author: BOOKOUT, Judge.

text:
    Charlie Lewis JENKINS, alias v. STATE.
    4 Div. 754.
    Court of Criminal Appeals of Alabama.
    Nov. 20, 1979.
    Rehearing Denied Dec. 18, 1979.

      J. Fletcher Jones, W. Sidney Fuller, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Robbery; sentence: life imprisonment.

In the early morning hours of August 29, 1978, the appellant along with two accomplices robbed a Zippy Mart in Andalusia of three six packs of beer, a bag of potato chips, a can of meat, some magazines, and approximately $190. During the course of the robbery, the attendant, John Ezra Brown, was killed. See Coon v. State, Ala.Cr.App., 380 So.2d 980 (1979). The appellant did not participate in the commission of the homicide, but rather drove the getaway car. Within thirty minutes of the robbery, he was apprehended.

I

The appellant filed a motion to exclude the State’s evidence at the end of the State’s case-in-chief and likewise challenges the sufficiency of the evidence on appeal. It is therefore necessary to recite a more detailed version of the facts. For this purpose our review is limited to the evidence which was before the court at the time the motion to exclude was made and is considered in its most favorable light for the prosecution. James v. State, Ala.Cr.App., 339 So.2d 1047, cert. denied, Ala., 339 So.2d 1052 (1976); Kent v. State, Ala.Cr.App., 367 So.2d 508, cert. denied, Ala., 367 So.2d 518 (1978).

Officer Tarris Woods of the Andalusia Police Department testified that around 2:13 a. m. he was on patrol and saw Huey Coon, Earnest Marvin, and the appellant standing near the appellant’s car, a green 1969 Chrysler, which was parked in front of his residence. Officer Woods had a short conversation with them, and the appellant indicated that he was getting ready to go to the Zippy Mart for some beer. The robbery occurred some time within the next forty-five minutes.

Officer Woods testified, that after the victim was taken to the hospital, he was informed by a nearby service station manager that some men in a green car had frequented the store several times that evening. Remembering his prior conversation with the appellant and his friends, Officer Woods and Investigator Charlie Glass went to the appellant’s residence. Upon their arrival Earnest Marvin ran from the house and was apprehended. Investigator Glass asked the appellant whether he had any beer in the house to which he affirmatively answered. The appellant showed Investigatory Glass eleven cans of cold Budweiser beer under a cake cover in the kitchen. The appellant said he had purchased the beer the prior afternoon at a Piggly Wiggly store. However, the beer was cold, it bore a price label later proved to be from the Zippy Mart, and appellant had just earlier told Officer Woods he was going there to buy some beer. The appellant was taken into custody and transported, along with the beer to the police station.

James McCurley, an area supervisor for Zippy Mart, testified that he visited the office of Investigator Glass later that morning and identified the pricing labels and price on the beer. Mr. McCurley stated that Budweiser beer had been on special at the Zippy Mart for some time at $2.09 a six pack which was reflected on the cans he identified. Afterwards Mr. McCurley arrived at the scene of the crime with Investigator Glass and noticed the cash register open and indicating a sale of $3.58.

The appellant’s confession, properly introduced into evidence without objection, indicated that upon entering the store early that morning he headed to the canned meat section and got some meat. He stated that he and Marvin had placed a six pack of Miller beer and bag of potato chips on the counter. The appellant said that it was at this time that Coon grabbed Mr. Brown and appellant left the store and went to his car. After the robbery the beer, potato chips, and magazines were placed in the car. The appellant drove to his residence wherein Marvin divided the money from the cash register and the victim’s billfold into three portions, and Coon changed clothes. When Officer Woods and Investigator Glass arrived, the appellant picked up the remaining portion of the money and placed it in a coat pocket. He had a Miller beer in his hand when he opened the door. The money was later found and introduced into evidence without objection.

Rufus Anderson, the uncle of the appellant with whom he resided, testified that his wife found a billfold which belonged to Mr. Brown. He turned it over to the police. After being identified by Anderson, the victim’s wallet and its contents were introduced into evidence without objection.

Richard McCurley, an employee of the Andalusia Zippy Mart, testified that normally premium beer sold for $2.65 a six pack except for the special price for Budweiser. He also stated that one size of potato chips sold for $.73.

Covington County Deputy Sheriff Howard Easley testified that upon arrival at the Zippy Mart around 7:00 a. m. he took into custody the register receipt tape. It indicated the last entry as consisting of the amounts of $2.65 and $.73 for a subtotal of $3.38. With $.20 tax the total read $3.58. Sheriff Easley also searched for an item that sold for $.73. He found that.item to be a large bag of potato chips. The register tape was subsequently introduced into evidence without objection.

In testing the sufficiency of the evidence, this court, unlike the jury, is not bound to believe the evidence beyond a reasonable doubt and to a moral certainty in order to affirm a conviction. Rather, it is our duty to determine whether there was legal evidence presented from which the jury could by fair inference find guilt. If so, we have no right to disturb the verdict. Trussell v. State, 57 Ala.App. 109, 326 So.2d 301 (1976), and cases cited therein.

As stated in Ward v. State, Ala.Cr.App., 356 So.2d 238, cert. denied, Ala., 356 So.2d 242 (1978):

“ . . . The weight and probative value to be given the evidence, the credibility of witnesses, the resolution of conflicting testimony, and the inferences to be drawn from the evidence, even where susceptible of more than one rational conclusion, are for the jury. Hall v. State, 57 Ala.App. 132, 326 So.2d 660 (1976). A verdict of conviction must not be set aside on the ground of insufficiency of the evidence unless, after allowing for all reasonable presumptions in favor of its correctness, the preponderance of the evidence against the verdict is so strong as to clearly convince the court that it was incorrect and unjust. Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969).

In the instant case it is clear that there was legal evidence from which the jury could reasonably infer the appellant’s participation in the robbery. Consequently, the trial court properly overruled his motion to exclude the State’s evidence.

II

Appellant contends that the trial court erred in denying his motion for a change of venue. The appellant focuses his contention upon two arguments: (1) that there was excessive pretrial publicity, and (2) that there was systematic exclusion of blacks from the jury venire.

A

The only evidence presented before the court concerning pretrial publicity was one article from a local newspaper. After a careful review, we find no editorial comment was made in the article. Rather, it presented a factual account of the robbery-murder. Consequently, the burden of proof necessary to illustrate the requisite prejudicial effect to the appellant was not met. Colley v. State, Ala.Cr.App. [Ms. September 4, 1979]; Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79 (1975).

B

In support of his second argument for a change of venue, the appellant’s evidence consisted of testimony from his counsel which indicated that of the 37 veniremen drawn for this trial about 10 percent (4) were black, while the black population of Covington County equaled approximately 21 percent. Consequently, appellant asserts there was a systematic exclusion of blacks from the jury venire.

The constitution does not guarantee an accused a proportionate number of his race on the jury venire or on the trial jury. Deliberate, systematic exclusion must be proven. By merely showing the above percentages, it is apparent that the appellant has failed to carry his burden in proving systematic exclusion of blacks from the jury venire. Without more, we cannot find error in the trial court’s ruling. Smith v. State, Ala.Cr.App., 364 So.2d 1 (1978); Washington v. State, Ala.Cr.App,, 333 So.2d 618 (1976); and cases cited therein.

III

Appellant contends that his sentence of life imprisonment was so severe as to constitute cruel and unusual punishment prohibited by both the United States and Alabama constitutions.

Under § 13-3-110, Code of Ala.1975, a person convicted of robbery may be sentenced for not less than ten years imprisonment. The statute sets no maximum sentence. Section 15-18-20, Code of Ala.1975, confers upon the trial court the authority to impose punishment unless that power is expressly reserved to the jury, and § 15—18— 23, Code of Ala.1975, grants the trial court the right to impose a life sentence for a crime where no maximum sentence is expressed. We find no abuse of the trial judge’s discretion in the imposition of punishment as it was within the confines of our statutory scheme.

IV

Appellant asserts that it was error for the trial court to deny his motion for a continuance. The motion was based upon two grounds: (1) that appellant’s co-counsel could not participate in his defense due to a death in the family, and (2) that he was prevented from receiving a haircut and shave before trial.

A

The only evidence reflected in the record supporting appellant’s first ground is a statement by appellant’s co-counsel indicating that his partner could not participate in his defense due to a death in the family. There was no showing that the appellant could not be adequately represented by the remaining attorney. Rather, the record indicates exactly the opposite. We find no prejudice resulted from the absence of one counsel nor any abuse of discretion by the trial court in denying appellant’s motion on this ground. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Mayes v. State, Ala. Cr.App., 350 So.2d 339 (1977). In the instant case, the appellant had two court appointed counsel to represent him. One could not appear, but the other most ably represented the appellant. We distinguish this case from Gandy v. Alabama, 569 F.2d 1318 (5th Cir. 1978), wherein Gandy's appointed counsel could not attend trial and the court appointed an associate to immediately try the case even though he was totally unfamiliar with the case and unprepared. See also 6 Ala.Digest, Criminal Law, «s=>586; 7 Ala.Digest, Criminal Law, <®=>151, as to the discretion of the trial court.

