evidence that you have been given and not permit it to be highlighted purely because of your request that we play it for you and repeat it. So, you must take pains to take it in conjunction with all else that has been given you from both sides of the case.”

Clearly, the trial judge took all possible precautions to ensure that no undue importance would be placed in the confession. We find no abuse of discretion in this case.

For the reasons stated above, the judgment of the Madison Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Rodney Joe BEARDEN v. STATE.
    8 Div. 724.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-225.

      Macon Weaver, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

This is an appeal from a judgment of the Madison County Circuit Court denying appellant’s petition for writ of habeas corpus. Appellant is charged under an extradition warrant on the felony charge of aggravated assault by the State of Texas.

Appellant contends that he was not within Texas at the time of the alleged offense “on or about the 16th day of March, 1982,” and therefore could not be a fugitive from justice.

The State introduced the rendition warrant, then rested. Appellant presented testimony and business records to the effect that he was in Albertville, Alabama, at all times between March 13, 1982, and March 17, 1982. The trial court considered such evidence “as an established fact for the purpose of this hearing.” No additional evidence was offered by the State. The trial court denied the writ.

A prima facie case of legal detention is made out when the rendition warrant recites the jurisdictional facts that (1) there was a demand in writing for the return of the person named in the warrant as a fugitive from justice by the executive authority of the state from which he fled; (2) the requisition was accompanied by a copy of an indictment found, or an information, or an affidavit before a magistrate, substantially charging the person demanded with a crime under laws of the state from whose justice he fled; and (3) the copy of the indictment, information, or affidavit was authorized by the executive authority making the demand. State v. Parrish, 242 Ala. 7, 5 So.2d 828 (1941); Morrison v. State, 258 Ala. 410, 63 So.2d 346 (1953); Rayburn v. State, 366 So.2d 698 (Ala.Cr.App.1978), affirmed, 366 So.2d 708 (Ala.1979). No issue is raised as to the sufficiency of the rendition warrant in this case; therefore, a pri-ma facie case was made out upon its introduction.

At this point, the issues in the habe-as corpus proceeding dwindled to only two: (1) whether the petitioner is a fugitive from justice, and (2) whether he is the identical person described in the rendition warrant. Rayburn, supra; Kelley v. State, 30 Ala.App. 21, 23, 200 So. 115, 117 (1941); Potts v. State, 378 So.2d 264 (Ala.Cr.App.1979); Krenwinkle v. State, 45 Ala.App. 474, 232 So.2d 346 (1970); Monroe v. State, 400 So.2d 753 (Ala.Cr.App.1981); Adams v. State, 253 Ala. 387, 45 So.2d 43 (1950); Parrish v. State, 242 Ala. 7, 5 So.2d 828 (1941); Paulk v. State, 25 Ala.App. 212, 143 So. 585 (1932).

Petitioner’s evidence to the effect that he was not in the State of Texas on the date of the alleged offense, which the trial court considered as an established fact for the purpose of the hearing, created a conflict in the evidence between (1) the rendition warrant and (2) his evidence. Petitioner was not due to be discharged where there is contradictory evidence as to his presence in or absence from the demanding state at the time of the alleged offense. That issue was answered in State v. Curry, 2 Ala.App. 251, 56 So. 736 (1911), as follows:

“The most that can be said in behalf of the petitioner as to the evidence on the issue raised as to the fact of his being a fugitive from justice is that the evidence on that subject is in conflict. ‘The court will not discharge a defendant where there is merely contradictory evidence on the subject of presence in or absence from the (demanding) state, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused.’ Munsey v. Clough, 196 U.S. 364, 375, 25 S.Ct. 282, 285, 49 L.Ed. 515; Bruce v. Rayner [4th Cir.], 124 F. 481, 62 C.C.A. 501; McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121.”

Guilt or innocence of the accused may not be inquired into in proceedings such as this, except as it may be involved in identifying the accused held as the person charged with the crime. Ala.Code 1975, § 15-9-47. The issue of identity was not raised on appeal, except as it relates to the defensive matter of the alibi. In other words, no issue is presented that the appellant is not one and the same person as that named in the rendition warrant.

