author: BOWEN, Judge.

text:
    Charles Edward EAKES v. STATE.
    6 Div. 488.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.

      R. B. Jones and Roger M. Monroe of Jones & Monroe, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted for the offense of buying, receiving, or concealing stolen property, a Lincoln Mark IV automobile, under Section 13-3-55, Code of Alabama 1975. A jury found him guilty and fixed the value of the automobile at $6,500.00. The trial judge set sentence at eight years’ imprisonment.

The only question presented on appeal concerns the admissibility of a confession made by the appellant after his indictment and in the absence of counsel.

On September the 14th and 15th, 1976, the appellant gave Officer Robert L. Wil-emon, Alabama Department of Public Safety, Auto Theft Unit, a statement concerning his connection with the Lincoln automobile. On appeal no question is raised challenging the voluntariness of this statement and this court has no difficulty in determining that it was properly admitted into evidence.

The appellant was indicted by the grand jury of Jefferson County on November 5, 1976, and served with a copy of that indictment on December 22nd of that same year. Some time after this the appellant was incarcerated in the Marshall County Jail on three other charges of buying, receiving, or concealing. On January 27, 1977, Officer Wilemon took a statement from the appellant in the county jail. It is this statement with which we are concerned.

During the interview the appellant’s attorney, the Honorable R. B. Jones of Birmingham, Alabama, was not present although he knew that Wilemon was going to question his client. From the record:

“Q. Did you (Wilemon) tell Mr. Jones that you were going to talk to the defendant?
“A. That was the reason that he was up there. He came up there to talk to the D.A. and also to Mr. Eakes.”

Officer Wilemon testified that the appellant was advised of his Miranda rights and did sign a waiver of rights form before any questioning began; that neither he, anyone in his presence, nor anyone he knew about, offered the appellant any promise or hope of reward, renumeration, or inducement of any kind in order to get him to make a statement but that “we always tell them it would be better for them to make a statement but there were no threats made to him whatsoever”. The appellant was told that he would not be prosecuted for any other cases which were not then pending against him.

“A. (Wilemon): The only thing that we told him on January 27th was any additional cars that he furnished us, he would not be charged with but that was excluding any charges that was against him, that he would have to face those charges.”
* * * * * *
“Q. Those charged. Do you mean and say that? Did you tell him this case he was charged with here in Birmingham? “A. Yes, sir, that is what I was concerned with, the one I had Mr. Eakes charged with.”

When the appellant talked with Officer Wilemon he had already talked with his attorney.

On cross examination of Officer Wile-mon, defense attorney Jones established that Sergeant Barnett, Department of Public Safety, Auto Theft Unit, Wilemon, and Jones had a conversation before the appellant made his statement.

“Q. And I believe you understood that Mr. Eakes was going to cooperate with you all in finding or locating, say, some sixteen or seventeen more ears?
“A. That was our understanding, yes sir.”
* * * * * *
“Q. But before the interview I had talked to you and Sgt. Barnett and told you that the defendant was going to cooperate with you all?
“A. Yes, sir.
“Q. And I had also told you that I had discussed this case with the D.A.?
“A. Yes, sir.”

After the interview with the officers, the appellant was released from jail.

Deputy District Attorney Pete Johnson made a “statement for the record” and was examined by defense counsel. Johnson stated that John Starnes, the District Attorney of Marshall County, told him over the telephone that:

“He informed me that no promise was made whatsoever, any affecting a case. The only promise made to this defendant by him was that he would reduce-reco.m-mend that the amount of bond be reduced, which was done, and that was the only thing ever in the form of a promise made by Mr. Starnes.
“And that the defendant indicated to him that he wanted to make a statement. He then called Mr. Jones. Mr. Jones then came to Guntersville sometime later that day or the next day and that after Mr. Jones talked to the defendant, that he understood that the defendant later made a statement but that the defendant was not questioned until after Mr. Jones was brought up there, or came up.”
* * * * * *
“He told me that this defendant was made aware that the pending cases that had already been made on him, that they were still in effect and that nothing would be done in regard to them.”

Johnson’s testimony of what the district attorney had told him was admitted without objection by defense counsel.

On cross examination by Mr. Jones, Deputy District Attorney Johnson testified that Mr. Starnes informed him that bond was reduced and that the appellant got out on bond but that no other promise or consideration was extended to the appellant.

“Q. (D)id you gather this from this telephone conversation that if the defendant would cooperate, that there would be some consideration given to the defendant? Didn’t you get that impression from him?
“A. No, sir. He told me the only thing that he did and told the defendant that he would do, he would recommend that the bond be reduced. Of course, the judge would have to reduce it, but he would recommend that the bond be reduced. He told me that was the only promise that he made.
“THE COURT: And that was done, right? Bond was reduced?
“A. I assume it was.”

The appellant testified during the hearing on the motion to suppress that he was facing three charges of buying, receiving, and concealing stolen property with each case carrying a ten thousand dollar bond; that he called his attorney who came to the county jail in Guntersville and talked with him; that he expressed a desire to cooperate with Officers Barnett and Wilemon; that he discussed it with his attorney and that he talked to the district attorney who:

“lowered my bond from ten thousand to two thousand. And he — Mr. Starnes talked like he wanted me to cooperate with them and it would be easier on me.”

Under examination by his attorney the following testimony was adduced from the appellant.

“Q. And you got out of jail as soon as you made this statement to them?
“A. Yes, sir.
“Q. To Wilemon and Barnett? Then there was some consideration then or that things would go easier on you if you made this statement?
“A. Yes, sir.”
}(: }g % s}: jfc
“Q. They told you they couldn’t specifically promise you anything on this case pending here?
“A. That’s right.”
‡ ‡ $
“Q. Did you make a statement there to Sgt. Wilemon and Sgt. Barnett after your bond was lowered and after you talked to the district attorney?
“A. Right.
“Q. Did they promise you there would be no more on eases made against you if you cooperated with them?
“A. Yes, sir.”

Relying principally on Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the appellant maintains that “there was trickery in slipping in a question about the car involved in Mr. Eakes’ indictment along with questions about sixteen other cars that Mr. Eakes had agreed to talk freely about”. This argument is predicated on the contention that the appellant, with the advice of counsel, agreed to discuss only the additional automobiles on which no charges had been or were to be made.

From the evidence it appears that when the appellant confessed he was facing three charges of buying, receiving, or concealing stolen property in Marshall County and one indictment for a similar offense in Jefferson County. The record affirmatively indicates that the subject of the Jefferson County indictment, the Lincoln automobile, was not the basis for any of the three charges in Marshall County.

(From the cross examination of Officer Wilemon by Mr. Jones)
“Q. And at the time that he made this statement, he was charged, I believe, in Marshall County. I don’t know whether you know or not, were three or four other vehicles involved?
“A. Three or four cases. I’m not certain.
“Q. Three other vehicles, different vehicles?
“A. Yes, sir.”

I

A confession is presumed to be involuntary. Before its admission into evidence there must be evidence addressed to the trial judge sufficient to rebut that presumption and a showing that the confession was made without influence of either hope or of fear, unless the attending circumstances affirmatively disclose the voluntariness of the confession. Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973); Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968). In order to be admissible a confession must be free and voluntary and cannot be the result of any direct or implied promises, however slight. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963); Bell v. Alabama, 5 Cir., 367 F.2d 243, cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1966); Wallace, supra. The question of whether a confession was obtained by coercion or improper inducement can be determined only by examination of all the attendant circumstances. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Wallace, supra. Each case must stand or fall on its own merits for the constitutional inquiry into the issue of vol-untariness requires more than a mere “col- or-matching of cases”. Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967). The true test of determining whether extrajudicial confessions are voluntary is whether the defendant’s will was overborne at the time he confessed and therefore not the product of a rational intellect and a free will. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Elliott v. State, 338 So.2d 483 (Ala.Cr.App.1976).

A confession may be inadmissible if induced by a promise to let the accused out on bail, to assist in providing bail, or by a promise to reduce bail. Machen v. State, 16 Ala.App. 170, 76 So. 407 (1917).

Here there was no promise made or implied that the bail on the Jefferson County indictment, which was set at one thousand dollars, would be reduced if the appellant confessed. The promise of bail reduction had reference only to the three charges pending in Marshall County. The agreement not to prosecute the appellant for any additional cases specifically excluded the four cases then pending against him (the three cases in Marshall County and the one indictment in Jefferson).

