author: DeCARLO, Judge.

text:
    Marie Lancaster BUSBY v. STATE.
    1 Div. 244.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Rehearing Denied March 2, 1982.
    Certiorari Denied, April 30, 1982 Alabama Supreme Court 81-473.

      W. Gregory Hughes, John J. Pilgrim, and A. Holmes Whiddon, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

Appellant was charged with capital murder pursuant to a contract for hire under § 13-11-2(7), Code of Alabama 1975. The indictment alleged that she had agreed to pay one Terry Lewis and one Dennis Cross approximately $10,000 to shoot her husband, Houston Busby.

After a trial during which the court instructed the jury on the lesser included offenses of murder and manslaughter as mandated by Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), after remand, Beck v. State, 396 So.2d 645 (1980), appellant was found not guilty of the capital offense but guilty of the offense of murder. The trial judge sentenced appellant to life imprisonment.

The evidence for the State established that the body of Houston Busby was found in a pickup truck off Hamilton Boulevard in Mobile, Alabama, on March 14, 1980, and that Busby died as the result of a gunshot wound to the head. Mobile Sheriff Detective Willie Edward Estes went to the Busby Sand Company on the morning of March 14 to inform the appellant (deceased’s wife), who worked as secretary-receptionist for the company, that her husband was dead. Appellant replied that her husband had left home the night before and had not returned.

Detective Estes also testified that he asked appellant whether he could search her residence and she signed a consent to search form and followed him to her home. Upon arriving at the Busby house, Estes saw Terry Lewis and Dennis Cross and he questioned both. Estes then entered the residence and observed what appeared to be blood stains and tissue fragments on the walls and curtains of the master bedroom. Next he advised appellant of her Miranda rights and conducted a thorough search of the house.

Detective Ron Diegan of the Mobile County Sheriff’s Department testified that after appellant was placed under arrest, he observed her go into the bathroom and push an object under some towels in a linen closet. At that point Diegan entered the room and retrieved a black pouch containing $14,000 from beneath the towels. Following a conversation with Dennis Cross, Detective Diegan took underwater divers to an area near Brown’s Bridge in Mississippi and recovered a Marlin 30-30 lever action rifle.

Kenneth Ladner, appellant’s son and the deceased’s stepson, testified that on several occasions prior to Houston Busby’s death, he had heard his mother discuss paying to have Busby killed. Ladner said that the discussions took place in the presence of Terry Lewis and Dennis Cross and occurred after his mother had been beaten by his stepfather. Ladner stated that on May 13, 1980, Terry Lewis borrowed his rifle. He identified the rifle recovered by Detective Diegan as his gun. Ladner testified that when he loaned the gun to Terry Lewis he had an idea that Lewis was going to kill Houston Busby.

When Ladner returned home after midnight on March 14, 1980, he did not see Houston Busby, but he found his mother, Tonya Busby, Terry Lewis and Dennis Cross cleaning up bloody bedding in the master bedroom. Appellant told Ladner to watch from the window to see if anyone was coming. According to Ladner, the appellant instructed the others to put bricks into garbage bags with the blood-stained bedding. Ladner said that he, Cross and Lewis then drove to a bridge near the Mississippi State line and threw the garbage bags and rifle into the water.

On cross-examination, Ladner said that he did not take his mother seriously when she mentioned having her husband killed and he did not think Lewis or Cross believed she was serious either. He admitted that he hated and feared his stepfather, whom he described as six feet, three or four inches tall and weighing 230 pounds, because Busby had beaten him before. Lad-ner said that his mother had always carried large sums of money and it was not unusual for her to have $14,000 in the black, pouch.

Lynn Busby, appellant’s former daughter-in-law, testified that about six weeks prior to Houston Busby’s death appellant told her that she had talked with a man about having her husband “taken care of.” Later, on the night before the murder, appellant told Ms. Busby that if Houston “laid a hand on her” it would be “the last chance he would have.” According to the witness, appellant stated that there was a price for having her husband killed and she would be willing to pay it. On cross-examination, Ms. Busby acknowledged that she had seen appellant bruised and swollen on several occasions. She also stated that appellant and Houston Busby were in the habit of carrying large sums of cash and she had previously seen appellant with a black pouch of money.

Over appellant’s objection, the State then called Dennis Cross, who refused to answer, based on the Fifth Amendment, any questions other than his name and age. The State rested its case and the defendant’s motion to exclude was denied.

The defense called Donna Busby, appellant’s thirteen-year-old daughter. Miss Busby stated that at the time of her father’s death she was dating Dennis Cross. On the afternoon of his death Houston Busby and his stepdaughter Tonya had a disagreement during which Houston called Tonya a “whore.” The deceased also cursed his wife, the appellant. Donna testified that during the afternoon and evening both Tonya Busby and Terry Lewis were angry at the deceased. After dinner Donna Busby had a conversation with Dennis Cross during which she learned of a plan to kill Houston Busby. Donna Busby then went to bed and did not awake until 6:15 the next morning. She learned from Dennis Cross at that time that Houston Busby had been killed. She said that she hated her father and was glad he was dead because he had abused her mother, brother and sister for so long. She stated that her parents had kept large amounts of cash in a black money pouch for as long as she could remember.

Tonya Busby, the deceased’s fourteen-year-old stepdaughter, testified that she was engaged to Terry Lewis. On the day of Houston Busby’s murder she and her stepfather had an altercation and he called her a “whore” within the hearing of Terry Lewis. Lewis then had a conversation with Dennis Cross after which he told Tonya, “It is going to happen tonight.” Tonya stated that Lewis had threatened to kill Houston Busby on prior occasions when he learned that Busby had abused her, and she did not believe he was going to kill her stepfather that night. Miss Busby stated that Houston had beaten her and tried to rape her and she was glad he was dead.

On the night of the murder Tonya went to bed at 10:00 P.M., but woke up around midnight when she heard what sounded like a truck outside the house. She walked out of her bedroom and saw the appellant, her mother, and a bloody mess in the master bedroom. She did not see her stepfather. Her mother told her to start cleaning up and she complied. Tonya testified that Ladner, Cross and Lewis left the house and she and her mother then went back to bed.

The defense called two character witnesses who testified to the appellant’s good reputation for truthfulness and peacefulness. One recalled that he had seen the appellant come to work with bruises and black eyes on prior occasions and he stated that it was not unusual to see her with large sums of money in a black bag.

Jerry Merit testified that he lived with the Busby’s for five years. During that time he saw the deceased abuse the appellant and her children and he himself had also been beaten by the deceased.

Marie Busby testified in her own behalf that she had lived with Houston Busby for fourteen years and they had one child, Donna. Her husband physically abused her at least three times a week and threatened to kill her if she ever left him. She stated that she had never made an offer of money to anyone to have her husband killed. She admitted that, after a beating, she may have said she wished he were dead, or she would give $10,000 to have him killed, but she did not intend for anyone to take her seriously.

The appellant testified that on the night of her husband’s death she cleaned up in the kitchen and her husband retired for the evening. Then she went to take a shower and while she was in the bathroom she heard what sounded like a gunshot. She put on her robe and started out of the bathroom when Terry Lewis appeared at the door with a gun in his hand and said “You don’t want to come out now.” She was scared and she stayed in the bathroom crying until Lewis returned and told her to come out. Lewis then informed her that Busby was dead.

Appellant stated that she was afraid her daughter Tonya had helped Lewis kill Busby and all of her (appellant’s) further actions that night and the following day were done in an effort to protect her daughter. Appellant admitted cleaning up the bedroom but denied planning to have her husband killed. She denied telling Lynn Busby about a plan to pay for her husband’s murder. She stated that she tried to hide the black money pouch before being taken to headquarters with the officers because she did not want to take that much money to the jail with her. At the conclusion of appellant’s testimony, the defense rested.

I

Appellant contends that the State’s evidence proved, if anything, only the capital offense of murder for hire, and that the jury’s failure to convict her on that charge should have resulted in an acquittal. She claims that there was no evidence of non-capital murder.

In our judgment, the evidence, though conflicting and circumstantial, was sufficient to support appellant’s conviction for the lesser offense of murder on the theory of procuring or aiding and abetting as outlined in § 13A-2-23, Code of Alabama 1975. That section provides, in pertinent part, the following:

“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“(1) He procures, induces or causes such other person to commit the offense; or
“(2) He aids or abets such other person in committing the offense. . . . ”

The jury may have chosen to disbelieve the evidence that appellant actually offered money to Lewis and Cross for the murder of her husband, but concluded instead that she “proeure[d], induce[d] or cause[d],” by suggestion or other non-pecuniary means, the two boys to commit the crime. See McMahan v. State, 168 Ala. 70, 53 So. 89 (1910).