The judgment of the circuit court denying appellant’s petition for writ of habeas corpus is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Ibin Timmell CURTIS v. STATE of Alabama.
    3 Div. 558.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.
    Rehearing Denied Dec. 28, 1982.

      Philip W. Wood, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Iben Timmell Curtis was indicted for and convicted of the offense of first degree kidnapping, and following a habitual offender hearing at which evidence of five prior robbery convictions were placed in evidence, the appellant was sentenced to life imprisonment without parole. This appeal followed.

The evidence at trial established that Iben Timmell Curtis was confined in the Autauga County Jail on September 12, 1981, when, at knife, point, he forced jailer Steve McRae, to unlock the jail and to accompany him to an automobile, which was driven into Montgomery County and McRae there handcuffed with his own handcuffs.

The appellant offered no testimony or other evidence at trial.

I

Four issues are presented in this appeal. The first is with reference the continuance, argued by counsel with reference a motion made shortly before trial, that the appellant was forced to wear “prison clothing” a short time before trial and thus error occurred.

This matter was called to the trial judge’s attention just before trial. The trial judge then ordered a short continuance, and that civilian clothes be made available for the appellant and a change of clothing was then made. The appellant’s motion was then denied and trial ensued.

It is readily apparent that the trial judge, as soon as the matter was brought to his attention, made every effort to comply with the directives of the Supreme Court of the United States in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Moreover, during the course of the State’s testimony, the charge being kidnapping of a jailer, it became apparent to the jury that the appellant had been legally confined as an element of the offense charged.

We are of the opinion that the trial judge properly handled the matter and that no error resulted. Jacques v. State, 409 So.2d 876 (Ala.Crim.App.1981), affirmed 409 So.2d 885 (Ala.1982).

II

Appellant also asserts as error that the trial court failed to properly instruct the jury on a theory which was supported by the evidence; namely, that the victim was released unharmed.

Several written charges were submitted to the trial court which were simply marked by the trial judge as refused, but were not signed by the judge and his name or initials affixed thereto. Such an endorsement by the trial judge is mandated by § 12-16-13, Code of Alabama 1975.

Moreover, the appellant must specifically except to the refusal of the trial judge to each of the charges so refused. Allen v. State, 414 So.2d 989 (Ala.Crim.App.1981), affirmed 414 So.2d 993 (Ala.1982). See also Gullatt v. State, 409 So.2d 466 (Ala.Crim.App.1981).

III

Next, the appellant’s counsel calls attention to a motion filed just before trial, asserting that he should have been excused from handling this case prior to trial, as he did not have “five years prior experience in the active practice of criminal law”, before appointment to handle the instant trial and appeal and cites us to the provisions of § 13A-5-9, Code of Alabama 1975, and § 13A-5-45 and § 13A-5-54, Code of Alabama 1975, as amended in 1981.

The pertinent Code provisions are intended to apply to the defense of persons charged with an offense for which they may be punished capitally. Such does not apply to cases for which the provisions of the Habitual Felony Offender Act might come into play following trial.

IV

After the close of the State’s evidence, the appellant made a motion to exclude the State’s testimony and to discharge the defendant. This motion was overruled by the trial court.

As noted above, the State established a prima facie case of first degree kidnapping through the testimony of the jailer at the Autauga County Jail, Steve McRae, and one Franklin Bazzell, an inmate who observed the events herein described. The trial court properly overruled appellant’s motion. The applicable elements of first degree kidnapping are here properly proven. Gurley v. State, 411 So.2d 1305 (Ala.Crim.App.1982), Crews v. State, 374 So.2d 436 (Ala.Crim.App.1979) and authorities cited therein.

We have carefully examined this record and find no error therein. For the reasons shown, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Dennis James CAPPS v. STATE.
    4 Div. 999.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.
    Rehearing Denied Dec. 28, 1982.

      Larry R. Grissett, of Prestwood, Prest-wood & Grissett, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

Appellant was tried and convicted of the offense of receiving stolen property in the second degree; sentence, three years. Hence this appeal arises.

Officer Jerry Newton testified that he observed the defendant and two other persons at the fairgrounds in Andalusia on May 18,1981. He testified that each of the three was carrying a sack, and that he later found three sacks behind a building. He identified three sacks in the courtroom as the ones he found. The sacks were introduced into evidence. During questioning by appellant’s counsel, officer Newton testified that he had seen the appellant before around the police department and along the side of the roads picking up bottles and cans. On redirect examination, the witness testified that appellant’s reason for being at the police station was because he was under arrest for theft.

