text:
    Sadie MOSS, Lagean Gray, Windle Moss, Edd Moss, Gerald Moss, Lucy Moss, Vernon Moss and Marvin Speight Moss v. Mary Lula MOSS, Lena Moss Brooks, Bertha M. Turner, Lemon T. Moss and Annie Lyde McAnulty.
    Civ. 3172.
    Court of Civil Appeals of Alabama.
    July 7, 1982.

      Henry Sanders of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    Nathan G. Watkins, Jr. of Pruitt, Pruitt, Watkins & Robinson, Livingston, for appel-lee.
   BRADLEY, Judge.

This is a will construction case.

Edd Moss, Sr. died in 1946, leaving a will devising all of his property to his nine children. The will divided the nine children into two groups. The first group was composed of three of his sons, Johnnie Winston Moss, Edd Moss, Jr., and Maxie Moss, who had remained with the testator and helped him work the property. The second group was composed of the testator’s remaining six children, most of whom had found the means to financially support themselves. The testator’s will provided in pertinent part:

After giving considerable thought to the manner of making proper provision for my four said children, it is my will and desire, and I do hereby will, devise and bequeath unto my son[s], Johnnie Winston Moss and Edd Moss, Jr., and Maxie Moss all of the rest, residue and remainder of my estate, real personal and mixed, of every nature, kind and description, wheresoever situate, of which I may die seized and possessed, or to which I may be entitled at the time of my decease; to have and to hold the same unto my three said sons, Johnnie Winston Moss and Edd Moss, Jr., & Maxie Moss, for and during the term of their natural lives and at the death of the survivor, the remainder of my estate shall be divided equally between my other six children. Should either of said children be deceased at the death of the survivor of my three said sons, Johnnie Winston Moss and Edd Moss, Jr., & Maxie Moss, leaving children or other heirs, then the children or other heirs shall receive the respective share of my estate which my said deceased child would have received if living.
... It is my intention that my sons, Johnnie Winston Moss and Edd Moss, Jr., and Maxie Moss shall have the use of my real estate during the remainder of their lives as herein set forth; they shall also have the right and privilege of using and disposing of any of the personal property which I own at the time of my decease in any manner they so desire, but such personal property as they have at the death of the survivor of them, which came from my estate, shall pass to my other children or their heirs equally as herein set forth.

According to the provisions of the will, Johnnie Winston Moss, Edd Moss, Jr., and Maxie Moss received a life estate in the testator’s property, and upon the death of the survivor of the three, the remainder was to pass to the testator’s other six children equally.

Of the six remaindermen, one was an unmarried daughter. The will instructed the three life tenants to support the daughter, and provided that if the daughter should survive the three life tenants, she would receive “her undivided one-sixth interest” in the estate along with the other remaindermen.

The plaintiffs in this case are the surviving members of the group of remaindermen under the will, and the descendants of the deceased members of that group. Defendants are the widow and children of Edd Moss, Jr., one of the three life tenants (all of whom are now deceased).

On October 14, 1980 plaintiffs filed an unlawful detainer/ejectment action against defendants, alleging that defendants had unlawfully taken possession of the property designated under the will and had cut timber from the land for their own benefit. The complaint was later amended to include a count for conversion. On May 21, 1981 defendants filed a counterclaim, alleging that the will of Edd Moss, Sr. was ambiguous and unclear in that it could be erroneously construed to exclude the descendants of the three life tenants from sharing in the remainder interest. The counterclaim further alleged that it was the testator’s intention to provide for all of his grandchildren, including the descendants of the life tenants, and that since the will did not clearly express that intention, a constructive trust should be imposed in favor of the descendants of Edd Moss, Jr.

Plaintiffs thereafter filed a motion for summary judgment on the counterclaim. The motion was denied. The trial court thereafter took briefs and heard oral arguments on the counterclaim and objections thereto. The court finally determined that the will was not ambiguous, and that the property in question was owned jointly by the six remaindermen.

Plaintiffs thereafter filed a motion for summary judgment on the remaining issues in the complaint. The trial court granted a limited summary judgment on the fact of defendants’ possession of the land in question and awarded plaintiffs the property in question, but reserved the remaining issue of damages for decision at trial. The case was submitted on a stipulation of facts, and on February 16, 1982 the court rendered a judgment incorporating the limited summary judgment awarding the property to plaintiffs, and granting to plaintiffs the stipulated sum of $5,228.51 in damages. Defendants appeal from that judgment.

Defendants contend on appeal that the trial court’s ruling that the will of Edd Moss, Sr. was not ambiguous was error. Defendants maintain that the testator intended to benefit all of his grandchildren, including the descendants of the three life tenants, and to the extent that the will does not express that intention, it is ambiguous. They offer in support of that argument the affidavit of Sadie Moss, the widow of Edd Moss, Jr., stating that the testator had expressed such an intention in her presence. Defendants further argue that since the will is ambiguous, the trial court erred in failing to impose a constructive trust in their favor.

We cannot agree with defendants’ argument. The testator’s will clearly provides that Johnnie Winston Moss, Edd Moss, Jr., and Maxie Moss were to take a life estate in the property, with the remainder interest to be “divided equally between my other six children” (emphasis ours). The will further provides that if any of the “said children” should be deceased “at the death of the survivor of my three said sons,” then the descendants of the “said children” shall receive “the respective share of my estate which my said deceased child would have received if living.” The language of this provision clearly excludes the descendants of the three life tenants from sharing in the remainder interest. Our finding is further supported by the language in following paragraphs stating that the unmarried daughter should receive “her undivided one-sixth interest” (emphasis ours) in the estate provided she survived the life tenants.

We are aware, as defendants point out, that the intention of the testator is the controlling factor in will construction cases. Robertson v. United States, 310 F.2d 199 (5th Cir.1962); Rowe v. Newman, 290 Ala. 289, 276 So.2d 412 (1972). However, that intention is to be gleaned from the four corners of the will, Rowe v. Newman, supra, and when the will is unambiguous and clearly provides for the orderly distribution of the testator’s estate, as it does in the present case, the court cannot look beyond the provisions of the will in order to effect a different result. Gotlieb v. Klotzman, 369 So.2d 798 (Ala.1979).

We therefore affirm the judgment of the trial court finding that the will of Edd Moss, Sr. was not ambiguous, and that plaintiffs were entitled to the property in question. Since we find that the will is not ambiguous, we find no reason to impose a constructive trust in favor of defendants.

Defendants make some mention in brief that the trial court’s grant of a limited summary judgment on the issue of defendants possession of the land was erroneous. It does not appear that defendants contest the court’s finding that they were actually in possession of the land, but rather they contest the finding that the possession was unlawful. In light of our decision on the first issue, we must affirm the grant of the limited summary judgment on the issue of possession, since upon the death of the life tenant his descendants have no right or interest in the property in question. The continued possession by the descendants of the deceased life tenant was, therefore, unlawful.

For the foregoing reasons the judgment is affirmed.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Grady C. HOLT, individually, and Arfor Brynfield, Inc., a corporation, d/b/a The Squash Blossom v. DAVID G. STEVEN, INC.
    Civ. 3187.
    Court of Civil Appeals of Alabama.
    July 7, 1982.

      Robert M. Shipman, Huntsville, for appellants.
    Lee R. Benton of Denaburg, Schoel, Mey-erson, Ogle, Zarzaur & Max, Birmingham, for appellee.
   BRADLEY, Judge.

This is an appeal by defendants in a lawsuit commenced in August 1980, involving a sum of money allegedly due on open account and due by the issuance of worthless checks. The issues here involve only the question of whether the trial court abused its discretion in imposing a default judgment as a sanction under A.R.C.P. 37 for defendants’ failure to comply with the court’s discovery orders, and whether the court abused its discretion in refusing to set aside that default judgment on defendants’ motion.

The record indicates that the complaint was filed on August 14, 1980 in the Jefferson County Circuit Court. The case was later transferred to Madison County, and defendants answered on January 20, 1981, pleading the general issue and filing a counterclaim. A pretrial conference was held on January 13, 1981, and a default judgment was entered against defendants for their failure to appear. On motion by defendants, this default judgment was set aside on January 16, and a new pretrial conference was set.

Pursuant to plaintiff’s motion to dismiss, the court at the new pretrial conference ordered defendants to amend their counterclaim to state specific allegations. Defendants were allowed ten days in which to amend the pleadings. The pleadings were not amended within the proper time limit, and plaintiff’s subsequent motion to dismiss was granted on June 3, 1981. No reason for defendants’ failure to amend was given.

Plaintiff thereafter served upon defendants a set of interrogatories and requests for production of documents on November 5,1981. Defendants failed to respond within the allotted time period, and plaintiff moved to compel those responses. The motion to compel the responses was granted on December 10, 1981, and the court ordered defendants to answer the interrogatories and produce the requested documents within fifteen days. Defendants still made no response, and on December 30, 1981 plaintiff filed a motion for sanctions pursuant to A.R.C.P. 37.

Defendants filed a response to plaintiff’s motion for sanctions, requesting that the court deny the motion, and alleging that Holt, the individual defendant, had had physical problems which justified the delay; that Holt had recently moved his business from one location to another and was having problems getting his mail forwarded to his new address; and that counsel for defendants had had problems in communicating with defendants concerning the lawsuit.

