author: BOOKOUT, Judge. DeCARLO, Judge,

text:
    David SELF, alias v. STATE.
    6 Div. 200.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      Joseph G. Pierce of Drake & Pierce, University, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Sale and possession of lysergic acid diethylamide (LSD); sentence: $15,000 fine and imprisonment for ten years and one day.

Around noon on July 15, 1978, Don Williams, an undercover agent with the Alcohol and Narcotic Division of the Alabama Alcoholic Beverage Control Board (hereinafter ABC), and Charles Gates, a “contract” informant working with that division, visited the Tuscaloosa residence of David Koon while participating in an extensive interstate drug enforcement operation. The previous evening Williams had discussed a possible drug purchase with Koon and had arranged to meet at Koon’s home the following day where the appellant was supposed to deliver some mescaline. After Williams and Gates had been there approximately thirty minutes, the appellant arrived carrying a brown paper bag. They all sat down, and the appellant described an exhausting journey he had taken in a dynamite truck the night before in order to have the drugs there that day. After a few minutes Williams, Gates, Koon and the appellant walked to a rear bedroom where the appellant measured out approximately one ounce of a brown powdered substance spiked with green fragments from a plastic bag he took from the brown sack. He put the measured substance into a smaller plastic bag. Williams testified that Koon and the appellant discussed the price and Koon told Gates the price would be $700 although he could get a better price in the future if he bought in volume. Williams counted out $700 and handed it to Gates who gave Koon the money. The appellant then handed the small bag to Gates. As he was leaving Gates placed the small bag into a leather pouch which he later turned over to Williams and the proper authorities. An analysis of its contents revealed that the substance was LSD rather than mescaline.

Before they left Williams and Gates agreed to return that evening to make other purchases when a courier from Atlanta was due to arrive with a large quantity of drugs. Late that night the agents went back to Koon’s home and participated in another drug deal with Koon. Williams testified that, although the appellant was present at Koon’s residence when this later transaction took place, he was not an actual participant.

Appellant insisted that he never participated in a drug transaction at Koon’s home. He testified that he went there during the afternoon of July 15,1978, to look at Koon’s Doberman pinscher puppies. He averred that while en route to the rear bedroom where the puppies were kept Gates stopped him in the hallway and asked appellant to sell him Dilaudid, which appellant refused.

Appellant’s wife testified that her husband was at home all night on July 14,1978 (rather than driving a dynamite truck all night). Appellant’s employer, Bill Robertson, testified that he and the appellant were building a wine cabinet on the morning of July 15. Refuting the allegation that appellant was present at Koon’s residence when a second drug sale took place, Robertson stated that he and his present wife had dinner and watched television at appellant’s home that night until sometime between 10:00 p.m. and midnight. Appellant’s wife avowed that the appellant did not leave their residence that night after the Robertsons’s departure. Although several witnesses testified to appellant’s good reputation in the community, the appellant had prior convictions for bank robbery and Dyer Act violations in other states.

I

On April 2, 1979, the defense filed a pretrial motion to produce the State’s informant, Charles Gates, as a material witness. A hearing was held thereon on April 7, 1979, and the motion was denied. Likewise, a defense motion to dismiss the charges was refused. Trial was commenced on November 6, 1979.

Charles Gates was not only a paid informant for the State, but was an active participant in and an eyewitness to the transaction in question. He disappeared prior to the instant trial, and defense counsel contends that there was enough State action involved in his disappearance so as to deny appellant his constitutional right to a fair trial pursuant to Amendments V, VI and XIV to the United States Constitution and Article I, § 6, Constitution of Alabama 1901.

The facts indicate that in June 1978 Gates had several drug charges pending against him in Alabama. He began working with undercover agents of the ABC Narcotic Division as a “contract” informant about a month later. Agent Larry Williams, evidence officer in appellant's case, testified that Gates was working with them to “get out of trouble.” Gates’s function was to provide undercover for Agent Don Williams in order to “make cases.” Although there was testimony that he was not initially paid for his work, Agent Larry Williams stated that Gates was paid biweekly wages in addition to expense money for his work in subsequent cases prior to his disappearance in September 1978.

It is obvious that the State did not intend to use Gates as one of its witnesses. ABC Area Supervisor Glenn Shurrett testified that “we try to make our cases so that our officers are the ones who testify.” We find no fault in that procedure because the State is not required to call all witnesses who are competent to testify, and this principle applies even to a special agent or informant who participated in the transaction. Washington v. United States, 275 F.2d 687 (5th Cir.1960). However, a major problem arises here in that before Gates vanished he told two of the ABC agents that he feared for his life and planned to leave the country. Likewise, Agent Larry Williams testified that the State ended Gates’s services because he had “outlived his usefulness to us.”

Since Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), it is clear that the general rule of nondisclosure of witnesses is not always applicable to the government informant. In cases involving the “tipster” type of informant, who merely conveys information to the government but neither witnesses nor participates in the offense, courts generally hold that the disclosure of his identity is not material and, therefore, not required. However, when the informant is actively involved or is an eyewitness to the crime, disclosure of his identity is required when nondisclosure would deprive the defendant of a fair trial. Ortez v. State, Ind.App., 333 N.E.2d 838 (1975); United States v. Barnes, 486 F.2d 776 (8th Cir.1973); Portomene v. United States, 221 F.2d 582 (5th Cir.1955); McElroy v. State, Ala.Cr.App., 360 So.2d 1060, cert. denied, Ala., 360 So.2d 1067 (1978); Kilgore v. State, 50 Ala.App. 501, 280 So.2d 206 (1973). In such cases the State has the option to provide the information or suffer a dismissal. Roviaro, supra; People v. Goliday, 8 Cal.3d 771, 106 Cal.Rptr. 113, 505 P.2d 537 (1973). The State is thereby placed in a position where it must balance the usefulness and safety of a valuable informant against the possibility of dismissal.

Clearly, we are not concerned here with the failure or refusal of the State to disclose the identity of an informer— Gates’s identity was known even at the preliminary hearing. We are, however, concerned with the power and ability of the State to effectively deny to a defendant evidence which may be crucial to the formulation of a proper defense. The result to the defendant is the same whether the informant is unknown or unavailable. Ortez, supra; Goliday, supra.

It is critical to remember here that the credibility of the opposing testimonies of Agent Don Williams and appellant form the fulcrum upon which the determination of appellant’s guilt or innocence must be balanced. The only evidence against the appellant is the word of Williams.

Because Koon was also facing criminal charges, Gates offered the only chance for the appellant to impeach or contradict the State’s testimony and possibly corroborate his own testimony that he did not participate in the drug transaction. Had Gates’s testimony corroborated appellant’s story, it may well have resulted in an acquittal. However, what the testimony may be or its effect at trial is not the determining factor here.

We reject the State’s notion that the appellant must offer specific proof of what Gates’s testimony would reveal. Under such circumstances it is the material character of the witness, not of his testimony, which must be demonstrated. United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir.1971); People v. Mejia, 57 Cal.App.3d 574, 129 Cal.Rptr. 192 (1976). Any specific showing of the testimony is made unlikely and sometimes impossible by the very unavailability of the witness. Therefore, no showing that Gates’s potential testimony would exonerate appellant was required although the appellant did in fact allege in his motion that “if the witness Charles Gates was produced to testify at the Defendant’s trial he would testify that the Defendant did not participate in or commit the alleged drug violation with which he is charged.”

In the instant case the record does not indicate the State deliberately concealed the informant. We recognize that Alabama has very limited authority in bonding or jailing certain witnesses, per § 15-11-12, et seq., Code of Ala.1975. However, Gates was free pending proceedings on several drug charges. He informed two State drug agents of his intention to leave the country, and they did nothing to prevent him from leaving the jurisdiction of the state knowing that he had felony charges pending against him.

The appellant had the right here to formulate his defense uninhibited by government conduct that, in effect, prevented him from interviewing and possibly later calling a witness who was intimately involved in the activity charged in the indictment.

While the government is generally under no obligation to look for defense witnesses, such an obligation may arise where a showing has been made that a material witness was made unavailable to the defense “through the suggestion, procurement or negligence” of the State. Ferrari v. United States, 244 F.2d 132 (9th Cir.1957), cert. denied, sub nom. Cherpakov v. United States, 355 U.S. 873, 78 S.Ct. 124, 2 L.Ed.2d 78.

It is of particular interest in this case that the defense and prosecution entered into a stipulation wherein, inter alia, it was admitted that prior to the offense in question Gates had been indicted in Montgomery for the sale of a controlled substance. That case was nol prossed on October 6, 1978. Likewise stipulated was the fact that prior to the instant offense Gates had been arrested in Elmore County on five drug offenses which were submitted to the grand jury on August 8, 1978, and were “no-billed” on February 12, 1979.

Here, the informant had been charged in several felony drug cases made by State ABC agents. From the evidence and clear inferences drawn therefrom, the informant was working his way out of trouble. Put another way, he was informing on others with the understanding that his cases would be dismissed. He was being paid biweekly and was paid for work done on cases after this case which would have covered a period between July and September 1978. The State agents ended his services when his usefulness to them was over. He was paid for services he had performed. He told two State ABC agents he was leaving the country and they acquiesced. One of those agents was an ABC Board supervisor. Although there were several outstanding felony charges against the informant, the ABC agents did nothing to prevent him from leaving this jurisdiction. Additionally, the pretrial hearing reveals no reasonable effort on the part of the State to locate the informant after appellant moved for his production. Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir.1965).

