text:
    Rex Michael BAILEY v. STATE.
    6 Div. 898.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.

      Dan J. Willingham and Frank Brunner, Cullman, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton of McLain & Hampton, Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for escape in the first degree. Alabama Code 1975, Section 13A-10-81. Sentence was life imprisonment. Five issues are presented on appeal.

I

The defendant filed a motion for a mental examination pursuant to Section 15-16-21, alleging that he was presently incompetent and that he was insane at the time of the crime. After a hearing, this motion was denied. The trial judge found that “reasonable cause” had not been shown to doubt the defendant’s sanity or competency. The defendant argues that sufficient evidence was presented to create a reasonable doubt of his competency and therefore further psychiatric examination should have been ordered.

At the hearing on the motion, the defendant called William Thornton, the Cullman County coordinator of the North Alabama Mental Health Center. Approximately one week before the hearing, Thornton evaluated the defendant. He testified that the defendant exhibited “psychotic like behavior” involving hallucinations and a poor understanding of reality. He recommended that “it would be advisable that he receives further, more indepth psychiatric evaluation.” Thornton stated that the defendant’s participation with his attorney and in his defense “would be limited” and that he would have “some difficulty” in working with his attorneys and understanding what was going on.

Thornton gave the defendant a personality test and the defendant was able to read, understand and answer the questions. Thornton found “sufficient evidence there to suggest that his responses were truly of a disturbed person.” He stated that the 27-year old defendant’s I.Q. was equivalent to a sixth or seventh grade level.

Wynell Girard, the defendant’s mother, testified to the difficulties the defendant had in elementary school and to the difficulties he encountered in dealing with people; that he attempted suicide in 1978; that he saw a psychiatrist and had counseling in 1969 and 1970; and that she had been advised that he had schizophrenia and brain damage.

Michael Penwell was an inmaté in the county jail who was in the cell next to the defendant’s. He testified that sometimes the defendant wouldn’t talk to him; that he would carry on a conversation with himself. He also testified that he thought the defendant realized what he had done.

Lynn Miller was also an inmate in the county jail with a cell next to the defendant’s. He heard the defendant talking to himself. He testified, as had Thornton and Penwell, that the defendant said that the police were out to get him.

Lieutenant Brian Buegler of the Cullman County Sheriff’s Office was the county jailer. He testified that on September 14, 1980, the defendant attempted suicide by trying to hang himself in the jail. This was shortly after the defendant’s initial arrest and at this time he was intoxicated.

“ ‘Where the trial court finds that there are no reasonable grounds to doubt the accused’s sanity, the standard of appellate review is whether the trial judge abused his discretion.’ ” Miles v. State, 408 So.2d 158, 162 (Ala.Cr.App.1981), cert. denied, 408 So.2d 163 (Ala.1982). “The denial of a request for a sanity investigation is an abuse of discretion if arbitrary or if unsupported by evidence of human reasoning.” Miles, 408 So.2d at 162. Here, as in Miles, there was never any specific testimony as to whether or not the defendant was competent or incompetent to stand trial. Thornton’s conclusion was that further psychiatric evaluation would be advisable. Consequently, the defendant failed to carry the burden of persuasion he has on a hearing of a motion for a competency investigation.

We find no clear abuse of the discretion of the trial judge. A review of the record reveals no facts which create a reasonable and bona fide doubt as to the defendant’s mental competency to stand trial. Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970); Seagroves v. State, 279 Ala. 621, 189 So.2d 137 (1966) (defendant failed a couple of grades in school); Colley v. State, 405 So.2d 374 (Ala.Cr.App.1979), reversed on other grounds, 405 So.2d 391 (Ala.1981); Wilson v. State, 371 So.2d 932 (Ala.Cr.App.1978), affirmed, 371 So.2d 943 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1133 (1980); Atwell v. State, 354 So.2d 30 (Ala.Cr.App.1977), cert. denied, Ex parte Atwell, 354 So.2d 39 (Ala.1978).

Proof of, the incompetency of an accused to stand trial involves more than simply a mere showing that the accused has mental problems or psychological difficulties. The competence of an accused to stand trial is determined by whether at the time of the trial he has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceeding against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Atwell, 354 So.2d at 35. The trial judge is not bound by the conclusion and recommendations of an expert as to the competency of the accused. Miles, 408 So.2d at 162.

Even viewing the evidence in a light most favorable to the defendant we can only reach the conclusion that there was no abuse of discretion.

“We cannot say under our past cases that the appellant’s showing was so compelling that the trial court abused its discretion in denying this petition (for mental examination). The trial court held a hearing, listened to the witness and made a decision. It might have decided either way on the question of whether the hearing produced any real evidence of legal insanity or legal incompetence. Its decision was not arbitrary or unsupported by reason or fact. We conclude that the trial court did not abuse its discretion.” Pace v. State, 284 Ala. 585, 587-8, 226 So.2d 645 (1969).

II

The defendant argues that he was entitled to a “qualified psychiatrist at state expense.”

The fact that an accused is indigent does not entitle him to a free psychiatric examination. Tillis v. State, 292 Ala. 521, 525, 296 So.2d 892 (1974); Nelson v. State, 405 So.2d 392, 394 (Ala.Cr.App.1980), reversed on other grounds, 405 So.2d 401 (Ala.1981). The defendant recognizes this authority but contends that the Alabama Legislature authorized the hiring of an expert by counsel in defending an indigent. Alabama Code 1975, Section 15-12-21(d) provides that “(c)ounsel (appointed to defend an indigent defendant) shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court, but in no individual case shall such expenses exceed one-half of the allowable attorney fees provided in this section” (Emphasis added.) The defendant contends that Thornton’s testimony that he needed a psychiatrist, coupled with the above statutory authorization, operated to deny the defendant his •constitutional right of due process.

Section 15-12-21 clearly authorizes reimbursement for any expense reasonably incurred in the defense of an indigent by a court appointed attorney if such "expense is approved in advance by the trial court. This would allow a maximum of $500.00 for expert testimony, or, as in this case, psychiatric examination. However, such expenses must be approved by the trial court. This issue is determined by those same considerations which govern Issue I. That is, were there any facts before the trial judge which would create a reasonable and bona fide doubt as to the mental competency of the accused to stand trial. A defendant has no right to receive a mental examination whenever he requests one and, absent such right, a motion for psychiatric examination to determine the competency or sanity of an accused is directed to the sound discretion of the trial judge, who must act as a screening agent for such. Pace, 284 Ala. at 587, 226 So.2d 645; Colley, 405 So.2d at 380. “Only when the evidence presents a sufficient doubt as to the defendant’s sanity is an investigation into his sanity required.” Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr.App.), cert. denied, Ex parte Beauregard, 372 So.2d 44 (Ala.1979); Gales v. State, 338 So.2d 436, 438 (Ala.Cr. App.), cert. denied, 338 So.2d 438 (Ala.1976).

Common sense, as well as sound legal authority, dictates that the trial judge not grant a psychiatric examination at state expense unless there is some reason to believe the accused was incompetent or insane. “(E)qual protection does not require that the appellant be free to futilely waste the money of the Alabama taxpayers." Gales, 338 So.2d at 438.

Ill

The trial judge properly refused to allow witness Thornton to testify as an expert to the results of the Minnesota Multiphasic Personality Inventory test he administered to the defendant. The judge specifically found Thornton “not qualified as an expert from his educational training or experience to determine from any test” whether the defendant was sane or insane. .

Thornton had an undergraduate degree in psychology and sixty hours of graduate training in behavior modification with no degree. He had some practical experience in working with psychologists and had worked as a “clinical technician, administering a variety of different test procedures.” When specifically asked by the trial judge if he was qualified to determine sanity or insanity from the testing procedures, Thornton replied that since the particular procedures were approved by a clinical psychologist he did not have the authority to make such a determination: “Typically, the particular procedures are these particular procedures, they are approved by the clinical psychologist and therefore I do not feel I do not have the — I do not myself, without his approval, make such determination.”

The general rule is that only persons licensed to practice medicine as a profession can testify as experts on the question of insanity. Odom v. State, 174 Ala. 4, 7, 56 So. 913 (1911) (Witness could not testify as an expert where his only qualifications were that “he had handled a great many insane persons, had observed and studied them in the course of their transfer by him from Mobile to Tuscaloosa and other points * * * * and had ‘lately read medical works on the subject.’ ”); Carroll v. State, 370 So.2d 749, 761 (Ala.Cr.App.), cert. denied, 370 So.2d 761 (Ala.1979) (A psychiatric social worker who has a “great deal of informal contact” with accused in hospital not qualified as expert to state mental condition of accused at the time of the crime.) “The mere fact that a lay witness has handled a great many insane persons, had observed and studied them and had read medical works on the subject, does not automatically qualify him to testify as an expert on insanity.” Carroll, 370 So.2d at 760-61.

