author: HARRIS, Presiding Judge.

text:
    Frank James EADY v. STATE.
    3 Div. 577.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    Frank L. Thiemonge, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Frank James Eady was indicted pursuant to § 13A-5-31(a)(2), Code of Alabama 1975, for the capital murder of his grandmother, Eunice Eady. The indictment charged that, during the course of robbing her of $747, the appellant intentionally killed his grandmother “by striking her on the head and body with a 2 X 4 piece of wood.”

At his arraignment the appellant entered a plea of “not guilty.” On the day of trial, however, he withdrew this plea of “not guilty” and after filing a detailed “plea agreement” and a properly executed Ireland form he entered a plea of “guilty” as charged in the indictment. In light of the plea agreement” and the Ireland form the trial court conducted a thorough colloquy with the appellant to insure that his “guilty” plea was made voluntarily, understanding^, and intelligently. At the end of his colloquy the appellant signed, in open court, an agreement which summarized the original plea agreement. It stated that the appellant was pleading “guilty” in exchange for the State’s recommendation that he be sentenced to life imprisonment without parole. It also stated that the appellant understood the offense as charged in the indictment, that the maximum sentence was death by electrocution, and that the trial court was not bound by the agreement.

Based on the plea agreements, the Ireland form, and the colloquy, the trial court accepted appellant’s plea of “guilty.” Nevertheless, pursuant to the “plea agreement” and Prothro v. State, 370 So.2d 740 (Ala.Cr.App.1979), the trial court empaneled a jury to make guilt and punishment determinations. During the guilt phase of the trial, in addition to the State’s substantial circumstantial evidence of appellant’s guilt, the appellant’s guilty plea and all the facts and circumstances surrounding it were presented to the jury. This was also done pursuant to a provision of the “plea agreement.”

. The jury found the appellant guilty of the capital felony charged in the indictment and after a separate sentencing hearing, pursuant to the State’s recommendation, fixed appellant’s punishment at life imprisonment without parole. The trial court conducted a separate sentencing hearing wherein it sentenced appellant to life imprisonment without parole.

Initially, the appellant contends that, in determining that his guilty plea was made voluntarily and intelligently, the trial court erred because it failed to solicit the details of the crime from the appellant himself. This contention is without merit.

The trial court must be satisfied that there is a factual basis for the guilty plea, but “it is not necessary that the factual basis of the plea be established through the statements of the defendant where there is other information before the trial judge from which he can make this determination.” Young v. State, 408 So.2d 199 (Ala.Cr.App.1981); see also, Davis v. State, 348 So.2d 844, 847 (Ala.Cr.App.), cert. denied, 348 So.2d 847 (Ala.1977) and Bland v. State, 56 Ala.App. 547, 323 So.2d 730 (1975) (where voluntary and intelligent guilty plea determinations were upheld even in the absence of a recorded colloquy with the defendant).

In the instant case there was an abundance of “other information” to support the trial court’s determination that the “guilty plea” was made voluntarily and intelligently. In open court the appellant signed a “plea agreement” and an Ireland form, both of which confirmed that he was voluntarily and intelligently pleading guilty to the capital felony charged in the indictment. The indictment was quite specific in charging that the appellant robbed his grandmother of $747 and killed her by beating her to death with a 2 X 4 piece of wood. Before empaneling the jury the trial court conducted a thorough colloquy with the appellant and determined that the appellant fully understood the charge against him and the nature and consequences of his plea of guilty. After the jury was empaneled the prosecution, in its opening statement, summarized the factual basis for the offense charged in the indictment. The trial court conducted a second colloquy with the defendant in the presence of the jury to insure that the appellant’s guilty plea was made intelligently and voluntarily. Furthermore, the trial court’s determination that there was a factual basis for the plea was verified by the evidence presented during the guilt phase hearing before the jury.

Under these circumstances the trial court did not err in determining that the guilty plea was made voluntarily and intelligently. Moreover, the trial court did not sentence the appellant until the jury had found him guilty and had fixed his punishment at life imprisonment without parole.

The appellant further contends that the trial court erred in denying his motion to exclude the State’s evidence on the ground that the State failed to present a prima facie case. The appellant argues that there was no evidence of a “robbery” which is required to support the charge of “[rjobbery or attempts thereof when the victim is intentionally killed by the defendant.” Ala.Code § 13A-5-31(a)(2) (1975).

Contrary to appellant’s assertions, there was sufficient evidence of a “robbery.” The appellant and his grandmother were alone in her home at the time of her death. The door leading outside was locked from the inside. When the police arrived they found his grandmother’s purse under the body and some empty food stamp envelopes. When the appellant was searched shortly after his arrest, the police found $747 and some food stamps. Witnesses testified that the appellant had no money when he went to stay with his grandmother a few days before she was killed.

In addition to this circumstantial evidence, the State presented testimony with reference appellant’s final statement to the police. In that statement he admitted that he killed his grandmother and took the money from her purse.

This evidence was sufficient to support a prima facie case of the capital felony charged in the indictment.

Furthermore, the appellant’s guilty plea and all the documents in support thereof were also before the jury. Although not conclusive on the issue of guilt in capital felony cases (see Prothro, supra), the appellant’s plea, as a voluntary and intelligent admission of guilt, was proper evidence in support of the other facts and circumstances establishing the case against the appellant. See, Watters v. State, 369 So.2d 1262 (Ala.Cr.App.1978), rev’d on other grounds, 369 So.2d 1272 (Ala.1979); Baldwin v. State, 372 So.2d 26 (Ala.Cr.App.1978), aff’d, 372 So.2d 32 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133 (1980) (affirming the use of confessions in support of other proof of the corpus delicti).

Appellant further contends on appeal that the trial court erred in failing to instruct the jury on the alleged lesser included offenses of manslaughter and criminally negligent homicide.

During the guilt phase hearing but outside the presence of the jury the appellant suggested, orally, that the trial court charge, generally, on lesser-included offenses. The trial court concluded that there was no reasonable theory of the evidence to support any lesser included offense and implied that he did not intend to include any lesser offenses in his jury charge. The appellant did not request a written charge on any lesser included offenses and at the conclusion of the court’s oral charge, he announced that he was “satisfied.” In failing to submit requested written instructions, the appellant failed to preserve this issue for our review. Barclay v. State, 368 So.2d 579 (Ala.Cr.App.), cert. denied, 368 So.2d 581 (Ala.1979); Hall v. State, 375 So.2d 536 (Ala.Cr.App.1979); Hollis v. State, 399 So.2d 935 (Ala.Cr.App.1981). This is not a case “in which the death penalty had been imposed.” (A.R.A.P. 45A), so the Plain Error Rule does not apply. McGinnis v. State, 382 So.2d 605 (Ala.Cr.App.1979), cert. denied, 382 So.2d 609 (Ala.1980); Cook v. State, 384 So.2d 1158 (Ala.Cr.App.), cert. denied, 384 So.2d 1161 (Ala.1980).

In conclusion, we note that the trial court, at each stage of the proceedings below, gave the appellant ample opportunity to withdraw his plea of guilty or to have a mistrial declared if he, the appellant, was not satisfied. For aught that appears in the record the appellant was satisfied that the provisions of his plea agreement were met and that he was convicted and sentenced in accordance with the due process of law. See, Lane v. State, 412 So.2d 292 (Ala.1982).

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Gene FIELDS v. STATE.
    4 Div. 1.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    John M. Gruenewald, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted in Houston County Circuit Court of selling marijuana. Appellant was sentenced to ten years’ imprisonment.

The State’s first witness was Mrs. Lynn Odom, an officer who was employed as an undercover agent for the Houston County Sheriff’s Department.

On July 8, 1981, around 7:30 p.m., the witness followed appellant who was driving a green Duster automobile to East Fields Avenue in Houston County. The witness made an in-court identification of appellant from the witness stand. After stopping her automobile she walked to appellant’s car and saw appellant on the driver’s side, a David Dozier on the passenger’s side, and someone in the back seat. David Dozier got out of the automobile and the witness sat down on the passenger’s side. Mrs. Odom noticed a clear plastic bag in the car containing brown material. The witness asked appellant if “this was the dope,” to which appellant gave an affirmative nod. She then asked appellant if the price was still $60 and appellant again nodded yes. The witness placed three $20 bills on appellant’s lap which appellant picked up. The witness left with the plastic bag.

The witness kept the bag locked in her briefcase until she turned it over to Sergeant Charles Odom, her supervisor. The witness identified the bag on the witness stand.

On cross-examination, Mrs. Odom was asked if the passenger in the back seat of the car was Russell Dozier, David Dozier’s brother. She responded that she did not know who was in the back seat.

On voir dire, the witness testified that she had known David Dozier for about three weeks before the transaction. Mr. Odom had asked the informer if he could introduce her to anyone who dealt in marijuana sales so she could make a contact. According to the witness, she was to do the actual buying, not the informer.

The trial court allowed appellant to further question the witness' on the subject in front of the jury. Mrs. Odom testified that the informer had called the day of the drug sale and told her that appellant was going to buy one-fourth pound of marijuana and would sell her one-half of that amount. A meeting was set up at 6:30 p.m. to consummate a deal. When appellant did not show up at 6:30, the informer called and asked to meet them where the transaction ultimately occurred.