A hearing on plaintiff’s motion for sanctions was held on January 25, 1982. The transcript of the hearing indicates that defendants, although informed of the time and place of the hearing, were late in arriving. During the hearing the court was apparently in possession of a copy of plaintiff’s propounded interrogatories. Penciled in the margin of this copy were several purported answers to the interrogatories, placed there by defendant Holt. Statements of counsel, and testimony by Holt, indicated that the fault of defendants’ failure to respond rested not with defendants’ counsel, but with defendants themselves. Holt’s testimony during the hearing confirmed the allegations contained in defendants’ response to the motion for sanctions. There appears to have been no attempt to produce answers to the interrogatories at the hearing.

The court rendered an order on plaintiff’s motion for sanctions, finding that:

[T]he plaintiff had previously filed a motion for sanctions against the defendants based upon the failure of the defendants to answer the interrogatories and to respond to the request for production of documents forwarded to those defendants on November 3,1981, and it appearing to the Court that on December 10, 1981, this
Court entered an order requiring the defendants to answer the interrogatories and respond to the production of documents within 15 days or be subject to sanctions as allowed by law and it further appearing to the Court that the defendants have failed to respond to the interrogatories in the manner provided by law and presently [fail] to answer the interrogatories as required by law, this Court is of the opinion that a default should be entered in favor of the plaintiff and against the defendants.

Plaintiff was granted leave to submit an affidavit supporting his claim for damages. Affidavits were submitted by plaintiff; defendants filed no response. A final judgment of default was entered against defendants on February 12, 1982 granting to plaintiff the sum of $9,996.91 in damages plus costs.

Defendants thereafter filed a motion to set aside the default judgment, requesting a new hearing on the matter. The court denied defendants’ motion, and defendants appeal.

Rule 37, A.R.C.P., expressly provides for the imposition of sanctions in appropriate circumstances. The rule provides in pertinent part:

(b) Failure to Comply with Order.
(2) Sanctions by Court in Which Action is Pending. If a party ... fails to obey an order to provide or permit discovery, .. . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

The application of the sanction of judgment by default for failure to comply with discovery orders is the most severe sanction which a court may apply. Ultracashmere House, Ltd. v. Meyer, 407 So.2d 125 (Ala.1981). However, the imposition of such a sanction can be justified in appropriate circumstances. The Alabama Supreme Court has held that “wilfulness” on the part of the party failing to comply with a discovery order is a key factor for the imposition of the sanction of dismissal or entry of a default judgment. Weatherly v. Baptist Medical Center, 392 So.2d 832 (Ala.1981). Judicial discretion must be carefully exercised to assure that the situation warrants the imposition of a default judgment. Ultracashmere House, Ltd. v. Meyer, supra.

Viewing the conduct of defendants during the course of the present case, we find no abuse of discretion in the trial court’s entering a default judgment against defendants. A default judgment had previously been entered against defendants for failure to attend the first pretrial conference. Defendants also failed to amend the pleadings on their counterclaim, although they had been allowed additional time to do so; no excuse for their failure was offered, and the counterclaim was dismissed. Defendants clearly violated the court’s discovery order of December 10, 1981 by failing to respond to plaintiff’s interrogatories and requests to produce. At the hearing on plaintiff’s motion for sanctions, defendants were late in attending the proceeding, apparently with no excuse. Defendant Holt offered several excuses for his failure to comply with the order, none of which appeared to satisfy the court.

Furthermore, as of the date of the entry of default, it appears that no response to the interrogatories and requests to produce had been forthcoming. The court specifically found that the penciled statements written on a copy of plaintiff’s interrogatories “[did] not comply with the rules of civil procedure for the State of Alabama,” and did not constitute a proper response.

The above evidence would certainly justify the conclusion that defendants apparently had no intention of complying with the court’s discovery order. The fault for the failure to respond rests upon defendants themselves, not upon defendants’ counsel. The trial court could properly have found that defendants’ conduct was sufficiently contumacious to justify the imposition of the severe sanction of a default judgment. When a defendant’s conduct has been dilatory and contumacious, an appellate court should refuse to set aside such a default judgment. Ultracashmere House, Ltd. v. Meyer, supra.

Defendants next argue that the trial court abused its discretion in failing to set aside the default judgment on defendants’ motion. Setting aside a judgment of default rests with the sound discretion of the trial court. An appellate court will not overturn the trial court’s grant or refusal unless there is a clear abuse of discretion. Wade v. Pridmore, 361 So.2d 511 (Ala.1978). As we stated above, we find no abuse of discretion in the imposition of the sanction. To now set aside the order of the court would be to condone the conduct of defendants in refusing to comply with a discovery order. Defendants have shown no indication that they are willing to comply with the order. We find no abuse of discretion in the court’s refusing to set aside the default.

Defendants also mention in brief that the issue of damages in a default situation should have gone to the jury, since defendants had previously appeared in the action and demanded a jury trial. We cannot agree. Rule 55(b)(2), A.R.C.P., provides:

If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury pursuant to the provisions of Rule 38.

Under former practice, before the rule was adopted, if the defendant had previously appeared in the action and demanded a jury trial, there was no method of nonjury determination upon the defendant’s default. See Comments to A.R.C.P. 55. However, with the implementation of rule 55, a default is treated as a waiver of a prior jury demand. Id.; see also Comments to A.R.C.P. 38.

Accordingly, defendants have waived their right to jury trial upon the issue of damages.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: WRIGHT, Presiding Judge.

text:
    Karen Elaine VINSON v. AGAPE OF CENTRAL ALABAMA, INC.
    Civ. 3200.
    Court of Civil Appeals of Alabama.
    July 7, 1982.
    Charles M. Law, Montgomery, for appellant.
    Jamie L. Pettigrew, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

AGAPE of Central Alabama, Inc. filed a petition for permanent custody of Conrad Dillon Vinson on November 12, 1981. The child, born October 26, 1981, was only two and one-half weeks old at that time. Counsel for the child’s mother, Karen Elaine Vinson, was appointed November 13, 1981, as was a guardian ad litem for the child. A hearing on the merits of the petition was held on February 17, 1982. The evidence revealed the following:

Karen is twenty-five years old, and has experienced four pregnancies. The first two pregnancies ended in abortion; the third resulted in a son, Todd, who has been legally adopted by his maternal grandparents; and the fourth pregnancy resulted in a son, Conrad, the subject of this litigation. The identity of the father does not appear. Karen has been on drugs, including marijuana, alcohol and angel dust, and was sexually promiscuous. She is unable to provide for herself and has no job skills.

During her pregnancy with Conrad, Karen was referred to AGAPE, an adoption-related agency, by a church group and, apparently, by her mother. Mrs. Plunkett, an AGAPE social worker, initially visited Karen in Dothan in July 1981. Karen was approximately six months pregnant at that time. AGAPE secured foster home care for her at a private home in Letohatchee. She stayed there briefly — about a month and a half — and was then placed in a foster home in Millbrook until the child’s birth. Subsequent to her release from the hospital, Karen resided briefly with her parents. On November 29, 1981, she returned to the Montgomery area to live in the Elks Memorial Center and enroll in the Vocational Rehabilitation Service’s program. AGAPE was apparently instrumental in her acceptance both at the Center and in the rehabilitation program.

Mr. Pugh, director of AGAPE, testified, in part, that he had made little progress with Karen since AGAPE began working with her. He said that her behavior was agitated and she lacked the emotional stability to care for a child. Additionally, he stated that she has no financial resources, her plans were unrealistic, and that she quickly changed from one line of thought to another. Mrs. Plunkett, the AGAPE social worker, testified, in part, that Karen changed her mind often about placing the baby for adoption. Mrs. Vinson, appellant’s mother, stated that her daughter was not capable of taking care of Conrad and that there are times when Karen can’t “think straight.” She said that Karen became physically violent toward her while she was driving her home from Montgomery. The episode continued at home until Karen voluntarily called the police to come and get her. Mrs. Vinson testified that she could not take this child, as she did the first, and that Karen could not return to her home until her attitude and conduct improves. Miss Fitzgerald, a state vocational rehabilitation counselor, stated that Karen has made little progress in the state program. She said Karen is in “extended evaluation to determine her vocational potential.” Mrs. Hogan, with whom Karen lived prior to Conrad’s birth, testified that her behavior was unpredictable.

Karen testified that she was under pressure by her parents and AGAPE to allow her child to be placed for adoption. She also said she was unsure about adoption. She admitted to former drug and alcohol use and that she did not act responsibly toward Todd, her first child. She said it was wrong for her mother to have taken her first child. She wants to get married and to work, but has no chosen vocation. She feels it would be in her child’s best interest to be with her.

At the conclusion of AGAPE’s case, Karen’s counsel moved for directed verdict on the basis that AGAPE failed to prove its case. The motion was denied. On February 18,1982, the trial court terminated Karen’s parental rights and awarded permanent custody of the child to AGAPE for permanent placement. A motion for reconsideration was denied. She appeals.

The issues raised in this appeal are: (1) whether the trial court erred in denying appellant’s motion for directed verdict; and (2) whether the trial court’s decision was contrary to the law and evidence presented at the hearing.

Where a case is tried without a jury, the proper procedure upon the ground of insufficient evidence is a motion for dismissal or for judgment, not a motion for directed verdict. See Quick v. Director of State of Alabama Department of Industrial Relations, 398 So.2d 312 (Ala.Civ.App.1981).

