author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

text:
    Ernest Lee JONES, alias v. STATE.
    2 Div. 294.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 31, 1981.

      Cartledge W. Blackwell of Gayle & Blackwell, and William T. Faile of Morris & Faile, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence for murder as defined by § 13A-6-2 of the Alabama Criminal Code, effective January 1, 1980, now codified as Title 13A of Code of Alabama 1975. The alleged homicide occurred after January 1, 1980. The punishment prescribed by § 13A-6-2(c) is “imprisonment in the penitentiary for not less than 10 years to life.” The court fixed punishment at 25 years’ imprisonment and sentenced defendant accordingly. By reason of his indigency, defendant was represented in the trial court by appointed counsel and for the same reason is represented by appointed counsel, the same counsel, on appeal. The indictment was returned on February 11, 1980, and the case is one of the first murder cases tried and appealed that is governed by the new Alabama Criminal Code, which contains major changes in the law of Alabama as to unlawful homicide, one of which being that instead of having two degrees of murder, as before, the statute omits degrees of murder and defines one method of committing the offense by stating in § 13A-6-2(a)(l):

“A person commits the crime of murder if:
“With intent to cause the death of another person, he causes the death of that person or of another person; ...” Section 13A-6-2(b) of the Code provides: “A person does not commit murder under sub-divisions (a)(1) or (a)(2) of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself. The burden of injecting the issue of killing under legal provocation is on the defendant, but this does not shift the burden of proof. This sub-section does not apply to a prosecution for, or preclude a conviction of, manslaughter or other crimes.”

The record shows that the trial judge wisely and carefully noted the changes that had been made by the new Code in the law of Alabama and correctly charged the jury to the satisfaction of all concerned, it seems, as to such changes. The oral charge included instructions as to the two lesser included crimes of homicide, “Manslaughter” and “Criminally negligent homicide,” as defined by sections 13A-6-3 and 13A-6-4 respectively, and the charge permitted a verdict under the evidence finding defendant guilty of either of said lesser included offenses.

The defendant pleaded not guilty and made no contention that he did not kill the alleged victim, Joseph Steadman, by shooting him with a shotgun, which the undisputed evidence shows that he did. He relied upon the defense of self-defense.

There is considerable conflict and confusion in the evidence as to specific details of what occurred a short time before and at the time of the fatal encounter, but a narrative of such details is not necessary at this time. The following brief summary is sufficient to show the basis for the conclusions we reach as to the issues presented.

The alleged victim was fatally wounded on the afternoon of January 7, 1980, while he was sitting in an automobile or was in the process of getting out of the automobile, while the automobile was stationary at the home of defendant’s mother, where defendant was living or staying at the time, in Marion Junction, in Dallas County. There was a public road adjacent to a yard of the home. There is some question as to the exact position of the automobile with reference to the road and with reference to the yard, but the weight of the evidence seems to be that, at the moment the victim was shot, a substantial part of the automobile was in the yard, and probably the weight of the evidence was to the effect that the wheels of the automobile on one side were about the same distance from the edge of the road underneath the automobile as the wheels on the other side. The victim was not the driver but was sitting on the front seat of the automobile, on the side which at the time was the side closer to the house of defendant’s mother.

The victim had been riding in the automobile with Willie Sawyer, the driver. They had picked up James Pryor, who rode in the back seat. After being in Marion, they went to Marion Junction to the home of Mag Jones, the mother of defendant. When they first drove up to the house, the victim, Joseph Steadman, went to the door and knocked, looking for Laura Jones, a young sister of defendant. Not finding her at home, Steadman returned to the automobile and the three went to another place nearby looking for Laura and soon returned to their previous position at the home of Mag Jones. While they were there, Laura got in the automobile and was sitting in the victim’s lap, from which she left after being told by her mother to get out of Steadman’s lap. Both Sawyer and Pryor testified to the effect that defendant came out of the house with a shotgun, came close to the automobile, fired one shot at Steadman hitting him in the head while Steadman was still sitting in the automobile. The evidence is undisputed that defendant then ran away, leaving the gun and went to Bessemer, Alabama, to a sister’s house and through the intervention of his brother-in-law turned himself over to the authorities at Bessemer. Immediately after the shooting, Sawyer drove the automobile with Steadman and Pryor in it to a nearby service station, obtained the aid of law enforcement authorities and at their direction Steadman was taken to the nearest hospital. A post-mortem examination disclosed beyond question that he was killed by shot from the shotgun that entered the forehead above the right eye.

In its oral charge to the jury, the court explained the element of freedom from fault in bringing on the difficulty and the element of imminent danger, or the reasonable appearance of imminent danger, of serious bodily harm or death without objection or exception by either of the parties. The court then said:

“The third element is the one dealing with retreat. The law says that a person must retreat if he can do so without increasing his peril. It is better that one man should flee rather than another man should die.
“Now the law of retreat does not apply. The third element goes out the window if the person is in their own home. You do not have to retreat from your home or your place of work, but you do have to retreat unless that qualification is met. If you were out on the highway and you can run without increasing your peril, then you have the right, the obligation to do so.
“Now those are the three elements, first of all, free from fault in bringing on the difficulty; second, danger of immediate bodily harm, serious bodily harm or death; and third, no way to retreat unless you are in your own home. If you’re in your own home, and that doesn’t mean out on the road in front of your home, that means in your home, you don’t have any duty to retreat. A man’s home is his castle.”

At the conclusion of its oral charge, the court called for exceptions. After noting one exception by counsel for defendant unrelated to what the court had said as to “retreat” as stated above, the following occurred:

“THE COURT: Do you want anything about duty to retreat?
“MR. FAILE: Also, object to the Court commenting to the extent that the Court instructed the jury that the Defendant has a duty to retreat if he was out in the street. We feel—
“THE COURT: (Interposing) If they find from the evidence. If they find from the evidence he was out in the street—
“MR. BLACKWELL: (Interposing) I think our objection goes to two points. Number one was that you said that he had to be in the house and—
“THE COURT: (Interposing) Yes, he does.
“MR. BLACKWELL: And it’s our position that it’s not the law, that he could be actually outside the house and, secondly, the question being outside, and I don’t know if it was clear to the jury about being actually in the street, but there is a—
“THE COURT: (Interposing) No, sir. I’ll stand on that. If I’m wrong they’re going to change the law because it says, “In your house.” It doesn’t say out in the yard. If you’re in your yard, you can run. If you’re in your own home or your place of business, you are under no duty to run. But being out in your yard or out in the street or wherever, so long as you are not in a dwelling, I think negates any idea of not having to retreat.”

The court committed reversible error in the quoted portion of its oral charge. It precluded benefit to the defendant of the principle that one is under no duty to retreat when he is within the curtilage of his home, as well as when he is within the house itself. Madry v. State, 201 Ala. 512, 78 So. 866 (1918). The right to defend oneself without retreating while within his home or curtilage extends to guests in the home, as well as to the owner or more permanent occupants thereof. Walker v. State, 205 Ala. 197, 87 So. 833 (1921). In Walker, the accused was within the curti-lage of his father’s dwelling while crossing the yard surrounding it to the fence, which separated it from his own premises. The principles stated in the cases just cited have since been followed consistently. Collier v. State, 49 Ala.App. 685, 275 So.2d 364 (1973).

As previously indicated and as disclosed by pictures, the yard in which defendant was standing when he fired the gun and which was partly occupied by the automobile in which the deceased was sitting or leaving at the time, was small, and the house was only a few steps from the road and from the automobile. The situation was entirely different in Nunn v. State, 19 Ala.App. 619, 99 So. 738, 740 (1924), in which “the scene of the difficulty was out in the public road and some appreciable distance from the dwelling house of accused.”

