text:
    William J. McLAIN v. GAF CORPORATION, a corporation.
    Civ. 3319.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1982.
    Rehearing Denied Jan. 5, 1983.
    J. Bryan Howell of Pate & Peters, Mobile, for appellant.
    P.N. Harkins and W.F. Goodman of Watkins & Eager, Jackson, Miss., and Jack W. Morgan of Morgan & Burns, Mobile, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Mobile County granted the appellee’s motion to dismiss the claim of employee, Mr. William McLain, for compensation and medical benefits under the Act, and the employee appeals. We affirm.

The employee made a claim for compensation and medical benefits through his former employer, GAF Corporation. His employer denied his request, and Mr. McLain filed an action to.seek benefits. The employer filed a motion to dismiss, alleging among other things that Mr. McLain’s cause of action was barred by the one-year statute of limitations. The motion to dismiss was initially denied, but after a motion to reconsider, the trial judge entered an order granting the employer’s motion to dismiss.

From this dismissal, Mr. McLain, through able counsel who has provided this court with an excellent brief, appeals, contending in essence he is entitled to medical payments because there is no statute of limitations on medical payments under the appropriate Workmen’s Compensation Act provision.

The facts, as pleaded, are that Mr. McLain is sixty-four years old, and has been diagnosed as suffering from asbestosis, a pulmonary disease caused by exposure to asbestos fibers. Mr. McLain retired from his job at GAF Corporation after approximately thirty-one years. It was approximately one year and one month after his retirement before he was diagnosed as having a moderately severe case of asbestosis.

Mr. McLain, through counsel, contends there is no applicable statute of limitations on medical payments under § 25-5-147; he concedes he is no longer entitled to disability compensation because his claim was not filed within the one-year statute of limitations.

This appears to be a case of first impression. The issues before this court are whether medical payments are subject to the one-year statute of limitations, and if not, whether an employee may bring a claim for medical payments after the one-year period for compensation has run.

The applicable statute, Ala.Code § 25-5-147 (1975) in pertinent part reads:

“In case of the contraction of the disease of occupational pneumoconiosis, as defined in this article, or of injury or disability resulting therefrom, all claims for compensation shall be forever barred, unless within one year after the date of the injury, as hereinafter defined, the parties shall have agreed upon the compensation payable under this article, or unless within one year after the date of the injury one of the parties shall have filed a verified complaint as provided in section 25-5-88.... No agreement, express or implied, to shorten or to extend said limitations shall be valid or binding on either of the parties when said employment, at the time of said exposure, is or was subject to the provisions of this article. The date of the injury shall mean, for all purposes of this article, the date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed, within a period of five years prior to the date of the injury, to the hazards of the disease in each of at least 12 months.” (Emphasis supplied.)

“Compensation” is deliberately defined by the Workmen’s Compensation Act to exclude medical payments. “Such term [compensation] does not include medical and surgical treatment and attention, medicine, medical and surgical supplies, crutches and apparatus furnished an employee.... ” Ala.Code § 25-5-1(1) (1975).

The above quoted definition of compensation applies to the entire workmen’s compensation chapter under the express language of the Act, unless the “context shall clearly indicate a different meaning in the connection used.” Ala.Code § 25-5-1 (1975). “This exclusion [of medical payments] cuts across the entire law.... ” Sam’s Place v. Middleton, 39 Ala.App. 481, 483, 103 So.2d 812, 813 (1958). Furthermore, we have specifically held that the above quoted definition of compensation applies to the general workmen’s compensation statute of limitations, § 25-5-80. Cunningham v. Milstead Pulpwood Co., Inc., 366 So.2d 737 (Ala.Civ.App.1979).

While it may appear the employee’s position is correct that there is no specific statute of limitations on medical payments, we need not determine this. A decision by our state supreme court in a workmen’s compensation case is dispositive of this case.

“The [workmen’s compensation] act fixed the time within which it could be enforced. It is a limitation on the right itself and not alone upon the remedy. The period within which such statutorially created rights must be asserted is of the essence of the cause of action, .... The time limitations within which such actions must be brought is a condition precedent to the right to maintain such action and is jurisdictional.”

B.F. Goodrich Co. v. Parker, 282 Ala. 151, 155, 209 So.2d 647, 650 (1968).

Furthermore, the court in that case held that jurisdiction over the subject matter cannot be created by waiver or consent as an absence of jurisdiction over the subject matter ends all inquiry. B.F. Goodrich Co. v. Parker, supra.

This holding — that once run the statute of limitations bars “the right itself” — removes the jurisdiction of the trial court to hear McLain’s claim for medical benefits. Bringing the claim within the one-year period is a condition precedent to maintaining the right itself, and the “right itself” includes compensation and medical benefits.

Furthermore, we have held via Presiding Judge Wright that the “commencement of [a workman’s] action within the time prescribed by the statute is an indispensable condition to the liability of the defendant [employer] and to the plaintiff’s [worker’s] right to sue.” Morgan v. Rheem Manufacturing Co., 395 So.2d 1030, 1031 (Ala.Civ.App.1981).

Therefore, as a threshold matter, the running of the statute of limitations has extinguished both the employer’s liability and the plaintiff’s right to sue.

We therefore affirm.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Bettye Lee TOLLESON v. George Evans TOLLESON.
    Civ. 3363.
    Court of Civil Appeals of Alabama.
    Jan. 5, 1983.
    John S. Casey, Heflin, for appellant.
    J.M. Sides and Thomas E. Dick, Anniston, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of a motion by plaintiff-appellant, Bettye Lee Tolleson, to alter or amend an amended judgment of divorce or in the alternative for a new trial.

Wife’s motion was grounded on a claim of inequitable division of real estate. Evidence of the parties’ financial situation, past, present, and future was presented to the trial court ore tenus. The evidence, particularly that relating to the future prospects of the parties, tends to show the wife has excellent future prospects while the husband has little or none due to heavy indebtedness and poor health. A trial judge is vested with wide discretion when considering a party’s motion for new trial. His decision as to such motion will be affirmed unless plainly and palpably erroneous. Williamson v. United Farm Agency of Alabama, Inc., 401 So.2d 759 (Ala.1981). The scope of review of an order denying a motion under subdivision (e) of Rule 59, A.R.Civ.P., is whether there has been a manifest abuse of discretion. Nelson v. Nelson, 408 So.2d 101 (Ala.Civ.App.1981), cert. denied, 408 So.2d 104 (Ala.1982).

It would serve no particular purpose to set out the range of figures as to the value of real estate, title to which was held jointly by the parties. It is true, as contended by the wife, that substantially all of the real property was awarded to the husband. However, he was awarded all of the substantial indebtedness as well. It appears from the evidence that the business of the husband is failing and that a forced sale of the real estate will be necessary to recover any equity and to pay the award of $18,000 cash to the wife. The trial judge could have found from the evidence that the award of a cash sum to the wife, instead of realty, was to her best interest. In any event, he was in a better position than this court to determine the equities of the parties. In the absence of evidence of palpable abuse of discretion, this court is not authorized to reverse even though we might not have rendered the same judgment if sitting at the trial. We therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    MOBILE RUG & SHADE COMPANY, INC. v. John H. DANIEL.
    Civ. 3393.
    Court of Civil Appeals of Alabama.
    Jan. 5, 1983.
    Gilbert B. Laden of Hall, Friedman, Ash-bee & Laden, Mobile, for appellant.
    John W. Parker of McFadden, Riley & Parker, Mobile, for appellee.
   ED WARD.N. SCRUGGS, Retired Circuit Judge.

This civil action seeks to collect alleged accounts stated.

Each of the seven counts in the complaint of Mobile Rug & Shade Company, Inc. (the company) sought varying amounts from Mr. Daniel for seven distinct accounts stated having separate dates. Mr. Daniel’s answer included a defense that every matter sued upon was barred by the three year statute of limitations, § 6-2-37(1) of the Code of Alabama 1975. He later filed a motion for a summary judgment which was granted by the trial court. The company appeals from that final judgment.

The primary issue is whether there was a scintilla of evidence which supports the company’s contention that its cause of action was based upon an account stated and, thus, was not precluded by the three year statute.

The applicable statute of limitations as to an account stated is six years. § 6-2-34(5), Code of Alabama 1975. The various transactions sued upon occurred from fifty-seven to sixty-two months before the filing of the company’s complaint. About fifty-four months elapsed between the date of the last payment to the company and the institution of the civil action.