“Whether the qualification of the witness is sufficient is a question to be determined by the trial court, and the very nature of the test requires that its determination in particular cases be left to the sound discretion of the trial court, and which will not be revised on appeal, except for palpable abuse.” Jones v. State, 181 Ala. 63, 80, 61 So. 434 (1913); C. Gamble, McElroy’s Alabama Evidence, Section 127.01(5) (3rd ed.1977).

Had Thornton been a psychologist properly qualified on the nature and extent of his knowledge, he should have been allowed to testify as an expert as to the results of the psychological test he administered to the defendant. Anno., 78 A.L.R.2d 919 (1961); Alabama Code 1975, Section 12-21-160. However, Thornton was not a psychologist and was not shown to have any equivalent training, experience or skill. Although qualified to administer the test, he candidly admitted that he was not qualified in its interpretation regarding sanity or insanity. Because of this admission and because the witness was not shown to have such knowledge, skill, experience or training as would justify a jury in reasonably relying upon his interpretation of the test results, we find no abuse of the trial judge’s discretion in this regard.

IV

The defendant contends that the trial judge erred in refusing to grant his motion for discovery. Specifically, it is argued that, if the defendant had known that the State was going to call witness Junior Kil-gore to testify, he could have subpoenaed witnesses from Kilgore’s community to impeach him and, if the defendant had been given the criminal records of witness Kil-gore, any convictions could also have been used for impeachment. A reading of the motion shows that the defendant was on a “fishing expedition” with a “scatter gun” and for this reason the motion was properly denied. Perry v. State, 371 So.2d 969, 970 (Ala.Cr.App.), cert. denied, 371 So.2d 971 (Ala.1979).

There is no constitutional right to discovery and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), did not create one. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). While undisclosed evidence which creates a reasonable doubt that did not otherwise exist may deprive the defendant of a fair trial as guaranteed by the Due Process Clause of the Fifth Amendment, United States v. Agurs, 421 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), there must be some showing that such exculpatory and influential evidence actually exists before such a constitutional violation can be found. Here, the defendant only alleges that Kil-gore “may have had” other convictions than the one brought out by defense counsel on cross examination. It is also argued that “other information favorable to Bailey could have been in the State’s files and was not provided to him.” Such speculation and conjecture will not support a finding of the violation of the right of the accused to a fair trial. Perry v. State, 371 So.2d 969 (Ala.Cr.App.), cert. denied, Ex parte Perry, 371 So.2d 971 (Ala.1979).

Brady held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196. This constitutional standard of materiality presupposes the actual existence of some evidence. Because the motion for discovery was very broad in scope, seeking virtually the prosecution’s entire case, and because there has been no showing that the evidence requested actually exists, the motion was properly denied.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Gordon TINER v. STATE.
    6 Div. 909.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.

      J. Brent Thornley, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Walker County Grand Jury under two separate indictments for robbery in the first degree and assault in the first degree, both charges having arisen from the same criminal transaction. At arraignment, appellant entered a plea of not guilty to both indictments. After entering into a plea-bargaining agreement with the district attorney’s office, appellant withdrew his not guilty plea as to the robbery indictment and entered a plea of guilty on November 16, 1981. In return, the State on its own motion dismissed the assault charge against appellant.

Before accepting appellant’s guilty plea, the trial court conducted a thorough examination of appellant to determine that the plea was voluntarily and understandingly made. The court accepted appellant’s plea, and, after a separate sentencing hearing requested by appellant’s counsel, sentenced appellant to sixty-five years’ imprisonment in the State penitentiary.

The appellant and his attorney stated at the time appellant entered his guilty plea that appellant’s plea was not entered under any terms worked out with the district attorney’s office as to appellant’s sentence. The plea was entered with the understanding that the court alone would determine the appropriate sentence for appellant.

Appellant does not question the sufficiency of the evidence on appeal. His sole contention is that his guilty plea was not voluntarily and knowingly made where such plea was predicated on the appellant’s erroneous belief that evidence pertaining to the companion assault charge would not be considered at the sentencing hearing. Appellant’s motion to withdraw his guilty plea was denied by the trial court.

The assault charge was based upon the fact that the victim of the robbery, a fourteen-year-old boy, was shot by appellant during the robbery of the convenience store where the boy’s mother worked. The robbery and assault were therefore combined in and took place as the result of one continuous chronological criminal transaction. Evidence of the assault was therefore admissible at the sentencing hearing as part of the res gestae of the crime for which appellant was indicted. Poke v. State, 387 So.2d 310 (Ala.Cr.App.1980).

Whether or not a defendant should be allowed to withdraw his guilty plea is a matter within the sound discretion of the trial judge. His refusal to allow such a request will not be disturbed except where an abuse of that discretion is demonstrated. Boykin v. State, 361 So.2d 1158 (Ala.Cr.App.1978).

The record reveals that neither the trial court nor the district attorney made any representation to appellant concerning the length of his sentence. The mere subjective beliefs or expectations of appellant as to the length of sentence to be imposed, unsupported by any promise from the State or indications by the court, are insufficient and unavailing to set aside a guilty plea as unknowingly or involuntarily made. Bailey v. State, 375 So.2d 519 (Ala.Cr.App.1979).

The trial court imposed a sentence within the statutory limits for the crime for which appellant was convicted. The question of whether appellant’s guilty plea was entered because of a misrepresentation as to the length of sentence or was intelligently and voluntarily entered was for the trial court. We find no error in the trial court’s exercise of its discretion. Clark v. State, 396 So.2d 1083 (Ala.Cr.App.1981).

No error harmful to the substantial rights of appellant having been demonstrated on appeal, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Thomas Marshall IRWIN v. STATE.
    7 Div. 917.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    J. Doyle Fuller, Montgomery, for appellant.
    No brief filed for appellee.-
   DeCARLO, Judge.

Trafficking in cannabis; ten years’ imprisonment and a $1000 fine.

Prior to trial, appellant filed a motion to suppress the State’s evidence, arguing that it had been discovered as the result of an unlawful search and seizure, and requesting a hearing on the motion. The court did not rule on the motion.

At trial, the State called as its first witness Deputy Howard Brooks of the Jefferson County Sheriff’s Department. Over the specific objection, and request of appellant to question Deputy Brooks outside the presence of the jury, the law enforcement officer was allowed to testify to hearsay information received from a confidential informant.

The State has confessed error by filing for leave to decline to file a brief, citing Bowen v. State, 406 So.2d 1077 (Ala.Cr.App.1981), and Tierce v. State, 396 So.2d 1090 (Ala.Cr.App.1981), both of which are direct authority for the proposition that the admission of hearsay testimony regarding the information received from a confidential informant is error if presented over the defendant’s specific objection at trial.

On the authority of Bowen and Tierce, the judgment of conviction is reversed, and the cause remanded to the St. Clair Circuit Court for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    James Earl BROWN v. STATE.
    8 Div. 692.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.

      J. Stephen Salter of Groenendyke & Salter, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was convicted for trafficking in cannabis, sentenced to ten years’ imprisonment and fined $25,000. He was represented by retained counsel at trial and, after sentence was imposed and notice of appeal given, he retained different counsel to represent him on appeal.

Prior to trial, appellant made a motion in limine seeking to prohibit the State’s witnesses from mentioning a charge against him in another county of possessing 200 pounds of marijuana. The trial court did not expressly rule on the motion but stated the following:

“THE COURT: Well, I don’t know what the evidence is. I know that ya’ll have talked about a case in Decatur but other than that I don’t know anything about it. I will just have to pass on it when it comes up. You can make your motion or objections if it comes up at the appropriate time. I would say to the State though that if they don’t want to have a mistrial they probably need to tread very carefully on that subject, and so will the police officers.
“MR. MORGAN: [Assistant District Attorney]: Yes, sir.
“THE COURT: If there is some reference made to it and I rule or determine that it is as he said, then I would mistry the case.
“MR. MORGAN: Yes, sir. I have already discussed that with the officers.”

Agent William Womack, an undercover narcotics investigator for the Alabama Bureau of Investigation, testified that he met with appellant at the Omelet Shoppe in Madison, Alabama, to arrange a marijuana buy. Appellant told Womack that he could get 100 pounds of high quality marijuana in a few days. Regarding his second meeting with appellant, Womack stated the following:

“I introduced myself to the defendant just as Sam and he told me his name was James Brown. I asked him did he have the stuff, indicating the marijuana. He said no, that it was about 10 minutes away. I told him that was not the agreement. The agreement was that the marijuana and the money would be swapped in the back parking lot. He said that he would not bring it to the Omelet Shoppe because he had been caught in Decatur with 200 pounds.
“MR. THOMAS [Defense counsel]: We object and move for a mistrial.
“THE COURT: Overruled.”