Our holding today is limited to the facts presented in this case and should not be construed to extend beyond the fact situation here presented for we recognize the general rule that the State is not the guardian of all those who cooperate in criminal investigations. It is not necessary to determine in this case whether the State should do more than furnish an appellant with an informant’s name and last known address when disclosure is required because the facts here preempt that question.

We recognize that to be successful in the fight against unlawful drug traffic law enforcement officers must rely extensively upon the use of informants. We are well aware that: “Informants in drug cases are not Brahmins, nor are they noted for long-term occupancy of well-tended premises. Their disappearance, voluntary or otherwise, is not extraordinary. . . . ” United States v. Super, 492 F.2d 319 (2nd Cir.1974).

We are well aware of the problems facing law enforcement in drug cases. However, we must also recognize the rules set out in cases cited hereinabove that the State or its agents can have no part in depriving a defendant of the right to prepare his defense in a criminal case. This is not a case of a State’s witness merely disappearing. The witness here was a paid informant, but more importantly the State used him not as a mere informant but as a principal in the transaction. The cases are clear that when an informant is so used by the State, the State may also assume the burden of identifying him or producing him if the material character of his potential testimony is made apparent.

This case must therefore be remanded to the circuit court for a new trial wherein the State must either produce the material witness, Charles Gates, or else suffer a dismissal.

II

An additional issue was raised by the appellant which may likewise present itself on trial. The appellant contends that the trial court committed reversible error in failing to give the appellant’s requested Charge No. 4:

“Ladies and gentlemen of the jury, I charge you that the fact that one associates with a narcotic [sic] dealer in no way calls for an inference that such person is engaged in the criminal traffic of narcotics.”

The refusal of that charge was free of error.

Appellant argues that since that charge was taken directly from dictum in Thomas v. State, AIa.Cr.App., 353 So.2d 54, cert. denied, Ala., 353 So.2d 59 (1977), based on language found in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), it is a correct statement of the law. We have not been cited to nor have we found a case where the statement contained in the above charge has been approved as a proper charge to a jury. Merely lifting language from an appellate opinion does not insure its acceptability as a correct instruction to the jury. Tate v. State, Ala.Cr.App., 337 So.2d 13 (1976); Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962); Lakey v. State, 258 Ala. 116, 61 So.2d 117 (1952). Each charge must be considered in light of the evidence in the case in which it is requested.

It is evident that the factual situations in Thomas and Sibron, supra, are not analogous to the facts in the case at bar. Those cases dealt with questions of probable cause as applied to the warrantless searches and arrests. Considering the evidence here, Charge No. 4 tended to mislead the jury to believe that such evidence bore directly upon the question of guilt or innocence of the appellant. Furthermore, Thomas and Sibron present factual situations in which the association was the only factor connecting the appellant with the criminal conduct. In the instant case, direct testimony connected the appellant with the illegal drug transaction.

In addition, requested charges which are mere statements of legal principles without instruction as to the effect upon or application to the issues are abstract and may be properly refused. Hudson v. State, Ala.Cr.App., 335 So.2d 208, cert. denied, Ala., 335 So.2d 211 (1976); Cork v. State, 50 Ala.App. 670, 282 So.2d 107 (1973). This court remarked in Hudson, supra, at 211:

“It has long been the rule in Alabama that requested instructions, tendered in a criminal ease, should be written in such a form that they are hypothesized on a ‘belief from the evidence.’ A refusal of instructions not so hypothesized is not error, and a trial judge may properly refuse any requested instruction not predicated upon a consideration of all the evidence.. . . ”

The refusal of appellant’s requested Charge No. 4 was not error. However, as set out in part I hereinabove, the judgment of conviction must be reversed and the cause remanded to the circuit court.

REVERSED AND REMANDED.

All the Judges concur, except DeCARLO, J., dissents.

DeCARLO, Judge,

dissenting.

I must respectfully dissent. Roviaro v. United States, supra, which the majority cites, does not mandate reversal in this case. Roviaro, requires only the disclosure of the informant’s identity. There is no dispute here that appellant knew the identity of the informant. The only question is whether the State should be required to produce that informant once he has left the jurisdiction.

The majority recognizes that “the government is generally under no obligation to look for defense witnesses,” but it cites Ferrari v. United States, supra, for the proposition that “such an obligation may arise where a showing has been made that a material witness was made unavailable to the defense ‘through the suggestion, procurement, or negligence’ of the State.” Presumably then, the majority finds that the State was “negligent” in failing to prevent Gates from leaving the jurisdiction prior to appellant’s trial, notwithstanding the fact that the majority concedes “Alabama does not have a statutory provision which gives the State authority to detain material witnesses.”

It is difficult to determine what the majority would have had the State do to detain Gates. As the majority notes, Gates “feared for his life.” the State could have offered him protective custody, but what if Gates had refused the protection? Had the State picked up Gates and incarcerated him pending appellant’s trial, we would have no hesitation in ordering that he be released on a writ of habeas corpus. See Stinson v. State, 43 Ala.App. 257, 188 So.2d 287, cert. den. 279 Ala. 691, 188 So.2d 288. There can be no “negligence” in failing to do that which the State is not authorized or empowered to do.

In Ferrari, supra, which the majority cites, the Ninth Circuit found no “negligence” on the part of the government in failing to produce the informant. In Ferrari, the informant had been a special undercover employee of the San Francisco Bureau of Narcotics. The defendant’s attorney attempted to subpoena the informant by leaving a copy of the subpoena with the Bureau of Narcotics. The head of that Bureau stated that “he had no idea of [the informant’s] whereabouts, [and] that he had no intention of finding her.” 244 F.2d at 141. The Ninth Circuit approved the Bureau Chief’s action (or inaction), finding that, since the subpoena was not a court order directed to the Bureau, the chief was under no obligation to comply with it by searching for the informant. Further, despite the contention of the defendant in Ferrari that he “was in jail and not free to search out his witnesses or the government’s,” 244 F.2d at 142, the Ninth Circuit observed:

“We know of no rule which holds it error for the government to fail to put on the stand a witness, not deemed necessary to its case, who might conceivably have given testimony favorable to the defendant. It is for the defendant to make his own defense. ”

244 F.2d at 141, quoting Deaver v. United States, 155 F.2d 740, 744 (D.C.Cir.), cert. den. 329 U.S. 766, 67 S.Ct. 121, 91 L.Ed. 659 (1946) (emphasis supplied by the Ferrari court).

The facts in this case do not warrant carving out a special duty for the State to produce informants who have several outstanding felony charges and who appear to be “working [their] way out of trouble.” The very nature of drug traffic cases suggests that the informants in these cases will, perhaps more often than not, be cooperating with law enforcement officers in order to reduce their own criminal liability. If we follow the rationale employed by the majority, then the State will become, contrary to the assertion of the majority, “the guardian of all those who cooperate in criminal investigations.”


source: Caselaw Access Project

author: TORBERT, Chief Justice. ADAMS, Justice

license: Public Domain

text:
    Ex parte: State of Alabama. (Re David SELF, alias v. STATE of Alabama).
    80-373.
    Supreme Court of Alabama.
    June 4, 1982.
    Rehearing Denied July 9, 1982.

      Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for State.
    Joseph G. Pierce of Drake & Pierce, University, for respondent.
   TORBERT, Chief Justice.

We granted a writ of certiorari to the Court of Criminal Appeals, 420 So.2d 792, to review that court’s judgment which reversed the conviction of respondent, David Self, remanded the case for a new trial and ordered the State to either produce the material witness, Charles Gates, or dismiss the case against respondent. The facts and circumstances involving the issue presented to this Court are adequately set forth in the opinion of the court below.

The issue presented is whether under the facts and circumstances of this case, the State had the obligation of assuring the availability of informant Gates on the trial of the case against respondent Self. If the State has this obligation under the law and the facts, and fails to discharge it, Self’s constitutionally mandated guarantee of a fair trial is violated and he cannot be prosecuted for the alleged offense. The critical facts as found by the Court of Criminal Appeals appear to be as follows: The State did not conceal the informant from the respondent; Alabama does not by statute provide the State authority to detain material witnesses; Gates informed state agents of his intention to leave the jurisdiction of the state; and the state agents did nothing to prevent him from leaving the state although the State was aware that Gates had felony charges then pending against him.

The United States Supreme Court, in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), set the minimum standards of protection to be afforded an accused where the informer is an active participant in the illegal activity which results in the subsequent arrest and conviction of the accused. The Supreme Court held that if a confidential informer is a material witness, i.e., an active participant in the illegal transaction which leads to the charges brought against the accused, then the accused is entitled to learn from the State the identity of the confidential informant and his address. We believe that Roviaro establishes the minimum obligation of the State when, as here, an informer becomes an active participant in the illegal transaction. This rule has consistently been followed by our appellate courts. See, Rivers v. State, [MS. February 24, 1981] 414 So.2d 466 (Ala.Crim.App.1981), after remand [MS. June 23, 1981] - So.2d - (Ala.Crim.App.), writ quashed, [MS. June 4, 1982] (Ala.1982); McElroy v. State, 360 So.2d 1060 (Ala.Cr.App.) cert. denied 360 So.2d 1067 (Ala.1978); Hatton v. State, 359 So.2d 822 (Ala.Cr.App.1977), writ quashed, 359 So.2d 832 (Ala.1978); Kilgore v. State, 50 Ala.App. 501, 280 So.2d 206 (1973).

The Court of Criminal Appeals in Kilgore v. State noted:

“The primary purpose for the disclosure of an informer’s name or identity is to prevent a miscarriage of justice in cases where an accused might have been entrapped into committing the offense for which he is prosecuted. The fundamental requirements of fairness compels disclosure in such cases where the informer plays a major and active part in bringing about the sale of narcotics and continues [as] an active participant therein.”