The witness further testified that she had earlier told the informer that she would like to buy marijuana from appellant. The meeting was not set up until the informer called the day the sale occurred. The witness did not know what transpired between the time she asked the informer to make contact with appellant and the day the informer called telling her that appellant had some marijuana and wanted to sell some of it to her. However, the witness did meet appellant one week before the transaction, but she did not ask him to sell her marijuana. She denied that appellant told her that he was not going to sell her any marijuana. The witness met appellant once before the actual transaction to sell her any marijuana but did not offer to buy marijuana at that time.

Sergeant Charles Odom, Mrs. Odom’s supervisor, testified that he picked up the plastic bag from Mrs. Odom. He locked the bag in the locker and then turned it over to a State lab.

On cross-examination the witness stated that he was unaware of any possible or pending charges against David Dozier. According to the witness, he thought that appellant was either on probation or serving a suspended sentence for a prior conviction, but he was not familiar with the case.

Joe Saloom, an employee of the Alabama Department of Forensic Sciences, testified that the plastic bag contained one and one-half ounces of marijuana.

Mrs. Odom was recalled for further cross-examination. On July 3, 1981, she was working undercover. The purpose of her investigations was to buy drugs.

Appellant did not call any witnesses and did not take the witness chair in his behalf.

Appellant first contends that the trial court committed reversible error in deny-mg his motion for a continuance based on the absence of Russell Dozier, the brother of a David Dozier. Russell Dozier had not been served a subpoena as he was at boot training.

There is no merit to appellant’s contention.

The motion for a continuance is addressed to the sound discretion of the trial court and is not reviewable unless gross abuse is shown. Denial of a continuance is not palpable abuse of discretion in the absence of a showing as to what the witness would testify to. Goodrum v. State, Ala.Cr.App., 402 So.2d 1103 (1981); Smith v. State, Ala.Cr.App., 368 So.2d 298, cert. denied, Ala., 368 So.2d 305 (1978); Sparks v. State, 46 Ala.App. 357, 242 So.2d 403, cert. denied, 286 Ala. 738, 242 So.2d 408 (1970). There was no attempt at all to show what the witness would testify to if present.

Appellant also argues that the trial court erred in not instructing the jury on the defense of entrapment.

At the end of the State’s evidence the following occurred:

“MR. GRUENEWALD: Yes, sir, Your Honor. I would state to the Court that the Defendant is not going to put on any evidence. We rest. And, also request the Court to charge the Jury on the law of entrapment in the State of Alabama.
“THE COURT: All right. With that the Defendant rests?
“MR. GRUENEWALD: Yes, sir.”

After the court charged the jury without charging on entrapment, appellant announced that he was satisfied with the charge. A number of requested written charges was submitted and all were given except those affirmative in nature.

The law is well settled in Alabama that the proper procedure in insuring that an omitted principle of law in the oral charge is included is to tender a written requested charge on the principle of law. Failure to follow this procedure constitutes a waiver. Wyers v. State, Ala.Cr.App., 401 So.2d 221, cert. denied, Ala., 401 So.2d 226 (1981); Hall v. State, Ala.Cr.App., 375 So.2d 536 (1979).

Appellant also argues there was insufficient evidence to convict appellant of selling marijuana.

The State presented evidence that appellant was going to buy one-fourth pound of marijuana and would sell Officer Odom one-half of that amount. Officer Odom, after following appellant’s car, met him at a prearranged location. Appellant was sitting on the driver’s side of the car beside a plastic bag of marijuana. Officer Odom asked appellant if that was “the dope” and appellant indicated it was. She asked him if the price was $60, and again appellant responded affirmatively. After Officer Odom picked up the bag and placed $60 in appellant’s lap, appellant picked up the money from his lap.

It is the duty of this court to determine whether there was legal evidence presented from which the jury could by fair inference find a defendant guilty, and, if so, this court has no right to disturb the verdict. Jenkins v. State, Ala.Cr.App., 384 So.2d 1135, cert. denied, Ala., 384 So.2d 1141 (1980). There is ample evidence presented from which the jury could by fair inference find that appellant had illegally sold marijuana.

Neither do we find that as a matter of law appellant was entrapped.

We note that in his motion to exclude, in his request for the affirmative general charge and his motion for a new trial because of insufficient evidence, appellant never expressly based his motions on the defense of entrapment. In fact, because of appellant’s failure to insure the defense was included in the trial court’s charge, the defense was never before the jury. Thus, the jury could not consider the defense, regardless of the evidence presented on the issue.

In any event, the fact that the informer acting on behalf of the State or the undercover agent initiated the sale alone does not constitute entrapment as a matter of law, and the circumstances in the present case do not establish entrapment as a matter of law. Pitts v. State, 291 Ala. 136, 279 So.2d 119 (1973); Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109, cert. denied, 295 Ala. 412, 323 So.2d 116 (1975). Although the State initially contacted appellant about selling drugs, the acts of appellant in buying a fourth pound of marijuana and agreeing to sell the undercover agent half of that amount “hardly indicated a timid, law abiding soul forced into crime by the overwhelming pressures of cruel and tricky law enforcement agents.” Gilliland, supra. These actions leading to the transfer indicate a criminal disposition. See Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716, cert. denied, 271 Ala. 549, 125 So.2d 725 (1960).

Appellant finally argues that the trial court improperly sustained an objection to a question he asked Sergeant Charles Odom during cross-examination. From the record:

“BY MR. GRUENEWALD:
“Q. Sergeant Odom, let me ask you this. To your knowledge, on or about this time, had David Dozier been previously convicted of any kind of criminal charge?
“MR. YALESKA: I object.
“MR. GRUENEWALD: Judge, I am asking him for the purpose of finding out if he was on probation at this time.
“THE COURT: Why don’t you ask him that then?
“BY MR. GRUENEWALD:
“Q. Was he on probation or a suspended sentence for any violation on or before July 3rd, 1981, to your knowledge?
“A. I believe he was on probation. I am not familiar with the case.
“Q. Do you know what kind of case it was?
“A. I believe it was theft of property. I can’t say for sure.
“Q. All right. And, do you know who had made that case against him, that theft of property case?
“A. It was a City detective. I do not know.
“Q. And, you know that he was on probation for that?
“A. I don’t know if he was on probation or suspended sentence. I do not know the, what he was on.
“Q. All right. Let mé ask you this. On July 3rd, 1981, or before, did you have knowledge of any circumstances pertaining to David Dozier which could have possibly led to the revocation of his probation and suspended sentence? Anything he might have been involved in?
“MR. VALESKA: I object, Judge. You allowed him to go in on whether there was the possibility of getting a warrant against him or they could arrest him for anything and he said, no, no, no.
“MR. GRUENEWALD: That is not the same thing, Your Honor.
“THE COURT: I sustain the objection.
“MR. GRUENEWALD: All right. Judge, wait. I have no further questioning. I would like to reserve the right to recall him.”

We initially note that the trial court allowed appellant a great deal of latitude in cross-examining the witness on this issue. Appellant was allowed to ask if there was any pending charge against the informer, if the State had threatened to charge the informer, if the informer had previously been convicted of any crime, and if the informer was on probation. We also note that the witness repeatedly stated that he did not know of any charges, nor was he familiar with the probation of suspended sentence the informer was under.

Appellant correctly argues in his brief that the trial court should give a defendant wide latitude in cross-examining a State’s witness as to certain witness bias or interest concerning matters about which he is testifying. Nichols v. State, 276 Ala. 209, 160 So.2d 619 (1964); Collins v. State, Ala.Cr.App., 364 So.2d 368, cert. denied, 364 So.2d 374 (Ala.1978).

However, the appellant was not attempts ing to impeach Sergeant Odom or any other witness’s testimony by showing bias, but was attempting to ascertain whether the informer, who was never a witness, was under pressure from the State to set up the drug transaction.

The proper person to have questioned as to the possibility of any State pressure would have been the informer himself and not the third party witness who very possibly obtained the information sought to be elicited, if indeed he knew at all, in an impermissible hearsay manner. Appellant could have called the informer as an adverse witness and questioned him on the matter. In fact, appellant had subpoenaed the informer and the informer was present at trial but was never called.

Moreover, since it is not obvious from appellant’s question that the answer would have been prima facie competent and admissible testimony, appellant was under a duty to make a showing as to what he expected the witness to answer and how the testimony would have been competent. McElroy’s Alabama Evidence, 3rd Ed., § 425.01(4). Ex parte Fields, Ala., 382 So.2d 598 (1980); Collins v. State, 364 So.2d 368, cert. denied, 364 So.2d 374 (Ala.1978); Bryer v. State, 34 Ala.App. 561, 42 So.2d 496 (1949).

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

AFFIRMED.

All the Judges concur.


author: BARRON, Judge.

text:
    Harold Jake KEY v. The TOWN OF KINSEY.
    4 Div. 9.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.

      Randy C. Brackin of Martin & Brackin, Dothan, for appellant.
    Thomas Sorrells, Dist. Atty., Dothan, for appellee.
   BARRON, Judge.