A natural parent has a prima facie right to custody of his or her child. In re Palmer, 387 So.2d 215 (Ala.Civ.App.1980). This right is protected by due process standards of the Constitution. Pendergrass v. Watkins, 383 So.2d 851 (Ala.Civ.App.1980). Parental rights, however, are not absolutely controlling and must bow to the paramount principle in custody suits — the best interests of the child. In re Palmer, supra; Wambles v. Goppage, 333 So.2d 829 (Ala.Civ.App. 1976). It is presumed that the child’s best interest will be served by placing it in the custody of the natural parents. Ely v. Casteel, 341 So.2d 730 (Ala.Civ.App.1977). To remove a child from parental custody, it must be shown by clear and convincing evidence that to remain with the parent would be contrary to the child’s best interest. Ely, supra at 734.

We are of the opinion that AGAPE met this burden. Clearly, the best interests of the child do not rest with its mother. She is shown to be incapable of supporting herself, much less providing for the care, protection and control of an infant. She is shown to have no place to rear the child, no skills to hold a job and no particular aim in her plans for the future.

Termination of parental rights is, indeed, a drastic step. However, where there is legal evidence to support a trial court’s decree, we may not substitute our judgment for that of the trial court. This case was heard ore tenus and is not plainly wrong. We feel the trial court correctly denied the motion to dismiss, and that its final decision was not contrary to the law or evidence.

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Rebecca LANG v. Jerry Wayne LANG.
    Civ. 3216.
    Court of Civil Appeals of Alabama.
    July 7, 1982.

      Margie Keener Carnes of Legal Services Corp. of Alabama, Gadsden, for appellant.
    Will Beard of Beard & Beard, Gunters-ville, for appellee.
   HOLMES, Judge.

This is a child custody modification case.

The Circuit Court of Marshall County denied the mother’s petition to modify a prior custody decree and the mother appeals. We affirm the order of the trial court.

The mother and father were divorced in 1978. Pursuant to the terms of a separation agreement incorporated into the divorce decree, the mother was awarded custody of the parties’ son and daughter, now ages nine and six.

In 1979, the parties filed a joint motion for modification, requesting that the father be awarded temporary custody. The trial court granted the parties’ joint motion. The children alternated living with the father in Alabama and the mother in Kentucky during 1979 and 1980.

In September, 1980, the mother petitioned the trial court to again make the mother the custodial parent. After a hearing in October 1980, the trial court denied the mother’s petition and ordered that temporary custody remain in the father. The trial court, in its 1980 order, provided for a review of the custody issue in the fall of 1981.

In October, 1981, the trial court held another ore tenus hearing to determine who should have custody of the parties’ minor children. The record from the 1981 hearing reveals the following pertinent facts:

Both the mother and father have been remarried for more than a year. The mother and her new husband have had at least five addresses in three different states since the 1980 hearing. The mother currently resides in Michigan in a three bedroom home.

The father and his current wife have a new baby. The father’s wife also has a child by a prior marriage. The father owns a four bedroom home.

The two minor children involved in the instant action visited the mother in Michigan during 1981. The son, playing with neighborhood children without adequate supervision, joined his friends in vandalizing a school. While the children were visiting in Michigan, the mother and her husband moved to three different residences.

The father has been on probation for almost two years after being convicted of transporting liquor. The record reflects, however, that the father and his new wife are active in community affairs and participate in many volunteer projects at the elementary school attended by the minor children.

The principal of the school testified that the minor children are well-adjusted and present no disciplinary problems. The principal commended the father’s participation in school activities.

The father’s new wife readily admitted that she has spanked the two minor children. The new wife, however, refuted the mother’s contentions that the children had been beaten. The evidence reveals that the father’s current wife serves as homeroom mother and helps the minor children with their homework.

The minor son and daughter both testified that they wanted to live with the mother. The minor son also indicated that he wanted to live with his father and that he loved both of his parents.

With this evidence before it, the trial court determined that the father had exercised reasonable care, custody and control of the two minor children since the 1980 hearing. The trial court ordered that custody remain in the father, and specified the visitation rights of the mother.

The mother’s motion for a new trial was denied and this appeal followed.

The mother’s contentions on appeal are that the trial court improperly weighed the evidence in considering the best interests of the children and that it was an abuse of discretion to award custody to the father. We disagree.

We note at the outset that the question of modification of a child custody decree is vested in the sound discretion of the trial court. Jenkins v. Jenkins, 395 So.2d 1045 (Ala.Civ.App.1981). The party seeking modification has the burden of proving a material change in circumstances since the last custody decree which has so affected the best interests and welfare of the children as to require a change in custody. Hallford v. Hallford, 390 So.2d 295 (Ala.Civ.App.1980). The trial court’s judgment after hearing the evidence ore tenus will not be set aside unless it is so contrary and unsupported by the evidence as to appear clearly adverse to the best interests and welfare of the children. Reaves v. Reaves, 399 So.2d 311 (Ala.Civ.App.1981).

We cannot say on the facts of the instant action that the trial court abused its wide discretion. As noted by the trial court, neither the mother nor father are ideal parents. The trial court concluded that the mother’s transience would be more detrimental to the children than any of the father’s parental imperfections. Although the father has a felony conviction and his wife is a disciplinarian, they have provided the two minor children with a stable homel-ife. The evidence supports the trial court’s conclusion that it would be in the best interests of the children to remain with the father.

The expressed preferences of the nine year old son and six year old daughter to live with the mother were not binding upon the trial court. Ashley v. Ashley, 383 So.2d 861 (Ala.Civ.App.1981). While the wishes of a child of sufficient judgment may be considered in awarding custody, they are not a controlling factor. Garrison v. Kesek, 406 So.2d 953 (Ala.Civ.App.1981).

We find no abuse of discretion in the trial court’s determination that the father should continue to have custody. The order of the trial court is affirmed.

AFFIRMED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Rodney RICHBURG v. STATE.
    6 Div. 660.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied April 20, 1982.
    Certiorari Denied, July 23, 1982 Alabama Supreme Court 81-639.

      James M. Jolly, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of robbery in the first degree of Thomas J. Wilson. The court fixed his punishment at imprisonment for seventeen years and sentenced him accordingly.

According to the testimony of the alleged victim, a farmer, he was in the Ensley area of Birmingham on May 23, 1980, selling vegetables and meat from a pickup truck with a camper on it. While he was in the vicinity of Avenue G and Thirteenth Street, two men whom he had not previously known, talked with him in concert about buying some of his produce. One was the defendant. The other was called “Chaverist.” The witness continued:

“Q. What if anything did you say to Richburg and the other man?
“A. Before — before this time, I had told them — when they had asked and told me their grandmother wanted some greens, and they wanted a ride, I told them I hoped they didn’t plan anything bad because I had a loaded gun.
“Q. What did they say? What did Rich-burg say?
“A. He said ‘Oh, we wouldn’t do anything like that.’
“Q. What did the man in the yellow T-shirt say?
“A. He didn’t say anything.
“Q. Now, when the discussion was had to go down to the grandmother’s house to take some greens down there, who asked you about that?
“A. Richburg.”

The three proceeded in the truck, with the victim driving, for several blocks to a place which one or both of the other two men indicated to the victim was near the home of the “grandmother,” where the truck was stopped and, according to the testimony of the victim, the following occurred:

“A. I went to the front of the truck, picked up a bundle of greens, and I handed it to Chaverist and asked him how did this one look, if it looked all right. And I laid it in his hands and when I did he came out from under the greens with a gun.
“Q. And this is the man with the yellow T-shirt?
“A. Yes.
“Q. All right. Now, what did he say to you then?
“A. He said, T want your money.’
“Q. Let me ask you this. When you got out of the truck, the man with the yellow T-shirt had the greens in one hand and the gun pointed at you, what happened next?
“A. He said T want your money.’ And I said ‘Oh, my goodness.’
“Q. How was he holding the gun?
“A. He had the gun pointed at me.”

In further stating and describing what occurred, the witness testified that Chaverist “shot twice into the vegetables,” turned and shot the victim in the leg and that the victim gave Chaverist some money. The victim’s testimony continued as follows:

“A. I estimate I gave him ten to fifteen dollars at that time. And he said ‘You have got more than this, I want the rest of it.’
“Q. You have got to continue to speak up, Mr. Wilson, I am having a hard time hearing you standing right over here. “Now, what did this man with the gun do or say next?
“A. He said T want the rest of it.’ And I handed him a little money. And he shot — he said — he said, T know you have got more’ and he shot into the vegetables.
“Q. Who said, T know you have got more?’
“A. Chaverist.
“Q. The man in the yellow—
“A. The man who had the gun.
“Q. Now, the money you gave him the first occasion, that ten to fifteen dollars, was that United States currency of America?
“A. Yes, it was.
“Q. Now, at that point, how many shots had been fired?
“A. Four had been shot after he — after I gave — after he had demanded more and shot again, that was four shots.
“Q. Now, where was Richburg at this point?
“A. He was still out in the street.
“Q. What happened next?
“A. Chaverist, after he had shot the fourth time, he got off of the tailgate and turned the gun towards my head and then turned it towards my chest and then turned the gun down and shot in the ground, and he was demanding more money.
“Q. Did Richburg say anything or do anything at this point?
“A. After the third and fourth shot, Richburg was hollering ‘Shoot him again, he has got more money, shoot him again.’ And when he shot the fifth shot and shot in the ground, I looked past him and — ”

In the lengthy testimony of Mr. Wilson no evidence is to be found to the effect that the defendant had a gun on the occasion or that he exercised any violence against the victim. The victim largely concluded his testimony as to what transpired among him and the other two men as follows:

“Q. Let me ask you next, please, Mr. Wilson, what did you see Richburg and the man in the yellow T-shirt do?
“A. When he shot that time he — I knew it was his sixth shot, and I just started hollering for help. And I didn’t, I thought it’s no use to go ahead for my gun. I turned — when I hollered for help, I turned and they were running down the alley.
“Q. Which alley did they run towards, please, sir?
“A. Well, it was the alley right there behind — between the two streets, two avenues there.
“Q. Let me ask you this. As they ran towards the alley and ran away from you, who was closest to you, the man in the yellow T-shirt or Richburg?
“A. Well, they were both together, just running and I don’t know which one was the closer to me.
“Q. Did you lose sight of them as they went down the alley?
“A. Yes, sir.”