After the State rested, appellant took the stand and admitted the truth of Agent Womack’s testimony, but claimed that he had been entrapped into selling the marijuana. On cross-examination, appellant testified without objection that he had been previously stopped by sheriff’s deputies in Decatur and found to have over 200 pounds of marijuana in his car.

The only issue presented on appeal is whether the trial court erred in overruling appellant’s objection and motion for mistrial following the quoted portion of Agent Womack’s testimony.

In our judgment, the error, if any, in ruling on the admissibility of . the evidence was rendered harmless when appellant’s later testimony established the same facts. See Lewis v. State ex rel. Evans, 387 So.2d 795 (Ala.1980); Tinker v. State, 389 So.2d 597 (Ala.Cr.App.1980); Romine v. State, 384 So.2d 1185 (Ala.Cr.App.), cert. denied, 384 So.2d 1188 (Ala.1980); Burlison v. State, 369 So.2d 844 (Ala.Cr.App.), cert. denied, 369 So.2d 854 (Ala.1979).

The judgment of conviction is affirmed,

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Don SANBORN v. STATE of Alabama.
    8 Div. 709.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Robert M. Shipman, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Don Sanborn, a juvenile, appeals from an order transferring this case from the juvenile court to the adult division of the Madison Circuit Court. This is the first proceeding to reach this court under the recent amendment to the Rules of Juvenile Procedure providing for direct appeals in juvenile transfer eases. See A.R.J.P. 28(C)(1) (effective March 1, 1982).

On April 19, 1982, the State filed a motion with the juvenile court to transfer appellant to the circuit court for prosecution as an adult. After a hearing on May 12, 1982, the juvenile court issued an order to certify appellant as an adult and to transfer the case. The juvenile court judge made the following findings:

“1. Don Sanborn is a male child over the age of fourteen years and under the age of eighteen years, and the incident alleged in the petition occurred after his fourteenth birthday;
“2. There is probable cause to believe that the allegations of the instant petition are true and correct.
“The court has considered the foregoing, in addition to the following: the nature of the present alleged offense; the extent and nature of the child’s prior delinquency record; the nature of past treatment efforts and the nature of the child’s response to such efforts; the demeanor of said child; the extent and nature of the child’s physical and mental maturity; and the interests of the community and of the child requiring that the child be placed under legal restraint or discipline.
“The court having heard the evidence in this cause and having considered the same, hereby finds that further efforts to rehabilitate this child within the juvenile justice system will probably not be successful and that further treatment of said child as a juvenile is not in the best interests of said child nor is it in the best interests of the State of Alabama, and that said child is due to be and is hereby found to be an incorrigible juvenile.
“It is, therefore, ORDERED, ADJUDGED AND DECREED that Don Sanborn is hereby certified as an adult in the instant cause and this cause is hereby transferred to the adult division of the Circuit Court of Madison County, Alabama, to await action by the Grand Jury of Madison County, Alabama, to await criminal prosecution as an adult.
“The reasons for the granting of the State’s motion are:
“1. The seriousness of the offense (Sale of Marijuana).
“2. The fact that this juvenile is now 18 years of age and was within three months of his 18th birthday when the alleged offense occurred.
“3. The fact that this juvenile is charged in another case with the sale of marijuana and that the court has also found that there is probable cause to believe that he committed that offense as well as the offense in the instant case.” (R. 49-50).

I

This order fully meets the requirements of § 12-15-34, Code of Alabama 1975. It indicates that the court considered the six factors outlined in § 12-15-34(d)(l)-(6). The Alabama Supreme Court has previously determined that a mere restatement of the factors set out in the statute is sufficient. McKinney v. State, 404 So.2d 639 (Ala.1981); Duncan v. State, 394 So.2d 930 (Ala.1981); Brown v. State, 353 So.2d 1384 (Ala.1977).

In addition, the order discloses that the court found there was probable cause to believe a crime occurred and the defendant committed it. See Duncan v. State, supra. The evidence adduced at the transfer hearing amply supported the finding of probable cause and there is no contention here to the contrary.

The appellant argues that there is an “incongruity” between the State’s admission in its “Motion to Certify as Adult” that “Don Sanborn has not been before the Juvenile Court of Madison County, Alabama on any prior occasions” and its allegation that “Don Sanborn has been afforded all possible beneficial treatment as a juvenile by the Juvenile Court of Madison County, Alabama, and further treatment as a juvenile is not in the best interest of the State.” (R. 48).

Appellant maintains that the incongruity is highlighted by the court’s consideration of “the nature of past treatment efforts and the nature of the child’s response to such efforts” when the undisputed evidence at the hearing proved that he had never been in trouble or appeared in juvenile court before.

This court will not interfere with a lower court’s order transferring a juvenile to circuit court for criminal prosecution as an adult unless the order is “clearly erroneous,” see Williams v. State, 361 So.2d 1157, 1157 (Ala.1978); Brown v. State, supra, at 1388. We must assume that the trial court’s finding regarding the ineffectiveness of any treatment of the appellant is based in part upon the report submitted by the juvenile probation officer, as required by § 12-15-34(e), Code of Alabama 1975. See Williams v. State, supra at 1157. The probation report states the following: (R. 47).

“With two sale of marijuana charges pending against Don and the fact that he has turned eighteen years of age, the Juvenile Court has nothing to offer him. Therefore, it seems that in order to protect the community and to attempt to get Don to understand- that he must stop breaking the law, the only alternative is to place Don in the adult system where the penalties for this behavior are stronger and more severe.” (Emphasis added).

In light of this report and the court’s finding that appellant “is now 18 years of age and was within three months of his 18th birthday when the alleged offense occurred,” the judge’s determination that appellant would not benefit by juvenile court treatment is valid. We cannot say that this order is “clearly erroneous.” The order of the lower court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Gregory STERLING v. STATE of Alabama.
    8 Div. 713.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.

      John Mark McDaniel and Marc Sandlin of McDaniel & McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Gregory Sterling was indicted for trafficking in cannabis in violation of § 20-2-80, Code of Alabama 1975. The appellant was found “guilty as charged in the indictment” and the trial court sentenced him to five years’ imprisonment and a fine of $25,-000.

Immediately preceding the trial in this case, the trial judge held a hearing to consider the appellant’s motion to suppress the State’s evidence. This averred that the search and seizure of the automobile driven by the appellant.occurred without a warrant and allegedly without justification.

Agent Parker, a special agent with the Organized Crime Bureau of the Huntsville Police Department testified that at approximately 10:00 p.m. on July 28, 1981, he received information from a confidential informant that he had seen three. subjects selling marijuana at the Earl Street Community Center on Indiana Street. He specifically identified one of the subjects as Thelonious Strickland. This informant had supplied Agent Parker with information on several occasions in the past and Agent Parker knew the information he had provided had been reliable.

After receiving this information, Agent Parker drove to the Earl Street Community Center with Agents Green and Taylor, also special agents with the Huntsville Organized Crime Bureau. When they arrived there, Agents Parker and Taylor got out of the car and hid in some bushes while Agent Green remained in the car to communicate with police headquarters. Agent Parker testified that he observed three suspects in the community center parking lot standing beneath a street light. During fifteen to twenty minutes of surveillance, Agents Parker and Taylor observed three separate exchanges between the three suspects and three separate individuals. Each transaction consisted of an individual who would approach the three suspects, the suspects would scan the street, the individual would give Strickland something, Strickland would give the individual something in return, the individual would put something in his pocket and walk away.

After the last transaction, the three suspects began walking toward an automobile parked near the agent’s surveillance position. All three of the suspects appeared to be scanning the area and the agents observed the appellant smoking what appeared to be a marijuana cigarette. When the three arrived at the automobile, the appellant got in the driver’s seat. At this point, the police identified themselves as police officers. The appellant started the ignition and the other two suspects ran. Agent Taylor pointed his shotgun in the car and told the appellant to turn off the motor, which he did. The other two suspects were subdued and apprehended. All three agents testified they detected the odor of burning marijuana coming from the interi- or of the automobile. From the outside of the automobile, the officers were able to see what they believed was a burning marijuana cigarette on the transmission floorboard (hump) and, also, an unlit marijuana cigarette on the driver’s side of the front seat. The three suspects were then placed under arrest for possession of marijuana and were searched. A small manilla envelope containing green plant material was found on the appellant. This manilla envelope is commonly known as a “nickel bag of marijuana” and is used for sale. Agent Taylor read the suspects their Miranda rights.

The agents impounded the automobile pursuant to Huntsville Police Department policy and conducted an inventory of the contents of the automobile. Several .25 caliber bullets and a holster were found on the front seat. The appellant told the agents he did not own the automobile, that it belonged to his uncle and he had not given him the trunk key. The agents then opened the trunk electronically from inside the passenger compartment and found two grocery bags; one open and one closed. Within these two bags were five plastic bags containing green plant material. The open bag contained three of the plastic bags while the closed bag contained two. The officers took these bags into possession. The officers testified that the appellant asked them for his straw hat which they found in the trunk along with some more clothes and some .25 caliber bullets.