There was no genuine issue as to any material fact, and the company’s civil action could not be based upon account stated unless the following statement from an affidavit of one of the plaintiff’s employees provided at least a small particle of proof of the existence of an account stated between the parties:

“Each time that Mr. Daniel came in to do business with Mobile Rug & Shade Company, Inc., I went over his requirements for his particular construction job in detail by drawing up specifications and the like. After I did this work, I quoted him a price and he accepted it. I did this each time that I set up a contract for one of his jobs. It was also understood that the price on each contract would be due and payable by him upon completion of the contract.”

R. at 103-104.

One definition of an “account stated” is as follows:

“[A]n account stated ... is an agreement between parties who have had a previous transaction or transactions of a monetary character that the item or items of account representing such transaction or transactions and the balance struck are correct, together with a promise, express or implied, for the payment of such balance. Walker v. Trotter Brothers, 192 Ala. 19, 68 So. 345, and cases cited; Ware v. Manning, 86 Ala. 238, 5 So. 682; Jasper Trust Co. v. Lamkin, 162 Ala. 388, 50 So. 337, 24 L.R.A., N.S., 1237. See Ingalls v. Ingalls Iron Works Co., 5 Cir., 258 F.2d 750.
“An account may consist of a single item. Wharton v. Cain, 50 Ala. 408; Nooe’s Ex’r v. Garner’s Adm’r, 70 Ala. 443. To create a stated account, it is not essential that the statement of the account should be made in writing. Lallande v. Brown, 121 Ala. 513, 25 So. 997. The term ‘account’ covers any item of indebtedness by contract, express or implied. Dees v. Self Bros., 165 Ala. 225, 51 So. 735. An account stated is not founded on the original liability, but on the defendant’s admission that a definite sum is due in the nature of a new promise, express or implied. Cook & Laurie Contracting Co. v. Bell, 177 Ala. 618, 59 So. 273.”

Martin v. Stoltenborg, 273 Ala. 456, 142 So.2d 257 (1962).

Stated differently, “[A]n account stated is an account balanced and rendered, with an assent to the balance, expressed or implied; so that the demand is essentially the same as if a promissory note had been given for the balance. (Citations omitted.)” Sinclair Refining Co. v. Robertson, 247 Ala. 260, 23 So.2d 872 (1945).

Each count of the complaint is for a separate transaction and the sum total sought by the several counts is $2,981.34, which is the exact amount due according to the last balance reflected by the running account as carried in the company’s ledger book.

In construing the quoted portion of the affidavit in a manner which is most favorable to the company, the upshot is that the various transactions resulted in a simple, open, running account. There was no account stated because, according to the affidavit, the company seeks to recover upon original liability rather than upon a new promise by Mr. Daniel to pay the total account as balanced and rendered. At most, the affidavit only indicates Mr. Daniel’s original promise to pay for each of the seven particular transactions as distinguished from a new promise to pay a struck and rendered balance of $2,981.34. Our attention has not been directed to any assent by Mr. Daniel to that balance as carried upon the company’s books. Hence, there is not a gleam, glimmer or spark of evidence to support the company’s claim of an account stated between the parties. In short, the evidence is that, in actuality, the plaintiff’s civil action is upon an open account and nothing in the affidavit is indicative of the creation of an account stated between the parties. There being no evidence of an account stated, the three year statute of limitations barred this civil action as to any evidence regarding an open account and the trial court correctly granted Mr. Daniel’s motion for a summary judgment.

Since the decision upon the foregoing issue is dispositive of this appeal, other argued matters need not be determined.

We affirm.

The foregoing opinion was prepared by retired circuit Judge Edward N. Scruggs, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.

AFFIRMED.

All the Judges concur.


text:
    George Henry DEINES v. Sandra Joann DEINES.
    Civ. 3439.
    Court of Civil Appeals of Alabama.
    Jan. 5, 1983.

      Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellant.
    Arnold Rankin Sneed of Lammons, Bell & Sneed, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves the propriety of an award to the wife of an attorney’s fee in postdivorce proceedings.

The parties were divorced by a judgment of August 3, 1981. Among other matters, that decree approved an agreement of the parties whereby the wife was granted alimony, custody of their daughter who was five years old at that time, and child support of $170 biweekly.

In March 1982 the husband petitioned for the child’s custody. He further sought to have the court correct a mutual mistake of the parties in regard to child support payments, alleging that the amount should have been established at $85, rather than $170, every two weeks.

By her answer, the wife acknowledged that the child support payments should have been $85 biweekly and generally denied the other allegations of the husband’s petition. Additionally, by way of counterclaim, she sought a contempt citation against her former husband and a judgment for arrearages in child support and alimony. She further prayed for a modification of child support provisions and for attorney’s fees. The husband filed a general denial.

An ore tenus hearing before the trial court was had on June 8 and 9, 1982. The final judgment denied the husband’s petition to modify. The trial court ordered that custody of the daughter be restored to the wife, required that the husband pay $877 as delinquent alimony, established that child support payments of $90 be paid by the husband on the first and fifteenth of each month, and directed that the husband be restrained from any harassment of the wife. The judgment additionally provided:

“It is further
“ORDERED, ADJUDGED and DECREED that the Defendant having recovered back alimony, that as additional support to the Defendant the Plaintiff is ORDERED, ADJUDGED and DECREED to pay her attorneys fees incurred in this cause which shall be Three Thousand ($3,000.00) Dollars, for which let execution issue.”

The husband duly appealed and complains of only one matter, the allowance of the attorney’s fee to the wife.

As to unpaid alimony, “attorney’s fees in enforcement proceedings may not be awarded when no contempt citation is made.” Scott v. Scott, 375 So.2d 797 (Ala.Civ.App.1979); Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App.), cert. denied, 384 So.2d 1100 (Ala.1980). Thus, any allowance of counsel fees concerning the recovery of back alimony is not allowable without an adjudication that the delinquent party is in contempt of court. Since no such finding of contempt was made here, no attorney’s fee may be allowed to the wife which is based upon the recovery of the judgment for the past due alimony. We must reverse on that account.

However, an award of an attorney’s fee is largely within the judicial discretion of the trial court in proceedings to modify the child custody provisions of a divorce judgment. Foster v. Foster, 409 So.2d 833 (Ala.Civ.App.1981); Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App.1979). In the present case we cannot ascertain from the judgment whether any portion of the awarded fee pertained to the child custody issues of the proceedings. The trial court’s only stated reason for granting the fee was the fact that the wife “recovered back alimony.” It is not unusual for a judge or court to fail to specify each and every reason or justification for a particular finding or holding. As a matter of fact, usually no such ground or basis for the award of a fee is stated therein.

The learned trial court is in the most advantageous position to ascertain the value of the services of the wife’s attorney for which a fee award may properly be made as to the child custody matter. It is discretionary with the trial court whether to grant such a fee for child custody services and, if allowed, the reasonable amount therefor is also largely a matter of judicial discretion. We reverse and remand this case to the trial court for the determination of such discretionary matters.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Dudley CARTER v. STATE.
    8 Div. 679.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-68.

      John Mark McDaniel of McDaniel & McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Dudley Carter, was indicted, and convicted of arson in the first degree in the Circuit Court, Madison County. He was duly sentenced to imprisonment for 20 years. His conviction was duly appealed to this Court, and affirmed on October 27, 1981, 406 So.2d 1076.

The appellant was represented by counsel of his choice at all proceedings in the trial court, and in this Court.

On January 22,1982 the appellant filed in the Circuit Court of Madison County a paper styled as a petition for writ of error coram nobis, and or habeas corpus. On February 8, 1982 the Assistant District Attorney filed a motion to dismiss the proceedings filed on January 22, 1982. On March 16, 1982 John Mark McDaniel filed an appearance as attorney of record for the petitioner. On March 19, 1982 an amended petition for a writ of error coram nobis, and writ of habeas corpus were filed by appellant. On March 24, 1982 answers and motions to dismiss were filed by District Attorney. March 28, 1982 hearing was held, and both petitions were denied, and appealed to this Court.

Richard A. Kempaner of Huntsville, Alabama, represented the appellant at all proceedings in the trial court, and on appeal to this Court in his arson case.

John Mark McDaniel represented the petitioner in the trial court, and represents him on this appeal. This appeal was submitted to this Court on briefs.