The defendant did not testify, and no witness testified on his behalf, but a lengthy statement made by defendant was introduced in evidence by the State, in which statement defendant denied that he was the person with Chaverist at the time of the robbery.

In challenging the sufficiency of the evidence to support the verdict that defendant was guilty of robbery in the first degree, appellant recognizes that the appellee has made no claim that defendant was the principal in the commission of the robbery but that he was an accomplice. He strongly argues, however, that he was not an accomplice for the reason that the State “failed to show that he intended to assist or aid and abet in a robbery first degree.” He argues particularly that the evidence does not show “that Appellant knew that Chav-erist was armed with a weapon or that he intended to use it in the commission of the robbery.” We conclude that the circumstances as a whole as shown by the evidence, including the joint efforts of Chaverist and appellant to direct the victim to the place where the robbery occurred, the continued presence of appellant in the immediate vicinity of the robbery while it took place, appellant’s directions to Chaverist to shoot the victim again and not to let the victim get to his gun and the flight of appellant and Chaverist in the same direction at the same time, furnished, in our opinion, a solid foundation for the finding that appellant was guilty, as an accomplice of Chaverist, in the commission of a kind of robbery in the first degree, which is defined by Code § 13A-8-41(a)(l) as follows:

“A person commits the crime of robbery in the first degree if he violates § 13A-8-43 and he:
“Is armed with a deadly weapon or dangerous instrument; or

Appellant’s only other insistence on a reversal is that the trial court should have charged the jury on robbery in the second degree and robbery in the third degree. It suffices as an answer to his contention, that defendant did not submit any written charges whereby he requested that the court charge the jury on the subject of robbery in the second degree or robbery in the third degree. Childers v. State, Ala.Cr. App., 338 So.2d 1058 (1976); Reed v. State, 55 Ala.App. 138, 313 So.2d 564 (1975); Adams v. State, 41 Ala.App. 483, 137 So.2d 769, cert. denied, 273 Ala. 703, 137 So.2d 772 (1962). Furthermore, the single issue of fact in the case was as to the identity of the person who was with Chaverist at the time of the commission of the robbery. The settled law in Alabama as to common law robbery prior to the effective date of the present statutory law as to robbery, was that a jury should not be charged as to lesser included offenses of robbery where the only reasonable conclusion from the testimony is either that the defendant is guilty of robbery or not guilty of any crime whatever. Cordial v. State, Ala.Cr.App., 389 So.2d 170 (1980); Williams v. State, Ala.Cr. App., 377 So.2d 634 (1979), cert, denied, 377 So.2d 639; Turner v. State, Ala.Cr.App., 356 So.2d 235, cert, denied, 356 So.2d 237 (1978); Simmons v. State, Ala.Cr.App., 353 So.2d 11 (1977), cert, denied, 353 So.2d 18. It logically follows, we think, that where the evidence permits no reasonable conclusion other than that defendant is guilty of robbery in the first degree as expressly charged or not guilty of any offense whatever, charges as to robbery in the second or robbery in the third degree should not be given. The trial court was correct in limiting its oral charge accordingly.

No error appears in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Vincent WALKER v. STATE.
    6 Div. 696.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied May 18, 1982.
    Certiorari Denied, July 23,1982 Alabama Supreme Court 81-713.

      Mark B. Poison, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The appellant was indicted and convicted for the murder of Terry Dewayne Diayck by shooting him with a shotgun in violation of Alabama Code § 13A-6-2 (Supp.1977). The trial court fixed his punishment at twenty years in the state penitentiary. At arraignment, in the presence of counsel, appellant pleaded not guilty. He is represented on this appeal by the same court-appointed counsel who represented him at trial and has been furnished with a free transcript.

Mary Catherine Diayck testified that the victim in this case was her son. Through her testimony the state established the corpus delicti.

Sergeant Albert Wallace of the Birmingham Police Department testified that he went to an address in Birmingham located at 2332 Tenth Court South, Apartment 7, at approximately 10:20 p.m. on June 23, 1980. Sergeant Wallace observed that the victim had been shot in the forehead and “his head more or less exploded.” He stated that the wound was consistent with wounds inflicted by a shotgun and was of a type reasonably calculated to cause death. Sergeant Wallace identified State’s Exhibit 1, a photograph of the victim, as accurately depicting the body as he observed it.

Billy Limbaugh testified that the victim was his roommate at the above address on June 23; that their apartment was upstairs. Limbaugh stated that he was talking to a girl named Linda on the telephone when he heard a noise at the door. Limbaugh testified that as the victim went to answer the door, the door “was slung open and . . . two black males entered the door with a shotgun.” The man with the shotgun was approximately six feet tall and slender. The other man was shorter and had a medium build. The two assailants directed the shotgun towards the victim and said, “Give me the money, MF.” Limbaugh testified that the victim, who was standing in front of the door, “grabbed the shotgun and tried to take it away from them.” At that point a struggle ensued between the victim and his assailants and “all three of them fell out of the door.” Limbaugh stated that, as he was coming out of his chair by the telephone, he had eye-to-eye contact for a couple of seconds with the shorter man. “I saw a surprised look on his face .... And then he had a dazed look on his face.” Limbaugh testified that, after he had taken two steps, the gun went off. Limbaugh next saw the victim’s body lying in the hallway. “His head was gone, most of it was gone.” The assailants ran from the scene and the police were notified. Limbaugh stated that he could not “positively” identify either of the black males.

On cross-examination Limbaugh testified that the night prior to the killing his truck had broken down in Woodlawn and that three black males had taken him home. They took him home in a light colored Buick. Limbaugh stated that the black males came inside his apartment and he paid them five dollars from his wallet. He estimated there were between three and four hundred dollars in his wallet at the time and that the black males saw the money. Limbaugh “felt like the tall one ... with the shotgun, resembled the driver of the Buick.” He thought that appellant was one of the other black males who had been in the apartment the previous night. Limbaugh also saw a light colored Buick leave the scene after the victim was killed. He heard the two men yell, “We will get you,” as they left in the Buick.

Limbaugh stated that he had made a positive identification of appellant as one of the two assailants on prior occasions, but that he had never been “a hundred percent sure.” Limbaugh reiterated that on the night in question appellant had a “shocked look on his face ... [H]e was surprised to see me coming — standing up and come forth.” Limbaugh admitted that he had been shown photographs at family court a week or two after the shooting, but that he had not identified appellant. He later learned that appellant’s photographs had been included in the group he was shown. Limbaugh testified that he really had not been interested in selecting a photograph at that time because he was under psychiatric care “because of the shock and everything.”

Limbaugh further testified that he met a young woman, Jackie Moore, for the first time the night of the murder. “I saw her in the hallway, downstairs hallway in my apartment.” Limbaugh stated that Ms. Moore was upset.

During redirect examination Limbaugh testified that he based his identification of appellant “on his face, the look on his face when I saw him in the apartment that night.”

Detective James Parker of the Huntsville Police Department testified that, on the afternoon of June 24, 1980, he, Detective Jim Crumrine and Detective Larry Brewer went to an address located in Huntsville at 1900 Magnum Drive looking for appellant. He observed a partially opened garage door and someone running from the garage into the house. Appellant was later found inside the house hiding in a closet. Appellant was placed under arrest at that time. The testimony of Detective Jim Crumrine was substantially the same as that of Detective Parker.

Ms. Jackie Ann Moore testified that, after she left work at “Burley Earl’s” on June 23, she arrived at the apartment of a friend named Ronald at 9:00 or 9:30 p.m. Ronald’s apartment was located in the alley of 10th Court South behind Limbaugh’s and the victim’s apartment. Ms. Moore stated that she left Ronald’s apartment about 10:00 p.m. and that, as she tried to open the door to her car, appellant placed a shotgun in her side. Appellant told her, “I know you seen it, I know you know and I am going to get you.” Ms. Moore stated that she turned around, appellant “slid” the gun “into my stomach, and I went to my knees.” Appellant was approximately one-half of a foot away from the witness. Ms. Moore testified that, while she was on her knees appellant said the “JA of my name, Jack,” and that the other man in the background called, “Vince, come on Vince.” Appellant then “turned around and took off running.” Ms. Moore testified that she next ran to the “Wooden Nickel” across the street and that some friends later walked her back to the scene to tell her story to the police. She later went to the police station where she picked out the appellant’s photograph.