I

The appellant contends the trial court erred in admitting into evidence the three sacks because the State failed to lay a proper predicate for their admission.

Police officer Newton testified that he observed appellant and two others, each carrying one of the three sacks in question. It was evidenced that the items in those sacks were stolen. The stolen items were identified.

A proper predicate was laid for the admission of the sacks into evidence. The sacks were probative demonstrative evidence and were properly admitted.

II

The appellant contends that the trial court erred in overruling his objection to officer Newton’s testimony concerning appellant’s previous visit to the police station on the charge of an unrelated theft offense. Appellant contends the officer’s statement was highly prejudicial in that it gave the impression to the jury that the appellant had committed other thefts.

The appellant’s charge that this evidence was remote in time and had no causal connection to the facts in issue need not be addressed, as the objection came too late, there was no motion to exclude, and no ruling thereon adverse to appellant.

During cross-examination of officer Newton, appellant’s counsel asked the following:

“Q. Okay. Officer Newton, where have you seen Mr. Capps before?
“A. I’ve seen him around the police department, along side of the roads picking up bottles and cans.... ”

Then on redirect examination the following:

“Q. You say you have seen the Defendant around the police station?
“A. Yes, sir.
“Q. On how many occasions?
“A. Several.
“Q. Do you know what his business was there?
“A. Yes, sir.
“Q. What?
“A. He was under arrest for theft....
“MR. GRISSETT: We object. Irrelevant.
“MR. JOHNSON: He brought this out.
“THE COURT: Yes. Overruled.”

There was no further objection made by appellant’s counsel. Where the objection comes after the answer and no motion to exclude is requested, an alleged error is waived. Minnifield v. State, 390 So.2d 1146 (Ala.Crim.App.1980), writ denied, Ex parte Minnifield, 390 So.2d 1154 (Ala.1980). Such was the case here. See also Hicks v. State, 372 So.2d 61 (Ala.Crim.App.1979); White v. State, 347 So.2d 566 (Ala.Crim.App.1979).

Ill

Appellant contends that his motion to exclude the State’s evidence on grounds of insufficiency should have been granted. Appellant contends the motion was properly made when the State rested. The testimony at trial consisted primarily of circumstantial evidence of appellant’s guilt of the offense as charged.

Circumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused. Trammell v. State, 377 So.2d 12 (Ala.Crim.App.1979); Hayes v. State, 395 So.2d 127 (Ala.Crim.App.1980), cert. denied, Ex parte Hayes, 395 So.2d 150 (Ala.1981).

In another incidence of receiving stolen property, in the case of George v. State, 410 So.2d 476 (Ala.Crim.App.1982), this court addressed a similar motion to exclude based on a claim of insufficiency of the evidence. In that case the court stated:

“This evidence that appellant had the recently stolen merchandise in his possession, if believed by the jury, was sufficient to trigger the presumption that appellant knew the merchandise had been stolen.” George, supra, at 478. See also cases cited therein.

If the evidence raises a question of fact for the jury, the jury’s determination on such evidence will not be disturbed on appeal. Perry v. State, 371 So.2d 969 (Ala.Crim.App.), cert. denied, 371 So.2d 971 (Ala.1979).

The testimony of officer Newton that appellant and two others were carrying sacks that contained stolen goods presented a question of fact for the jury.

IV

Appellant contends that the court erred in failing to charge the jury on receiving stolen property in the third degree, a misdemeanor set out in § 13A-8-19, which prohibits receiving stolen property of a value of less than one hundred dollars.

Appellant states that there was testimony that the total value of items in the three sacks was “approximately” two hundred dollars, and there was vagueness as to the value of the few items identified in the bag as stolen. Appellant contends that the court should have also charged the jury on this lesser included offense.

The record reveals, however, that there was no suggested written charge from appellant that made reference to this lesser included offense. The Ala.Code, § 12-16-13, requires that all charges moved for by any party must be in writing.