The trial judge, after hearing the testimony of the three agents, denied the appellant’s motion to suppress the evidence and his trial began later that day.

At the trial, Agents Parker, .Green and Taylor testified to basically the same facts which they had given at the motion to suppress hearing. The only other witness for the State was Martha Odum, who is a criminalist with the State Department of Forensic Sciences.

She testified she received five plastic bags containing green plant material enclosed in a larger plastic bag from Agent Taylor on July 29, 1981. The total weight of the five bags was 4.9 pounds and the weight of the individual bags ranged from 14.9 ounces to 16 ounces. She testified she determined that the plant material contained in the manilla envelope, the cigarette butt, the hand-rolled cigarette and the five bags was marijuana.

Appellant testified in his own behalf at this trial. He stated he had borrowed the car from his uncle in Chattanooga the day before his arrest. He denied knowledge of anything in the trunk because his uncle had not given him a trunk key. Appellant testified he went to the community center to look for his brother, Thelonious Strickland. After talking for a while at the community center, they walked to his uncle’s car parked down the street. As he got in the car, he saw the police chasing his two companions. He said one of the officers stuck a shotgun through the car window and he got out. He denied that his straw hat was in the trunk or that he had asked for it. He admitted pleading guilty to altering United States currency in 1976. He denied he had been smoking anything, and claimed there was nothing burning in the car when he was arrested. Lastly, he testified that he knew his brother had sold marijuana at the community center in the past.

I

Appellant contends the police lacked sufficient probable cause to effectuate his arrest and conducted an unreasonable search and seizure of the automobile which he was driving. Therefore, the appellant’s motion to suppress should have been granted.

Since both of appellant’s contentions hinge on whether the initial stop and seizure was reasonable, we discuss this issue first.

In stopping and frisk situations, courts have used a balancing test in determining the reasonableness of police conduct. The necessity of the stop and seizure must be viewed in light of the particular invasion which the stop and seizure involves. Terry v. Ohio, 892 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The governmental interest which allows official intrusion upon a private citizen’s Fourth Amendment rights is that of effective law enforcement. The individual citizen is protected against unreasonable searches and seizures. However, in certain situations, not only is an invasive stop reasonable, but is merely a minor inconvenience and a petty indignity compared to the government’s greater interest in crime prevention and detection. Terry v. Ohio, supra.

In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, supra. The appropriate question to ask is “... [W]ould the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”. Terry v. Ohio, supra; Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

Section 15-5-30 of the Code of Alabama 1975, allows the police, without probable cause, to “stop any person ... in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him, his name, address and an explanation of his actions.” This statute gives the police authority to stop and detain a person briefly for questioning based on a suspicion that the person might be engaged in criminal activity. We believe the informant’s tip, along with the observation of appellant’s actions, gave the police agents valid reason to believe appellant was involved in some type of criminal activity. The officers acted properly by stopping and seizing the appellant and conducting further investigation into his activities.

A

Thus, we must examine the lawfulness of the appellant’s arrest. Appellant contends the police did not have sufficient probable cause to arrest him.

Section 15-10-3, Code of Alabama, is the governing statute for warrantless arrests. This statute clearly allows an officer to make a warrantless arrest if he has reasonable and probable cause to effect that arrest. Whether the warrantless arrest was lawful depends upon whether “at the moment the arrest was made, the officers had probable cause to make it.” White v. State, 45 Ala.App. 1, 221 So.2d 117 (1969). We hold this arrest valid.

Now, we must examine the reasonableness of the search of the automobile which the appellant was driving and the search of his person.

The constitutional provision involved in this case is the Fourth Amendment to the United States Constitution. This amendment, of course, does not require that every search be made with a warrant. It only prohibits unreasonable searches and seizures. The reasonableness of the search and seizure must be examined rather than the reasonableness of the opportunity to procure a warrant. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

It has long been recognized that there is a difference between the search of a dwelling and the search of an automobile. It is not always practical to secure a warrant to search an automobile since it can readily be removed from the jurisdiction from which the warrant would issue. Because of the mobility of an automobile, courts have recognized that under certain circumstances, police officers may, without a warrant, search for contraband concealed in an automobile. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The six circumstances under which the police may conduct an investigatory search into the interior of an automobile without a warrant were set out by the Supreme Court of this state in Daniels v. State, supra. They are:

“(1) In ‘plain view,’ see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
“(2) With ‘consent’ voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
“(3) As ‘incident to a lawful arrest,’ see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
“(4) In ‘hot pursuit’ or ‘emergency’ situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
“(5) Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and
“(6) In ‘stop and frisk’ situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).”

Two of these exceptions are involved in this case. Each exception has its own applicability to a given set of fact situations involving warrantless searches. Simply because two or more of these exceptions may be involved in a certain situation, does not mean that they may be merged into one super justification. Each must be separately analyzed and supported by their own guidelines in order to justify a warrantless search. Some of the exceptions might justify a search of the passenger compartment but not necessarily the trunk, while others may justify a search of the entire vehicle. See Moylan, The Automobile Exception: What it is and what it is not—a Rationale in Search of a Clearer Label, 27 Mercer L.Rev. 987 (1976) at 1012, 1013.

A search incident to a lawful arrest is reasonable under the Fourth Amendment. This exception has developed for the protection of the police officer and the prevention of the destruction of evidence. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

When determining whether a search was reasonable under the search incident exception, we must first examine the legality of the arrest. Since the arrest in this case was, in fact, valid, as previously discussed, we now look to the area which may be searched." The scope of a search incident to an arrest depends on the arrestee’s location and is measured by “the floating zone of reachability, lungability or graspability.” See Moylan, The Automobile Exception, supra, at 1013. This certainly would include a search of the person and may include other areas as well. New York v. Belton, supra.

When determining the reasonableness of a search incident to an arrest where automobiles are involved, one must remember the automobile has no significance in itself. Just because a driver of an automobile has been arrested does not give the police the right to search the automobile. Only the areas which may be considered an extension of his person may be searched and this area may or may not intrude upon some, or all of the automobile. See Moylan, The Automobile Exception, supra, at 1014. See also New York v. Belton, supra.

In the instant case, we find the police conducted a legitimate search of the person of the appellant (which yielded the manilla envelope of marijuana) and of the interior of the automobile, (in which they found the two marijuana cigarettes). However, the search of the trunk of the appellant’s automobile cannot be justified by the search incident exception. We must now determine if one of the other exceptions would apply to the search of the trunk.

II

The right to search and the validity of the seizure under the automobile exception is not dependent on the right to arrest. Rather, the search and the seizure are based on the probable cause the police officer has for belief that the automobile contains contraband or other illegal items. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

A police officer is authorized to make a warrantless search of an automobile under the automobile exception whenever (1) he has probable cause to believe that the automobile contains evidence of a crime and (2) exigent circumstances which require an immediate search. See Moylan, The Automobile Exception, supra, at 987. The automobile exception, as established in Carroll v. United States, supra, is applicable only to searches of automobiles based on probable cause. United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). See also Ex Parte Vogel, No. 80-175 (Ala. July 23, 1982). A warrantless search is justified if it is based on facts which would be sufficient for the issuance of a warrant. United States v. Ross, supra.

Since the search of the automobile which was driven by the appellant must be supported by probable cause, we must determine and do hold that probable cause existed in this case. “Probable cause exists when the facts and circumstances within the knowledge of the officers and of which they had reasonably trustworthy information are sufficient to cause the officers to conscientiously entertain a strong suspicion that the object of the search is in the particular place to be searched.” Hatton v. State, 359 So.2d 822 (Ala.Cr.App.1977); People v. Gregg, 43 Cal.App.3d 137, 117 Cal.Rptr. 496 (1974); Carroll v. United States, supra.

When we speak of probable cause, we are dealing with probabilities which are factual and practical considerations of everyday experience. The police officer must make split-second decisions based on his knowledge and experience. He is not a legal technician who has the benefit of hindsight analysis. Therefore, the standard we set for our police officers is that of the reasonable and prudent man. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

A warrantless search based on probable cause may be as thorough as a search authorized by a warrant.

“The scope of a warrantless search based on probable cause is no narrower— and no broader — than the scope of a search authorized by a warrant supported by probable cause.”

United States v. Ross, supra; Ex parte: Vogel, supra.

Moreover, a finding of probable cause to make a warrantless search of the automobile was justified when the officers detected the odor of marijuana emanating from the interior of the automobile. We believe the odor of marijuana was in itself enough to provide probable cause to initiate a search when considered with the other factors herein set forth. Rose v. City of Enterprise, 52 .Ala.App. 437, 293 So.2d 862 (1974); People v. Cook, 13 Cal.3d 663, 119 Cal.Rptr. 500, 532 P.2d 148 (1975); State v. Houlf, 27 Ariz.App. 633, 557 P.2d 565 (1976); but see People v. Gregg, supra.

