author: HARRIS, Presiding Judge.

text:
    Bobby Ray EVANS v. STATE.
    4 Div. 998.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Dec. 22, 1982 Alabama Supreme Court 82-49.
    Alice L. Anderson, Enterprise, for appellant.

      Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

This is an appeal from revocation of probation made and entered on the 18th day of January, 1982.

Appellant was indicted for violating Section 20-2-70, Code 1975, in that he unlawfully obtained a controlled substance through the use of a forged prescription. He pleaded guilty to this charge on April 4, 1981, and was sentenced to two years’ imprisonment in the penitentiary. On April 30, 1981, the appellant’s sentence was suspended and he was placed on probation for two years.

On June 16, 1981, the appellant was arrested for unlawful possession and sale of marijuana and was declared delinquent. He was arrested on June 24, 1981, and committed to jail in Dale County, Alabama. On June 30, 1981, the State recommended that appellant’s probation be revoked. On August 17, 1981, appellant was notified of the charges of probation violation placed against him.

A hearing was conducted by Honorable P.B. McLauchlin, Jr., Circuit Judge of Dale County, Alabama. At said hearing he was represented by counsel of his choice. He testified that he was given written notice of his probation violation. He further admitted that he had been convicted in the United States District Court for possession of a controlled substance, namely marijuana.

The court made and entered the following written order:

“This cause coming on to be heard on probation revocation hearing and the court having considered the same, the court finds the defendant was given written notice of the violation of his probation and he was afforded an opportunity to be heard. The court further finds the appellant was guilty of the possession of marijuana during the time he was on probation and that he admitted he had been convicted of this crime.”

The following order of revocation of probation was made and entered by the Circuit Judge of Dale County:

“On the 18th day of January, 1982, comes now the State of Alabama by its District Attorney, Honorable Edward W. Boswell, also comes the defendant, Bobby Ray Evans, in his own proper person and with his attorney, Honorable Alice Anderson, for a hearing to determine whether the order of probation made in this cause on the 30th day of April, 1981, should be revoked.
“Thereupon, the Court hearing the evidence and having access to the report of the Probation Officer, finds that the defendant, Bobby Ray Evans, has violated the conditions of the order of probation previously entered and that said probation is due to be revoked.
“It is therefore, ORDERED and ADJUDGED by the Court that the order of probation entered in this cause on the 30th day of April, 1981, and the suspension of sentence in this case be, and the same are, hereby revoked and annulled. It is further ORDERED that the sentence heretofore passed on this defendant of imprisonment in the Penitentiary of the State of Alabama for a period of 2 years commence immediately.”

We find that the guidelines set forth in Armstrong v. State, 294 Ala. 100, 312 So.2d 620, were fully complied with and the judgment is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Elmore NICHOLS, Jr. v. STATE.
    6 Div. 733.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Dec. 22, 1982 Alabama Supreme Court 82-52.
    Virginia A. Vinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

First degree rape; sentence, thirty years’ imprisonment.

During the early morning hours of September 6, 1980, appellant forced his way into the locked townhouse of the prosecu-trix, located in Forestdale in Jefferson County, made his way to her upstairs bedroom, and raped her.

The prosecutrix stated that her assailant was a lean and muscular black male. The assailant repeated several times, “Keep your eyes closed.” By complying, the pros-ecutrix did not see him and, thus, could not identify him by sight. However, throughout the ordeal, the assailant spoke in a very distinct soft voice and used no colloquialisms. The assailant used several phrases such as, “I know you, you know me.”; “I won’t hurt you if you keep quiet,” and “do not open your eyes.” He also inquired as to whether she had anything under her pillow. After raping her, the assailant rummaged through the prosecutrix’ purse and took some money.

About six weeks later, the prosecutrix was called to the Birmingham City Jail to listen to the voices of several black men. She submitted the following phrases for the participants to recite: “Keep your eyes closed” and “I’ve been wanting this for a long time.” Several other women were present for the same purpose as the prose-cutrix. At one time the women were together but were separated shortly thereafter. They listened to the voices and made their identifications separately. The prose-cutrix was not told that one of the participants was a suspect, nor did she know that appellant was in the lineup. The prosecu-trix did not view the participants. Rather, she merely listened to their voices.

The prosecutrix immediately picked appellant as her assailant. She stated that “when the person spoke that had raped me [appellant] I knew immediately that was the right voice.” The prosecutrix stated that she had had his voice in her “head” since the incident and when she heard appellant’s voice, it matched with what she had been listening to in her “head” every night since the rape. She identified appellant’s voice from her recollection of what she had heard on September 6 and on the way appellant spoke the phrases she had provided.

I

Appellant’s only issue on appeal concerns the trial court’s denial of his pre-trial motion to suppress evidence of prior similar crimes. The State offered the testimony to show the identity of appellant.

A pre-trial hearing was held and the prosecutrix gave the same testimony as that recounted above. In addition, the State called three other victims of rapes, which occurred in May, July, and August, respectively. However at trial, only the testimony of the July and August prosecu-trixes was offered. At trial, their testimony was identical to that offered at the hearing on appellant’s motion.

The July prosecutrix testified that during the early morning hours of July 18, 1980, she was awakened in her apartment by the presence of a black male who grabbed her from behind. The bedroom of her third floor apartment was dark and, thus, she could not see her attacker. The assailant repeatedly said, “Do not scream or I’ll cut your throat.” The prosecutrix stated that the assailant had a knife. He asked her several times what was under her pillow to which the July prosecutrix replied, “Nothing.” Her assailant told her not to make any noise and do exactly as he said. He then raped her. After a short period of time he raped her again. Afterwards, he told her several times that “I [appellant] know who you are and I know where you work.” He went through her purse looking for money. About twenty minutes after breaking in, the assailant left.

About three or four months later, the July prosecutrix was called to attend a voice identification lineup at the Birmingham City Jail. She stated that she was placed in a room with other women and asked to submit phrases for the lineup participants to say. While together, the women did not discuss their assailant’s tone of voice or enunciation of words, or phrases to submit. Further, there was no mention of the details of their separate incidents.

The July prosecutrix listened to about four lineup participants before she identified appellant as her assailant. No other victim was present. She stated that appellant had a very soft voice and manner of speaking with a clear rhythm and enunciation of words. She stated that her identification of appellant was based on how he said the submitted phrases. The July pros-ecutrix testified that she had no doubt about her identification and although the several phrases submitted were similar “what difference did it make what he said, really; when he opened his mouth I knew it was him [appellant].”

The August prosecutrix testified that on August 25,1980, she lived alone in an apartment in Birmingham. During the early morning hours, she was awakened by a black man holding a pillow over her head saying, “If you say anything I’ll kill you.” He repeatedly stated that “he knew me and if I looked at him he would kill me.” The assailant pressed something on her head which she thought was a gun. The August prosecutrix never saw the face of her assailant. She described the assailant’s voice as a light, “soft-speaking voice.” The assailant stayed in the ground level apartment for about fifteen minutes before leaving. The August prosecutrix stated that nothing was taken. A broken kitchen window was found to be the point of entry. It was examined by the police for fingerprints. At trial, it was proved that a latent fingerprint removed from the broken window was made by appellant.

The August prosecutrix attended a lineup held at the Birmingham City Jail but did not listen to any of the participants’ voices. She stated that she had not compared her recollection of the assailant’s voice with that of the other victims.

Jefferson County Sheriff’s Department Sgt. Linn Moore testified that he investigated the instant offense. He had the pros-ecutrix listen to the voices of six black males. He stated that each had similar height and weight characteristics. Moore stated that although he did not use their voices as a criterion for selection, the voices of the participants were similar. He made each participant read in a soft voice the pre-selected phrases submitted by the various victims. Moore stated that each victim who participated listened to the lineup separately.

The May prosecutrix testified that around 5:00 a.m. on May 18, 1980, she was awakened in her bedroom of her second floor apartment by a black male with his hand over her mouth. The assailant repeatedly told her not to scream as he had a knife. He also stated that he knew her son was in another bedroom and would hurt him if she screamed. The assailant placed a pillow over her face and repeatedly told her not to look at him or she would be hurt. The assailant then raped her. She stated that he spoke softly.

In October or early November, the May prosecutrix went to the Birmingham City Jail to listen to several voices and attempt an identification of her assailant. She stated that other women were present initially to submit phrases for the participants to recite. Afterwards, she was taken individually to view five or six black males. She had each participant recite the submitted phrases twice and had appellant say them an additional time. She identified appellant as her assailant.