Appellant admitted that she hated her husband and wished him dead. She was present in the house when he was shot and she helped conceal the evidence of his murder. From these facts, the jury could reasonably have inferred that she participated in planning the crime and was ready to render aid should it become necessary. Appellant would thus be guilty of murder on the theory of aiding or abetting. See Fuller v. State, 43 Ala.App. 632, 198 So.2d 625 (1966); White v. State, 42 Ala.App. 249, 160 So.2d 496 (1964). See also Walls v. State, Ala.Cr.App., 378 So.2d 1193 (1979). We therefore find that the evidence fully warranted the verdict of the jury.

II

Appellant points out that the trial court explained complicity liability three times during its oral charge; she claims that the charge “unduly emphasized the complicity aspect of the State’s case.”

The statute under which appellant was indicted provided that the death penalty be imposed for the following:

“Murder in the first degree when the killing was done for a pecuniary or other valuable consideration or pursuant to a contract for hire.”

Ala.Code § 13A-5-31(a)(7) (1975) (repealed by Ala. Act No. 81-178, § 20 (July 1, 1981)).

The record reflects that the trial judge explained all the elements (including complicity) of murder in the first degree as it related to the capital offense contained in § 13A-5-31(a)(7), supra. The court also explained all the elements (including complicity) of the lesser offenses of murder and manslaughter.

In our judgment, the court’s charge did not unduly focus on complicity. The charge, defining three separate offenses with sometimes overlapping elements, was necessarily repetitive. However, the repetition extended to all elements and did not unduly emphasize any particular aspect. We find no error in this regard.

III

Appellant insists that the trial court erred by denying her motion for a continuance.

Appellant’s trial was originally set for January 5, 1981. On October 29, 1980, she filed a motion to produce; a hearing on the motion was set for December 10,1980. The hearing was continued; the record does not reveal the reason for the continuance but there is some indication that none of the parties objected to postponing the matter. The motion to produce was heard and granted in part on January 5,1981. Appellant was tried the following day, January 6.

Appellant claims that since the prosecution did not fully comply with the order to produce until 5:00 P.M., on the day before trial, and some of the material disclosed by the State was of a surprising nature, she did not have enough time to prepare her defense. She also claims that a continuance should have been granted because the jurors had been exposed to pre-trial publicity.

A trial court has wide discretion in deciding whether to grant a continuance, and its exercise of discretion will not be reversed absent clear abuse. Watson v. State, Ala.Cr.App., 389 So.2d 961 (1980).

In the present case the record reflects that trial counsel had represented appellant at least as early as September 3, 1980, when Mr. Hughes appeared with her at arraignment. The record also reflects that appellant at least acquiesced in the postponement of the motion hearing set for December 10, and did not seek another setting for the matter prior to January 5.

Newspaper or other publicity does not, per se, constitute grounds for a continuance. Rogers v. State, Ala.Cr.App., 365 So.2d 322, 334 (1978). Each prospective jur- or in appellant’s case was questioned regarding the effect of publicity, and appellant did not carry the burden of showing that the publicity had caused a prejudicial influence. See Williamson v. State, Ala.Cr.App., 370 So.2d 1054, affirmed, Ala., 370 So.2d 1066 (1978), vacated, 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1132 (1979).

Under these circumstances, we find no abuse of discretion in the denial of the motion for continuance filed January 5.

IV

Appellant argues that the trial court erred by allowing the State to call Dennis Cross, an alleged accomplice and co-indictee with appellant, as a witness and to force Cross to invoke his fifth amendment privilege in the presence of the jury.

Prior to Cross’ taking the witness stand, the district attorney had been informed by Cross’ attorney that the witness intended to assert his privilege not to testify, and all parties (the State, appellant’s counsel, and Cross’ attorney) had informed the trial court of this fact in chambers. Appellant’s counsel objected to Cross’ being called as a witness before the jury and requested that the State question Cross in camera. The trial court denied the request for in camera interrogation of Cross and granted appellant a standing objection to the fact of Cross’ being called as a witness in the presence of the jury. Dennis Cross then took the stand, testified to his name and age and the fact that he was presently under indictment for murder, but refused to answer the following questions propounded by the district attorney:

“Q. Does that charge of murder stem from the homicide of Houston E. Busby?
“A. I refuse to answer.
“Q. Do you know a woman by the name of Marie Busby?
“A. I refuse to answer.
“Q. Did you live in the home of Houston E. Busby during the period ... approximate period of January 1, 1980 to May 1, 1980?
“A. I refuse to answer.
“Q. On May the 14th of 1980, were you employed at the Busby sand and gravel pit in the Theodore area?
“A. I refuse . ..
“Q. Have you ever been offered money to either murder Houston Busby yourself, or help someone else murder Houston Busby?
“A. I refuse to answer.
“Q. Do you know a man by the name of Terry Lewis?
“A. I refuse to answer.
“Q. Have you ever seen this weapon?
“A. I refuse to answer.
“Q. Where were you at approximately five o’clock on the afternoon of May 13, 1980?
“A. I refuse to answer.
“Q. Where were you at approximately 10, 10:30 P.M. on the night of May 13, 1980?
“A. I refuse to answer.
“Q. During the early morning hours of May 14, 1980, did you have occasion to ride in a pickup truck to an area west of the Mobile Airport?
“A. I refuse to answer.
“MR. HUGHES: Your Honor, if I might interpose an objection. It is clear that this man is not going to answer anybody’s question, period. He has taken the Fifth Amendment. Mr. Galanos is using this for an opportunity to run through . . .
“THE COURT: Well, I would want you to make a motion to the Court. I wouldn’t want you to argue the case, Mr. Hughes. What is your motion to the Court?
“MR. HUGHES: I move Court for a mistrial.
“THE COURT: I deny your motion at this point.
“Q. Mr. Cross, are you going to refuse to answer any additional question that I might ask you?
“A. Yes, sir.
“(Witness excused).”

Appellant contends that the State’s questioning Cross when it knew beforehand that he would invoke the privilege against self-incrimination was an impermissible attempt to bolster its case against her by prejudicial inference rather than by probative fact.

In Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), the United States Supreme Court addressed this issue and concluded that it is not always reversible error for the prosecution to call a witness whom it has reason to believe will refuse to testify based upon the Fifth Amendment. Each case must be examined on its own merits to determine whether, in light of all the surrounding circumstances, reversible error has occurred. In making this determination, the Court approved the test set out by lower federal courts using the following criteria:

“First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. This seems to have been one of the principal reasons underlying the finding of reversible error in United States v. Maloney, [262 F.2d 535 (2d Cir. 1959) ]. In that case, the prosecution admitted knowing that two of its key witnesses could validly invoke the privilege against self-incrimination and intended to do so. The prosecutor nevertheless called and questioned them. The court also found that the Government’s closing argument attempted to make use of the adverse inferences from their refusals to testify. See also United States v. Tucker, 3 Cir., 267 F.2d 212.
“A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant. This theory seems also to have been present to some extent in the Maloney decision, where the court noted that the challenged inferences were the only corroboration for dubious and interested testimony by the Government’s chief witness. 262 F.2d, at 536-537. On the other hand, courts have failed to find reversible error when such episodes were ‘no more than minor lapses through a long trial.’ United States v. Hiss, 185 F.2d 822, 832 (C.A. 2d Cir.). See also United States v. AmadIo, 215 F.2d 605, 614 (C.A. 7th Cir.). And even when the objectionable inferences might have been found prejudicial, it has been held that instructions to the jury to disregard them sufficiently cured the error.”

Applying these factors to the case before us, we do not find, first, that the prosecution made “a conscious and flagrant attempt to build its case out of inferences” arising from Dennis Cross’ refusal to testify. On the contrary, any inferences springing from Cross’ refusal to answer had already been established through the testimony of other witnesses. The most negative inference about the appellant no doubt arose from the witness’ refusal to answer the following question: “Have you ever been offered money to either murder Houston Busby yourself, or help someone else murder Houston Busby?” Earlier, however, both Kenneth Ladner and Lynn Busby had testified that appellant referred to paying for the murder of her husband.