The appellant in his brief contends that the trial court erred to his prejudice because: 1. He was not allowed to testify in his own behalf at his original trial before the jury; 2. Due to the fact that the prosecuting attorney in appellant’s original trial represented the victim in the original trial of the appellant before becoming a prosecutor, in getting custody of appellant’s common law wife’s, Pamela McCarley’s, child; 3. That the evidence at the original trial was not sufficient to sustain the conviction of appellant for arson in the first degree; 4. That the appellant was denied due process because Pamela McCarley, a key defense, alibi witness, was not called to testify in appellant’s defense at his original trial.

Pamela McCarley, appellant’s first witness, testified, in substance: That she was the common law wife of the appellant; that she started living with him in October, 1979; that she was living with appellant September 10, 1980; that she recalls September 10,1980; that it was supposed to be around 10:00 o’clock that night when her mother’s home burned; that she was subpoenaed, and present at, but was not called to testify in the case when appellant was convicted of arson; that she and the appellant were together from two o’clock on the afternoon of September 10, and all night until September 11, when they came and arrested appellant at his house; that appellant picked her up at the Huntsville Country Club at two p.m., and they went to the American Legion downtown, then to the Twilite Lounge for a beer, then to pick up a girlfriend, and took her to Redstone Arsenal, then back to the Twilite Club until eleven that night, then to Fred Smith’s Cafe for a beer, and then home, where they arrived at about eleven-thirty; that during this time she drank several beers; that they did not go by the home of Tula Mae Mar-brey, her mother, and the victim of the arson; that all the time the appellant was constantly in her sight, except when he went to the rest room; that her mother’s home was burned on that night; that she has not talked to her mother about the case; that she was sworn in as a witness at appellant’s trial, but was not called to testify, and that she was going to testify to the same things that she has just testified to; that she had a thirteen year old girl child, whom the Domestic Relations Court had taken away from her and given temporary custody to her mother, Mrs. Marbrey; that she and her mother had not been friends since the custody of the child was taken by her mother; that Larry Morgan was her mother’s lawyer in the domestic relations suit; that she and the appellant were riding in a Malibu Chevrolet, 1977, Green, four door; that she and her mother had heated arguments about her living with the appellant and not married to him. The appellant testified, in substance, at the coram nobis hearing, that he did not testify in his own defense in his case; that he did ask his attorney, Richard A. Kempaner, about whether or not he should testify; that he was told by his attorney that it would be best that appellant didn’t testify, because the District Attorney would make the appellant real mad, and appellant has got a short temper, and that the District Attorney would bring appellant’s record up; that appellant had not been convicted for a felony; that the appellant agreed with the attorney that appellant had a short temper, but he did not agree that he should not testify; that he wanted to testify; that he only discussed it one time at Twilite Lounge with his lawyer, and two alibi witnesses, Kenneth and Karen Baker, for two or three minutes, and that he never discussed it again with his lawyer because appellant thought that he might be with a good lawyer, and that he knew best; that appellant’s lawyer told appellant not to testify, and appellant said, “Okay, I won’t testify.”

State’s evidence tended to prove that Larry Morgan was chief prosecutor for the District Attorney’s office, and that before the time he prosecuted the appellant, he had represented Tula Mae Marbrey, the victim in the arson case, in which appellant was convicted, to obtain temporary custody of her granddaughter. On cross-examination Morgan further testified that when he came into the prosecutor’s office on January 20, 1981, all arson cases were assigned to him; that the appellant was not a party to the custody proceedings, but was only a potential witness. That the custody case involved around appellant’s, and Pamela McCarley’s, conduct in the presence of the child. Morgan further testified, on cross-examination, that he had talked with Kem-paner, appellant’s attorney, who filed several motions in the case pertaining to eyewitness testimony. In essence, based upon his conversation with Kempaner prior to the trial, based upon the type of case that he presented at the trial of the case, that he felt that the case was tried as well as it could be tried; that he doesn’t believe that any attorney at this bar could have tried the case better than Kempaner tried it.

State’s evidence further tended to prove that David L. Thomas, attorney engaged in the practice of criminal law in Madison County since June of 1961, has known Richard Kempaner since 1958 or ’59, and that he has been actively engaged in the practice of criminal law during the time; that he is familiar with the standards of performance of attorneys at the Madison County Bar engaged in criminal practice; that based on those standards, and based on his knowledge of Kempaner’s practice, he has an opinion as to whether Kempaner meets contemporary standards of the bar regulating practice of criminal law; that he is of the opinion that Kempaner would exceed those standards; that Kempaner does a superior job of trying a criminal case.

Richard Kempaner testified, in substance: That he is a lawyer, and has been practicing actively in the criminal law area some thirty years; that he represented the appellant in his trial for arson here before this Court. Kempaner’s testimony consumes about ten pages of the transcript of the evidence, and states the various reasons why he felt that the appellant would be better off not to testify in his own behalf, and why his girlfriend, Pamela McCarley, should not be used as an alibi witness. Kempaner further testified, in substances, that it was a joint decision of appellant and Kempaner that the appellant not take the stand and testify in his own behalf; that in arriving at his decision Kempaner told the appellant that it was up to the appellant, and that Kem-paner advised the appellant not to take the stand and testify in his own behalf because it was too risky; that appellant’s defense was alibi; that he had two good witnesses that were not related to, or friendly to, any of the parties to the case, that were good witnesses, good and solid, had no motive to testify one way or the other, Kenneth and Karen Baker, who owned the Twilite Club, who testified and placed the appellant at the Twilite at about, or near, the time of the fire bombing; that there was no way for the state to impeach them. The two witnesses, appellant, and his girlfriend, Pamela McCarley, had said the appellant had a short temper, and was prone to fly off the handle. There was some testimony as to whether appellant did or did not have a mustache. Appellant had told his attorney he had never worn a mustache, but the state had a mug shot of appellant with a mustache; that the jury was mostly middle aged, or above, and would most likely believe two middle aged alibi witnesses over a very positive, nineteen-year-old boy, the only eyewitness the state had. That older jurors don’t tend to approve of people living together without being married, and appellant was living with a lady friend, Pamela McCarley, and had been for some time, and they were not married; that there had been no motive for the fire bombing of the home. Had the appellant taken the stand, it would have come out that he had been in a long range of bad blood relationship with his girlfriend’s mother, who had taken her grandchild away from her daughter because of appellant’s alleged immoral conduct. This could have pointed to a motive for the burning of the home; that with the alibi evidence of Mr. and Mrs. Baker, the appellant would not help his alibi evidence any, and by taking the stand he might hurt his case more than help it. That there was some evidence that there was a passenger in the car with the appellant as he passed by Mrs. Marbrey’s home on the night of the burning, and Pamela McCarley resembled the description of the passenger in the car; that her alibi evidence was merely accumulative to Mr. and Mrs. Baker’s, and if Pamela McCarley took the stand, she could supply a motive for the burning of her mother’s home; that the appellant’s sister retained Kempaner to represent the appellant on his original trial.

We do not find in the record a request of the appellant that he use Pamela McCarley as a witness at his original trial.

Appellant’s first contention is that he was not allowed to testify in his own behalf at his original trial before the jury. It is basic that every person has the right in all criminal prosecutions to be heard by himself and counsel, or either; to have compulsory process for obtaining witnesses in his favor; to testify in all cases, in his own behalf, if he elects to so do. Constitution Of Alabama Of 1901, Section 6; Woods v. State, 38 Ala.App. 581, 90 So.2d 91. Clearly the appellant had the right to be sworn and to take the witness stand in his own behalf, but one cannot be compelled to do so. A defendant has a constitutional right to remain silent, and cannot be compelled to give evidence against himself, and the right to elect whether or not he will take the stand in his own behalf. Constitution Of Alabama Of 1901, Section 6; Beecher v. State, 294 Ala. 674, 320 So.2d 727. The evidence presented to the trial judge fully sustains the trial judge’s finding that the appellant’s decision not to take the witness stand in his own behalf was made by the appellant after conferring with friends, and his attorney. We hold that under the evidence in this case the appellant failed to prove that he was denied the right to testify. We find no evidence that he ever requested that he be allowed to do so, even though it is clear from the evidence that he knew he had the right to elect to or not to. Goodman v. State, Ala.Cr.App., 387 So.2d 862, cert. den., Ala. 387 So.2d 864.