II

It is well established that several well defined exceptions exist to the general rule that prohibits admission of evidence of other or collateral crimes as substantive evidence of guilt of the accused. All the exceptions are grounded upon relevancy. In the instant case, one exception is applicable, that being relevancy to prove identity of persons. Lewis v. State, 399 So.2d 907 (Ala.Cr.App.1981); Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981); Breen v. State, 349 So.2d 113 (Ala.Cr.App.1977); Tate v. State, 346 So.2d 515 (Ala.Cr.App.1977).

Limitations have been placed upon the use of the identity exception, and those have been enumerated in Brasher v. State, 249 Ala. 96, 30 So.2d 31, 35 (1947):

“It follows, therefore, that for the purpose of identification, the prosecution should not be permitted to give in evidence other crimes of the defendant, committed on or with other persons, unless they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other than to show the defendant’s bad character or moral delinquency.” (Citations omitted.)

The limitations appear in the following manner in Kilpatrick v. State, 51 Ala.App. 352, 285 So.2d 516, cert. denied, 291 Ala. 628, 285 So.2d 252 (1973), which quoted with approval Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953):

“[E]vidence [of] other crimes alleged to have been committed by the defendant [are inadmissible] unless they are so connected by circumstances with the particular crime charged as that proof of one fact with its circumstances has some bearing on the issue on trial other than to show in the defendant a tendency or disposition to commit the crime with which he is charged.”

See Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966).

Thus, to be admissible under the identity exception, the collateral crime must have been committed “in the same novel and peculiar manner” as the pending prosecution. Gamble, McElroy’s Alabama Evidence §§ 69.01(8), 70.01(22)(b) (3rd ed. 1977).

Appellant’s identity as the prosecutrix’ assailant was placed in issue through his motion to suppress. The similarities between the prior incidents and the one sub judice easily meet the “novel and peculiar manner” standard for admission of collateral crimes as substantive evidence of appellant’s guilt. In particular, the crimes were all committed in the same county, with three being committed in consecutive months. The crimes were perpetrated in the early morning hours against single adult women, three of whom at the time of the crime were alone in their homes. In each instance, the perpetrator was a black male who spoke in a very distinct soft voice and whose conversation with each victim was extremely similar in pattern and phraseology. In each instance, the victims were threatened with bodily harm. In each instance, the perpetrator went to great lengths to prevent his victim from seeing him and in two instances used a pillow to cover the victim’s face. In two instances, the perpetrator inquired about what the victim was concealing under a pillow. In addition, the same two victims were robbed. In three instances, the victims unequivocally identified appellant from his voice and in one instance appellant’s fingerprint was found at the point of entry into the residence.

The trial court in its oral charge instructed the jury that the July and August prose-cutrixes’ testimony was admitted for the limited purpose of showing identity.

A careful review of the record reveals no error in the trial court’s ruling denying appellant’s motion to suppress because the admitted testimony was clearly relevant to the issue of appellant’s identity. Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944); Johnson v. State, 242 Ala. 278, 5 So.2d 632 (1941).

In addition, we feel that the above testimony would have been admissible under the system exception. Lewis, supra; Brown, supra.

We have reviewed appellant’s contentions appeal and have found no error. The judgment of the Jefferson Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Charles E. SNIDER, alias v. STATE of Alabama.
    7 Div. 967.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Dec. 3, 1982. Alabama Supreme Court 82-57.

      J.A. Hornsby, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Gregory J. Robinson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Charles E. Snider was indicted for the December 11, 1981, first-degree theft of a bulldozer owned by S.J. Otinger, Jr. The appellant was found “guilty as charged in the indictment” and the trial court sentenced him to 15 years’ imprisonment.

S.J. Otinger, Jr., a contractor, reported one of his bulldozers missing on December 11, 1981. An employee of Otinger’s stated he last saw the bulldozer at 4:00 p.m. on December 11,1981. Mrs. Jane Rosson testified that a truck pulling a trailer with a bulldozer on it stopped in front of her house. She called her brother-in-law, Roy Rosson, to come to her house and see what the problem was. When Roy Rosson arrived at Jane Rosson’s home, around 6:00 p.m., he saw a man fixing a flat tire on a truck which had a trailer with a bulldozer on it parked in front of Mrs. Rosson’s home. He testified that a man was fixing a flat tire, and identified the man working on the flat tire as the appellant, Charles E. Snider.

On the afternoon of December 12, 1981, Officers Bobby Norman and Leslie Cox of the Etowah County Sheriff’s Department stopped appellant and a companion, Jackie Dale Tucker, on Highway 77. Appellant was taken to the county courthouse, arrested and advised of his Miranda rights. Officers Norman and Cox questioned appellant around 6:00 p.m. and he denied any knowledge of the missing bulldozer. The appellant was placed in a line-up and Mr. Rosson identified him as the man he saw fixing the flat tire on the truck on the previous day.

On December 15, 1981, appellant was once again questioned by Officer Norman. Appellant was questioned three separate times that day. At 8:30 a.m., appellant was told that Jackie Dale Tucker had made a confession and was shown her statement. Around 10:00 a.m., the appellant confessed that he had taken the bulldozer as part of an insurance scam and agreed with Tucker’s statement.

During trial, the State sought to introduce appellant’s confession. The judge ordered that the jury be removed from the courtroom while he determined the admissibility of the confession.

At issue was the voluntariness of the confession. Officer Norman testified he read appellant his rights, did not promise him leniency or other inducement in return for a confession or threaten him in such a manner as to force him to make a confession. Based on Norman’s testimony, the judge ruled the confession had been voluntarily made by the appellant, and allowed it to be considered by the jury in its determination of the guilt or innocence of Snider.

The defense made a motion to exclude the State’s evidence on the grounds that if a confession had been made it was involuntary and illegally induced. The motion was overruled. The court also overruled appellant’s motion to set aside the jury’s verdict.

I

Appellant’s only contention in this case is whether the question of the voluntariness of a confession is a question of fact to be determined by the jury or solely by the trial judge.

The prosecution has the burden of showing sufficient proof to the trial judge that it was voluntarily made before the same can be admitted into evidence. Sheppard v. State, 49 Ala.App. 674, 276 So.2d 353 (1973). The issue of voluntariness is a question of law to be resolved by the trial judge in the first instance outside the hearing of the jury. Hurst v. State, 356 So.2d 1224 (Ala.Crim.App.1978); Carter v. State, 53 Ala.App. 43, 297 So.2d 175 (1974); McNair v. State, 50 Ala.App. 465, 280 So.2d 171 (1973); Rutland v. State, 31 Ala.App. 43, 11 So.2d 768 (1943).

It is not unusual for conflicting testimony to be presented during a voluntariness hearing. When this conflict arises, great weight will be given to the trial court’s judgment if he determines the confession to be voluntary. The trial judge’s decision will be upheld unless his conclusion is palpably contrary to the great weight of the evidence and manifestly wrong. Morgan v. State, 363 So.2d 1013 (Ala.Crim.App. 1978); Hurst, supra; Carter, supra; McNair, supra. “Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty.” Morgan, supra; McNair, supra.

This court has held that the question of the admissibility of a confession is for the judge while the credibility and weight to be given a confession is for the jury. Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976); Sheppard, supra; Rutland, supra. Once a confession has been admitted into evidence, the jury may consider the circumstances in which the confession was obtained and the way by which it was elicited in determining the credibility of the evidence and the weight to which it is given in reaching their decision. Lewis, supra.

The trial judge properly followed the correct procedures in determining the voluntariness of appellant’s confession and admitting same into evidence. The confession was then properly weighed by the jury in reaching their verdict. Cases herein cited.

There being no error in this record, the cause is affirmed.

Affirmed.

All the Judges concur.


author: BOWEN, Judge.

text:
    Robert Wayne LOLLAR, alias v. STATE.
    7 Div. 964.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.

      Hubert H. Wright and Donald W. Stewart, Gadsden, 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 unlawful sale of Talwin in violation of Alabama Code 1975, Section 20-2-70(a). He was sentenced as an habitual offender to fifteen years’ imprisonment.

Although a number of issues are presented on appeal, only one argument merits the attention of a written opinion. That argument is reduced to the question of whether or not the defendant exercised due diligence in discovering a ground of a challenge for cause of one of the jurors.