“An omission from (or gap in) the oral charge and the given written charges is reviewable on appeal only in the light of and from the test of the written charges submitted to the judge and refused by him.” Watkins v. State, 57 Ala.App. 55, 325 So.2d 926 (Ala.Crim.App.1975).

Based on the statutes cited above, we find no reversible error preserved for review in this record.

The judgment is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    James Albert WRIGHT v. STATE of Alabama.
    6 Div. 389.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-213.
    Michael Crespi and George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   On Rehearing

TYSON, Judge.

On October 12, 1982, this court unanimously affirmed, without opinion, the robbery conviction of the Appellant. Because of a Rule 39(k) A.R.A.P. petition, and the earnestness of the appellant’s contentions in brief, this opinion follows.

James Albert Wright, Jr., was convicted of robbery and sentenced to twenty years. This case is submitted on briefs. The only issue raised on appeal is whether the trial court erred by denying appellant’s motion to produce the following:

“A copy of all arrest records, police records or juvenile records of any witnesses to be used by the State to testify against the Defendant in this ease.”

Appellant claims that the failure to order discovery here denied him his statutory rights under § 12-21-137, Code of Alabama 1975, to a “thorough and sifting” cross-examination of the State’s witnesses, and deprived him of his Sixth Amendment constitutional right to confrontation of adverse witnesses.

It is settled, however, that there is no constitutional right to discovery in a criminal case, Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); Reed v. State, 407 So.2d 153 (Ala.Cr.App.1980), reversed on other grounds, 407 So.2d 162 (Ala.1981); Goodman v. State, 401 So.2d 208 (Ala.Cr.App.), cert. denied, 401 So.2d 213 (Ala.1981).

There is also no absolute right to disclosure of the criminal records of the State’s witnesses, see Mack v. State, 375 So.2d 476, 486 (Ala.Cr.App.1978), affirmed, 375 So.2d 504 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3044, 65 L.Ed.2d 1134 (1980), on remand, 405 So.2d 700 (Ala.), reversed on other grounds, 405 So.2d 701 (Ala.Cr.App.1981), and authorities cited therein.

It is within the discretion of the trial judge to order disclosure of information “which might or might not have impeached the testimony of the State’s witnesses,” Oliver v. State, 399 So.2d 941 (Ala.Cr.App.1981). There was no abuse here.

In fact, the trial judge went out of his way to protect appellant’s interests by granting seven out of nine requests for discovery and production, including the following: (R. 144-145)

“1. Copies of any Complaints and warrants issued by any magistrate for the arrest, search and seizure of the Defendant.
“2. A list bearing the names of all officers who participated in any pre-arrest investigation of the Defendant for the offense now before the Court, and all officers who participated in the arrest and subsequent investigation of this case.
“3. A list of all witnesses, who appeared before the Grand Jury or whose statements or affidavits were presented for consideration by the Grand Jury which returned the indictment in this case.
“4. A copy of any and all written statements made by the Defendant after his arrest.
“6. A list of all witnesses interviewed by the State in connection with this prosecution and their residence and/or business addresses.
“7. A copy of all statements made by all witnesses interviewed by the State in connection with this prosecution.
“8. A list of all oral declarations against interest or res gestae statements or oral statements alleged by the State to lead to discovery of evidence in this case.”

We find no error in this record. The judgment of the trial court is therefore due to be and is hereby affirmed.

APPLICATION OVERRULED; CASE AFFIRMED.

All the Judges concur.


text:
    Willie Earl COLEMAN v. STATE of Alabama.
    1 Div. 428.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Willie Earl Coleman was charged by indictment with causing the death of Jimmy Owens, by shooting him with a gun, contrary to § 13A-6-2, Code of Alabama 1975, as amended.

The jury found the appellant “guilty of murder as charged in the indictment” and the trial court set sentence at 30 years’ imprisonment. (R. 113)

The State established that the deceased, Jimmy Owens, was present at his home at 714 Maudine Street in Prichard, Mobile County, at about 5:30 on the afternoon of June 6,1981. He was in an argument with the appellant, Willie Earl Coleman, when, according to the daughter of the victim, Michelle Owens, Coleman pulled a pistol and shot her father twice, then got into his automobile and fled. Michelle Owens came into her home and reported this to her mother, Mattie Owens, who called the police.