On appeal, but not at trial, it is argued that the appellant agreed only to discuss the automobiles which were not the subject or basis for a pending charge. This contention is simply not supported by the record before this court. Nowhere in the testimony presented at the suppression hearing or at the trial on the merits have we found any evidence or testimony that the appellant agreed to talk only about those cases for which he had not been charged or indicted.

At trial the confession was objected to because

“I (Jones) feel if Your Honor please, that there was some holdout of hope even though it is in the record that he (the appellant) was advised of his warnings and I think the January 27th statement should be excluded.”
* * * * * *
“Let me point out to the Court this: that he was and did receive consideration in Marshall County because his bond was reduced and he was released from jail and he did give the statement and I think he was promised some reward and I think that the January 27th statement should be excluded, if Your Honor please.”

This case does not come within the guidelines of Massiah, supra or Williams, supra. There was no undercover agent or informer employed to obtain inculpatory statements. There is no evidence that the appellant ever expressed a desire not to talk or to discontinue questioning or that the police violated an agreement not to question him on a specific subject or charge. There is simply no evidence of trickery, deception, artifice, subterfuge, or underhanded or unfair law enforcement practices present in this case.

A promise or inducement for a confession cannot be implied from an exhortation to a prisoner that it is best or better to tell the truth. The rule is otherwise, where the party has been told by a person in authority that it is better for him to confess, or that he will be bettered by saying a particular thing. Edwardson v. State, 255 Ala. 246, 251, 51 So.2d 233 (1951). Here the appellant was only told that it would “be better to make a statement”. This was not tantamount to an urging to confess or to admit guilt. We consider this more consistent with a mere adjuration to tell the truth.

In the recent decision of Holt v. State, Ala., 372 So.2d 370 (1978), the Alabama Supreme Court effectively overruled Hunt v. State, 135 Ala. 1, 33 So. 329 (1902), and specifically rejected the collateral benefit rule which states that if a confession (or inculpatory admission) is induced by a promise of collateral benefit, with no assurance of benefit to the defendant in respect to the crime under inquiry, such a promise will not suffice to show that the confession was involuntary. Applying the law existing at the time of trial, the judge could properly have found that the confession was induced by the promise of a collateral benefit (the reduction of bond in the Marshall County cases) and was therefore admissible. This is now impermissible under the dictates of Holt, supra.

Therefore this case is remanded to the Circuit Court of Jefferson County for a hearing to determine the admissibility of the confession in light of the Holt decision. In this hearing the attention of the trial judge should be focused on the question of “whether the behavior of the state’s law enforcement officials was such as to overbear • petitioner’s will to resist and bring about confessions not freely self-determined”. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Lynum v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963).

“(A) confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence . . A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.” 3 Russell on Crimes (6th ed.) 478 quoted in Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 42 L.Ed. 568 (1897).

However a confession is not rendered involuntary by a promise of benefit that was solicited freely and voluntarily by the accused. Taylor v. Commonwealth, 461 S.W.2d 920, (Ky.1970), cert. denied, 404 U.S. 837, 92 S.Ct. 126, 30 L.Ed.2d 70 (1971).

II

In conjunction with the confession, the appellant urges that, once a lawyer has entered in a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of his lawyer and therefore any statement obtained after a purported waiver without the presence or assistance of counsel is inadmissible. This proposition was specifically rejected by this court in Thompson v. State, 347 So.2d 1371 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977), and cases cited at 1375, 1376. See also Annotation, 90 A.L.R.2d 732 (1963). The fact that a defendant has an attorney does not mean, as a per se rule, that law enforcement officials may not question the defendant without prior notice to or consent from the attorney. Thompson, supra.

This cause is remanded for further proceedings as directed by this opinion and in accordance with the dictates of Holt.

REMANDED.

All Judges concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Jimmy Claude GOODMAN, Jr. v. STATE.
    3 Div. 18.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
    Rehearing Denied May 22, 1979.
    See also, Ala.Cr.App., 356 So.2d 691, Ala., 356 So.2d 698.
    David B. Byrne, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Petitioner appeals the denial of his petition for writ of error coram nobis.

In the record before us is the sworn petition for writ of error coram nobis in which petitioner alleges, among other things, that his counsel failed to call to the stand two witnesses who were material to his defense; that because of the failure to call these witnesses, O’Neal Goodman and Raymond Lowe, petitioner claims he was denied his right to effective assistance of counsel. These witnesses were in the courthouse at the time appellant was tried and convicted and were, therefore, available as witnesses. Petitioner further alleges that the failure to call these two witnesses denied him the right to present a defense.

The trial court denied the petition without a hearing. Since the petition was facially sufficient, petitioner should have been afforded a hearing on the merits upon issue being properly joined. Populus v. State, 51 Ala.App. 166, 283 So.2d 617.

The cause is hereby remanded with directions to the trial court to conduct an evidentiary hearing on all the issues raised in the petition.

The trial court is further directed that a full record be made of this hearing, which should be conducted expeditiously, and a transcript of these proceedings be promptly forwarded to this Court.

Remanded for further proceedings in accordance with this opinion.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte State of Alabama, Ex Rel. Attorney General. (Re: Jimmy Claude GOODMAN, Jr. v. STATE of Alabama).
    78-602.
    Supreme Court of Alabama.
    July 27, 1979.
   SHORES, Justice.

WRIT DENIED.

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


text:
    Jimmy Claude GOODMAN, Jr. v. STATE.
    3 Div. 18.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 17, 1980.
    See also, Ala.Cr.App., 356 So.2d 691, Ala., 356 So.2d 698.
    David B. Byrne, Jr., of Robison, Belser, Brewer & Mancuso, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Elizabeth N. Petree, Asst. Atty. Gen., (original brief), Thomas R. Allison, Asst. Atty. Gen., (on rehearing), for appellee.
   AFTER REMANDMENT

HARRIS, Presiding Judge.

Appellant was convicted for unlawfully possessing narcotic drugs. He was sentenced to eight years imprisonment in the penitentiary. He was represented by retained counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and trial counsel represented him on appeal.

On January 24, 1978, this court affirmed the conviction, Goodman v. State, Ala.Cr.App., 356 So.2d 691, and on March 31, 1978, the Supreme Court denied certiorari, Ala., 356 So.2d 698.

On September 25, 1978, Goodman filed a petition for writ of error coram nobis alleging that he was denied effective assistance of counsel because of the failure to call to the witness stand two persons he had subpoenaed for trial who allegedly would testify that petitioner did not know the drugs were in the automobile he was driving when arrested. The petition was denied without a hearing and this court remanded for an evidentiary hearing on all the issues raised in the petition. Such a hearing was held and a supplemental transcript was filed in this court.

At the evidentiary hearing the attorney who represented Goodman on this trial in chief was called as a witness for the State. This attorney had considerable experience in the trial of criminal cases both as a prosecutor for six years and as defense counsel for more than seventeen years. He testified that Goodman had a prior felony conviction and that when he was arrested narcotics were found in the car he was driving. Also when the officers searched his person they found a piece of glass in his pocket that very closely matched some vials of drugs that had been taken in the drug store robbery. The attorney stated Goodman had told a detective that he knew a robbery was going to be perpetrated and he was outside in the car during the actual robbery. In the light of these facts the attorney told Goodman he thought it best for him not to testify in the case and Goodman accepted his advice. Actually Goodman made the decision himself not to take the stand in his own behalf.

This attorney further testified that he interviewed the two witnesses subpoenaed for the trial and they told conflicting stories about the drugs found in Goodman’s car. Both had been convicted for robbing this identical 'drug store while Goodman remained in the car. The two men had escaped from the penitentiary. The attorney thought these two witnesses would hurt more than they would help the case and Goodman agreed with this decision.

The testimony of Goodman’s brother was to the effect that he and another man robbed the drug store and the other man put the narcotics in Goodman’s car without his knowledge. He stated his brother was drunk at the time and did not know about the robbery. He admitted that he entered the drug store with a shotgun and robbed the man on duty of Class A drugs. He further admitted that Goodman knew they had a quantity of drugs that were taken in the robbery. He stated the other man, Raymond Lowe, put some of the narcotics in the car that Goodman was driving the night of the robbery and at the time he was arrested.

Goodman’s wife testified that she was present at her husband’s trial and to the best of her recollection her husband wanted his brother and Raymond Lowe to testify.