As grounds for his motion for new trial, the defendant alleged that juror Naomi B. Keith was not qualified to serve on the jury because she had two convictions for the unlawful sale of marijuana. The fact of these convictions was undisputed.

The entire jury venire for the criminal docket for a week of court was qualified by Judge William W. Cardwell, Jr. who asked if any juror had ever been convicted of a felony. Ms. Keith did not respond. In qualifying the venire for the defendant’s trial, Circuit Judge Hobdy G. Rains made this same inquiry. Again, Ms. Keith did not respond.

During the hearing of the motion for new trial, Judge Rains made a statement “for the record” that he was “very concerned with the fact that the juror failed to answer in the affirmative to the questions propounded to her, particularly, on ‘Have any of you ever been convicted of a felony or a crime, involving moral turpitude?’ ” The trial judge stated that he had “talked with the juror who stated that she did not hear that question from either (Judge Cardwell)” or himself.

Defense counsel objected because neither he nor the defendant was notified of or present at the judge’s questioning of the juror. The judge responded to the objection with the statement that he “was not going to question her in your presence because that was a court matter and had nothing to do with this trial.”

Defense counsel also objected because the juror had been released “which would in effect preclude my examination or cross examination.” While we specifically disapprove of the trial judge’s ex parte examination of the juror, we note that no effort or request was made to subpoena or produce Ms. Keith as a witness at the hearing on the motion for new trial.

The defendant testified that before the jury was struck he recognized Ms. Keith. He knew that she had been “busted” (arrested) for drugs. He was present in the courtroom when the trial judge asked if any member of the venire “had ever been involved or convicted of a crime involving moral turpitude.” The first time the defendant ever brought this matter to the attention of his attorney was immediately after the jury had reported its verdict of guilty.

The defendant testified that when Ms. Keith failed to respond to the judge’s questions he “assumed” that she had not been convicted although he knew that she had been arrested. He also knew that her son was “wanted”. The defendant knew Ms. Keith “through purchasing drugs through her son.”

On cross examination the defendant admitted that he heard the assistant district attorney ask the jury panel “whether or not anybody in their family had been arrested for a like offense.” However, the defendant explained that Ms. Keith’s son had never been arrested: “I know her son was wanted from a sale case, I know she got arrested for drugs, whether conviction, or whatever, I didn’t know. I didn’t know if her son had ever been picked up afterward or not.”

During the prosecutor’s cross examination of the defendant the trial judge stated, “Well, the question was asked by him (district attorney) in qualifying the jury as to whether any of them had had any of their close relatives or friends that were involved in the drugs.” The defendant also admitted that he heard the prosecutor “ask anything about anybody in their family being arrested, charged or anything with drugs.”

Defense counsel did not review the list of prospective jurors with the defendant. The defendant did not inform his counsel that he recognized Ms. Keith or knew her son until immediately after the jury found him guilty. Defense counsel stated that after the jury reported he was asked by the defendant “as to whatever happened to her cases because she had been busted.”

The trial judge overruled the motion for new trial on the ground that “the Defendant was not prejudiced by the fact that there was an unqualified juror.”

Where a defendant challenges a pet-it juror after a verdict, the initial inquiry is whether the disqualification was a ground for the juror being mandatorily excused as a petit juror, and, secondly, whether the defendant exercised due diligence to keep the unqualified venireman off the jury. Beasley v. State, 89 Ala.App. 182, 185, 96 So.2d 693 (1957).

It is a good ground for a challenge for cause of a juror that the juror has been indicted for an offense of the same character as that with which the defendant is charged, Alabama Code 1975, Section 12-16-150(3), or that the juror has been convicted of a felony. Section 12-16-150(5). A timely challenge of Ms. Keith on either one of these grounds would have mandato-rily required her excusal as a juror.

Since an accused may waive a statutory challenge for cause, Batson v. State, 216 Ala. 275, 113 So. 300 (1927), in order to avail himself of the alleged error, the defendant must show himself free from fault or negligence in discovering the juror’s disqualification. Included in this is the issue of whether or not the silence of the juror deceived the defendant.

In Beasley, supra, a venireman failed to indicate that he had been convicted of adultery. The court stated that where a defendant challenges a juror after verdict, it must affirmatively appear that he did not have previous knowledge of the ground of objection and had used due diligence, or could not have discovered it by the use of reasonable diligence. Quoting from 50 C.J.S., Juries, Section 251, the court stated the governing legal principles.

“Subject to some exceptions, the right to challenge or object for the disqualification of a juror may be waived by failure to object in proper time, even though the objecting party was previously ignorant of the disqualification. (See Batson v. State, supra.)”
* * * * * * “ * * * It has been held that an exception to the rule should be made in cases where the juror was in fact duly examined and testified falsely .... or failed to disclose material facts, or where his answers were such as reasonably to mislead the examining party and prevent a specific inquiry as to the particular ground of objection subsequently discovered; but false answers of the juror are no excuse for failure to object if the party or his counsel is aware of their falsity. Thus, while in some cases it is held that previous ignorance of the disqualification will excuse the failure to make the objection earlier, and that advantage of it may accordingly be taken after verdict, it is generally required that it must affirmatively appear that the objecting party did not previously know of the ground of objection, and had used diligence to discover it, or could not have discovered it by the use of reasonable diligence.” Beasley, 39 Ala.App. at 187-88 (citations omitted, emphasis added).

See also Williams v. State, 342 So.2d 1328 (Ala.1977); Durden v. State, 394 So.2d 967 (Ala.Cr.App.1980), cert. denied, 394 So.2d 977 (Ala.1981).

Although both the defendant and his attorney had a right to rely on the juror’s responses to the qualifying questions asked by the trial judge and the prosecutor, Edwards v. State, 28 Ala.App. 409, 410, 186 So. 582 (1938), cert. denied, 237 Ala. 261, 186 So. 583 (1939), Slay v. State, 338 So.2d 3, 5 (Ala.Cr.App.1976), the defendant possessed specific information which conflicted with Ms. Keith’s failure to respond and which demanded, upon the exercise of reasonable and due diligence, further inquiry. The diligence required to prevent a waiver must be exercised by defense counsel and the defendant. See Little v. State, 339 So.2d 1071, 1072 (Ala.Cr.App.), cert. denied, 339 So.2d 1073 (Ala.1976). Here, the defendant had knowledge of facts sufficient to place upon him the burden of further inquiry and of transmitting such knowledge to his attorney. See Smiley v. State, 371 So.2d 469 (Ala.Cr.App.1979). Even though Ms. Keith gave no response to the particular qualification questions asked by the trial judge and the prosecutor, the defendant had “notice of facts which ought to have excited inquiry on his part which, if pursued with reasonable diligence, would have disclosed” the basis of challenge for cause. Williams v. Dan River Mills, Inc., 286 Ala. 703, 707, 246 So.2d 431 (1971). By Ms. Keith’s very silence and her failure to respond, the defendant was given adequate and sufficient notice that further inquiry into this entire matter was required. Because of the defendant’s negligence in failing to timely inform his attorney of his knowledge of Ms. Keith’s criminal past, the judgment of the circuit court ip overruling his motion for new trial is affirmed.

AFFIRMED.

All Judges concur.


text:
    Henry Otis WHORTON v. STATE.
    8 Div. 730.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.

      Marc Sandlin of McDaniel & McDaniel, Huntsville, for appellant.
    ' Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

During October 1981, the defendant was charged in a three-count indictment with burglary, theft, and receiving stolen property. On February 4, 1982, he entered a guilty plea to the indictment and the trial court set sentencing for April 9, 1982.

On April 9, the defendant moved to withdraw his plea. The court granted the motion and set the case for trial on June 14, 1982. Then on May 18, 1982, defendant’s appointed counsel withdrew and substitute counsel was named to represent him. The second attorney also withdrew and, on May 26,1982, the defendant retained other counsel who now represents him on appeal.

On May 31, defendant’s lawyer filed motions for a continuance and for a psychiatric exam. The record does not indicate that the circuit court ruled on either motion. Then on June 14,1982, the date set for trial, defendant, pleaded guilty to an amended indictment charging burglary in the third degree. After being sentenced to fifteen years’ imprisonment, the defendant filed notice of appeal, claiming that his motions for continuance and for a psychiatric exam were erroneously denied and that there was no factual basis for the guilty plea.