Thus, while Cross’ failure to answer the State’s question may have implicated the appellant, the effect of the implication was merely cumulative. It did not add “critical weight” to the prosecution’s case nor was it the only source of corroboration for testimony by other State’s witnesses. Furthermore, the district attorney’s closing argument did not capitalize on, or even mention the inferences to be drawn from Cross’ invoking his privilege against self-incrimination.

It is our judgment, therefore, that the innuendoes to be derived from the questions asked of Cross were “no more than minor lapses through a long trial.” Namet, supra at 187, 83 S.Ct. at 1155 (quoting United States v. Hiss, 185 F.2d 822, 832 (2d Cir.1950)). See also Annot., 86 A.L.R.2d 1443 (1962). They supported no element of the State’s case that had not already been amply established through previous testimony.

We note that this case does not involve the same situation present in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). There, when a co-defendant refused to testify based on his privilege against self-incrimination, the State questioned him verbatim from his own out-of-court confession which implicated the defendant. The court reversed on the ground that the defendant had been denied his constitutional right of confrontation.

In contrast, the Supreme Court emphasized that the Namet case presented “no constitutional issues of any kind.... all that this case involves, in short, is a claim of evidentiary trial error.” 373 U.S. at 185, 83 S.Ct. at 1154. Thus, the defendant in Douglas was denied a constitutional right because he was unable to cross-examine the actual content of a confession paraded before the jury in the guise of questions by the district attorney.

Here, appellant was not denied any constitutional guarantee. While she may have been prejudiced by the inferences arising from Cross’ failure to answer the State’s questions, that prejudice was cumulative in view of other evidence. Thus, as in Namet, this case turns on a question of evidence only.

We do not believe, under all the circumstances presented here, that the trial judge committed reversible error by allowing the prosecution to question Cross within the presence of the jury.

V

Appellant maintains that the court erroneously refused her written requested charge number eight which stated, in pertinent part, “The assertions of counsel are not evidence.”

The refusal of this charge is not always error; unless the prosecuting attorney has made improper argument, the trial court is not required to instruct the jury that the assertions of counsel are not evidence. Lamar v. State, Ala., 356 So.2d 680 (1977).

Immediately before both sides began their summations, the court stated the following to the jury:

“It is very important, and I have told you earlier that the statements by the attorneys and opening statements, and then their closing summations is not evidence, but what they say may be very helpful in going through the evidence, and may enable you to put certain factors together and may be of tremendous benefit to you, but the law tells me that you cannot consider that as evidence. The evidence being either physical, documentary or testimony of the witnesses that you have heard.”

The refusal of a written requested charge is not error if the subject matter is fully and substantially covered in the court’s oral charge. Allred v. State, Ala.Cr.App., 390 So.2d 1109, cert. denied, Ala. 390 So.2d 1114 (1980); Ala.Code § 12-16-13 (1975). Although the foregoing admonition to the jury was not contained in the court’s final charge, in our judgment the cautionary instruction, placed as it was immediately prior to closing arguments, effectively explained to the jury what they could and could not consider as evidence in the case. For this reason, we find no error in the refusal of appellant’s requested charge number eight.

VI

Appellant also asserts that the refusal of the following requested charge was error.

“I charge you, members of the jury, that if you have a reasonable doubt of the defendant’s guilt growing out of the evidence of any part of it, you must acquit her.”

Refusal of the above charge is not error if the matter is substantially covered in the court’s oral charge. Carpenter v. State, Ala.Cr.App., 400 So.2d 417, cert. denied, Ala., 400 So.2d 427 (1981); Pride v. State, Ala.Cr.App., 392 So.2d 1215 (1980), cert. quashed, Ala., 392 So.2d 1219 (1981); Fitch v. State, Ala.Cr.App., 372 So.2d 1328 (1979).

We have examined the entire oral charge and we note that the court painstakingly covered every aspect of the law regarding reasonable doubt, and that the matter complained of was specifically covered by the following instruction:

“You may have reached a reasonable doubt by virtue of some portion of the evidence, if you have considered all of the evidence.”

The refusal of the charge was not error. Bates v. State, Ala.Cr.App., 405 So.2d 1334, cert. denied, Ala., 405 So.2d 1339 (1981).

We have searched the record for error prejudicial to appellant and have found none. The judgment and conviction by the Mobile Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Willie Bernard COLLINS v. STATE.
    1 Div. 294.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Rehearing Denied March 2, 1982.
    Certiorari Denied, April 23, 1982 Alabama Supreme Court 81—189.

      G. Wayne Ashbee, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of Ernest Hamilton. Sentence was life imprisonment.

The only issue raised on appeal is the sufficiency of the evidence to support the verdict of the jury. We need not detail the evidence against the defendant for the basis of the alleged insufficiency is stated in his motion to exclude.

“MR. KNIZLEY (Defense Counsel): Judge, at this time the defense would move to exclude all the State’s evidence on the grounds that the State has failed to show a prima facie case — the only— prima facie case against my Defendant. The only thing that has made any reference to my Defendant in this crime is the testimony of a individual who is certainly questionable and was certainly stale testimony, it came over a week after this incident happened (that the witness went to the police with his information).”

The State’s entire case hinged on the testimony of John Lee Nicholson. He testified that the defendant told him he was going to “mess up” the deceased who had “snitched” on the defendant for stealing some oil. The day after the murder Nicholson told the defendant:

“I told him he ain’t had to kill him, that he could of shot him in his leg or anything. And he (defendant) said he wasn’t intent to kill him, all he intent to do was shoot him in the leg or something, but it just got up and killed him.”

The defendant argues that Nicholson was a “dubious” witness and not worthy of belief because his testimony at trial differed from that given at the preliminary hearing.

It is not within the province of this Court to hold that a jury should have given no credence to the testimony of a particular witness. Davis v. State, 29 Ala.App. 421, 198 So. 153, cert. denied, 240 Ala. 160, 198 So. 155 (1940). Whether the testimony of a prosecution witness was inconsistent or unclear were matters for consideration only by the jury and not this Court. Orforda v. State, 339 So.2d 1038 (Ala.Cr.App.), cert. denied, 339 So.2d 1042 (Ala.1976). In considering the sufficiency or insufficiency of the evidence to support the verdict, this Court cannot test the credibility of the witnesses. Walker v. United States, 301 F.2d 94 (5th Cir. 1962). This Court can neither pass judgment on the possible truthfulness or falsity of testimony, McBryar v. State, 368 So.2d 568 (Ala.Cr.App.), cert. denied, Ex parte McBryar, 368 So.2d 575 (Ala.1979); Fagan v. State, 35 Ala.App. 13, 44 So.2d 634, cert. denied, 253 Ala. 444, 44 So.2d 638 (1950), nor on the credibility of witnesses. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979). The question of the credibility of witnesses is for the jury and its finding is conclusive on appeal. Reeves v. State, 186 Ala. 14, 65 So. 160 (1914); Miles v. State, 343 So.2d 801 (Ala.Cr.App.), cert. denied, Ex parte Miles, 343 So.2d 806 (Ala.1977). When the jury has passed on the credibility of evidence tending to establish the defendant’s guilt, this Court cannot disturb its finding. Painter v. State, 24 Ala.App. 242, 134 So. 29, cert. denied, 222 Ala. 688, 134 So. 30 (1931).

A search of the record discloses no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Robert Charles McCOWAN v. STATE of Alabama.
    6 Div. 710.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Rehearing Denied March 2, 1982.
    Certiorari Denied, April 23, 1982 Alabama Supreme Court 81-500.
    Richard L. Taylor, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Peggy Schmitz, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Robert Charles McCowan, the appellant, was convicted of the “attempted murder” of his former wife, Margaret McCowan, and sentenced to fifteen years’ imprisonment.

Late one night, after a two-hour conversation with her about “getting back together,” the appellant grabbed his revolver, fired two or three shots at Ms. McCowan’s head at point-blank range, and, as she pulled away from him, fired several more shots until he ran out of bullets. Ms. McCowan survived this attack, but did receive very serious head injuries.

During the weeks leading up to the shooting, the appellant made numerous attempts to talk Ms. McCowan into “getting back together.” Two days before the shooting, he threatened to kill her and himself if they did not “get back together” because he “could not live without her.” On the night of the shooting he had seen her “out” with another man when he thought she was supposed to be working. This was apparently what prompted him to set up the late night meeting which ended with the alleged “attempted murder.”