Mr. Goodman testified in his behalf and admitted that he saw his brother and Lowe come from the drug store carrying boxes and a shotgun but he did not know they had robbed the drug store. However, he admitted that he told the polygraph examiner that the drugs found in his car came from the robbery. He was asked to explain what he was doing with the piece of glass found in his pocket at the time he was arrested and stated that he was sitting on the couch talking with his brother when he noticed a baby on the floor who was gagging, that he picked up the baby, ran his finger down the baby’s throat, got the piece of glass and put it in his pocket. He further admitted that he “shot up” some Demerol that night after the robbery while at the Cole house where the drugs from the robbery were carried and they had big party.

The attorney who helped the chief attorney try the original case testified that, when the State rested, the defendant, his wife, and both attorneys had a conference, and it was mutually decided that Mr. Goodman would not testify and that his brother would not be called as a witness either. This decision was based on the prior felony convictions of both Mr. Goodman and his brother.

At the conclusion of this hearing the trial court again denied the petition. We are in full accord with the decision of the trial court and affirm the case.

The office of the writ of error coram nobis, under Alabama law, is to bring to the attention of the court for correction of an error of fact, one not appearing on the face of the record, unknown to the court or party affected, and which, if known in time, would have prevented the judgment challenged and served as a motion for a new trial on the ground of newly discovered evidence. The writ is not intended to relieve a party of his own negligence and cannot serve as a substitute for an appeal, nor enable a defendant to question the merits of the case for which he stands convicted. Tillis v. State, Ala.Cr.App., 349 So.2d 95; Groce v. State, 48 Ala.App. 709, 267 So.2d 499; Smith v. Hixon, 149 F.Supp. 283, D.C.; Smith v. State, 245 Ala. 161, 16 So.2d 315.

In MacKenna v. Ellis, 280 F.2d 592, 5th Cir., the court held:

“We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. We consider undivided loyalty ... to client as essential to due process.”

The evidence in this case clearly shows that counsel for the accused used good judgment in not calling convicted felons as witnesses. Tactical considerations often become paramount in the trial of a case. To successfully show ineffective representation by counsel appellant must show that the conduct of the attorney reduced the trial to a farce, sham, or mockery of justice. Even though it can be shown that trial counsel has made a mistake unfavorable to his client, that alone is not sufficient to demonstrate inadequate representation. Matters of trial strategy should be left to the judgment of trial counsel in absence of a clear showing of inadequate representation. Tillis v. State, 292 Ala. 521, 296 So.2d 892; Robinson v. State, Ala.Cr.App., 361 So.2d 1172; Trammell v. State, 276 Ala. 689, 166 So.2d 417. Ala.Dig.Crim. Law, «=» 641.13(1).

There is nothing in the record before us which even slightly indicates that the findings of the trial court are not correct. The judgment of the trial court is, in all things, affirmed.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Jimmy Claude GOODMAN, Jr. (Re: Jimmy Claude Goodman, Jr. v. State of Alabama).
    79-735.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   MADDOX, Justice.

WRIT DENIED-NO OPINION.

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


author: BOWEN, W. SIMMONS, Retired Circuit Judge. BOWEN, W. SIMMONS, Retired Circuit Judge.

text:
    James Otis HARRIS v. STATE.
    6 Div. 912.
    Court of Criminal Appeals of Alabama.
    Sept. 4, 1979.
    Rehearing Denied Oct. 16, 1979.

      Frank S. Buck, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for the State, appellee.
   BOWEN, W. SIMMONS, Retired Circuit Judge.

A lawful jury convicted appellant-defendant of violating the Uniform Controlled Substances Act as charged in the indictment. The jury declined to assess a fine. The court fixed punishment at five years imprisonment in the penitentiary. An appeal followed a correct entry of judgment.

I

Appellant asserts that the State failed to present sufficient evidence to prove beyond a reasonable doubt that the appellant was guilty of possessing the prohibited narcotics as charged. We conclude to the contrary.

It appears that the law enforcement officers, or one of them, procured a lawful search warrant to search the premises at 3813 Huntsville Road, allegedly the residence of appellant in Jefferson County.

When the officer arrived at the above address, no one was at home. They then proceeded to a gasoline filling station about six blocks distant and there contacted defendant who, without protest, but not under arrest, went with them back to the premises, supra. Before arriving, defendant, pursuant to inquiry, delivered one of the officers several keys, one of which he said would unlock the door thereby admitting entrance. After trying one key, which did not fit, the officers, upon hearing a suspicious noise inside, proceeded to force the door open and by this means obtained prompt entrance.

The defendant, after entry, gave the officers another key which the officers tried out on the forced door and were able to lock and unlock the lock on the door. This key was not made available to the officers before the forced entry.

The officers proceeded to search a bedroom inside the building by authority of the search warrant, supra. Defendant remained in the living room while Lieutenant Phillips and Sergeant Hoehn made the search. Sergeant Hoehn testified that they found in the bedroom closet a shirt to which was appended a laundry slip with James Harris’ name on it. There were two or three of the laundry slips, but he took only one of them. The witness identified the laundry slip which was introduced and admitted in evidence over defendant’s general objection that was correctly overruled.

The witness testified there was a bed, dresser, and a closet in the room. The witness did not recall seeing any women’s or children’s clothing in the room.

The witness further testified that he saw several letters in the bedroom that had James Harris’ name on them. They bore the address “3813 Huntsville Road.” There were two or three of the letters-possibly more.

The witness stated that other items that they found in the bedroom were marijuana and pills under the mattress in the room; also some “Robitussin” cough syrup on the dresser. Also they found another bottle of pills in the closet on top of a ledge-“Way up in the top of the closet with clothes in front of them.”

After leaving the bedroom, the officers went back into the living room where defendant was. After informing him in detail of the Miranda rights, the officers asked him if the pills belonged to him. He refused to answer. Then the officer asked defendant, “Is that your room in there,” and he said ‘Yes, I am boarding there.’ In reply to a question by the officer, the defendant said a man and his wife were living there. He said that he was going with the wife, but her husband did not know about it.

After qualifying as an expert, Mary Alice Rhodes testified that she was a member of the Department of Toxicology of the State of Alabama. It appears that Sergeant Hoehn delivered to Ms. Rhodes, for examination, the marijuana, the pills, and the liquid he seized in the Harris room. The items delivered are described in the indictment. Ms. Rhodes testified in detail as to the test she ran from which she determined that the items were narcotics prohibited by the Alabama Uniform Controlled Substances Act. § 20-2-1, et seq., Code of Alabama 1975.

In view of defendant’s occupation of the room and the presence of the prohibited drugs as appears, supra, we think defendant’s knowledge of the drugs and his constructive possession of the several contraband items presented a jury question. The jury could infer that defendant had such knowledge and dominion of the items. Patterson v. State, 202 Ala. 65, 79 So. 459(4); Garrett v. State, 36 Ala.App. 417, 57 So.2d 130(2). Guilty knowledge may be established, as here, by circumstantial evidence. Smith v. State, Ala.Cr.App., 351 So.2d 668(4), cert. denied, Ala., 351 So.2d 675.

The court was free from error in refusing a directed verdict and in denying a motion for a new trial because of insufficient evidence.

II

A second contention of error here argued by appellant is that the court erroneously overruled appellant’s objection to hearsay testimony.

Officer Phillips testified that an elderly “black lady” came up to the house, and in the presence of defendant, asked what they were doing in her nephew’s home. She said James Harris was her nephew.

It appears that prior to the answer above noted, defendant objected to the question because it was an “out-of-court statement.” There was no asserted ground of objection, as here argued, that the evidence was hearsay. The asserted ground as noted, supra, was inadequate and insufficient. Specific grounds of objection waive all grounds not specific and the trial judge will not be put in error on grounds not assigned. Andrews v. State, Ala.Cr.App., 359 So.2d 1172 (1978). We pretermit considering the assertion that the evidence was hearsay. No such ground was a basis of the objection.

III

Appellant’s last contention of error asserts that the court erroneously overruled his objection to testimony “from a writing by a witness [Hoehn] for the State.”

It appears that Sergeant Hoehn, to some extent, testified by reading some written notes he had made. The hearing was on a motion (not in the record) “to suppress the evidence, based on an illegal search and seizure, plus based on the testimony that there is no proof that James Harris had possession of these particular drugs.” This quoted comment is by counsel for defendant, which is the only indication in the record as to the nature of the motion. The court overruled the motion.