B

In support of appellant’s second ground for granting of a continuance, we find only a statement by his counsel that the appellant had been incarcerated for eight months and had been advised to get a haircut and shave but had been denied such. Appellant argues that his disheveled appearance prejudiced the jury against him.

Without evidence offered to prove the appellant’s allegations, the trial court had nothing before it to rule upon. Unsworn statements of counsel are not evidence. Consequently, denial of appellant’s motion was not an abuse of discretion, under the circumstances. Therefore, no error was committed by denying appellant’s motion on this ground and in toto. Fletcher, supra; Mayes, supra; Sowells v. State, Ala.Cr.App., 339 So.2d 1090 (1976), and cases cited therein.

V

Appellant’s final contention is based upon the trial court’s overruling his motion for a new trial. The motion, as well as covering issues previously discussed in Parts I-IV of this opinion, raises three additional grounds.

(V

Appellanr~asserts it was prejudicial to have Mrs. Brown testify concerning her late husband’s wallet and its contents. He asserts that the only purpose for Mrs. Brown’s testimony was to inflame the jury. Appellant made no objection at trial to Mrs. Brown’s testimony; therefore, such is not subject to review on appeal. 6B Ala.Digest, Criminal Law, 1036.1(1). In any event the appellant’s contention would have no merit. Harris v. State, Ala.Cr.App., 352 So.2d 460, aff’d, Ala., 352 So.2d 479 (1976).

B

Appellant contends that he was denied the right to cross examine Sergeant Marlon Brewer of the Alabama Bureau of Investigation concerning a statement made to him by Huey Coon. The trial court sustained the district attorney’s objection and informed appellant’s counsel that Coon was available as a witness. Counsel for appellant then stated, “All right, Sir. We’ll call him.” Thereafter in the presentation of his case the appellant called Coon as his first witness. We find no error in the trial court’s action. Coon’s extrajudicial statement to Officer Brewer amounted to hearsay and was inadmissible on timely objection. The appellant fully examined Coon as a live witness concerning the events in question, and we fail to see how the appellant was prejudiced.

C

Lastly, the appellant argues that refusal of several requested charges constituted error. Of appellant’s twenty-seven requested charges, eighteen were given and nine refused. All nine were properly refused as either being included in the court’s oral charge or other given requested charges. Section 12-16-13, Code of Ala. 1975.

As stated in Sandlin v. City of Birmingham, 24 Ala.App. 462, 136 So. 481 (1931):

“The function of a motion for a new trial is to set up some error of law in trial of main case, or the fact that defendant has some newly discovered evidence that he could not obtain on original trial. Williams v. State, 20 Ala.App. 275, 101 So. 509; Benton v. State, 16 Ala.App. 192, 76 So. 476. It is clearly apparent that the learned trial court committed no error in the main trial of the case, and appellant made no contention in his motion for a new trial that he had any newly discovered evidence; therefore, the court very properly overruled the motion. A motion for a new trial is properly overruled where no matter was presented which was not dealt with on trial; there having been ample evidence to support verdict and conviction. Bell v. State, 16 Ala.App. 36, 75 So. 181. ...”

See: Mount v. State, 32 Ala.App. 235, 24 So.2d 142 (1945); Frost v. State, 30 Ala.App. 611, 11 So.2d 393 (1943); § 15-17-5, Code of Ala.1975.

The ruling on a motion for new trial is a matter resting largely in the sound discretion of the trial judge, and this court will indulge in every presumption in favor of the correctness of the trial court’s ruling. Henley v. State, Ala.Cr.App., 361 So.2d 1148, cert. denied, Ala., 361 So.2d 1152 (1978); Ward v. State, Ala.Cr.App., 356 So.2d 238, cert. denied, Ala., 356 So.2d 242 (1978). We find the rulings made by the trial court were not erroneous and, therefore, did not prejudice the rights of the appellant to a fair trial. Consequently, the trial court’s overruling of appellant’s motion for a new trial was without error.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Charlie Lewis JENKINS, alias. (Re: Charlie Lewis Jenkins, alias v. State of Alabama).
    79-260.
    Supreme Court of Alabama.
    June 27, 1980.
   BEATTY, Justice.

Writ denied.

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


author: DeCARLO, Judge.

text:
    Milan NIKOLIC v. STATE.
    3 Div. 884.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.

      Warren S. Reese, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., David W. Clark, Paul E. Johnson, Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

Possession of cocaine: five years.

Briefly, the facts were that a Montgomery police officer, attached to the narcotics and dangerous drugs detail, received information over the telephone from an informer. That information was in reference to Milan Nikolic [the appellant] and two companions. After a short surveillance, the appellant and two companions were apprehended and four small bags of white crystalline powder, later determined to be cocaine, were seized.

Prior to trial, the appellant filed a motion to suppress, and an evidentiary hearing was held. At the hearing on the motion to suppress, Corporal David Green, assigned to the narcotics and dangerous drugs detail of the Montgomery Police Department, testified that, at approximately 12:05 A.M. on July 22, 1977, he received a police radio dispatch instructing him to return a telephone call. Green, after making the telephone call, was informed that Mike Martis, Debbie Spann and the appellant were in possession of cocaine at the Cloverdale Grill on Cloverdale Road, Montgomery, Alabama. The informer stated that the three were driving a yellow, two-door Chevelle with Alabama license plate number BEA-329.

Green said the informant had personally seen the three in possession of the cocaine within twenty-four hours prior to Green receiving the information. Green stated that he knew the three individuals alleged to be in possession of the cocaine. Further, Green testified that he knew the informant and had received, on previous occasions, reliable information leading to several narcotic convictions.

According to Green, he then drove to the Cloverdale Grill where he discovered an automobile matching the description given to him by the informant. Green radioed for a “black and white police unit” to assist him. Green stated that they waited for “about fifteen minutes” before the three individuals came out of the grill and got into the yellow Chevelle. Further, Green testified that about two or three minutes elapsed between the time the three got into the automobile and the time they drove away.

Green and his partner, Officer Laing, proceeded onto Cloverdale Road in their unmarked police car, with the “black and white police unit” following them. The uniformed police unit stopped the Chevelle west of the intersection of Cloverdale Road and Felder Avenue. At that point, one of the uniformed officers conducted a weapons’ search of the individuals, and a white envelope found on the street, several yards from the scene of the stop, was given to Green. Green found four small bags of white crystalline powder inside the envelope. All three suspects were placed under arrest for possession of cocaine and were taken to police headquarters. Also, at that time, the three individuals were informed of their constitutional rights.

Green testified that, at police headquarters, he performed a cobalt thicyanate field test on the seized white crystalline powder. The results indicated the presence of cocaine.

During cross-examination, Green acknowledged that the informer had given information on more than twenty previous occasions, but Green could remember the names of only two individuals who had been convicted.

Green stated that the cocaine had been shown to the informer and had been represented to be cocaine by the appellant and his two companions. Green added that they were trying to sell “some of it” to the informant.

Montgomery Police Officer Travis A. Hudson testified that he was riding in the front passenger seat of the “black and white police unit” which assisted in arresting appellant and his companions. According to Hudson, all three suspects were sitting in the front seat with the girl sitting in the middle. The appellant was sitting on the passenger side of the car. Hudson testified that he observed “an arm come out the right passenger side window — a big arm — that was a male arm.” Hudson said that the car was almost stopped when the white envelope was thrown from the passenger side of the car. Further, Hudson stated that, when the car was stopped, he saw Mike Martis in the driver’s seat, Debbie Spann sitting in the middle of the front seat, and the appellant sitting in the front, passenger seat. Hudson recalled that he observed Officer Taylor “frisk” the appellant and take two syringes from his left front pants pocket.

At the end of Hudson’s testimony the court overruled the motion to suppress and the jury was selected from the venire.

After opening instructions from the court, the jury was returned to the jury room. One of the twelve jurors requested to speak with the trial judge. The juror, Linda Lushington, a nurse, told the judge that she remembered, after being seated as a juror, that the defendant’s mother had been a past patient of hers. Further, she stated, “it’s possible that . her nurse-patient relationship with the defendant’s mother would affect her ability to render a fair and impartial verdict in the case. At that point, the court declared a mistrial and instructed that a new jury be chosen from the same venire. Further, the court said that Mrs. Lushington’s name was to be removed from the venire list before the second jury was chosen.

The defense counsel objected, stating “If a mistrial is declared you can’t require the defendant or either side to strike from a jury that has already been stricken from because your other side knows who you are going to strike and who you are not going to strike and you can’t get a fair and impartial jury that way.”

The trial court overruled the defense’s objection and denied his request for a continuance. The court noted:

“One of the jurors after the jury was in the box remembered that she knew someone involved in this case that would in some way affect her ability to render a fair, just and impartial verdict and the court for that reason has declared a mistrial and we are about to strike this jury again and the defense takes an exception to that and the exception is hereby noted.”