I

The propriety of the motion for a continuance and the motion for a psychiatric exam are not before us for review. Review on appeal is limited to matters on which rulings are invoked at the trial court. Streeter v. State, 406 So.2d 1024 (Ala.Cr.App.), cert. denied, 406 So.2d 1029 (Ala.1981). In the absence of a ruling, a request for a ruling, or an objection to the court’s failure to rule, we have nothing to review. Stewart v. State, 398 So.2d 369 (Ala.Cr.App.), cert. denied, 398 So.2d 376 (Ala.1981). See also Carroll v. State, 405 So.2d 163 (Ala.Cr.App.1981); Boykin v. State, 398 So.2d 766 (Ala.Cr.App.), cert. denied, 398 So.2d 771 (Ala.1981).

Moreover, in the absence of any evidence, the mere allegations by counsel that the accused is incompetent to stand trial do not establish “reasonable ground to doubt [defendant’s] sanity” which would warrant an inquiry into his competency. See Ala. Code § 15-16-21 (1975); Williams v. State, 386 So.2d 506 (Ala.Cr.App.1980); Atwell v. State, 354 So.2d 30 (Ala.Cr.App.), cert. denied, 354 So.2d 39 (1977).

II

The defendant contends that there was no factual basis to support his guilty plea because the court did not take steps to determine that he had the intent to commit the offense charged. Specifically, he argues that he was so intoxicated at the time of the act that he was unable to form the requisite intent, and the court should have made further inquiries into this matter before accepting his plea.

During the colloquy between the defendant and the trial judge, the following occurred:

“THE COURT: Mr. Whorton, tell me what happened in this case here, this burglary charge, involving the Five Points Beverage Store.
“A Your Honor, apparently I broke into that beverage store in Five Points and after they got cigarettes and stuff out of my car. I had been on about a five day drunk and when they pulled me over they found a big bunch of cigarettes and stuff that led up to that charge.
“THE COURT: If you tell me you were so intoxicated you didn’t know what you were doing, I can’t take your plea.
“A Well, I had been drinking for about four days and I guess I went down and kicked that window in and stole the cigarettes and money.
“THE COURT: Do you remember doing it?
“A Vaguely.
“THE COURT: Vaguely?
“A Yes, sir, I get so drunk, Your Honor, I have blackouts and I’ve been in several different hospitals; Crestwood and Cedar Lodge and Mental Health and all different places.
“THE COURT: What I’m trying to tell you, Mr. Whorton, is that if you were so intoxicated that you couldn’t form an intent to steal after breaking into the place, I could not take your plea. We would have to let a jury determine your guilt or your innocence. If you can tell me you are guilty because you are guilty and not for some other reason.
“A I feel that I am guilty of the charge because of the evidence and everything else.
“THE COURT: Was anyone with you when you did it?
“A No, sir.
“THE COURT: What kind of car were you driving?
“A An old model Ford.
“THE COURT: Whose car was it?
“A It was mine.
“THE COURT: Were you able to drive all right?
“A Yes, sir, I was driving.
“THE COURT: Mr. Sandlin, have you gone over the facts with the defendant? “MR. SANDLIN [defense counsel]: Yes, sir.
“THE COURT: Is it your recommendation that the Court accept his plea of guilty?
“MR. SANDLIN: Yes, sir, it is.
“THE COURT: Have you gone over with him the extent of intoxication to possible mania?
“MR. SANDLIN: Yes, sir.
“THE COURT: Is it your judgment that he was not that intoxicated?
“MR. SANDLIN: Yes, sir.” (R. 10-12)

From the foregoing, it is clear that the court adequately explained to the defendant the mental state required to support a conviction, and made sufficient inquiries into the degree of intoxication of the accused. The judge also ascertained that the defendant had discussed with his attorney the effect of intoxication on criminal intent, and after being fully informed, the defendant chose to plead guilty.

In our judgment, this case is controlled by the recent decision of the Alabama Supreme Court in Carl Andrew Russell v. State, [Ms. 81-487, August 6, 1982] (Ala. 1982), wherein the court framed the issue as follows: “Whether the state, after'a fully informed defendant pleads guilty to an offense, is required to present a prima facie case and prove every element of the offense charged.” Concluding that the record as a whole supported the voluntariness of the plea, the court determined that an accused who denied waving a pistol and who stated “Well, I guess I went in there and attempted to rob,” (emphasis added), could be properly convicted of attempted robbery in the first degree, an offense requiring the use of a weapon.

In another decision handed down the same day, the Alabama Supreme Court stated:

“[I]t is clear that [the defendant] voluntarily and understanding^ entered his plea of guilty, finding it in his best interests to do so, and the mere fact that he denied any criminal intent is insufficient to override such a guilty plea.”

Akiyoshi Yamada v. State, [Ms. 81-626, August 6,1982] (Ala.1982) (emphasis added).

In view of the Alabama Supreme Court’s determination that neither a defendant’s hesitation about (“I guess I went in there and attempted to rob”) nor his outright denial of criminal intent invalidates an otherwise proper guilty plea, we hold that the defendant’s statement here (“apparently I broke into that beverage store....”) and the circumstances surrounding it do not undermine the voluntariness of the plea. There is no contention that the taking of the guilty plea did not otherwise conform to the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

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

AFFIRMED.

All Judges concur.


author: PER CURIAM. McDONALD, Justice,

text:
    James Douglas HILL, Appellant, v. STATE of Florida, Appellee.
    No. 60144.
    Supreme Court of Florida.
    July 15, 1982.
    Rehearing Denied Oct. 5, 1982.

      Ronald W. Young, Tampa, for appellant.
    Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

This is a direct appeal from appellant’s conviction of first-degree murder and, in accordance with the jury’s recommendation, a sentence of death. See art. V, § 3(b)(1), Fla. Const. We affirm, holding that the dictates of State v. Sarmiento, 397 So.2d 643 (Fla.1981), do not preclude the admission into evidence of appellant’s confession made to an informant in appellant’s backyard and recorded by police with electronic surveillance equipment.

The facts show that on June 25, 1980, authorities retrieved the dead body of twelve-year-old Rosa Lee Parker from an area known as the “Pits” in Hillsborough County. The body lay partially exposed in a shallow grave, covered with mud and hyacinths, and was clothed only in a brassiere pulled up over the breasts. The medical examiner determined the cause of death to be mechanical asphyxiation. The state charged twenty-two-year-old appellant with first-degree murder.

The testimony at trial revealed that on the afternoon of June 23, the victim, appellant, young Tina and Tammy Deal, and Russell Jackson went skating. Afterwards, they returned to the Deals’ home. Later in the evening, Rosa Lee asked Tammy Deal to accompany her to a nearby schoolyard to play, but Tammy’s mother would not permit it. Rosa Lee then left alone, headed toward the school. This was the last time anyone saw Rosa Lee alive.

Russell Jackson testified that on the same evening appellant asked him if he wanted to help rape Rosa Lee, and, if he did, appellant would take her somewhere afterwards and “get rid of her.” Another of appellant’s friends, Daniel Munson, testified that, early in the evening of the murder, appellant came to his house on his motorcycle,, accompanied by a female whom Munson could not identify. Munson would not let appellant enter his home, and appellant and the female departed. Munson further testified that appellant returned to his home alone about midnight, said that “he had the nerve to hurt someone,” and took Munson to see Rosa Lee Parker’s dead body. While viewing the body, appellant boasted, “She wouldn’t give it up, so I had to take it.”

In the initial investigation, Munson related this information to the police. They persuaded him to go to appellant’s home wired with electronic surveillance equipment for the purpose of eliciting incriminating statements from appellant. Munson agreed to do so after authorities promised to drop a pending burglary charge against him, drop pending parole violation charges, and not to charge him with accessory after the fact for the instant murder. Munson went to appellant’s home, persuaded appellant to accompany him into the backyard, and there obtained statements in which appellant admitted committing the murder. Munson testified concerning those statements at trial and the state introduced, over objection, both the police recording of the conversation and the testimony of the officers who overheard the conversation by way of the surveillance equipment.