Appellant’s second contention in his brief is that Larry Morgan, the prosecuting attorney who conducted the prosecution of the appellant on his original trial, had, before appellant’s trial, represented Tula Mae Marbrey, in a domestic relations suit against her daughter, Pamela McCarley, wherein Marbrey had secured the custody of her granddaughter, a girl child, 13 years of age. That the appellant was not a party to the domestic relations case, but was a probable witness in it. There is no evidence in this proceeding tending to prove misconduct of any kind by Morgan that in any way was prejudicial to the appellant in his original trial. There is no evidence to indicate that the relationship of client and attorney ever existed between Morgan, and the appellant, or Pamela McCarley, the woman the appellant was living with. In fact, Morgan represented Tula Mae Mar-brey. There is no evidence that the appellant ever approached Morgan at any time before he became associated with the District Attorney’s office, and discussed with Morgan the matter of his representing the appellant, or the woman he was living with, in any legal matters. We hold that there is no evidence in the record of conduct on the part of the prosecuting attorney that was improper. Hannon v. State, 48 Ala.App. 613, 266 So.2d 825.

Appellant’s third contention in his brief is that the evidence at his original trial was not sufficient to sustain the conviction of the appellant for arson in the first degree. That the trial court, at his original trial, erred when it overruled his motion to exclude the state’s identification evidence of the appellant. This issue has been fully adjudicated by the trial court’s overruling appellant’s motion, and on appeal to this Court by appellant. See Carter v. State, Ala.Cr.App., 406 So.2d 1076, where the conviction and sentence of the appellant was affirmed. We quote from the case of Goodman v. State, supra, where Judge Harris, Presiding Judge of this Court, said:

“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.”

We hold that the sufficiency of the state’s evidence to sustain the conviction of the appellant for arson having been fully adjudicated, it is not before this Court in this proceeding. Goodman v. State, supra; Thomas v. State, 274 Ala. 531, 150 So.2d 387.

Appellant’s fourth contention in his brief is that he was denied due process because Pamela McCarley, a key defense alibi witness, was not called to testify in appellant’s defense at his original trial. We have carefully reviewed all the evidence included in the record. The question presented by this contention is whether or not the appellant was denied adequate and effective assistance of counsel because his counsel at his original trial failed to call Pamela McCarley as an alibi witness, who would have sworn she was with the appellant several hours before, at the time of, and after, the burning of the home of her mother, and that he did not do it. Larry Morgan, chief prosecutor for the District Attorney’s office, testified, on cross-examination, that Kempaner, appellant’s attorney, tried the case as well as it could have been tried. That he didn’t believe that any attorney at this bar could have tried the case better than Kempaner tried it. David L. Thomas, engaged in the practice of criminal law in Madison County for about 20 years, testified that he had known, and observed, Kempaner for over 20 years, and Kempaner meets, and exceeds, the standards of the bar regarding the practice of criminal law, and that he does a superior job of trying a criminal case.

Kempaner testified fully as to the many different reasons he did not use Pamela McCarley as an alibi witness, among which were, her evidence on alibi was cumulative, her attitude toward her mother might supply a motive for the burning of her home, and other reasons why it was Kempaner’s opinion that it would be too risky to put her on the stand.

This Court has said: “The duty of counsel, whether retained or appointed, is to prevent the trial from being, or appearing to be, a farce or mockery of justice, and appellant has a heavy duty to carry the burden of proof to show that he was denied adequate and effective assistance of counsel. Behel v. State, Ala.Cr.App., 405 So.2d 51.” Coram Nobis proceedings are civil in nature, and the burden of proof is on the appellant to prove that he is entitled to relief. The evidence offered in this case satisfies us that the trial court was of the opinion that Kempaner had fully complied with his duties as defense counsel, when he exercised his opinion that it was too dangerous to the appellant to put his girlfriend on the witness stand as an alibi witness. Matters of trial strategy should be left to the judgment of trial counsel in absence of a clear showing of inadequate representation. On the record before us we hold that the appellant failed to carry the burden cast by law upon him, and that the court did not err in dismissing appellant’s petition for a writ of error coram nobis, and petition for writ of habeas corpus. Behel v. State, supra; Goodman v. State, supra; Thomas v. State, supra; Brown v. State, Ala.Cr.App., 373 So.2d 1232.

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

The foregoing opinion was prepared by Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    John Russell MARKS v. STATE.
    3 Div. 489.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-43.
    Billy L. Carter of Watkins, Carter & Knight, Montgomery, for appellant.
    - Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of robbery in the first degree. Immediately thereafter, the State moved to invoke the Habitual Offender Act (Alabama Criminal Code, § 13A-5-9). Upon a hearing and proof that defendant had previously been convicted of four felonies, the court fixed his punishment at imprisonment for life without parole.

The first proposition advanced by appellant is thus stated in his brief:

“PHOTOGRAPHIC IDENTIFICATION PROCEDURES IN THE ABSENCE OF COUNSEL DENIED APPELLANT’S CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND EFFECTIVE ASSISTANCE OF COUNSEL.”

In support of the proposition, appellant relies upon the contemporaneous trilogy of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), to which we are pleased to conform, and in each of which it was held that a pre-trial lineup, at which defendant was not afforded counsel, was fundamentally unfair and constituted a deprivation of defendant’s constitutional rights to due process of law and effective assistance of counsel. There was no lineup procedure or identification involved in the instant case; there was a photographic identification procedure in which a picture taken by officers of the defendant about an hour after he was apprehended was placed in a “mug book” containing more than one hundred pictures of other persons and exhibited by the officers to victims of the recently committed robbery, who identified the picture of defendant as that of the robber. In extending his contention beyond that of Wade, Stovall, and Gilbert, supra, appellant relies largely upon United States v. Zeiler, 427 F.2d 1305 (2d Cir.1970), and quotes therefrom the following:

“The considerations that led the court in Wade to guarantee the right to counsel at lineups apply equally to photographic identification conducted after the defendant is in custody. The dangers of suggestion inherent in a corporeal lineup identification are certainly as prevalent in a photographic identification.... Also, the defendant, himself not being present at such a photographic identification, is even less able to reconstruct at trial what took place unless counsel was present.... In addition, the constitutional safeguards that Wade guaranteed for lineup may be completely nullified if the police are able privately to confront witnesses prior to the lineup with suggestive photographs.” 427 F.2d p. 1307.

Appellant ignores a fact that did not exist in any of the cases cited by him, the fact that prosecution against defendant had not commenced at the time his picture was taken or at the time the pictures in the mug book were exhibited to the victims of the robbery. It has been consistently held in Alabama that a pre-prosecution lineup in the absence of counsel for an accused does not violate his Sixth Amendment right to effective counsel or his Fourteenth Amendment right to due process.

In McGee v. State, Ala.Cr.App., 383 So.2d 881, 882 (1980) writ denied, 383 So.2d 884, it is stated:

“The appellant contends he should have been provided counsel at his preindictment lineup and failure to do so violates his Sixth Amendment right to assistance of counsel. Consequently, he contends the victim’s in-court identification should have been suppressed. The appellant’s contention is without merit. A preindictment lineup is not a stage of an adversary judicial criminal proceeding at which the right to counsel attaches as defined in Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). See also: Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Hammons v. State, Ala.Cr.App., 371 So.2d 986 (1979).”

In considering the same question presented here, but in a situation in which appellant therein was in a more favorable position than here, as a warrant had been issued for the arrest, it was held in Lomax v. Alabama, 629 F.2d 413 (5th Cir.1980), that in the absence of prosecutorial involvement in procuring the warrant, no constitutional violation occurred in conducting a lineup without affording the arrested accused the benefit of counsel.

We find no support in precedent or reason for appellant’s first proposition as quoted above. To any tangential criticism to the effect that the photographic identification procedure was so impermissibly suggestive as to taint the in-court identification of the defendant as the robber, we conclude that there was no suggestiveness whatever shown in such procedure and that the positive and unequivocal in-court identification of both witnesses was not influenced by their identification of his picture as that of the robber. There was no substantial injury to defendant as the result of the photographic identification procedure.

Another proposition advanced by appellant is thus stated in his brief:

“APPELLANT WAS DENIED DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW BY VIRTUE OF THE DISCRIMINATORY APPLICATION OF HABITUAL OFFENDER ACT.”