We do not agree with the position of appellee to the effect that the failure of defendant to request a written charge covering the matter under consideration disen-titles him to a reversal by reason of the instruction given. Perhaps the position of appellee would be correct if the instruction were merely incomplete, if it had not limited the area from which defendant was not required to retreat to one’s home or to one’s place of work. It did so limit it by the charge on the subject covered, generally, and specifically by the sentence, “You do not have to retreat from your home or your place of work, but you do have to retreat unless that qualification is met.” The charge of the court on the subject is on the whole incorrect. Defendant’s counsel made it clear to the court his basis for the objection or exception. The transcript shows that there was no disagreement between the court and counsel for defense as to terminology only, but that there was a disagreement as to the substance of what the court charged as to where a person is not under a duty to retreat, as to which the law requires us to agree with appellant. The trial court reiterated its view and gave expression to the steadfastness of such view by saying:

“But being out in your yard or out in the street or wherever, so long as you are not in a dwelling, I think negates any idea of not having to retreat.”

Whether the particular error of the court constitutes reversible error, whether it caused substantial injury to defendant, would ordinarily depend to a great extent upon the evidence as to the existence vel non of both of the other two essential elements of a valid defense of self-defense. However, we see no need to go into detail as to such evidence, as the prosecution did not contend on the trial and does not contend here that there was not sufficient evidence to justify a submission to the jury of the issues as to both of such elements. We are convinced that the court was correct in submitting both issues to the jury. In addition to what we have said as to evidence on the point, we note that, according to evidence for the defendant, the victim had once previously threatened the defendant while they were at a pool room and that at the time the victim had a rifle “outside the place.” As to another occasion, defendant testified that the victim threatened him while the victim had a gun. As to that incident, defendant testified:

“Q. Where on the railroad tracks?
“A. Down by my mother’s house.
“Q. Did he threaten you then?
“A. Yes, sir; he did.
“Q. Did he have a weapon then?
“A. Yes, sir.
“Q. What did he have?
“A. A gun.
“Q. Did he threaten you with it?
“A. Yes, sir.
“Q. Did anybody else have any guns there then?
“A. Not that I can remember.
“Q. Did you have one?
“A. No, sir; I didn’t.
“Q. What did you do?
“A. Ran.”

By accepting what the court said as to defendant’s duty to retreat, the jury could properly have come to no conclusion other than that defendant’s defense of self-defense collapsed by reason of failure of defendant to retreat. The instruction took away from defendant a principle of law as favorable to him under the circumstances as any other principle applicable in the case. We have no doubt that the error probably resulted in substantial injury to defendant.

Appellant asserts that the court was in error in refusing defendant’s written charge No. 19:

“I charge you, members of the jury, that the indictment, information, affidavit, or warrant of arrest in this case is not any evidence in this case and the fact that the Defendant was arrested is not to be considered by you as a circumstance against the Defendant, but said indictment, information, affidavit or warrant of arrest is merely the method of placing the Defendant on trial, but the presumption of innocence attends the Defendant throughout this trial and remains with Defendant and authorizes an acquittal, if the entire evidence fails to overcome the presumption of the Defendant’s innocence, by proof of the Defendant’s guilt beyond a reasonable doubt and to a moral certainty.”

Appellant relies upon Salter v. State, 22 Ala.App. 86, 112 So. 538 (1927), in which the trial court was reversed for its refusal to give a charge containing a large amount of the same language found in the above quoted requested charge. However, in Salter, supra, the charge was limited to a consideration of an indictment, as to which it has been repeatedly held that it is proper for the court to charge a jury to the effect that the indictment is not to be considered as evidence in the case. It does not follow, however, that a similar charge should be given as to an instrument that does not purport to be the actual charge upon which there has been an arraignment. Appellant’s contention as to the refusal of the charge is without merit.

We disagree with appellant’s contention that the court “erred in allowing toxicologist Craig Bailey to give testimony without being sworn.” There seems to be some factual basis for the claim that the witness testified in an in camera proceeding without having been sworn, but when he was called by the State to testify in the case before the jury, the transcript recites that the witness, naming him, “called on behalf of the State, having been previously sworn, testified as follows.” The record, rather than the statement and briefs of counsel, controls. Bush v. State, Ala.Cr. App., 333 So.2d 186 (1976).

Dr. Richard Roper, toxicologist of the Alabama Department of Forensic Sciences in the Montgomery Regional Laboratory, testified as to a post-mortem examination upon the victim of the homicide. Before his testimony was given, defendant’s attorney asked to “take him on voir dire.” The following then occurred:

“THE COURT: For what point, Mr. Faile?
“MR. FAILE: His identification of that body.
“THE COURT: All right.
“VOIR DIRE EXAMINATION.
“By Mr. Faile: You said the body was identified to you?
“A. Yes, sir.
“Q. Who identified it to you?
“A. Mr. Carl Murdox, a Medical Examiner and Field Agent in the Montgomery Laboratory.
“Q. That’s the gentleman who just testified?
“A. That’s correct.
“Q. He based his identification on the arm band; is that correct?
“A. Arm band and hospital information.
“Q. Hospital information? You based your identification on what he told you?
“A. What he told me and the arm band which I removed from the body.
“MR. FAILE: We renew our objection.
“THE COURT: Overruled.”

The mother of the victim had testified, without objection, that he had died en route to the Baptist Medical Center in Montgomery, to which she went soon after his body arrived at the hospital. Mr. Carl Murdox testified that he looked at the body, removed a hospital arm band with the victim’s name written thereon, which arm band was admitted in evidence, then delivered the body to the “City Morgue in Montgomery” and turned it over to Dr. Richard Roper. A picture of the body showing a bullet hole in the forehead of a person who substantially answers the description of the victim as shown in the evidence, was introduced in evidence. There was no semblance of any dispute as to the identity of the body. Defendant’s objection to the testimony of Dr. Roper as to the result of the examination was properly overruled. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), when Utah was still a territory, relied upon by appellant, does not call for a different conclusion, although it was held therein that the testimony of a physician as to his post-mortem examination of a corpse was not admissible. In that case, there was confusion brought about by the presence of two corpses at a railroad depot at the same time, one in a metal casket and the other in a wooden coffin, with “generally similar” injuries and some testimony that the body identified to the physician for post-mortem examination was in a metal casket, while the father of the victim had testified that his body had been placed in a wooden coffin.

Another insistence on error to a reversal is based on an exception taken by defendant’s counsel directed to a portion of the court’s oral charge in which it referred to the responsibility of one while he is intoxicated. The exception and the action of the court are shown by the following part of the transcript:

“MR. FAILE: We would except to the Court’s oral charge in regard to the Court charging the definition of intoxication to the extent of it applying to the Defendant as there is no evidence in this case that the Defendant was intoxicated or had any alcoholic beverage whatsoever.
“THE COURT: If you will notice, I said Defendant, deceased, or any other witness. I put it in general terms. I did not single out the Defendant.
“MR. FAILE: The definition that you gave as to justification or whatever would have no — Would not apply to the deceased anyway. There has been testimony as to the percent of blood alcohol and we don’t see any objection to the Court defining that percentage to the jury in regard to the statutory interpretation and guidelines as to what is intoxicated and what is not, but our exception is to the general definition of intoxication as it applies to the Defendant or as applies to the deceased in this case as it doesn’t apply.
“We would also request that the Court instruct the jury on the crime of assault and battery being a lesser included offense of the crime charged in the indictment and except to the Court’s definition of criminal negligence.”

There were references in the oral charge, which we think could well have been omitted, to the matter of intoxication, which seemingly were prompted by considerable evidence as to who had been drinking intoxicating liquor or beverage a short time before the fatal encounter. Perhaps the comments were influenced by the commendable desire of the court to instruct the jury with accuracy and fullness as to the principles of the law as to the effect of intoxication upon one’s criminal responsibility for his conduct, as particularly set forth in Code of Alabama § 13A-3-2 and by the possibility that intoxication, if any, on the part of defendant at the time would have served to reduce the crime from which he might otherwise have been responsible to a homicide less than murder. Although we are not convinced that there was sufficient evidence in the case to support a conclusion that defendant was intoxicated at the time he shot the alleged victim, we can understand the court’s willingness to give the defendant the benefit of any reasonable doubt on that point and to charge the jury accordingly. It appears from defendant’s exception that he was then disclaiming intoxication and any and all reliance upon intoxication as a possible defense.