Ms. Moore further stated that she knew appellant from the 13th Place runaway house, that she knew him personally from January to February of 1980. She stated that she told the police “Vincent Walker’s” name when she walked back to the scene that night. She further testified that the night of the murder there were several lights “shining off the apartment building” where her car was parked. Ms. Moore denied going to Ronald’s apartment to obtain marijuana.

Sergeant Wallace was recalled and testified that he saw Ms. Moore on June 23 and during the early morning hours of June 24. He stated that Ms. Moore gave him the name of the man who pulled the shotgun on her on that occasion.

Following Sergeant Wallace’s testimony the state rested its case and appellant’s motion to exclude was overruled. Appellant’s sole defense was alibi. He denied being in Birmingham the night of the murder, claiming instead to have been in Huntsville.

Ms. Mary “Shelby” James testified for appellant that she was Jackie Moore’s half cousin and was also a counselor at the 13th Place runaway house for abused and neglected children. Ms. James stated that Ms. Moore had lived for a time at 13th Place because of “problems at home.” Ms. James stated that Ms. Moore’s general reputation in the community and her general reputation for truth and veracity were bad. Ms. James testified that she also knew appellant from 13th Place.

Ms. James testified that she saw Ms. Moore around 1:30 a.m. on June 24, 1980, when she left the police station. Ms. Moore told her that she had been to some apartments across from the “Wooden Nickel” and that appellant “had stuck a gun into her.” Ms. Moore also told her she had gone to the apartment “to try to get a joint.”

Following Ms. James’ testimony Billy Limbaugh was called by appellant. His testimony for the defense did not add significantly to his testimony for the state.

Ms. Chris Humphrey, a social worker with the Department of Pensions and Security, testified that appellant was at Harris Home in Huntsville in May of 1980. She stated that appellant was transferred from Harris Home to Birmingham on May 30, to the family court’s cottage. Ms. Humphrey testified that she met appellant at the Trailways Bus Station in Birmingham and that, when he got out of the car at family court, “he ran away.”

Following Ms. Humphrey’s testimony and certain voir dire testimony, Ms. Jackie Moore was called as a witness by appellant. Her testimony as a defense witness will be discussed later in this opinion.

Irvin John Plummer testified that he had employed appellant in Huntsville, that appellant had worked half a day on June 23. He later saw appellant that night in front of the Rocket Quikstop in Huntsville between 9:30 and 9:45. Plummer stated that appellant smiled, called his name and waved when he passed by.

Richard Harris testified that he was employed with appellant and that he, too, saw appellant in Huntsville on June 23, around 8:15 p.m. Then around 9:00 p.m. he saw appellant on the road to the basketball court.

Robert Thompson also stated that he saw appellant in Huntsville around 9:00 p.m., on June 23, that he (Thompson) was with Richard Harris when he saw appellant.

Ms. Robbie D. White testified that she was an official court reporter in Judge Joseph Jasper’s courtroom and that she took shorthand notes of appellant’s habeas corpus proceedings. She had the transcribed notes of Jackie Moore’s testimony on that occasion. Ms. White was questioned in regard to Ms. Moore’s prior testimony in an attempt to bring out inconsistencies.

Mr. John Fox, an attorney with the public defender’s office, stated that he represented appellant at the family court hearing and that he cross-examined Jackie Moore’s testimony on that occasion. Mr. Fox testified that Ms. Moore’s prior testimony was that “Slick” Limbaugh was the one who told her the name Vincent Walker.

Darius King testified for appellant that he saw appellant around 10:00 p.m. on June 23 at James Stewart’s house in Huntsville.

Appellant testified in his own behalf that he had been in Huntsville the night of the murder. His testimony concerning his whereabouts that evening was in most respects similar to that of the earlier alibi witnesses who had testified for him. Appellant denied being in Birmingham on the day in question and killing the victim. He admitted that he had run away from Chris Humphrey on May 30. He testified that he had gone back to Huntsville.

Ms. Mary James was called on rebuttal by the state and testified that appellant’s general reputation at the 13th Place for truth and veracity was bad.

Mrs. Elise Barclay of the Jefferson County District Attorney’s Office testified that she represented the state at the family court hearing where appellant was represented by Mr. Fox. Mrs. Barclay testified that at no time during the proceeding did Jackie Moore state that she got the name Vincent Walker from “Slick” Limbaugh.

Viewing the evidence presented by the prosecution in its most favorable light, as we are required, Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968), it is clear that such evidence was sufficient to prove appellant’s guilt beyond any reasonable doubt. The evidence before the trial court at the time the motion to exclude was made is all that can be considered in reviewing the trial court’s overruling of such motion. McCord v. State, 373 So.2d 1242 (Ala.Cr.App.1979). Even though the state presented no eyewitness who saw the actual shooting and many of the facts surrounding this bizarre incident are circumstantial in nature, circumstantial evidence standing alone is sufficient to support a conviction for murder. Dolvin v. State, 391 So.2d 133 (Ala.1980); Anthony Tyrone Washington v. State, Ala.Cr.App., 415 So.2d 1175 [1982]. As in Washington, supra, there was evidence in this case of flight by appellant to avoid prosecution after the murder.

It is not the province of this court to reweigh the evidence. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert, denied, 368 So.2d 877 (Ala.1979). The weight of the evidence, the credibility of the witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury alone. Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969). As this court stated in Scroggins v. State, 341 So.2d 967 (Ala.Cr. App.1976), cert. denied, 341 So.2d 972 (Ala.1977):

“Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict of the jury. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.
“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 denial of a motion for new trial, do not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.”

And a conflict between the state’s case and appellant’s alibi presents a question for the jury. Zimmerman v. State, 49 Ala.App. 442, 272 So.2d 914 (1973). Any conflicts in the evidence were for the jury to resolve. May v. State, 335 So.2d 242 (Ala.Cr.App.1976).

The trial court committed no error in admitting State’s Exhibit 1, a photograph of the victim taken at the scene. Cases are legion that photographs are admissible in evidence if they prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973). Photographs which depict the character and location of external wounds on the body of a deceased victim are admissible even though they are cumulative evidence based upon an undisputed matter. Ellenburg v. State, 353 So.2d 810 (Ala.Cr.App.1977). The fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury. Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.), cert. denied, 400 So.2d 427 (Ala.1981).

Appellant contends that reversible error was committed when, during a verbal exchange between defense counsel and one of the assistant district attorneys over the proper manner to voice an objection, the assistant district attorney directed the following comment to the defense counsel: “We object to that, it is argumentative, it is improper and he knows it.” Appellant’s objection to this remark was sustained by the trial court and the jury was instructed that “what the attorneys say is not evidence.” Appellant’s motion for a mistrial was overruled.

We disagree that appellant’s motion for a mistrial was due to be granted on the basis of the above comment. The evaluation of alleged prejudicial remarks by the prosecution must be determined on the merit of each case. Edwards v. State, 56 Ala.App. 405, 321 So.2d 744 (1975). While we do not condone the remark by the prosecutor which suggested that defense counsel would knowingly ask an improper question, we cannot say from a review of the record that the remark was so prejudicial as to have warranted a mistrial. Scroggins, supra. The granting or denying of a motion for mistrial is a matter within the sound discretion of the trial court which will only be disturbed upon a showing of manifest abuse; no such abuse is evident here. Durden v. State, 394 So.2d 967 (Ala.Cr.App.1980), cert. quashed, 394 So.2d 977 (Ala.1981). It should be noted that appellant’s objection to the remark was sustained and that the trial court took further curative action by admonishing the jury.

During appellant’s case-in-chief, appellant called Ms. Jackie Moore as a defense witness. Ms. Moore, it should be remembered, had testified earlier as a key identification witness for the state. On her direct examination by defense counsel, Ms. Moore testified, without objection, that she had previously told a fabricated story concerning the incident to a relative, Ms. Shirley Burnett. On cross-examination by the state Ms. Moore explained why she had told the fabricated story. Then, during Ms. Moore’s redirect examination, defense counsel attempted to “impeach” Ms. Moore’s explanation of the fabricated story by asking the witness if she remembered “being asked the question — ” when she testified at an earlier habeas corpus proceeding regarding the murder. The prosecution objected to defense counsel asking Ms. Moore any questions concerning whether she gave certain testimony at the habeas corpus proceeding without first showing Ms. Moore the transcript of the proceedings. After several pages of argument between the prosecution and defense counsel and instructions by the trial judge, as disclosed in the record before us, the trial judge sustained the prosecution’s objection and defense counsel ultimately refused to show Ms. Moore the ha-beas corpus transcript or ask her any further questions, stating instead that “the error is in the record and the court of appeals will see to it.”

Appellant argues in brief that the trial court’s ruling on this matter denied him the right to confront and thoroughly “cross-examine” Ms. Moore, that he was erroneously prevented from laying a “proper predicate for impeachment.” And it is unmistakably clear from the record that appellant’s purpose in questioning Ms. Moore on redirect examination was to “cross-examine” her and “impeach” her testimony. Appellant did not claim “surprise” at Ms. Moore’s testimony on redirect and made only one fleeting reference during several pages of argument with the prosecution and the trial court to “refreshing recollection.” Appellant at no time stated that he was attempting to refresh Ms. Moore’s recollection; rather he stated on redirect that he was attempting “to conduct an impeachment.”