50 Ala.App. at 503.

While Roviaro states the minimum obligation, i.e., disclosure of the identity and address of the informant, the decision also leaves the door open for further disclosure if the particular situation so warrants:

“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders non-disclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informers’ testimony, and other relevant factors.”

353 U.S. at 62, 77 S.Ct. at 628.

An examination of the facts in this case reveals that the confidential informer, Gates, played a major role in the illegal sale and thus was an active participant; these facts warrant application of the principles established in Roviaro. We agree with the Court of Criminal Appeals in its rejection of the State’s argument that Self must offer specific proof of what Gates’s testimony would reveal. “It is the material character of the witness, not of the testimony, which must be demonstrated.” People v. Mejia, 57 Cal.App.3d 574, 580, 129 Cal.Rptr. 192 (1976). It is inappropriate for this Court “to indulge in any speculation that the interviews would, or would not, have been fruitful to the defense.” United States v. Mendez-Rodriguez, 450 F.2d 1, 5 (9th Cir. 1971).

However, we cannot agree that the conduct by the State in this case warrants reversal of the conviction. The State had an obligation to disclose the identity of the informer and his address. The record establishes that the State met this obligation. Thus, the instant question is whether due process requires more than the minimum established in Roviaro.

Self proposes that this Court recognize the State’s failure to keep Gates available as infringing upon Self’s right to a fair trial guaranteed by the United States and Alabama Constitutions. We cannot agree with this proposition. “The contention that the State was under a duty to maintain contact with [the informant] is not in accord with the authorities on the subject. Neither the State nor the United States can be expected to do the impossible.” Taylor v. State, 371 So.2d 971, 974 (Ala.Cr.App.), writ denied, 371 So.2d 975 (Ala.1979). In this case the State could not have kept Gates in the state so that he could testify if Self had wanted to use him in his defense. It is true that charges were pending against Gates for drug-related charges in Montgomery and Elmore Counties, but the State could not have used these charges to hold Gates pending the prosecution of Self. This is true irrespective of the fact that part of the reason Gates worked with the ABC Board was so that these charges would be dismissed. In addition, we know of no Alabama statutes providing for detention or production of witnesses for any kind of case. Judge DeCarlo in his dissent from the majority opinion by the Court of Criminal Appeals adequately expresses our view where he states:

“The majority recognizes that ‘the government is generally under no obligation to look for defense witnesses,’ but it cites Ferrari v. United States, [244 F.2d 132 (9th Cir.1957), cert. denied, sub. nom. Cherpakov v. United States, 355 U.S. 873, 78 S.Ct. 125, 2 L.Ed.2d 78.] for the proposition that ‘such an obligation may arise where a showing has been made that a material witness was made unavailable to the defense “through the suggestion, procurement, or negligence” of the State.’ Presumably then, the majority finds that the State was ‘negligent’ in failing to prevent Gates from leaving the jurisdiction prior to appellant’s trial, notwithstanding the fact that the majority concedes ‘Alabama does not have a statutory provision which gives the State authority to detain material witnesses.’
“It is difficult to determine what the majority would have had the State do to detain Gates. As the majority notes, Gates ‘feared for his life.’ The State could have offered him protective custody, but what if Gates had refused the protection? Had the State picked up Gates and incarcerated him pending appellant’s trial, we would have [had] no hesitation in ordering that he be released on a writ of habeas corpus. See, Stinson v. State, 43 Ala.App. 257, 188 So.2d 287, cert. den. 279 Ala. 691, 188 So.2d 288. There can be no ‘negligence’ in failing to do that which the State is not authorized or empowered to do.
“In Ferrari, supra, which the majority cites, the Ninth Circuit found no ‘negligence’ on the part of the government in failing to produce the informant. In Ferrari, the informant had been a special undercover employee of the San Francisco Bureau of Narcotics. The defendant’s attorney attempted to subpoena the informant by leaving a copy of the subpoena with the Bureau of Narcotics. The head of that Bureau stated that ‘he had no idea of [the informant’s] whereabouts, [and] that he had no intention of finding her.’ 244 F.2d at 141. The Ninth Circuit approved the Bureau Chief’s action (or inaction), finding that, since the subpoena was not a court order directed to the Bureau, the chief was under no obligation to comply with it by searching for the informant. Further, despite the contention of the defendant in Ferrari that he ‘was in jail and not free to search out his witnesses or the government’s,’ 244 F.2d at 142, the Ninth Circuit observed:
‘We know of no rule which holds it error for the government to fail to put on the stand a witness, not deemed necessary to its case, who might conceivably have given testimony favorable to the defendant. It is for the defendant to make his own defense.’
244 F.2d at 141, quoting Deaver v. United States, 155 F.2d 740, 744 (D.C.Cir.), cert. den. 329 U.S. 766, 67 S.Ct. 121, 91 L.Ed. 659 (1946) (emphasis supplied by the Ferrari court).
“The facts in this case do not warrant carving out a special duty for the State to produce informants who have several outstanding felony charges and who appear to be ‘working [their] way out of trouble.’ The very nature of drug traffic cases suggests that the informants in these cases will, perhaps more often than not, be cooperating with law enforcement officers in order to reduce their own criminal liability. If we follow the rationale employed by the majority, then the State will become, contrary to the assertion of the majority, ‘the guardian of all those who cooperate in criminal investigations.’ ”

While we recognize that the minimum required by Roviaro is the informant’s name and address, we believe that the State also has an obligation to disclose information, if any, which would aid the accused in his search for an informant. This obligation is only to furnish information presently within the possession and control of the State. This does not impose upon the State a duty to gather, seek, or find out any additional information pertaining to the location of the informant.

In this case the hearing conducted revealed all the information possessed by the State concerning the whereabouts of Gates. There is no evidence that the State helped or encouraged Gates to leave the state. There is no evidence that the State withheld any information on Gates. We believe that the requirements of Roviaro have been met in this case. We do not believe the State infringed upon Self’s right to a fair trial. The Court of Criminal Appeals erred in ordering the State to produce Gates. The decision by the Court of Criminal Appeals is reversed and the cause remanded.

REVERSED AND REMANDED.

MADDOX, ' FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.

JONES, EMBRY and ADAMS, JJ., dissent.

ADAMS, Justice

(dissenting).

I would affirm the decision of the Court of Criminal Appeals. In doing so, I would not find it necessary to hold that the defendant must be discharged any time the state loses control of a material witness, People v. Mejia, 57 Cal.App.3d 574, 129 Cal.Rptr. 192 (1976). I would not extend Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), requiring that a confidential informer who is an active participant in an illegal transaction must be made known to the accused, with address, if this information is properly requested. But I would apply the rule laid down in Ferrari v. United States, 244 F.2d 132 (9th Cir. 1957), cert. denied sub nom Cherpakov v. United States, 355 U.S. 873, 78 S.Ct. 125, 2 L.Ed.2d 78 (1957), holding that although the state is generally under no obligation to look for defense witnesses, such an obligation may arise where a showing has been made that a material witness was unavailable to the defense “through the suggestion, procurement, or negligence” of the state. Ferarri v. United States, at 141 (emphasis added).

The facts of this case are sui generis. Gates, the material witness in this case, was being paid bi-weekly to inform on others. His additional pay was the state’s promise to dismiss several felony drug charges lodged against him. Gates had been indicted in Montgomery for the sale of a controlled substance and had been arrested in Elmore County on five drug offenses prior to his undercover activities in this case. At one point in time, Gates told state ABC agents that he feared for his life and he was leaving the country. Yet, they did not lift a finger to stop him. Can it conscientiously be said that the state was dealing fairly in these circumstances when it allowed a charged felon to leave the jurisdiction and probably the country without bothering to stop him because his usefulness to them was over? I say not. Furthermore, I think it was their duty and responsibility to jail Gates when they heard from his own lips that he intended to breach the undertaking of his bond. These actions clearly violate the rule that the state cannot negligently allow a material witness to be made unavailable to the defense. Ferarri v. United States, supra. Compounding its wrongdoing, the state dutifully nol-prossed the Montgomery indictment and “no billed” the five drug charges in Elmore County after Gates had left the jurisdiction. This court’s ruling today, reversing the Court of Criminal Appeals, opens the door to the state’s looking the other way when a paid informant’s usefulness is over and to the possible conviction of an innocent defendant. This seems, in my opinion, to offend our constitutional sense of fair play.

JONES and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    David SELF, alias v. STATE.
    6 Div. 200.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
   PER CURIAM.

Upon authority of the opinion of the Supreme Court of Alabama in Self v. State, 420 So.2d 798 (Ala.1982), the judgment of the trial court is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    David Reece VEST v. STATE
    7 Div. 776.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    James S. Ward of Baxley, Stuart, Ward & Dillard, Birmingham, and Robert H. King, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

On his pleas of guilty to separate indictments the defendant was convicted of possession of marijuana and possession of cocaine in violation of the Alabama Uniform Controlled Substances Act. Section 20-2-1 et seq., Alabama Code 1975. Sentence was four years’ imprisonment on each charge to run consecutively.

The defendant maintains that his guilty pleas were involuntary because he was not fully informed of his constitutional rights and because the pleas were the result of coercion and threats by his attorney and by an investigator for the District Attorney.