It is to be noted from the quoted portion of the colloquy between the court and defendant’s counsel, after his first recital of an exception to the court’s charge as to intoxication, that the court made it clear that it spoke of intoxication “in general terms” and that it did not “single out the Defendant.” Counsel then stated that he didn’t “see any objection to the Court defining that percentage to the jury in regard to the statutory interpretation and guidelines as to what is intoxicated and what is not” but that he had a different view as to “the general definition of intoxication as it applies to the Defendant or as it applies to the deceased in this case as it doesn’t apply.” Immediately thereafter, defense counsel requested the Court to “instruct the jury” on an entirely different subject. We think that defendant’s exception was not sufficiently clear or specific to enable the court to determine that it was valid. In addition, we think that the charge of the court as to the subject of intoxication did not cause any substantial injury to the defendant.

We dispose of as unwarranted the final insistence of appellant, as to which he captions the issue: “Whether the trial judge made improper remarks prejudicial [sic] the Defendant.” In this position appellant refers to disconnected incidents, one of which was as to the action of the court in reproving loud remarks or other noise made by witnesses while in the courtroom that could be heard by the jury. Another was during the cross-examination of a witness for the State, shown by the transcript as follows:

“Q. If Earl said you and ‘Till’ were drinking out of the orange cup, then—
“MR. BLAIR: (Interposing) We object to that.
“MR. FAILE: It’s cross-examination.
“MR. BLAIR: He’s asking him to testify as to whether or not a witness was telling the truth or not.
“MR. FAILE: Cross-examination, Your Honor.
“THE COURT: Is that some magic word, Mr. Fade? I’ll overrule the objection.
“Q. (Continuing) If Earl testified that you and ‘Till’ were drinking out of an orange cup, some alcohol, then he was lying, is that right?
“MR. BLAIR: Objection to the form of that question.
“THE WITNESS: I don’t know, I wasn’t paying him no attention.
“THE COURT: I think the word ‘lying’ is a little harsh. I’ll sustain the objection.
“Q. (Continuing): He would have been mistaken then, wouldn’t he?
“A. I wasn’t paying that much attention.”

We think there is much in the quoted portion of the transcript that is subject to just criticism, but little, if any, on the part of the court. An express target of appellant’s contention is the statement by the court: “Is that some magic word, Mr. Fade? I’ll overrule the objection.” The court was doubtless referring to counsel’s attempt to justify the question he was asking by saying twice that which the court well knew, that it was on cross-examination. Whether there was any sting in the question of the court, it is well that the attention of a trial attorney be called at times to the fact that any question, even on cross-examination, needs more to support its propriety than the mere fact that it is on cross-examination and that a trial judge is not aided in any way in determining whether the question is proper by a statement of the questioner that it is on cross-examination. A judge is not to be severely criticized for his pointedly bringing the bad habit to the attention of an attorney.

Another incident made the basis of the contention was during a hearing out of the presence of the jury in which the court said:

“I thought you would. Do you have anything else before we bring the jury in? Let’s get it all out of the way. Now I’m getting tired of this foot dragging. We’ve been here an hour and thirty minutes now and we haven’t accomplished a thing.”

On another occasion, defendant’s counsel made the following objection out of the presence of the jury:

“We are going to object, Judge, to the Court’s facial expression showing a hostile attitude toward defense attorneys by their requesting to take the witness on for Voir Dire Examination. We make that in all due respect to the Court, we know the Court didn’t mean to do it but it does create an unfair inference toward thé jury and prejudices our client.”

The court responded to the objection as follows:

“Let’s change the word ‘hostile’ to ‘annoyed.’ ” We walk in comfort in the footsteps of Justice Faulkner in Allen v. State, 290 Ala. 339, 342-343, 276 So.2d 583 (1973) as follows:

“The trial judge is a human being, not an automaton or a robot. He is not required to be a Great Stone Face which shows no reaction to anything that happens in his courtroom. Testimony that is amusing may draw a smile or a laugh, shocking or distasteful evidence may cause a frown or ' a scowl, without reversible error being committed thereby. We have not, and hopefully never will reach the stage in Alabama at which a stone-cold computer is draped in a black robe, set up behind the bench and plugged in to begin service as a circuit judge.
“However, we do not think enough has been shown' here to establish that the substantial rights of the defendant were injuriously affected by the alleged irregularities. . ..

For the error indicated in the court’s oral charge as to the duty to retreat, the judgment of the trial court should be reversed and the cause remanded.

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

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

In connection with appellee’s application for a rehearing, it states:

“Comes now the State of Alabama as appellee in this cause pursuant to 'Rule 39(k) of the Alabama Rules of Appellate Procedure and requests that this Honorable Court add to or correct its opinion of February 24, 1981, to include the following facts:
“The following colloquy between the trial judge and counsel which appeared in this Court’s opinion of February 24, 1981, on page 5, was not made in the presence of the jury:
“‘THE COURT: Do you want anything about duty to retreat?
“‘MR. FAILE: Also, object to the Court commenting to the extent that the Court instructed the jury that the Defendant has a duty to retreat if he was out in the street. We feel—
“‘THE COURT: (Interposing) If they find from the evidence. If they find from the evidence he was out in the street—
“ ‘MR. BLACKWELL: (Interposing) I think our objection goes to two points. Number one was that you said that he had to be in the house and—
“‘THE COURT: (Interposing) Yes, he does.
“ ‘MR. BLACKWELL: And it’s our position that it’s not the law, that he should be actually outside the house and, secondly, the question being outside, and I don’t know if it was clear to the jury about being actually in the street, but there is a—
“ ‘THE COURT: (Interposing) No, sir, I’ll stand on that. If I’m wrong they’re going to change the law because it says, “In your house.” It doesn’t say out in the yard. If you’re in your yard, you can run. If you’re in your home or your place of business, you are under no duty to run. But being out in your yard or out in the street or wherever, so long as you are not in a dwelling, I think negates any idea of not having to retreat.’ ”

Although the requested inclusion does not contain any facts shown by the evidence in the case, we are pleased to comply fully with appellee’s request and have set forth above the mentioned “colloquy” in the language set out in the appellee’s request, as was done in the opinion on original submission, and hereby state, as appellee requests, that it “was not made in the presence of the jury.”

We add that the colloquy took place before the case was submitted by the court to the jury, before the jury retired to commence its deliberations and at a time when the court had an adequate opportunity to modify or supplement its oral charge to the jury, prior to the commencement of its deliberations.

We make it clear also, if we did not do so in the opinion, that the statements of the court found in the colloquy were not considered by us, and were not intended by us to be considered by others, as instructions to the jury. The colloquy, including the statements of the court, was set forth in order to show that there was a meeting of the minds of the court and counsel for the defendant as to the portion of the court’s oral charge to which the defendant’s objections were addressed, and the basis or grounds for such objections.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex Parte State of Alabama ex rel. Attorney General. (Re: Ernest Lee JONES, alias v. STATE of Alabama.)
    80-469.
    Supreme Court of Alabama.
    May 22, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: DeCARLO, Judge.

text:
    Gregory Neal STEWART v. STATE.
    3 Div. 242.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 17, 1981.

      Frank L. Thiemonge, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

The appellant was convicted of embezzlement and sentenced to two years. Omitting the formal parts, the indictment charged:

“GREGORY NEAL STEWART, alias .... whose name is to the Grand Jury otherwise unknown, the officer, agent, clerk, employee or servant of Spartan Food Systems, Inc., a corporation did embezzle or fraudulently convert to his own use, or to the use of another, or did fraudulently secrete with intent to convert to his own use, or the use of another, money to about the amount of $2,100.00 and, of that value, which had come into his possession by virtue of his office, agency, employment or apprenticeship, against the peace and dignity of the State of Alabama.”