Appellant’s defenses at trial were temporary insanity (a so-called “isolated explosive disorder”) and voluntary renunciation. The jury obviously did not believe that appellant was insane at the time of the shooting, even though he produced an expert witness who testified that tests made on the appellant two weeks after the incident indicated that he was suffering from an “isolated explosive disorder” which might have prevented him from forming the “requisite intent” for murder. Appellant claimed “voluntary renunciation” of the “attempted murder” because after he shot Ms. McCowan, he immediately drove to the local police station and “turned himself in.” The trial court, however, refused to charge the jury on “voluntary renunciation” as requested by the appellant.

Appellant does not challenge the sufficiency of the evidence on this appeal.

I

Appellant, initially, challenges the “one for one” strike procedure in Jefferson County as unconstitutional. This issue has been overwhelmingly resolved against the appellant in previous decisions of this court as noted in Tucker v. State, 383 So.2d 579 (Ala.Cr.App.), cert. denied, 383 So.2d 586 (Ala.1980), and authorities therein cited.

II

A

Appellant also insists that the trial court erred in sustaining the prosecution’s objection to the introduction into evidence of appellant’s Divorce Decree. The trial court (R. 32) sustained the objection because at the time of appellant’s request to introduce it, there had been no showing of relevancy. This action appears to have been proper, and in any event was certainly within the discretion of the trial court. There was no subsequent showing of relevancy, and further, no additional request to introduce this document.

B

The trial court, likewise, did not abuse its discretion in sustaining the prosecution’s objections to questions asked by appellant of witness Franklin Tate, a Birmingham Magistrate who counseled appellant after Ms. McCowan reported his threat on her life (two days before the shooting.) One series of questions sought to elicit “hearsay” testimony from Mr. Tate as to what appellant said to him with reference to appellant’s feelings toward Ms. McCowan (R. 113-116). The trial court allowed Mr. Tate to testify as to the nature of the counseling session but would not allow the “hearsay” which was solicited only to prove that appellant was not hostile toward Ms. McCowan the day before the shooting. These statements were not part of the res gestae and were, therefore, inadmissible. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Evans v. State, 338 So.2d 1033 (Ala.Cr.App.1976), cert. denied, 348 So.2d 784 (Ala.1977).

C

The other questions to which objections were sustained by the trial court requested Mr. Tate to state “how appellant’s voice sounded” during the session (R. 114). These questions were asked in an attempt to demonstrate appellant’s mental state at that time. Since they were of questionable relevancy and called for conclusions from Mr. Tate (a non-expert), objections to them were properly sustained. Evans v. State, supra. Moreover, the appellant and Mr. Tate had already testified as to the substance of their conversation. Therefore, the trial court did not abuse its discretion in sustaining the prosecution’s timely objections.

III

Appellant further asserts that the trial court erred in sustaining two questions to Dr. Holt, the appellant’s expert witness, with reference the appellant’s ability to form the requisite intent for murder. The basis of appellant’s assertion of error is misleading, however, because the trial court did not sustain the objection to the first question and sustained the objection to the second question with the provision that Dr. Holt could not testify with reference “legal intent” but could testify with reference his definition of “intent.” In other words, the trial court would not allow Dr. Holt to make the legal conclusion that the appellant could not have formed the requisite intent for murder. However, after soliciting Dr. Holt’s definition of intent, appellant was allowed to obtain a statement from Dr. Holt that, hypothetically, one suffering from an “isolated explosive disorder” would not be able to “knowingly and intentionally appreciate what he was doing.” (R. 133). There was no error during this line of questioning. Dial v. State, 387 So.2d 879 (Ala.1980), rev’g, 387 So.2d 871 (Ala.Cr.App.1979); and cases cited therein.

IV

Finally, appellant contends that the trial court erred in refusing 17 of his written requested jury charges. However, because appellant failed to object or except to the refusal of any of these charges in the trial court, he did not preserve these refusals for our review. Section 12-16-13, Code of Alabama, 1975; Allen v. State, - So.2d - (Ala.Cr.App.1981).

Moreover, assuming the refusals were properly objected to, none constituted error by the trial court. Charges 18, 23, 31 and 33 concerned “reasonable doubt” which was adequately covered in the trial court’s oral charge. Charges 12 and 16 were “burden of proof” charges which were, likewise, unnecessary in light of the trial court’s charges on this subject. Charges 27 and 28 were arguably incorrect statements of the law concerning mental disease, which was adequately covered by the trial court. Charges 4, 5, 6, 7,8, 9,10 and 26 generally dealt with issues which were not applicable to the appellant’s case. Finally, charge 20 dealt with the issue of “voluntary renunciation” with reference an “attempt” crime. In spite of appellant’s insistences to the contrary, there was no evidence that appellant “voluntarily renounced” his attempt. The evidence appellant cited as proof of renunciation was the fact that after appellant ran out of bullets, he drove to the police station and “turned himself in.” This fact might have indicated an abandonment of appellant’s criminal intent after the incident but such abandonment could not have excused appellant for the alleged attempt offense which he had already committed. See § 13A-4-2(c), Code of Alabama, 1975. Therefore, this charge was properly refused.

There is no error in this record. The judgment is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice. BOYD, Justice,

text:
    Aubrey Dennis ADAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 56134.
    Supreme Court of Florida.
    Feb. 11, 1982.
    Rehearing Denied May 5, 1982.

      Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
    Michael M. Corin, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
   ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and sentence of death.

The victim, eight years of age, left school on January 23, 1978, at about 2:30 P.M. Her body was found on March 15,1978, in a wooded area near Ocala, Florida, by three men who were gopher hunting. The defendant’s involvement in the disappearance and death of the victim was shown through circumstantial evidence and by statements, both written and oral, made by him to officers of the Ocala police department.

In his written statements, the defendant stated that he saw the victim walking home from school about a block and a half from her house and offered to give her a ride home. She got in the car and defendant drove away with her. The defendant remembered “being stopped somewhere and she was screaming and I put my hand over her mouth”, and she quit breathing. In his oral statement the defendant said he had removed the clothes from the victim and used some cord which he carried in his car to tie her up so that she would fit into plastic bags. He also said that he tried to have sexual relations with her, but couldn’t bring himself to do it. He denied having sexual relations with her.

Two expert witnesses testified that the cause of death was strangulation, but one of the experts stated that the child could have died from manual suffocation. One expert rendered an opinion that the victim’s wrists had been taped prior to death. The defendant, in his oral statement, said that he had removed the victim’s clothes, but there was an indication from this statement that the clothes were removed after she quit breathing. However, the state argues that as a matter of logic, the clothes were removed prior to the time the wrists were bound, and, at that time, the victim was still alive.

The jury found the defendant guilty of murder in the first degree, and, after hearing evidence in the penalty phase of the trial, recommended that the defendant be sentenced to death.

The defendant argues that the trial court committed reversible error in failing to instruct the jury on the elements of the underlying felonies of sexual battery and kidnapping. The instructions of the court contained the following:

The killing of a human being in committing, or in attempting to commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping is murder in the first degree, even though there is no premeditated design or intent to kill.
If a person kills another while he is trying to do or commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping, or while escaping from the immediate scene of such crime the killing is in the perpetration of or in the attempt to perpetrate such arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping and is murder in the first degree.

Defendant correctly points out that the instruction included references to two crimes which do not exist, to wit: rape and an abominable and detestable crime against nature. Defendant argues that it is an indispensable requisite to a fair trial to instruct the jury on all essential elements of a crime, but the jury was not instructed on the essential elements of sexual battery and kidnapping, the only possible applicable felonies with which the state could have sought a conviction for felony murder. He relies on Robles v. State, 188 So.2d 789 (Fla.1966).

The indictment alleged that defendant murdered the victim, unlawfully, from a premeditated design by strangling. Under this charge, the state could prosecute under both a theory of premeditation and a theory of felony-murder. Barton v. State, 193 So.2d 618 (Fla.2d DCA 1966), cert. denied, 201 So.2d 459 (1967).

The record shows that defendant had visited in the home of the victim and she voluntarily accompanied defendant during the fatal ride. The evidence is sufficient to sustain a finding that the death was caused by strangulation, not by the defendant placing his hand over the mouth of the victim so as to keep her from screaming or yelling. Her hands were tied and taped behind her head, and a rope was around her neck. “Premeditation, like other factual circumstances, may be established by circumstantial evidence.” Larry v. State, 104 So.2d 352, 354 (Fla.1958).

The final argument of the state was geared toward the single question of whether or not the evidence was sufficient to show a premeditated design on the part of defendant to murder the victim.