We hold that a police officer may rely on an aroma of marijuana to give him probable cause to suspect that contraband is present and may be concealed in other areas of the automobile. People v. Cook, supra.

Once evidence of marijuana is lawfully observed by a police officer in any part of the automobile, the entire vehicle, including the trunk may be searched.

“Common sense suggests that the size and nature of an automobile owner’s property determines whether the owner selects the passenger compartment or the trunk as the place for storage. Similarly, the trunk is as likely a place for the storage of weapons and contraband as the passenger compartment, if not more so.” (Footnote omitted).

United States v. Longman, 533 F.Supp. 176 (W.D.Michigan, 1982).

As to the grocery bags found within the trunk, “the practical consequences of the Carroll decision would be largely nullified if the permissible scope of a warrant-less search of an automobile did not include containers and packages found inside the vehicle. Contraband goods rarely are strewn across the trunk or floor of a car; since by their very nature such goods must be withheld from public view, they rarely can be placed in an automobile unless they are enclosed within some form of container.” United States v. Ross, supra. The scope of a search for contraband is not defined by the nature of the container in which it may be concealed. Rather, the permissible scope is defined by the object of the search and the places in which there is probable cause to believe that the contraband may be concealed. United States v. Ross, supra.

We have established that the police officers had probable cause to search the entire vehicle and its persons and contents.

Given the inherent mobility of automobiles, courts have recognized that, in certain instances, it is impractical, if not impossible, to secure a warrant to search an automobile before it is removed from the jurisdiction. United States v. Ross, supra. Thus, when exigent circumstances coexist with probable cause, police officers are justified in conducting an immediate search of the vehicle at the scene. United States v. Ross, supra.

However, the United States Supreme Court as well as the Supreme Court of this state, have upheld warrantless searches of automobiles where no indication that the automobile would be removed from the jurisdiction or that evidence within it would be destroyed. South Dakota v. Opperman, supra; Reid v. State, 388 So.2d 208 (Ala.1980).

The United States Supreme Court in Chambers v. Maroney, supra, addressed the issue of exigent circumstances and held that “[F]or constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” Hatton v. State, supra; Reid v. State, supra.

We therefore hold that the search of the automobile driven by the appellant was supported by probable cause and therefore was a proper exercise of the police officer’s authority.

Ill

In this cause, the police agents made an inventory of the items seized from the trunk of appellant’s vehicle while at the scene of the arrest.

The inventory of the automobile driven by the appellant was carried out in accordance with the standard procedures of the Huntsville Police Department and was a valid intrusion into that part of the automobile as heretofore noted in this opinion.

Where, as here, proper procedures are followed in making the inventory in question, such is constitutional under South Dakota v. Opperman, supra, and Lippold v. State, 365 So.2d 1015, (Ala.Cr.App.1978).

We therefore hold that the items seized were properly inventoried in this cause.

IV

The appellant contends that the marijuana was improperly admitted into evidence on the ground the state failed to demonstrate a proper chain of custody.

We have examined this record and determined through the testimony of Agent Green, who took possession at the scene, and other officers who subsequently turned this evidence over to Mrs. Martha Odum at the State Department of Forensic Sciences, that a proper chain of custody for the admission of this evidence was properly shown.

V

The appellant contends that the state failed to prove the requisite amount of cannabis sufficient to sustain the conviction.

This court in Dickerson v. State, 414 So.2d 998 (Ala.Cr.App.1982) stated:

“It is well established that the burden is upon the appellant to establish and bring himself within any exclusion which is found not in the enacting clause defining a crime but rather in a subsequent clause or statute. Specifically, he must establish that the marihuana seized from his residence contained excludable matter falling within the definition of such under § 20-2-2(15).”

See also Ellis v. State, [Ms. Nov. 2, 1981, 7 Div. 978], (Ala.Cr.App.1982).

The appellant in this case offered no evidence at trial to bring him within the exclusion set forth. Therefore, we believe the testimony given by Mrs. Odum concerning the weight was sufficient to sustain the appellant’s conviction.

We have carefully examined each issue and find this record free of error. The judgment below is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    Harry PEOPLES v. STATE.
    3 Div. 420.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Donald R. Harrison, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   AFTER REMANDMENT

TYSON, Judge.

This ease was remanded to the Circuit Court of Montgomery County, Alabama for a new sentencing hearing. Peoples v. State, 415 So.2d 1230 (Ala.Cr.App.1982). In strict compliance with the order of this court that a new sentencing be held, such was set at which appellant and his counsel were present.

The state introduced into evidence two certified copies of judgments of conviction showing that Peoples, the appellant, had been previously convicted of grand larceny for which he had received a twenty-month sentence and for a drug conviction involving heroin in federal district court, for which he received seven years’ imprisonment.

After these two convictions were placed in evidence before the circuit court, the appellant was sentenced to life imprisonment pursuant to the provisions of § 13A-5-9(b)(3), which requires that the appellant be imprisoned “for life or for any term of not less than 99 years.”

A supplemental transcript showing this resentencing, including the certified copies of the two previous convictions, was filed in this court.

Upon consideration of the supplemental transcript which includes the two certified copies of the two previous felony convictions, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: ALDERMAN, Chief Justice.

text:
    ESCAMBIA RIVER ELECTRIC COOPERATIVE, INC., Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, and Gulf Power Company, Appellees.
    No. 61679.
    Supreme Court of Florida.
    Sept. 2, 1982.
    Rehearing Denied Dec. 15, 1982.
    Henry L. Gray, Jr. of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for appellant.
    William S. Bilenky, General Counsel and Kathleen Villacorta, Associate General Counsel, Tallahassee, for Florida Public Service Comn.
    C. Roger Vinson of Beggs & Lane, Pensacola, for Gulf Power Co.
    George C. Douglas, Jr., Andalusia, Ala., for Alabama Elec. Co-op., Inc., amicus curiae.
   ALDERMAN, Chief Justice.

Escambia River Electric Cooperative, Inc., seeks review of an order of the Public Service Commission resolving a territorial dispute in favor of Gulf Power Company. We affirm.

Escambia River filed a petition with the Commission under authority of section 366.-04(2)(e), Florida Statutes (1980 Supp.), seeking resolution of a territorial dispute between it and Gulf Power Company. At the conclusion of a public hearing, the Commission found that both Escambia River and Gulf Power had the generating capacity, transmission facilities, and reliability to provide the requested 115 kv service, that both companies had customers in and around the disputed area, that there would be no duplication of transmission facilities because neither company had 115 kv lines in the area, and that the cost of providing the requested service would be approximately the same for the two companies.

The Commission then ruled in favor of Gulf Power declaring that it was entitled to provide electric power to the Exxon Blackjack Creek Miscible Gas Displacement Project and that Escambia River was prohibited from serving the Project. In support of its ruling, the Commission stated:

The facts in this dispute fail to demonstrate any significant advantage possessed by Gulf or Escambia with respect to capacity to provide the electrical power requirements requested by Exxon. The Commission is basically confronted in this case with a policy decision as to whether a privately owned utility or a rural electric cooperative should serve requirements of this nature when no factual or equitable distinction exists in favor of either party. The Commission concludes that the dispute must be resolved in favor of Gulf Power Company.
We feel that our decision comports with the policy delineated in Tampa Electric Co. v. Withlacoochee River Coop., 122 So.2d 471 (Fla.1960). In that case, the “preferential economic advantage” enjoyed by rural electric cooperatives, such as Escambia, and the “fundamental underlying purposes which motivated the establishment of the rural electrification program” were enunciated as grounds for enjoining Withlacoochee from providing electrical service in competition with Tampa Electric Company, a private utility. .
The plain language as well as the spirit of Section 425.04, Florida Statutes, was additionally cited as a statutory prohibition against such competition. The Florida Supreme Court further observed in Withlacoochee as follows:
It is a matter of common knowledge that the real purpose to be served in the creation of REA was to provide electricity to those rural areas which were not being served by any privately or govemmentally owned public utility. It was not intended that REA should be a competitor in those areas in which as a matter of fact electricity is available by application to an existing public utility holding a franchise for the purpose of selling and serving electricity in a described territory.
While we recognize the valuable service performed by the cooperatives, we believe that this case, too, presents an example of the type of electrical requirements that is beyond the basic intent and purpose of the cooperatives, especially when a privately owned utility can reasonably meet those requirements.

We find, contrary to the arguments made by Escambia River, that the record contains competent substantial evidence to support the Commission’s findings of fact. We also find that when, as in the present case, no factual or equitable distinction exists in favor of either utility, Tampa Electric Co. v. Withlacoochee River Electric Cooperative, Inc., 122 So.2d 471 (Fla.1960), controls, and the territorial dispute is properly resolved in favor of the privately owned utility. We therefore agree with the Commission’s conclusion of law concerning the application of Withlacoochee to the factual situation in the present case, and we affirm its order resolving the territorial dispute in favor of Gulf Power.