During the selection of the second jury, the State, prior to striking, represented that it would strike the same veniremen who were stricken before the mistrial was declared. After the State had made precisely the same strikes that it had previously made, the defense attorney renewed his objection and, from aught it appears, made the same strikes that he had previously made. The defense attorney again objected, stating “that we feel that it will not be satisfactory for the defendant to strike from the same jury under any circumstances, manner, shape or form.” Further, the defense attorney said: “the reason for that is because it is . . . known by the jury; the jurors left off, they knew they were left off.” At this point, the defense counsel’s objection was noted and the new jury was seated and the trial began.

Officer Travis Hudson was called as the first witness, and he gave substantially the same testimony that he had given at the suppression hearing.

Montgomery Police Officer J. G. Laing, assigned to narcotics and dangerous drugs detail, testified that, around midnight on the night in question, he was working with Corporal Green near the Cloverdale Grill in Montgomery, Alabama. According to Laing, they were conducting a surveillance of a yellow Chevelle with an Alabama license plate containing number “BEA.” Laing said they observed the vehicle for about forty-five minutes and that they were being assisted in the surveillance by a “patrol unit.” During the surveillance and subsequent pursuit of the appellant’s car, Laing was seated on the front passenger side of the unmarked police unit. He stated that the unmarked vehicle pulled alongside appellant’s car and from his position he could view the suspect’s car from the driver’s side only. He testified that, during that period, he did not observe anything thrown from the passenger’s side of the suspect’s vehicle.

Laing stated that after he pointed his gun at the driver, Mike Martis, the suspect-vehicle stopped, and the three were subsequently arrested. Officer Laing’s testimony about events leading up to and surrounding the arrest of the appellant and the two others substantially corroborated the testimony of Officer Hudson.

Corporal David Green’s testimony was substantially the same as his testimony at the suppression hearing and corroborated that of Officers Hudson and Laing. Green stated that he was the evidence officer on the arrest scene and that he took possession of all evidence later delivered to the State Toxicologist, Alan Adair.

During cross-examination, Green admitted that he had known of the Oasis Massage Parlor for over a year. He acknowledged that he had been there on many occasions and that he had been acquainted with Ortega, the manager of the Oasis Massage Parlor, for about a year. He denied that she was his girlfriend.

Alan Adair, a criminalist with the State Department of Toxicology and Criminal Investigation, testified that, on July 22, 1977, he received several small bags of “white, crystalline powder” from Green. Analysis of the powder showed that it contained cocaine. The two syringes which were turned over to Adair by Officer Green revealed no traces of controlled substances. All of this evidence was returned to Green by Adair on July 29, 1977.

Green was recalled to the stand by the State for the purpose of establishing chain of custody of the seized evidence. Defense counsel waived objection to the chain of custody and stipulated its propriety. However, he reserved any other objections to the admissibility of the evidence. State’s Exhibit No. 1, containing the cocaine packets, was received into evidence over defense’s objections.

From the record we find that certain extraneous evidence was inadvertently included in the plastic bag marked State’s Exhibit No. 1. The trial court noted that this evidence had not been shown or exhibited before the jury. While the jury was absent, the court ordered the extraneous items removed from the bag. Afterwards, the two syringes recovered from the appellant were introduced into evidence.

At the conclusion of Green's testimony, the State rested its case. Defense counsel moved for a “directed verdict” which was subsequently overruled.

At this point, defense counsel made an offer of proof relating to the testimony of Ti Ortega, Mike Martis and Debbie Spann. Martis and Spann were given cautionary instructions by the judge outside of the jury’s presence. The instructions concerned the right of an individual under the Fifth and Fourteenth Amendments to refuse to testify. Martis, exercising his Fifth Amendment rights, refused to testify, but Debbie Spann subsequently testified before the jury.

Debbie Spann testified that she began working for Ti Ortega at the Oasis Massage Parlor in February, 1977. Spann met the appellant on July 4, 1977; she had been instructed to pick him up at the Sheraton Inn and to transport him to the Boomerang Lounge. Thereafter, Spann and the appellant began a love affair. According to Spann, when the appellant learned where she was employed he began to visit her daily at work.

On one occasion the appellant arrived when Spann was engaged in love-making with one of the customers, and the appellant physically abused her. It was during that incident that Ti Ortega had the appellant removed from the premises.

Spann recalled that Ti Ortega had said that the Oasis Massage Parlor was allowed by the police to operate in exchange for information on suspected drug users. Ortega told Spann that, if she wanted to maintain her income as well as her drug supply, she would have to help her [Ortega] set the appellant up for a drug bust.

On July 21, 1977, Spann saw Ortega purchase cocaine from Martis at Ortega’s house. The appellant telephoned Spann and became very angry when he learned that she was located at Ortega’s house. When the appellant arrived, he lectured Spann about the foolishness of her drug habit and her prostitution. According to Spann, the lecture was accompanied by physical abuse. Afterwards, the appellant and Martis left and drove to a bar where they spent the rest of the afternoon and early evening drinking.

According to Spann, she was given cocaine by Ortega to be placed in the appellant’s pocket. Afterwards, Ortega could inform the police that the appellant had cocaine in his possession. Spann agreed to the plan and the meeting was to be at the Cloverdale Grill about midnight. When Spann arrived at the Cloverdale Grill, the appellant was extremely drunk and needed Martis to assist him in walking even a few feet. Spann testified that the three of them left about an hour later. She placed a small bag of cocaine and syringes in the front pocket of the appellant’s pants while he stumbled across the street to the parked automobile. Spann stated that the appellant was so drunk that he was unable to protest her actions. Spann recalled that when Martis backed out and began driving down the street, blue lights appeared behind the car and the police, using loud speakers, told the suspects to stop. About the same time, Martis told her to throw the cocaine out of the window. Spann testified that immediately prior to stopping the car, she and Martis threw the cocaine out of the window on the passenger side of the automobile. According to Spann, the appellant never touched the cocaine except when she placed it in his pocket without his knowledge.

During cross-examination, Spann admitted that she had given three different versions of what had happened on the night of July 21, 1977. Spann added that Ortega had threatened to revoke her bond if Spann did not tell certain versions of what had occurred. Further, Spann stated that Ortega said Green would drop the charges against Spann if she testified in a specific manner. Spann acknowledged that Green, as a member of the Montgomery vice squad, would have numerous occasions in the course of his duties to inspect the premises of the Oasis Massage Parlor for violations. At that point, a statement given to Green by Spann and signed by her was received into evidence. In this statement, Spann stated that the appellant had purchased the cocaine from Martis.

Barbara Reeves testified that Ortega said she wanted to get rid of the appellant because he was trying to convince Spann to quit her job. Reeves stated that she learned Ortega planned to have the appellant set up for a drug arrest. According to Reeves, after the appellant was arrested, she remembered Ortega saying that she had done what she had wanted to do and that it had been easier than she thought it would be.

Larry Coker testified that he and Ti Ortega grew up on the same street and that he had gone to school with her. According to Coker, Ortega told him that, in order to keep her place of business open, she had to supply the police with information. Coker stated: “In order to keep her place of business open that she had to inform on somebody and this is what she told me that she had done. She got what she had done wanted.” Further he testified that Ortega told him she had informed on the appellant. Coker further testified that he had overheard a conversation between Green and Ortega after the appellant’s arrest in which Green expressed appreciation to Ortega for all she had done in connection with the arrest.

Richard Ervin was called to testify as to the results of an experiment performed at the insistence of the defense counsel. The experiment was performed at the scene of the arrest on the night prior to the trial. However, the testimony was not allowed by the court.

Ti Ortega was called by the court as a witness. She testified that she had operated the Oasis Massage Parlor in Montgomery for approximately one year. Ortega stated that she hired several women whose duties were to give massages. Ortega denied any knowledge on her part of the occurrence of any prostitution at the massage parlor. She also denied any knowledge of the presence of any narcotics. Ortega stated that she was acquainted with the appellant because of his relationship with Debbie Spann and his frequent visits to the Oasis. Ortega admitted making statements to the effect that the appellant had to go because Spann was paying more attention to him than to her work. Ortega stated that, in general, males loitering around the premises was bad for business.

According to Ortega, on the afternoon of July 21, 1977, the appellant and Mike Mar-tis came to the Oasis. At that time, the appellant offered to sell cocaine to Ortega at a price of one-hundred dollars per gram. Ortega described the cocaine as white powder sealed in a clear plastic bag. She stated that she refused to buy the cocaine and that the appellant responded that he would hold it until later that night. According to Ortega, after work that night, she called the police to tell them that the appellant, Mike Martis and Debbie Spann were at the Clo-verdale Grill in Martis’ automobile and were in possession of cocaine.

On re-direct, Ortega testified that earlier in the day she had told Green about the appellant’s possession of cocaine.