The jury recommended death and the trial judge imposed a death sentence. The court found two aggravating factors, (1) that the murder was heinous, atrocious, and cruel, and (2) that it was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification, and one mitigating factor, that appellant had no significant criminal history-

Trial Phase

Appellant raises three points dealing with the trial phase: (1) The tape recording and the officers’ testimony of appellant’s statements were obtained in violation of this Court’s decision in State v. Sarmiento, 397 So.2d 643 (Fla.1981); (2) because Munson was acting pursuant to police instructions, .he was an arm of the police department, and the statements he obtained were a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (3) there was not sufficient evidence as a matter of law to prove premeditation.

Appellant first argues that the trial court committed reversible error in not suppressing the officers’ testimony and- the tape-recorded conversation between Mun-son and appellant. In State v. Sarmiento, we held that “the warrantless, electronic interception by state agents of a conversation between defendant and an undercover police officer in defendant’s home [was] an unreasonable interception of defendant’s private communications in violation of article I, section 12, Florida Constitution.” 397 So.2d at 644. We based our decision on the principle that one enjoys a reasonable expectation of privacy in one’s own home and that it is unreasonable to expect that others not privy to an in-home conversation will be listening in through electronic surveilling equipment. We concluded in Sarmiento that the tape recording and the testimony of officers listening to the surveilling devices were not admissible against the homeowner.

The instant case is, however, distinguishable from Sarmiento because the instant tape recording was of a conversation which occurred in appellant’s backyard, not in the home. We refuse to extend the reasoning in Sarmiento and the protections of article I, section 12, beyond the four walls of the home. We note Odom v. State, 403 So.2d 936 (Fla.1981), is also distinguishable from our holding in the instant case because that interception was in the home.

Because of mischaracterizations of our opinion in Sarmiento, we also feel that it is necessary to emphasize two points. First, Sarmiento does not prohibit an undercover officer or any other person who is privy to an in-home conversation from testifying about statements made therein. Second, the opinion does not prohibit the use of electronic surveilling devices by undercover officers in the home as long as a warrant has issued by the appropriate judicial officer.

Appellant’s second contention is that, because Munson was acting under police instruction, appellant’s statement made to Munson must be suppressed because the dictates of Miranda v. Arizona were not satisfied. This argument is without merit. Miranda only applies to instances of custodial interrogation; appellant was not in custody, nor was his freedom of movement restricted in any manner. See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

In a third point, appellant argues that there was insufficient evidence, as a matter of law, to prove premeditation. At appellant’s trial, the state proved premeditation through the testimony of two witnesses. Russell Jackson testified that appellant asked him to come and help rape the victim and that, if he did, appellant would later “get rid of her.” Munson testified that appellant told him why he raped and murdered the victim: “She wouldn’t give it up so I had to take it.” We are satisfied that the evidence presented at trial is sufficient to support appellant’s guilt of first-degree premeditated murder beyond a reasonable doubt. Phippen v. State, 389 So.2d 991 (Fla.1980); Spinkellink v. State, 313 So.2d 666 (Fla.1975).

Sentencing Phase

Appellant contends that the trial court, in the penalty phase, improperly doubled up aggravating circumstances, making the death penalty inappropriate. The trial court found two aggravating factors: The murder was heinous, atrocious, and cruel, and the murder was committed in a cold, calculated, and premeditated fashion without any pretense of legal or moral justification. Appellant asserts that the trial court based its findings as to both factors on the same evidence and did not distinguish the two. This, appellant claims, was improper. We find that, although the trial court considered both aggravating factors together, the trial court’s findings contained distinct proof as to each factor. The record shows that appellant committed the rape and murder in such a fashion as to make it especially heinous, atrocious, and cruel. Further, the record shows that appellant’s state of mind was such that he intended to rape and then murder the victim and that he made this decision substantially before the time that he picked her up. We conclude that this supports the finding that the murder was committed in a cold and calculated manner without pretense of moral or legal justification. The sentence of death was proper. See Buford v. State, 403 So.2d 943 (Fla.1981); LeDuc v. State, 365 So.2d 149 (Fla.1978), cert, denied, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 714 (1979); 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).

Accordingly, finding no reversible error, appellant’s conviction and sentence of death are affirmed.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON and EHRLICH, JJ., concur.

McDONALD, J., dissents with an opinion, in which SUNDBERG, J., concurs as to part I only.

SUNDBERG, J., dissents.

McDONALD, Justice,

dissenting.

I.

It was reversible error to allow the introduction of the tapes of conversation between Munson and Hill. A comparable factual circumstance existed in Odom v. State, 403 So.2d 936 (Fla.1981). There, one Gerald Jones, in cooperation with the police, wore a hidden transmitter and engaged Odom in a conversation in his home in which he made incriminating statements which the police recorded. We held that the admission of the tape into evidence was error under the constitutional rule excluding evidence obtained in violation of article I, section 12 of the Florida Constitution. When Munson agreed to elicit information from Hill in consideration for the state’s dismissing charges against him, he became an agent of the state. He allowed a body bug to be planted on him and surreptitiously recorded the private conversation during which he caused Hill to discuss the homicide. This was an unreasonable interception of a private conversation and as such was proscribed by article I, section 12 of the Florida Constitution.

Had Hill been indicted at the time the conversations took place, all evidence of the conversation would be excluded because there would have been a sixth amendment violation. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). See also United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). While that factor does not exist here, and we are not considering a sixth amendment violation, the language of Mas-siah and Henry suggests that courts should look with a critical eye at statements deliberately elicited by prosecutorial authority. See Malone v. State, 390 So.2d 338 (Fla.1980). Because of that fact I would be inclined to raise the entire conversation to a violation of article I, section 12, but I will resist that temptation and restrict the application to the unreasonable interception.

In Odom we held the error harmless because the tape was merely cumulative. We can’t say that the admission of the tape here was harmless. It played a significant role in the trial and was frequently discussed by witnesses and the prosecutor. Information gained from it was used in rebuttal.

This case should be remanded for a new trial.

II.

I also dissent from the imposition of the death penalty in this case. That sentence was predicated upon a finding that the crime was heinous, atrocious, and cruel and that the murder was committed in a cold, calculated, and premeditated fashion without any pretense of legal or moral justification. I disagree that either of these elements was proved beyond a reasonable doubt. I will concede that an inference of each exists, but aggravating factors must be proved beyond a reasonable doubt and that degree of proof is not met here. Since there is one mitigating factor and the proof of aggravation is insufficient, only a life sentence should be imposed should this conviction stand.

SUNDBERG, J., concurs as to part I only.


author: BOYD, Justice. ADKINS, Justice,

text:
    Joe H. CRIPE and Sereata L. Cripe, Petitioners, v. ATLANTIC FIRST NATIONAL BANK OF DAYTONA BEACH, etc., Respondent.
    No. 59952.
    Supreme Court of Florida.
    Sept. 9, 1982.
    Rehearing Denied Nov. 2, 1982.

      Isham W. Adams and Garrett L. Briggs of Adams & Briggs, Daytona Beach, for petitioners.
    Harold C. Hubka of Black, Crotty, Sims & Hubka, Daytona Beach, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of a decision of a district court of appeal, Atlantic First National Bank v. Cripe, 389 So.2d 224 (Fla. 5th DCA 1980). Part of the decision of the district court of appeal had the effect of improperly disregarding the trial court’s findings of fact, and therefore it conflicts with decisions of this Court holding that an appellate court may not re-weigh evidence and substitute its judgment for that of the trier of fact. Marshall v. Johnson, 392 So.2d 249 (Fla.1980); Delgado v. Strong, 360 So.2d 73 (Fla.1978); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Atlantic First National Bank of Daytona Beach, as personal representative of the estate of Carrie B. Hare, brought this action to recover funds that had been held in joint bank accounts in the names of Carrie B. Hare and Joe Cripe. Mr. Cripe obtained the funds as survivor pursuant to section 659.291, Florida Statutes (1979), after Mrs. Hare’s death. When Mrs. Hare died in 1976 at the age of ninety, there was a checking account containing $12,700, a separate account containing $10,900, and a certificate of deposit in the amount of $32,000, all joint accounts in the names of Carrie B. Hare and Joe Cripe. The bank brought this action to recover the funds on the ground that Mr. Cripe had obtained them by undue influence. The case was tried by the court.

The evidence showed that Carrie Hare owned several apartment buildings in Day-tona Beach, with a total of forty-nine units. Among her tenants were Joe and Sereata Cripe who, beginning in 1949, spent seven and a half months each year in Daytona Beach. They spent the remainder of each year at their home in Michigan.