Mattie - Owens testified she heard the shooting" and saw the appellant drive away in his automobile.

Police Officer Frank Dees answered the call and found the body of the victim and had him taken by ambulance to the hospital.

Coroner Leroy Riddick of Mobile County testified that he performed an autopsy on June 8, 1981, at the University of South Alabama and determined that there had been two bullet wounds, one entering the left arm and chest and going through the lung and heart. He determined the caliber of the bullet to be .32 and the wound caused the death of the victim.

Willie Earl Coleman testified he had loaned Jimmy Owens $100.00 and that they had gotten into an argument about repaying it. He stated he came to Owens’ house that afternoon and after a discussion about the money, saw the deceased pull a pistol and he then pulled his weapon and fired one time at his leg.

The appellant on cross-examination admitted grand larceny and receiving stolen property convictions; one in 1969 and the other in 1973.

The State’s witnesses testified that they saw no weapon in the hands of the deceased nor did they find one on his person.

I

It is clear that under the evidence the State proved a prima facie case. The sole issue with reference the trial itself is the admission of certain photographs of the victim which were cumulative of the evidence of the police officers, the daughter and the wife of the victim. No error appears from the use of these photographs. Brown v. State, 401 So.2d 213 (Ala.Cr.App.) cert. denied, 401 So.2d 218 (Ala.1981) and authorities therein cited.

II

The appellant admitted when he took the witness stand to testify in his own behalf that he had two prior felony convictions, one for grand larceny and one for receiving stolen property.

In Peoples v. State, 415 So.2d 1230 (Ala.Cr.App.1982) we find the following:

“Ala.Code § 13A-5-9(b)(3) (Supp.1981) mandates that in all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and then is convicted of a Class “A” felony, ‘he must be punished by imprisonment for life or for any term of not less than 99 years.’ Once a defendant admits prior felony convictions they are proved for purposes of the Habitual Offender Act. See, Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981); Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.) cert. denied 406 So.2d 1053 (Ala.1981).

As in Peoples, supra:

“We affirm the guilt phase of the trial. However, because of the failure to apply the Habitual Felony Offender Act, we remand this cause with directions to the trial court to conduct another sentencing hearing applying said act. The State of Alabama should, a reasonable time prior to the sentencing hearing, notify the appellant of the prior convictions under which the State plans to proceed, although for all practical purposes the appellant is aware of such prior convictions. “All parties should be present, with counsel, and any evidence offered shall be recorded for this court’s review. A com-píete transcript of these proceedings shall be transmitted to this court under Motley, supra and Aplin v. State [421 So.2d 1299] [Ms. December 29, 1981] (Ala.Cr.App.1981)” See Motley v. State, 409 So.2d 945 (Ala.Cr.App.1981).

AFFIRMED, BUT REMANDED WITH DIRECTIONS FOR ANOTHER SENTENCING HEARING.

All the Judges concur.


text:
    Carl Curtis GLASS v. STATE.
    3 Div. 421.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.

      L. Gilbert Kendrick, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

Carl Curtis Glass was indicted by a Montgomery Grand Jury for robbery in the first degree. Upon arraignment, appellant entered a plea of not guilty and not guilty by reason of insanity. Appellant filed a motion to suppress the evidence, on which a hearing was held by the trial court. After the hearing, appellant’s motion to suppress was overruled and the case was set for trial. On the trial date, appellant withdrew his demand for a jury trial and entered into a stipulation with the State, stipulating venue and agreeing that the case be submitted to the trial court for decision based on the evidence presented at the suppression hearing. The trial court adjudged appellant guilty of the charged offense and sentenced him to twenty years. Hence this appeal.

Appellant presents two issues for review: (1) whether the trial court erred in overruling his motion to suppress, and (2) whether the State proved a prima facie case.

I

Appellant contends that his arrest was illegal in that it was a warrantless arrest without probable cause, and that therefore the evidence, all of which was obtained as a result of the arrest, should have been excluded.

During the evening hours of February 5, 1981, a man entered Super Foods grocery store on West South Boulevard in Montgomery, approached the store manager, and told him he was “just the man he needed to see.” The man ordered the store manager to “go up and get all the money out of the office.” The store manager testified that the robber had a gun in the right pocket of a green army fatigue jacket he was wearing but did not pull it out, and that he was wearing a green tobbogan over his face with “holes cut out about the size of a tomato.” The store manager further testified that he could clearly see the robber’s eyes, eyebrows, cheeks, and a part of his forehead.