At the hearing on the defendant’s motion for a new trial the defendant and his wife testified to conversations they had had with retained defense counsel Robert Wilson. However, the defendant refused to “waive” any attorney-client privilege, refused “to give permission at anytime, ever, for his. former attorney (Wilson) to get on the stand and reveal any secrets, or the conversation, or any other things that were said in his presence at anytime.” The defendant, through his new defense counsel (Robert H. King), maintained that any violation of “the Ethical Rules . . . would be reported to the Bar for disciplinary action . .. . ”

Under these circumstances Wilson was reluctant to testify and did not take the witness stand. The trial judge left the matter to Wilson’s discretion. While both the positions of the trial judge and Wilson are understandable, they are not supported by legal authority.

“(A)n assertion that a plea is invalid because it was not made intelligently with knowledge of the consequences, waives an objection that such evidence is privileged. United States v. Woodall, 5 Cir. 1970, 438 F.2d 1317, cert. denied, 403 U.S. 933, 91 S.Ct. 2262, 29 L.Ed.2d 712.” Johnson v. United States, 542 F.2d 941, 942 (5 Cir.1976).

The position taken by the defendant in this matter “trifles with the truth” and “scoffs at justice.”

“Courts earnestly pursuing reality would be hard put to justify a rule that would allow a defendant circumstanced as Woo-dall here to assert that his solemn pleas of guilty were negated for lack of accurate information of sentence consequences, then permit him to run a procedural trap play that would block the development of the plain truth which shows his own attorney told him what he could expect. Not only does this specious sophistry fail to protect confidential relationships, it trifles with the truth — it scoffs at justice — and we reject it flatly.” Woodall, 438 F.2d at 1326.

Because we are only concerned in arriving at a true and accurate determination of whether the defendant’s guilty pleas represent a voluntary and intelligent choice, we remand this case to the Circuit Court with directions that defense counsel be allowed to testify without fear that he will breach any attorney-client privilege. See Woodall, supra. A record shall be made of the hearing on remand and returned to this Court. After hearing the testimony of defense counsel, the trial court shall again determine whether or not the guilty pleas were voluntary.

REMANDED WITH DIRECTIONS.

All Judges concur.

       After return to remand, the appeal was dismissed, October 12, 1982. All judges concurred.


author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

text:
    Raymond SUMMERHILL v. STATE.
    8 Div. 651.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied Oct. 12, 1982.

      John R. Benn of Peck & Slusher, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Jan A. Wade, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction upon defendant’s guilty plea and a sentence to imprisonment for fifteen years, which was imposed after a sentencing hearing in which it was claimed and proved by the State that defendant had theretofore been convicted of two felonies. In determining and pronouncing the sentence in the instant case, the trial court clearly and correctly stated:

“... That’s [the term of 15 years] consistent with the agreement that you entered into. It is also the minimum sentence you can receive under the provisions of the Habitual Offender Act. However, it’s also apparent that it’s well within the sentencing range that the court could impose for the offense of theft of property in the first degree.

The major issue on appeal is whether the two asserted felony convictions, which un-disputably antedated the conviction in the instant case, occurred at such a time as to bring them within the coverage of the Habitual Felony Offenders Act, Code § 13A-5-9(b), prefaced as follows:

“In all cases where it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows:..."

It is undisputed that the felony involved in the instant case occurred after the other two felonies and after a plea of guilty by defendant had been entered in each of the other two cases. It is also undisputed that at the time of the sentencing in the instant case, defendant had been previously adjudged guilty and sentenced to imprisonment for six years in each of the other two cases.

Appellant takes the position, with many authorities from other jurisdictions to support him, that in order for a conviction to constitute a “previous conviction” the conviction must have occurred prior to the commission of the offense forming the basis of the pending prosecution. This Court, per Judge DeCarlo, has recently so held. Burgess v. State, Ala.Cr.App., 412 So.2d 298 (1982).

Appellee takes the position that a person has been previously convicted within the meaning of the Habitual Felony Offenders Act if he has previously been “adjudged guilty by the court or jury at the time of commission of the subsequent offense, regardless of whether the sentence has been imposed.” We need not decide this narrow issue at this time for the reason that it appears to us from the record proper and transcript before us that there was no adjudication of guilt in either of the other two cases prior to the commission of the crime charged in the instant ease. We refer to “Supplement on Minute Entry” filed in this Court on March 19,1982, as a supplement to the record filed in this Court on February 12, 1982. Said supplement states:

“On the 21st day of September 1981 comes now the State of Alabama by its District Attorney, Honorable Lavern Tate, also comes the defendant, Raymond Summerhill, Jr., in his own proper person and with his attorney, Honorable John R. Benn, and the defendant being advised of his constitutional rights and being duly arraigned upon an indictment charging the offense of [in one case ‘theft of Property 1st Degree’ and in the other ‘Burglary 3rd Degree’] for his plea thereto says he is guilty. Passed to October 30, 1981 for sentence and probation hearing.
“On the 6 day of November, 1981 being the date to which this cause was passed for sentencing and consideration of defendant’s application for probation, and the State of Alabama being represented by its District Attorney, Honorable Lavern Tate, and the defendant Raymond Summerhill, Jr., being present in his own proper person and with his attorney, Honorable John Benn, and the defendant having heretofore been adjudged guilty of the offense of Theft of Property First Degree [in one case and in the other Burglary 3rd Degree], the defendant is asked by the Court if he has anything to say why the judgment and sentence of the law should not be pronounced upon him, say nothing in bar or preclusion of sentence.
“It is, therefore, considered by the Court, and it is the judgment and sentence of the Court that the defendant Raymond Summerhill, Jr., be imprisoned in the Penitentiary of the State of Alabama for a period of 6 years as punishment of his crime. Sentence to run concurrent with sentence imposed in CC-81-279 [the other of the other two cases],
“The defendant having made application for probation, and the Court having access to the report of the State Board of Pardons and Paroles, it is therefore, ORDERED, ADJUDGED, and DECREED by the court that the defendant’s application for probation be and the same is denied.”

The trial court doubtless thought for good reason that there had been an adjudication of guilt some time prior to the date of the sentencing procedure in each of the two cases that furnish the basis for the asserted previous felony convictions, but the record before us does not support a conclusion that there was any such previous adjudication.

The record before us is not clear as to the date of the commission of the crime in the instant case, but parts of the record before us convince us that there can be no doubt that it was before November 6, 1981, the date of the sentencing hearing in each of the other two cases. It necessarily follows, we think, that the record fails to show in the instant case that defendant had previously been convicted of a felony and that the case should be remanded to the trial court for resentencing, this time without applying the Habitual Felony Offenders Act.

The judgment of the trial court adjudging defendant guilty should be affirmed. There is no contention to the contrary.

We attempt no directions to the learned trial judge as to the conduct and result of another sentencing hearing other than to say that defendant and his counsel should be given due notice thereof to enable both to be present. To terminate properly the appeal herein, the trial court will make a return to the Clerk of this court to the order remanding the case with directions and serve a copy thereof on defendant’s counsel. If defendant is aggrieved by the action of the trial court in regard to the sentence imposed, defendant will have fifteen days thereafter within which to file a brief in this Court and appellee will have ten days thereafter within which to file a reply brief. Otherwise, no further review or action by this Court is deemed necessary.

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

AFFIRMED, REMANDED WITH DIRECTIONS.

All the Judges concur.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

Since our opinion affirming the judgment of conviction herein and remanding the case to the trial court for “resentencing, this time without applying the Habitual Felony Offenders Act,” there was filed in this Court on July 9, 1982, a duly certified (2nd) (CORRECTED MINUTE ENTRY) in Circuit Court Case # 81-279 and Circuit Court Case # 81-280, the cases that appellee insists constitute the cases in which the previous felony convictions had occurred. On July 13,1982, appellee filed in this Court an application for rehearing and a brief and argument in support thereof.

By the second supplemental record, it is shown that by reason of a clerical error in the original record and in the first supplemental record there was omitted therefrom the fact that appellant “was adjudged guilty by the trial court . of theft of property in the first degree and burglary in the third degree on September 21, 1981.” In accordance therewith, we retract the following statement in our opinion on original submission:

“It necessarily follows, we think, that the record fails to show in the instant case that defendant had previously been convicted of a felony and that the case should be remanded to the trial court for resentencing, this time without applying the Habitual Felony Offenders Act.”

But for the retraction that was necessitated by the second supplemental record, it would not have been necessary for us to consider the only other issue presented by appellant, which he thus states in his brief:

“Whether or not § 13A-5-9 Code of Alabama 1975, as applied to Appellant Sum-merhill’s present offense, violates the Eighth Amendment as being disproportionate to the offense.”

Appellant seeks to distinguish Watson v. State, Ala.Cr.App., 392 So.2d 1274, 1277 (1980), cert. denied, 392 So.2d 1280 (1981), wherein it was held that the Habitual Felony Offender Act, as applied to defendant therein, convicted of unlawfully breaking and entering a vehicle and sentenced to imprisonment for fifteen years, did not violate the cruel and unusual punishment provision of the Eighth Amendment to the Constitution of the United States, by arguing that appellant’s “claim here is directed squarely to the disproportionality between the nature of his offense and the sentence imposed.” The argument fails to convince us, for that, irrespective of the law pertaining to Habitual Felony Offenders, the felony of which defendant was convicted in the instant ease, is punishable by imprisonment for “not more than 20 years or less than 2 years,” Alabama Criminal Code, § 13A-5-6(a)(2), and the punishment imposed herein was five years less than could have been imposed even if the law as to previous felony offenders had not been invoked. We know of no reasonable basis for a contention that the maximum sentence fixed by the Legislature of imprisonment for twenty years for theft in the first degree constitutes cruel and unusual punishment. A conclusion to the contrary is implicit-in our opinion on original submission, as to which there has been no application for rehearing by appellant.