Ortega stated that she had given to the police information which had led directly to four heroin convictions. Ortega stated that other information supplied by her was being used in numerous investigations which had not yet resulted in arrests.

Ortega denied making statements to Barbara Reeves or to Larry Coker that she [Ortega] had set up the appellant to get him out of the way and to satisfy her obligations to furnish information to the police. Ortega denied telling Spann, prior to her testimony at that trial, that she intended to go into court and admit that she “set up” the appellant. Ortega stated that she had been paid by the police for information given to them. For the case involving the appellant, she recalled receiving about fifty dollars.

Green was recalled to the stand and testified that, on the occasion in question, he gave Ortega ten dollars to cover her gasoline expense.

Spann was then recalled to the stand and testified that Ortega injected herself and Spann at least twice a week with narcotics at the massage parlor. Spann stated that Ortega knew that syringes were normally kept on hand at the massage parlor. Spann further stated that Ortega had several regular customers with whom she had sexual intercourse at the massage parlor. Spann testified that, as a condition of her bail bond, she was to continue to work for Ortega after the appellant’s arrest.

The appellant took the stand and testified that he first met Debbie Spann in June 1977 and that “we sort of fell in love.” According to appellant, Spann was working in the Oasis Massage Parlor but he was unaware that part of her duties included prostitution. He learned of the prostitution after a few visits to the parlor. According to the appellant, he overheard some “telltale signs” from the room occupied by a customer and Spann. He stated that he tried to convince Spann that she did not have to live in that manner and that she should quit working for Ortega.

The appellant learned in mid July that Spann had continued to engage in prostitution. He stated that a quarrel with Spann resulted in him telling her to move out of the apartment. He added, however, that the next day all was forgiven.

On the afternoon of July 21, 1977, the appellant called the Oasis trying to locate Spann. He stated that, when Spann refused to leave, he went with Mike Martis to a bar to get drunk. The appellant denied offering to sell cocaine to Ortega that afternoon.

Appellant testified that he and Mike Mar-tis arrived at the Cloverdale Grill about 10:00 P. M., after consuming a substantial amount of liquor at another bar. According to the appellant, he had previously arranged to meet Spann at the Cloverdale Grill after she finished work at midnight. Appellant said that he could not remember leaving the Cloverdale Grill, but he recalled being arrested by the Montgomery police officers. He also denied knowledge of any drugs in Martis’ automobile. According to the appellant, he never threw any cocaine out of the window of the automobile, and he denied ever seeing the syringes marked as State’s Exhibit No. 2.

After the defense rested its case, the State called David West as a rebuttal witness.

David West testified that he was at the Oasis Massage Parlor on July 21, 1977. He recalled seeing the appellant, Mike Martis, Ortega and several others at the parlor during the day. West testified that, in the bathroom at the massage parlor, he saw some narcotics which he described as “crystal meth and marijuana and cocaine.” West stated that the appellant did not say anything about the drugs. West acknowledged that no one was exercising any control over the drugs.

The jury was excused, and the State explained that West was supposed to have witnessed the appellant’s attempt to sell the cocaine to Ortega. The court then made inquiry of West, and he denied seeing any alleged offer to sell cocaine by the appellant. At that point, the jury was returned and the witness was excused.

Carol Holley was recalled as a rebuttal witness. She testified that she was employed at the Oasis Massage Parlor on July 21, 1977. The witness stated that, on that date, she witnessed the appellant’s attempt to sell cocaine to Ortega. Holley explained that the transaction occurred in one of the massage rooms. Further, she said that David West was not present at that time.

At the end of Holley’s testimony, the State rested its case and David West was recalled to the stand by the defense. West testified that he did not overhear or see any attempted sale of cocaine by the appellant to Ortega. West stated that, if the attempted sale had occurred in another room, he would have overheard it because the walls were very thin.

Barbara Reeves was also recalled by the defense and she testified that she witnessed Ortega and Debbie Spann with narcotics as many as two or three times a day while she [Reeves] was working at the Oasis Massage Parlor.

At the conclusion of all testimony, the defense counsel renewed his motion for a “directed verdict.” The motion was subsequently denied by the trial judge.

I

The appellant complains that his motion to suppress the evidence should have been granted. In support of that contention, the appellant argues the same points which he presented on his motion to suppress. The points are substantially as follows:

(1) There was no probable cause to stop the appellant, (2) there was no warrant of arrest or search warrant obtained prior to stopping the appellant, (3) the plain view doctrine was inapplicable because the officers did not possess sufficient knowledge that the object found at the scene was, in fact, contraband, (4) the reliability of the informant was not shown, and (5) the search of the appellant at the scene of arrest was improper.

The Supreme Court of the United States in Brinegar v. United States, 338 U. S. 160, 69 S.Ct. 1302, 93 L. Ed. 1879, made the following observations regarding probable cause.

There the court said:

“In dealing with probable cause . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. .
“ ‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ . . And this ‘means less than evidence which would justify condemnation’ or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364.”

In Brinegar, supra, the Supreme Court stated that:

“Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” [Citations omitted].

Whether one is concerned with probable cause to arrest or probable cause to search, the amount of evidence required is generally the same. In Braxton v. State, Ala.Cr.App., 350 So.2d 753, this court recognized the basis for determining whether probable cause to arrest existed. There this court said:

“In determining whether there was probable cause to arrest, it is not necessary that the officer have before him evidence which would support a conviction for the offense. He must have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the suspect had committed or was committing an offense.”

In the present case, probable cause was sufficiently shown. Officer Green had been informed that the appellant and his companions, Spann and Martis, were at the Cloverdale Grill and were in possession of cocaine. Further, Green was told by the informant that she had personally seen the cocaine and that the white crystalline substance had been represented to her as being cocaine. Green testified that he knew the informant to be reliable and that, in the past, she had given him information which led to two convictions. Also, the automobile driven by Martis fit the description given to the officer by the informant. Additionally, Green knew the appellant, Spann and Martis and recognized them when they left the Cloverdale Grill. Green stated also that he knew Martis to be a drug user.

Therefore, it is clear that the officers had probable cause to arrest the appellant without a warrant based on the circumstances and information available to them at the time. See § 15-10-3, Code of Alabama 1975.

The two syringes found in the appellant’s pocket as a result of the “pat down frisk” for weapons was incident to the lawful arrest for the possession of cocaine. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Under these circumstances a search warrant was not required and the syringes were properly admitted into evidence.

The packages of cocaine which were received into evidence as State’s Exhibit No. 1 were not discovered as a result of the search. They were found lying on the street after Officer Hudson said that he had seen something thrown from the passenger’s side of the car in which appellant was riding. Under these circumstances, the packages of cocaine were properly admitted.

Regarding appellant’s insistence that the police officer was not able to recognize the substance, the testimony at the suppression hearing indicated Officer Green was told by the informer that the appellant was in possession of cocaine, and Green stated: “In my own mind I knew it was cocaine.” Therefore, it is our judgment that the packets retrieved by Officer Taylor and ultimately turned over to Corporal Green came within the.plain view doctrine. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Shipman v. State, 51 Ala.App. 80, 282 So.2d 696.

The appellant has also questioned the reliability of the informant. He argues that the information came from an informant whose “reliability was questionable.” That the informant was alleged to have run a massage parlor and was alleged to have had illicit affairs with different men would not be a guidance in determining her reliability as an informant. The test is whether the information she had given to the officers on previous occasions was in fact accurate and reliable. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Under these facts recited above, we find that she had, on approximately twenty occasions, given information which led to convictions in two cases. Further, information which she relayed to Corporal Green was tested in the instant case and the accuracy of the information was shown to be true in every detail. Consequently, we are of the opinion that the informant’s reliability was sufficiently shown to justify reasonable men in believing that the cocaine was in the Chevelle occupied by the appellant. Clenny v. State, 281 Ala. 9, 198 So.2d 293.

Therefore, it is the judgment of this court that, based on the circumstances and on the information available to the officers at the time, there was probable cause to search the vehicle in which the appellant was riding and to arrest the occupants without a search warrant. Under these circumstances, the trial court properly overruled the appellant’s motion to suppress the evidence. See Daniels v. State, 290 Ala. 316, 276 So.2d 441.

II

The appellant asserts that, after a mistrial had been declared, it was error for the trial judge to compel the appellant to strike a second jury from the same venire. He argues that this procedure prevented him from obtaining a fair trial because the State knew which jurors he would strike during the second selection process. The appellant maintains that the State was given an unfair and improper tactical advantage.

This court, in Owens v. State, 51 Ala.App. 50, 282 So.2d 402, had before it a similar issue although the case was reversed on other grounds. The court held that the trial court did not abuse its discretion when it required the accused to strike a second jury from the same venire from which the first jury had been struck. In Owens, the appellant argued that the trial court’s action placed him at a disadvantage because the State knew whom he had struck in the previous jury and had an advantage in striking the second jury. This court, in Owens, recognized the situation which had been created and stated: “This is true, but the state suffered in kind and degree.” See also, Avery v. State, Ala.Cr.App., 363 So.2d 1036.