The robber accompanied the store manager to the office, where the store manager turned over to him currency, checks, money orders, and food stamps in the approximate value of $16,000. The robber then left the store, and the store manager called the police to report the robbery, giving a description of the robber.

Sergeant Locklar of the Montgomery Police Department responded to the police radio dispatch, arriving at the grocery store within about four minutes. He received from the store personnel a description of the robber as being a white male, 6'3", 260-270 pounds, having very heavy dark eyebrows and a mustache, and wearing army boots, a green fatigue army jacket, and a ski mask with holes. Sergeant Lock-lar testified that this description was the description given by the police radio dispatcher “except for a few extra details.”

After going to the bowling lane adjoining the grocery store to look for a person fitting the robber’s description, Sergeant Locklar repositioned his vehicle where he could watch the entire parking lot area.

As Sergeant Locklar was observing the parking lot area, he noticed a tractor trailer truck parked in the vicinity of the bowling lane, about sixty to sixty-five yards from his vehicle. As he was watching, the truck was cranked and its interior light was switched on, and he observed that the driver was a white male with black hair. As the truck was moving across the parking lot to leave, the driver continuously watched the police car Sergeant Locklar was occupying. Sergeant Locklar then radioed a request to any police units in the area to stop the truck.

Corporal Hitson of the Montgomery Police Department had been in the vicinity of the rear of the store questioning various people as to whether they had seen anyone leaving the area. He heard Sergeant Loek-lar’s radio request and observed the truck “traveling in the right lane at the traffic light and subsequently running through a red light.” He pursued the truck for about half a mile before it stopped. The driver of the truck, appellant, got out of the cab with his hands up; Corporal Hitson did not have his pistol drawn. Upon seeing appellant, Corporal Hitson noted that his physical appearance was similar to the description of the robber previously broadcast over the police radio. Corporal Hitson then directed appellant to move the truck out of the lane of traffic, which he did. As appellant was getting out of the truck cab, Corporal Hit-son noticed a pistol holster lying on the bed in the rear of the cab.

Appellant inquired of Corporal Hitson the nature of the problem, and Corporal Hitson advised him that he was suspected of being the person who had robbed Super Foods. Appellant fainted.

Appellant was carried back to Super Foods and was positively identified by the store personnel as the robber.

From these events, we now come to the issue of whether the arrest was lawful. If the arrest was lawful, the evidence obtained as a result of the arrest is admissible; if the arrest was unlawful, the evidence is not admissible.

Appellant’s arrest, having been effected without a warrant, is governed by § 15-10-3, Code of Alabama 1975, which provides in relevant part that “an officer may arrest any person without a warrant when a felony has been committed and he has reasonable cause to believe that the person arrested committed it.”

The record is silent of any direct testimony as to the exact point in time at which the arrest was effected.

The point at which the arrest was effected is material in determining the legality of the arrest and whether “reasonable cause” existed at that instant of time. The record is silent of any direct testimony as to when the arrest was effected during the sequence of events. Appellant contends that the arrest was effected at the time the truck was stopped by Corporal Hitson, that being the point of time at which the officer curtailed appellant’s freedom of movement. Appellant relies on Foy v. State, 387 So.2d 321 (Ala.Cr.App.1980).

An arrest consists in taking, under real or assumed authority, custody of another person for the purpose of holding or detaining him to answer a criminal charge or civil demand. Central of Georgia Ry. Co. v. Carlock, 196 Ala. 659, 72 So. 261 (1916). The officer’s stopping the truck was not tantamount to taking the driver in custody for the purpose of detaining him to answer a criminal charge. We therefore conclude that the arrest was not then effected, contrary to appellant’s contention. Rather, we find under the facts that appellant’s “freedom of movement” was curtailed at the point when Corporal Hitson advised him that he was suspected of being the person who robbed Super Foods, and that the arrest occurred at that point in time.