In contending that appellant had been denied the constitutional right to due process of law and equal protection of the laws by reason of the discriminatory application of the Habitual Offender Act (Alabama Criminal Code, § 13A-5-9), appellant argues in his brief as follows:

“. .. In support of the Appellant’s objections, he relies on the testimony of the Honorable Jimmy Evans, District Attorney for the Fifteenth Judicial Circuit who testified on a hearing on appellant’s Motion to Set Aside Sentence. (R. 90-96). In pertinent part, Mr. Evans testified as follows:
“ ‘We never adopted any official guidelines prior to the Milner decision. Our office took the position that we would write the court and ask the court to adopt the rules setting out guidelines. ... I do recall that we did not receive a published court rule.’ (R. 92).

“In reference to a question from the court regarding whether the District Attorney’s office exercised any discretion in allowing a defendant whose case would come under Habitual Offender Act to plead to a lower class of felony offense rather than a higher offense charged in the indictment, Mr. Evans stated the following:

“ ‘The answer to that question is “Yes,” but we don’t do that with the purpose in mind for the sole purpose of solely getting around the Habitual Offender Act, and I don’t know if the Milner decision prohibits that or not. I would like to know because it would be much easier for us if we just knew.’ (R. 95).”

We take it that the reference to the “Mil-ner decision” is to Miliner v. State, Ala.Cr.App., 414 So.2d 133, which was decided on August 4, 1981, and as to which certiorari was quashed by the Alabama Supreme Court on May 21,1982. The sentence hearing in the instant case was conducted on May 11, 1982. In Miliner v. State, in reversing the judgment of conviction and sentence on a plea of guilty in each of two cases, for the failure of the trial court to apprise defendant of the permissible range of sentencing which would result from his plea of guilty in the light of his previous felony convictions, it was held at 414 So.2d 135:

“In the present case it is clear that appellant’s attorney, the District Attorney, and the trial court were under the impression that a plea-bargained agreement could circumvent the provisions of the Habitual Felony Offender Act. However, those provisions are absolutely mandatory and are not discretionary. Watson v. State, Ala.Cr.App., 392 So.2d 1274 (1980), cert. denied, Ala. 392 So.2d 1280 (1981).”

Although appellant finds support in the testimony of District Attorney Evans for his contention that there were some occasions in which the provisions of the Habitual Offender Act were not mandatorily applied, it is clear from the testimony of the district attorney that from the time of the rendition of the opinion in Miliner v. State, supra, such provisions of law had been mandatorily applied. Stated otherwise, at the time appellant herein was sentenced, the provisions of the Act had been mandatorily applied in the Fifteenth Judicial Circuit for more than nine months. In our opinion, this relieves the practice in the particular circuit of any stigma of discriminatory application of the Act which may have existed prior to the decision in Miliner, supra, which we do not now attempt to decide.

The only additional contention of appellant is that the trial court was in error in overruling defendant’s motion for a new trial. In making this contention, appellant relies exclusively upon the two contentions we have previously discussed.

The judgment of the trial court is due to 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.

      . To be distinguished, of course, is one’s Fifth Amendment right not to be compelled in a criminal case to be a witness against himself, which is a barrier to the admission in evidence of an incriminatory statement in the absence of counsel unless counsel is waived.


author: BOWEN, Judge. BOWEN, Judge.

text:
    David Lee WALDROP v. STATE.
    1 Div. 286.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    As Corrected on Denial of Rehearing Nov. 23, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-226 and 82-227.

      Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Edward E. Carnes and William D. Little, Asst. Attys. Gen., for the State.
   BOWEN, Judge.

On the afternoon of July 11, 1977, Richard Hacker, Assistant Manager of Del-champs Store No. 10, and Terry Stainback, a part-time cashier, left the store with the afternoon bank deposit. Thirteen days later their bodies were discovered in a wooded area in west Mobile County. Each victim died from a shotgun wound to the head. In May of 1980, the defendant was indicted for the capital offenses involved in this double murder and robbery. Alabama Code 1975, Sections 13-ll-2(a)(2) and (10). A jury found the defendant “guilty of the capital felony as set out in the indictment.” After a sentencing hearing the jury fixed the punishment at life imprisonment without parole. The trial and all proceedings were conducted in accordance with Beck v. State, 396 So.2d 645 (Ala.1981). This case must be reversed because the district attorney was not only the prosecutor but the State’s main witness against the defendant.

I

The district attorney testified as a witness at the defendant’s trial to a confession and written statement made by the defendant following his arrest. Under the State’s evidence, the district attorney was the State’s principal witness. However, there was at least one other witness who could have testified to the statement the defendant made to the district attorney.

The propriety of allowing the prosecutor to testify is not questioned in this case. Rather, the defendant attacks the ruling of the trial judge allowing the district attorney to continue prosecuting the case once he had testified.

The district attorney was the last witness called by the State to testify in the State’s case in chief. After the State rested, defense counsel moved “to dismiss this charge on the grounds that the District Attorney has occupied a dual role here. He has become a witness in the case he’s prosecuting.” Defense counsel requested the trial judge to dismiss the case or in the alternative “to dismiss Mr. Galanos from it, because he is now a highly material witness before the jury and for obvious reasons that deprives the Defendant of a fair trial. * * Now when he argues to the jury he’s not arguing as a prosecutor, he’s arguing as the prosecutor and the main witness.”

The rule was clearly stated in Maund v. State, 254 Ala. 452, 461, 48 So.2d 553 (1950).

“The rule governing such procedure is well stated in 70 Corpus Juris page 183, as follows: ‘Although a prosecuting attorney is competent to testify, his testifying is not approved by the courts except where it is made necessary by the circumstances of the case, and, if he knows before the trial that he will be a necessary witness, he should withdraw and have other counsel prosecute the case. The propriety of allowing the prosecutor to testify is a matter largely within the trial court’s discretion. The testimony of a prosecuting attorney has been admitted where, unknown to the attorney before the trial, his testimony became valuable for the purpose of corroborating other witnesses in impeaching a defendant witness; to explain the surprise occasioned by the testimony of a witness called by the prosecuting attorney when such witness contradicts statements made to him previously; to show what happened while he accompanied an officer serving a search warrant; to establish a confession made to him in a case where there is no provisions of law for anyone else to conduct the trial; to show admissions made by defendant to him, and to establish facts occurring before a grand jury. So the prosecuting attorney may testify where the ease is tried entirely by an assistant prosecuting attorney.’ ” (emphasis added)

Here, the district attorney went to trial knowing full well that he would be a necessary witness. He even testified at the hearing on the defendant’s motion to suppress held immediately before trial.

In Stringer v. State, 372 So.2d 378, 381 (Ala.Cr.App.), cert. denied, 372 So.2d 384 (Ala.1979), we held that the trial court did not commit reversible error by allowing the prosecutor to testify to admissions made by the defendant to him. However, there we specifically found that “(t)here is no evidence in the record that the district attorney formed the intention to testify in advance of trial.” Such a finding is directly contrary to the evidence in this case.

There has never been any claim that the district attorney was the only witness who could testify to certain particular facts and, as noted, it cannot be said that the district attorney learned only after the trial started that he would become a witness. Argument has not been made that the district attorney testified as a matter of necessity or that he was the only one who could prosecute the defendant.

We find no justification for the district attorney’s actions. We find no exception of his duty to withdraw from the prosecution of the defendant once he had testified as a material witness. Anno. 54 A.L.R.3d 100, Section 5(b) (1973).