The appellant was convicted in the district court of Houston County for the offense of driving while under the influence of alcohol or controlled substances, § 32-5A-191, Code of Alabama 1975, as adopted by an ordinance of the Town of Kinsey, Alabama. An appeal was then taken to the circuit court of the county, wherein a trial was had without a jury. Appellant was convicted of the offense and appeals that conviction.

The appellant alleges that the State’s evidence was not sufficient to prove the elements of the offense charged. We agree.

Kinsey Police Chief Franklin D. Sopuch testified that while on patrol on May 2, 1981, he saw an automobile parked on a median strip between the north and south bound lanes of U.S. 431. The appellant was alone, sitting on the driver’s side of the front seat, leaning across the passenger’s side of the automobile. Appellant was removed from the vehicle and taken to the Houston County Jail, where Chief Sopuch administered an approved test of assessing intoxication, which recorded appellant’s alcohol level in his blood as .19.

Appellant admitted that he had been drinking, but denied operating the automobile. He testified that the car was out of gas, and that his son, the driver, had walked to get gasoline at the nearest open service station. He testified that his son had the keys to the car and that the car would not operate without keys.

The police chief acknowledged that the appellant had no keys to the car at the time of his arrest, and that he at no time saw the car being driven by the appellant.

There was no evidence presented that any attempt was made to start the car. It was impounded and towed by a wrecker later that night.

The statute the appellant was arrested under is part of the “Rules of the Road Act,” which became effective August 17, 1980. An interpretation of the wording of that statute is requested of this court in this appeal. This issue presented for review is one of first impression for this court.

The present law prohibiting driving under the influence is § 32-5A-191. This statute was preceded by § 32-5-170, Code of Alabama 1975, which was similar to the statute in the earlier 1940 Code, Title 36, § 2.

These two earlier statutes prohibited “driving” while intoxicated (or “under the influence”), while the current statute provides that “A person shall not drive or be in actual physical control of any vehicle [while intoxicated] .... ” (Emphasis added.) (Statutes cited supra.)

The cases interpreting the earlier statute had established the rule that before an accused could be convicted of the offense, he must, at the time and place charged, have been driving while intoxicated. Gamble v. State, 36 Ala.App. 581, 60 So.2d 696 (1952).

In the case of Underwood v. State, 24 Ala.App. 191, 132 So. 606 (1931), the Alabama court clearly spelled out the meaning of “driving” or “operating” a vehicle in a similar fact situation under the prior law.

“We have carefully read all the evidence adduced upon the trial of this case in the court below, and are at a loss to understand how a verdict of guilty could be rested upon such evidence. Nowhere during the trial was there any evidence tending to sustain the charge. Without dispute, the evidence disclosed that this appellant, defendant below, was sitting on the front seat of a model T Ford car which was standing partly in the road, but there was no evidence that he drove the car or in any way attempted to do so. The evidence for the state showed conclusively to the contrary, and that the accused never drove the car at all, never attempted to do so, and that the automobile in question remained stationary and was not driven or operated by any one during the time complained of. There was some evidence tending to show the accused appeared to have been drinking at the time he was arrested, but none whatsoever that he operated the car in question or that he made the slightest attempt to do so.”

The question here to be decided is whether the evidence adduced at trial sufficiently proves appellant was in “actual physical control” of the automobile in an intoxicated state, as prohibited by the present statute. The rule of the Underwood case above, and the statute on which it is based, are no longer in effect.

Other states have similarly worded statutes, and it is appropriate that we look to their experience in interpreting this wording under similar fact situations. The question presented is how “actual physical control” is distinguished from “driving or operating” a vehicle.

In Arizona, a defendant was found drunk and asleep with his head and arms on the steering wheel of his truck, which was sitting in a traffic lane on the street with its lights on and motor running. As in the instant case, the state’s DUI statute had recently been amended to include a prohibition against being in “actual physical control” of a vehicle while intoxicated. The court there said that the change in the statute was intended to broaden its coverage to include persons having control of a vehicle while not actually driving it or having it in motion. State of Arizona v. Webb, 78 Ariz. 8, 274 P.2d 338 (1954).

The Arizona court in Webb stated that the defendant had, of his own choice, placed himself behind the wheel and had started the motor or allowed it to run, and therefore had physical control of the vehicle, although it remained motionless.

An Ohio court, interpreting this same wording, affirmed a conviction in a case where the defendant had pulled over on the roadside, and was asleep with the motor running. In that opinion, the court defined “control” as the ability to “exercise directing influence over” and “the authority to manage.” State of Ohio v. Wilgus, 31 Ohio Op. 443 (1945).

The facts in these cases are distinguished from the facts in the instant case in that, in this case, the automobile was neither moving nor running. In fact, there was undisputed evidence that appellant had no keys in his possession.

Chief Sopuch testified that it appeared to him that a toggle switch installed next to the steering wheel would engage the car without a key, but appellant testified that while there had been a switch installed in a repair of the car’s starter system, the car would not function without a key. Chief Sopuch admitted that he did not attempt to start the car without the key. It is a rare vehicle that is operational without a key of some kind. Chief Sopuch’s statement that the car was operational without a key was not corroborated by either (1) an attempt to start the car at the scene, or (2) other testimony at trial.

“Actual physical control” is exclusive physical power, and present ability, to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment. State v. Purcell, 336 A.2d 223 (Del.Super.Ct.1975).

Using the term in its composite sense, it means “existing or present bodily restraint, directing influence, domination or regulation.” Parker v. State, 424 P.2d 997 (Okl.Cr.App.1967); State v. Ruona, 133 Mont. 243, 321 P.2d 615 (1958).

We conclude that the following are the necessary elements to establish that one is in physical control of a vehicle under the provisions of Code § 32-5A-191, supra:

1. Active or constructive possession of the vehicle’s ignition key by the person charged or, in the alternative, proof that such a key is not required for the vehicle’s operation;

2. Position of the person charged in the driver’s seat, behind the steering wheel, and in such condition that, except for the intoxication, he or she is physically capable of starting the engine and causing the vehicle to move;

3. A vehicle that is operable to some extent.

It logically follows that any act of control requires an object (here, the automobile) that is subject to that control. In this case, there was insufficient evidence of appellant’s ability to manifest control of the automobile in accordance with the above criteria. Consequently, the judgment of the circuit court of Houston County is reversed, and under the holding of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the cause is rendered.

REVERSED AND RENDERED.

All the Judges concur.


text:
    Larry Dale GREEN v. STATE.
    6 Div. 730.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    C. Steven McLaurin, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

Larry Dale Green was indicted by a Jefferson County Grand Jury for burglary in the third degree. He was convicted by a jury, was adjudicated guilty by the trial court, and was sentenced under the Habitual Felony Offender Act to fifty years. From that judgment, he appeals.

At the. conclusion of the State’s case, appellant moved to exclude the State’s evidence on the grounds that the State had not proved a prima facie case. The motion was denied by the trial court, and that denial is the only issue presented on appeal.

We hold that the State proved a prima facie case of burglary in the third degree, and thus that appellant’s motion to exclude was properly denied by the trial court.

The elements of burglary in the third degree consist of (1) knowingly entering or remaining unlawfully in a building and (2) intent to commit a crime therein. Ala.Code § 13A-7-7 (1975).

Appellant’s fingerprint was found on a silver plate, which had been tossed on the floor in the home that was recently burglarized. The owner of the home testified that his home in Jefferson County was burglarized on November 19,1980, when he and his wife were not at home, and that a number of items, totaling about five or six thousand dollars in value, were missing, including silver items, camera lenses, watches and jewelry. The owner further testified that he had never seen appellant before the trial, that he did not know him, and that he had never given appellant permission to go inside his home. Further, there was testimony to the effect that on the day of the burglary “a white male was seen coming down from the home carrying a pillow case full of something and a silver tray.” This evidence presents a prima facie case of the charged offense.

In determining the sufficiency of the evidence for this purpose, we are required to consider the evidence in the light most favorable to the prosecution and accord to the State all legitimate inferences therefrom. See Johnson v. State, 378 So.2d 1164 (Ala.Crim.App.), cert. denied, 378 So.2d 1173 (Ala.1979); and Bozeman v. State, 401 So.2d 167 (Ala.Crim.App.), cert. denied, 401 So.2d 171 (Ala.1981).

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

AFFIRMED.

All the Judges concur.


text:
    Thomas James PROCTOR v. STATE.
    6 Div. 810.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.

      James G. Stevens, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was arrested on March 6,1981, by the City of Birmingham Police Department in Birmingham, Alabama, and charged with first degree robbery. He was tried before a jury in the Circuit Court of Jefferson County on December 17, 1981, and was found guilty and sentenced to life imprisonment without parole under the Habitual Offender Act. On the entry of judgment appellant gave notice of appeal. At that time appellant’s trial counsel was relieved from further duties and the Honorable James Stevens was appointed as his attorney on appeal. On January 3, 1982, appellant filed a pro se motion for a new trial which was denied on January 21, 1982. On January 15, 1982, appellant’s trial counsel filed a motion for a new trial which was denied on March 1, 1982. This appeal followed.