In Knight v. State of Florida, 394 So.2d 997, 1002 (Fla.1981), we considered that question:

The first issue concerns the trial judge’s failure to instruct the jury on the elements of the underlying felony. The petitioner contends that our decision in Robles v. State, 188 So.2d 789 (Fla.1966), is determinative and that a trial court’s failure to give an adequate instruction on the underlying felony is a fatal error even when such instruction has not been requested by the defendant. Subsequent to our opinion on the initial appeal in this cause, we decided State v. Jones, 377 So.2d 1163 (Fla.1979), which reaffirmed our decision in Robles v. State.
The record in the instant case reflects that the trial judge gave the general definitive instructions for homicide but did not specifically instruct upon the elements of the underlying felony of kidnapping or robbery. There was no request or objection by petitioner’s trial counsel to this failure to give these instructions.
It is clear that in both Robles and Jones the primary charge was felony murder and the state in neither case contended the evidence was sufficient to establish premeditated murder. We expressly noted in Jones that there was no contention that there was sufficient evidence to establish premeditated murder. We conclude that where there is sufficient evidence of premeditation, the failure to give the underlying felony instruction, where it has not been requested, is not error which mandates a reversal absent a showing of prejudice. See Frazier v. State, 107 So.2d 16 (Fla.1958).
[T]he record in this cause, and in particular the final argument of counsel, demonstrates that the state, although it mentioned felony murder, strongly argued premeditated murder to the jury. The record reflects that there is not only sufficient but overwhelming evidence of premeditated murder. We find that under the circumstances of this case and our review of the record that neither Robles nor Jones applies, but Frazier does apply. We are satisfied beyond a reasonable doubt that the failure to give the instruction at issue was not prejudicial and did not contribute to the petitioner’s conviction. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

See also McKennon v. State, 403 So.2d 389 (Fla.1981).

Although an erroneous or uninvited felony murder instruction was given, the evidence of premeditation was sufficient to render the erroneous instruction harmless.

Of course, it may have been defendant’s counsel’s strategy to avoid, at all costs, any unnecessary reference to the underlying felonies committed by the defendant during the perpetration of the murder. Perhaps that explains his failure to make any objection to the instruction. Request for an instruction or an objection to a failure to give an instruction is a prerequisite to raising an alleged error on appeal. Alford v. State, 280 So.2d 479 (Fla. 3d DCA), cert. denied, 284 So.2d 218 (1973); Flagler v. State, 198 So.2d 313 (Fla.1967).

Defendant says that the trial court committed reversible error in admitting into evidence, over defendant’s objection, two photographs of the victim. One photograph in color, was taken at the scene where the body was discovered. The other photograph, apparently taken somewhere else, is of the body and shows the victim’s hands taped together with adhesive tape. The guidelines to be followed in determining the admissibility of photographic evidence were set forth by this Court in State v. Wright, 265 So.2d 361, 362 (Fla.1972), as follows:

[T]he current position of this Court is that allegedly gruesome and inflammatory photographs are admissible into evidence if relevant to any issue required to be proven in a case. Relevancy is to be determined in the normal manner, that is, without regard to any special characterization of the proffered evidence. Under this conception, the issues of “whether cumulative”, or “whether photographed away from the scene,” are routine issues basic to a determination of relevancy, and not issues arising from any “exceptional nature” of the proffered evidence.

If the photograph meets the guidelines set forth above, the fact that the evidence is gruesome and offensive does not bar the admissibility. Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). This is consistent with the reasoning in Mardorff v. State, 143 Fla. 64, 196 So. 625, 626 (1940), where the Court said:

Counsel contends that the pictures tended “to inflame the minds of the jury to. a state of passion” and to “prejudice them against” the defendant rendering the evidence inadmissible. That this proof was prejudicial to the defendant there can be no doubt, but, as was so aptly stated in Wharton’s Criminal Evidence, 11th Ed., Sec. 773, p. 1321:
“Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible.”
In Lindberg v. State, 134 Fla. 786, 184 So. 662, we quoted the above authority and approved exhibition to the jury of a picture showing the body of the murder victim.

The colored photograph was relevant to show the crime scene and premeditation. The other photograph, showing the tying of the hands and the tape on the victim’s hands, was relevant to. show premeditation and the circumstances of death.

At trial the state sought to introduce two other photographs which were excluded by the trial judge upon the objection of the defendant. The trial judge exercised reasoned judgment and prohibited the introduction of duplicitous photographs. See Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). The trial court did not commit error in admitting these photographs into evidence.

We now turn to the propriety of the death sentence. The trial court found three aggravating circumstances: 1) that the capital felony was committed while defendant was engaged in or attempting to engage in, or in the flight after committing or attempting to commit rape and/or kidnapping; 2) that the capital felony was committed for the purpose of avoiding or preventing a lawful arrest; 3) that the capital felony was especially heinous, atrocious, or cruel.

The trial judge found three mitigating circumstances: 1) that the defendant had no significant history of prior criminal activity; 2) that the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; 3) that the defendant’s age (20) was of significance.

The jury recommended death and the trial judge concurred in that recommendation.

In support of his finding of fact that the capital felony was committed while the defendant was engaged in or attempting to commit or flight after committing or attempting to commit a rape or kidnapping (Fla.Stat. § 921.141(5)(d)), the judge stated:

That the capital felony was committed while the Defendant was engaged in or attempting to engage in or in the flight after committing kidnapping, is proven beyond and to the exclusion of a reasonable doubt by Defendant Adams’ admission, States Exhibit # 49, in which he says:
After getting off from work as a prison guard at Lowell Prison, he went to check his mail at his old residence, which is approximately two blocks from the residence of the victim, Trisa Gail Thornley, age 8, and saw her walking home from school about one and a half blocks from her home. He knew the victim and offered to give her a ride home. She got into Defendant’s car and he started towards her home, then turned away towards the Pine Street Shopping Center; then out State Road 200 towards the Central Florida Community College. He remembered being stopped somewhere when she started screaming and he put his hand over her mouth and she stopped breathing.
The above fact of kidnapping is also supported by the testimony at the trial of the Defendant by police officers S. H. Stephenson, John E. Fluno and W. R. Fugitt regarding the written statements made by the Defendant and the oral statements concerning her death and her disappearance that he gave the three officers.
Kidnapping is also evidenced by the testimony of Trisa Gail Thornley’s third grade school teacher, Carolyn Andrews, who observed the victim leave school at approximately 2:20 P.M. on January 23, 1978, and by Trisa Gail Thornley’s aunt and uncle, Lawson and Theresa Hopper, and the victim’s sister, Tracy Thornley, who stated that the victim, Trisa Gail Thornley, did not return home from school that day as she usually did.
For additional support that 921.141(6) [sic] (d), Florida Statutes, is proved beyond and to the exclusion of a reasonable doubt, is the evidence proving that the capital felony was committed while the Defendant was engaged in or attempting to engage in or flight after committing rape is proven beyond and to the exclusion of a reasonable doubt by the testimony of Officer Stephenson who was present at the Defendant’s interview, who stated that Defendant Adams said that he thought he tried to but couldn’t do it, or couldn’t bring himself to do it, and that her body was found nude with her hands taped behind her back, such tape applied to the victim, by sworn testimony of pathologist, Doctor Gertrude Warner of Ocala, Florida, as being applied around the wrists while the victim, Trisa Gail Thornley, was still alive.

Defendant argues that these findings do not prove that the victim’s death occurred during or after the commission of a kidnapping. The state replies that the evidence is sufficient to show the crime of kidnapping was committed and cites Miller v. State, 233 So.2d 448 (Fla. 1st DCA 1970).

In Brown v. Wainwright, 392 So.2d 1327, 1331 (Fla.), cert. denied, - U.S. -, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981), we described our function in reviewing a death sentence:

This Court’s role after a death sentence has been imposed is “review,” a process qualitatively different from sentence “imposition.” It consists of two discrete functions. First, we determine if the jury and judge acted with procedural rectitude in applying section 921.141 and our case law. This type of review is illustrated in Elledge v. State, 346 So.2d 998 (Fla.1977), where we remanded for resen-tencing because the procedure was flawed — in that case a nonStatutory aggravating circumstance was considered. See also Brown v. State, 381 So.2d 690 (Fla.1980); Kampff v. State, 371 So.2d 1007 (Fla.1979).
The second aspect of our review process is to ensure relative proportionality among death sentences which have been approved statewide. After we have concluded that the judge and jury have acted with procedural regularity, we compare the case under review with all past capital cases to determine whether or not the punishment is too great. Proffitt v. Florida, 428 U.S. 242 [96 S.Ct. 2960, 49 L.Ed.2d 913] (1976); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943 [94 S.Ct. 1951, 40 L.Ed.2d 295] (1974). In those cases where we found death to be comparatively inappropriate, we have reduced the sentence to life imprisonment. See Malloy v. State, 382 So.2d 1190 (Fla.1979); Burch v. State, 343 So.2d 831 (Fla.1977); Jones v. State, 332 So.2d 615 (Fla.1976).
Neither of our sentence review functions, it will be noted, involves weighing or reevaluating the evidence adduced to establish aggravating and mitigating circumstances. Our sole concern on eviden-tiary matters is to determine whether there was sufficient competent evidence in the record from which the judge and jury could properly find the presence of appropriate aggravating or mitigating circumstances. If the findings of aggravating and mitigating circumstances are so supported, if the jury’s recommendation was not unreasonably rejected, and if the death sentence is not disproportionate to others properly sustainable under the statute, the trial court’s sentence must be sustained even though, had we been triers and weighers of fact, we might have reached a different result in an independent evaluation.