In the present case, as the facts recited above show, the State agreed to strike the same veniremen who had been struck by it in the previous selection process. Therefore, any advantage which existed would inure to the benefit of the appellant. Although we do not believe that the trial court’s requirement to strike from the same venire was prejudicial to the appellant, we hasten to comment that the preferred procedure would have been to return the veniremen to the jury box and to draw a new group of veniremen from which the second jury could have been chosen.

See also Dunaway v. State, 291 Ala. 93, 278 So.2d 205. As in Dunaway, the second jury, in the present case, was selected from the same venire before any evidence had been presented to the first jury.

Ill

The appellant contends that the trial judge should have allowed into evidence a letter written by Debbie Spann to the appellant. In that letter, Spann detailed how she and Ortega contrived appellant’s arrest.

In McElroy’s Alabama Evidence, § 177.-01(2) (3rd Ed.1975), we find:

“As a general rule, the impeachment of a witness by the introduction of evidence that he has made a statement which is inconsistent with this testimony does not authorize the proponent of the witness to support his credibility by evidence that the witness has made a statement on another occasion of the same tenor as his present testimony.”

See also, the cases cited therein.

Under the circumstances we find no error in the trial judge’s refusal to admit the letter.

IV

The appellant insists that the trial court was in error when it refused to allow Richard Irving’s testimony regarding an out-of-court experiment conducted at defense counsel’s instigation. In defense counsel’s offer of proof concerning the experiment, counsel stated that Irving would have testified that he observed, on the night prior to trial, defense counsel and his daughter, who is about the same size as Spann, in an automobile. They were observed at the same location of appellant’s arrest and during the same hour. Defense stated that Irving would have testified that, from his vantage point behind defense counsel’s automobile, it was not possible to determine whether defense counsel and daughter switched places or whether a male or female arm appeared out of the window on the passenger’s side.

The court in Madden v. State, 40 Ala. App. 271, 112 So.2d 796, stated:

Out of court experiments are admissible where there is substantial similarity between the essential conditions of the experiment and of the occurrence, and much is left to the discretion of the trial court in determining these similarities.” [Citations omitted.]

In the present case, the record indicates the trial judge’s reservation regarding the similarity between the experiment and the occurrence. Further, no predicate for the admission of the experiment was shown. Therefore it is our judgment that the trial court was acting within its sound discretion in refusing to allow the evidence of the out-of-court experiment.

V

Appellant maintains that the trial judge was in error when he did not allow Debbie Spann to testify that Ti Ortega said, in the hallway outside the courtroom during the trial, that she [Ti Ortega] intended to testify to contriving the appellant’s arrest.

A witness may not ordinarily testify to acts or statements made by a third party which occur outside the presence or hearing of the defendant. Frazier v. State, 48 Ala.App. 210, 263 So.2d 511.

Clearly, the trial judge was correct in sustaining the State’s objection to defense counsel’s attempt to elicit hearsay testimony.

VI

Finally, the appellant contends that the trial judge committed reversible error when he refused to give certain written requested instructions.

The record indicates that the trial judge gave several of appellant’s written requested charges to the jury, with the instruction that the charges were correct statements of law entitled to the same weight given to the court’s oral charge. In our judgment the refused charges were fairly and adequately covered by the oral charge. Section 12-16-13, Code of Alabama 1975; Ingram v. State, Ala.Cr.App., 356 So.2d 761.

VII

The evidence presented by the State indicated a prime example of a probable cause situation, and the evidence was properly received by the court.

Further, the State presented legal evidence from which a jury could by fair inference find the defendant guilty. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

We have searched the record and find no error prejudicial to this appellant; therefore, the judgment of conviction by the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Milan NIKOLIC. (In re Milan Nikolic v. State of Alabama).
    M-676.
    Supreme Court of Alabama.
    Feb. 12, 1980.
   PER CURIAM.

PETITION FOR WRIT STRICKEN — NO OPINION.

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


author: HARRIS, Presiding Judge.

text:
    Jeffrey Alan MEDLAR v. STATE.
    5 Div. 459.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.
    H. Keith Pitts, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., Elizabeth Evans Campbell, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and sentenced to fifty years in the penitentiary. He was represented by court-appointed counsel and at arraignment pleaded not guilty and not guilty by reason of insanity. Prior to trial appellant withdrew his special plea of not guilty by reason of insanity. After sentence was imposed appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on this, appeal.

The evidence presented by the State made out a clear case of robbery. There was no motion to exclude the State’s evidence and no request for the affirmative charge. There was a motion for a new trial questioning the sufficiency of the evidence among other issues pertaining to rulings of the trial court. No testimony was adduced at this hearing and the motion was overruled and denied.

On November 27, 1978, Robert Alley was employed by the Cedars Truck Stop located approximately six miles from Opelika, Lee County, Alabama, on Highway 280 and 431 between Opelika and Columbus, Georgia. A cafe and service station were joined together in one building. The service station had plate glass windows all around the building, and there was a door leading into the cafe from the station.

Around 4 o’clock in the afternoon of November 27,1978, Robert Alley saw two men standing inside the service station while he was servicing an automobile at the gasoline pumps. These two men appeared to be whispering to each other. One of the two men was later identified as the appellant. When Mr. Alley entered the service station to ring up the sale of the gasoline he had just sold in the cash register the men went through the door into the cafe. While Mr. Alley was still putting money in the cash register appellant returned and pulled a pistol demanding money. Mr. Alley gave him all the currency from the cash register. Appellant then walked out and got in an automobile which was parked about four feet from the service station, and the car sped away. Mr. Alley got a good description of the automobile and the tag number. He entered the cafe and told the waitress about the robbery and called the local office of the State Troopers giving them a description of the car and the tag number. He told the officers that the car was white over blue and had a Florida tag number with the letters “DSE” before the numbers. Someone interrupted him while he was talking to the Trooper’s Office and he gave them the wrong number.

State Trooper Charles R. Minor, testified that on the day of the robbery he was between Opelika and Phenix City. He was on duty in a marked patrol car and was in uniform. He received a radio dispatch concerning the robbery at Cedars Truck Stop which described the vehicle involved and that it was headed toward Phenix City. Trooper Minor drove to Opelika and met the suspect automobile in a line of traffic and he turned around and got behind the suspect car. He pursued the car for some distance and finally turned on his blue light but the car kept going. He then turned on his siren but the car did not slow down for a good distance. It finally pulled off on the side of the road.

The trooper saw the heads of three men in the stopped car and he ordered the occupants of the car to get out and put their hands on top of the car. A few seconds later the driver got out and put his hands on top of the car. The officer then ordered the other two men to get out and they came out of the passenger side of the car. Appellant was the last of the trio to exit the automobile and he came toward the rear of the car in a crouched position, dropped to his knees, and fired a pistol at the trooper. The trooper attempted to return the fire but his gun misfired and appellant started running from the car into an open field. Trooper Minor fired at the fleeing felon again and this shot hit appellant and he fell. The trooper radioed his post, related what had transpired, and called for an ambulance and a backup unit. He then patted down the other two men and put handcuffs on them. He found a wad of money in the front pocket of one suspect. Upon searching the car for other weapons he did not find any nor did he find any whiskey bottles or beer cans. With the help of a man living nearby they walked into the field and picked up appellant and walked him back to the patrol car and laid him on the side of the road to wait for the arrival of the ambulance. He did not smell the odor of alcohol on appellant nor did he smell the odor of alcohol on the other two men that he apprehended and handcuffed.

Kenneth R. McCall, who lived nearby, testified that he observed the suspect car pull over in response to the trooper's siren, get out and put his hands on top of the car. He also saw the door on the passenger side open and the occupant who got out fire a shot in the direction of the State Trooper and then start running across the field. He identified the person who shot at the trooper as the appellant.

The ambulance arrived and transported appellant to the Lee County Hospital for treatment of the gunshot wound he received when he was shot in trying to escape from the State Trooper.

Appellant testified that Doyle Fricks, Mark Kuzenska, and he had been steadily and constantly drinking since the morning of November 27, 1978 (the day of the robbery). Appellant stated that he remembered stopping at a truck stop and Mark Kuzenska telling him to rob the man in the store and if they got arrested and appellant said anything to get Kuzenska hurt or put away, he would kill appellant; that the next thing he recalled was waking up in the hospital. He also remembered hearing a shot and finding himself lying in the middle of a field. Appellant said he was intoxicated when he arrived at the truck stop and did not ever form a judgment as to whether it was right or wrong to rob the truck stop. However, appellant admitted that he was not under the influence of alcohol right after he was shot. He also testified that he was 17 years of age at the time of the robbery.

On cross-examination appellant stated that he remembered Kuzenska telling him to shoot the State Trooper. He further said that he recalled Captain Abbett reading him the waiver of rights form and also reading it himself. He said he told Captain Abbett that he wanted to speak to an attorney.