The objection to the testimony from the written notes was general with no specific grounds. Where only a general objection is made, as here, the trial court will not be put in error for admitting the evidence unless the matter is clearly not proper for any purpose. Gilbert v. City of Montgomery, Ala.Cr.App., 337 So.2d 140(11). A general objection to evidence which is subject to a specific objection is properly overruled. Gilbert, supra (12). Since there was no specific objection we will not attribute error to the court’s ruling. We do not mean to indicate the ruling would have been error had a proper specific objection been interposed.

We find no error in the record to reverse. The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN, W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.

ON REHEARING

BOWEN, W. SIMMONS, Retired Circuit Judge.

We again refer to the testimony of Officer Phillips who testified that defendant’s aunt came to the residence being searched for narcotics and asked in defendant’s presence what they were doing in her nephew’s house.

Assuming arguendo that defendant’s objection to this evidence was general and included a hearsay ground, we hold that the adverse ruling of the court to this objection was free of error. We held in Davis v. State, Ala.Cr.App., 331 So.2d 813, that “Incriminating statements (as here) made to officers in the presence of the defendant are not inadmissible as being hearsay.” We cited Hall v. State, 11 Ala.App. 95, 65 So. 427; and Payne v. State, 261 Ala. 397, 74 So.2d 630. See also, Clark v. State, 240 Ala. 65, 197 So. 23; Clarke v. State, 78 Ala. 474(6), 58 Am.Rep. 45; Andrews v. State, 41 Ala.App. 563, 140 So.2d 369. See also, Alabama Digest, Volume 6, No. 407(1).

We have no authority to modify or change any Alabama Supreme Court opinion by declaring the law to be obsolete pursuant to a decision of the Supreme Court of the United States if such be the case.

OPINION EXTENDED, APPLICATION OVERRULED.

All the Judges concur.

BOWEN, J., in result only.


author: ALMON, Justice.

text:
    Ex parte James Otis HARRIS. (In re James Otis Harris v. State of Alabama).
    79-82.
    Supreme Court of Alabama.
    June 6, 1980.

      Frank S. Buck, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for respondent.
   ALMON, Justice.

Harris was convicted of illegally possessing drugs. The Court of Criminal Appeals affirmed the judgment in Harris v. State [Ms. Sept. 4, 1979] 387 So.2d 865 (Ala.Cr.App. 1979). This Court granted certiorari to determine whether a certain statement by a person not in court was properly admitted into evidence as an exception to the hearsay rule. We have determined that the statement was improperly admitted and reverse the judgment of the Court of Criminal Appeals.

Police officers of the City of Birmingham obtained a search warrant from a City Judge to search the residence at 3813 Huntsville Road for drugs.

When the officers arrived at this address they found no one at home. They subsequently located Harris at a gas station some six blocks from the residence. Harris accompanied the officers to the residence where they gained entry. The search revealed illegal drugs and Harris was placed under arrest and given Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After the warnings were given a woman came to the residence and asked what the police were doing at her nephew’s home. One of the police officers testified as follows:

Q. Did you have an occasion to see anybody in the house when you first got there?
A. No, sir, no one was in the house.
Q. While you, the defendant, and the other police officers were in the house, did anybody come up to the house?
A. Yes, sir.
Q. Describe this individual for us.
A. It was an elderly black lady.
Q. Did you talk with her?
A. Yes, sir.
Q. Where was this discussion had, please?
A. In the living room.
Q. Was the defendant present?
A. Yes, sir.
Q. Tell us what she said, if anything.
MR. BUCK: We object to it, to the out-of-court statement, Your Honor.
THE COURT: Was the defendant present?
MR. CAHILL: Yes, sir.
THE COURT: Was he?
A. Yes, sir.
THE COURT: Overrule.
Q. Tell us what she said and what you said to her.
A. She wanted to know what we were doing in her nephew’s home.
Q. What was next said?
A. I asked her if her nephew was James Harris.
Q. What did she say?
A. “Yes.”
Q. Did you have any other conversation that you can remember?
A. No, sir.
THE COURT: Was this before the defendant was placed under arrest that you had this conversation with this woman?
A. I think it was after the arrest.
THE COURT: After the arrest?
A. Yes, sir.

The main issue at trial was whether Harris owned or resided at this address. This was vital to the State’s case in order to show constructive possession of the premises where the drugs were found. Thus, the admission of the statement cannot be said under any circumstances to be harmless. If it was erroneously admitted then prejudicial error is present.

The State argues that the objection to this evidence was inadequate and, further, that the evidence was admissible under the “tacit admission rule.” This rule of evidence is stated in Clark v. State, 240 Ala. 65, 197 So. 23 (1940), as follows:

“It may be stated as a general rule that, when a statement is made in the presence and hearing of an accused, incriminating in character, and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible on a criminal trial, as evidence of his acquiescence in its truth. A statement so made, of itself, would be objectionable as hearsay testimony, being a statement made at some time other than at a present trial, offered to prove the truth of the matter therein asserted, and based entirely on the credibility of a declarer not then before the court. However, as in the case of admissions generally, the statements herein considered are not offered as evidence of their truth merely because they were uttered; they are secondary in nature and are accepted in evidence as untainted by the hearsay stigma merely because they are a necessary predicate to the showing of the substantive evidence, the reaction of the accused thereto. The crystallization of the experience of men shows it to be contrary to their nature and habits to permit statements, tending to connect them with actions for which they may suffer punishment, to be made in their presence without objection or denial by them, unless they are repressed by the fact that the statement is true. Consequently, silence under accusation is some evidence from which the jury may infer that the accused acquiesced in the statement and admitted its truth. But silence or failure to deny, of itself, unaccompanied by the statement in the face of which the accused remained silent or which he failed to deny, cannot well be testified to so as to convey meaning. The witness might testify that an incriminating statement was made without stating what it consisted of, but such testimony would be objectionable as a mere conclusion. * * * ”

240 Ala. 69, 197 So. 26-27.

The record does not show what Harris’s response was to this statement, or whether it could be reasonably assumed that Harris heard the statement by the woman. The record does show that Harris was present, but does not elaborate on the circumstances. Even assuming that it could be argued that the record supports the conclusion that Harris failed to respond to the statement, thereby tacitly admitting the truth of it, we are convinced the hearsay statement was clearly inadmissible because of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), wherein the Supreme Court of the United States states that

[t]he warnings mandated by that case, [Miranda], as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, supra, 422 U.S. [171], at 177, 95 S.Ct. [2133], at 2137, 45 L.Ed.2d 99. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

96 S.Ct. 2244-45.

Under these circumstances we consider the objection by defense counsel to be sufficient to raise the issue.

The crux of our holding is simply that it is fundamentally unfair and in violation of due process of law to inform a person under arrest that he has a right to remain silent and then permit an inference of guilt from that silence.

The opinion of the Court of Criminal Appeals, on rehearing with one judge concurring in the result, stated that

We have no authority to modify or change any Alabama Supreme Court opinion by declaring the law to be obsolete pursuant to a decision of the Supreme Court of the United States if such be the case.

We are not completely sure just what this statement means. We would observe, however, that the Court of Criminal Appeals has “exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post conviction writs in criminal cases.” Code 1975 § 12-3-9. Under our appellate system criminal cases which are appealed reach that Court first. Indeed every Court in this State is obliged to apply the decisions of the United States Supreme Court interpreting the United States Constitution. The only exception which comes readily to mind is where this Court has previously interpreted a United States Supreme Court decision contrary to the interpretation the Court of Criminal Appeals has seen fit to give the decision.

The judgment of the Court of Criminal Appeals affirming Harris’s conviction is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Justices concur, except BLOOD-WORTH, J., who is not sitting.


author: PER CURIAM.

text:
    James Otis HARRIS v. STATE
    6 Div. 912.
    Alabama Court of Criminal Appeals.
    June 30, 1980.
   PER CURIAM.

REVERSED AND REMANDED ON AUTHORITY OF Ex Parte Harris (Re James Otis Harris v. State) 387 So.2d 868 (Ala.1980).

All the Judges concur.


text:
    Jake M. DIAL v. STATE
    2 Div. 245.
    Court of Criminal Appeals of Alabama.
    Nov. 20, 1979.
    Rehearing Denied Dec. 18, 1979.

      James S. Ward of Baxley, Stuart, Ward & Dillard, Birmingham, and David A. Reid, Livingston, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., Montgomery, for appellee.
   HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said County charge that before the finding of this indictment Jake M. Dial, whose name is otherwise unknown to the grand jury, did after September 16, 1971, unlawfully possess, sell, furnish or give away to-wit: Marijuana, a controlled substance, against the peace and dignity of the State of Alabama.”