(Footnote omitted.) There appears to be sufficient competent evidence in the record from which the judge could properly find that the capital felony was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, a rape or kidnapping.

Defendant argues that there is no crime of rape in Florida and that the trial judge used a non-statutory aggravating factor in imposing the death sentence. The statute penalizing rape, section 794.01, Florida Statutes (1972), was repealed by chapter 74-121, section 1, Laws of Florida. Acts which would have constituted rape or attempted rape would constitute a sexual battery or attempt to commit sexual battery by virtue of section 794.011, Florida Statutes (1977). The word “rape” in section 921.141(5)(d) had not yet been changed to “sexual battery”. Due process requires only that the law give sufficient notice so that men may conform their conduct so as to avoid that which is forbidden. The act itself, rather than its nomenclature, constitutes the aggravating circumstances. The trial judge did not err in finding defendant’s acts constituted an aggravating factor.

Defendant next argues that the trial judge erred in finding that the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. § 921.-141(5)(e), Fla.Stat. The trial judge made the following finding of fact:

That the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody is proven beyond and to the exclusion of a reasonable doubt by the facts stated above proving kidnapping and rape by the additional fact that Trisa Gail Thornley was found dead on March 15, 1978, which prevented any testimony on her part concerning kidnapping and rape some seven weeks after her disappearance while walking home from school.

The record shows that the victim knew and could have identified defendant; that he encased the body in white plastic garbage bags and tied it with rope; that he disposed of the body in a desolate area; that he concealed his crime effectively for a period of time from January 23, 1978, to March 15, 1978.

In Riley v. State, 366 So.2d 19 (Fla.1978), the robbery victim, who knew and could identify the defendant, had been bound and gagged. He was then shot in the head after one of the perpetrators expressed a concern for subsequent identification. This Court concluded that the aggravating circumstance existed because the defendant had killed the victim to avoid identification and arrest. See also Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978); Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).

There was sufficient competent evidence in the record from which the judge could find that defendant committed this capital felony in an effort to avoid or prevent a lawful arrest.

Defendant also says that the trial court erred in finding that-the capital felony was especially heinous, atrocious, or cruel. The trial judge made the following finding of fact:

That the capital felony was especially heinous, atrocious or cruel is proven beyond and to the exclusion of a reasonable doubt by expert medical testimony that the autopsy, performed by Doctors Gertrude Warner and William Shutze, showed a bruise on one arm, inflicted prior to death, that the autopsy showed swelling in the hands induced by tight binding with tape prior to death, State Exhibit # 17, that the autopsy showed that the body was a nude body of an eight year old girl whose hands were tightly taped behind her back prior to death, which .showed that Trisa Gail Thornley had time to anticipate her murder and that the autopsy and photographs showed seven coils of rope with a circumference of nine and three-fourths inches around the neck of Trisa Gail Thornley as shown in evidence by State Exhibit # 16, and that the child’s body was placed in a plastic garbage bag and thrown in a wooded area some three miles from her home.

Defendant argues that this aggravating circumstance is devoid of factual and legal support. We disagree.

The fear and emotional strain preceding a victim’s almost instantaneous death may be considered as contributing to the heinous nature of the capital felony. Knight v. State, 338 So.2d 201 (Fla.1976). A homicide committed through strangulation has been held to be especially heinous, atrocious, and cruel. Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). From defendant’s statement we find that the victim was “screaming” prior to death. A frightened eight-year-old girl being strangled by an adult man should certainly be described as heinous, atrocious, and cruel. There was sufficient competent evidence in the record from which the trial judge could find the presence of this aggravating circumstance.

Although the trial judge found, as a mitigating factor, that the capital felony was committed while defendant was under the influence of extreme mental or emotional disturbance, the defendant says that there should be an independent determination and finding that at the time the crime was committed the defendant’s capacity to appreciate the criminality of his conduct or to conform it to the requirements of law was substantially impaired. The defendant says that his deteriorating marital situation and his wife’s apparently blatant infidelity with one of his friends led to his extreme mental or emotional disturbance and clearly hampered his capacity to appreciate the criminality of his conduct or to conform it to the requirements of law. There is little, or no, causal relationship between defendant’s marital problems and an eight-year-old little girl. There was no testimony that defendant had suffered from mental illness in the past. An expert witness testifying for the defense said that, in his opinion, the defendant knew the difference between right and wrong on the date of the commission of the offense. The trial court did not err in failing to find that the capacity of defendant to conform his conduct to requirements of law was substantially impaired as a result of his marital distress.

The findings of the trial judge were sufficient to show that the sentence of death resulted from reasoned judgment. This reasoned judgment comports with our consideration of other cases and the sentence of death was appropriate under the circumstances. There being no reversible error, the judgment and sentence of the trial judge are affirmed.

It is so ordered.

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

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

McDONALD, J., concurs as to conviction and dissents as to sentence.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in that part of the majority opinion affirming appellant’s conviction of murder in the first degree.

One of the principal functions of this Court in considering cases in which the death penalty has been ordered is to review the aggravating and mitigating circumstances to assure that similar punishment is given for similar crimes.

The trial judge found three mitigating circumstances: (1) that the defendant had no significant history of prior criminal activity; (2) that the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; (3) that the defendant’s age (20) was of significance.

In weighing the aggravating and mitigating circumstances of this case, and comparing it with prior similar crimes of violence, it is my opinion that the law requires this Court to order a reduction in the sentence to life imprisonment without eligibility for parole for twenty-five years.


author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Ronald J. HOFFER, Respondent.
    No. 60643.
    Supreme Court of Florida.
    April 1, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, Patricia J. Brown and John A. Boggs, Bar Counsels, Tampa, and Terry D. McKnight, Chairman, Sixth Judicial Circuit Grievance Committee “B”, Zephyrhills, of The Florida Bar, for complainant.
    Ronald J. Hoffer, Zephyrhills, in pro. per., for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Ronald J. Hoffer, member of The Florida Bar, is before us on petition for review of the report of the referee. The referee’s report and record have been filed with this Court pursuant to Fla.Bar Integr.Rule, article XI, Rule 11.06(9)(b). We have jurisdiction. Article V, Section 15, Florida Constitution.

The complaint of the Bar contained the following allegations:

1. Respondent, Ronald J. Hoffer, is and at all times hereinafter mentioned was a member of The Florida Bar subject to the jurisdiction and rules of the Supreme Court of Florida.
2. In or about October, 1978, respondent undertook the representation of Debra Moncrief Pitts in pursuing a modification of an order of dissolution of marriage.
3. On or about October, 1978, respondent filed a petition for modification of the dissolution order on behalf of his client.
4. A hearing on the petition was scheduled on or about January 12, 1979.
5. Respondent failed to appear at the hearing, did not notify the presiding judge that he would not appear, and did not notify his client he would not appear until his associate contacted his client’s husband at the judge’s chambers immediately prior to the scheduled hearing. As a result of respondent’s failure to appear or notify the judge that he would not appear or request a continuance the matter was dismissed.
6. Subsequently, respondent was discharged and his file was surrendered to his former client at her request, for handling by another attorney.
7. By reason of the foregoing, respondent has neglected a legal matter entrusted to him in violation of The Florida Bar Code of Professional Responsibility, Disciplinary Rule 6-101(A)(3); engaged in conduct prejudicial to the administration of justice in violation of Disciplinary Rule 1-102(A)(5); and engaged in conduct that adversely reflects on his fitness to practice law in violation of Disciplinary Rule 1-102(A)(6).