“A prosecuting attorney is not incompetent to be a witness, State v. Stiltner, 61 Wash.2d 102, 377 P.2d 252, and the trial court may exercise discretion in determining to what extent and as to what matters he may be permitted to testify. State v. Lee, 203 S.Ct. [S.C.] 536, 28 S.E.2d 402, 149 ALR 1300. However, the general and uniform rule is that the right of a prosecuting attorney to testify in a criminal case ‘is strictly limited to those instances where his testimony is made necessary by the peculiar and unusual circumstances of the case. Even then, his functions as a prosecuting attorney and as a witness should be disassociated. If he is aware, prior to trial, that he will be a necessary witness, or, if he discovers this fact in the course of the trial, he should withdraw and have other counsel prosecute the case.’ Tomlin v. State, 81 Nev. 620, 407 P.2d 1020. See also, Jenkins v. State, 242 Miss. 646, 136 So.2d 580; Adams v. State, 202 Miss. 68, 30 So.2d 593; State v. Nicholson, Mo.App., 7 S.W.2d 375; Robertson v. Commonwealth, 269 Ky. 317, 107 S.W.2d 292; Robinson v. United States, 8 Cir., 32 F.2d 505, 66 ALR 468; State v. Blake, 157 Conn. 99, 249 A.2d 232; Clark v. State, Okl.Cr. 370 P.2d 46.
“The above general rule announced in the case law is expressed in the rules of this Court. Supreme Court Rule 4.19 (now repealed but in effect at the time this ease was tried) provided that ‘when a lawyer is witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except, when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.’ For the present rule, see DR5-101 and DR5-102, V.A.M.R. See State v. White, 339 Mo. 1019, 99 S.W.2d 72, where the application of the rule to testimony by a prosecuting attorney is discussed, but where no objection was made to the testimony of the prosecutor.
“In this case the prosecuting attorney occupied conflicting positions as a witness for the State and as a prosecutor, Adams v. State, supra and as a public official ‘in whom the public has reposed confidence, his evidence is ordinarily given greater weight than that of an ordinary witness, and the natural tendency in such case is for defendant to question the fairness of a trial when (the prosecutor) becomes a witness for the state. Therefore, he should, when that becomes necessary, so conduct himself as to foster and demonstrate the fact that he is not actively participating as a prosecutor, but only as a witness, truthfully and impartially giving competent testimony.’ Frank v. State, 150 Neb. 745, 35 N.W.2d 816.” State v. Hayes, 473 S.W.2d 688, 64 A.L. R.3d 93 (Mo.1971).

This rule has also found expression in the Code of Professional Responsibility of the Alabama State Bar, DR5-102(A) which provides that where a lawyer is a witness for his client, except as to merely formal matters, he should leave the trial of the case to other counsel. See also Canon 19 of the American Bar Association’s Canons of Ethics.

Under the circumstances, allowing the district attorney to continue to prosecute this ease and argue to the jury had the effect of allowing him to violate the rule that it is not permissible for the solicitor to make an emphatic statement that the defendant is guilty of the crime charged. White v. State, 294 Ala. 265, 270, 314 So.2d 857 (1975). “(I)t has never been contemplated or allowed that an emphatic statement by a solicitor, of his own knowledge, could be made to the effect that the defendant is actually guilty of the crime charged in the indictment.” Rowland v. State, 31 Ala.App. 605, 607, 20 So.2d 881 (1945).

In closing argument, the prosecutor also argued his own credibility to the jury—a practice condemned in State v. McCuistion, 88 N.M. 94, 537 P.2d 702 (1975).

So sacred and fundamental is the principle that the jury not be improperly influenced that our Supreme Court has held that it constituted reversible error to allow the Sheriff, who had acted as the bailiff to the jury, to testify as a witness for the State even though there was no testimony of any conversation between the Sheriff and the members of the jury. There the mere “possibility of influence exerted on the jury’s verdict by the sheriff-bailiff was sufficient to deprive the defendant of his right to trial by an impartial jury.” Chancellor v. State, 291 Ala. 413, 282 So.2d 242 (1973).

We fully recognize that the matter of allowing a prosecutor to become a witness is largely within the discretion of the trial judge. However, once the district attorney testifies he should withdraw from the prosecution of that particular trial unless there is some sound and compelling reason which would require his continued service. See State v. Donahue, 315 So.2d 329 (La.1975), where the district attorney was ordered recused because he “was the sole witness of the content of an oral confession which it is acknowledged he will testify to at the trial.”

Our decision is reached only because of the high respect we have for the office of the district attorney and because of our recognition of the power and influence he exerts in the prosecution of a criminal case. Any decision other than the present one seriously jeopardizes and imperils the fact finding process of a trial by jury.

II

We have considerable difficulty with the issue of the probable cause to arrest. There is a conflict in the record as to how many informants were involved and whether a secondary informant received his information from “associates or participants of the offense” or from the brother of co-defendant Larry Stahl. See Stahl v. State, 426 So.2d 909 (Ala.Cr.App.1982).

Although multiple hearsay or hearsay upon hearsay is permissible in establishing probable cause, the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), must be satisfied at each link. State v. Alger, 100 Idaho 675, 603 P.2d 1009 (1979); Dawson v. State, 11 Md.App. 694, 701 f. 3, 276 A.2d 680, 683 (1971); C. Moylan, Hearsay and Probable Cause: An Aguilar And Spinelli Primer, 25 Mercer Law R. (1974); W. LaFave, 1 Search and Seizure, Section 3.3 (1978). “(T)he issue is not the length of the chain but rather whether both prongs of the Aguilar test are met at each level.” United States v. Spach, 518 F.2d 866, 869 (7th Cir. 1975). “(A)n admission transmitted through an informant is only as reliable as its conduit is trustworthy.” Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74, 78 (1978).

On appeal the Attorney General argues that the informant’s information was reliable and satisfied the second prong of Aguilar because it was in such detail. We disagree. “(T)he ‘self-verifying detail’ technique cannot repair a defect in the ‘veracity’ prong.” Moylan at 780. “(I)f the self-verifying detail test is to be utilized at all, it should be used only with respect to the ‘veracity’ prong.” 1 LaFave 546. As explained in Stanley v. State, 19 Md.App. 508, 313 A.2d 847 (1974),

“the ‘self-verifying detail’ technique cannot repair a defect in the ‘veracity’ prong. The notion that great detail implies personal observation rather than the overhearing of barroom gossip, presupposes an honest informant. If the informant were concocting a story out of the whole cloth, he could fabricate in fine detail as easily as with rough brush strokes. Minute detail tells us nothing about ‘veracity’.”

The State’s reliance on Hatton v. State, 359 So.2d 822 (Ala.Cr.App.1977), cert. denied, 359 So.2d 832 (Ala.1978), is misplaced. There we specifically noted that veracity was not in issue. 359 So.2d at 827. See also Vickery v. State, 408 So.2d 182, 186 (Ala.Cr.App.1981).

Because of the ambiguity in the record regarding the number of informants involved and the source of their information, and because this case must be reversed for another reason, we defer judgment on the issue of probable cause to arrest the defendant.

Ill

The defendant argues that his arrest without a warrant violates his rights under the Fourth Amendment as set forth in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Payton must be applied retroactively to all cases still pending on direct appeal at the time Payton was decided. United States v. Johnson, - U.S. -, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). Johnson overrules our decision to the contrary in Clements v. State, 390 So.2d 1131, 1135 (Ala.Cr.App.), cert. denied, 390 So.2d 1136 (Ala.1980).

Although the defendant was arrested at his home there is no evidence that there was any nonconsensual entry into his home in order to effectuate that arrest. Two plain-clothes investigators of the Sheriff’s Office and one auxiliary officer went to the defendant’s residence to “pick him up.” The deputies knocked at the defendant’s door. The defendant answered and the officers identified themselves and told the defendant that they would like to talk to him downtown. The defendant then stepped outside on the front “door stoop”. The defendant stated that he would like to get his jacket. Two of the deputies then followed the defendant inside his house. Besides the defendant and the deputies, there were three other adults present in the living room. No one attempted to prevent the deputies from coming in or objected to their presence inside the house. Deputy Driggers testified that the defendant “agreed to go. I don’t know what the circumstances would have been if he had not agreed to go.”

Other than the mere fact of the officers’ physical presence, there is nothing in their conduct to suggest any element of coercion. As in State v. Anonymous, 37 Conn.Sup. 755, 436 A.2d 789 (1981), the defendant willingly came out of his house onto his front porch. At that time Payton did not apply and its rule protecting against a warrant-less entry into a home was no longer applicable. “Although the porch of a house may be characterized as private under the law of property, it is not usually a place where a person has a reasonable expectation of privacy and the same Fourth Amendment protection (as his home) is not afforded.” Anonymous, 436 A.2d at 793. See also United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

IV

Investigator Delaney should never have been allowed to testify as to what his informants had told him. “(H)earsay allegations of a confidential informant may not be placed before the jury in a criminal case.” Tierce v. State, 396 So.2d 1090, 1093 (Ala.Gr.App.1981). A trial court commits reversible error by permitting a law enforcement officer to testify at trial as to information he was given by a confidential informant. Bowen v. State, 406 So.2d 1077 (Ala.Cr.App.1981). Here, the admission of the hearsay testimony was cured by the action of the trial judge in excluding Delaney’s testimony, instructing the jury to disregard and in polling the jury. Godbee v. State, 56 Ala.App. 174, 320 So.2d 107 (1975); Singleton v. State, 53 Ala.App. 219, 298 So.2d 639, cert. denied, 292 Ala. 749, 298 So.2d 642 (1974).

The judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

The issue upon which this case is reversed — the impropriety of the district attorney’s continuing to prosecute the defendant after he had testified as the State’s witness — was not argued on appeal. Nevertheless, this Court had a statutory duty to examine the record in every appeal for errors “apparent on the record or reserved in the circuit court.” Alabama Code Section 12-22-240 (1975). Since this appeal was filed before January 1, 1982, Rule 45B, ARAP, providing that this Court “shall consider only questions or issues presented in briefs on appeal,” did not apply and review of this case is governed by Section 12-22-240.

It is argued that the district attorney’s testimony was “not essential to the State’s case but rather only cumulative” and that therefore it was within the discretion of the trial judge to allow the district attorney to continue to prosecute after testifying as a witness. We do not think that the action of the trial judge can be insulated from appellate review simply by classifying that act as within the judge’s discretion. M. Rosenberg, Judicial Discretion of The Trial Court Viewed From Above, 22 Syracuse L.Rev. 635 (1971).

The district attorney’s testimony was far more than “merely cumulative.” He testified to additional facts not previously in evidence. It was through his testimony that a nine page handwritten statement was admitted into evidence and read to the jury. This statement contained particulars and explicit details of the robbery and murders, many of which were presented to the jury only through the district attorney’s testimony. This Court has previously recognized the significance of a written confession in “intensifying and magnifying both the substance and effect of (previously admitted) oral statements leaving no doubt of the defendant’s guilt.” Price v. State, 392 So.2d 1242, 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1248 (Ala.1981). See also Hinshaw v. State, 398 So.2d 762 (Ala.Cr.App.), cert. denied, 398 So.2d 766 (Ala.1981). We cannot hold this error harmless. In brief, the Attorney General even states that the district attorney’s testimony “strengthened” the case against the defendant, although maintaining that such testimony was only cumulative.

The fact that both the defendant and the State have requested rehearing on the issues of multiple hearsay and probable cause only serves to illustrate our comment regarding the ambiguity in the record regarding the number of informants involved and the source of their information.

OPINION CORRECTED AND EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


author: BOWEN, Judge.

text:
    Larry D. NORWOOD v. STATE.
    1 Div. 418.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-233.
    Edward Massey of Clay, Massey & Gale, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

Norwood was indicted for assault in the first degree. Alabama Code 1975, Section 13A-6-20(a)(l). A jury found him guilty of second degree assault. Sentence was ten years’ imprisonment.

Norwood alleges that he was sentenced under Alabama’s new statute which enhances punishment for the use of a firearm or deadly weapon. Alabama Code 1975, Section 13A-5-6(a)(5) (effective May 27, 1982). He argues that assault in the second degree already provides enhanced punishment for the use of a deadly weapon in the commission of the assault. This, he contends, violates Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1981), holding that a statute authorizing enhanced punishment for a crime with a firearm may not be applied to a defendant charged with a crime which already carries an enhanced punishment for the use of a weapon.

Busic held that a court must give precedence to a statute which defines the penalties for the use of a firearm in assaulting a federal officer over a statute which authorizes enhanced penalties for the use or possession of a firearm while committing any federal felony. See also Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), holding that a court must give precedence to a statute that enhances the penalty for a bank robbery committed with a firearm over a statute that enhances the penalty for any felony committed with a firearm even though the general statute was enacted subsequent to the specific statute.

The defendant was convicted of assault in the second degree which is a class C felony (Section 13A-6-21(b)) carrying a sentence of “not more than 10 years or less than 1 year and 1 day.” Section 13A-5-6(a)(3).

The 1981 amendment to Section 13A-5-6,. the felony sentencing statute, added subsections (4) and (5). Subsection (5) provides for a sentence of not less than 10 years “for a Class B or C felony in which a firearm or deadly weapon was used or attempted to be used in the commission of a felony.”

Since the defendant was actually sentenced to ten years it is impossible to determine whether he was sentenced to the maximum term of imprisonment for a straight Class B felony (Section 13A-5-6(a)(2)) or whether he was sentenced to the minimum term under the enhancement provision (Section 13A-5-6(a)(5)). The only evidence in this regard occurred at the sentencing hearing and is ambiguous at best.

“MR. MASSEY (Defense Counsel): It’s my understanding from my discussions with the District Attorney that the Court intends or feels that it is impelled to use the enhancement statute—
“THE COURT: —The Court has never made that statement. The only statement that the Court would make for the record is the Court will sentence this defendant pursuant to the applicable laws of the State of Alabama.”

This Court “cannot assume a meaning not expressed by a sentence.” Jarnigan v. State, 222 Ala. 143, 132 So. 50 (1930). “On appeal the judgment of the primary court is presumed to be correct.” Hopkins v. State, 51 Ala.App. 510, 514, 286 So.2d 920 (1973). In reviewing sentences on convictions this Court will indulge all reasonable presumptions in favor of the trial court. Howard v. State, 36 Ala.App. 191, 192, 54 So.2d 87 (1951). “(O)n appeal we presume that the trial court in imposing such sentence acted wholly within the law.” Yates v. State, 31 Ala.App. 362, 363, 17 So.2d 776, cert. denied, 245 Ala. 490, 17 So.2d 777 (1944).

“The oft repeated and universal principle of law that error must affirmatively appear, otherwise the judgment stands, is applicable to this case. It cannot be affirmed that error is manifest here. It is a general rule of wide application that the reviewing court will indulge all reasonable presumptions in favor of the correctness of the judgment from which the appeal is taken for the purpose of sustaining the action of the lower court. 5 C.J.S., Appeal and Error, page 262, Section 1533 et seq.; and as a general rule presumption unfavorable to the judgment and for the purpose of reversing it will not be indulged; moreover, ‘where the record is silent, it will be presumed that what ought to have been done was not only done, but was rightly done.’ 3 Am. Jur. p. 489, section 923.” Robertson v. State, 29 Ala.App. 399, 400, 197 So. 73, cert. denied, 240 Ala. 51, 197 So. 75 (1940).

As a matter of law, this Court cannot review the propriety of a sentence which was within the statutory limits. Butler v. State, 344 So.2d 203, 205 (Ala.Cr.App.1977). “When punishment is imposed within the limits defined by the punishing statute, we have no jurisdiction to review such.” Brown v. State, 392 So.2d 1248, 1265 (Ala.Cr.App.1980), cert. denied, Ex parte Brown, 392 So.2d 1266 (Ala.1981). Although the defendant argues that he was sentenced under the wrong subdivision of the punishing statute, the record does not support his contention.

The record does not show that the defendant was subjected to “double punishment” for the same offense. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ronald Lee FRANKLIN v. STATE.
    2 Div. 329.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-224.

      James B. McNeill, Jr. of Bryant, Edwards, McNeill & Poole, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Alabama Code 1975, Section 13A-8 — 41. Sentence was fifty years’ imprisonment. The defendant presents five arguments for the reversal of his conviction.

I

Although the defendant argues that 11 percent of the veniremen had read newspaper accounts of the crime, there is absolutely no evidence of any actual prejudice against the defendant resulting from any pretrial publicity. The law on this subject is summarized as follows:

“Exposure of jurors to adverse publicity either prior to or during trial may create prejudice and violate a defendant’s right to be tried by an impartial jury. The constitutional standard of jury impartiality does not require, however, that jurors be wholly ignorant of the facts and issues involved in the case. Thus, exposure does not impair the defendant’s right to an impartial jury if the jurors can lay aside any impressions or opinions that result from pretrial media exposure and render a verdict based solely on evidence presented during the trial .... To establish impermissible juror partiality, the defendant must show that pretrial publicity resulted in either actual juror prejudice or pervasive community prejudice.” Eleventh Annual Review of Criminal Procedure: United States Supreme Court And Courts of Appeal 1980-1981, 70 The Georgetown Law Journal 680-81 (1981) (footnotes omitted).

“Extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair.” Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977). Since the defendant did not prove, actual juror prejudice or attempt to show that the community was saturated with prejudicial articles, his motion for a change of venue on the basis of inflammatory and prejudicial pretrial publicity was properly denied. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Mayola v. Alabama, 623 F.2d 992 (5th Cir.1980); Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), affirmed, 391 So.2d 677 (Ala.1980).