Throughout the trial proceedings appellant was represented by counsel of his choice and at arraignment pleaded not guilty. The jury returned a verdict finding him guilty as charged in the indictment and fixed his fine at ten thousand dollars. As additional punishment the trial judge sentenced appellant to ten years imprisonment in the penitentiary. In open court appellant gave notice of appeal. Appellant is represented by new counsel on this appeal.

Prior to trial appellant filed the following motions: (1) motion for discovery and inspection; (2) change of venue; (3) demurrer or motion to dismiss the indictment, and motion for continuance. The court denied the motion to dismiss the indictment, and denied the motion for a continuance after a hearing. The court granted the motion for discovery and ordered the District Attorney to permit defense counsel to withdraw a sample of the marijuana for testing. The court also directed the District Attorney to encourage all State’s witnesses to talk with the defense counsel.

Seven witnesses actually testified at the hearing on the motion for change of venue and expressed the opinion that, based upon pretrial publicity by newspaper accounts, television broadcasts, radio reports, and discussions in the county, appellant could not receive a fair and impartial trial in Sumter County, or that it would be very difficult for him to receive such a trial. It was stipulated that eight additional witnesses would testify in like manner. The court expressly reserved ruling on the motion for change of venue until a voir dire examination of the jury venire was conducted.

After the jury was sworn and qualified the voir dire examination began. Several of the veniremen testified they had heard the case discussed and had heard and read the news accounts, including television and radio reports, but said they could disregard what they had heard and read and render a fair and impartial verdict. Some veniremen had not read the newspaper accounts or heard the case mentioned on television or radio. Not a single juror stated that he or she was biased and prejudiced by what he or she had heard or read. The trial court then overruled the motion for change of venue.

Appellant did not testify nor did he offer any evidence in his behalf concerning the merits of the State’s case. The case presented by the State was undisputed.

On September 9, 1978, the Sheriff of Sumter County, Melvin Stephens, accompanied several narcotics agents and the investigator from the District Attorney’s Office for the purpose of burning a field of growing marijuana. The Sheriff testified that this particular field was in Sumter County and was located in a pasture about a mile to a mile and a half from County Road 74. The field was three and a half to four acres in size. The field was planted in rows with plants that were seven to eight feet tall. About an acre and a half of the field had been previously harvested. The remaining acreage was destroyed by burning the plants after they were pulled up and stacked. According to the Sheriff this land belonged to appellant.

After burning the marijuana the Sheriff saw appellant at his horse barn which was located about two miles from this field of marijuana. The horse barn was off Highway 74 on a dirt road to the left before you get to appellant’s residence. The Sheriff, Lieutenant Bradford and Chief Moody had a conversation with appellant in which they told him they had just burned a marijuana field on his place and they had reason to believe he had some more marijuana, and, if he did, it was time to show it to them. Appellant told the officers he didn’t know anything about it and the Sheriff did not ask him any more questions.

Later that night the Sheriff and Deputy Walton went back on Highway 74 near appellant’s house. The Sheriff called appellant’s home and learned that he was not there. They then went to the home of Edward Morris (a co-defendant) and learned that he had gone with appellant to do some work. The time was about 10:30 p. m. The Sheriff knew that appellant had an interest in the Cobb house located in the area. They drove to the old Cobb place and parked behind an abandoned store. Just before they parked they heard a noise and crawled up behind the house and from this vantage point they saw a truck. They moved closer and observed two people loading something on the truck in large paper bags. The officers got within fifty feet of the truck which the Sheriff described as a “brown Chevrolet truck, flat bed; the bed was approximately eight foot long and six foot wide, with a clearance light, a yellow clearance light on top of the cab.” The Sheriff identified the persons loading the bags on the truck as appellant and Edward Morris. When the Sheriff first saw appellant and Morris they were coming in the direction of the old Cobb house and down to the parked truck.

The officers observed appellant and Morris until the truck was loaded and started driving away. As the truck was moving the right front tire went flat. Appellant and Morris got out and changed the tire. They put the flat tire on the bed of the truck, turned on the clearance lights and drove back across the flat pasture headed in a northern direction from the old Cobb house. The Sheriff then radioed Investigator Billingsly of the District Attorney’s Office and instructed him to get on the road which he knew would come out behind the pasture. The Sheriff got in his car and started to the road at the back of the pasture. While en route he got a radio call from Mr. Billingsly saying that he had spotted the truck. The Sheriff got to Mr. Bill-ingsly who informed him that he had lost sight of the truck as it came out of the gap. It was near midnight when the truck was first missed. The Sheriff called all law enforcement officers on duty but they were not able to find the truck until around 6:30 a. m. on September 10, 1978.

The Sheriff further testified that in driving around the pasture he came to a pine thicket and noticed some large bags in the woods. He drove around the pine thicket and found the truck in some bushes. The bags were stashed about 150 yards from the truck. The Sheriff stated this was the same truck which, he had seen at the old Cobb house the night before. On the bed of the truck he found a flat tire. He inspected the truck and found green vegetable material on the truck. There were fifteen garbage size paper bags found in the pasture and they were filled with green vegetable material which the Sheriff stated was marijuana.

Appellant was arrested later that day by the Sheriff when he arrived at the jail. He checked the tag registration on the truck and the truck belonged to appellant.

Deputy Sheriff Thomas Walton testified on direct examination to substantially the same testimony as Sheriff Stephens.

On cross-examination his testimony was at variance with the Sheriff’s in respect to the persons who went to the Cobb house on the night of September 9, 1978. Mr. Walton testified that Clayton Andrews went with them that night. It developed that Clayton Andrews was an informer and, no doubt, the Sheriff did not want to divulge the fact that he was an informer.

The Sheriff was recalled to testify concerning Andrews and he testified that Andrews was introduced to him by the name of “Bear.” He stated that Lieutenant Bradford introduced Andrews to him and stated he was an informer.

0. E. Billingsly testified that he was an Investigator for the Sumter County District Attorney’s Office and participated in the investigation leading to the arrest and confession of appellant. It would overextend this opinion to set forth in detail Billingsly’s testimony. In sum, he testified that on the morning of September 10, 1978, he went to the location where the truck and bags of marijuana were found. He identified State’s photographic Exhibits E, H and G as being of appellant’s truck and these photographs were introduced into evidence. He stated the truck was registered to appellant. It was through this witness that photographs of the various bags of marijuana and the flat tire were introduced into evidence. One bag of marijuana and samples from the other bags were taken and sealed and were personally delivered to Craig Bailey, at the Toxicology Department, in Selma, Alabama.

On voir dire examination out of the presence and hearing of the jury this witness testified that he interrogated appellant after first giving him the Miranda rights and warnings, and appellant said he understood his rights. Billingsly further stated that no promises were made to appellant to get him to make a statement; that no threats were made against him; and that no offers of reward or other inducements were made or held out to appellant to get him to make a statement. The statement took the form of questions and answers. Appellant was asked where he was going with the marijuana that he had on his truck on the night of September 9 and he replied that he just had to move it, that he was moving it, and he really did not know where he was going with it, or where he was going to put it. He was asked where the marijuana came from and he said it did not come from the field that was burned but it came from a field west of Alabama Highway 17. He was asked who owned the marijuana and appellant replied that it was his and “Booger-Red’s.”

Billingsly denied that appellant stated he wanted to talk to David Reid, one of his attorneys, before he made any statement. According to Billingsly, the only time Reid’s name was mentioned was when he was walking with appellant to jail. They met Mr. Reid coming out of his office at the courthouse and appellant said he wanted to talk to Mr. Reid. This was after appellant had made the confessory statement. The trial court ruled appellant’s incriminating statement was voluntarily and knowingly made and was admissible in evidence.

Back before the jury Billingsly’s testimony concerning the events leading up to the statement given by appellant, including the Miranda rights, was identical to his testimony out of the presence of the jury.

Billingsly further testified that 150 pounds of marijuana were seized and the quality was top grade. In his best judgment a pound of this marijuana had a street value in Sumter County of $240.00 to $250.00 per pound.

Arthur Craig Bailey testified that he was a criminalist with the Alabama Department of Forensic Sciences. He stated his education and qualifications and described the various procedures for determining whether a substance is marijuana. He stated that when he received the bag and substances from Billingsly they were sealed. He stated that in his opinion each of the substances submitted to him was marijuana. All the State’s exhibits containing marijuana were then admitted into evidence.