On April 24, 1979, the appellant was employed by Spartan Food Systems, Inc., as an assistant manager of Hardee’s in Montgomery, Alabama. Appellant’s duties included operating the store, closing the business at night, and making a bank deposit at the close of his shift. On April 24, 1979, the deposit was unusually large due to the fact that Steve Graham, the assistant manager of the previous shift, had been unable to make a deposit. During the trial Graham testified that he was unable to make a deposit because the appellant, who was supposed to have prepared the deposit, was in the process of repairing a piece of equipment. Therefore, the proceeds that were to be deposited that night amounted to receipts from two shifts instead of just one. Graham recalled that the equipment appellant attempted to repair would not have prevented Hardee’s operation if it had not been fixed that day.

Appellant stated that after closing the business that night, he entered his truck with the bank deposit, and someone stuck a gun in his face and told him to slide over in the truck. As appellant slid over to the passenger’s side, the person drove him to a nearby area, blindfolded him, took the bank deposit and left. Minutes afterwards, the appellant allegedly drove back to Hardee’s and called the police.

Montgomery Police Officers Ricky Mob-ley, J. T. Hankins and J. M. Duncan investigated the reported robbery. Mobley testified that, after appellant recounted the events of the robbery, he [Mobley] examined the truck and found that the cab was filled with an excessive amount of debris and personal items. Mobley stated that the position of the debris and other items on the seat was inconsistent with appellant’s explanation of having slid across the seat. Appellant informed Mobley that the interi- or of the truck was then in the same condition as when he was robbed. A photograph of the truck’s interior was properly admitted into evidence.

Mobley also obtained a written statement from the appellant, including the details of the alleged robbery and a description of the robber. Appellant stated, in pertinent part, that the alleged robber was white and wore black clothing with a black mask. Appellant said that after the robber left he did not hear a vehicle drive away. Mobley testified that the appellant did not name William McDaniel as the robber or give any indication of who he thought the robber was.

Detective Hankins testified that the appellant told him that the robber had used a towel to blindfold him. Hankins later removed a towel with a torn strip from the truck. Appellant did not state to Hankins that he suspected William McDaniel as the robber.

Detective Duncan stated that he talked to the appellant two days after the alleged robbery. At that time the appellant did not indicate who robbed him or mention the name of William McDaniel. The next day, Friday, April 27, the appellant came to see Detective Duncan and mentioned McDaniel’s name then. After his conversation with the appellant on April 27, Duncan had a conversation with Detective Faye Henderson, and, as a result of that conversation, he again talked to the appellant. The appellant then revealed he had gone to McDaniel’s home and talked to McDaniel about the robbery. The appellant said that McDaniel had taken him to a secluded area around Gunter Park to show him where the money taken during the robbery was buried. According to Duncan, he and the appellant then went to a heavily wooded area near Gunter Park and the appellant indicated a spot where McDaniel supposedly buried the money. Duncan did not observe any evidence of digging at the spot.

Faye Henderson, an investigator with the Montgomery Police Department, testified that she talked with the appellant on April 30,1979, in the polygraph room. The appellant told her that, two or three days after the robbery, he went to William McDaniel’s home and talked to him about the robbery. The appellant stated to Henderson that McDaniel had taken him to a wooded area on a dirt road where the money was supposedly buried.

Frank Head testified that on April 24, he was the manager of Hardee’s where appellant was employed. On April 24, 1979, Mr. Head had two telephone conversations with the appellant, one prior to the alleged robbery and one after it occurred. During the first discussion, the appellant told Head that he had lost or misplaced the keys to the business, and that the afternoon deposit had not been made. Mr. Head told the appellant to place the deposit in a safe and he [Head] would take the deposit to the bank the following morning. Head explained that, without the keys to the business, the building could not be locked, and the night bank deposit box could not be opened. He testified that company policy required the manager making the night deposit to leave by way of the front door.

In the second conversation, the appellant informed Head of the alleged robbery. At that time the appellant told Mr. Head that he [appellant] had gone out the back door with the deposit and, in reply to Mr. Head’s question concerning the loss of appellant’s keys, the appellant stated that he had found them. After he arrived at Hardee’s, Head determined that approximately $2,200.00 had been taken. He explained that it was company policy to make two deposits daily. The $2,200.00 deposit was about $1,500.00 or $1,600.00 more than it would have been had the earlier deposit been made.

Mr. Head recalled that, on the night of the alleged robbery, he told the appellant that Steve Graham, the day manager, would probably lose his job because he had failed to make the afternoon deposit. At that point, the appellant responded, “It’s a shame, Steve will lose his job, I know where I can lay my hands on around two thousand dollars and maybe I can help Steve out.”

Steve Graham testified that, as a result of his failure to make the deposit at Har-dee’s that day, he lost his job. At no time did the appellant ever offer to repay the money that Hardee’s lost as a result of the alleged robbery.

Alice McDaniel, a sister of William McDaniel, was a part-time employee of Hardee’s during the time of the alleged robbery. She testified that early one morning, two or three days after the robbery, the appellant came to her house and said he wanted to talk to her brother about opening a pinball business. Appellant talked to her brother and, after that conversation, the appellant and William McDaniel left the house and subsequently returned.

During cross-examination, she testified that she thought everyone in her family owned a black ski mask. She acknowledged that her brother had won some money in a poker game, and that he had been charged with an offense relating to the robbery at Hardee’s.

Mike Vance testified that he was appellant’s former roommate. On the morning after the alleged robbery at Hardee’s he had a conversation with the appellant. At that time, the appellant told Vance that two men robbed him, blindfolded him, and drove him in his truck to the old Selma Highway. The appellant said that an hour later he returned to Hardee’s and called the police.

Vance recalled a second conversation wherein the appellant stated to Vance that Billy McDaniel owed the appellant a thousand dollars. The appellant said he had loaned McDaniel money for a pinball venture.

Vance had a third conversation with the appellant in which the appellant told Vance that if he [Vance] did not help him “cover up what he has done or just totally be quiet, that I [Vance] will be hurt.” Vance stated that, on December 25, he was stabbed in the hand by a person whom he had seen before, but whom he did not know by name. At the time Vance was stabbed, the person told him that he “wanted to get me back for what I did for Greg Stewart, to Greg Stewart in Montgomery.”

Victor Vance was the father of Mike Vance. He stated that, about a week after the alleged robbery, the appellant told him that two men robbed, bound, and then drove him outside of town.

At the completion of Mr. Vance’s testimony, the State rested its case and the appellant made a motion to exclude the evidence based on the fact that the State had failed to present sufficient evidence. The motion was denied and the appellant took the stand in his own behalf.

Appellant testified that, on April 24, 1979, he had been employed at Hardee’s for about five months. He stated that, when he closed the business at 10:00 P.M. he was robbed by a person dressed in black and wearing a black mask. Further, he said that, after the robbery, he was driven to a housing section known as Carol Villa, blindfolded and left in his truck. After the robbery he immediately drove back to Har-dee’s to call the police.

The appellant said he suspected William McDaniel of the alleged robbery. He testified that he learned from Alice McDaniel that her brother, William, had borrowed a ski mask from a younger brother, and that he had recently paid several debts. According to the appellant, three or four days after the offense, he visited Willaim McDaniel at his home and McDaniel confessed to the alleged robbery. The appellant later testified, however, that he only “suspected” McDaniel of the robbery. Appellant stated that he had gone to Gunter Industrial Park in search of the money alone, and was later accompanied by McDaniel. He stated that McDaniel said he had placed the money in a plastic bag and buried it under some water, but, when they went to the location where the money was supposedly buried, they could not find it. The appellant also said that he had accompanied Detective Duncan to look for the money, but they could not find it either.