As a general rule a party may not impeach his own witness by showing that he is unworthy of belief or by proving that he has made contradictory statements. Flournoy v. State, 270 Ala. 448, 120 So.2d 124 (1960); C. Gamble, McElroy’s Alabama Evidence § 165.01(6) (3rd Ed. 1977) (hereinafter cited McElroy’s Alabama Evidence). However, if a witness’ testimony about a matter is adverse to the party who called the witness, it is proper for the trial court to permit such party, either for the purpose of showing such party’s surprise at the witness’ testimony or for the purpose of refreshing the recollection of the witness and thereby inducing the witness to change such testimony, to inquire of the witness whether he has previously made and to elicit testimony from him that he has previously made certain statements about the matter different from his present testimony and favorable to the party calling him as a witness. Allen v. State, 51 Ala.App. 413, 286 So.2d 88 (1973); McElroy’s Alabama Evidence § 165.01(7)(a). This exception to the general rule equally applies on a party’s redirect examination of his own witness after the witness has given testimony on cross-examination in conflict with his testimony on direct examination. Jarrell v. State, 35 Ala.App. 256, 50 So.2d 767 (1949); McElroy’s Alabama Evidence, § 165.-01(7)(b).

Stated another way, a party may ask his witness, for the purpose of refreshing his memory or of showing that he had been put at a disadvantage by unexpected evidence, whether, at a certain time and place, he has not made certain statements inconsistent with his testimony on the stand, even though the admission of such inconsistent statements will injuriously affect the witness’ credibility with the jury. White v. State, 87 Ala. 24, 5 So. 829 (1889). But this cannot be done when the purpose and only effect of such evidence is to impeach the witness. White, supra; Gandy v. State, 81 Ala. 68, 1 So. 35 (1887). It should be noted that if a witness who has already been called and testified as a witness of one party is subsequently called by another party as his witness, that witness also becomes the witness of the other party and cannot be impeached by that other party. Gandy, supra; McElroy’s Alabama Evidence, § 171.01(4). As was stated by the Supreme Court in Gandy, supra:

“It was not permissible for the defendant to lay the predicate, as attempted by him, for the avowed purpose of impeaching the witness Belle Gordon, by proving contradictory statements previously made by her. She was his witness for the time being, and could not be thus impeached.... ” 1 So., at 36.

Even though Ms. Moore had previously testified as a state witness and appellant had conducted a cross-examination of her at that point, that fact did not provide appellant with carte blanche to continue such cross-examination when he subsequently elected to call Ms. Moore as his witness. When appellant called Ms. Moore as his witness, he did not request the trial court to have her declared an adverse or “hostile” witness. Anderton v. State, 390 So.2d 1083 (Ala.Cr.App.), cert, denied, 390 So.2d 1087 (Ala.1980). Indeed, there was no showing by appellant that Ms. Moore was an adverse or hostile witness; at most, appellant could have expected Ms. Moore to give “unfavorable” testimony as his witness. See Wiggins v. State, 398 So.2d 780 (Ala.Cr.App.), cert. denied, 398 So.2d 783 (Ala.1981). Nor does the record in this case support a finding that appellant specifically reserved a right to recall Ms. Moore for further cross-examination or that the court granted such a reservation. Hall v. State, 51 Ala. 9 (Ala.1874); Baxter v. State, 360 So.2d 64 (Ala.Cr.App.1978). Even if appellant had requested the right to recall Ms. Moore at the conclusion of his cross-examination of her as a state witness, which he did not do, a trial court has discretion to allow or disallow a witness to be recalled for further cross-examination. Baxter, supra.

A trial court should not allow a state witness to be “recalled” by the defense during its case-in-chief for purposes of further cross-examination and impeachment on matters to which the witness had previously testified. As Judge Bowen wrote for this court in Baxter, supra:

“Thus, absent surprise, defense counsel will be prepared to lay the foundation for
impeaching a complaining witness in the usual course of cross examination during the state’s presentation of its case. Here the record discloses no reason why defense counsel should have been permitted to recall the complaining witness for further cross examination. The conflict presented between her testimony and that of the appellant was clearly a question for the jury. After the state had rested and the defendant presented all his witnesses, the defendant had no right to recall the prosecutrix for purposes of further cross examination and impeachment on matters to which she had previously testified and which conflicted with the testimony given by the appellant. Such a course would convert the trial into an endless display of refutation and rebuttal.” 360 So.2d 66, 67.

Appellant simply made no demonstration or request in this case to place Ms. Moore on the witness stand in any other capacity than as a defense witness. Normally, in the trial of a cause a witness called by a party becomes that party’s witness. It is presumed that when a party places a witness on the stand he vouches for the witness’ credibility and cannot impeach him. Ward v. State, 376 So.2d 1112 (Ala.Cr. App.), cert. denied, 376 So.2d 1117 (Ala.1979). If this norm is not to be followed and a party desires to place a witness on the stand in the unusual capacity of being the other party’s witness, the calling party should clearly designate in the record, at the time he places such witness on the stand, for what purpose the witness is being called. The burden is on the accused to see that the record is perfected for appeal. Heard v. State, 351 So.2d 686 (Ala.Cr.App.1977). Following this reasoning then, we are of the opinion that the rule in Gandy, supra, which is set out above, is the appropriate rule in this case and whether appellant intended it or not Ms. Moore became his witness at the time he placed her on the witness stand in his case-in-chief.

As stated previously, appellant did not claim “surprise” at Ms. Moore’s testimony on his redirect examination of her, nor did he contend that his purpose in asking her about the allegedly inconsistent prior testimony was to “refresh her recollection.” Appellant made it crystal clear for the first time during his redirect examination of Ms. Moore that his purpose in calling her as a witness was to “cross examine” her and to “impeach” her testimony. This situation is treated thoroughly in MeElroy’s Alabama Evidence, § 165.01(7)(f) as follows:

“An avowal of the party’s purpose in seeking to elicit testimony from his own witness of the latter’s having made the supposed prior inconsistent statement is important. A trial court’s sustention of an objection to a party’s question to his own witness seeking to elicit testimony from him that he had previously made a statement inconsistent with his present testimony, without an avowal by the party of the purpose for eliciting such testimony, will be affirmed because it will be presumed that the party’s purpose was to impeach his own witness. It has been a traditional rule that a party does not have the right to elicit from his own witness testimony that such witness has made a prior inconsistent statement, for the avowed purpose of impeaching such witness. Stated differently, when a party begins to question his own witness about a prior inconsistent statement he should be careful to avow that his purpose is to show surprise or to refresh the witness’s recollection." (Emphasis added.)

Thus, since Ms. Moore became appellant’s witness during his case-in-chief and appellant’s “avowed purpose” in calling her was for the decidedly improper purpose of impeaching her testimony, appellant cannot cry foul in the trial court’s ruling which, in effect, prevented him from impeaching his own witness. If a trial court’s ruling is correct for any reason, the trial court will not be put in error for assigning the wrong reason therefor. Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972).

Assuming arguendo that Ms. Moore remained a state witness at the time appellant called her and placed her on the witness stand during his case-in-chief and that appellant properly had the right to continue his cross-examination of her, appellant did not lay the proper predicate for impeaching Ms. Moore’s testimony with her prior sworn testimony at the habeas corpus proceeding. At the time appellant attempted to impeach Ms. Moore’s explanation for telling the fabricated story about the murder to her relative, it would have first been necessary for appellant to show the witness the transcript of the habeas corpus proceeding before asking her questions concerning that prior sworn testimony. Parker v. State, 266 Ala. 63, 94 So.2d 209 (1956). Appellant did not ask Ms. Moore whether or not she remembered testifying at the habe-as corpus proceeding; rather his question was: “Ms. Moore, when you testified at the habeas corpus hearing, do you remember being asked the question — .” (Emphasis added.) In Parker, supra, the Supreme Court stated that, where a party desires to cross-examine a witness concerning a prior statement written or signed by the witness, or prior testimony by the witness, if the statement is to be later introduced into evidence to impeach the witness, the statement must first be shown to the witness in order to allow the witness to refresh his memory and to explain any inconsistency. 94 So.2d, at 214. The Supreme Court in Parker, supra, referred to the case Wills v. State, 74 Ala. 21 (1883) and cited the following rule from Wills:

“A witness is not bound to answer to a matter reduced to writing by himself or another, and subscribed by him, until the writing has been produced and read or shown to him.” 74 Ala., at 24.

It has specifically been held that a transcript from a preliminary hearing containing previously given sworn testimony of a witness must be shown to him before being used to impeach. Massey v. State, 49 Ala. App. 345, 272 So.2d 271, cert. denied, 289 Ala. 747, 272 So.2d 278 (1972); See McElroy’s Alabama Evidence § 158.01.

Thus, even if appellant’s position that he should have been allowed to “impeach” Ms. Moore’s testimony on his redirect examination was accepted as correct, which we opine is not the correct posture he should have been allowed to take, appellant did not follow the proper rules of evidence in laying the predicate for impeachment. Since appellant was attempting to impeach Ms. Moore with her previously sworn testimony, it was incumbent upon appellant to first show her the transcript of such testimony before asking her the question: “Ms. Moore, when you testified at the habeas corpus hearing, do you remember being asked the question — Refusing to comply with this procedure appellant was properly disallowed from continuing his attempt to impeach Ms. Moore with her prior testimony.