Mr. Willis Lawrence of Boaz, the victim of the robbery, testified that, on February 28,1981, he was in Birmingham to pick up a trailer for his employer’s Birmingham operation. Driving a 1964 Chevrolet pickup truck, Mr. Lawrence went to the residence of his wife’s grandmother in the 2200 block of 7th Avenue, North. Mr. Lawrence recalled that, as he was about to get in his truck to leave after visiting his wife’s grandmother, three black males approached him, pulled a gun and told him to get in the truck. One of the men had approached him first to get a light for his cigarette. As he was attempting to light the man’s cigarette, the other two men approached him. This occurred at approximately 5:30 p.m.

Mr. Lawrence stated that he was standing a “step or two” from the individual who pulled the gun, and at trial Mr. Lawrence identified that person as the appellant. Appellant told him to get in the truck or he would be shot. Mr. Lawrence and the three men got in the truck with appellant driving and Mr. Lawrence seated between the other two. Once in the truck, appellant gave the gun to one of his companions; and then they took his billfold, removed $250.00 from it, and, with Mr. Lawrence captive, drove away.

As the truck drove away, Mr. Lawrence was forced to crouch down in the floorboard with his hands on his head. He was struck once with the gun butt when his hands accidentally slipped, and, after asking to be let go to see his wife in the hospital, he was threatened by one of the robbers who had a knife that he would be scalped and maimed.

After riding for some twenty to thirty minutes, they arrived in the Collegeville area near Tarrant City. There the robbers forced Mr. Lawrence to get out of the truck, took his cigarettes, knife, watch, belt and everything else in his pockets, and then made him get in a garbage dumpster in a lightly traveled area behind some apartments.

Mr. Lawrence climbed over in the dumpster, onto burning trash, and was told to lie down. After Mr. Lawrence was inside the dumpster one of the men shot him in the back of the head and the stomach. After hearing his truck drive away, Mr. Lawrence managed to escape from the dumpster, the police were called, and he was hospitalized.

Mr. Lawrence spent nine days in the hospital and, after his release, he was visited at his home in Boaz by Officer P.T. Hurst of the Birmingham Police Department. Officer Hurst showed Mr. Lawrence some “mugshots” of black males which gave their front view and profile. With both Officer Hurst and Mr. Lawrence sitting on the living room couch, Officer Hurst laid the six photograph cards out in a row on the coffee table. Officer Hurst told Mr. Lawrence nothing about the photographs other than, “I’ve got some photographs I want you to look at.”

Mr. Lawrence stated that he picked up each photograph and held them close to his face looking at them “real good.” After so doing, he picked out two photographs. There were no markings on the front of the photographs, and Mr. Lawrence stated he did not look at the backs of them.

Of the two photographs he picked out of the array, Mr. Lawrence was certain that one of the two was one of the robbers. The other photograph was a picture of appellant, but Mr. Lawrence felt that he could not be definite the person in the picture was one of the robbers.

Appellant was arrested on March 6, 1981. At appellant’s preliminary hearing, Mr. Lawrence was seated in a room in the courthouse with Officer Hurst seated near him when twelve to fifteen prisoners were brought into the room in a line. At that time, Mr. Lawrence recognized the appellant in the line of prisoners as being one of the robbers, and he pointed appellant out to Officer Hurst. All of the prisoners were in jail clothing and were wearing handcuffs, and there were more blacks in the group than whites. Mr. Lawrence stated that no one had made any suggestion to him that one of the prisoners might be one of his robbers.

On the afternoon of February 28, 1981, Miss Florence Safford, 68 years of age, who lives in an apartment across the street from where Mr. Lawrence visited his wife’s grandmother, testified that she was on her porch when she saw Mr. Lawrence come out of the house and go to his truck. Miss Safford stated she also saw three young black men come up and get in the truck. Miss Safford recognized one of the three young men as a person she had seen on previous occasions and knew by the name of “Sonny.” She did not know the other young men. The young man she knew as “Sonny” got in the truck on the driver’s side. She walked over toward the truck, but as she approached it, the truck drove away with Mr. Lawrence and the three young black men inside.

On March 2,1981, the police showed Miss Safford some photographs, and she picked out the man she knew as “Sonny” as being one of the robbers. He was arrested on March 6, 1981, near Miss Safford’s home. At trial, Miss Safford identified “Sonny” as being the appellant.

During the trial at the end of the State’s case, defense counsel moved to exclude the State’s evidence and moved for a directed verdict. He did not assign any grounds. At the end of all the evidence, defense counsel stated, “I’d like to make a motion, renew our motion.” Both motions were overruled.

At the completion of the State’s case, appellant introduced four or five alibi witnesses who stated he was elsewhere during the time of the commission of the robbery and in fact did not commit the robbery.

Appellant bases his appeal on three arguments. They are: (1) the State lacked probable cause to arrest the appellant and by so doing violated his due process rights accorded him under the Fifth Amendment to the United States Constitution; (2) the identification of the appellant by the victim and one witness was unduly suggestive and prejudiced by intervening circumstances and facts surrounding the pre-arrest photo lineup and the subsequent in-court identification at the appellant’s preliminary hearing; and (3) a reasonable doubt as to appellant’s guilt existed due to appellant’s alibi evidence coupled with all the other evidence, and, therefore, an acquittal of appellant is required.

Appellant contends that the evidence adduced at trial is insufficient to constitute probable cause to arrest the appellant for this robbery, and, as such, is a violation of his right to due process under the Fifth Amendment of the United States Constitution. In Beasley v. State, Ala.Cr.App., 408 So.2d 173 (1981), certiorari denied Ex parte Beasley, Ala., 408 So.2d 180 (1982), it was held that, before an appellate court will review alleged violations of one’s constitutional rights, they must first be seasonably raised in the lower court. Hollis v. State, Ala.Cr.App., 380 So.2d 409 (1980). In the present case, the record shows that appellant made two motions. The first motion was made at the end of the State’s case when defense counsel moved “to exclude the State’s evidence and move for a directed verdict.” No grounds were assigned for this motion. The second motion was made at the end of all the evidence when defense counsel stated, “I’d like to make a motion, renew our motion.” The record contains no objection as to the alleged violation of appellant’s constitutional rights, and, hence, no error is preserved for review.

Appellant argues that the victim’s in-court identification of appellant should have been suppressed based on the fact that prior identification procedures were unduly suggestive. Reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Williamson v. State, Ala.Cr.App., 384 So.2d 1224 (1980). In assessing the reliability of the identification, the effect of suggestiveness must be weighed against the indicators of the ability of a witness to make an accurate identification. These indicators include the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, supra. Thomas v. State, Ala.Cr.App., 399 So.2d 915 (1981).

Two prior opportunities for the victim to possibly make pretrial identification occurred. The first opportunity was at the victim’s home some twelve days after the robbery where Officer Hurst presented the victim a photo array of mugshots, and the second was at the preliminary hearing where a group of some twelve to fifteen prisoners were viewed by the victim as the docket was being called.

The testimony at trial and at the voir dire hearing concerning the photo lineup at Mr. Lawrence’s home does not show that a highly suggestive procedure was used. Testimony shows that the composition of the photographs was fair in that they did not call attention to appellant and that there was no suggestion made as to whom the victim should pick out of the group of photographs.

As to the victim’s immediate positive identification of appellant when appellant was brought into the courtroom in the group of twelve to fifteen prisoners makes it equally clear that nothing suggestive took place on this occasion. The evidence indicates that, at the time of the victim’s identification of appellant, no one made a suggestion as to whom the victim should choose as his attacker. Furthermore, all of the prisoners were in jail clothing and wearing handcuffs, and there were more blacks in the group than whites.

Against the evidence of suggestiveness, however, must be weighed the indicators of the ability of the witness to make an accurate identification. Thomas v. State, supra. A most important factor in assessing the ability of the witness to accurately identify a suspect is the opportunity of the witness to view the person at the time of the crime. Thomas v. State, supra. In the case at bar, the victim testified that, when the robbers approached, the appellant pulled a gun on him while he was standing only a “step or two” away from appellant. The evidence indicates that it was daylight and not raining. Mr. Lawrence also stated that, when he realized what was happening, he “tried to look enough at their face that I would remember it if I seen it.” Mr. Lawrence’s identification only one and a half months after the robbery at the preliminary hearing was a positive one with no expression of doubt. While the record does not provide a detailed description of appellant, he was described by Mr. Lawrence to Officer Hurst several days after the robbery in the hospital where he was recuperating from surgery. Even though the descriptions given by Mr. Lawrence at trial vary somewhat from the initial description given to Officer Hurst, they are not so inconsistent that they preclude the possibility of appellant being the person initially described by the witness to the police. The only major discrepancy is Mr. Lawrence’s estimation of the suspect’s age as some ten years younger than that of appellant.

One of the problems of an eyewitness identification is the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional distress. Manson v. Brathwaite, supra; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Thomas v. State, supra. The witness’s recollection of the stranger can be distorted easily by the circumstances or by later actions by the police. Such problems are the reason for weighing any factors of suggestiveness against the indicators of reliability. Thomas v. State, supra. Weighing the slight amount of suggestiveness in the photograph lineup and the identification at the preliminary hearing against the factors which indicate the ability of the witness to make an accurate identification, we hold that the identification testimony at the trial was admissible. Manson v. Brathwaite, supra; Thomas v. State, supra.