Notwithstanding our retraction herein of what we held prior to what we were informed by the second supplemental record, we are still unable to decide from the record proper and the transcript of the proceedings now before us whether defendant was convicted in the other two felony cases before he committed the felony involved in the instant case. Time is necessarily of the essence, and the margin of time, as hereinafter shown, is small.

Our attention is called to the fact that the affidavit for the warrant of arrest that commenced the prosecution that resulted in the indictment and the conviction in the instant case alleged that the time of the alleged offense was “on or about October 1, 1981,” which, if the date had been stated precisely and correctly and without any “on or about,” would have been only nine days after the adjudication of defendant’s guilt in each of the other two cases, as now shown by the second supplemental record. During the hearing of defendant’s plea of guilty and the sentencing proceeding in the instant case, it seems that there was no issue made as to the exact time of the commission of the crime in the instant case. The trial court would doubtless have gone into the question of the exact time of the commission of the crime in the instant case and as to the time of the conviction in each of the other two cases if it had had the benefit of appellant’s contentions made to us. We note that defendant’s contention in the trial court on the subject was largely limited to the following:

“Your Honor, can we put on the record oral notice of appeal of this sentence in that it violates the eighth and fourteenth amendments of the United States Constitution, in that it does not provide for consideration of any litigating [sic, which doubtless was ‘mitigating’ but misunderstood] circumstances by the Court.”

We continue to be of the opinion that the case should be remanded to the trial court for resentencing, and we revise in the next paragraph hereof our directions previously given.

The defendant and counsel for the respective parties shall be given due notice of the time set for resentencing to enable them to be present, that each party will then be called upon to present to the trial court any evidence bearing on the question on the one hand whether the crime in the instant case was committed before the convictions in the other two cases, or on the other hand whether it was committed after the convictions in the other two cases, and present to the trial court any' contention that is presented on appeal; the trial court shall thereafter attempt to make a factual determination as to the controverted factual issue between the parties, i.e., whether the other two convictions occurred before the commission of the crime in the instant case. Unless the trial court factually determines that the convictions in the other two cases were before the commission of the crime in the instant case, the trial court will proceed to resentence the defendant, this time without applying the Habitual Felony Offender Act. The trial court will make a return to the Clerk of this Court to the order remanding the case with directions and serve a copy thereof on defendant’s counsel. If defendant continues to be aggrieved by the action of the trial court in regard to the sentence imposed, defendant will have fifteen days after the return to remand within which to file a brief in this Court and appellee will have ten days thereafter within which to file a reply brief. Otherwise, the judgment of conviction and sentence will be affirmed, and no further review or opinion by this Court is deemed necessary.

OPINION EXTENDED, DIRECTIONS TO TRIAL COURT MODIFIED AND APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.

      . “In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such conviction has committed another felony, he must be punished as follows:
      On conviction of a Class B felony, he must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.” Code of Alabama, § 13A-5-9(b)(2)

      . Theft of property in the first degree is a Class B felony. Code § 13A-8-3. A Class B felony is punishable by imprisonment for not more than 20 years or less than 2 years. § 13A-5-6.

      . Theft of a motor vehicle, which, inter alia, constitutes theft of property in the first degree and is a Class B felony. Alabama Criminal Code § 13A-8-3.


author: HARRIS, Presiding Judge.

text:
    Jimmy H. COLEMAN v. STATE.
    6 Div. 560.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Oct. 12, 1982.

      Roger A. Brown of McDonald & Brown, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

After appellant was convicted of third degree assault in the Jefferson County District Court, he appealed to Circuit Court for trial de novo. After a non-jury trial, appellant was convicted and sentenced to a fine of $300 and a one-year jail sentence, 45 days in jail and the remainder of the sentence suspended pending good behavior.

The testimony in the case is very much in conflict. Basically, the case involved the testimony of the victim, Juanita Miller, versus the testimony of the appellant’s wife, an eyewitness. Appellant did not testify.

Mrs. Miller and the Colemans were next door neighbors and there was a history of “bad blood” between the two families. On July 3, 1980, after a long period of squabbling, a physical altercation broke out between Mrs. Miller and the defendant, resulting in the defendant’s arrest and trial on third degree assault charges.

Mrs. Miller testified that, on the day of the altercation, as she drove out of her driveway, the defendant and his wife cursed her and stated that she could not hide forever. She stated that she saw defendant and his wife at various shopping stops she subsequently made.

Later that evening, Mrs. Miller testified that she saw defendant next to a fence dividing the two lots, staring at her. After she asked defendant if “he’d gotten his eyes full,” defendant jumped the fence and beat her.

Defendant’s wife testified for the defendant, testifying that neither she nor appellant cursed Mrs. Miller. She also testified that, just prior to the altercation, she saw Mrs. Miller shooting at her with some sort of gun. She then called for her husband, who began walking toward Mrs. Miller.

She testified that Mrs. Miller shot appellant; that this resulted in appellant’s grabbing Mrs. Miller; and that both began fighting each other.

Appellant raises a jurisdictional issue on appeal. Specifically, appellant contends that, because the record is devoid of a “brief statement of the cause of the complaint” signed by the district attorney as required by § 12-22-113, Code of Alabama 1975, this case must be reversed.

Although the record does not contain the actual complaint, it does state: “Whereupon, Mr. Waites [special prosecutor] read the complaint and the defendant pled not guilty.” However, a document labeled “complaint” in the record is the original affidavit and warrant of arrest used to bring appellant to trial in district court. Appellant did not object in Circuit Court to the alleged lack of a proper complaint.

Any jurisdictional problem, if indeed the proper complaint was not filed in Circuit Court, was cured by the fact that the record contains an appeal bond, which recites appellant’s demand for a jury trial in Circuit Court. The law is well settled in Alabama that “the recitals of the appeal bond suffice to show the trial and conviction of the defendant in the county court, and his appeal from a conviction to the Circuit Court, thereby giving to the latter court jurisdiction of the cause.” Ex parte Hood, Ala., 404 So.2d 717 (1981); Ex parte McLosky, 210 Ala. 458, 98 So. 708 (1923).

The records made in District Court, along with the defendant’s appeal bond, satisfied any notice requirement. Ex parte Holden, Ala., 407 So.2d 182 (1981); Ex parte Hood, supra.

We find no error in the record and the judgment is affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    James Lewis ASHLEY v. STATE.
    6 Div. 760.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Oct. 12, 1982.
    George W. Andrews, III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of an assault in the first degree as charged in an indictment pursuant to Criminal Code 13A— 6-20(a)(l), which provides:

“A person commits the crime of assault in the first degree if:
“With intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument.”

The indictment further alleged that the deadly weapon or dangerous instrument was a knife.

By § 13A-6-20(b) an assault in the first degree is a Class B felony, and by # 13A— 5-6(a)(2), a Class B felony is punishable by imprisonment for “not more than 20 years or less than 2 years.” The trial court fixed defendant’s punishment at imprisonment for 18 years.

Appellant contends that the evidence was insufficient to sustain the conviction, which point was raised by defendant in his motion to exclude the State’s evidence at the close of the State’s case and again by defendant’s motion for a new trial.

The undisputed evidence shows that defendant stabbed the alleged victim, Glen Holliday, with a knife, in Holliday’s abdomen, stabbed him a second time in the chest and a third time in the back, and that Holliday was running from defendant at the time and place of the second and third stabbings. Holliday was promptly taken to the hospital with several loops of small intestine hanging out of his body. Surgery was necessarily performed on him, and he remained in the hospital for about ten days. Both Holliday and defendant were working at the time with Diamond Rubber Products Company; Holliday’s position was that of supervisor over a group of employees, including the defendant.

According to the testimony of Holliday, which was corroborated in most respects by the testimony of other eyewitnesses, an argument ensued between Holliday and defendant culminating in the attack by the defendant on Holliday, in which defendant, with his knife in his hand, chased Holliday a considerable distance in the plant until Hol-liday collapsed. The defendant testified in effect that he believed that Holliday had a gun or a knife, or both, on him at the time, that he knew Holliday was a gunsmith, that he had seen him with guns and had seen him with knives, that he was afraid of being killed by Holliday and that, because of what he feared and thought, he committed an assault upon Holliday with defendant’s knife.

There is no merit in appellant’s contention that the evidence was insufficient to support the verdict. There is little, if any, evidence to support defendant’s defense of self-defense; except for the testimony of defendant there is no evidence of any of the essential elements of self-defense. At any rate, defendant was entitled to no more than a determination by the jury of the issue. See West’s Alabama Digest, Assault and Battery, Key No. 67.

The only other contention of appellant is that the trial court committed reversible error in allowing testimony as to the “ages” of Mr. Holliday’s children. The contention is based upon the following portion of the transcript in the first part of the direct examination of Mr. Holliday:

“Q. State your name, please, sir.
“A. Glen Holliday.
“Q. And where do you live, Mr. Holli-day?
“A. I live at Maylene, Route 1. Just across the line of Shelby County.
“Q. All right, sir. How old are you?
“A. Sir?
“Q. How old are you?
“A. Forty-nine.
“Q. And are you married?
“A. Yes, sir.
“Q. Do you have any children?
“A. Yes, sir.
“Q. How many children do you have?
“A. Two.
“Q. What are their ages?
“MR. ANDREWS: Judge, I object to this. I don’t see the relevance.
“THE COURT: Overruled.
“Q. (By Mr. Earnest:) You can answer.
“A. My son is 22 and my daughter is deceased. She got killed in an automobile accident.
“Q. Mr. Holliday, are you employed anywhere?
“A. Yes, sir. Diamond Rubber Products.”