In 1966, Mrs. Hare asked Joe Cripe to help her manage her apartment rental business. The evidence indicated that Mrs. Hare and the Cripes made an arrangement whereby they would handle the financial management of her properties and see to her personal care. The rental income was to be placed in joint accounts so that Joe Cripe could sign checks both for business expenses and for the expenses of Mrs. Hare’s personal support and care. In return for these services, the Cripes were to occupy their apartment and use utilities free of charge (they kept it year-round now rather than having to move out each year when they returned to Michigan) and, upon Mrs. Hare’s death, Joe Cripe would be entitled to the remaining balances in the accounts derived from the business property income. At the time of her death in 1976, these account balances totalled over $23,-000.

In 1969, part of Mrs. Hare’s property was condemned by the state for the widening of an adjacent highway. The state paid compensation in the approximate amount of $31,000. On the suggestion of Joe Cripe, Mrs. Hare agreed to deposit the condemnation proceeds in the joint names of herself and Mr. Cripe.

The trial court, after hearing the evidence, held for the defendants (the Cripes). The court, however, made no findings of fact or conclusions of law when it rendered judgment. On appeal, the district court reversed, concluding that the evidence had established facts giving rise to a presumption of undue influence, that the burden was thus shifted to the defendants to rebut the presumption and justify Mrs. Hare’s gift to them, and that they had failed to rebut the presumption.

The district court found an unexplained disparity between the value of the services the Cripes provided to Mrs. Hare and the value of what they received from her. The court noted that from 1967 onward, the Cripes had a year-round rent-free apartment, and utilities free of charge, even though they were still only present to provide management and personal services for seven and a half months per year. The relationship of personal trust and dependence that arose, the court reasoned, called for the application of fiduciary principles. Under such principles, the court said, there is a presumption of undue influence when the stronger party gains a financial benefit from the weaker, and burden is on the stronger party to rebut the presumption.

In the case of In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), cited by the district court, it was held that when a person who is a primary beneficiary of a will had a confidential relationship with the testator and there was active procurement of the bequest, a presumption of undue influence arises. While the burden of showing undue influence remains with the contesting party, the presumption, if unre-butted, is sufficient to sustain the burden. The burden of going forward with evidence is shifted by the presumption. Once the defendant comes forward with evidence in response to the presumption, the presumption ceases to exist, but the evidence giving rise to the presumption may still be considered even though contrary evidence has been presented. The trier of fact determines the question of undue influence, the standard of proof required of the moving party being the preponderance (greater weight) of the evidence. Id. at 701-04. The rule of Carpenter is properly applied to inter vivos transfers. Williamson v. Kirby, 379 So.2d 693 (Fla. 2d DCA 1980); Bryant v. Bryant, 379 So.2d 382 (Fla. 1st DCA 1979); Majorana v. Constantine, 318 So.2d 185 (Fla. 2d DCA 1975); Pate v. Mellen, 275 So.2d 562 (Fla. 1st DCA 1973).

We believe that the agreement between Mrs. Hare and the Cripes, pertaining to the management of her properties and the supervision of her personal care, in exchange for the remaining balances in the accounts maintained for meeting her business and personal expenses, must be considered separately from the transaction by which Mr. Cripe obtained permission to deposit the condemnation proceeds into a joint account. On appeal, the district court should have applied the Carpenter test to the two transactions separately.

The evidence showed that the Cripes began to manage Mrs. Hare’s apartment business and to supervise her personal care in 1966. There was no evidence to establish that at the time this arrangement began by agreement of the parties, there was a confidential relationship between them. While the weakness or dependence of one party to an agreement is relevant to the question of undue influence once a confidential relationship exists, it does not in itself establish a confidential relationship. See Wilkins v. Wilkins, 141 Fla. 188, 192 So. 791 (1939). Therefore, with regard to the agreement for management services and personal care in exchange for an apartment and the remaining balances on the death of Mrs. Hare, the district court erred in holding that a presumption of undue influence was raised. Even if a confidential relationship had been shown, so that a presumption of undue influence was created, we believe the defendants’ showing with regard to their agreement with Mrs. Hare rebutted the presumption. Therefore there was sufficient evidence for the trial court to conclude that the plaintiff bank was entitled to no relief with regard to the account balances that derived from the arrangement. The district court incorrectly substituted its judgment for that of the trial court.

With regard to the $32,000 certificate of deposit derived from the condemnation award, however, the considerations are different. By the time Mrs. Hare obtained the condemnation settlement award in 1969, a close and dependent relationship had developed between herself and Joe Cripe. There was evidence to show that after he had been managing her affairs for some time, she became dependent upon him for financial services and advice and that she placed her trust in him. A confidential relationship had developed. From that point forward, Joe Cripe was prohibited from using his position of trust and confidence for “acquisition of personal gain or to acquire property without full, fair and adequate consideration.” Wilkins, 192 So. at 792. The condemnation proceeds were deposited in a joint account because Mr. Cripe asked Mrs. Hare to do so. Since there was a confidential relationship and active procurement of a financial benefit, a presumption of undue influence arose. This presumption placed upon the defendants the burden of providing a reasonable explanation of the gift.

In an attempt to carry this burden, Mr. Cripe explained that Mrs. Hare agreed to deposit the money in a joint account because he had handled the condemnation transaction and knew more about it than she did. There was no evidence, however, that Mr. Cripe provided anything more than routine administrative services in connection with the compensation award, services which he was already obligated to perform as Mrs. Hare’s property manager. In return for some relatively insignificant paperwork, the Cripes received a sum of money out of all proportion to the services provided.

Petitioners argue that there was insufficient proof of active procurement with regard to the deposit of the condemnation proceeds into a joint account. There was evidence, however, that Mrs. Hare’s mental condition had deteriorated and she had become totally dependent on the Cripes. Where there is such inequality of mental strength, active procurement can be shown by evidence, as there was here, of a request or suggestion by the dominant party.

Therefore with regard to the condemnation funds, the district court was correct in finding undue influence from the evidence, and such finding did not constitute substituting its judgment for that of the trier of fact. The trial court’s denial of relief to the plaintiff with regard to the condemnation funds was not supported by the evidence. The evidence showed a confidential relationship existed in 1969, and Mr. Cripe obtained survivorship rights to a large sum of money by affirmative request or suggestion. These facts raised a presumption of undue influence, which the Cripes had to rebut in order to prevent a finding of undue influence based on the presumption. They did not carry this burden. Since the facts therefore showed undue influence, the trial court should have awarded the $32,000 certificate of deposit to the plaintiff pursuant to section 659.291(2), Florida Statutes (1979).

The decision of the district court of appeal reversing the trial court with regard to the two joint accounts, referred to in the district court’s opinion as containing $12,700 and $10,900 respectively, was in error and should be quashed. That portion of the district court’s decision that reversed the trial court with regard to the $32,000 certificate of deposit, derived from a condemnation settlement, was correct and should be approved.

Accordingly, the decision of the district court is quashed in part and approved in part.

It is so ordered.

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

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

ADKINS, Justice,

concurring in part and dissenting in part.

I would quash the decision of the District Court of Appeal and remand with instructions to affirm the judgment of the trial court.

      . The statute provides:
      (1) Unless otherwise expressly provided in the signature contract card or other similar instrument delivered to and accepted by a bank in connection with the opening or maintenance of an account, including a certificate of deposit, in the names of two or more persons, whether minor or adult, payable to or on the order of one or more of them or the surviving account holder or holders, all such persons and each person depositing funds in any such account shall be presumed to have intended that upon the death of any such person all rights, title, interest and .claim in, to, and in respect of, said deposits and account and the additions thereto, and the obligation of the bank created thereby, less all proper setoffs and charges in favor of the bank, shall vest in the surviving account holder or holders.
      (2) The presumption herein created may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent. In the absence of such proof, all rights, title, interest and claims in, to, and in respect of, said deposits and account and the additions thereto, and the obligation of the bank created thereby, less all proper setoffs and charges in favor of the bank against any one or more of such persons, shall, upon the death of any such persons, vest in the surviving account holder or holders, notwithstanding the absence of proof of any donative intent or delivery, possession, dominion, control, or acceptance on the part of any person, and notwithstanding the provisions hereof may constitute or cause a vesting or disposition of property or rights or interests therein, testamentary in nature, which, except for the provisions of this section, would or might otherwise be void or voidable.
      (3) Nothing herein contained shall abridge, impair, or affect the validity, effectiveness, or operation of any of the provisions of ss. 659.-29 and 674.405 or the rights of banks to make payments as therein provided.


author: PER CURIAM.

text:
    James Curtis McCRAE, Petitioner, v. Couie L. WAINWRIGHT, Respondent.
    No. 61865.
    Supreme Court of Florida.
    Sept. 14, 1982.
    Rehearing Denied Dec. 16, 1982.