The activity of stopping the truck falls within the concept of an investigative stop, a detention which may be based upon circumstances falling short of probable cause to arrest. Butler v. State, 380 So.2d 381 (Ala.Cr.App.1980); Bagony v. City of Birmingham, 371 So.2d 80 (Ala.Cr.App.1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A report received over the police radio that a person fitting a certain description and traveling in a certain described vehicle is wanted in connection with a felony, constitutes sufficient probable cause to stop such vehicle and make an investigation. McClendon v. State, 341 So.2d 174 (Ala.Cr.App.1976), cert. quashed, 341 So.2d 178 (Ala.1977).

At the time of the arrest, Corporal Hitson was obviously aware of several factors lending credence to probable cause for arrest: (1) he was aware that an armed robbery had occurred a few minutes earlier in the immediate vicinity, (2) he had determined by his independent investigation that the robber had not fled the area by some route at the rear of the store, (3) he observed appellant’s truck leaving the area at a high rate of speed and running a red light, (4) appellant’s description matched the physical description of the robber, and (5) he observed an empty pistol holster in the truck. These factors clearly provided probable cause for the arrest of appellant.

Appellant contends that the officer did not inform him of the officer’s authority and cause of arrest, in violation of § 15-10-4, Code of Alabama 1975. First, if the officer’s authority is already known, the reason for the statute is satisfied. From the facts, it is obvious that appellant was aware that Corporal Hitson was an officer; he had been stopped by Corporal Hitson, and had emerged from the truck cab with his hands raised. The officer, according to his testimony, had not drawn his gun. Second, appellant was told the purpose of his arrest, i.e., to be taken to Super Foods to be viewed as a robbery suspect.

Appellant further contends that the on-the-scene identification was fatally improper in that it amounted to a highly suggestive and prejudicial one-man showup.

It is settled law that prompt, on-the-scene confrontations are not constitutionally impermissible, but are consistent with good police work. Hobbs v. State, 401 So.2d 276 (Ala.Cr.App.1981). Since a show-up is by its inherent nature suggestive, we must assess the reliability of the in-court identification. The totality of the circumstances must be considered in assessing the reliability of the identification. The factors include (1) the opportunity of the witness to view the criminal act at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description, and (4) the level of certainty demonstrated by the witness at the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). After considering all of these factors and weighing them against the effect of the suggestiveness of the on-the-scene confrontation, we conclude that the store manager’s in-court identification of appellant, which was made without objection by appellant, was highly reliable.

We find that the trial court’s ruling on the motion to suppress was proper.

II

Appellant contends that the State did not prove a prima facie ease in that the necessary elements of robbery were not established by the evidence. A review of the facts will reveal that appellant’s position is not well taken. However, this matter is not preserved for appellate review because, having been tried without a jury, there was no motion to exclude at the end of the State’s case in chief, no request for an affirmation charge, and no motion for a new trial. Thus, the sufficiency of the evidence is not reviewable. See McCraney v. State, 381 So.2d 102 (Ala.Cr.App.1980), and authorities therein cited.

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

AFFIRMED.

All the Judges concur.


text:
    Vic ASHURST, Sr. v. STATE of Alabama.
    3 Div. 464.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    Oakley Melton, Jr., and Joe Espy, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   TYSON, Judge.

Vic Ashurst, Sr., was charged by indictment with intentionally receiving, obtaining, or disposing of certain stolen property alleged to have an aggregate value in excess of $5,000, knowing same to be stolen, or having reasonable grounds to believe same to be stolen and not having intent to restore same to its owner, contrary to § 13A-8-17, Code of Alabama (supplement 1981).

The jury found the appellant “guilty as charged” and following a sentencing hearing, the trial court set sentence at two years’ imprisonment and denied probation. The appellant’s motion for new trial was overruled and this appeal followed.

Because reversible error appears in a ruling with reference the appellant’s right to confer with counsel during trial, this court pretermits consideration of the evidence in this cause and expresses no opinion on same.

I

Appellant argues denial of due process and denial of equal protection due to the refusal of the trial court to permit him to confer with his counsel during a brief recess in the midst of appellant’s testimony.