We agree with appellant that the ages of the children of the witness-victim were not relevant to any issue in the case, but as the witness had answered, without objection, the question as to how many children he had, we see little validity, if any, in any objection as to the ages of the children. It is to be noted that the answer of the witness went beyond the question asked when the witness said that his deceased daughter “got killed in an automobile accident.” However, there was no motion to exclude such evidence. We are not persuaded that prejudicial error occurred in overruling defendant’s objection to the question, “What are their ages?” As this was in the preliminary phase of the witness’ testimony, it comes within the principle that such a question “is usually permissible if advisable in the sound discretion of the trial court.” Hunt v. State, 248 Ala. 217, 27 So.2d 186 (1946). In Sheperd v. Gardner Wholesale, Inc., 288 Ala. 43, 46, 256 So.2d 877 (1972), a somewhat similar question was presented, and the court quoted with approval 98 C.J.S. Witnesses § 344, p. 56:

“. . . Questions to a witness directed toward aiding the jury in setting a proper estimate on his testimony are preliminary in their nature and, as a general rule, may be properly asked, as, for example, questions which relate to the age of the witness, his residence, his occupation, and his condition in life. . . . ”

In the introductory or preliminary phase of the testimony of a witness, a trial judge cannot be expected to be as cognizant of what may be a link in a chain of relevant testimony as he would ordinarily be expected to be when he has heard a large part of the testimony of the witness. In this connection, it is to be noted that there was a substantial difference between the age of the victim and the age of the defendant, the defendant being only 28 years of age at the time of the trial, which is shown in the preliminary phase of his testimony in the answer he gave to the third question that was asked him by his counsel.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Tommy J. HARRIS v. STATE.
    3 Div. 503.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Rehearing Denied Oct. 12, 1982.

      Jack W. Wallace, Jr., of Duffey & Wallace, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Tommy J. Harris was indicted, tried, and convicted of the April 24, 1981, first degree robbery of the Cannon Oil station on Perry Hill Road in Montgomery. He was sentenced to eleven years’ imprisonment. From that conviction he now appeals in forma pauperis.

Mr. Leroy McBride testified that on the evening of April 24, 1981, he was employed as the night attendant at the Cannon Oil service station on Perry Hill Road in Montgomery. He stated that during the latter part of the evening two black males approached the office. One drew an automatic pistol of unknown caliber, pointed it at his face and demanded the station’s money. The robbers handed him a brown paper bag into which he placed over $100. The robbers then sprayed Mace into his eyes and fled heading toward a nearby apartment complex. McBride did not identify appellant as one of the robbers.

Victor Adams, an indicted co-defendant who pled guilty to the instant offense, testified that on April 24, he saw appellant and Horace and Johnny Flowers at a local Montgomery lounge. After talking for a while, the four got into appellant’s car and drove to Spanish Gardens apartments, an apartment complex about fifty yards from the Cannon station. Adams testified that appellant parked the car and remained in it with him while the Flowers brothers exited and headed toward the station. Adams stated that they were going to “rob somebody.” (R. 34) They carried with them a gun, can of Mace, brown bag, and an army coat. He testified that appellant and the Flowers planned the robbery.

Claiming surprise due to Adams’ negative response, the State proved, through a prior statement, that Adams had stated that the gun and Mace belonged to appellant. At trial, Adams explained that he assumed they belonged to appellant because they were removed from the glove compartment.

After returning to the car, Adams heard Johnny Flowers state that he had dropped the holster to the gun to which appellant replied, “Don’t worry about it, it won’t matter.” (R. 42) Appellant then drove away. The four later divided the money equally.

At the time of appellant’s trial, Adams had been sentenced for the instant offense.

Montgomery police investigator R.H. Houlton testified that he investigated the instant incident and arrested appellant, Adams, and the Flowers. At police headquarters, he advised appellant of his Miranda rights which fully appear in the record. A proper voluntariness predicate was laid. Houlton stated that appellant refused to sign a written waiver of rights form but made an oral statement to him and Investigator T.H. Roper. Appellant stated that “he was involved in this robbery but . . . did not want to tell us anything at the time until he talked to his parents.” (R. 50)

The testimony of Investigator T.H. Roper of the Montgomery Police Department was in substance the same as that of Houlton. He testified that he remembered appellant stating “that he was involved in a robbery and other robberies, but that he did not want to make a signed statement or in writing at that time.” (R. 55)

Roper’s testimony concluded presentation of the State’s case.

I

Appellant contends that the trial court erred in denying his motion to suppress his oral statement on the ground “[t]hat the statement was attained in a manner contrary to the Constitution of the United States and the State of Alabama and the laws promulgated under or pertaining thereto.” (R. 141)

A pre-trial suppression hearing was held where Investigator Houlton testified that appellant made an oral statement at police headquarters after he had been arrested. Prior to making the statement, Investigator Houlton read appellant his Miranda rights from a rights and waiver form. Appellant stipulated that he was advised of his rights, but refused to sign the waiver form. Investigator Houlton testified that no one threatened, coerced, or induced appellant or promised him any benefit to make his statement. He testified that appellant stated that he understood his rights but did not want to sign anything.

Several minutes after being advised of his rights, appellant made an oral statement to Investigator Houlton. Appellant stated “. . . that he did commit the robbery we were investigating and he had committed other robberies in several counties in Alabama, but he did not want to give us any written statement until such time as he could talk to his parents.” (R. 6)

Appellant testified that he was not advised of his right to an attorney and denied telling Investigator Houlton that he understood his rights. He denied making the above statement.

When the evidence on the circumstances surrounding a confession is conflicting on voir dire, the trial judge must determine its admissibility. If admitted, the controverted testimony for the accused goes to the jury on the confession’s credibility. The trial judge need only be convinced from a preponderance of the evidence to find a confession or inculpatory statement to have been voluntarily made. The totality of the circumstances determines whether the accused has knowingly and intelligently waived his rights to assistance of counsel and to remain silent. Where the trial judge finds on conflicting evidence that the confession was voluntarily made, its finding will not be disturbed on appeal unless found to be palpably contrary to the weight of the evidence. A voluntariness predicate laid by the State is sufficient to establish prima facie that a confession was voluntarily made. Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981); Simpson v. State, 401 So.2d 263 (Ala.Cr.App.), cert. denied, 401 So.2d 265 (Ala.1981); and cases cited therein.

At the outset, we note that the instant case is not affected by the rule announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as the facts do not support any claim whatsoever that appellant requested assistance of counsel prior to making his oral statement. See also, Hardy v. State, 409 So.2d 996 (Ala.Cr.App.1982); Warrick v. State, 409 So.2d 984 (Ala.Cr.App.1982).

In discussing waiver of the Miranda rights, the United States Supreme Court, in North Carolina v. Butler, 441 U.S. 369, 373-76, 99 S.Ct. 1755, 1757-59, 60 L.Ed.2d 286 (1979), stated:

“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.
“. . . Ten of the eleven United States Courts of Appeals and the courts of at least 17 States have held that an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case.” (Footnotes omitted; footnote added).

See also Atchley v. State, 393 So.2d 1034 (Ala.Cr.App.1981); Love v. State, 372 So.2d 414 (Ala.Cr.App.1979).

In the instant case, after appellant was advised of his Miranda rights, he simply refused to sign a waiver of rights form. Appellant did not at any time refuse to talk to the investigator but just refused to sign the form. The record is unclear as to whether the investigator questioned appellant after his refusal to sign or whether his oral statement was spontaneous.

It does not appear that appellant was attempting to exercise his Miranda rights by refusing to sign the waiver form, but was simply refusing to sign. We find no error in admitting his statement into evidence. Proctor v. State, 391 So.2d 1092 (Ala.Cr.App.1980); See also Hewitt v. State, 389 So.2d 157 (Ala.Cr.App.1980); Love, supra; Waters v. State, 360 So.2d 358 (Ala.Cr.App.), cert. denied, 360 So.2d 367 (Ala.1978).

II

Appellant contends that the trial court erred in denying his motion for a mistrial.

Appellant made his motion after the testimony of Investigator Roper during which he related appellant’s oral statement that appellant told them “... that he was involved in a robbery and other robberies, but that he did not want to make a signed statement or in writing at that time.” (R. 55) (Emphasis added)

Appellant argues that the above emphasized portion of Investigator Roper’s testimony violated the provisions of his pre-trial motion in limine. The motion requested the trial court to prohibit the State from eliciting testimony of:

“1. Any crimes that the Defendant has been charged with but not convicted of;
“2. Any crimes that the Defendant has been charged and convicted of, but which do not involve moral turpitude;
“3. Any crimes that the Defendant has been charged and convicted of in a municipal or city court or court of like jurisdiction involving municipal violations even though it may involve moral turpitude.” (Emphasis added). (R. 143)

Careful scrutiny of the record does not reveal: (1) when the motion was filed, although it was served upon the State on the first day of trial, (2) whether it was ever brought to the attention of the trial judge, or (3) that it was ever ruled on. However, in brief appellant asserts that the trial court granted the motion, but failed to indicate such. Appellant’s brief at page 21. Appellant filed no motion under A.R.A.P. 10(f) to correct the record.

Appellant bears the burden of bringing the record before an appellate court. Miller v. State, 405 So.2d 41 (Ala.Cr.App.1981). He and his counsel have the duty of checking the record before submitting the appeal. It is their duty to file a correct record. Weaver v. State, 401 So.2d 344 (Ala.Cr.App.1981); Pope v. State, 387 So.2d 300 (Ala.Cr.App.1980). This court is bound by the record and not by allegations or arguments in brief reciting matters not disclosed by the record. Vincent v. State, 399 So.2d 923 (Ala.Cr.App.1981); Conner v. State, 382 So.2d 601 (Ala.Cr.App.1979), cert. denied, 382 So.2d 605 (Ala.1980).