We disagree, however, with the Commission’s alternative finding that its more extensive jurisdiction over privately owned utilities is an additional consideration supportive of a policy decision in favor of Gulf Power. We disapprove the jurisdictional distinction as a valid reason to support a ruling for a privately owned utility and against a rural electric cooperative in a territorial dispute.

Accordingly, we affirm the decision of the Public Service Commission.

It is so ordered.

BOYD, SUNDBERG and McDONALD, JJ., concur.

ADKINS, OVERTON and EHRLICH, JJ., dissent.


author: ADKINS, Justice.

text:
    Ronald JACKSON, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent.
    No. 60271.
    Supreme Court of Florida.
    Oct. 7, 1982.
    Rehearing Denied Dec. 13, 1982.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb and Elliot H. Scherker, Asst. Public Defenders, Eleventh Judicial Circuit, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., Miami, for respondent.
   ADKINS, Justice.

By petition for writ of habeas -corpus, petitioner (hereinafter referred to as defendant) asserts ineffective assistance by counsel on his direct appeal from his conviction and sentence of death, and, that because of this, he is entitled to a belated appellate review. The claim of ineffective assistance of counsel stems from acts or omissions before this Court in Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). We have jurisdiction. Art. V, § 3(b)(9), Fla.Const.; Fla.R.App.P. 9.030(a) (3); Knight v. State, 394 So.2d 997 (Fla.1981).

Defendant has identified four legal errors which he contends his appellate counsel should have raised on direct appeal. He argues that the failure to present those issues denied him his rights to a full and meaningful appeal and to the effective assistance of appellate counsel as guaranteed by the sixth, eighth, and fourteenth amendments to the Constitution of the United States. These asserted legal errors include: 1) the trial court’s admission of oral statements made by defendant during interrogation proceedings conducted after invocation of his Miranda rights; 2) the trial court’s application of a nonstatutory aggravating circumstance, i.e., defendant’s failure to display remorse for the offense; 3) the trial court’s improper construction of mitigating circumstances, i.e., impaired mental state of defendant at the time of the offense and his inability to conform his conduct to the requirements of law; and, 4) the trial court’s instructions to the jury that where one or more of the aggravating circumstances is found death is presumed to be the proper sentence, unless they are overridden by one or more of the mitigating factors. We have considered these assertions in light of the standards announced in Knight and find no substantial deficiency in defendant’s representation on appeal by which he was prejudiced.

Defendant was first arrested by a Florida highway patrol officer and was immediately advised of his Miranda rights. Defendant invoked his right to remain silent, and interrogation ceased. Defendant was then turned over to Dade County officers and placed in the Dade County jail. Approximately four hours after defendant had invoked his privilege of remaining silent, Dade County officers gave defendant a fresh set of warnings. Defendant says his counsel should have challenged the admissibility of oral statements made by him during interrogations conducted after defendant’s assertion of his fifth amendment right of silence. Instead, defendant says his counsel challenged the admissibility of the statements on other grounds, overlooking the merits of this claim which certainly had an “arguable chance of succeeding.” We disagree.

In Jennings v. United States, 391 F.2d 512 (5th Cir.), cert. denied, 393 U.S. 868, 89 S.Ct. 154, 21 L.Ed.2d 136 (1968), it appeared that Jennings was first warned by Ft. Pierce, Florida, police of his Miranda rights. After Jennings answered a few questions he announced that he would not ankwer any further questions and the interrogation immediately stopped. Approximately one hour later, an agent of the Federal Bureau of Investigation arrived at the police station to interrogate Jennings. Proceeding as if there had been no prior interrogation, the FBI agent again gave full and complete warning. Subsequent to these warnings, the defendant signed a waiver and did not hesitate to discuss the matter with the agent. Jennings challenged the admissibility of the statements arguing that he had refused to answer any further questions from Fort Pierce police and it was improper, under Miranda, for the FBI agent to question him. The Court held that there was no error in the admission of the statement obtained by the FBI. It cannot be said that a challenge to the admissibility of the statement on this ground would have an “arguable chance of success,” as to warrant the conclusion that defendant was prejudiced by his counsel’s failure to review this argument on appeal, or that defendant’s counsel provided ineffective assistance in failing to reargue this point.

Defendant argues that in the findings of fact supporting the sentence of death, the trial judge expressly relied upon, in addition to two statutory aggravating and two statutory mitigating factors, one nonstatutory aggravating factor, i.e., defendant’s failure to display remorse for the offense.

The first paragraph of these findings of fact reads as follows:

That sufficient aggravating circumstances exist in this particular case that far outweigh any mitigating circumstances in the record. The death of this decedent occurred while the defendant was engaged in the commission of the crime of Armed Robbery. In addition thereto the defendant clearly committed the capital felony in order to eliminate the victim of the robbery. He forcibly transported the victim against her will, from the scene of the robbery to a lonely desolate area to accomplish the capital felony. These facts alone, in this Court’s judgment could justify the imposition of the death penalty, but this particular killing is far more useless and heinous than this.

366 So.2d at 756 (emphasis added).

In the Court’s reasoned judgment, these facts alone were sufficient to warrant the imposition of the death penalty, however, 'the Court also discussed the heinous nature of the crime, and then said:

The facts of this case are the most “heinous, atrocious and cruel” that this Court has ever considered. It is for crimes like the one at Bar that the death penalty is in fact appropriate. See Sullivan v. State, 303 So.2d 632 (Fla.1974).

366 So.2d at 756.

In giving the reasons for the death sentence in this case, the trial judge was assuring himself that he was reaching a similar result to that reached under similar circumstances in another case. This reasoning process is exemplified by the cite to Sullivan. It was after this that the Court said:

This Court has observed the demeanor and the action of the defendant throughout this entire trial and has not observed any sign of remorse, indicating full well to this Court that the death penalty is the proper selection of the punishment to be imposed in this particular case.

366 So.2d at 756-57.

This was error. However, the defendant has the burden to show that this specific deficiency when considered under the circumstances of the individual case was substantial enough to demonstrate a prejudice to him to the extent that there is a likelihood that the deficient conduct affected the outcome of the proceedings. This means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. Knight v. State.

Although an improper aggravating circumstance (lack of remorse) was included in the findings of the trial judge’s sentence decision and there were identified two mitigating circumstances (defendant’s age and first conviction), nevertheless, Elledge v. State, 346 So.2d 998 (Fla.1977), would not compel reversal of the sentence judgment in this case. It is apparent on the face of the findings by the trial judge that the result of the weighing process would not have been different had the impermissible factor not been present. Jackson, 366 So.2d at 756. It is beyond reason to conclude that the trial judge’s decision to impose the death penalty would have been affected by the elimination of the unauthorized aggravating circumstance. Brown v. State, 381 So.2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981). There was no substantial deficiency by appellate counsel and no prejudice stemming from the failure to raise this issue.

Defendant also says that appellate counsel should have questioned on appeal the trial court’s failure to consider the impaired mental state of defendant at the time of the offense and his inability to conform his conduct to the requirements of law. It is apparent from the court’s order that the trial judge did in fact consider these mitigating circumstances and further, that he weighed the evidence on this issue and resolved the factual conflicts in favor of the state. The record does not support defendant’s contention, so the failure of appellate counsel to raise this issue is not an omission that was a serious deficiency. There was no prejudice shown.

The instruction at the sentencing hearing was in conformity with the law as stated in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974). The death penalty is appropriate where there exists evidence of one or more aggravating circumstances proved by the state beyond a reasonable doubt. Mitigating circumstances are not offered as rebuttal evidence of aggravating circumstances. Mitigating circumstances, if any, are offered by the defendant to show that the “totality of the circumstances” warrants less than the death penalty. There is no improper “shifting” of the burden of persuasion with respect to a fact which must be proved during the sentencing procedure.

The trial court’s instruction, when considered in its entirety, was a proper admonishment to the jury that they were not to add up the aggravating and mitigating factors in a mechanistic and wooden fashion, but were to weigh the “totality of the circumstances” in arriving at a reasoned judgment as to whether the facts warranted imposition of the death penalty or life imprisonment. The court instructed the jury that should mitigating circumstances outweigh the presumed fact, they were not bound by the presumption.

The instruction of the trial court was not improper, so the failure of counsel to challenge the instruction on direct appeal did not deprive defendant of effective assistance of appellate counsel.