The appellant testified that the photograph introduced by the State did not accurately depict the interior of the truck as it was on the night of the robbery. He indicated that the police had been inside the cab of the truck prior to the picture’s being taken. He acknowledged that he had offered to help Steve Graham, and that he had talked to McDaniel, but he stated that his conversation with McDaniel involved the opening of a pinball arcade on the Atlanta Highway. He denied the conversation with Mike Vance, but admitted that he knew Vance had testified before the grand jury.

During cross-examination, the appellant admitted the contents of the written statements given to Detective Mobley. He denied that during the robbery he slid over to the passenger’s side of the truck as Detective Mobley had indicated. He stated that he saw Detective Duncan on the same day that he met with McDaniel, and he determined that the date was Saturday, April 28.

At the end of appellant’s testimony, the State recalled Detective Duncan who testified that he did not work on Saturday April 28. Duncan said that he doubted the appellant could have talked to McDaniel on Friday, April 27, because appellant was in jail on an unrelated matter at that time.

I

Appellant complains that his written motions for a continuance, based on the absence of William McDaniel, a material witness, were improperly denied by the trial court. He argues that McDaniel was indicted as a co-conspirator and had given the appellant certain information which could exonerate him.

The granting of a motion for a continuance in a criminal trial is addressed to the discretion of the trial court, and, unless that discretion is clearly shown to have been abused, it will not be disturbed on appeal. Fletcher v. State, 291 Ala. 67, 277 So.2d 882; Wilson v. State, Ala.Cr.App., 384 So.2d 1243, 6 Ala. Digest Criminal Law 586, 7 Ala. Digest Criminal Law 1151.

The record clearly indicates that the appellant did not subpoena William McDaniel until the Thursday before the appellant’s Tuesday trial date. Also, we note that no showing was made concerning what McDaniel’s testimony would have been. Therefore, it is our judgment that the trial court acted properly in denying the motions for continuance.

II

The appellant contends that the trial court committed reversible error when it admitted into evidence a statement made by the appellant without a showing that he had been given his Miranda rights. He argues that, although no objection was made to the introduction of the statement, its admission should constitute plain error.

Since no objection was made to the admission of the statement, no question for review is preserved. Gunn v. State, Ala.Cr. App., 387 So.2d 280. No “plain error rule” exists in Alabama except for capital punishment cases. See Jacobs v. State, Ala., 371 So.2d 448; Rule 39(k), A.R.A.P.

We note that, at the time the appellant made the statement complained of, he was not a suspect or in custody for the crime. At the time of their discussions with the appellant, the police were under the impression that appellant was the victim. The officers took his statement at that time as part of their investigation of the offense. No Miranda warnings were necessary under these circumstances. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Harris v. State, Ala.Cr.App., 376 So.2d 773; Blackburn v. State, Ala.Cr.App., 372 So.2d 908.

III

The appellant maintains that the trial court erred when it admitted testimony concerning a polygraph test and denied his motion for a mistrial.

The record contains two references to a polygraph. One occurred when Detective Henderson stated that she had talked to the appellant “in the polygraph room.” Appellant objected and moved for a mistrial; the trial court overruled both the objection and the motion. The other reference came during the testimony of Victor Vance, when the witness said that he and appellant had discussed the polygraph test that appellant had taken. The appellant made a general objection and the court did not rule on that objection, but it did instruct the witness not to mention the polygraph test. Appellant did not request a ruling or object to the trial court’s failure to rule on his objection.

We recognize the general rule in Alabama to be that the results of polygraph or lie detector tests are not admissible. Flurry v. State, 52 Ala.App. 64, 289 So.2d 632; Wilcutt v. State, 41 Ala.App. 25, 123 So.2d 193. We do not believe, however, that the first reference to a polygraph violated this rule. The instance merely related to the location of the appellant’s conversation with Detective Henderson, and did not reveal that appellant had taken a lie detector test or disclose its results.

In the second instance, in the absence of a ruling, a request for a ruling, or an objection the court’s failure to rule, there is nothing preserved for appellate review. Margro v. State, Ala.Cr.App., 384 So.2d 871; Cook v. State, Ala.Cr.App., 369 So.2d 1243.

IV

Appellant insists that the trial court erred when it allowed a portion of Mike Vance’s testimony tending to show the execution of appellant’s threat to Vance by a third party. Vance had stated that in August appellant told him that “if I [Vance] don’t some way help him [appellant] cover up what he had done or just totally be quiet that I will be hurt.” Appellant objected to Vance’s further testimony that on December 25 Vance was stabbed by an unknown assailant who said he “wanted to get me back for what I did for Greg Stewart, to Greg Stewart in Montgomery.”

Following a hearing outside the presence of the jury on the admissibility of the foregoing testimony, the trial court ruled that the attacker’s statement would be admitted under the res gestae exception to the hearsay rule. Appellant asserts that the fulfillment of a threat made four and one-half months earlier cannot be considered a part of the res gestae.

Initially, we note that conduct involving the intimidation of a witness or the suppression of evidence is admissible without regard to the time of its occurrence or its being part of the res gestae. See Williams v. State, Ala.Cr.App., 354 So.2d 48, cert. den. 354 So.2d 53 (Ala.1978); Montgomery v. State, 17 Ala.App. 469, 86 So. 132, cert. den. 204 Ala. 389, 85 So. 785 (1920). In Montgomery v. State, supra, the court stated:

“Any act proving, or tending to prove, an effort or a desire on the part of the defendant to obliterate evidence of a crime, is always relevant, for from such facts, if unexplained, the jury may justly apprehend [the defendant’s] mental condition, and may infer that they indicate a consciousness of guilt.. . . Evidence upon this theory never depends on its contemporaneousness, connection with the crime that is charged, or upon its being a part of the res gestae. Facts showing or tending to show a consciousness of guilt are always permissible, though not connected with the res gestae of the offense.” [Emphasis added].

The rule of Montgomery v. State, supra, applies to a defendant’s act which is deemed to be an implied admission of conduct. See Gamble, McElroy’s Alabama Evidence, § 190.02 (1977). When the execution of a threat or the attempt to suppress evidence is done by a third party, then it must be shown that the defendant “offered, procured, promoted or approved such attempt.” Gamble, McElroy’s Alabama Evidence, § 190.03; see Sims v. State, 146 Ala. 109, 41 So. 413 (1906) (evidence that defendant’s father tried to bribe witness not admissible unless father’s action is linked to defendant).

The facts of the case under review convince us that it was shown that appellant “offered, procured, promoted or approved” the act of Vance’s assailant. Appellant himself threatened Vance; four and one-half months later Vance was attacked by one who announced, in substance, that the stabbing was done for appellant. In Wig-more on Evidence, § 105 (3rd ed. 1940) we find the following: ■

“When one threatens to do an injury to another, and that or a similar injury af-terwards happens, this furnishes ground to presume that he who threatened the fact was the perpetrator or instigator.” (quoting Swift, Evidence, at p. 136 (1810).

A fact may be proved by circumstantial evidence as well as direct evidence, and the former is entitled to the same weight as the latter. Mains v. State, Ala. Cr.App., 375 So.2d 1299. We believe that the circumstantial evidence tending to connect appellant with Vance’s stabbing was sufficient to support a finding that the attack was accomplished with appellant’s knowledge or approval. See Williams v. State, supra. We therefore find no error in the trial court’s admission of Vance’s testimony.

V

Appellant contends that he was denied the right to impeach Mike Vance concerning Vance’s prior mental illness and to cross-examine him regarding his appearance before the grand jury in order to prove a prior inconsistent statement.

As to the former, the credibility of a witness may be attacked by showing mental incapacity, but only if the incapacity exists at the time the witness testifies, or existed at the time of his observation of the incident about which he testifies. Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958); See Cannon v. State, 53 Ala.App. 509, 301 So.2d 272 (1974).