Captain Nick Abbett testified that he interviewed appellant at the Lee County Hospital on the evening of November 28, 1978, and that before he asked him any questions he advised him of his constitutional rights by reading him his Miranda rights and warnings. He asked appellant if he understood his rights and he responded affirmatively and stated that he could read and write. Captain Abbett and appellant both read the waiver of rights form. Captain Abbett asked appellant if he wanted to make a statement and at first appellant said he wanted an attorney. Captain Ab-bett started to leave the room and appellant called him back and stated he had changed his mind and was willing to make a statement. No one offered appellant any reward or the hope of any reward, no promises were made to him, and he was not threatened or coerced in any manner to induce him to make a statement. Captain Abbett reduced to writing appellant’s oral statement and appellant read and signed each page of the confessory statement.

A hearing was held out of the presence and hearing of the jury to determine if the confession was freely, knowingly and voluntarily made. The confession was ruled to be voluntarily and freely made without promises, threats, coercion or other inducements.

On further cross-examination appellant testified that he told Captain Abbett what happened and Captain Abbett wrote it down; that he read the written statement and found it to be correct and he voluntarily signed the statement.

Back before the jury the State laid the proper predicate and the confessory statement was admitted into evidence. It should be noted that according to the signed statement, Fricks, Kuzenska and appellant were on their way to Florida and were short of money, so they planned to rob a store just before they crossed the Alabama state line. Appellant admitted that the statement which he gave Captain Abbett is silent about the trio being drunk or that he was threatened by Kuzenska at any time.

The statement follows:

“OPELIKA POLICE DEPARTMENT
OPELIKA, ALABAMA
“Date 11/28/78
“Time 6:32 PM
“Location Lee County Hospital Room 109
“I, Jeffrey Alan Medler, age 17, born 5/22/1961 at Pontiac, Illinois. I now reside at Rt # 1 Box 228C Half Mile Rd, Del Ray Beach Florida. I went to the 7th grade in school and I can read and write. I have been advised of all my rights by Lt. Nick Abbett (now Captain) and I understand them. I do voluntarily make the following statement to Lt. Nick Ab-bett and Lt. Fred Davis whom I know to be police officers for the City of Opelika, Alabama. I have been advised of the charge of Robbery and Assault on a Police Officer with a Deadly Weapon against me.
“Yesterday 11-27-78 myself and Doyle Wayne Fricks, and Mark Kuzenska left Falkville, Alabama, enroute back to Palm Beach, Florida. The fan belt broke on the car we were in near Cahaba Heights. We paid $5.00 and something to get the belt fixed. We were short of money to travel back to Florida so we talked about robbing a store. All three of us talked about robbing a store. We wanted to get enough money to get all the way back and the only way we could do it was robbing a store. We had planned to rob a store just before we crossed the Alabama, Georgia State line. We stopped at a truck stop and restaurant near a town that I now know is Opelika, Alabama. Mark Kuzenska had brought a pistol with us on the trip. It was a .357 magnum, six shot revolver. You had to pull back the hammer each time you shot. The pistol was in a tape case in the back seat. I took the pistol and put it in the front of pants under my shirt. Mark Kuzenska told me when he said cigarettes to hold the guy up. Doyle Wayne Fricks was driving the car and he stayed with the car. Mark and I went into the service station part of the truck stop. Mark Kuzenska asked the attendant, ‘Could I have change for cigarettes.’ The attendant I assume gave him change because at that time I turned away so he wouldn’t see me pull out the gun. Mark had walked into the restaurant. I laid the barrel of the gun on the counter pointed at the man. I said, ‘give me the money.’ He raised his hands and got up from a sitting position and opened the cash register. He took all the bills out of the cash register and gave them to me.
“I turned and ran out. Mark was watching the robbery and he ran out ahead of me. We jumped into the car and told Doyle Fricks to, ‘get out of here,’ ‘hurry’. Doyle Fricks left out pretty fast. I handed all the money I got in the robbery to Mark Kuzenska and he was counting it. I think he already had $28.00 of his own money. We were going pretty fast and we met a state trooper. The trooper turned around on us and followed us for about half a mile. Then he turned on his blue light. Mark Kuzenska told Doyle Fricks to get out like nothing happened. Doyle got out then the Trooper told us all to get out. Right before he told us to get out of the car Mark Kuzenska said to me, ‘When you get out shoot the police officer.’ Mark was sitting in the front passenger seat and I was in back. Mark got out and then I got out and put the gun up over the car and took a shot at the Trooper. Then I just started running. I don’t know what I did with the gun. I guess I dropped it. Then I got shot. After I got shot the Trooper told me to stay where I was at and I just put my hands up. Then two guys came and carried me back to the road. Then the next I remember is being put into an ambulance. I have read the preceding statement of three and one half pages and it is true and correct to the best of my knowledge.
“Signed: Jeffrey Alan Medler
“Witness: Nick Abbett
“Witness: Fred Davis”

Pursuant to the provision of Section 12-15-34, et seq., Code of 1975, the District Attorney filed a motion in the Juvenile Court of Lee County to have appellant transferred from that court to the Circuit Court of Lee County for criminal prosecution.

The Juvenile Court set a hearing on this motion and after a hearing thereof the following order of transfer was made and entered in this case:

“In The Matter Of: JEFFREY ALAN MEDLER
(Juvenile Case) A child under eighteen years of age.
“On the 28th day of November, 1978, the State of Alabama, by and through its District Attorney, Honorable Ronald L. Myers, filed its Motion to Transfer these proceedings from the Juvenile Court of Lee County, Alabama, for criminal prosecution under the provisions of Title 12, Chapter 15, Section 34, 1975 Code of Alabama.
“By Order of this Court dated November 28,1978, Honorable H. Keith Pitts, attorney of Auburn, Alabama, was appointed to represent the child in these proceedings. Thereafter, the said Motion of the State of Alabama was set for hearing on today, November 30, 1978, at 11:00 A.M. in Room 204 of the Lee County Courthouse in Opelika, Alabama.
“When the Motion was called for hearing on this day, there appeared the child, Jeffrey Alan Medler, together with his attorney, Honorable H. Keith Pitts; and the following individuals: Honorable Ronald L. Myers, District Attorney, 37th Judicial Circuit, Lee County, Alabama; Lieutenant Nick Abbett, Opelika Police Department, Petitioner; Trooper C. R. Minor and Lieutenant E. J. Gosdin, Alabama State Troopers, witnesses; and Mrs. Karen B. Trussell, Probation Officer with the Lee County Juvenile Court. “Honorable H. Keith Pitts, Attorney for said child, filed a Motion to Dismiss Petitions in open Court, and on consideration of the same, said Motion was denied. “The witnesses were duly sworn and testimony was taken ore tenus before the Court.
“As part of the evidence submitted at said hearing, there was introduced into evidence a report submitted by Patricia S. Hillery, Youth Counselor, Division of Youth Services, State of Florida (State’s Exhibit I, consisting of ten (10) pages). “The Court has carefully considered the evidence in this case, including the aforesaid State’s Exhibit I, and it is the opinion of the Court, and the Court so finds, that it is in the best interest of the public that the Motion of the District Attorney be granted. The Court further finds that there are no reasonable grounds to believe that the child is committable to an institution or agency for the mentally retarded or mentally ill. The Court further finds that there is probable cause for believing that the allegations of the Petitions in these cases are true and correct and that the child should be transferred for criminal prosecution for the following reasons: Extent and nature of child’s pri- or delinquency record, results of past treatment of the child and the child’s response thereto, the extent and nature of the child’s physical and mental maturity, and the interest of the community.
“It is therefore ORDERED and ADJUDGED by the Court as follows:
“(1) That the Motion to Transfer filed by the District Attorney on November 28, 1978, be and the same is hereby granted, and these cases are hereby transferred to the Circuit Court of Lee County, Alabama, for criminal prosecution.
“(2) That the Juvenile Probation Officers of this County are hereby directed to deliver the child to the Lee County Jail there to be held in custody by the Sheriff of Lee County, Alabama, for trial, until and unless he makes a good and sufficient bond with good and sufficient sureties in the amount of $5,000.00 in Case Number JU 78 0543 and the amount of $10,000.00 in Case Number JU 78 0544, returnable to the next term of the Circuit Court of Lee County, Alabama.
“(3) That a copy of this Order be mailed by the Clerk of this Court, postage prepaid, or by the due process of this Court, to the following:
Jeffery Alan Medler
C/O Lee County Jail
Lee County Courthouse
Opelika, Alabama 36801
Mrs. Peggy Medler
Route 1, Box 288-C, Half Mile Road
Del Ray Beach, Florida 33444
Honorable H. Keith Pitts
Attorney at Law
Post Office Box 709
Auburn, Alabama 36830
Honorable Ronald L. Myers
District Attorney
37th Judicial Circuit
Lee County Courthouse
Ms. Patricia S. Hillery
Youth Counselor
Division of Youth Services
Palm Beach County
2300 North Seacrest Boulevard
Delray, Florida 33444
“DONE, this the 30th day of November, 1978.
/s/ James Noel Baker
JAMES NOEL BAKER, JUDGE”

In brief, appellant contends that the Juvenile Court was in error in transferring this case to the Circuit Court of Lee County for criminal prosecution. We do not agree.