The referee found the facts to be as stated in the Bar’s complaint. He also found, contrary to respondent’s testimony, clear and convincing evidence that no agreement concerning respondent’s failure to appear had been reached between respondent and the other counsel in the modification matter. Finally, the referee found that respondent represented to his former client and her husband that his non-appearance was occasioned by the agreement when no such agreement had been reached.

The referee recommended that respondent be found guilty of violating Fla.Bar Code Prof.Resp. D.R. 1-102(A)(5); 1-102(A)(6) and 6-101(A)(3) as charged in the complaint. In addition, he found respondent guilty of violating D.R. 1-102(A)(3) after granting the Bar’s motion to conform its pleadings to the evidence.

As to discipline, the referee recommended that respondent be suspended from the practice of law in Florida for one year with proof of rehabilitation necessary for reinstatement; said suspension to run concurrently with respondent’s two year suspension already imposed by this court in The Florida Bar v. Hoffer, 383 So.2d 639 (Fla.1980).

The Florida Bar takes the position that the referee’s recommendation of discipline would amount to no discipline at all, and that the suspension should be consecutive to respondent’s current suspension.

The acts complained of in respondent’s previous disciplinary proceeding took place in 1975 and resulted in respondent’s initial suspension by this Court in 1980. 383 So.2d at 642. In the instant case, the acts took place in 1978 and the referee made his recommendation in 1981, so he was fully aware of respondent’s previous suspension and considered it in making his recommendation.

We also note that this case does not involve the misuse or commingling of trust funds as in The Florida Bar v. Bassett, 369 So.2d 583 (Fla.1979); The Florida Bar v. Duffy, 369 So.2d 344 (Fla.1979) and The Florida Bar v. Mattingly, 342 So.2d 508 (Fla.1977). No loss of money is involved.

We adopt the findings and recommendations of the referee and order that respondent be suspended from the practice of law for one year with proof of rehabilitation necessary for reinstatement, and further, that the suspension run concurrent with respondent’s two year suspension already imposed.

Costs of this matter in the amount of $577.60 and any other costs that may have been reasonably incurred by The Florida Bar as a result of this proceeding shall be assessed against the respondent.

It is so ordered.

ADKINS, Acting Chief Justice, BOYD, OVERTON and McDONALD, JJ., concur.

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

ALDERMAN, Justice,

concurring in part, dissenting in part.

I agree with the findings and recommendations of the referee that respondent be suspended from the practice of law for one year with proof of rehabilitation necessary for reinstatement. I also agree, however, with The Florida Bar that the referee’s recommendation to make the one-year suspension run concurrently with respondent’s prior two-year suspension is too lenient and, in effect, is no discipline at all. Respondent’s misconduct is cumulative. His discipline should likewise be cumulative.


author: ALDERMAN, Justice.

text:
    Howard BABB, Jr., Public Defender, Fifth Judicial Circuit, Petitioner, v. Honorable W. F. EDWARDS, Circuit Judge, Citrus County, Respondent.
    No. 60973.
    Supreme Court of Florida.
    April 1, 1982.

      Howard Babb, Jr., Public Defender, James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, and Christopher S. Quarles, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen. and Mark C. Men-ser, Asst. Atty. Gen., Daytona Beach, for respondent.
    Larry M. Haag, County Atty., Inverness, for Citrus County, amicus curiae.
   ALDERMAN, Justice.

The District Court of Appeal, Fifth District, has certified the following question as one of great public importance:

Whether or not two adverse defendants may be represented by assistant public defenders in the same circuit whose offices and facilities are sufficiently insulated from each other so as to assure that confidential information is not inadvertently exchanged.

Babb v. Edwards, 400 So.2d 1239 (Fla.5th DCA 1981). It has also certified that its affirmative response to this question conflicts with Turner v. State, 340 So.2d 132 (Fla.2d DCA 1976), and Roberts v. State, 345 So.2d 837 (Fla.3d DCA 1977). We disagree with the Fifth District’s response to the question and hold that where the public defender of a given circuit determines that the interests of indigent defendants are so adverse or hostile that they cannot all be represented by him or his assistant public defenders regardless of the location of their offices within the circuit without conflict of interest, the trial court shall, upon motion of the public defender, appoint other counsel as provided by statute.

In two unrelated cases, Babb, the public defender for the Fifth Judicial Circuit, pursuant to section 27.53(3), Florida Statutes (Supp.1980), certified to the trial court that his representation of a defendant conflicted with his representation of another defendant for whom he previously had been appointed by the court. He requested the court to appoint private counsel unaffiliated with his office. In each case, the trial court refused to appoint other counsel and held that no conflict would arise if the defendants were represented by assistant public defenders from separate counties within the circuit who would work independently of one another.

Babb then petitioned the Fifth District for a writ of prohibition and alleged that if one assistant public defender is unable to represent a defendant, all other assistant public defenders within that circuit were similarly disqualified under the theory that the public defender’s office constituted a “law firm.” The Fifth District denied the petition and held that where the practices of the attorneys are so separated that the interchange of confidential information can be avoided or where it is possible to create such a separation, there need be no relationship between them analogous to that of a law firm and there would be no inherent ethical bar to their representation of antagonistic interests.

In Turner v. State, the trial court denied a motion by the public defender’s office to be relieved as counsel for Turner because of a conflict of interest between Turner and one of his codefendants on the ground that separate attorneys within the public defender’s office could properly represent the codefendants. The Second District quashed the trial court’s order and held that the public defender’s office of a given circuit is a “firm” within the discipline of Canon 5, Florida Code of Professional Responsibility. The Third District in Roberts v. State, finding Turner to be controlling, quashed an order denying a motion to withdraw and held that the trial court departed from the essential requirements of law by refusing to permit an assistant public defender to withdraw as counsel for Roberts “where the State intended to rely on the testimony of another attorney from the same ‘firm,’ the public defender’s office, for the purpose of increasing the sentence.” 345 So.2d at 838-39.

Article V, section 18 of the Florida Constitution provides for a public defender in each judicial circuit who shall appoint assistant public defenders and who shall perform those duties prescribed by general law. In accordance with this provision and to address conflicts of interest arising within a public defender’s office, the Florida Legislature enacted section 27.53(3), Florida Statutes (Supp.1980). This section reads in pertinent part:

If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff because of conflict of interest, it shall be his duty to certify such fact to the court, and the court shall appoint one or more members of The Florida Bar, who are in no way affiliated with the public defender, to represent those accused.

The Fifth District interpreted this language as requiring the public defender, as a condition precedent to filing a motion to withdraw, not only to ascertain hostility or adversity between defendants represented by his office but also to show, after taking into account the possibility of protecting confidential information by separation of offices, facilities and personnel, that the representation of such defendants by different assistant public defenders cannot be done without conflict of interest. Additionally, the Fifth District requires the trial court to weigh those same factors before it rules on a motion to withdraw.

We do not agree that the legislature intended to place such a burden on either the public defender or the trial court. We find that the language in section 27.53(3) clearly and unambiguously requires the trial court to appoint other counsel not affiliated with the public defender’s office upon certification by the public defender that adverse defendants cannot be represented by him or his staff without conflict of interest. The statute does not require the consideration and weighing of those factors suggested by the district court and, more importantly, does not permit the appointment of other counsel affiliated with the public defender’s office once conflict is certified.

The legislature’s intent is made even clearer by the 1981 amendments to section 27.53(3). While this new language continues to place the burden of determining conflict on the public defender, it now specifically gives the trial court the option of appointing either private counsel not affiliated with the public defender’s office or a public defender from another circuit. The legislature intended that assistant public defenders within the same circuit, regardless of the location of their offices, not be appointed to represent adverse defendants once the public defender of that circuit has determined conflict and has moved the court to appoint other counsel. Since section 27.53(3) is clear and unambiguous, judicial interpretation is not appropriate to displace its expressed intent. Heredia v. Allstate Insurance Company, 358 So.2d 1353 (Fla.1978).

Accordingly, in response to the certified question, we hold that under the provisions of section 27.53(3), two adverse defendants should not be represented by assistant public defenders in the same circuit once the public defender has determined that to do so would be a conflict of interest and on that ground has moved the trial court to appoint other counsel. The decision of the District Court of Appeal, Fifth District, is therefore quashed.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, McDonald and EHRLICH, JJ., concur.

      . In this case we have not considered, nor have we decided, whether a trial court’s refusal to grant a public defender’s motion to withdraw based on conflict of interest will result in the reversal of a conviction without a showing of prejudice by the defendant.