Having now carefully considered the alleged ineffectiveness of appellate representation, we find no serious deficiencies causing prejudices to defendant. The petition for writ of habeas corpus is denied.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON and McDONALD, JJ., concur.


author: BOWEN, Judge.

text:
    Harry James WHITE v. STATE.
    8 Div. 649.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-864.
    Jerry Knight of Hardwick & Knight, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was charged and convicted of driving while intoxicated. Alabama Code 1975, Section 32-5-171. Sentence was a $100.00 fine and costs. Two issues are raised on appeal.

I

The defendant did not except to the refusal of the trial judge to give his written requested charges. Therefore, we have nothing to review as this issue has not been properly preserved. Allen v. State, 414 So.2d 989 (Ala.Cr.App., 6 Div. 993, Ms. November 24, 1981). Gullatt v. State, 409 So.2d 466, 474 (Ala.Cr.App.1982).

II

Alabama State Trooper James Hood observed a gray Corvette speeding on a county road. He gave pursuit but was unable to overtake the Corvette and lost sight of that vehicle. Within ten minutes and within one quarter of a mile from his last observation, Trooper Hood observed a gray Corvette “setting up in a yard in front of a house.” The right rear tire was flat and “the muffler system, the exhaust was sticking out the back of the car.” There were skid marks in the grass. Trooper Hood testified that the exhaust was hot and the tires were warm. The defendant was standing by the Corvette.

In response to Trooper Hood’s question, the defendant told him that he was the driver of the Corvette. Trooper Hood had a duty to investigate the accident. He had the authority to arrest the driver of the vehicle for driving under the influence even though he did not personally see that person .driving any vehicle. Alabama Code 1975, Section 171. The defendant’s admission that he was the driver was properly admitted into-evidence because he was not in custody and the questioning was investigative and nothing more than general on-the-scene investigation. Kelley v. State, 366 So.2d 1145 (Ala.Cr.App.1979); Harris v. State, 376 So.2d 773 (Ala.Cr.App.), cert. denied, 376 So.2d 778 (Ala.1979). See also Sly v. State, 387 So.2d 913 (Ala.Cr.App.), cert. denied, Ex parte Sly, 387 So.2d 917 (Ala.1980). Trooper Hood testified that his purpose in asking the defendant who had been the operator of the vehicle was “(t)o fill out an accident report we have to get driver’s information.” See Anno. 25 A.L.R.3d 1076 (1969).

We recognize that there may exist some situations where the Miranda warnings are required when a motorist is stopped for a traffic offense, Campbell v. Superior Court of Maricopa County, 106 Ariz. 542, 479 P.2d 685 (.1971), however, in this case it appears that the officer’s question was investigatory and not accusatory and the defendant was not in custody.

We also note that the only objection to this matter was a general objection (“I object”) and there was never any request for a determination of voluntariness.

Additionally, any error in this admission was cured when defense counsel cross examined Trooper Hood:

“Q. Mr. White did comment to you about a cow being in the highway?
“A. Yes, sir, he did.
“Q. What did he say about the cow?
“A. He said that he was going down the road and a black cow was in the road there at the curve and he swerved off the road to miss it.”

Klemmer v. State, 51 Ala.App. 383, 286 So.2d 58, cert. denied, 291 Ala. 786, 286 So.2d 62 (1973); Kelley v. State, 366 So.2d 1145 (Ala.Cr.App.1979). Since the defendant’s own attorney subsequently brought out the fact that the defendant had been driving the automobile, we do not see how the trooper’s former testimony on this same matter could have prejudiced the defendant. Rule 45, A.R.A.P.

The judgment of the circuit court is affirmed.

AFFIRMED.

HARRIS, P.J., and TYSON and BARRON, JJ., concur.

DeCARLO, J., concurs in result.


text:
    HOUSING BY VOGUE, INC., et al., Petitioners, v. DEPARTMENT OF REVENUE, Respondent.
    No. 61146.
    Supreme Court of Florida.
    Nov. 4, 1982.
    John C. Cooper of Douglass, Davey & Cooper, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen., and Linda C. Proc-ta and Barbara Staros Harmon, Asst. Attys. Gen., Tallahassee, for respondent.
   ADKINS, Justice.

We have for review a decision by the District Court of Appeal, First District, (Housing by Vogue, Inc., et al. v. State of Florida, Department of Revenue, 403 So.2d 478 (Fla. 1st DCA 1981)), which expressly and directly conflicts with a decision of this Court (Demeter Land Co. v. Florida Public Service Company, 99 Fla. 954, 128 So. 402 (1930)). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioners, Housing by Vogue, Inc., and Mobile Home Industries, Inc., contracted to provide the Florida Department'of Education with relocatable classroom buildings capable of being moved from site to site without damage to the structure. The units were assembled at petitioners’ Lake City, Florida, factory and towed to Leon County, Florida, for use there. Petitioners paid no sales tax on the materials used in constructing the units.

Respondent, Florida Department of Revenue, issued a notice of proposed tax assessment on the purchase of the materials used. Respondent contended that the purchases were not exempt from the state sales tax because the materials “went into or became a part of” a public work. See section 212.-08(6), Florida Statutes (1977). Petitioners contested the proposed assessment and an administrative hearing was held pursuant to § 120.57(1), Florida Statutes (1977). At the conclusion of the hearing, the presiding officer issued an order recommending that petitioners be required to pay the disputed tax, a 25% penalty and interest thereon. The Governor and cabinet of Florida, acting as head of the Department of Revenue, approved the recommended order.

On appeal, the first district court affirmed the order, holding that under § 212.-08(6), the purchases in question were not exempt from taxation. Petition for review by this Court followed.

Chapter 212, Florida Statutes (1977), establishes a sales tax which is to be levied on the sale of tangible personal property in this state. Section 212.08(6), Florida Statutes, with certain exceptions, exempts from that tax sales to the United States Government, the State of Florida, or any political subdivision of the state. The part of section 212.08(6) with which we are here concerned provides as follows:

There shall also be exempt from the tax imposed by this chapter sales made to the United States Government, the state, or any county, municipality or political subdivision of this state; provided this exemption shall not include sales of tangible personal property made to contractors employed either directly or as agents of any such government or political subdivision thereof when such tangible personal property goes into or becomes a part of public works owned by such government or political subdivision thereof. .. .

(Emphasis added.)

Both respondent and the district court found that the materials purchased by petitioner for the fabrication, transportation, and installation of the portable classroom units were tangible personal property which went into or became part of public works owned by the state. As such, the sales were not included in the general exemption granted in section 212.08(6) and were taxable transactions, concluded the district court. If the classroom units sold to the state by petitioners were “public works” as that phrase is used in section 212.08(6), then the district court was correct in affirming respondent’s order and the tax assessment was proper.

Petitioners contend that the term public works applies only to improvements to, alteration of, or construction of real property. Personal property, they argue, cannot be a public work.

Petitioners cite various authorities in distinguishing the portable classroom units from public works. Public works, they point out, are “fixed works constructed for public use, as railways, docks, canals, water works, roads, etc.”, Demeter Land Company v. Florida Public Service Company, 99 Fla. 954, 963, 128 So. 402, 406 (1930) (citation omitted), and “are meant to embrace contracts akin to building contracts.” Carter v. City and County of Denver, 114 Colo. 33, 37,160 P.2d 991, 992 (1945). The classrooms here in question, on the other hand, are tangible personal property of the same class as automobiles, trucks, typewriters, and the like, claim petitioners. We disagree.

Public works have traditionally been defined as fixed works such as railways, docks, and the like, constructed for public use. See Demeter Land Company v. Florida Public Service Company. The Demeter opinion, however, did not hold that all public works must be fixed; it held that all fixed works constructed for public use are public works. We acknowledge that the effect of our ruling in this case is a broadening of the Demeter interpretation of public works.

Several factors convince us that our broadening of the definition is warranted and that the classrooms which petitioners built should and do qualify as public works. First, the units were built pursuant to chapter 235, Florida Statutes (Supp.1974), the “Educational Facilities Construction Act.” As noted in the district court’s opinion, the project was bid, administered, and bonded in the same manner as a fixed building or project.

Also as noted by the district court, the classroom units are similar in many ways to realty despite their characterization as personality. They are a type of building and are used in the same manner as a fixed schoolroom structure. Although mobile, once in place they are anchored to the ground and operate as any permanent structure would.

The general definition of public works contained in American Jurisprudence, Second Edition, also indicates that the units qualify as such:

[T]he determination of what are public works is often a question of statutory construction and interpretation. The question whether a work is a public work is not to be determined by the mode of payment or by the instruments used in attaining it, but rather by the objects to be accomplished.
Such buildings, structures, and other works which by statute are authorized to be constructed for public purposes by the state or public agencies therein are generally to be regarded as public works.

64 Am.Jur.2d, Public Works and Contracts, § 1 (footnotes omitted). The portable classrooms seem to fit in the category of structures or other works authorized by statute for public purposes.