In Winstead v. State, 371 So.2d 418, Ala., the Supreme Court held that a juvenile transfer or certification hearing is not for determination of guilt or innocence of the juvenile, but is in the nature of a preliminary hearing to determining whether there is probable cause for believing that the allegations are true and correct. Code of Alabama, 1975, Section 12-15-34.

Appellant, in brief, states, “There is no dispute raised on this appeal as to a lack of probable cause at the hearing,” (hearing to transfer).

In Winstead, supra, the court held that strict rules of evidence do not apply in a juvenile transfer hearing.

We hold there was ample evidence to sustain the order transferring the juvenile to the Circuit Court for criminal prosecution as an adult for robbery and shooting at a law enforcement officer who was actively engaged in the discharge of his lawful duties as such officer.

See Brown v. State, Ala., 353 So.2d 1384; Vincent v. State, Ala., 349 So.2d 1145; Williams v. State, Ala., 361 So.2d 1157.

Appellant was represented by counsel at the transfer hearing and at the subsequent criminal prosecution. Trial counsel was appointed to represent appellant on this appeal.

Winstead, supra, stands for the proposition that a voluntary confession of a juvenile is admissible at his transfer hearing despite the fact that no attorney was present at the time the confession was made, but such a confession cannot be used later in a criminal proceeding on the issue of guilt or innocence.

The confessory statement of appellant was not used at the transfer hearing, nor in the prosecution for robbery in the ease in chief. The confessory statement was used in the robbery prosecution on cross-examination for impeachment purposes.

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the Supreme Court held that, while statements made by the defendant which were inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, could not be used as evidence of guilt, they were admissible for the purposes of impeaching the defendant’s testimony at trial providing the trustworthiness of the evidence satisfies legal standards.

It should be noted that the trial court in this case went thoroughly into the question of the voluntariness of appellant’s statement and that there was ample evidence to show the validity of appellant’s waiver of Miranda rights under the guidelines set forth in Parker v. State, 351 So.2d 927 (Ala.Cr.App.), writ quashed 351 So.2d 938.

We hold the trial court did not err in allowing appellant’s statement to be used by the prosecution for impeachment purposes during cross-examination. If this is not the rule, then there is a grave miscarriage of justice.

Prior to trial on the robbery charge appellant applied for status as a Youthful Offender after the Court informed him of the requirements, rights and benefits of the Youthful Offender Act of Alabama, including the fact a probation officer would investigate the case and file a report. On February 6, 1979, a hearing on appellant’s application to be treated as a Youthful Offender was held and appellant was denied Youthful Offender status.

Under the procedure outlined in Clemmons v. State, 294 Ala. 746, 321 So.2d 238, we hold the trial court properly denied the application for Youthful Offender treatment.

There was more than sufficient evidence adduced by the State to sustain the conviction of appellant for robbery, and there was no error in overruling the motion for a new trial.

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

AFFIRMED.

All the Judges concur.

      . That person referred to in this opinion as “Mark Kuzenska” was tried and convicted under the name “Mark Wayne Kuczenska.” See Kuczenska v. State, 378 So.2d 1182 (Ala.Crim.App.1979), cert. denied, 378 So.2d 1186 (Ala. 1980).


text:
    Ex parte Jeffrey Alan MEDLAR. (In re Jeffrey Alan Medlar v. State of Alabama).
    No. M-691.
    Supreme Court of Alabama.
    April 29, 1980.
   PER CURIAM.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Recardo COOK v. STATE.
    6 Div. 129.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied April 1, 1980.

      J. Louis Wilkinson and Charles M. Purvis, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was initially convicted under the Alabama Death Penalty Act and sentenced to death. That conviction was reversed on appeal. Cook v. State, 369 So.2d 1243 (Ala.Cr.App.1977), affirmed in part, reversed in part, 369 So.2d 1251 (Ala.1978), on remand, 369 So.2d 1260 (Ala.Cr.App.1979). The defendant was retried for the robbery and intentional killing of Lewis Webb and again convicted by a jury which fixed his punishment at death. However, the trial judge refused to accept the death penalty as fixed by the jury and sentenced the defendant to life imprisonment without parole as authorized by Alabama Code 1975, Section 13-11-4.

There is only one issue raised on appeal. Near the scene and time of the crime, witness Joe Otto Goldson observed a man running. He was told that “the guy running up the street had shot Webb and got his money”. Goldson headed in the direction the man was fleeing and next saw him in a black and white Thunderbird automobile. On a piece of newspaper Goldson wrote the tag number of the Thunderbird and the words “black with white top”. That same day he transferred this information to another piece of paper and gave the newspaper to the police at the scene.

At trial the two pieces of paper to which Goldson had transferred this information were introduced by the State over the defendant’s objection: one piece of paper bearing the tag number, the other the words “black with white top”.

On appeal the defendant contends that these memorandums were inadmissible because there was no showing that witness Goldson still did not remember the facts after consulting the memorandums.

The rule cited by the defendant is correct. Parsons v. State, 251 Ala. 467, 478, 38 So.2d 209 (1948).

“Under the doctrine of past recollection recorded a witness may testify to a transaction or event on the basis of a written record of his past recollection, although the writing does not refresh his memory and he has no independent recollection of the event or transaction. Under this rule the memorandum may be admitted into evidence as a substitute for the witness’s oral testimony. Witness’ Use of Memo-randa, 476. However before the notes or record are admissible it must be shown (1) that the witness at one time personally knew the facts upon which he is being examined, and that the memorandum is a correct record of them; (2) that the record was made soon after the occurrence so that the facts were fresh in his mind; and (3) the original memorandum must be produced or its absence accounted for. Witness’ Use of Memoranda, 475-476. Only after this predicate has been laid may the actual memorandum be introduced into evidence.”
Gibson v. State, 347 So.2d 576, 581 (Ala.Cr.App.1977).

However, this issue was not properly presented at trial and cannot be raised for the first time on appeal.

At trial defense counsel’s objections were:

“MR. WILKINSON: Let me say this, Judge. We object to anything but the original of this. If it’s available and I assume that it is.
“THE COURT: Well, that’s a memorandum.
“MR. WILKINSON: Yes, sir.”
******
“MR. WILKINSON: We would like to ask a question on voir dire before anything is read from the piece of paper so we will know exactly what it is.
“THE COURT: You may. Just to the admissibility.”
******
“MR. WILKINSON: We do object to it, yes, sir.
“THE COURT: Overruled.
“MR. WILKINSON: We except.”

Defense counsel’s voir dire of the witness only concerned the fact that the paper Goldson was preparing to read from was a “second piece of paper ... as opposed to the one (he) gave to the Police Department.”

This objection was not proper. The plain error rule applies only to “cases in which the death penalty has been imposed”. Alabama Rules of Appellate Procedure, Rule 45A. It is a fundamental and basic principle that the trial judge is required to rule on objections on the grounds specified. Specific grounds for objection waive all grounds not specified, and the trial judge will not be placed in error on grounds not assigned in an objection. Carter v. State, 205 Ala. 460, 462, 88 So. 571 (1921); Andrews v. State, 359 So.2d 1172, 1176 (Ala.Cr.App.1978). “Unless appropriate grounds are stated, objections to the admission of evidence are unavailing on appeal, even though the evidence may have been subject to some ground not assigned.” Reese v. State, 49 Ala.App. 167, 171, 269 So.2d 622, 625, cert. denied, 289 Ala. 750, 269 So.2d 625 (1972). See also Wafers v. State, 360 So.2d 358, 363 (Ala.Cr.App.), cert. denied, Ex parte Waters, 360 So.2d 367 (Ala.1978); Stemple v. State, 352 So.2d 33, 36 (Ala.Cr.App.1977). “Only those grounds of objection presented to the trial court can serve as a basis for a reversal of its action.” Harris v. State, 57 Ala.App. 558, 329 So.2d 618 (1976).

An objection must fairly and specifically point out the particular grounds on which error is alleged to have occurred. This would apprise the trial judge that he might be reviewed for overruling the objection and allow him to change his mind if he so wished. Harrison v. Baker, 260 Ala. 488, 491, 71 So.2d 284 (1954).

“A specific objection overruled will be effective to the extent of the grounds specified, and no further. An objection overruled, therefore, naming a ground which is untenable, cannot be availed of because there was another and tenable ground which might have been named but was not: . . ”
J. Wigmore, 1 Evidence § 18 (3rd ed. 1940).