      . Section 27.53(3), Florida Statutes (1981), reads in pertinent part:
      If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff because of conflict of interest, it shall be his duty to move the court to appoint other counsel. The court may appoint either:
      (a) One or more members of The Florida Bar, who are in no way affiliated with the public defender, in his capacity as such, or in his private practice, to represent those accused; or
      (b) A public defender from another circuit. Such public defender shall be provided office space, utilities, telephone services, and custodial services, as may be necessary for the proper and efficient function of the office, by the county in which the trial is held.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. William D. BARROW, Respondent.
    No. 61494.
    Supreme Court of Florida.
    April 1, 1982.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Laura E. Keene, Bar Counsel, Tallahassee, and Alan H. Rosenbloum, Past Chairman, First Judicial Circuit Grievance Committee, Gulf Breeze, of The Florida Bar, for complainant.

      William Dean Barrow, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violation of Disciplinary Rule 1-102(A)(4) of the Code of Professional Responsibility of The Florida Bar. We approve the Petition, and hereby reprimand Respondent, WILLIAM D. BARROW, for these violations. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $149.75 are hereby taxed against the respondent.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.


text:
    Lucinda JOHNSON, et vir, Appellants, v. The SHELBY MUTUAL INSURANCE COMPANY OF SHELBY, OHIO, Appellee.
    No. 79-290.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 1981.
    Steven Burrage of Robert D. Melton, P.A., Orlando, for appellants.
    Ira Wm. McCollum, Jr., of Pitts, Eubanks & Ross, Orlando, for appellee.
   ON MOTION TO STAY MANDATE

PER CURIAM.

Appellee’s “Motion to Stay” will be treated as a motion to clarify our brief opinion to certify conflict, 389 So.2d 332, so further review will not be precluded. The decision sub judice by relying on State Farm Mutual Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980), is in direct conflict with Carter v. Government Employee’s Insurance Company, 377 So.2d 242 (Fla. 1st DCA 1979).

Except as clarified herein, we adhere to our original opinion, and the motion to “stay the decision” is denied.

ORFINGER and SHARP, JJ., and BAKER, JOSEPH P., Associate Judge, concur.


author: PER CURIAM. DANAHY, Judge.

text:
    Charlene V. CREMEENS, Appellant, v. Archie D. CREMEENS, Appellee.
    No. 81-331.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1981.
    Rehearing Denied April 16, 1982.
    Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   PER CURIAM.

Affirmed.

HOBSON, A. C. J., and DANAHY and CAMPBELL, JJ., concur.

ON MOTION FOR REHEARING

DANAHY, Judge.

Although we deny the appellant’s motion for rehearing or, in the alternative, for certification of the questions presented in this case to the Florida Supreme Court, we take this opportunity to explain why we believe that our affirmance is not in conflict with the decision of the Florida Supreme Court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

One of the assets of the marital partnership dissolved in this case consisted of the remaining installments due under the “Cre-meens Manor and Warehouse Contracts,” which for brevity we will call simply “the contracts.” This asset came into being when the appellee made an installment sale or sales of property titled in his name and known as the Cremeens Manor and Warehouse. The record does not provide us with details such as the lengths of the remaining terms of the contracts, the amounts of the unpaid balances, or the amounts and payment dates of the remaining installments due under the contracts. The parties indicate in their briefs, however, that some installments remain due and are payable to the appellee at intervals in the future.

In addition to an award of permanent periodic alimony and other awards, the trial judge awarded the appellant a remainder interest in the contracts consisting of that portion of the contracts unpaid at the ap-pellee’s death, should he predecease the appellant. The final judgment makes it clear that the trial judge intended that the appel-lee have the unrestricted right to the payments under the contracts during his lifetime, with no restriction on his use of the funds. The final judgment states that “if the wife remarries or predeceases the husband, this interest terminates.” The appellant argues that this award conflicts with the holding in Canakaris v. Canakaris; specifically, the following language in that opinion:

[Tjhere ... arise[s] upon the entry of a final judgment of a lump sum award a vested right which is neither terminable upon a spouse’s remarriage or death nor subject to modification.

Id. at 1201.

We do not see the conflict suggested by the appellant and decline to certify this or any other question in this case to the supreme court.

In the instant case, several rules of law converge. They are:

1. The supreme court’s description of lump sum alimony in Canakaris v. Canakaris as a vested right which is neither terminable upon a spouse’s remarriage or death nor subject to modification.
2. The rule, described by the supreme court as clearly established and settled, that the obligation to pay alimony dies with the obligated party. O’Malley v. Pan American Bank, 384 So.2d 1258 (Fla.1980).
3. The view adopted by three of our sister courts that requiring the obligated party to provide security, such as life insurance, to the recipient against the risk of the obligor’s death violates the rule that the obligation to pay alimony dies with the obligor. Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981); Perkins v. Perkins, 310 So.2d 438 (Fla. 4th DCA 1975); Putnam v. Putnam, 154 So.2d 717 (Fla. 3d DCA 1963). But cf. Stith v. Stith, 384 So.2d 317 (Fla. 2d DCA 1980) (policies of life insurance may be awarded as lump sum alimony).
4. The legislative command in section 61.08(2), Florida Statutes (1981), that in determining a proper award of alimony, the trial court shall consider all relevant economic factors, including but not limited to those listed, and may also consider any other factor necessary to do equity and justice between the parties.

These rules of law are difficult but not impossible to accommodate in a case, such as this, where the following factors are present:

1. The death of the obligated spouse is a real and substantial economic risk to the spouse to whom an award of permanent periodic alimony is made.
2. The economic situation of the obligated spouse does not support the award of a substantial asset outright to the recipient spouse sufficient in amount to provide protection against the risk of the obligated spouse’s death.
3. The obligated spouse holds an asset with characteristics which permit the award of that asset to the recipient spouse as a vested and present right, but with possession and enjoyment postponed until the occurrence of a future event— that is, the death of the obligated spouse, if the recipient spouse survives and has not remarried.

In Stith v. Stith, this court approved the proposition that a trial judge may properly address the problem of the economic risk to a wife of the husband’s death following the entry of a final judgment awarding permanent periodic alimony to the wife. We believe that proposition to be embodied in the 1978 amendment to section 61.08, Florida Statutes (1981), which made clear that all relevant economic factors are to be considered in determining an alimony award, plus any other factor necessary to do equity and justice between the parties. We note that the 1978 amendment apparently was not applied in Canakaris.

Furthermore, we believe that the award made by the trial judge in this case does not conflict with the supreme court’s description of lump sum alimony in Canakaris. The appellant’s award of a remainder interest in the contracts gave her a vested and present right. That right does not terminate upon the appellant’s remarriage or her predeceasing the appellee; rather, her enjoyment of the right is made conditional upon the appellant’s surviving the appellee and not remarrying. If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. Wallace v. Wallace, 118 Fla. 844, 160 So. 377 (1935). As we observed in Stith, where a lump sum alimony award is justified, such an award can provide an ex-wife with sufficient security to minimize her risk that her sole means of support will be lost to her if her ex-husband should die, and an award designed for that purpose is appropriate. We believe a lump sum alimony award was justified in the present case and approve the award as fashioned by the trial judge; that is, a remainder interest in the Crenieens Manor and Warehouse contracts, the enjoyment of which depends upon whether the appellant survives the appellee and remains unmarried.

We have considered all other questions posed by the appellant and find them without merit.

The appellant’s motion for rehearing or certification is denied.

HOBSON, A. C. J., and CAMPBELL, J., concur.


text:
    The STATE of Florida, Appellant, v. Boaz SUSMAN, Appellee.
    No. 80-1127.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Rehearing Denied May 5, 1982.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    John H. Lipinski, Miami, for appellee.
    Before HUBBART, C. J., and FERGUSON, J., and MELVIN, WOODROW M. (Retired), Associate Judge.
   PER CURIAM.

The State of Florida has perfected its appeal from an order entered in the Circuit Court of Dade County that dismissed a count contained in an information filed against the appellee. In entering such order, the trial court held that Section 893.-135, Florida Statutes was unconstitutional.

The order appealed from is reversed upon the authority of State v. Benitez, 395 So.2d 514 (Fla.1981); State v. Yu, 400 So.2d 762 (Fla.1981); State v. Werner, 402 So.2d 386 (Fla.1981); Stone v. State, 402 So.2d 1330 (Fla. 1st DCA 1981).

For the foregoing reasons, the trial court is directed to proceed in harmony with the views herein expressed.