As to the latter instance, appellant’s inquiry regarding Mike Vance’s grand jury testimony did not focus upon those questions necessary for impeachment by use of a prior inconsistent statement. Rather, it was directed toward whether Vance, at the time of his grand jury appearance, had retained counsel and had been given his Miranda warnings. Both inquiries were irrelevant to the issue of a claimed prior inconsistent statement. After the trial court sustained the State’s objection to appellant’s questions, the appellant ceased his examination of the witness. He did not inquire further into the matter, or attempt to lay a proper predicate for impeachment by a prior inconsistent statement. We find no error in the trial court’s ruling in this regard.

VI ■

We have examined the evidence in this case and find it sufficient to present a prima facie case of embezzlement. Therefore, the trial court properly overruled appellant’s motion to exclude the State’s evidence. See Hill v. State, 48 Ala.App. 240, 263 So.2d 696; § 13-3-20, Code of Alabama 1975; 8 Alabama Digest Embezzlement 1, 44(1). See also, Cumbo v. State, Ala.Cr. App., 368 So.2d 871.

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

AFFIRMED.

All the Judges concur.


text:
    Ex Parte Gregory Neal STEWART. (Re Gregory Neal Stewart v. State of Alabama).
    80-434.
    Supreme Court of Alabama.
    May 22, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Albert Howard GREEN v. STATE.
    5 Div. 529.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 31, 1981.

      J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra N. Solowiej, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of burglary in the first degree, which is defined by Code of Alabama 1975, § 13A-7-5(a) as follows:

“A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein and, if, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime;
“(1) Is armed with explosives or a deadly weapon; or
“(2) Causes physical injury to any person who is not a participant in the crime; or
“(3) Uses or threatens the immediate use of a dangerous instrument . . . . ”

The commission of the crime was established by undisputed evidence. The issue raised by defendant’s plea of not guilty was narrowed by the evidence to the sole question whether defendant was the burglar, who, according to the testimony of Miss Anna Sappington, seventy-nine years of age, entered her residence about 11:00 P.M., February 3, 1980, pushed her down so forcibly as to cause her to have a large hemato-ma on her hip and a fractured rib, took “two ten-dollar bills and some ones” from her pocketbook, took the telephone away from her as she was attempting to use it and then ran away with the money taken from the pocketbook. The burglar had gained access to the house through a window which had been closed about 8:00 P.M.

The defendant testified that he was not at the scene at the time of the burglary. His wife also testified that he was elsewhere at the time. Both testified that he was probably within a few blocks of the house that was burglarized while the burglary was being committed.

Evidence for the State as a whole was to the effect that immediately after the burglar left the house, Mrs. Sappington called the police; she informed Officer Sammy Reeves that she “wasn’t for sure” as to the identity of the burglar, but that “it was possibly — his last name was ‘Green.’ ” She said that “Green” had done some painting there a few months before and that she had seen him on occasions since.

After Officer Reeves talked with Mrs. Sappington, a call went out over the police radio system containing a description of the burglar “as a black male, approximately five foot, nine inches tall, wearing dark clothing and a toboggan.” Officer Ray Plant of the Opelika Police Department was patrolling at the time and saw a black male, who turned out to be the defendant, walking about two and one half blocks from Mrs. Sappington’s house. Officer Plant asked defendant his name and where he was going, explaining to him that he was investigating the burglary that had just occurred at Mrs. Sappington’s house. Defendant went with the officer to Mrs. Sap-pington’s house, but no positive identification was made of him by Mrs. Sappington at the time. He was then taken to the police station, where he was interrogated and held in custody until “the next evening” when he was released. In the meantime, the clothes he had on him when first seen that night, which included a toboggan, a red windbreaker, a shirt, blue jeans and a pair of black shoes were taken from him. Also taken from his clothes or his person were a knife, “three $10.00 bills, four $1.00 bills, and four quarters;” which were sent to the Alabama Forensic Laboratory and turned over to Mr. Tellis Hudson for examination. Also turned over to Mr. Hudson for examination were some paint scrapings from the inside of the window that had been opened by the burglar and some “red fiber which was on the deadbolt lock on the back door” through which the burglar left the house. After Mr. Hudson examined the articles turned over to him and made his report, defendant was rearrested. Mr. Hudson testified that the paint that was found on the window screen “was similar in color and texture to that found on the pocket knife” taken from the pocket of defendant and that the red fiber taken from the door was of the same color, size and type as the red fiber of defendant’s shirt.

The first issue expressly presented by appellant is:

“Whether the Court improperly allowed a past felony conviction to be considered when sentencing the defendant under the Habitual Offender Act, § 13A-5-9, Code of Alabama, 1975, as amended.”

The gist of appellant’s brief argument as to the issue is that the use of a conviction prior to the effective date of the “Habitual Offender Act” would constitute “a violation of the Defendant’s Federal and State Constitutional rights, as an example of the use of an ex post facto law.”

In holding directly to the contrary Judge DeCarlo in Williams v. State, Ala.Cr. App., 393 So.2d 492 (1981) said:

“A similar claim was rejected by the United States Supreme Court in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683. There the Supreme Court stated:
“ ‘Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act in validly retroactive. . . . The sentence as a . . . habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.’ ”

We now reach the same conclusion and apply it in rejection of the first contention of appellant.

During the cross-examination of Officer Moss, he was asked by defendant’s counsel as to a statement made by the defendant on the night of the second arrest of the defendant, which apparently was on Friday, February 7, three days after his release from his first arrest. The testimony was as follows:

“He wanted to make a statement.
“Q. Did he give you a statement?
“A. Yes, sir, he did.
“Q. Okay. Do you have that statement in your possession?
“A. Yes, sir, I do.
“Q. Would you mind reading it to the jury?”

Thereupon an objection was made and a ruling made as follows:

“MR. HARPER: We object. It would be self-serving.
“THE COURT: Sustained.
“(Thereupon, the following proceedings were had in the presence but out of the hearing of the jury:)
“MR. WILLIAMS: Your Honor, we object to the overruling, to the fact that we believe that the Court should be interested in what the defendant did actually tell the police.
“THE COURT: I am interested, Mr. Williams, but I don’t think the rules of evidence permit it. I don’t think a self-serving declaration of a defendant, not made at the scene — afterwards, are not admissible. That’s my interpretation of the law.
“MR. WILLIAMS: Well, we object to that ruling, then, Your Honor.
“THE COURT: I understand your objection, certainly.”

Both parties cite in support of their respective positions Gamble, McElroy’s Alabama Evidence, § 242.02 (1977), which states:

“Many Alabama appellate court opinions state that evidence of a party’s extra-judicial declaration offered by him is inadmissible as being a ‘self-serving declaration.’ Such statements, however, are misleading in that they seem to imply that there is some sort of special rule against the reception of ‘self-serving declarations.’ Such an implication is erroneous because there is no rule of evidence that can be properly or accurately described as the rule against self-serving declarations. If a self-serving declaration is inadmissible as tending to prove the truth of the matter asserted, the inadmissibility results from the hearsay rule. If a self-serving declaration falls within an exception to the hearsay rule, such as a party’s declaration of present pain offered as tending to show that he suffered pain or an accused’s declaration of an innocent purpose of a journey made while he is setting out upon the journey, the declaration is admissible under the exception regardless of its self-serving quality.
“The harm that comes from using the term ‘self-serving declaration’ is that it tends to cause one to lose sight of the fact that a so-called self-serving declaration may be admissible under an exception to the hearsay rule or simply because it is relevant irrespective of the truth or falsity of the declaration.”