Review on appeal is limited to matters on which rulings are invoked at the trial court. Parker v. State, 406 So.2d 1036 (Ala.Cr.App.), cert. denied, 406 So.2d 1041 (Ala.1981); Carroll v. State, 405 So.2d 163 (Ala.Cr.App.1981); Murphy v. State, 403 So.2d 314 (Ala.Cr.App.), cert. denied, 403 So.2d 316 (Ala.1981); Boykin v. State, 398 So.2d 766 (Ala.Cr.App.), cert. denied, 398 So.2d 771 (Ala.1981); Seay v. State, 390 So.2d 7 (Ala.Cr.App.1979), rev’d on other grounds, 390 So.2d 11 (Ala.1980).

For aught that appears, there was no ruling on appellant’s motion in limine. All the record discloses are the bare allegations of counsel without any support from the record. Upon such a basis, this court has nothing to review. Furthermore, no objection was made at trial and thus, nothing preserved in this manner. Stewart v. State, 398 So.2d 369, cert. denied, 398 So.2d 376 (Ala.1981); Travis v. State, 397 So.2d 256 (Ala.Cr.App.), cert. denied, 397 So.2d 265 (Ala.1981); Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Cr.App.), cert. denied, 377 So.2d 1134 (Ala.1979); Gould v. City of Birmingham, 375 So.2d 1296 (Ala.Cr.App.1979).

Assuming arguendo, that the record properly reflected the trial court’s favorable ruling on appellant’s motion, the testimony of Investigator Roper quoted above does not fall within the categories of evidence appellant sought to prohibit from introduction. The motion was directed to excluding evidence of any other crimes with which appellant was charged. It is clear that Investigator Roper’s testimony could not be excluded solely on that basis. Blaylock v. State, 411 So.2d 1299 (Ala.Cr.App.1982).

Based upon the foregoing, we find no error in denying the appellant’s motion for a mistrial.

Ill

Appellant challenges the sufficiency of the State’s evidence contending that he was convicted upon the uncorroborated testimony of an accomplice.

Though the State does not concede that Adams was an accomplice to the robbery, we find as a matter of law that he was. He freely admitted his guilt through his plea of guilty and voluntarily testified to his participation in the robbery. The question of whether Adams is an accomplice is not one of disputed fact. Yarber v. State, 375 So.2d 1229 (Ala.1978); Washington v. State, 401 So.2d 236 (Ala.Cr.App.), cert. denied, 401 So.2d 241 (Ala.1981); Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978).

Having found that Adams was an accomplice as a matter of law, we find the oral statement of appellant sufficient corroborative evidence of Adams’ testimony and, thus, tending to connect appellant with the crime.

“The corroboration of an accomplice must tend to connect the accused with the commission of the crime but need not refer to any statement or fact testified to by the accomplice. ‘Corroborate means to strengthen, to make stronger; to strengthen, not the proof of any particular fact to which the witness has testified, but to strengthen the probative, criminat-ing force of his testimony.’ . . . The corroborative evidence need not be strong, nor sufficient of itself to support a conviction, the criterion being that it legitimately tend to connect the accused with the offense. . . . Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice.... Corroborative evidence need not directly connect the accused with the offense but need only tend to do so. . . . (‘(B)ut, as we read the cases, the corroboratory evidence, if it meets the test of “tending to connect the defendant with the commission of the offense”, need not be, in- and of itself alone, that tending in any wise to fasten guilt upon the defendant’); 23 C.J.S. Criminal Law § 812(3) (1961). The sufficiency of corroborating evidence is established if its probative value tends to connect the defendant with the commission of the crime.... The corroboration of an accomplice may be shown by circumstantial evidence.” (Citations omitted) State v. Andrews, 370 So.2d 320, 322 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979).

Corroborative evidence must be of a substantive nature, must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt. McCoy v. State, 397 So.2d 577 (Ala.Cr.App.), cert. denied, 397 So.2d 589 (Ala.1981). The corroboration need only be slight to suffice. Ingle v. State, 400 So.2d 938 (Ala.Cr.App.1981).

The formula applied to the corroboration statute, Ala.Code § 12-21—222 (1975), requires that the evidence of the accomplice must first be “eliminated” and then, if upon review of all other evidence before the trial court at the time of the motion to exclude, there is found to be sufficient incriminating evidence which would tend to connect the accused with the crime, sufficient corroboration exists. Ware v. State, 409 So.2d 886 (Ala.Cr.App.1981), cert. denied, 409 So.2d 893 (Ala.1982); Mills v. State, 408 So.2d 187 (Ala.Cr.App.1981); McCoy, supra; Staton v. State, 397 So.2d 227 (Ala.Cr.App.), cert. denied, 397 So.2d 232 (Ala.1981).

A voluntary confession or an incriminating statement of an accused is sufficient corroboration of an accomplice’s testimony for purposes of § 12-21—222, supra. Mathis v. State, 414 So.2d 151 (Ala.Cr.App.1982); Tinsley v. State, 395 So.2d 1069 (Ala.Cr.App.1980), cert. denied, 395 So.2d 1080 (Ala.1981); Craig v. State, 376 So.2d 803 (Ala.Cr.App.), cert. denied, 376 So.2d 807 (Ala.1979); Alexander v. State, 370 So.2d 330 (Ala.Cr.App.), cert. denied, 370 So.2d 332 (Ala.1979); Jacks, supra; Williams v. State, 52 Ala.App. 406, 293 So.2d 324 (1974); See generally Early v. State, 392 So.2d 548 (Ala.Cr.App.1980), cert. denied, 392 So.2d 551 (Ala.1981); Keller v. State, 380 So.2d 926 (Ala.Cr.App.1979), cert. denied, 380 So.2d 938 (Ala.1980).

Based upon the foregoing authorities, we find that appellant’s oral statement was, in itself, sufficient corroborative evidence to properly connect him with the crime. Consequently, we find the State’s evidence was sufficient for the jury to have reasonably found appellant guilty of the instant offense. Ala.Code § 13A-8-41 (Amended 1977). Thus, the trial court properly denied appellant’s motion to exclude.

We have reviewed appellant’s contentions on appeal and find no error. This cause is affirmed.

AFFIRMED.

All the Judges concur.

      . Spelled “R.H. Holton” at a pre-trial suppression hearing, but referring to the same individual.

      . Alabama is one of the above States. See Sullivan v. State, 351 So.2d 659 (Ala.Cr.App.), cert. denied, 351 So.2d 665 (Ala.1977).


text:
    Odell TANKERSLEY v. STATE.
    1 Div. 380.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    J.D. Quinlivan, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment revoking appellant’s probation. In the “STATEMENT OF THE CASE” in his brief is the following:

“Appellant was on probation for burglary in the third degree as the result of conviction of same on July 27, 1981. The State filed a motion to revoke his probation because of a subsequent arrest for murder, drunk driving, LSA, improper tag, driving while license revoked.
“Probation was revoked by the Circuit Court after hearing on February 18,1982. “This attorney was appointed on this appeal which followed.”

According to the undisputed evidence, on the morning of January 2, 1982, “an old lady” was “run over” by a “white Pontiac about a ’66 or ’65” at the intersection of Broad and New Jersey Streets in Mobile. The automobile left the scene without stopping. A bystander testified that he obtained the number of the license tag and turned it over to one of two law enforcement officers who had been promptly notified of the incident and had commenced their investigation. One of them arrived before the victim was removed from the street and obtained from a bystander a description of the automobile and the number of the license tag. After receiving this information, the officer went promptly to “Elmira and George” and located the vehicle. The car had stopped in front of a house from which a man appeared and told the officer that somebody had just gotten out of the car “and pointed him out down the street walking away from the car.” Thereupon, the officer drove to the man and identified him as Odell Tankersley, who said that “he didn’t know that he had hit somebody,” that he had been drinking that morning and “that he did not have a driver’s license.”

The only contention made in appellant’s brief for a reversal is the following:

“The reviewing judge committed reversible error in allowing the test results of an intoxication test to be admitted in evidence over a timely objection where the State had failed to establish that the person administering the test was duly licensed, and no duly certified and authenticated copy of the methods or regulations duly adopted by the State Board of Health for operation of law enforcement agencies of the test machine, and where there was no proof the test had been adopted by the City Police Department as its method of testing drunk driving offenders.”

He concludes his argument by stating, “The Trial Court committed reversible error in admitting the test results into evidence.”

Appellant attempts to support his contention by the following authorities only:

“Patton v. City of Decatur, Ala.Cr.App., 337 So.2d 321 (1976); Pugh v. State, Ala.Cr.App., 343 So.2d 793 (1977), cert. denied [Ala.Cr.App.] 343 So.2d 795 (1977) and Weaver v. City of Birmingham, Ala.Cr.App., 340 So.2d 99 (1976).”

In each of the cases cited, the appellant had been convicted of driving a motor vehicle while intoxicated. In none of them was there involved the question of the validity of a judgment of revocation of probation.

Appellant apparently overlooks the fact that prior to, as well as in and thereafter, Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), it has been held with uniformity .generally, and in this jurisdiction particularly, that a proceeding to revoke probation is not a criminal prosecution and that on a hearing thereof the trial court is not bound by strict rules of evidence. Martin v. State, 46 Ala.App. 310, 241 So.2d 339 (1970); Buckelew v. State, 48 Ala.App. 418, 265 So.2d 202 (1972); Wright v. State, Ala.Cr.App., 349 So.2d 124 (1977); Bullock v. State, Ala.Cr.App., 392 So.2d 848, cert. denied, Ala., 392 So.2d 852 (1981); Free v. State, Ala.Cr.App., 392 So.2d 857, 859, cert. denied, Ala., 392 So.2d 859 (1981).