The fact that Mr. Lawrence was unable to make a positive identification of defendant from the photograph lineup conducted at his home twelve days after the robbery does not require the exclusion of his in-court identification, but, rather, goes to the weight and credibility of his testimony. Carter v. State, Ala.Cr.App., 406 So.2d 1076 (1981).

Appellant also contends that the identification of appellant by the witness Miss Florence Safford was unduly suggestive and prejudiced by intervening circumstances and facts surrounding the pre-ar-rest photograph lineup and the subsequent in-court identification. In the absence of an appropriate objection during trial, the issue of whether an in-court identification was tainted by a pretrial photographic display or lineup is not preserved for review. Helton v. State, Ala.Cr.App., 372 So.2d 390 (1979). The record contains no objection to Miss Safford’s in-court identification or motion to suppress during the trial. Therefore, this issue is not reviewable by the court.

Appellant contends that his alibi evidence taken with all the other evidence introduced at trial creates a reasonable doubt as to appellant’s guilt, and, therefore, an acquittal of the appellant is required. In Starling v. State, Ala.Cr.App., 398 So.2d 337 (1981) it was held that conflicting evidence always presents a jury question unless the evidence palpably fails to establish a prima facie case. It is undisputed that the first degree robbery took place. The conflict in evidence is between the in-court identification of appellant by the victim and witness and the alibi testimony of defense witnesses who contend appellant was elsewhere when the abduction and robbery took place. With the in-court identification of appellant as one of the robbers, the State completed its prima facie case. Where there is a conflict in evidence, the inferences to be drawn from the evidence, the weight of the evidence, and the credibility of the witnesses are all questions for the jury. Higginbotham v. State, Ala.Cr.App., 346 So.2d 525 (1977).

Appellant received a fair trial and that is all that he was due. There is no error in the record and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Johnny Wayne TERRY, alias v. STATE of Alabama.
    6 Div. 824.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    Paul E. Skidmore, Tuscaloosa, for appellant.

      Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Johnny Wayne Terry was convicted of the unlawful possession and sale of metha-qualone, fined $25,000 and sentenced to five years in the penitentiary.

The State’s evidence established that on May 16, 1980, the appellant sold five Quaalude tablets to Mrs. Cathy Moore, an undercover agent with the West Alabama Narcotics Squad.

According to Mrs. Moore’s testimony, the sale took place at “The Cowboy” lounge in Tuscaloosa, Alabama, on this date.

The appellant took the stand and denied the sale of drugs to Mrs. Moore. In rebuttal, the State re-called Mrs. Moore, who testified, over defense objections, to another drug transaction between the appellant and herself. The second occurrence involved the sale of cocaine and occurred on May 19,1980, three days following the incident in question here.

Mrs. Moore stated that on May 19, she met the appellant at “The Cowboy,” and by prearrangement she went to the appellant’s car, removed a small plastic bag containing a white powder from the glove compartment, and left a $100 bill. The following day, she had a telephone conversation with the appellant to confirm that he “got the $100 ... for the Cocaine.” (R. 66). Mrs. Moore testified that she tape recorded the conversation. Then, following an in camera playing of the tape and determination of its admissibility, the recording was played for the jury.

After his trial and conviction, the appellant filed a motion alleging that he was entitled to a new trial because the assistant district attorney who prosecuted the case against him had been previously associated with the law firm which secured the appellant’s release from jail on the instant offense. Different counsel represented appellant on trial. After a hearing, the trial court denied the motion for new trial and this appeal followed.

I

Appellant contends that the trial court erroneously admitted evidence of his alleged sale of cocaine to Mrs. Moore, an offense not charged in the indictment.

Although it is generally true that an accused must be tried only on the charge contained in the indictment, Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953), there are, of course, numerous exceptions to the rule excluding non-charged offenses, See Lucy v. State, 340 So.2d 840 (Ala.Cr.App.), cert. denied, 340 So.2d 847 (Ala.1976); C. Gamble, McElroy’s Alabama Evidence § 69.01 (3d ed. 1977). If the evidence has a probative function other than to show the defendant’s bad character or inclination to commit the type of crime for which he is being prosecuted, it is admissible. See Allen v. State, 380 So.2d 313 (Ala.Cr.App.), cert. denied, 380 So.2d 341 (Ala.1980).

In our judgment, the evidence of appellant’s sale of cocaine three days after the charged offense was admissible to show his plan, design, scheme or on-going business system to engage in an illegal drug transaction. C. Gamble, supra, at § 69.01(6). Both the charged offense and the other crime involved the same buyer (Mrs. Moore) and the same location (“The Cowboy” lounge) and were inferentially, therefore, part of an overall plan having common features. See McDonald v. State, 57 Ala.App. 529, 329 So.2d 583 (1975), cert. quashed, 295 Ala. 410, 329 So.2d 596, cert. denied, 429 U.S. 834, 97 S.Ct. 99, 50 L.Ed.2d 99 (1976).

In addition, the evidence was admissible because appellant’s affirmation that he “never sold [Mrs. Moore] any kind of drugs, period” (R. 46) opened the door for the State to refute this claim by showing the subsequent cocaine sale on rebuttal. See Fisher v. State, 57 Ala.App. 310, 328 So.2d 311, cert. denied, 295 Ala. 401, 328 So.2d 321 (1976); C. Gamble, supra, at § 69.01(9).

II

Appellant next argues that he should have been granted a new trial because the assistant district attorney who prosecuted him had formerly been associated with a law firm whose other members represented him and to whose two partners he divulged confidential information.

The facts adduced at the hearing on the motion for new trial established, and the trial court’s order found, that at the time appellant was arrested for the instant offense on September 20, 1980, Mr. Tommy Smith, the assistant district attorney who tried the case against appellant, was associated with the Tuscaloosa law firm of Crownover and Mountain. Appellant spoke with Mr. Crownover and Mr. Mountain at the Tuscaloosa County Jail on September 20, 1980, and employed them to secure his release on bond.

Thereafter, on September 22,1980, appellant went to the offices of Crownover and Mountain and conferred at length with Mr. Crownover. Appellant testified that he divulged to Mr. Crownover all the pertinent facts concerning his involvement in the offense for which he had been arrested, and he stated that Mr. Crownover took notes. Crownover then quoted appellant a fee for representing him further, but appellant left without retaining Mr. Crownover. Appellant later employed other counsel, who represented him at trial.

Appellant testified that Mr. Tommy Smith was not present during either conference, and he did not know, prior to trial, that Smith had been associated with the firm.

Mr. Tommy Smith testified that in March of 1981, he left the firm of Crownover and Mountain and assumed the position of assistant district attorney for Tuscaloosa County. On August 31,1981, the afternoon before appellant’s trial, Smith was assigned to prosecute the case. All pre-trial dealings in appellant’s case had been handled by another assistant district attorney, Mr. Summerford.

Smith stated that he had neither talked with appellant about the case nor discussed the matter with Mr. Crownover or Mr. Mountain. In fact, he had no idea, prior to the motion for new trial being filed, that appellant had previously conferred with either of his former law partners.

It is undisputed, therefore, that Smith had no actual knowledge of the facts of appellant’s case derived from his former association with the law firm of Crownover and Mountain. Thus, this case can be distinguished from Satterwhite v. State, 359 So.2d 816 (Ala.Cr.App.), remanded, 359 So.2d 819 (Ala.), on remand, 359 So.2d 821 (Ala.Cr.App.1977), cert. quashed, 359 So.2d 821 (Ala.1978), and Hannon v. State, 48 Ala.App. 613, 266 So.2d 825 (1972), both of which dealt with a prosecutor who had, in his former capacity as a defense lawyer, actually received confidential communications from an individual who was later prosecuted by the State.

In Satterwhite, the accused consulted a lawyer in private practice to defend him on pending drug charges. The lawyer discussed the case with him and quoted him a fee, but was not retained by the defendant. Subsequently, the lawyer became an assistant district attorney and prosecuted the defendant for the same drug offense. This court reversed the conviction, holding that the prosecutor should have been disqualified from trying the case against his former client.

In Hannon, the defendant conferred with a public defender who was later elected District Attorney. The District Attorney, however, did not take part in prosecuting his former client and did not give his assistants any information derived from conversations with the defendant. We affirmed this conviction, finding no breach of the attorney-client relationship.

Since Smith received no confidential information from the appellant in the instant case, it is clear that there was no actual breach of the attorney-client relationship. Appellant contends, however, that the knowledge of the case gained by Smith’s former law partners should have been imputed to the prosecutor, and should have vicariously disqualified Smith from prosecuting the appellant.

The basis for vicarious disqualification is found in Canon 5 of the Code of Professional Responsibility of the Alabama State Bar, specifically in DR 5-105(D):

“If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.”

Further, the following statement appears in the “Definitions” section of the Alabama Code of Professional Responsibility:

“(7) Unless the context otherwise requires, whenever in these rules the conduct of a lawyer is prohibited, all lawyers associated with him are also prohibited.”