We agree with appellant and with Judge McElroy in that it would have been better for counsel for the State to have objected on grounds that the question called for incompetent, irrelevant, and immaterial evidence and that it called for hearsay evidence that did not come within any exception to the hearsay rule of exclusion; we agree with Judge McElroy and appellee that “a party’s extrajudicial declaration offered by him is inadmissible, against proper objection,” unless it comes “under an exception to the hearsay rule” or unless “it is relevant irrespective.of the truth or falsity of the declaration.” The evidence offered did not possess either of such qualifications. In holding as we do that the ruling of the trial court does not constitute reversible error, we apply another clear and pertinent statement of Judge McElroy:

“The trial court’s sustention of either a specific or general objection will be affirmed on appeal if the evidence excluded was subject to any legal objection even though such objection was not specified.
Gamble, McElroy’s Alabama Evidence, § 426.01(13) (1977)

The final issue expressly presented by appellant is “whether the evidence as presented by the police and the Department of Forensic Science should have been excluded.” In support of his four-page argument, appellant cites Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). He does not quote from either of the opinions cited or refer to any conduct, commissive or omissive, of the law enforcement authorities that he claims was not in harmony with any of the principles set forth in either of the cited cases other than as stated by him as follows:

“The ease at hand does not involve a written confession of the crime but at issue is the basis on which the victim identified the defendant as being the burglar who committed the crime. When the defendant was taken to the victim’s house, while in custody and without private warnings and after preliminary interrogations by Officer Plant, the defendant began talking and the victim used his speech as a primary basis for her identification. (T. 25, 32, 34). These statements incriminated the defendant and embedded into the mind of the victim a voice on which she based her identification.”

As our brief narrative of the evidence indicates, the defendant went voluntarily with Officer Plant to the home of the victim during the earliest stage of the investigative procedure, well before he was accused, and entirely without the range of the period and circumstances of a custodial interrogation to which any of the principles of either Miranda or Escobedo applies. The record does not support any implication in appellant’s argument to the effect that defendant was required by the officers to talk in the presence of the victim, but even if he were so asked or required, it would not have constituted under the circumstances a violation of any of defendant’s constitutional rights.

“The voice identification of the appellant by the victim in no way infringed upon the appellant’s constitutional rights. Evidence of the appellant’s voice is not ‘testimonial or communicative in nature.’ Wilson v. State, 57 Ala.App. 125, 326 So.2d 316. As the court stated in Wilson:
“ ‘A person’s voice is a “physical characteristic,” subject to be compelled to disclose to identifying witnesses.’ ”
Donahoo v. State, Ala.Cr.App., 371 So.2d 68, cert. denied, 371 So.2d 73 (Ala.1979).

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex Parte Albert Howard GREEN. (Re: Albert Howard Green v. State of Alabama).
    80-464.
    Supreme Court of Alabama.
    May 22, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge. DeCARLO, Judge,

text:
    Claude H. HARRIS, Jr. v. STATE.
    6 Div. 393.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 31, 1981.
    Orson L. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Claude H. Harris, Jr., was indicted for sexual contact by forcible compulsion, otherwise known as sexual abuse in the first degree, in violation of § 13A-6-66, Code of Alabama 1975. After receiving from the trial court proper instructions on lesser included offenses, the jury found the appellant guilty of sexual abuse in the second degree under § 13A-6-67, Code of Alabama 1975. The trial court sentenced appellant to one year in the Jefferson County jail and fined him $1,000.00. A motion for new trial was denied.

On January 3, 1980, at approximately 8:40 a. m. appellant arrived at the apartment of the prosecutrix, the alleged victim in this case. The prosecutrix recognized appellant through the crack of her chained door, as a man she had seen several times before at a local bar and once at her apartment building where he had helped her neighbor move. He asked to use the telephone to locate a man whose apartment number he could not remember and who he was supposed to meet that morning on business. The prosecutrix let him in to use the phone and after a short conversation with him she went into her bedroom to dress for work. She was in a hurry because as manager of a local jewelry store in Birmingham it was her duty to open the store each morning and she was running late. After appellant had apparently made several unsuccessful attempts to locate his alleged business associate, he walked to the bedroom, opened the door, and saw the prose-cutrix in her bra and pantyhose.

There was some dispute about the events that followed. The prosecutrix testified that after the appellant burst through the door he grabbed her and pinned her to the bed and began undressing her. He kept calling her a “prostitute”, a fact which she emphatically denied. After undressing her and in spite of her attempts to free herself from his grasp, appellant put his hands all over her body, including her breasts, her vagina and inside her vagina. She continued to struggle and protest this abusive treatment and finally the appellant got up and left the apartment.

Later that day the prosecutrix reported the incident to the police, although at the time she did not remember the appellant’s name. It was only later, after contacting some friends and doing other investigative work of her own that she identified her attacker as the appellant.

The appellant called her a few days later and begged her not to pursue the matter with police. He told her he was sorry and would not bother her again.

Appellant’s statement regarding the incident inside the prosecutrix’s apartment differed considerably. Appellant did not testify at trial, but his recorded statement was read into evidence by Sergeant Harold Mur-dock, a detective for the Hoover Police Department. In the statement the appellant confirmed everything up to the point where he opened the bedroom door. His statement was that at that point he apologized for opening the door and left without any contact with the prosecutrix whatsoever. He called her a few days later to apologize again and assumed the matter was closed.

Sergeant Murdock testified that he and Sergeant Tom French, also a detective with the Hoover Police Department, arrested the appellant on January 9, 1980, at approximately 2:30 p. m. The arrest took place inside an establishment called Fantastic Sam’s in the K-Mart Shopping Center in Hoover. During the arrest the Miranda warnings were read to appellant twice, once by Sergeant French inside the building, and again by Sergeant Murdock outside beside the police car. The warnings were read from a prepared Miranda card, which did not include the warning that:

“You can decide at any time to exercise these rights and not answer any questions or make any statements.”

However, this warning was included on a Rights Waiver form and was read and signed by the appellant before his statement was taken later that day. All the warnings were not read to appellant just prior to his statement because he stopped the officers and explained that he fully understood his rights.

Sergeant Murdock also testified that during the interview just before the statement was taken, Sergeant French told appellant that his lawyer had called to say that he, appellant’s attorney, would be unavailable until the next morning. Nevertheless, appellant gave his complete statement to the officers.

On April 18, 1980, appellant was arraigned and appointed counsel. He retained new counsel on May 3, 1980. Before trial an order was granted appellant to obtain from the district attorney, names and addresses and expected testimony of each of the state’s witnesses. At trial, appellant filed a motion for continuance because he had not been able to interview the alleged victim, the prosecutrix, who was then living in Atlanta, Georgia. After a hearing, the trial court denied the motion because the prosecutrix was within her rights to refuse to talk to appellant’s counsel and because her testimony at the preliminary hearing could have been readily obtained anyway.

A demurrer to the indictment was also denied at trial.

During the trial, appellant’s motions to suppress appellant’s statement to Officers Murdock and French because of a failure to properly give the Miranda rights, and to suppress the prosecutrix’s in-court identification of appellant were denied.

After the guilty verdict was pronounced, the appellant filed his motion for a new trial which was duly denied.

I

The principal argument raised on appeal is that the prosecution made remarks in closing argument which constituted prejudicial error against the appellant such that a new trial should have been granted. The rules governing the latitude given to counsel in closing argument, the permissible inferences that counsel can draw from the evidence, and the deference to be given the trial court with regard to his efforts to eradicate possible prejudicial error and with regard to his conclusions on the resulting effects on the jury are clearly outlined in a recent opinion, Chambers v. State, Ala.Cr. App., 382 So.2d 632, cert. denied, Ala., 382 So.2d 636 (1980), and cases therein cited. We need add nothing to the rules themselves, nor to the cases cited in Chambers. We need only point out that the prejudicial effects of remarks of counsel can be removed by the trial court through either sustaining objections of opposing counsel or properly instructing the jury as to improper remarks or both and that the trial court is in a much better position than an appellate court to assess the net effect of such remarks on the jury.