Lieutenant L. N. Bradford testified that he was employed by the Department of Public Safety and assigned to the Narcotics Division. It will serve no useful purpose to detail Bradford’s testimony as it is the same as that of the other officers in material and relevant part. He interviewed appellant after giving him the Miranda rights and warnings, and appellant stated he understood his rights.

Out of the presence of the jury the proper predicates were laid just as they were spelled out during the examination of Bill-ingsly in that no promises, threats, coercion, offers of rewards, or other inducements were made or held out to appellant to get him to make a statement. Bradford said that appellant told him that the marijuana that was found in the pasture on the morning of September 10, 1978 belonged to him and a person named “Booger-Red,” and that they were going to split the profit. Appellant did not tell him where the marijuana came from but stated they had planted it.

The trial court ruled that appellant’s con-fessory statement was knowingly and voluntarily made and was admissible.

Back before the jury the State laid the proper predicates and Bradford’s testimony was identical with that given out of the hearing of the jury.

The Sheriff was recalled and testified that he arrested appellant on September 10, 1978, for possession of marijuana. At this point State’s Exhibit “JJJ”, a certified copy of the vehicle registration for the one-ton pickup truck of appellant, was introduced and received into evidence.

There was additional testimony adduced by the State but, in the main, it was cumulative and tended to corroborate the other testimony presented by the State and we do not deem it necessary to further set forth the testimony.

At the conclusion of the State’s case appellant moved to exclude the State’s evidence on several grounds. This motion was overruled and we think rightly so. As stated by the Supreme Court in Young v. State, 283 Ala. 676, 220 So.2d 843:

“. . . Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the State’s evidence, the refusal to give the affirmative charge, and the overruling of a motion for new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71. . . .”

Appellant urges this court to reverse and remand this case on the ground that the trial court abused its discretion in not granting appellant’s motion for a continuance, and in overruling his motion for a change of venue.

Appellant was arrested on September 10, 1978, and was indicted on October 3, 1978. He was put to trial on November 29, 1978, and convicted on December 1, 1978. Six weeks intervened between arrest and trial. Six weeks is certainly ample time to prepare a case for trial.

The matter of granting a continuance in a criminal case is addressed to the trial court’s sound discretion, the exercise of which will not be disturbed unless clearly abused. Hendricks v. State, 281 Ala. 376, 202 So.2d 738; Rogers v. State, Ala.Cr.App., 365 So.2d 322; Peterson v. State, 231 Ala. 625, 166 So. 20; Fletcher v. State, 291 Ala. 67, 277 So.2d 882.

The facts in this case were not complex and a continuance would not have done violence to the rights of the state; we, nevertheless, cannot hold the trial court abused his discretion in denying a continuance.

We do not think the trial court abused his discretion in overruling the motion for change of venue. A defendant seeking a change of venue has the burden to show that a fair trial could not be expected in the county in which the indictment was found. Gilliland v. State, 291 Ala. 89, 277 So.2d 901.

The existence of widespread publicity alone does not indicate that the accused will not get a fair trial. Publicity by press, radio, and television is not necessarily a ground for change of venue. Without proof of prejudicial influence on the jury this court will not hold the trial court in error in refusing to grant a motion for change of venue. Mathis v. State, 280 Ala. 16, 189 So.2d 564; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Mayola v. State, Ala.Cr.App., 344 So.2d 818; Johnson v. State, Ala.Cr.App., 335 So.2d 663.

As we have stated appellant called a number of witnesses, some of whom were relatives of appellant, and others who had been in business ventures with defense counsel, who testified that appellant could not get a fair trial in Sumter County. One of these witnesses stated that the pre-trial publicity had not convinced her or her friends of appellant’s guilt. Two witnesses did testify that appellant could not get a fair trial in Sumter County because the Dial surname was an unpopular one. The trial court reserved his ruling on the motion pending an examination of the jury venire. We have already noted that not a single member of the venire stated that appellant could not get a fair and impartial trial in Sumter County.

In treating this issue the Supreme Court of the United States in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 held:

“The constitutional standard of fairness requires that a defendant have ‘a panel of impartial, “indifferent” jurors.’ Irvin v. Dowd, 366 U.S. [717] at 722, 81 S.Ct. [1639] at 1642 [6 L.Ed.2d 751], Qualified jurors need not, however, be totally ignorant of the facts and issues involved. “ ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ Id., at 723, 81 S.Ct. at 1642. “At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind of the juror as well raised the presumption of partiality.’ ”

We construe the above quotation to mean that the burden rests on the defendant to adduce evidence to show that he cannot receive a fair and impartial trial. This the appellant failed to do. We hold the trial court was not in error in overruling the motion for change of venue.

Appellant strongly contends that his confessory statements to Lieutenant Bradford and Investigator Billingsly should have been excluded on the grounds that these incriminating statements were not shown to have been voluntarily made. We do not agree.

An extra-judicial confession, oral or written, is prima facie involuntary and inadmissible and the duty rests in the first instance on the trial court to determine whether the confession is voluntary, and, unless it so appears, it should not be admitted. It is also the law that a finding of the trial judge as to the voluntariness of a confession, following a hearing held outside the presence of the jury, will not be disturbed unless contrary to the great weight of the evidence and manifestly wrong. Hardin v. State, Ala.Cr.App., 344 So.2d 234; Balentine v. State, Ala.Cr.App., 339 So.2d 1063.

After a lengthy hearing out of the presence of the jury the trial court determined that appellant’s confession was voluntary and the confessory statements were properly admitted into evidence. Hardin v. State, supra; Myhand v. State, 259 Ala. 415, 66 So.2d 544; Humphrey v. State, 54 Ala.App. 62, 304 So.2d 617.

Appellant contends that his confession was induced by a statement from Lieutenant Bradford that if he cooperated by showing the officers other marijuana fields his cooperation would be made known to the District Attorney. In an illuminating opinion by Judge Clark in Moss v. State, Ala.Cr.App., 347 So.2d 569, this identical issue was dealt with adversely to appellant’s contention. Judge Clark held:

“Defendant contended on the trial, and appellant now insists, that a confession made by defendant was shown by the testimony, preliminary to its receipt in evidence, to have been involuntary, and that the trial court was in error in admitting it. He relies upon some statements of one of the law enforcement officers to the defendant before he confessed that if he cooperated with the law enforcement officers, his cooperation would be made known to the District Attorney. Whatever tendency such statements might ordinarily have to show an inducement that would nullify a confession as evidence, they fail to do so when considered in context with the entire circumstances and conversations at the time between defendant and the law enforcement officers, and it can be determined therefrom that the confession was voluntarily and understandingly made, and that the statements made were not a factor in bringing about the confession.”

We find no error in the admission into evidence of appellant’s confession.

Appellant insists the trial court erred in refusing to give his requested charge no. 1. This charge reads as follows:

“If the prosecution had a witness possessing peculiar knowledge of the transaction, and supposed to be favorable to the prosecution, and the prosecution fails to produce such witness when he has the means of doing so, this in absence of all explanation, is grounds for suspicion against the prosecution that the testimony of the witness, if called would not have been favorable to the prosecution.”

Appellant relies on the case of Keeby v. State, 52 Ala.App. 31, 288 So.2d 813. Such reliance is. misplaced. Keeby involved two witnesses who were present at trial and could have been called by either of the parties.

We are at a loss to understand what witness appellant was referring to. The charge does not name the alleged witness. If appellant was referring to the informer, Andrews, he was not subpoenaed as a witness and no one seemed to know his whereabouts.

If appellant was referring to “Booger-Red”, he had not been arrested and his address was unknown. If he was referring to Edward Morris, the co-defendant, it is difficult for us to understand how his testimony would have been beneficial to the State under all the circumstances and evidence contained in this record. We cannot ascribe error to the trial judge in refusing this charge.

Finally, the appellant claims the trial court should have granted him a hearing before denying him probation. In the first place the record does not contain a request for probation. Just before the sentence was imposed appellant’s attorney asked the court if he needed a report and the court replied, “No, sir, I’m not going to need a report.”

Secondly, the original granting or denial of probation is entirely within the discretion of the trial court and is not reviewable on appeal from the judgment of conviction. Turner v. State, Ala.Cr.App., 365 So.2d 335.