The trial court did not err in refusing to admit into evidence a tape recording of Ms. Moore’s prior testimony at appellant’s family court proceeding. Appellant contends that the tapes should have been admitted to resolve a discrepancy between the testimony of defense witness John Fox and prosecution rebuttal witness Elise Barclay. These two witnesses gave conflicting accounts of what Ms. Moore’s prior testimony had been. Appellant alleged at the time he proffered the tapes that the tapes were “absolutely to the contrary” of Mrs. Barclay’s testimony; however, at no time during appellant’s cross-examination of Mrs. Barclay did he attempt to use the tapes to show that her recollection of the family court proceeding was incorrect. Appellant did not proffer the tapes until Mrs. Barclay had been excused from the witness stand.

The trial court, at the state’s objection, refused to have the tapes admitted because they had not been properly authenticated. Appellant informed the trial court that Judge Bell from family court was the “only person who turns that tape recorder on and off,” but argued that “any number of people” could authenticate the tapes. Appellant had made no effort, however, prior to the time he attempted to proffer the tapes, to procure the attendance of Judge Bell, or any other witness, for the purpose of authenticating the tapes. The trial court declined to suspend the trial to secure the attendance of Judge Bell. The trial court’s rulings on this matter were correct and were within the exercise of its discretion.

Generally, sound recordings are admissible as corroborative of oral testimony. Voudrie v. State, 387 So.2d 248 (Ala.Cr.App.), cert. denied, 387 So.2d 256 (Ala.1980) and authority cited therein. While appellant’s contention is correct, that, if the parties who were present when the recording was made are available and can testify as to the statement made, the recording can be admitted as corroborative of the testimony of the witness or witnesses testifying to the statement, Voudrie, supra; Wright v. State, 38 Ala.App. 64, 79 So.2d 66, cert. denied, 262 Ala. 420, 79 So.2d 74 (1954), it is still necessary that a proper foundation be laid for the admission of the sound recording. Voudrie, supra. A magnetic tape recording may be used as evidence when it is of matter otherwise legal, and provided that proper safeguards are shown to have been used so as to protect the recording against error or spoilation and the speakers recorded are properly identified and adequate safeguards are taken to insure authenticity. Fikes v. State, 263 Ala. 89, 81 So.2d 303, 311 (1955), rev’d on other grounds, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957). As this court stated in Voudrie, supra:

“The rules for testing the admissibility of recordings have been outlined as follows: “ ‘(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.’ 58 A.L.R.2d at 1027-8.
“Thus not only is a proper request necessary but a proper predicate is necessary before a sound recording can be admitted into evidence.” 387 So.2d, at 256.

Clearly, then, before a tape recording can be admitted into evidence it must be authenticated. No authentication was done in this case. It is true that appellant offered to subpoena Judge Bell, but in Alabama our courts have always held it is discretionary with the trial court whether it should halt or suspend the trial to enable a party to secure or produce witnesses in court. Alonzo v. State ex rel Booth, 283 Ala. 607, 219 So.2d 858 (1969). Furthermore, appellant made no showing that any other person besides Judge Bell, who was present when the recording at family court was made and was then available, could authenticate the tapes. Appellant at all times insisted that “those tapes out at Family Court are simply taken from a tape recorder on Judge Bell’s desk” and “the only person who turns that tape recorder on and off will be Judge Bell.” We find no abuse in the trial court’s exercise of its discretion on this issue.

While Ms. Moore was a state’s witness defense counsel referred to transcripts of appellant’s prior family court and habeas corpus proceedings in questioning the witness on cross-examination. The prosecution requested on several occasions to be allowed to make copies of the transcripts, for the purpose of rehabilitating Ms. Moore’s testimony and to verify that defense counsel’s reference to the transcripts in cross-examining the witness had not been taken out of context. Appellant refused to allow the prosecution to see the transcripts claiming that the transcripts were not official and were his work product. Appellant’s contentions can be summed up as follows:

“I obtained tapes from the family court hearing and from a habeas corpus hearing where due to my diligence, my secretary — in obtaining the tapes, my secretary typed them, I have used them to prepare the trial of the case.
“I have my own personal note underlining those things that I consider to be important. It is complete work product. The state certainly had the same access to those tapes as I did. And because they have not chosen to take advantage of that, I don’t see any reason why I have to supply that for them. . . . ”

Appellant maintains this argument on appeal.

The prosecution made it clear, however, that it was “not interested in any notes he made there, but some of these questions have been taken out of context, and . . ., we feel like we have the right to explain to the jury the rest of her testimony.” The trial court, after much reflection, ruled that the prosecution should be allowed to see two pages of the habeas corpus transcript defense counsel had prepared to explain some of Ms. Moore’s answers. There is no indication that those two pages had any of defense counsel’s notes on them.

Appellant cited no case which supports his allegation that the transcripts he had prepared were a work product. We find no abuse of discretion in the trial court’s ruling on this matter. Where an accused, on cross-examination of a state’s witness, introduces a part of a transcript of former testimony of such witness to impeach the witness’ testimony given at the present trial, it is not error to permit the state to offer the remainder of the transcript. Wilson v. State, 31 Ala.App. 21, 11 So.2d 563, cert. denied, 243 Ala. 671, 11 So.2d 568 (1943); McElroy’s Alabama Evidence § 159.03(2). It is true that appellant did not formally introduce the transcripts in evidence; however, this technicality does not negate the validity of the above principle cited from Wilson. Just as in Wilson, appellant in this case “introduced portions” of the state witness’ former testimony for purposes of impeachment. 11 So.2d, at 566. Such “portions” of the former testimony were “introduced” as the former testimony was read in evidence as certainly as if “portions” of the actual transcript had been admitted. Furthermore, a private stenographer’s transcript of testimony is admissible to prove a witness’ testimony if such testimony is proper to be proved and the stenographer testifies that the transcript is correct. McElroy’s Alabama Evidence § 268.02(2) and authority cited therein. In this case Ms. White provided the necessary attestation that defense counsel’s transcript was “true and accurate.”

At the conclusion of Detective Jim Crum-rine’s testimony on cross-examination the state asked the trial court if Detective Crumrine and Detective Parker could be “released” to make the trip back to Huntsville. The following exchange then occurred:

“THE COURT: Is that all right with you?
“MR. POLSON: Judge, it is all right, I might need — if I need them back, I would like to have them come back.
“THE COURT: All right. Mr. Crumrine.
“MR. POLSON: It won’t be until tomorrow though.
“THE COURT: Yes. You are certainly excused today. They may need to call you for tomorrow.
“MR. POLSON: I don’t know that I will.
“THE COURT: All right, Well, if you will tell Mr. Parker.”

Later, after the state had cross-examined appellant concerning his alibi, the defense counsel requested that Detectives Crumrine and Parker be recalled for further cross-examination. When asked his reason for recalling the two witnesses by the trial court, it became apparent that defense counsel planned to elicit hearsay testimony from the officers which would be ruled inadmissible and that he also wanted to find out whether the officers had any “exculpatory statements.” The prosecution stated for the record that it had no exculpatory statements in its file, which defense counsel alleged were used by the prosecution in an attempt to impeach appellant.

Appellant argues now as he did at trial that his right to recall is “absolute.” This contention is erroneous. The record in this case, as in Baxter, supra, does not support a finding that defense counsel specifically reserved a right to recall the witnesses for further cross-examination or that the court granted such a reservation. As was stated in Baxter:

“Without question a defendant is entitled to call a witness used by the prosecution as his own. However, the defense counsel who wishes to discontinue his cross examination and reserve a remainder until a later time should make the purpose of his reservation clear to the court.” 360 So.2d, at 64.

Again, we find that the trial court did not abuse its discretion on this matter. At most, any error was harmless. ARAP, Rule 45.

During defense counsel’s cross-examination of Ms. Moore as a state witness, Ms. Moore denied that she had gone to Ronald’s apartment the night of the murder to obtain some marijuana. Ms. Moore also testified that she did not recall making any such statement to Ms. Shelby James in the early morning hours of June 24. Ms. James later testified that Ms. Moore had told her that she had gone to someone’s apartment “to get a joint of marijuana.” “She didn’t tell me who, she just said she went to a person over at the apartment, she didn’t give any names.” The following exchange then occurred during closing arguments by defense counsel:

“MR. POLSON: And why was she going over to see Ron that night?
“She was going to get some marijuana. Isn’t that what she told Shelby James? “MR. NAIL: Judge, that is not in evidence. We are going to object to that, it is not in evidence.
“THE COURT: Members of the jury, rely upon what is in evidence.
“MR. POLSON: Well, you ladies and gentlemen heard her testify that, yes, she told me she went over to Ron’s house to get some marijuana—
“MR. NAIL: Judge, that was not evidence, I object to it, it is not in evidence, and we are objecting to him continuing to comment on it.
“THE COURT: Members of the jury, do not rely upon that, it is not in evidence.” (R. 340)

We disagree that this comment by the trial court caused reversible error. A trial court does not invade the province of the jury in a criminal prosecution by stating that there is or is not evidence of particular facts when such is the case. Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970). Here, there was no evidence from Ms. James that Ms. Moore had told her she had gone to “Ron’s house” to get some marijuana. The trial court, then, correctly instructed the jury not to rely upon that statement by defense counsel, that such was not in evidence. We find no evidence from the trial court’s remark that he was attempting to influence the jury one way or the other. McCovery v. State, 365 So.2d 358 (Ala.Cr.App.1978).

We have carefully examined the state’s closing argument and find no reversible error. The trial court sustained most of defense counsel’s objections and further instructed the jury that “the attorneys have not done anything improper” in response to defense counsel’s request for a curative instruction. An adverse ruling is a preliminary requirement to preservation of error on appellate review. Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978).