Volume 3, record page 408 in pertinent part, reads as follows:

“THE COURT REPORTER: Judge, I need to change the paper in my machine.
“THE COURT: We’ll take a brief recess.
“LADIES AND GENTLEMEN, If you will take your recess within the jury box and jury room, you may step down at this time.
“(Whereupon, the following occurred while the jury was leaving the Courtroom.)
“MR. HAWTHORNE: Judge, Mr. Espy is—
“THE COURT: Mr. Espy, don’t talk to the witness while he is still on the stand giving testimony.
“MR. ESPY: You mean I can’t talk to my client?
“THE COURT: Not while he’s still on the stand.
“MR. ESPY: But Your Honor—
“THE COURT: Not during his testimony.
“(Whereupon, a discussion was held in chambers, out of the presence of the Court Reporter.)”

The remaining portion of the colloquy not shown during the above recess is found in Volume I, Supplemental Transcript, page one, which is as follows:

“THE COURT: Mr. Ashurst, don’t talk to Mr. Espy.
“MR. ESPY: You mean I can’t talk with my client?
“THE COURT: Yes, that is my rule and it has been for a long time.
“MR. ESPY: I object.
“THE COURT: Your objection is overruled. That is my rule.”

As a result of the above ruling, counsel for the appellant was prohibited from talking to the appellant any further until such time as the appellant had completed his testimony, including all breaks and recesses.

This identical issue also involving the Circuit Court of Montgomery County, Alabama, was before this court most recently in Payne v. State, 421 So.2d 1303 (Ala.Cr.App.1982) cert. quashed by Supreme Court 81-718, November 5, 1982. 422 So.2d 1.

Judge Barron, writing for this court, stated the following:

“The question presented is whether a restriction, however brief, on a criminal defendant’s right to confer with counsel is tantamount to an unconstitutional deprivation of the right to counsel. We think it is.
“During the course of the trial, after the State had rested its case and while appellant was on the witness stand, a brief recess was taken. At that time, the trial court advised appellant’s counsel that pursuant to the trial court’s ‘rule for the past five years’ there was to be ‘no conversation between lawyers and the defendant [appellant] while the defendant [appellant] is in the process of his testimony.’ Objections and exceptions were duly noted. Obviously, the reason for such rule is to assure that the testimony would be the same as though no recess had been taken, or there had been no break or interruption in the testimony. More succinctly, such rule would minimize the possibility that an accused’s counsel would improperly influence his client, possibly tainting the testimony. There are other avenues of protection available to the trial court to deter or prevent any such improper conduct on the part of counsel. While the motives for the trial court’s rule are indeed laudable, such rule without doubt erects an unconstitutional barrier to the effective right to counsel.
“Depriving a criminal defendant of the right to consult with counsel during court recesses — regardless of how brief the recesses may be — violates the constitutional right to effective assistance of counsel. United States v. Conway, 632 F.2d 641 (5th Cir.1980).”

In quashing the Writ of Certiorari in this cause, the Supreme Court of Alabama stated:

“In quashing the writ, we agree with the Court of Criminal Appeals that the absolute rule of the trial court that deprives a defendant of the right to consult with counsel while the defendant is in the process of testifying is overly broad and overly restrictive. By quashing the writ, however, we do not intend to suggest that a trial judge is without some discretion in the area.”

For the error shown, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Jerry C. COLLINS v. STATE.
    3 Div. 573.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    No brief filed for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

Appellant, Jerry C. Collins, filed a petition in the Circuit Court of Escambia County for a writ of habeas corpus. The petition was, on motion by the state, dismissed without a hearing. The appellant appeals to this Court.

Appellant claims that he had been improperly sentenced in a case against him for escape in the first degree by the Circuit Court of Mobile County, Alabama.

We hold that the trial court did not err when it dismissed appellant’s petition for a writ of habeas corpus, because it appears from the face of the petition itself that the appellant is imprisoned under a sentence of the Circuit Court of Mobile County, Alabama, rendered on the 4th day of September, 1981, for the offense of escape in the first degree.

Habeas corpus is not the correct remedy to correct errors and irregularities in a trial, in a court of competent jurisdiction. Code Of Alabama, 1975, Sec. 15-21-8; Fields v. State, Ala.Cr.App. 407 So.2d 186; Luquire v. State, 42 Ala.App. 652, 177 So.2d 106; Ex Parte Barnes, 44 Ala.App. 329, 208 So.2d 238.

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

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.