II

The defendant had no constitutional right to counsel at a post arrest lineup for the reason that adversary judicial proceedings had not been initiated. Lomax v. Alabama, 629 F.2d 413, 415 (5th Cir.1980), cert. denied, 450 U.S. 1002, 101 S.Ct. 1712, 68 L.Ed.2d 205 (1981). The right to counsel established in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), applies only to post-indictment corporeal identification procedures.

III

We have examined the photographic identification procedure and find that neither the photographs themselves nor the manner in which they were displayed were suggestive or created any risk of misidenti-fication. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Nicholes k State, 409 So.2d 454, 455 (Ala.Cr.App.1982); Griffin v. State, 356 So.2d 723 (Ala.Cr.App.), cert. denied, 356 So.2d 728 (Ala.1978).

IV

Sergeant Newell’s testimony concerning the victims’ identifications of the defendant at a pretrial photographic lineup constituted a well recognized exception to the hearsay rule and was properly admitted. Ferguson v. State, 401 So.2d 204, 207-08 (Ala.Cr.App.), cert. denied, 401 So.2d 208 (Ala.1981); Abercrombie v. State, 382 So.2d 614 (Ala.Cr.App.), cert. denied, 382 So.2d 616 (Ala.1980).

Any error in the admission of the statements of the victims identifying the defendant was rendered harmless where the victims subsequently testified and were subjected to cross examination. See Love v. State, 377 So.2d 8 (Ala.Cr.App.1979); Stokes v. State, 13 Ala.App. 294, 69 So. 303 (1915); Rule 45, A.R.A.P. The admission of these statements was also harmless where Sergeant Newell had already testified to their contents without objection. Allen v. State, 390 So.2d 676 (Ala.Cr.App.1980). The statements only contained a brief statement of which photograph each witness selected and, after Sergeant Newell had related their contents to the jury, we fail to see how the admission of the written statements could have prejudiced the defendant.

V

After an examination of the record, we are not persuaded that the State failed to prove a proper chain of custody for the admission of fingerprints and related exhibits. To warrant the reception of an object in evidence against a proper objection, it is not necessary that the chain of custody be proved to an absolute certainty, but rather to a reasonable probability, that the object is the same as, and not substantially different from the object as it existed at the beginning of the chain. Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert. denied, 346 So.2d 1180 (Ala.1977).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Marshall Harris COGMAN v. STATE.
    3 Div. 512.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-209.

      James R. Cooper, Jr. of Cooper & Cooper, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was sentenced to imprisonment for life pursuant to the Habitual Felony Offender Act. Due notice was given that the State would proceed under the Act after his conviction in the instant ease. A hearing was conducted in which it was shown that appellant had been previously convicted of three felonies. The felony in the instant case, attempt to commit rape in the first degree, is a Class B felony, Alabama Criminal Code § 13A-4-2(d)(2). “On conviction of a Class B felony” the defendant “must be punished for life in the penitentiary” if he has been previously convicted of any three felonies and, after such conviction, has committed another felony. Alabama Criminal Code § 13A-5-9(c)(2). No issue raised by appellant pertains to the extent of defendant’s punishment, and we find no basis for such an issue.

One method of committing rape in the first degree is thus defined by the Alabama Criminal Code:

“§ 13A-6-61. Rape in the first degree, “(a) A male commits the crime of rape in the first degree if;
“(1) He engages in sexual intercourse with a female by forcible compulsion..."

In reference to an issue raised by appellant questioning the sufficiency of the evidence to sustain the charge of attempted rape in the first degree, we summarize the evidence directly bearing on that issue. The alleged victim testified that during twilight some time between 4:00 A.M. and 5:00 A.M. April 25, 1981, the defendant entered the home of the victim, soon after he had knocked on a window thereof and was told by her to leave, went to her bedroom while she was on her bed, got on top of her and pulled at her underwear. She said she attempted to pull his hair, “to make him get off of me, but he wouldn’t” and that he choked her while on the bed and thereafter left the house without having consummated an act of sexual intercourse. At the time she was a seventeen-year-old female living in a house with her mother, her baby, her brother and a man by the first name of Tom, whose status as one of the same household was not precisely shown by the evidence. An investigator for the Montgomery Police Department testified that on the evening of April 25,1981, he obtained a signed typed statement from the defendant, which included the following:

“On 4/24 of ’81, at about 8:50 P.M., I took a taxi to the Foxy Lady’s Social Club which is on Maxwell Air Force Base. I was by myself and I stayed until it closed. That was about one A.M. or two A.M. A fellow named [name omitted at this time], carried me to the corner of Oak and Jeff Davis and dropped me off. The next thing I remember is that me and another fellow got together and drank some wine. The next thing I remember was getting up this morning. I was in the house that is about three houses down from my mother’s. I heard the fellows that were at the house ask me — wait a second. The fellows that were at the house I woke up in asked me how I got the scratches on my face and I did not know.
“Question: Do you remember seeing [sic] Do you remember going to [the victim’s] house?
“Answer: No.
“Question: How often do you go to [where the victim lived]?
“Answer: Lately I’ve been going around there every day.
“Question: What would you do while you were over there?
“Answer: Just talk and drink.”

The defendant had entered a plea of not guilty and a plea of not guilty by reason of insanity. The court submitted to the jury the issue raised by each of said pleas and included in its oral charge the question whether defendant was so intoxicated at the time of the alleged offense that he didn’t have the specific intent to commit the crime of rape.

The evidence as a whole is strong, and clearly and understandably convincing to the jury, that defendant did that which the victim said he did while she was lying in her bed. The extent of any intoxication of defendant and whether or not he intended to rape the alleged victim became issues for the triers of fact, the jury, to determine. The evidence was sufficient to sustain their verdict, even without consideration of a previous threat by defendant that he was going “to rape” the alleged victim, which appellant insists was inadmissible evidence against him, and which insistence we now consider.

Appellant correctly states in his brief that on “two occasions during the course of the trial, the state introduced evidence of a prior statement attributed to the appellant in which he said he was going to rape” the alleged victim. Appellee seriously questions the preservation by defendant of the reviewability of the action of the trial court in allowing such evidence to be introduced, but we need make no determination of that question at this time for the reason that we think it clear that the evidence was admissible. Appellant relies chiefly upon Davis v. State, 21 Ala.App. 231, 106 So. 874 (1926), in which the trial court was reversed for the admission in evidence over the objection of defendant, of a statement made by defendant the day before the alleged commission of the crime of an assault with intent to rape, of which he was convicted in the case then under review. Appellant quotes from the opinion in the case, in which it is stated at 106 So. 875:

“The remark attributed to defendant on the day previous to the alleged assault, expressive of a sensual desire with respect to prosecutrix, while reprehensible in the extreme, was not of the res gestae, and is not admissible in evidence, either as an admission of guilt or as a threat. Powe v. State, 19 Ala.App. 215, 96 So. 370. On account of its character its admission in evidence was injurious to defendant’s rights.”

We do not agree with appellant that, “The facts there [Davis v. State, supra ] and before this Court are the same.” The statement of the defendant in Davis v. State, supra, was not a threat; in the instant case it was a threat. According to Gamble, McElroy’s Alabama Evidence, § 44.02(1) (1977):

“In a charge of homicide or assault, a threat by the accused to kill or injure the victim is admissible as tending to show a design in the accused to commit the crime and, hence, as tending to show his commission of the crime. Some courts have held such threats admissible as tending to show malice or intent on the part of the accused. The remoteness of the threat by the accused would appear to have no effect upon its admissibility. The threat is admitted no matter how much time has elapsed between it and the homicide or assault.”

We find no error in any of the actions of the trial court in admitting evidence of defendant’s threatening words or conduct directed at the alleged victim.

The only other issue raised by appellant challenges the constitutionality of Alabama Criminal Code 13A-6-61 by reason of its claimed “male only gender based discrimination.” We again reject such contention for the reasons stated in a thorough discussion of the question by Judge Tyson in Smith v. State, Ala.Cr.App., 409 So.2d 455 (1982), in which it was definitely held at 409 So.2d 461:

“It is our decision that § 13A-6-61, Code of Alabama 1975, is not unconstitutional due to its alleged discriminatory treatment of males because the punishment prescribed therein was reasonably designed to deter and control a specific and serious problem of legitimate concern to the citizens of this state.”

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.