We have carefully examined 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: SHORES, Justice. MADDOX, Justice

text:
    Ex parte Jake M. DIAL. (In re Jake M. Dial v. State of Alabama).
    79-270.
    Supreme Court of Alabama.
    July 7, 1980.
   SHORES, Justice.

We granted the petition for writ of cer-tiorari in this case because the petitioner, through the utilization of Rule 39(k) of the Rules of Appellate Procedure, demonstrated that the Court of Criminal Appeals, 387 So.2d 871, in its opinion had not addressed an issue, properly preserved at the trial below, the effect of which was to render the opinion in conflict with other decisions on the exact same issue.

We agree and reverse and remand.

The Court of Criminal Appeals held, and we think properly so, that the state had discharged its burden of showing that the inculpatory statements made by the defendant, Dial, to Investigator Billingsley were admissible. The record shows that the district attorney was allowed to elicit from Officer Billingsley the inculpatory statements. The following appears from the record:

Q. [By the district attorney] What was the sum and substance of his [Dial’s] statement?
A. ... I asked him whose marijuana that was and he told me whose it was.
Q. Whose did he say it was?
A. He said it was his and Booger-Reds.
MR. WATKINS [district attorney]: That’s the statement.

The district attorney also asked him:

Q. You testified about a statement that Mr. Dial gave you and he said that the marijuana belonged to him and who?
A. ‘Booger-Red’.
Q. Do you know ‘Booger-Red’?
A. I do.
Q. Did you see him there that night: Did you see him where the marijuana was found?
A. No, sir.
Q. Did you ever see him possess any marijuana?
A. No, sir.
MR. WATKINS: That’s all.

On cross-examination, the defense attorney asked this witness:

Q. I believe you said further that Mr. Dial told you that some guy named ‘Booger-Red’ was in on this, is that correct?
A. On the marijuana that had been moved on the truck the night before and that that we found that morning, yes, sir.
Q. Has this person been arrested or indicted?
A. Not to my knowledge, no sir.
Q. Why not?
A. We have not seen him, or have not caught him in possession of any. The only thing we have is this gentleman’s statement.
Q. That’s the only thing that you’re relying on is his statement to you, is that correct?

The witness then answered “Yes.”

On re-direct, the district attorney continued the questioning of Officer Billingsley:

Q. He asked you about the investigation that was made regarding ‘Booger-Red’, or Donald Fears. What have you been able to uncover regarding that case?
A. Nothing other than what Mr. Dial told me.
Q. Did you, as a lawyer, consider him an accomplice?
MR. SELF [defense counsel]: Object to that, if the court please, what he was considered.
MR. WATKINS [district attorney]: He’s qualified as a lawyer.
THE COURT: Pardon.
MR. SELF: I objected to his statement; his question.
THE COURT: You asked him why he hadn’t been arrested. Overruled.
MR. WATKINS: (CONTINUING)
Q. Would you consider him as an accomplice of Mr. Dial?
A. I would.
Q. And, Mr. Dial an accomplice of Mr. Fears?
A. I would.
Q. You said, I believe on Mr. Self’s cross-examination, that the only people involved, the only suspects were Mr. Dial and Mr. Fears: is there not another indicted person involved?
A.. That is correct.
Q. Who is that?
A. Eddie Morris.

It has long been the law that a witness may not give his opinion on a question of law or upon matters which involve questions of law. In Fiorella v. City of Birmingham, 35 Ala.App. 384, 48 So.2d 761 (1950), Judge Harwood quoted from 20 Am.Jur. Evidence § 799 (1939), as follows:

“It may be laid down as a general rule that a witness is never permitted to give his opinion on a question of law or upon matters which involve a question of law. This rule is applicable to both expert and non expert witnesses.” See also Alabama Fuel & Iron Co. v. Adams, Rowe & Norman, 216 Ala. 403, 113 So. 265. The reason for such rule is that conclusions of law are exclusively for the courts.

35 Ala.App. at pp. 388-389, 48 So.2d at p. 766.

Judge McElroy in McElroy’s Alabama Evidence, 3rd Ed., § 128.07, states the rule as follows:

A witness, be he expert or lay, cannot give his opinion when such constitutes a legal conclusion or the application of a legal definition. Harris v. State, 39 Ala.App. 139, 99 So.2d 201, cert. denied, 266 Ala. 697, 99 So.2d 204 (1957).

The rule is restated in 31 Am.Jur.2d Expert and Opinion Evidence § 69 (1967), as follows:

The rule prohibiting a witness from presenting his opinion on a question of law is applicable to both expert and non-expert witnesses. Testimony of expert witnesses is, in general, confined to matters of fact, as distinguished from matters of law. Opinion testimony of expert lawyers upon legal questions, other than that as to the law of another jurisdiction, or expert or nonexpert opinion generally, that amounts to a conclusion of law, cannot be properly received in evidence, for the determination of such questions is exclusively within the province of the court.

In this case, over objection, the court has allowed Officer Billingsley to testify that, in his opinion, Booger-Red was an accomplice. That is a question of law. In Russell v. State, 365 So.2d 343 (Ala.Cr.App.1978), the Court of Criminal Appeals said:

The test for determining whether a witness is an accomplice is whether he or she could have been indicted and convicted for the offense charged, either as principal or accessory. . . . This determination is a question of law initially directed to the trial judge.

Even if it were assumed that a lawyer should be able to express his opinion with respect to whether or not Booger-Red was an accomplice, under the uncontrovert-ed facts elicited from the statement made by defendant, Dial, there is nothing in the record to indicate that Officer Billingsley was shown to be a lawyer. The only reference to that is the statement of the district attorney in response to the defendant’s objection to the question put to Billingsley that “he’s qualified as a lawyer.”

For the reasons stated, the judgment of the Court of Criminal Appeals is reversed and the cause remanded.

REVERSED AND REMANDED.

FAULKNER, JONES, EMBRY and BEATTY, JJ., concur.

MADDOX, J., dissents.

MADDOX, Justice

(dissenting).

I agree with the majority that the law is well-settled that a witness may not give his opinion on a question of law or on matters which involve questions of law, but I do not think that counsel preserved the point for review, because his objection was general rather than specific; therefore, I would apply the rule that a trial court will not be reversed for overruling an objection which fails to specify the proper grounds unless such evidence is patently illegal. W. T. Ratliff Company, Inc. v. Purvis, 292 Ala. 171, 291 So.2d 289 (1974).

As the majority opinion shows, defense counsel, during his cross-examination of the witness Billingsley, attempted to show that a person named “Booger Red” had not been charged with the offense. Faced with this evidence, the district attorney had a right to counter with evidence which would show the reason why the witness had not charged “Booger Red” with the offense. The witness testified that he considered “Booger Red” an accomplice but that he had nothing other than Dial’s statement upon which to make a case against “Booger Red.” It is axiomatic that “[a] conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense.” Code 1975, § 12-21-222; see also Senn v. State, 344 So.2d 192 (Ala.1977). Since the defendant tried to discredit the officer by showing that the officer had not charged “Booger Red” with the offense, I think, on rebuttal, the witness could, and did, explain why he did not charge “Booger Red”; in short, I think that the witness had a right to give a shorthand rendition of the reasons why he did not charge “Booger Red.” In any event, under the facts in this ease, I do not consider the evidence that the witness considered “Booger Red” an “accomplice” was prejudicial, even if inadmissible. Rule 45, ARAP.


text:
    Jake M. DIAL v. STATE.
    2 Div. 245.
    Alabama Court of Criminal Appeals.
    Aug. 19, 1980.
   PER CURIAM.

Reversed and remanded on authority of Ex parte Jake M. Dial (Re: Jake M. Dial v. State of Alabama), 387 So.2d 879 (Ala.1980).

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Willie DAVIS v. STATE.
    8 Div. 272.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    M. U. Griffin, of Griffin & Griffin, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of driving a motor vehicle while intoxicated upon a public highway of Alabama, prohibited by Code 1975, § 32-5-170. There is no contention on appeal that the evidence was not sufficient to support the verdict of the jury finding the defendant guilty, and the record convinces us that there is no reasonable basis for such a contention.

Appellant asserts ten separate grounds for a reversal. The first seven relate to the admission in evidence of testimony and documents relative to a test of defendant’s breath with positive results, prescribed by Code 1975, § 32-5-193.