      Robert H. Dillinger of Stolba, Lumley & Dillinger, St. Petersburg, for petitioner.
    Jim Smith, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

This cause is before the Court on McCrae’s petition for a writ of habeas corpus and a stay of execution. Petitioner is now imprisoned under sentence of death pursuant to judgment and sentence affirmed by this Court in McCrae v. State, 395 So.2d 1145 (Fla.), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981). Petitioner raises three issues going to the legality of his judgment and sentence. The asserted grounds for relief are: (1) that the trial court committed fundamental error by not fully instructing the jury on the elements of the underlying felony in this felony murder case, (2) that petitioner’s appellate counsel was ineffective in that he did not raise the asserted fundamental error on appeal, and (3) that this Court violated petitioner’s rights by receiving non-record information concerning appellants in pending capital appeals.

Petitioner was charged with first-degree murder. The indictment was in two counts (though there was but one homicide), one charging premeditated murder and the other felony murder. The first count of the indictment read as follows:

[0]ne JAMES CURTIS McCRAE did unlawfully, feloniously and from a premeditated design to effect the death of one MARGARET MEARS, did strike, beat, bruise and wound the said MARGARET MEARS, thus and thereby inflicting on and upon the head or body of the said MARGARET MEARS certain mortal wounds of which said mortal wounds the said MARGARET MEARS did between October 13,1973 and October 15,1973 die; contrary to the statute in such case made and provided and against the peace and dignity of the State of Florida.

The second count, charging felony murder, was worded as follows:

[0]ne JAMES CURTIS McCRAE did unlawfully and feloniously effect the death of MARGARET MEARS in perpetrating or attempting to perpetrate a rape, to-wit: did unlawfully and feloniously ravish and carnally know a female of more than ten (10) years of age, to-wit: MARGARET MEARS by force and against her will, contrary to the statute in such case made and provided and against the peace and dignity of the State of Florida.

For the count charging petitioner with premeditated murder, the court instructed the jury in accordance with the standard jury instructions. With regard to the second count, charging felony murder, the court gave the following general felony murder instruction:

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, the abominable detestable crime against nature or kidnapping, or while escaping from the immediate scene of such crime the killing is in the perpetration 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.

The instructions to the jury also included a reading of the indictment as set out above. The indictment was given to the jury, along with the forms for the verdict, to take with it into deliberations. The second count of the indictment, charging felony murder, specified the underlying felony and defined it in terms of its essential elements.

The trial court, in instructing the jury on the form of the verdict, advised that the jury could return a verdict as to the two counts collectively or individually. The court provided separate verdict forms for verdicts of (1) not guilty, (2) guilty on both count one and count two, (3) guilty on count one, (4) guilty on count two, and (5) guilty of lesser included offenses. The jury returned a verdict finding petitioner guilty as charged in count two, the felony murder count. The other verdict forms were left blank.

Petitioner argues that under State v. Jones, 377 So.2d 1163 (Fla.1979), and Robles v. State, 188 So.2d 789 (Fla.1966), the trial court erred fundamentally in not instructing the jury on the elements of the underlying felony. Robles and Jones are based on the principle that a jury cannot properly find a defendant guilty of felony murder without knowing precisely what conduct constitutes the underlying felony. We find that the instruction was adequate and there was no fundamental error.

In Vasil v. State, 374 So.2d 465 (Fla.1979), the defendant was charged with felony murder involving the crime of rape. On appeal, Vasil argued that the court had erred in failing to fully define the underlying felony of rape. The court charged the jury on felony murder and rape as follows:

If a person kills another in trying to do or commit any rape, or while escaping from the immediate scene of such crime, the killing is in perpetration of or in the attempt to perpetrate such crime.
It is the crime of rape to ravish or carnally know a female person of the age of eleven years or more by force and against her will.

In appealing his conviction to this Court the defendant argued that the above definition was not sufficient to inform the jury of the elements of the underlying felony of rape. In response to that argument the Court held that:

The trial court, in instructing the jury on the underlying felony, recited all of the elements of the crime of rape. It is not necessary to instruct on the elements of the underlying felony with the same particularity that would be required if that offense were the primary crime charged. See Robles v. State, 188 So.2d 789 (Fla.1966). The instruction on the underlying felony was adequate.

The same principle applies here.

In the instant case, the trial court failed to include an instruction on the elements of rape in its charge to the jury, but did announce to the jury the specific language contained in the second count of the indictment. As in Vasil, the jury was apprised of the essential elements of the underlying felony. Therefore the trial court complied substantially with Robles and Jones.

Since there was no fundamental error which would have mandated reversal on appeal, petitioner’s second contention — that his appellate counsel rendered ineffective assistance by failing to raise the fundamental error on appeal — is also without merit. Under the standards announced in Knight v. State, 394 So.2d 997 (Fla.1981), petitioner has failed to establish ineffective assistance of counsel.

As his third ground for habeas corpus relief, petitioner asserts that this Court requested and received ex parte information concerning appellants in capital appeals during the time when his appeal was pending here. We considered and rejected this argument in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). There we held that the allegations of receipt and consideration of such information by appellate judges, even if true, did not establish error which would entitle the petitioners to habeas corpus relief.

Having determined that petitioner is not entitled to habeas corpus relief we deny the petition.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD and EHRLICH, JJ., concur.

OVERTON, SUNDBERG and MCDONALD, JJ., dissent.


text:
    Ronald STRAIGHT, Petitioner, v. Louie L. WAINWRIGHT, Respondent. Ronald STRAIGHT, Appellant, v. STATE of Florida, Appellee.
    Nos. 62168, 62182.
    Supreme Court of Florida.
    Sept. 14, 1982.
    Rehearing Denied Dec. 27, 1982.

      Raymond E. Makowski, Jacksonville, and Steven L. Seliger, Quincy, for petitioner/appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin and Carolyn M. Snurkowski, Asst. Attys. Gen., Tallahassee, for respondent/ap-pellee.
   PER CURIAM.

These consolidated cases are before the Court on petition for a writ of habeas corpus and on appeal from a circuit court order denying postconviction relief under Rule of Criminal Procedure 3.850. Petitioner-appellant is a state prisoner under sentence of death. We deny the petition for a writ of habeas corpus and affirm the denial of the Rule 3.850 motion. The previously entered temporary stay of execution has already expired.

Petitioner-appellant was convicted of murder in the first degree and was sentenced to death. The judgment and sentence were affirmed on appeal. Straight v. State, 397 So.2d 903 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981). Petitioner-appellant recently moved the trial court in which he was convicted and sentenced for an order vacating, setting aside, or correcting the judgment and sentence. The trial court held an evidentiary hearing and denied the motion. Petitioner-appellant appealed. Meanwhile, he also filed a petition for a writ of habeas corpus in this Court. We granted a temporary stay of execution and consolidated the cases for consideration and disposition in this single opinion.

Habeas Corpus Petition

First, petitioner argues that he was deprived of a full and meaningful appeal due to ineffective representation provided by his appellate counsel. He identifies several instances where appellate counsel did not raise or brief issues which may have had merit, and contends that the failure to brief non-frivolous issues constitutes ineffective representation.

The first omission petitioner identifies is the failure of appellate counsel to

argue that the trial court had expressly restricted the jury to consideration of statutory mitigating circumstances. The instruction given to the jury, petitioner points out, tracked the language of section 921.-141(6), Florida Statutes (1975), and therefore, he argues, failed to apprise the jury of its right and duty to consider any factor in mitigation shown by the evidence. Petitioner argues further that there were non-statutory mitigating circumstances which the jury could have considered had it not been limited by the court’s instructions. The statute and the instructions given comported with due process and the Eighth Amendment. See Peek v. State, 395 So.2d 492 (Fla.), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981); Songer v. State, 365 So.2d 696 (Fla.1978) (on rehearing), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). The contention that the failure of appellate counsel to raise this issue was an omission falling substantially short of the standard expected of competent attorneys is therefore without merit. See Knight v. State, 394 So.2d 997 (Fla.1981).