The following is typical of the remarks, objections and court rulings raised by this appellant as improper or prejudicial: R. pages 156-166

1.“MR. GOMANY: The girl asked the victim to please move her car.
“MR. JOHNSON: I object to the continued use of the term victim.
“THE COURT: Overruled.
“MR. JOHNSON: We except.
“THE COURT: Ladies and gentlemen, I’m going to have to say this eventually, so I might as well say it. The lawyers in arguing this case can draw any inferences, reasonable inferences they can draw from the evidence. They can argue their recollection of the evidence. They can argue their interpretation of the law, that is, their interpretation of it. The law will come from the Court. In arguing, of course, I say they can argue and I have told you what they can argue. What they do argue is not evidence. You all heard the evidence. You will decide what the evidence is. Go ahead.”
2. “MR. GOMANY: You have a lot of weirdos that do things like this.
“MR. JOHNSON: Judge, I object to that argument.
“THE COURT: When he objects lets stop a second.
“MR. JOHNSON: I object to the use of the term ‘we have a lot of weirdos’.
“THE COURT: Overruled.
“MR. JOHNSON: We except.”
3. “MR. GOMANY: They go out to this hair cutting place in Hoover, K-Mart out there in Riverchase. Remember now, two detectives and several patrol officers with them to make his arrest.
“MR. JOHNSON: Judge, I object to that as being improper argument. It’s just for the sole purpose of trying to inflame the jury.
“THE COURT: Overruled.”
4. “MR. GOMANY: Four [police officers]. They have been on the force for years.
“MR. JOHNSON: Judge, there’s no testimony about any police officers.
“THE COURT: Correct, there is not.”
5. “MR. GOMANY: Mr. Johnson tries to insinuate things up here yesterday. You heard him put that poor woman what she had to go through. He’s up here trying to bring things out about her. He didn’t have one single witness up here to say anything about that whatsoever.
“MR. JOHNSON: Judge, I object to that.
“THE COURT: Overruled.”
6. “MR. GOMANY: This is Harris speaking. You know, I admit — I mean — I mean — I’m not no angel by a long shot, because I mean — I mean, I’ve been in a lot of trouble.
“MR. JOHNSON: Judge, I object to going into this.
“THE COURT: It’s in evidence. Overruled.
“MR. GOMANY: I’m not no angel by a long shot. I’ve been in a lot of trouble. What does that tell you about him?
“MR. JOHNSON: We object to that comment by Mr. Gomany.
“THE COURT: Overruled.”
7. “MR. GOMANY: Just think of the injury she has to suffer for the rest of her life just because of this nut over here.
“MR. JOHNSON: Judge, I object to that argument.
“THE COURT: I sustain the objection. Disregard the term nut.
“MR. GOMANY: Well, you can go back there and think whatever you want to. But he’s no good. We’re asking you to convict him and find him guilty of that offense. We want him out of the streets. These people are scared of him.
“MR. JOHNSON: Judge, I’m going to object to that.
“THE COURT: Overruled. As I told the jury, he can draw his inferences from the evidence like you can draw yours.”
8. “MR. GOMANY: He gets his kicks out of breaking in on the woman, pretending to use the phone, getting on her bed and pinning her down and putting his hands in her and calling her a prostitute. That’s a weirdo. He needs to be off the street for a while.
“That’s why we are having this trial.
“MR. JOHNSON: I object to the use of the term weirdo.
“THE COURT: I think I sustained the objection to that before. I sustain it again. Disregard it, ladies and gentlemen.”

While we fully recognize that the foregoing is not a model to emulate in closing argument by a prosecutor, nevertheless, we support the actions of the trial court in controlling the attempted abuses by the state’s attorney, and find that such court actions did indeed prevent any undue prejudice to the appellant. The verdict itself supports this holding. Where, as here, the jury returns a verdict for a lesser offense than that charged in the indictment even though the evidence is clearly sufficient to support the alleged offense, there is strong indication that a prosecutor’s remarks checked by timely court instructions had no effect harmful to the appellant. Chambers v. State, Ala.Cr.App., 382 So.2d 632, cert. denied, Ala., 382 So.2d 636 (1980); McQueen v. State, Ala.Cr.App., 355 So.2d 407, 411 (1978).

Appellant cites many cases in support of his contention that the remarks of counsel warrant a reversal in this case. Among those cited are Madison v. State, 55 Ala. App. 634, 318 So.2d 329 (1975); Langley v. State, 32 Ala.App. 163, 22 So.2d 920 (1945); Blue v. State, 246 Ala. 73, 19 So.2d 11 (1944); and Weaver v. State, 56 Ala.App. 29, 318 So.2d 768, cert. denied, 294 Ala. 773, 318 So.2d 772 (1975). We have reviewed these cases and find them distinguishable on their facts. In fact, Madison v. State, supra, stated the guiding principle regarding precedence for determining the prejudicial nature of arguments of counsel thusly:

“Our appellate courts have held that no ironclad rule exists by which the prejudicial qualities of improper remarks of counsel can be judged. Such depends upon the issues, parties, and general circumstances of the particular case.”

As explained above, it is our conclusion that under the particular facts of this case, there was no reversible error.

II

Appellant also contends that the trial court erred to reversal by not sufficiently correcting remarks of the prosecutor that a certain witness was not called by the appellant. After reviewing the record, we find not only that the court made a timely instruction to the jury regarding the rule involved, but also that said remarks of the prosecutor were not in any way prejudicial to the appellant.

The appellant cites cases correctly stating the rule that one party cannot comment as to the other party’s failure to produce a witness that was available to both parties. Garsed v. State, 50 Ala.App. 312, 278 So.2d 761 (1973); Jarrell v. State, 251 Ala. 50, 36 So.2d 336 (1948).

However, these cases are distinguishable in that the trial courts did not properly or sufficiently correct the improper remarks, which were persistently waved in front of the jury to the prejudice of the defendants. Such is not the case here.

In pertinent part the record shows that the trial court properly instructed the jury as follows: R. pages 164-165

“THE COURT: Let me interrupt. Ladies and gentlemen, the lawyers can comment on a missing witness if the witness is not available to the other side who is objecting. If the witness is available to the other side then there can be no comment on it. With reference to this Gus, frankly I’ve kind of forgotten whether he was available or not available. In any event, to be safe, Mr. Gomany, just don’t comment on his absence. Disregard that comment, ladies and gentlemen.”

Ill

Another argument by the appellant is that the prosecutor illegally made reference to the fact that the appellant did not testify in his behalf. Specifically, the prosecutor commented in closing argument: R. pages 152-153

“MR. GOMANY: Mr. Johnson tries to insinuate things up here yesterday. You heard him put that poor woman what she had to go through. He’s up here trying to bring things out about her. He didn’t have one single witness up here to say anything about that whatsoever.”

Without deciding whether or not this comment would be prejudicial, we agree with the state’s contention that the comment referred only to the failure of appellant to produce witnesses to impugn the reputation of the alleged victim. Such reference is permissible where one party has the right to offer evidence on a given point. The jury has a right to infer that no such evidence exists and opposing counsel can comment on its absence, Earle v. State, 1 Ala. App. 183, 56 So. 32 (1911); Jarrell v. State, 251 Ala. 50, 36 So.2d 336 (1948).

IV

Several other points were raised by appellant in brief. These arguments have been carefully considered and are found to be without merit.

This case is due to be and is hereby affirmed.

AFFIRMED.

All Judges concur except DeCARLO, J. who concurs in result only.

DeCARLO, Judge,

concurs in result.

I do not find the behavior of the district attorney, shown in this opinion, to be so objectionable. An experienced trial judge was at all times firmly in control of the situation.

Further, we should realize that a trial is not a pink tea party, but a “legal battle.” Arant v. State, 232 Ala. 275, 167 So.2d 540. Therefore, I concur in the result.


text:
    Ex Parte Claude H. HARRIS, Jr. (Re Claude H. Harris, Jr. v. State of Alabama).
    80-470.
    Supreme Court of Alabama.
    May 22, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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