There is no merit in appellant’s contention as to admission in evidence, over defendant’s objection, of hearsay testimony. In no other respect does he attempt to show that the requirements and guidelines which must be met for minimal due process declared in Armstrong, supra, pursuant to Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), were not followed in the instant case, and we find no reasonable basis for such a contention. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Donald James WILLIAMS v. STATE.
    2 Div. 317.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.

      Barrown D. Lankster, Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Appellant was indicted for and “found guilty” of murder in violation of § 13A-6-2, Code 1975. The trial court set sentence at 35 years in the penitentiary.

The crime occurred late on the night of May 2, 1981. An argument started over whether or not appellant possessed the social security card of Nathan Johnson. The argument ended in the shooting death of the victim in this case, Autry Jean Johnson, the sister of Nathan Johnson.

First, Nathan Johnson and appellant got into a fight over the card. This fight ended and Nathan Johnson left the room. Subsequently, the victim and appellant’s wife, Imogene, began to fight. The victim displayed a knife at this time. Next, the victim argued with appellant and struck him with her knife, causing no substantial injury. A struggle between Imogene and the victim ensued and appellant left the premises, stating that he would return.

Appellant returned with a loaded shotgun. He called for Imogene to come out of the house. There was conflicting evidence as to whether Imogene then stepped out of the house. The victim was pushing the door shut as the gun was fired two times. The victim died as a result of a hemorrhage caused by shotgun pellets.

I

Did the trial judge commit reversible error in refusing to allow the appellant’s wife to invoke her privilege not to testify against her husband outside the presence and hearing of the jury?

There was a bench conference wherein the court was advised that the wife would claim her privilege.

Section 12-21-227, Code 1975, states that a husband or wife may testify for or against each other in a criminal case, but may not be compelled to do so. The appellant’s wife made the election not to testify against her husband. The State called her to the stand in the presence of the jury to respond to the following questions. Her total examination is as follows: (R. 124).

“BY MR. WATKINS [Prosecutor]:
“Q. Would you state your name to the court, please?
“A. Imogene Williams.
“Q. Mrs. Williams, are you any relation to the defendant?
“A. That is my husband.
“Q. And are you aware that I am calling you as a witness and you have the right to testify or not to testify; that it is your personal right?
“A. I do not want to testify.
“Q. And you are invoking your right not to testify?
“A. Yes, sir.
“MR. WATKINS: Excuse the witness, Judge.”

The case of Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837, cert. denied, 254 Ala. 74, 46 So.2d 847 (1950), is dispositive of this issue, as the facts are identical to the case at bar.

The Wyatt case holds that explaining the privilege and questioning a spouse as to his or her desire to testify in the presence of the jury is not error.

As this testimonial privilege is a matter between the witness and the court, it is appropriate that the witness made that claim of privilege known during the proceedings of the court. No other questioning was allowed of the witness and her rights were therefore properly preserved.

II

An initial consideration is that there was no motion to exclude the evidence, no request for the affirmative charge, and no motion for a new trial challenging the sufficiency of the evidence as required for an appellate review of the evidence in the case.

Lewis v. State, 372 So.2d 882 (Ala.Crim.App.1979), cert. denied, 372 So.2d 885 (Ala.1979). Notwithstanding the aforementioned flaw, the court will address this claimed error of insufficiency. In testing the sufficiency of evidence, this court is expected to accept evidence presented by the State and all legitimate inferences therefrom as truth. The question to be answered is whether there is evidence from which a jury could find the defendant guilty. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.1979), cert. quashed 378 So.2d 1173 (Ala.1979).

A verdict of guilty should only be set aside on grounds of insufficiency of the evidence when, after allowing all reasonable presumptions as to its correctness, the preponderance of evidence against the verdict is so clear as to convince this court that it was wrong and unjust. Bell v. State, 339 So.2d 96 (Ala.Cr.App.1976).

The evidence presented in this case is such that the jury could have reasonably and properly come to the conclusion that the appellant was guilty of the crime for which he was indicted.

The appellant seems to allege that the shooting of the victim was in defense of his wife. The jury was presented with testimony from all witnesses, other than appellant, that his wife had left the house in which the evening’s altercations had occurred. The appellant testified that he shot into the door of the house with the intent of shooting the deceased victim. There was evidence that two shots were fired. We find, therefore, the evidence to be sufficient. There being no error, this cause is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Doc HALE v. STATE.
    2 Div. 334.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.

      John A. Bivens, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was indicted and convicted for the murder of Leonard Lee Fulgham by shooting him with a pistol in violation of Ala.Code § 13A-6-2 (1975). At arraignment, in the presence of counsel, he pleaded not guilty and not guilty by reason of insanity. Upon conviction, the trial court set appellant’s sentence at life imprisonment in the state penitentiary. Appellant is represented by the same court-appointed counsel on appeal as he was at trial. His cause comes before this court in forma pauperis.

The sufficiency of the state’s evidence has not been challenged. Briefly stated, on the evening of September 26, 1980, Mrs. Betty Fulgham, the wife of the deceased, “ran out of gas” as she was returning home from the Kentucky Fried Chicken in Mon-tevallo with her two children and her niece. Mrs. Fulgham parked her automobile on the highway in front of appellant’s parents’ mobile home. The mobile home was located in the Brierfield community of Bibb County. Mrs. Fulgham asked appellant’s mother to call the deceased “to bring me some gas.”

The deceased, Ralph Moore and Shep Garner arrived twenty to twenty-five minutes later with the gasoline. Using a piece of cardboard as a funnel the deceased managed to pour the gasoline into his wife’s car and instructed her “to go on home, that he would be on later.”

Before she left to go home Mrs. Fulgham saw her husband talking with appellant’s brother, Willie “Peanut” Hale. According to Mrs. Fulgham’s observation, “They was playing, you know, just started talking and woofin’ each other.” She testified that the two were not fussing and that if an argument occurred it did so after she left.

Ralph Moore testified that, while the deceased and “Peanut” were talking back and forth “mostly kidding each other,” appellant “walked up and said wasn’t nobody going to mess with Willie.” The deceased and appellant then began arguing. As Moore told the deceased, “to come on to the car,” the appellant “told him to stop.” Appellant then summarily shot the deceased twice as he was trying to get inside the car to leave.

Moore drove the deceased to the Montev-allo Rescue Squad and from there he was taken to the Shelby Memorial Hospital. The deceased had stopped breathing before arriving at the hospital at 8:55 p.m. and died shortly after .efforts to resuscitate him proved unsuccessful.

Shep Garner’s testimony was substantially the same as Moore’s regarding the sequence of events which transpired between appellant and the deceased.

After the state rested its case, appellant testified in his own behalf that he shot the deceased because, “I thought he was going to do something to me.” When asked why he had shot the deceased twice, appellant responded, “I don’t know, just mad, I reckon.”

The only issue raised on this appeal is whether or not under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), law enforcement officers are required to inform an accused of the precise charges against him prior to taking his confession. We answer negatively.

The facts pertinent to this issue reveal that appellant was arrested by Deputy Calvin C. Moreland of the Bibb County Sheriff’s Department at 11:10 p.m. the night of the shooting. Deputy Moreland informed appellant he was placing him under arrest for assault and advised him of his constitutional rights by reading them to him from a standard Miranda warnings card. Appellant stated that he understood his rights, but Deputy Moreland did not question him at that time. Deputy Moreland transferred appellant to the Bibb County Jail.

Deputy Moreland testified that, on September 29, two days after the killing, he was present when Investigator Don Mansell of the Alabama Bureau of Investigation took appellant’s statement. Prior to taking the statement Investigator Mansell again advised appellant of his constitutional rights under Miranda. Appellant again indicated that he understood his rights and voluntarily signed a standard waiver of rights form. The voluntariness predicate for appellant’s statement was fully established and appellant voiced no objection to the introduction of his signed waiver.

Investigator Mansell stated on voir dire that he did not inform appellant he was-being charged with murder prior to taking his statement. Investigator Mansell explained that he didn’t know whether formal charges for murder had been filed at that time. Appellant then objected to the admission of his statement, insisting that he should have been advised that he was charged with murder prior to making his confession. This objection was overruled and appellant’s confession was subsequently admitted into evidence with no further objections.

It should be noted that appellant’s September 29 statement describing the events which led to his killing the deceased did not differ in any material respect to his testimonial account of what happened.

As this court stated in Myers v. State, 401 So.2d 288, 291 (Ala.Cr.App.1981): “A defendant need not be apprised of the charge against him before he can knowingly and intelligently waive his rights and make a voluntary statement.” Also see Crawford v. State, 377 So.2d 145 (Aia.Cr.App.), aff’d, 377 So.2d 159 (Ala.1979), reversed on other grounds, 405 So.2d 702 (Ala.1981) and Jemison v. State, 49 Ala.App. 289, 270 So.2d 836 (1972).

The question as to whether a confession or inculpatory statement was voluntarily made is one of law to be determined by the trial judge. Myers, supra. The trial court need only be convinced from a preponderance of the evidence to find a confession or inculpatory statement to have been voluntarily made. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

In the instant case, as in Myers, supra, the record fully establishes the complete voluntariness of appellant’s statement. His Miranda warnings were thoroughly covered. Thus, appellant’s statement was properly admitted into evidence.

The judgment of the circuit court is affirmed.

AFFIRMED.

All the Judges concur.