Next petitioner argues that appellate counsel was ineffective in that he failed to argue that the trial court had erred in instructing the jury on all the statutory aggravating circumstances rather than just those established by some evidence. It was proper for the judge to instruct on all the statutory aggravating circumstances. For the judge to have instructed only on those factors which she found supported by evidence would have improperly invaded the province of the jury. We therefore find that such omission was not substantially deficient when measured against the standard expected of competent attorneys.

Petitioner argues that his appellate counsel was deficient for not arguing that the trial court had erred in not finding the existence of certain nonstatutory mitigating circumstances. While it might be expected that a reasonably competent attorney would attempt to seek review of a trial court’s refusal to find mitigating circumstances, such an attempt would not have affected the outcome of the appeal since it lies within the province of the trial judge to decide whether a particular mitigating circumstance has been established and the weight to be given to it. Riley v. State, 413 So.2d 1173, 1175 (Fla.1982). Therefore this contention is without merit.

Petitioner argues that his appellate counsel was deficient in that he failed to argue that the trial judge, in imposing sentence, improperly considered the opinions of officers familiar with the case on the propriety of the death penalty, as revealed by interviews conducted in the course of preparation of a presentence investigation. Since we have approved the use of such background reports with proper disclosure, there was no error. This omission was not substantially deficient and the point is without merit.

Petitioner argues that his appellate counsel rendered ineffective representation in that he did not argue that the trial judge had given improper double consideration to a circumstance of the crime having relation to two separate statutory aggravating circumstances. We treated the matter in deciding the appeal and found the error harmless. We do not find the omission to have been a substantial deficiency.

All of the asserted deficiencies refer to tactical decisions of appellate counsel. We hold that petitioner has failed to show deficiencies falling substantially below the standard expected of competent counsel which affected the outcome of the appeal.

Second, petitioner argues that this Court erred when it affirmed his sentence of death after concluding that only three of the four statutory aggravating circumstances found by the trial court were proper. Petitioner contends that since the sentencing judge obviously found all four factors applicable when one of them was not, this Court could not reasonably have concluded that the sentencer would have reached the same conclusion had it known that one of the factors was invalid. Our holding on this issue when it arose on the original appeal was grounded on controlling precedent. Petitioner’s present attack on our previous decision is without merit.

Third, petitioner argues that this Court’s earlier affirmance of the sentence of death gave implicit approval to the trial court’s reliance on nonstatutory aggravating circumstances. Petitioner argues that the trial judge considered opinions reported in a presentence investigation as to the propriety of a sentence of death in petitioner’s case. As was stated above, we have approved the use of presentence investigations in capital sentencing knowing that they frequently contain reports of opinions of persons familiar with an offender. This point is without merit.

All points raised in the petition for habe-as corpus are without merit.

Rule 3.850 Appeal

Appellant argues that the imposition of the sentence of death upon him was viola-tive of the Eighth and Fourteenth Amendments to the United States Constitution in that the instructions to the jury had the effect of restricting mitigating considerations to the statutory mitigating circumstances. Appellant cites Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), for the proposition that such restrictive instructions may render a death sentence violative of the Eighth Amendment.

As we stated above in responding to the argument on ineffective appellate counsel, this contention is without merit. Our capital felony sentencing law and jury instructions based thereon do not limit consideration to statutory mitigating circumstances. See Peek v. State, 395 So.2d 492 (Fla.), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981); Songer v. State, 365 So.2d 696 (Fla.1978) (on rehearing), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).

Appellant argues that the court below should have set aside the judgment and sentence on the ground that he received ineffective assistance of counsel at both the guilt and the sentencing portions of his trial. Appellant calls our attention to several actions taken by trial counsel that are now said to have been omissions constituting substantial deficiencies.

Appellant argues that his trial counsel failed to fully participate in examining prospective jurors for the purpose of determining their qualifications in light of their attitudes toward capital punishment, and that this failure led to the exclusion of prospective jurors with scruples against the death penalty who could have served if trial counsel had stepped in to establish their qualifications. In view of the fact, as brought out at the hearing below, that trial counsel was trying to select the most favorable jury possible to try the issue of guilt or innocence, without regard to the views of individual jurors on capital punishment, this argument can be seen as a mere attack on trial counsel’s tactical choices. The point is without merit.

Appellant argues that trial counsel failed to object soon enough to the prosecutor’s repeated references, during jury selection, to the immunity granted to co-conspirator and state witness Jane Albert. Appellant argues that this omission allowed the prosecutor to suggest to the jury that Albert had been determined by state authorities to be the least culpable of the perpetrators, thus implying that appellant was the most culpable. It was determined below that defense counsel did not object at first because he wanted the jury fully apprised of the immunity agreement, but after repeated references he objected when he felt that the prejudice to his client was beginning to outweigh the advantages. Thus, this contention also is an attack on the tactical choices of defense counsel and is without merit.

Appellant contends that trial counsel rendered ineffective assistance of counsel when he failed to object to the state’s cross-examination of appellant. It is argued that the cross-examination questions were objectionable because they were calculated to elicit testimony about appellant’s alleged commission of other crimes.* It was shown in the court below that defense counsel decided to allow the questions because they gave strength to appellant’s alibi defense. Defense counsel wanted to establish that appellant was involved in a narcotics transaction around the time of the murder. The state’s questions about drug dealing tended, in defense counsel’s judgment, to lend corroboration to this theory. This asserted deficiency also was a matter of trial tactics and the point is without merit.

Appellant contends that his trial counsel failed to investigate for the purpose of developing evidence of mitigating circumstances. Appellant asserts that his lawyer could have developed and presented evidence of an unstable mental condition at the time of the crime, and of appellant’s feelings of remorse for the murder. The state responds that at the hearing below it was shown that defense counsel did not argue such mitigating circumstances because he believed them to be, even after the verdict of guilt, fundamentally inconsistent with the entire defense. For example, defense counsel could not offer evidence of remorse because appellant, from the beginning of the case right up to and during the sentencing phase, had always maintained his innocence of the murder to defense counsel. One of the purposes of a bifurcated trial and separate sentencing trial is to allow just such an inconsistent presentation on the question of sentence after guilt has been determined. See Model Penal Code, § 201.6, Comment, at 74-75 (Tent. Draft No. 9, 1959). However, a defendant through counsel may waive the opportunity to make such an inconsistent presentation on the question of sentence after maintaining his innocence at the guilt phase of the trial. For an attorney to take such a position on behalf of his client does not establish that representation was ineffective. Defense counsel viewed evidence of mitigating circumstances as fundamentally damaging to the integrity of his client’s case. Therefore, we find this argument to be without merit.

Appellant contends that trial counsel was ineffective when he failed to object to the trial court’s instructions to the jury at sentencing, which included all statutory aggravating circumstances. Appellant argues that his lawyer should have objected to instructions on aggravating circumstances other than those upon which some evidence had been presented. This contention is without merit. As was stated above, it is proper to instruct the jury on all the aggravating factors. The jury must decide whether any of them are established by the evidence. For a judge to instruct only on statutory factors he thinks are present would be to invade the province of the jury.

Appellant contends that his trial counsel was deficient when he failed to object to improper aggravating circumstances considered by the trial court. This argument is another attempt to impose a standard, developed through hindsight, upon actions of. counsel that were well within the range of reasonable tactical choice available to defense counsel. Trial counsel’s viewpoint on this matter was later vindicated when this Court, in considering the appeal, found the doubling-up of robbery and pecuniary gain to be harmless error. Our disposition of the appeal also indicated that there was no improper consideration of nonstatutory aggravating circumstances. Therefore, this point is without merit.

As has already been stated, appellant contends that under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the jury instructions at his sentencing trial improperly restricted consideration of mitigation to statutory mitigating circumstances. He argues further that since Lockett had not yet been decided at the time of the sentencing, that decision constitutes a change of the law that should be given retroactive effect, with the result that appellant is entitled to a new sentencing proceeding. As we have already noted; however, the sentencing procedure utilized in appellant’s case was not violative of Lockett. Therefore this contention is without merit.

We find no error in the judgment of the court below denying the motion for post-conviction relief, and therefore affirm it. The petition for writ of habeas corpus is denied. The denial of the Rule 3.850 motion is affirmed.

It is so ordered.

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

SUNDBERG, J., concurs in result only.