The only exception to this rule is where there is no purpose at all for which the evidence could have been admissible. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958) (evidence not admissible for any purpose); Echols v. State, 256 Ala. 389, 55 So.2d 530 (1952) (evidence illegal for any purpose); Watkins v. State, 219 Ala. 254, 122 So. 610 (1929) (evidence patently illegal, irrelevant or immaterial).

If the defendant had pointed out to the trial judge the defect in the predicate now maintained, it might have been supplied by further proof and the rights of all parties saved. 1 Wigmore § 18.

“They (counsel) must stand or fall upon the case they made below, for this court is not a forum to discuss new points of this character, but simply a court of review to determine whether the rulings of the court below on the case as presented were correct or not.” 1 Wigmore, § 18 at p. 341, quoting from Wolverton v. Com., 7 S. & R. 273, 276 (1821).

We have searched the record for error prejudicial to the defendant. The judgment of the circuit court is due to be and is hereby affirmed.

AFFIRMED.

All Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Recardo COOK. (Re: Recardo Cook v. State of Alabama).
    79-526.
    Supreme Court of Alabama.
    June 27, 1980.
   TORBERT, Chief Justice.

Writ denied.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


text:
    John WHITE v. STATE.
    1 Div. 70.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Certiorari Denied May 6, 1980.

      Thomas M. Haas, James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, John White, was convicted for unlawfully selling phencyclidine, a controlled substance, and sentenced to five years imprisonment, and assessed a fine of one thousand dollars, and placed on probation for five years, and he appeals to this Court.

This appeal was submitted on briefs. The appellant was represented by counsel of his choice at all proceedings in the trial court, and is so represented in this Court.

Appellant contends in his brief that his conviction should be reversed because the trial court erred: by allowing the admission into evidence of state’s exhibit number 1 over appellant’s objection that state had failed to affirmatively prove the chain of custody; by overruling appellant’s motion for a mistrial on the grounds of prosecutor’s highly prejudicial comments about appellant’s counsel; due to the cumulative effect of prosecutor’s prejudicial comments during his closing remarks; the court’s refusal to give appellant’s written, requested jury instruction number 5.

State’s evidence tended to prove that state’s witness, Officer Beard, was employed by the Mobile County Sheriff’s Department Of Narcotics Division as an undercover agent; that basically her duty was to buy drugs from persons off the street; that she knows the appellant, John White; that on April 20,1977 she went to the home of the appellant in Mobile County, Alabama, and asked him if he had anything for sale and he said he had some phencyclidine, known as TAC, and angel dust, and tea; that at the time she went to the home of the appellant she did not have any controlled substances on her, or anything, other than the money she had with her; that she paid the appellant the money for the phen-cyclidine, and the appellant gave her a substance in clear cellophane; that state’s exhibit 1 appears to be the paper that she made the buy in; that the substance she bought from the appellant is in the same condition now as when she bought it from appellant and when she turned it over to Deputy Richard White.

State’s evidence further tended to prove that on April 20, 1977 state’s witness, Officer Richard White, was employed as a deputy sheriff for Mobile County; that he and Officer Beard were working together; that he received the substance contained in state’s exhibit 1 from Officer Beard, put it in an envelope, and kept it in his possession for about ten or fifteen minutes and turned it over to Dr. Sennett; that it was in the same condition when he turned it over to Dr. Sennett as it was when he received it from Officer Beard. On cross-examination Officer Richard White testified that he does not have any idea whether state’s exhibit 1 is what Officer Beard gave to him or not.

State’s evidence further tended to prove that state’s witness, Dr. Sennett, an employee of the State Department Of Toxicology And Criminal Investigation, was a qualified drug analyst; that state’s exhibit number 1 was received by Dr. Sennett from Deputy Sheriff Richard White, and Dr. Sennett put it in that envelope and sealed it; that witness removed the seal and analyzed the contents of the envelope and the test revealed the presence of phencyclidine, a controlled substance; that the contents of the envelope were placed back in the envelope and resealed by Dr. Sennett. The record shows that state’s exhibit 1 was then offered in evidence by the state, and the appellant objected to its admission on the grounds that proper chain of evidence has not been established. The court overruled appellant’s objection and state’s exhibit number 1 was admitted in evidence.

We hold that the evidence in this record is sufficient to warrant the reception of state’s exhibit 1 in evidence against the objection that an unbroken chain of possession has not been shown. It is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the substance was the same as bought from appellant by Officer Beard, and not substantially different from the substance as it existed at the time she received it from appellant. Dennison v. State, 259 Ala. 424, 66 So.2d 552; Pitts v. State, 291 Ala. 136, 279 So.2d 119; Blakey v. State, Ala.Cr. App., 344 So.2d 812.

Appellant’s contention that the trial court erred in overruling his motion for a mistrial because of the prosecutor’s highly prejudicial comments on appellant’s attorney is based on the following comment made by the prosecutor during his closing argument. We quote from the record:

“MR. NEWMAN: After twenty-six years I hope something comes out of that. He’s certainly paid enough.”

Whereupon the jury was excused. Out of the presence of the jury appellant made a motion for a mistrial on the grounds that the prosecutor made improper argument to the jury, and it’s improper and cannot be corrected. The court overruled appellant’s motion for a mistrial, and the appellant excepted to the court’s ruling. Whereupon the jury returned to the jury box and the following took place in the presence of the jury:

“THE COURT: All right. Ladies and gentlemen of the jury, I’m going to ask you to disregard any statement made by Mr. Newman concerning, I hate to even repeat the substance, but I have to I suppose. Any income he may or may not make because there’s no evidence of that and even if there were it would be immaterial. I don’t know how to erase it from your mind anymore than to ask Mr. Newman to now state what he’s going to state.
“MR. NEWMAN: It was not the best thing to say. I apologize to the members of this Jury. It slipped out in the heat of argument, and I certainly hope you don’t hold it against me or the State of Alabama or Mr. Haas or his client. And, again, I hope you can take that out of your mind. And it just slipped out. It’s one of those things in the heat of combat that just comes out and I apologize to each and every one of ya’ll individually and as a collected body.
“THE COURT: If there’s any member of the Jury who feels that he or she cannot exclude that from his mind it’s best to get this case over with right now, because it is not anything for you to consider in any way whatsoever. Is there anyone who feels like he can’t get it out of his head? All right. Let’s proceed.
“(Whereupon, Mr. Newman continued his closing statements to the Jury.)”

In its oral charge to the jury the court further charged the jury:

“Now, there were several times when I asked you to disregard things that were said because they were prejudicial or erroneous and it is your duty to follow that instruction and disregard those things I told you to disregard.”

Appellant also objected to the following statements made by state’s counsel during his argument to the jury: 1. “In fact, I know she wasn’t home;” 2. “We don’t want anybody in the penitentiary that’s not guilty, but we want the guilty in the penitentiary where they belong so they won’t be selling drugs to your family to members of your family, members of your community;” 3. “Ladies and gentlemen, I’m not asking you to convict an innocent man. That’s not my job. I’m asking you to put this man in the penitentiary because he’s not innocent.” The trial court sustained appellant’s objections to all of the foregoing statements made by state’s counsel and instructed the jury to disregard them.

We consider appellant’s second and third contention together. The record in this case is clear to the fact that on each occasion the trial court immediately sustained appellant’s objections to the improper remarks of state’s counsel to the jury during his argument, and instructed the jury not to consider the counsel’s remarks, that they were improper and are not evidence to be considered by, or influence the jury’s decision.

We have considered the manner in which each statement was made, the type of the remarks, the manner of the objections, and the promptness and manner of the trial court’s charge to the jury with reference to the statements at the time they were made, and in his oral charge to the jury, and the fact that only short fragments of counsel’s statements to the jury appear in the record, and are of the opinion that the ruling of the trial judge, who had all the facts concerning the oral arguments of counsel for the state and for the appellant before him at the time, should not be overturned by this Court for denying appellant’s motion for a mistrial due to improper remarks by state’s counsel. Troup v. State, 32 Ala.App. 309, 26 So.2d 611; Bell v. State, 227 Ala. 254, 149 So. 687; Pilley v. State, 247 Ala. 523, 25 So.2d 57; Cobb v. State, 248 Ala. 548, 28 So.2d 713.

We have carefully considered appellant’s refused, written charge number 5, all of appellant’s given written charges, and the court’s oral charge to the jury. It is our opinion that appellant’s refused, written requested charge number 5 was fully and amply covered by other appellant’s given, written charges, or by the court’s oral charge. We hold that the trial court did not err in refusing to give appellant’s written charge number 5. Sec. 12-16-13, Code of Ala., 1975; Dillard v. State, Ala., 371 So.2d 947; on remand, Dillard v. State, Ala.Cr.App., 371 So.2d 948.

As provided by Alabama Code, 1975, Title 12-22-240, we have searched the record for any other errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concurred.


author: JONES, Justice.

text:
    Ex parte John WHITE. (Re: John White v. State).
    79-614.
    Supreme Court of Alabama.
    July 7, 1980.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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