The first asserted ground is that the court erred “in allowing Officer Velez to testify that he received a passing grade on a test given to him to maintain his P.E.I. [Photo Electric Intoximeter] operating permit.” The record shows the following during the direct examination of Officer Velez:

“Q And did you receive a passing credit on that particular test or the last test that you took?
“MR. GRIFFIN: We object; that would not be the best evidence. If he has got to be recertified, repermitted, a new permit would be the best evidence of record of the past score.
“THE COURT: Overruled.
“Q You may answer, please, sir.
“A To keep your certification you are examined, I believe it’s every quarter, every three or four months. If you do not pass the test given, then, your certification will be pulled.
“Q All right. And you are presently and still certified?
“A Yes, sir, I am.”

The quoted portion of the record discloses that the ground of objection made to the question subsumes that if the witness had made a passing grade there would be documentary evidence to show it. The answer of the witness was to the contrary, which of itself shows that there was no infringement of the best evidence rule. The record indicates that the answer satisfied defendant on the particular point. There was no objection to the next question on the subject. The ruling does not constitute prejudicial error.

Appellant’s second and third asserted grounds for a reversal relate to the action of the court relative to the testimony of Officer Velez as to the results of the P.E.I. test administered to defendant. In both assertions, appellant refers to pages 16 and 17 of the record. He says that the evidence was admitted “without State first laying the proper predicate” and “without proper proof of adoption of methods of testing adopted by State Board of Health.” We quote from pages 16 and 17 of the record:

“MR. GRIFFIN: Excuse me, Your Hon- or. I don’t want to be too persistent. I think I have tried to make my objection for the record, but it’s going on farther. I feel I should bring it out again. I don’t believe the proper predicate has been laid for this questioning. I mentioned the methods, he is mentioning now something about methods approved by the State Board of Health, but as I view the present situation there has been no showing that there are any methods approved by the State Board of Health. There has been no proof offered before the Court in evidence, taken in evidence to show that the State Board of Health has ever promulgated the regulations and the methods for giving the test that the witness is stating he made on the occasion in question.
“THE COURT: What is Exhibit 1?
“MR. MILLER: Would be State’s Exhibit 1. The promulgated rules and regulations, etc., and I have — would move to introduce those to the Court.
“THE COURT: They are admitted. Overruled.
“MR. GRIFFIN: That was the point, I was not aware that they had been offered into evidence. I knew they were laid out here, but I didn’t know they had been offered into evidence.
“THE COURT: They have been and they had been previously admitted.
“MR. GRIFFIN: Well, I object to it again, because if it was it was done outside the presence of the jury.
“THE COURT: Overruled.
“MR. GRIFFIN: And we don’t believe it can be admitted outside the presence of the jury.
“THE COURT: Well, I believe otherwise, overruled. Proceed.”

We find in the transcript of the proceedings State’s Exhibit 1, which consists of a certified copy of the rules and regulations of the State Board of Health relating to the Alabama Chemical Test for Intoxication Act as adopted October 23, 1974, and amended February 18, 1977, which includes approval and detailed procedure as to the Photo Electric Intoximeter test. The portion of the record quoted above, in the context of the record as a whole, discloses that there was some misunderstanding between the court and defendant’s counsel as to when the exhibit was offered in evidence, but the fact remains that it was in evidence, which made inapplicable the grounds of the objection to the testimony of Officer Velez as to the results of the test. The action of the court as to assertions 2 and 3 were free of prejudicial error.

Appellant cites page 24 of the record to support his fourth assertion of error “in admitting the results of a P.E.I. test.” The record on that page shows that the only ground of objection was that the question asked as to the matter was leading. Before the first question asked on the subject was answered, defendant objected, the court said, “Don’t lead,” and the following occurred:

“Q Did you get a result, Mr. Velez?
“A Yes, sir, I did.
“Q What was that result, please, sir?
“MR. GRIFFIN: We object again on the same grounds.
“THE COURT: Overruled.”

There is no merit to appellant’s fifth assertion to the effect that the court erred in overruling his motion to exclude the testimony of Officer Velez as to the results of P.E.I. test as he refreshed his recollection thereof from a copy of a written test report the witness had made promptly after the test that he had conducted. A document prepared by a witness at the time of an event, if needed by him to refresh his recollection thereof, may be used by him for that purpose. Flournoy v. State, 270 Ala. 448, 120 So.2d 124 (1960). The particular exhibit, which did not become part of the evidence, was a carbonized duplicate original that is admissible in evidence without accounting for nonproduction of the original. Robinson v. State, 38 Ala.App. 315, 82 So.2d 815 (1955).

Appellant's sixth assertion of error pertains to references in the testimony of Officer Velez tó a photographic copy of a “log sheet” relative to the “calibration” and operating condition of the P.E.I. machine used by him in making the test on defendant, which apparently was contained in State’s Exhibit 4, but which exhibit was never admitted in evidence and is not contained in the record or transcript of the proceedings. Upon answering the question, objected to by defendant, as to what the exhibit was, the following occurred:

“MR. GRIFFIN: We object and ask that be excluded again on the grounds it’s not the best evidence.
“THE COURT: I sustain it on that results.”

Thereafter there was no ruling adverse to defendant on the matter of State’s Exhibit 4. Appellant’s sixth assertion is without merit.

State’s Exhibit 5, admitted in evidence, is a photo-electric intoximeter operating record on a printed form of the Alabama Department of Public Health, certified by the State Health Officer and Records Custodian. It is filled in at appropriate places by the operator Officer Velez when making a test for intoxication upon defendant. Defendant objected to the exhibit “on the grounds that part of it had been marked out,” which objection was overruled. Defendant had previously objected to State’s question asking for the reason “these lines have been drawn through,” to which defendant objected, and the State did not insist on an answer. By assertion seven, appellant contends that the court erred in admitting in evidence State’s Exhibit 5. There are twenty-two steps in the prescribed procedure of the form of the operating record. A careful reading of the exhibit shows that three of the steps are “Optional Steps.” These are the parts of the exhibit that were lined out and initialed by the witness. The optional steps as printed on the form are clearly legible underneath the lines made by the witness. The objection of defendant was properly overruled.

Appellant’s eighth assertion of error is a broadside against the court’s “allowing State’s attorney to lead State’s witness Velez over Defendant’s objection.” It is correct, we think, that the State excessively led the witness. Many times the court told him, “Don’t lead.” In some of these instances there was nothing to be gained by the leading questions, and obviously no harm was caused thereby to defendant. We disapprove the constancy of the leading interrogation, but the court’s rulings were within its discretion, and no harm to defendant is to be found in the rather unusually large number of leading questions.

Defendant’s requested written charge III, which the court refused, was as follows:

“The Court charges the jury that a reasonable doubt may exist, though there is no probability of defendant’s innocence from the testimony; and if they have not an abiding conviction, to a moral certainty, of defendant’s guilt, then they should acquit the defendant, Willie Davis.”

The refusal of such a charge has led to a reversal in several cases. Pointer v. State, 37 Ala.App. 670, 74 So.2d 615 (1954). However in Hallman v. State, 42 Ala.App. 417, 167 So.2d 142, cert. denied 277 Ala. 699, 167 So.2d 145 (1964), the charge was again considered, and it was there held that it was saved from error by fair and substantial coverage in the oral charge, as well as by a given written charge. In the oral charge in the instant case the court said:

“. . .a reasonable doubt may exist although there is no probability of the Defendant’s innocence, and, of course, you must have an abiding conviction to a moral certainty of the Defendant’s guilt.”

Taking that specific reference to the subject embraced in defendant’s requested charge III into consideration in connection with the remainder of the court’s oral charge in which the jury was fully instructed as to its duty not to convict unless the jury was satisfied from the evidence beyond a reasonable doubt of defendant’s guilt, the principle of law set forth in defendant’s charge III was fairly and substantially covered by the court’s oral charge. The refusal of the charge does not constitute reversible error, as contended in appellant’s ninth assertion of error.

Appellant is correct in his tenth assertion of error. The jury fixed his punishment at a fine of four hundred dollars. In addition, the court imposed a sentence “to hard labor for Madison County for a period of six months.” By Code 1975, § 32-5-170, the punishment prescribed in addition, as well as an alternate, to a fine is “imprisonment in the county or municipal jail for not more than one year.”

The judgment of conviction should be affirmed, but the cause should be remanded to the trial court for proper sentencing. McFerrin v. State, Ala.Cr.App., 339 So.2d 127, 132 (1976).

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 AND REMANDED FOR PROPER SENTENCING.

All the Judges concur.