Thus, it can be seen that the basis for imputing the knowledge of one law partner to his associate is found in Definition (7) and in DR 5-105(D), which requires vicarious disqualification with respect to any disciplinary rule, including Canon 4 (“A lawyer should preserve the confidences and secrets of a client”), see Annotated Code of Professional Responsibility 246 (American Bar Foundation 1979) [hereinafter cited as “Annotated Code”]. See also Sellers v. State, 56 Ala.App. 367, 321 So.2d 706 (1975). Whether DR 5-105(D) or Definition (7) applies to a former associate of a firm who has no actual knowledge of the case is not clear. See Annotated Code at 246-51, 407-11. See generally Annot., 31 A.L.R.3d 953 (1970).

On the one hand, the plain meaning of the terms “associate” in DR 5-105(D) and “associated with” in Definition (7) describes “those who are [currently] lawyer employees of the firm.” ABA Committee on Ethics and Professional Responsibility, Formal Op. 330 (1972). Thus, at least two courts, in dictum, have concluded that there is no per se conflict of interest for a prosecuting attorney previously employed by a firm representing the defendant; as long as the prosecutor was not personally privy to any confidential information arising from his former employment, disqualification is not mandated. See United States v. Hubbard, 493 F.Supp. 206 (D.D.C.1979); McCormick v. Meyer, 108 Misc.2d 44, 437 N.Y.S.2d 42 (Supreme Court, Orange Co. 1981).

On the other hand, some jurisdictions have applied DR 5-105(D) in conjunction with Canon 9 (“A lawyer should avoid even the appearance of professional impropriety”) to bar the participation of former defense lawyers-turned-prosecutors in cases involving clients of their previous firms, irrespective of the lack of personal knowledge on the part of the prosecutors. See Younger v. Superior Court, 144 Cal.Rptr. 34, 77 Cal.App.3d 892 (1978). See also, Chadwick v. Superior Court, 164 Cal.Rptr. 864, 106 Cal.App.3d 108 (Ct.App.1980); State v. Boyd, 560 S.W.2d 296 (Mo.Ct.App.1978); State v. Cooper, 63 Ohio Misc. 1, 409 N.E.2d 1070 (Ct.Comm.Pleas 1980).

In Younger v. Superior Court, the third-ranking attorney in the Los Angeles County District Attorney’s office, one Cochran, had formerly been a member of a prominent criminal defense firm. Characterizing the situation as a “Caesar’s wife problem,” 77 Cal.App.3d at 897, the California Court of Appeals determined that there may have been:

“such an appearance of possible impropriety either to the public or to criminal defendants generally, that it was reasonable for the trial court to recuse the district attorney and his entire office from prosecuting any of the felony cases where either Cochran or his former law firm at one time represented the defendants therein.”

Id. 77 Cal.App.3d at 896, 144 Cal.Rptr. 34. The court emphasized Cochran’s executive position in the district attorney’s office, noting that he was the “number three man” on a staff of 550, and observing that he had substantial responsibility for prosecutorial policy and staff promotions. These factors, according to the court, necessitated a more exacting review of what might trigger the appearance of impropriety in the public mind.

Chadwick, Boyd and Cooper all dealt with former public defenders who became district attorneys. The courts in all three cases determined, in contrast to our decision in Hannon, that the prosecutors were disqualified, notwithstanding their voluntary isolation from cases with which they were familiar, or their lack of knowledge of other cases, from prosecuting any individuals who had previously been represented by the public defender’s office. Thus, the courts in Chadwick, Boyd, and Cooper, while convinced that no actual wrongdoing had occurred, held that disqualification was required on the basis of appearances alone. They, in effect, read into DR 5-105(D) the maxim of Canon 9.

This approach, of grafting Canon 9 principles onto DR 5-105(D), has been criticized as unduly restrictive and out-of-touch with the realities of large modern law firms whose members are, more often than not, unaware of the confidential information imparted to other members of the firm. See Nóte, 44 Fordham L.Rev. 130 (1975). Following this reasoning, several courts have declined to apply DR 5-105(D) on the basis of appearances alone when the facts of the case indicated that the individual attorney did not have access to confidential information. See, e.g. Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir.1975).

In Silver Chrysler, the Court of Appeals for the Second Circuit held that the dissemination of confidential information among members of a large law firm was a rebut-table-rather than an irrebuttable-presumption. Accord, Gas-A-Tron of Arizona v. Union Oil Co., 534 F.2d 1322 (9th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976); Schmidt v. Pine Lawn Memorial Park, Inc., 86 S.D. 501, 198 N.W.2d 496 (1972).

In our judgment, the approach taken in Silver Chrysler and in Hannon, to make a factual determination whether there has been an actual breach of the attorney-client relationship, i.e., to apply Canon 4 (Confidences and Secrets) and Canon 5 (Conflicts of Interest) independently of Canon 9, is the more sound position. Compare Jacobs v. State, 343 So.2d 1243 (Ala.Cr.App.1977) and Payne v. State, 48 Ala.App. 401, 265 So.2d 185, cert. denied, 288 Ala. 748, 265 So.2d 192, cert. denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669 (1972) (Judges of the Court of Criminal Appeals, formerly Assistant Attorneys-General, were not barred from deciding criminal cases unless, by virtue of their former employment, they possessed actual disqualifying knowledge).

We do not wish to be understood as retreating from the high standards of ethical conduct embodied in Canon 9 of the Alabama Code of Professional Responsibility. While we reaffirm the principle that attorneys should avoid even the appearance of impropriety, we agree with the South Dakota Supreme Court, that:

“[w]hen dealing with ethical principles it is apparent that we cannot paint with broad strokes. The lines are fine and must be so marked. Guide-posts can be established when virgin ground is being explored, and the conclusion in a particular case can be reached only after painstaking analysis of the facts and precise application of precedent.”

Schmidt v. Pine Lawn Memorial Park, Inc., 198 N.W.2d at 502 (Quoting United States v. Standard Oil Co., 136 F.Supp. 345, 367 (S.D.N.Y.1955)).

“Improper surface appearances are capable of damaging the judicial function and image as well as carrying a potential for actual injury to a party. However, the discretion of the trial judge in such matters is very broad for appearances may be misleading and the overall proper administration of justice may well allow the trial judge to ignore appearance in favor of fact. What might appear as a conflict of interest on the surface can, in fact, be no conflict at all or so insignificant as to be overcome by other circumstances.”

Schmidt, supra, 198 N.W.2d at 502, quoting Waters v. Western Co. of North America, 436 F.2d 1072, 1073 (10th Cir.1971).

We also note that, in a recent opinion of the General Counsel of the Alabama State Bar, it was determined that “[wjhere spouses are members or associates in two different law firms representing adverse parties, there is nothing unethical, per se, in the representation.... ” 43 Ala.Law. 197-98 (1982). Although the opinion does not mention the vicarious disqualification rule of DR 5-105(D), it applies much the same analysis used in Silver Chrysler and Hanon, cautioning affected parties to be mindful of ethical considerations but concluding that the situation “involve[s] a fact determination and an exercise of judgment to be made in each individual case.” 43 Ala.Law. at 197.

In our judgment, the evidence adduced at the hearing on motion for new trial clearly rebutted any presumption that Smith had access to the confidential information imparted by the appellant to Crown-over and/or Mountain. We therefore conclude that appellant received the fair and impartial trial to which he was entitled.

This case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Fred Mack CHARLES v. STATE.
    6 Div. 847.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.

      James L. O’Kelley, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty on a trial on a complaint charging him with driving “a motor vehicle upon a public highway ... while under the influence of intoxicating liquors or narcotic drugs.” The case came to the Circuit Court by an appeal by defendant from a conviction in the Jefferson District Court (Bessemer Division). One trial in the Circuit Court resulted in a mistrial by reason of the inability of the jury to reach a verdict. In the trial now under consideration there were only two witnesses, the officer who arrested the defendant while driving the vehicle on the occasion involved and the defendant himself. The only issue of fact presented was whether defendant was under the influence of intoxicating liquor at the time. There was no semblance of any evidence that he was under the influence of drugs.

Among the issues presented on appeal, is appellant’s contention that “The trial court erred in denying the defendant’s motion to exclude the State’s evidence based on the insufficiency of the evidence.” The parties argue, in connection with said contention, questions as to the admissibility and reliability of scientific tests as to the intoxication of defendant that were made soon after his arrest. We will discuss those questions hereinafter. Meanwhile, we discuss the question of the sufficiency of the evidence, without regard to the results of the scientific tests, which appellant contends should not have been admitted in evidence and which, according to the contentions of both parties, were unfavorable to appellant on the issue as to his intoxication. According to the testimony of the arresting officer, he was on duty about 11:00 P.M., July 11,1980, and observed the pickup truck that defendant was driving as it entered the northbound lane of 1-59 headed toward Fairfield from Bessemer. It was “running between 70 and 75 miles per hour.” His testimony continued in part as follows:

“A. As I was coming up on him and started to clock him, the pickup truck and the driver occupying the pickup truck was weaving on the road, primarily staying in the inside lane. He crossed what is called a dividing line which divides the inside and outside lane and also running off into the median strip.
“Q. All right, sir. And after you observed this vehicle run off into the median, how much longer did you observe the truck?
“A. I observed the truck — well, we run off into the median about six-tenths of a mile from the 19th Street exit and he nearly hit the end of a bridge as approaching a bridge and running it back in and—
“A. As soon as he got into the — back into his lane, I turned the blue light on him and I followed him for some six-tenths of a mile which I measured this morning on my way to court. And during this six-tenths of a mile, he didn’t stop for a blue light, I turned the siren on about half that distance, about three-tenths of a mile followed with sirens and he finally pulled over in the median strip after he crossed the exit there at 17th Avenue at the Echo Truck Stop which that truck stop was not there at that time.
“Q. At the time — once the truck was stopped in front of you, what did you do after that?
“A. I got out of the car and like I said, we were both stopped in the median of the highway, and I approached the car and asked the driver to step out and let me see his driver’s license.”