Finally, appellant complains that the trial court’s oral charge defining legal provocation was not as full and comprehensive as it might have been. There is no merit to this argument. Where a trial court’s instruction to the jury is not as full as counsel desires, his remedy is to request written charges covering the matter omitted. Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955). An exception reaches only what the court did say. Grisham v. State, 147 Ala. 1, 41 So. 997 (1906).

We have carefully searched the record for errors which injuriously affected the substantial rights of the appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except DeCARLO, J., not sitting.

      . The court reporter did make a notation in the record immediately preceding the point that Ms. Moore began to testify for appellant that she was “recalled as a witness, by the defendant ...” However, appellant began his questions of Ms. Moore under the heading “DIRECT EXAMINATION”, and not some other heading denoting continued cross examination. Likewise, the state began its questioning of Ms. Moore after appellant’s “DIRECT EXAMINATION” under the heading “CROSS EXAMINATION.”

      . Although the record does not demonstrate that Ms. Moore was recalled by appellant during his case-in-chief for further cross-examination, it appears that appellant, the prosecution and the trial court were proceeding as if Ms. Moore was, in fact, still a state witness and that it was proper for appellant to “cross-examine” her and “impeach” her testimony on his redirect examination. The only apparent controversy was over the method appellant was attempting to use to lay the proper predicate for impeachment. Not once did the state complain that appellant was trying to impeach his own witness.

      . Ms. Robbie D. White testified for the defense, after appellant had attempted to “impeach” Ms. Moore, that the transcript of the habeas corpus proceeding which was made from her shorthand notes was not complete, but was “true and accurate” of the notes she had taken. This transcript was later marked as State’s Exhibit 9, but was not formally introduced into evidence. This is the same transcript appellant refused to allow Ms. Moore to see before attempting to ask her questions concerning her prior testimony at the habeas corpus proceeding.

      .This rule should not be confused with the applicable rule for impeaching a witness’ prior statements made out of court and the accompanying proper predicate which must be laid for impeachment for those situations. See McEl-roy’s Alabama Evidence § 157.01.


author: BARRON, Judge.

text:
    Rudy D. CANNON v. STATE.
    6 Div. 750.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied May 18, 1982.
    Certiorari Denied, July 30,1982 Alabama Supreme Court 81-716.

      George W. Andrews, III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

Rudy D. Cannon was convicted of murder in the first degree in Jefferson County and was sentenced to life imprisonment. The conviction was affirmed by this court without opinion on October 20, 1980.

Appellant filed, pro se, a petition for writ of error coram nobis before the trial court in which he was convicted. The trial court appointed counsel for the coram nobis proceeding and upon a hearing by the trial court, the petition was denied. Hence this appeal.

Appointed counsel for the coram nobis proceeding was also appointed for the purpose of this appeal.

Appellant urges reversible error, alleging that (1) the evidence does not sustain the jury verdict, (2) he was denied effective assistance of counsel at his trial, (3) an item of evidence used against him was obtained by an illegal search and seizure, and (4) the trial court wrongfully refused to issue an attachment for one of his requested witnesses at the coram nobis hearing. The thrust of this appeal relates to the “denial of effective assistance of counsel” allegation.

I

The office of the writ of error coram nobis, under Alabama law, is to bring to the court’s attention for correction an error of fact, which does not appear on the face of the record, one which was unknown to both the court and the affected party at the time of the trial 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 serve as a substitute for an appeal, or to enable a defendant to question the merits of the case for which he stands convicted. Goodman v. State, 387 So.2d 862 (Ala.Cr.App.1980), cert. denied, 387 So.2d 864 (Ala.1980).

In effect, the function of the writ lies to correct a judgment rendered by the court upon errors of fact not appearing on the record and so important that if the court had known of them at the trial, it would not have rendered the judgment. The errors must be such that, if presented to the trial court, they would have prevented conviction rather than merely causing a different result. Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979).

It follows, then, that the writ does not serve the purpose of testing the sufficiency of the evidence upon which a jury convicted the appellant. That issue was decided against appellant upon the appeal of the conviction, which was previously affirmed by this court.

Furthermore, our independent search of the record of the original trial convinces us that there is an abundance of evidence upon which the jury’s findings could be based.

II

Challenges based on inadequacy of counsel do constitute grounds for coram nobis. However, counsel is presumed adequate and the fact that petitioner was convicted does not prove that counsel lacked zeal or competence, particularly when counsel was retained, as in the case at bar, rather than appointed. Summers, supra.

Appellant insists that he was denied effective assistance of counsel due to the failure of counsel (a) to file pre-trial motions, (b) to subpoena four “key” witnesses, (c) to file a timely appeal, and (d) to request certain jury instructions.

Appellant was represented at the trial by two retained attorneys, one of whom testified at the coram nobis hearing, after petitioner (appellant) waived the attorney-client privilege. The testimony as to pretrial motions was to the effect that counsel had received from the district attorney’s office or the police department “copies of statements, copies of police reports, copies of lab results and things of that nature” prior to the trial on a voluntary basis without the necessity of filing any written motions to produce. Appellant argues that if counsel had pursued discovery of the matter, it would have disclosed evidence presented in the trial by the coroner’s office about the position of the deceased man’s arm, which conflicted with the testimony of the prosecution’s eye witness, and that such discovery would have given credence to the defense of self-defense. The record reveals that conflicting evidence concerning the position of the deceased’s arm was presented by two of the prosecution’s witnesses, and that appellant’s counsel vigorously cross examined both witnesses concerning the position of the deceased’s arm; appellant’s testimony relied heavily on the self-defense motive for the killing. ' Clearly, this conflict of evidence between the prosecution’s case and the appellant’s defense, which the record shows was clearly presented, was a jury question. Consequently, we fail to see how counsel’s failure to determine the coroner’s conclusions by pre-trial procedures could have, to any extent, bolstered the meritorious nature of appellant’s defense of self-defense.

As to counsel’s failure to move to suppress appellant’s statement to the police, counsel adequately responded at the coram nobis hearing that the defense attorneys were pleased with the statement, as a matter of trial tactic, in that it was a self-serving statement.

Appellant’s second attack on counsel’s competence relates to counsel’s failure to subpoena four “key” witnesses, Kathy Lucky, Tom Bradley, Dr. G. Barnett Hardy, and Larry Townley. Kathy Lucky and. Tom Bradley testified at the coram nobis hearing, and neither witness testified in accordance with appellant’s expectations. Appellant alleges that the testimony of Dr. Hardy would have shown that it was impossible for appellant to run (alluding to the defense of self-defense) rather than the stipulated statement of Dr. Hardy read to the jury, which stated that appellant was suffering from traumatic arthritis and that it would be extremely painful and difficult for appellant to run. Dr. Hardy did not testify at the coram nobis hearing.

As to potential witness Larry Townley, appellant testified on cross examination at the original trial that he had not tried to locate the witness before the week of trial. Furthermore, there was no evidence presented, at the coram nobis, hearing, other than appellant’s allegations, tending to prove what Mr. Townley’s testimony would have been. The record of the coram nobis proceeding indicates that the prosecution had attempted to locate this witness prior to the original trial but to no avail. Town-ley was subpoenaed to the coram nobis hearing but did not appear.

We do not agree that the failure to subpoena the four witnesses reflects adversely to any degree on the trial counsel. Furthermore, counsel testified at the coram nobis hearing that prior to conclusion of the defendant’s (appellant’s) case, a “fairly lengthy discussion” was held by counsel with appellant and his girl friend, and that “Mr. Cannon agreed with us we should rest.”

The issue of failure to file a timely appeal is not directed at appellant’s retained trial counsel, but is aimed at different counsel, which appellant retained for the appeal. The appeal of the original trial was filed in this court and appellant’s retained counsel filed a brief, although it was not timely filed. We make these observations relative to the allegations of ineffective appeal counsel in spite of the fact that allegations of inadequacy of appeal counsel are not within the scope of coram nobis.

Our independent search and examination of the record of the original trial reveals that appellant’s contentions regarding ineffective counsel are wholly without merit. In the coram nobis hearing, the trial court noted that he was the trial judge in the original case, having observed the case from beginning to end; the court observed that appellant’s counsel represented appellant “with vigor and ability” during the trial.

In order to establish that appellant was denied effective assistance of counsel, he must show that the conduct of the counsel reduced the trial to a farce, sham, or mockery of justice. Goodman, supra; Robinson v. State, 361 So.2d 1172 (Ala.Cr.App.1978). Appellant has fallen far short of this essential requirement. Even if we apply the standard of “reasonably effective” assistance of counsel recently adopted by the United States Court of Appeals for the Fifth Circuit, Harris v. Oliver, 645 F.2d 327 (5th Cir. 1981), we find appellant substantially fails to meet his burden of proof.

III

The issue of an alleged illegal search and seizure is not within the scope of coram nobis. Goodman, supra, and Summers, supra. In passing, it is noted that appellant’s contentions in this regard are not borne out by the records of either the trial proper or the coram nobis hearing.

IV

Compelling attendance of witnesses by attachment is within the sound discretion of the trial court. Autrey v. State, 44 Ala. 53, 202 So.2d 88 (1967), cert. denied, 390 U.S. 1030, 88 S.Ct. 1422, 20 L.Ed.2d 287 (1968). We find no abuse of that discretion.

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.