The witness identified the driver as the defendant and continued his testimony as follows:

“Q. ... Once this individual found his driver’s license what did that individual do with his driver’s license?
“A. Well, first he dropped his driver’s license and went to pick his driver’s license up and he nearly fell over picking up his driver’s license.
“Q. What distance, Officer Eaton, were you from this man, this defendant when he dropped his driver’s license?
“A. I was standing in the shoulder.
“Q. Within how many feet in your best judgment?
“A. Less than two feet.
“Q. Did you have an occasion while you were some two feet from this defendant to smell any odor about him at that time that you could recognize?
“A. Yes, sir, I smelled odor of an alcoholic beverage.
“Q. After this individual, after this defendant picked up his driver’s license and after you made this observation about this odor of alcohol, did you have any conversation about this, did you say anything else to him?
“A. I don’t recall the exact words other than to put his hands on the pickup truck, he was placed under arrest, he was staggering around some and his speech was slurred. I just turned him around and told him he was under arrest for driving under the influence and I observed him."

After lengthy testimony as to the scientific testing of defendant for alcoholic content, the direct examination of the officer was thus continued:

“Q. Now, thinking back and based on this previous experience that you have just talked about, the several hundred people you have observed under the influence of alcohol, based on your previous experience and what you have observed from this defendant’s driving, his speech, his manner of walking, balance and so forth on the night of July 11, 1980, based solely on that as to your observation, his driving, his speech, his acts, and odor of alcohol on his breath—
“MR. O’KELLY: We object to the leading.
“MR. CARTEE: Do you have an opinion, Your Honor?
“THE COURT: State your question.
“Q. Do you have an opinion based on this previous experience as a law enforcement officer, based on that experience and your observation on July the 11th, 1980, this man, his actions, and speech and so forth and the odor about him, do you have an opinion whether or not he was under the influence of alcohol when you stopped his truck?
“A. In my opinion he was highly intoxicated.”

In our opinion, the testimony of the arresting officer as narrated is of itself sufficient to present a factual issue as to the intoxication of defendant and justifies the denial of defendant’s motion to exclude the evidence made at the conclusion of the State’s evidence. The testimony is even stronger on the point than that which was held sufficient in Prescott v. State, 44 Ala.App. 670, 219 So.2d 655, 656 (1969), in which it is stated:

“The only question was whether or not (1) the circumstance of Prescott’s weaving back and forth across the center line and berm as he drove on a road in Cren-shaw County toward Coffee County, (2) the circumstances of his falling out of his car when it stopped in Coffee County and (3) a highway patrolman smelling alcohol on his breath at that latter time constituted sufficient evidence to show that the offense occurred in Crenshaw County. “After a careful review of the State’s evidence, we consider that the jury’s verdict is based upon sufficient evidence. Moreover, no point on venue was raised under Circuit Court Rule 35.”

In United States v. Hughes, 542 F.2d 246 (5 Cir.1976), Hughes, a civilian had been stopped by the Military Police of Fort Rucker, Alabama, on suspicion of driving while intoxicated. He was convicted of the charge under the Assimilative Crimes Act. The major portion of the appeal dealt with the introduction in evidence of the results of an alcohol-breath test given the appellant at the Daleville, Alabama, Police Station. The court held at 542 F.2d 249:

“The record shows that Hughes was stopped by the Military Police after they noticed his car weave across the center line of the highway three times. Hughes stumbled when getting out of the car and the arresting officer detected the odor of alcohol on his breath. When asked to walk a straight line, Hughes stumbled and was unable to perform a balancing test in which he was asked to stand with his heals together, lean backwards, extend his arms outward and then touch his nose with his index finger. Following these occurrences, Hughes was taken to Daleville Police Station where the P.E.I. breath test was given.
“The defense attempted to refute the Government’s case with the testimony of two persons who had been with Hughes at the Colonial Lounge in Daleville, Alabama, shortly before he was stopped by the Military Police. One witness testified that Hughes did not stagger when he left the Lounge and the other testified that there was nothing about his appearance that would lead him to believe that Hughes was intoxicated. Both men testified that the appellant drank a beer, but it is unclear from the record whether the two men were talking about the same beer. The defense also points out that Officer Ramsey, who administered the P.E.I. test, said that Hughes did not stagger when he walked. On the basis of these facts, it is the opinion of this court that even in the absence of the P.E.I. results, the evidence of Hughes’ intoxication was sufficient to prove his guilt beyond a reasonable doubt. The admission of the breath test evidence, therefore, must be considered harmless error, even if it was error.”

A careful study of the opinion in United States v. Hughes, supra, discloses that the last sentence of the part of it quoted above, wherein it was held that the judgment of the trial court should not be reversed even if it had committed error in admitting in evidence the results of the scientific tests as to the alcoholic content of defendant’s body is not applicable in the instant case. This, we conclude, for the sole reason that in the cited case there had been a non-jury trial, as distinguished from a trial by jury in the instant case, and the trial judge found “that the guilt of defendant was established beyond any reasonable doubt, without regard to the P.E.I. test.” 542 F.2d p. 248. We turn now to consideration of appellant’s contentions relative to the admission in evidence of the testimony for the State as to such test, which contentions appellant enumerates in his brief as Issues I, II, III and IV.

By Issue I, appellant asserts that it was error for the court “to allow the State’s witness to refresh his recollection by referring to a document which was not a duplicate or an exact copy of the original.” The document referred to is State’s Exhibit 1, a one-page photocopy of a typed or printed document with the following caption:

“GAS CHROMATOGRAPH INTOXIME-TER-MARK IV OPERATIONAL PROCEDURE
(Method of Operation)”
State’s Exhibit 1 is obviously a form to be used by the operator of a Gas Chromato-graph Intoximeter-Mark IY, in which there are blanks for the operator to supply the name of the “subject” tested by the intox-imeter, the “Date,” the name of the “Testing Officer” and the “Permit No.” Thereafter, there are nine numbered steps in the procedure and a small square at the front end of steps 1, 2, 3, 4, 6, 8, and 9, which is obviously for the purpose of the operator indicating by the mark of his pen or pencil therein that he has complied with the particular step of the instructions. Step 5 is followed by a blank line for the operator to show therein the “Time” of the particular operation and step 7 is followed by a blank line for the operator to show “results” immediately before the symbol The instruction of step 9 is “Remove RECORDER STRIP CHART, identify and record result on log.” Immediately thereafter, and finally, is lined, approximately 3" by 6", space with the instruction therein, “ATTACH STRIP CHART.”

State’s Exhibit 1 was not admitted in evidence. The court expressly sustained defendant’s objection to it. Notwithstanding the large number of questions asked the arresting officer on direct examination and on cross-examination, there were few definite rulings invoked by defendant as to questions pertaining to references made by the witness to State’s Exhibit 1, which questions were answered. As a result, a serious question arises as to whether the testimony of the witness as to which no objection was made renders harmless the asserted error, if any, in overruling defendant’s objections to questions that sought by State’s Exhibit 1 to refresh the recollection of the witness. Nevertheless, we forego determination of that question, for the reason, in our opinion, the witness showed by his testimony that he had personal knowledge of the contents of the printed or typed portion of State’s Exhibit 1. He was only uncertain as to whether the particular document used and filled in by him, which at the time of the trial could have been found by looking through “thirty (30) boxes of material,” contained thirteen steps or, on the other hand, nine steps. He did testify that, some time soon before or soon after the test as to this appellant was made by him, the form for the procedures had been changed from a thirteen-step to a nine-step procedure and that this change had been effectuated simply by deleting four of the steps of the thirteen-step form. Contrary to the insistence of appellant on the point, we think that whatever rulings were made on the point adverse to defendant are consistent with Gamble, McElroy’s Alabama Evidence, § 116.02(1) (1977), cited by appellant as follows:

“In order to utilize a memorandum for the purpose of present recollection revived, or refreshing memory, it must appear that the witness has personal knowledge of the event recorded in the writing and that the writing is a correct record of such event.”

Issues II and III as stated in appellant’s brief are:

“II. IT WAS ERROR FOR THE TRIAL JUDGE TO ALLOW ORAL TESTIMONY AS TO THE READING TAKEN FROM THE MACHINE AFTER THE DEFENDANT WAS TESTED WHEN THE BEST EVIDENCE RULE REQUIRES THAT THE PRINTED GRAPH SUBMITTED BY THE MACHINE IS THE BEST EVIDENCE OF SUCH READING.
“III. THE TRIAL COURT ERRED IN ALLOWING THE WITNESS TO REFRESH HIS RECOLLECTION AND GIVE ORAL TESTIMONY AS TO THE READING FROM THE MACHINE BY REFERRING TO A DOCUMENT FOR WHICH NO PROPER PREDICATE HAD BEEN LAID PRIOR TO THE ADMISSION OF SUCH ORAL TESTIMONY.”

Although Issues II and III are treated separately in appellant’s brief, it is to be noted that each issue pertains to the admission in evidence of “oral testimony as to the reading from the machine” or “taken from the machine.” We now endeavor to discuss them collectively in part, to avoid repetition, and in part separately, when the need therefor arises.

The “reading from the machine” evidently refers to the “digital readout” referred to in the evidence, which was observable by the operator of the machine and was graphed by the machine as a record of the percent of alcohol in the breath tested. It was shown that the actual graph had been preserved for a while, was used in court on the trial of this case in the Jefferson County District Court and on the first trial in the Circuit Court in which there was a mistrial, but it was not available on the last trial. Such is the “printed graph submitted by the machine” stated in appellant’s Issue II. It may well be that if such missing graph had remained clearly legible until the time of the last trial, it would have afforded the most dependable evidence as to the percent of alcohol found in the breath tested, but it is clear from the testimony that it was not the only documentary evidence thereof relied upon by the witness in testifying in effect that the result was “.25 percent.” There was another document, State’s Exhibit 2, which was a duplicate carbon copy of a printed form of a “REPORT OF ALCOHOL CONTENT OF BLOOD” and “CHEMICAL TEST DATA,” in which most of the blanks thereof had been filled in by the witness testifying for the State, the officer who arrested defendant and who was the operator of the machine in testing his breath, particularly the blank after the legend “Results of analysis,” which was filled in by said witness as “.25.” The court sustained defendant’s objection to State’s Exhibit 2. This exhibit is the “document” referred to by appellant in Issue III, which is made clear by the first two sentences of the argument in his brief as to Issue III:

“Over these objections, the witness was immediately asked what reading was obtained when he tested the Defendant, to which the witness answered ‘.25 grams percent alcohol.’ At this time, Officer Eaton was referring to State’s Exhibit # 2, which had been marked for identification.”

In our opinion, the trial court was in error in sustaining defendant’s objection to State’s Exhibit 2. Although State’s Exhibit 1 and State’s Exhibit 2 were' apparently considered by all concerned chiefly as documents to refresh the then present recollection of the witness, State’s Exhibit 2 is a memorandum of a “Past Recollection Recorded,” as to which Judge McElroy states in McElroy’s Alabama Evidence, § 116.01 (1977):

“The second use of a memorandum occurs when the witness, after examining the memorandum, cannot testify to an existing knowledge of the fact, independent of the memorandum. This use of the memorandum is often referred to as Past Recollection Recorded; and if the witness testifies that, at or about the time the memorandum was made, he knew its contents and knew them to be true, then both his testimony and the memorandum become admissible. The memorandum and the witness’ testimony are the equivalent of a present positive statement of the witness affirming the truth of the contents of the memorandum.”

To any contention that State’s Exhibit 2 was a carbon copy of the memorandum made by the witness, the answer is that it is a duplicate carbon copy and is admissible in evidence as to the truth of the contents of the original. Davis v. State, Ala.Cr.App., 387 So.2d 882 (1980).

On the voir dire examination of the State’s witness by counsel for defendant, the witness testified:

“Q. As far as your testimony as to the digital readout, then, on the night of July 11th, 1980, you don’t have any independent memory other than these documents to refresh your recollection to that, is that correct?
“A. The only recollection I have is from the previous trial and documents — and the cards.
“Q. So any testimony that you would give from your oral testimony comes from reliance upon State’s Exhibit 2 or other documents that you have reviewed since that time, is that correct?
“A. Those are the documents that I filled out on giving the test.”

The testimony of the witness as to the percent of alcohol in the tested breath when given to large extent on the basis of the use by the witness of State’s Exhibit 2, a record made by the witness of “his past but since faded-away recollection” was properly admitted in evidence. Acklen’s Executor v. Hickman, 63 Ala. 494 (1879).

Before concluding our discussion of appellant’s Issues II and III as they relate to State’s Exhibit 2, it should be stated perhaps that neither the word “percent” nor the symbol “%” is contained in said exhibit. As previously stated, State’s Exhibit 2 recites “.25” as the “Results of analysis.” With due allowance for any difference between the actual or intended articulated language of the witness and the transcribed product, we quote the following extract from the transcribed testimony of the witness:

“Q. But the final reading that you get is a percentage of alcohol in the blood?
“A. It is what you get is a .25 grams percent per lOOcc’s of blood which means you have .25 100’s of one cc is how much alcohol is in lOOcc’s of blood.
“Q. So does that mean that if I have— let’s say I have — if I were stopped and were to have a .05 reading, would that mean that five percent of my blood is alcohol?
“A. No.
“Q. What would—
“A. .5, .05 lOO.s of that amount of blood is measured as alcohol.
“Q. What we eventually get to then is what we are dealing with is how much alcohol has been absorbed in the blood system by the subject, is that correct?
“A. That’s correct.”

By Issue IV, appellant questions the qualification of the State’s witness to testify “as an expert” as to the “results” of the “intoximeter test.” The witness, a state trooper who had been with the Department of Public Safety since May 1, 1963, had received five days of training, eight hours a day, as to photoelectric intox-imeters, three additional eight-hour days on the “gas chromatograph” and had been certified by the “State Health Department” as to the type of intoximeter that was used by him in performing the test upon the defendant in this case. He had run a total “in excess of 50” gas chromatograph intoxime-ter tests as a state trooper (less 3 or 5) prior to his testing the appellant. The only cases cited by appellant on the point, cases from other jurisdictions more than a quarter of a century old, when intoximeter testing was in its infancy, do not persuade us. The witness had had training and experience similar to that of the state trooper who was held to be qualified to testify as an expert as to the taking of an intoximeter test, and as to the results of the test, in Patterson v. State, Ala.Cr.App., 344 So.2d 543, writ denied, 344 So.2d 547 (1977). The criterion for the admission of expert testimony in criminal prosecutions is that a witness, by study, practice, experience or observation as to a particular subject, has acquired a knowledge beyond that of an ordinary citizen, and whether a witness is qualified to testify as an expert is largely within the sound discretion of the trial court. Meade v. State, Ala.Cr.App., 390 So.2d 685, writ denied, 390 So.2d 693 (1980). We think the witness was qualified to testify as an expert on the subject and that the trial court was correct in ruling accordingly.

By Issue V, appellant asserts that error is to be found in a statement in the presence of the jury by the prosecuting attorney, “during one of his own objections, that there was no jail punishment contemplated under the offense for which the appellant was charged.” Whether jail punishment was contemplated or not, we do not know, but it was not given. The punishment fixed was a “fine of $500.00 and costs of court.” The statement to which reference is made occurred prior to the introduction of any evidence and while counsel for defendant was making his opening statement of the case to the jury. The statements of both attorneys for the parties and all that is in the transcript on the subject are as follows:

“MR. O’KELLEY [Defendant’s attorney]: If you listen to the prosecutor, no question, he is guilty, the prosecutor paints a pretty picture and if that is all there is to it, all to this case is what the prosecutor tells you, then find him guilty, send him on down to Sing-Sing or wherever—
“MR. CARTEE [Prosecuting attorney]: Your Honor, we object, Mr. O’Kelley knows the punishment and knows there is no Sing-Sing or penitentiary punishment.
“THE COURT: Let’s proceed, gentlemen. Call your first witness, Mr. Car-tee.”

The entire performance as quoted above, other than what the trial court said, was out of place. It was mere argument, which should have been withheld until time for argument, and even then would have not met the test of proper argument. It was commenced by defendant’s attorney by an insinuation that the crime charged was a felony, which it was not. The objection of the prosecuting attorney was made to an incomplete sentence by defendant’s attorney. If the objection had been withheld until defendant’s attorney had completed the sentence, the objection would have almost assuredly been sustained by the court for the reason that defendant could not have been punished, as insinuated by defendant’s attorney, upon a conviction of the charge. The direction given by the court as to the occurrence was as favorable to defendant as any definite, correct ruling could have been as to the matter involved. Appellant concludes his argument as to Issue V by stating:

“Such statement by the prosecuting attorney exceeded all bounds of propriety and causes appellant to be subject to the jury hearing testimony with the impression that the maximum punishment he could receive in the event of his guilt would be a fine. Such is obviously prejudicial and was not corrected at any time by the court.”

We are far from certain that the jury was subjected to the “impression that the maximum punishment he could receive in the event of his guilt would be a fine.” Even so, no ruling was invoked by defendant on the subject; there was no motion for a mistrial, no motion for clarifying instructions to the jury by the court. The trial court is not properly chargeable with prejudicial error in regard to the incident.

There was no error prejudicial to defendant. 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.

AFFIRMED.

All the Judges concur.