None of the foregoing, alone, provide an adequate basis for classifying the portable classrooms as public works. Neither the fixed-building, construction-type nature of the project nor the similarity to realty nor the fact that it was a work authorized by statute for public purposes warrant finding these units to be public works. Cumulatively, however, they do. Consideration of all of the factors, of the sum of the individual facets, convinces us that the district court’s ruling was proper and that it should not be disturbed. In light thereof, the decision appealed from is approved.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON and McDONALD, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re AMENDMENT TO CHARTER OF FLORIDA BAR FOUNDATION, INC.
    No. 62603.
    Supreme Court of Florida.
    Nov. 4, 1982.
    Howard P. Rives, President, Clearwater, and Jane E. Robertson, Executive Director, Orlando, of The Florida Bar Foundation, for petitioner.
   PER CURIAM.

The Florida Bar Foundation, Inc., has filed a petition to amend its charter to enlarge its board of directors from 17 to 22 members. Notice of this proposed amendment was published in The Florida Bar News on October 1, 1982, and all interested persons were given 20 days from the date of publication to respond. No objections to the proposed amendment were filed.

We approve the following amendment to the charter:

6.1 Number. The affairs of the foundation shall be managed by a board of directors consisting of 47 22 directors, 5 of whom shall be the president, immediate past president, vice-president, treasurer and secretary as ex-officio directors, 5 of whom shall be designated directors as set forth in ARTICLE 6.2 hereof and 12 of whom shall be elected directors as set forth in ARTICLE 6.3 hereof.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.


text:
    PLAYPEN SOUTH, INC., a Florida corporation, Appellant, v. CITY OF OAKLAND PARK, a municipal code corporation, et al., Appellees.
    No. 81-1671.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Stanley M. Sacks, Fort Lauderdale, for appellant.
    Lewis D. Haines, II, City Atty., Oakland Park, for appellees.
   PER CURIAM.

We have been asked to review the trial court’s order which denied appellant’s motion for temporary injunction without a hearing. This is the second time we have considered an order denying a motion by appellant for temporary injunction. In Playpen South, Inc. v. City of Oakland Park, 396 So.2d 830 (Fla. 4th DCA 1981), we affirmed the denial of appellant’s earlier motion. In that opinion we recited the issues appellant raised in its pleadings, which we need not repeat here. Subsequent to our opinion, appellant deposed the mayor of Oakland Park. His testimony is quoted in BMZ Corp. v. City of Oakland Park, 415 So.2d 735 (Fla. 4th DCA 1982). Based on that testimony, appellant amended its complaint by adding a count alleging the invalidity of Ordinance 0-79-29 because of a violation of the sunshine law. It then filed the motion for temporary injunction which occasioned the order now being appealed. The only substantive difference between appellant’s present motion and the previous one was the new allegation of the sunshine law violation. The trial court reviewed the present motion and properly found it warranted neither a hearing nor relief, apparently concluding as we did in BMZ Corp. v. City of Oakland Park, 415 So.2d 735 (Fla. 4th DCA 1982), that the inadequate, sketchy dialogue in the mayor’s deposition did not show a sunshine law .violation.

Accordingly, the order is affirmed.

GLICKSTEIN, HURLEY and DELL, JJ., concur.

      . Attached to appellee’s brief is an unlabeled appendix which includes copies of Ordinance No. 0-79-29, Resolution No. R-79-119, which submitted the affirmance or repeal of the ordinance to the electorate, and the Broward County Canvassing Board’s certification that 3,081 voted for and 1,078 voted against the ordinance in the referendum. Our decision in BMZ Corp. discusses the consideration of the ordinance in public meetings held by the City Council, including the public hearing held at one of such meetings, as well as the referendum and the effect thereof.


author: BOARDMAN, Acting Chief Judge.

text:
    AETNA FIRE UNDERWRITERS INSURANCE COMPANY, Appellant, v. Genevieve Naomi WILLIAMS, as personal representative of the estate of Kathy Ann Harvey, deceased, Jeffrey Paul Tilton, and Dixie Insurance Company, Appellees.
    No. 81-2551.
    District Court of Appeal of Florida, Second District.
    May 28, 1982.
    T. Gregory Slother of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellant.
    Larry S. Stewart of Floyd, Pearson, Stewart, Richman, Greer & Weil, Miami, for appellee Williams.
   BOARDMAN, Acting Chief Judge.

This is an interlocutory appeal filed by Aetna Fire Underwriters Insurance Company. The trial court entered a partial summary judgment on the issue of liability in favor of plaintiff/appellee Genevieve Naomi Williams, as personal representative of the estate of Kathy Ann Harvey, deceased. We reverse.

The facts are undisputed, and there is no disagreement as to the applicable law. The question before us is one of interpretation and construction of the insurance policy.

The decedent, Kathy Ann Harvey, and Jeffrey Tilton were both employed by Hamilton Electric. On July 17,1980, during the course of their employment, Tilton was operating a Hamilton Electric truck when the decedent, a passenger in the truck, fell from the truck, receiving fatal head injuries.

Hamilton Electric is insured against automobile liability by appellant. However, appellant denied coverage under the circumstances here.

The pertinent coverage provisions of the policy in question provide:

(Form 2-800-400)
PART IV — AUTOMOBILE
1. COVERAGE C AND COVERAGE D-COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE — applicable only if specifically indicated on Part IV Declarations.
I. COVERAGE C — BODILY INJURY LIABILITY
EXCLUSIONS
This insurance does not apply:
(b) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation, unemployment compensation or disability benefits law, or under any similar law;
(c) to bodily injury to any employee of the insured arising out of and in the course of Ms employment by the insured unless benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law;

II. PERSONS INSURED

Each of the following is an insured under this insurance to the extent set forth below:

(a) the named insured;
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, . ..
None of the following is an insured:
(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person INJURED in the course of his employment;

(Form CA OX 01 (Ed. 01 78))

PART I — WORDS AND PHRASES WITH SPECIAL MEANING — ...

A. “You” and “your” mean the person or organization shown as the named insured in ITEM ONE of the declarations.
F. “Insured” means any person or organization qualifying as an insured in the WHO IS INSURED section of the applicable insurance. Except with respect to our limit of liability, the insurance afforded applies separately to each insured who is seeking coverage or against whom a claim is made or suit is brought.

PART IV — LIABILITY INSURANCE

C. WE WILL NOT COVER — EXCLUSIONS. .

This insurance does not apply to:

2. Any obligation for which the insured or his or her insurer may be held liable under any workers’ compensation or disability benefits law or under any similar law.
3. Any obligation of the insured to indemnify another for damages resulting from bodily injury to the insured’s employee.
4. Bodily injury to any fellow employee of the insured arising out of and in the course of his or her employment.
5. Bodily injury to any employee of the insured arising out of and in the course of his or her employment by the insured. However, this exclusion does not apply to bodily injury to domestic employees not entitled to workers’ compensation benefits.

The quoted portions under “PART I— WORDS AND PHRASES WITH SPECIAL MEANING” and “PART IV — LIABILITY INSURANCE are from one form, while the quoted portions under “PART IV — AUTOMOBILE” are from another. The two forms are substantially equivalent. We conclude that there is no coverage here under either form 2-800^400 or form CA OX 01.

Under form 2-800-400, Tilton is an insured under the policy. However, the policy excludes coverage for “[bjodily injury to any fellow employee of the insured arising out of and in the course of his or her employment.” Since the deceased was a fellow employee of Tilton and they were both acting in the course of their employment, the deceased’s injuries are not covered.

Under form CA OX 01, there is no exclusion from coverage of bodily injury to a fellow employee of the insured, but the same result is reached under this form by excluding from the definition of “insured” “any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person INJURED in the course of his employment. Appellee would have us ignore this exclusion, contending that Tilton falls under the general definition of “insured.” While Tilton does otherwise meet this general definition, the exclusions from the definition are as much a part of the policy as any other language therein and should not and will not be overlooked. There is no ambiguity in either form here.

As appellant points out, such exclusions as those found in appellant’s policy, which are known as cross-employee exceptions and exclusions, are inserted in business policies for the benefit of the employer. An employer is required to protect its employees pursuant to the Workers’ Compensation Statute, Chapter 440, Florida Statutes. The employer then protects the general public by purchasing a liability insurance policy. Because employees are already protected by workers’ compensation, the insurance policy bought to protect the general public generally specifically excludes coverage for injuries covered by workers’ compensation. The insurance policy premium would necessarily be higher were this not so. These cross-employee provisions have been found not to contradict the other provisions of the policy, but rather qualify the other provisions. See Annot. 45 A.L.R.3d 288 (1972).

Florida courts have interpreted cross-employee exceptions such as those found here and have held them to be valid exclusions of policy coverage under the circumstances involved in this case. General Insurance Co. v. Reid, 216 So.2d 41 (Fla. 4th DCA 1968), cert. denied, 222 So.2d 752 (Fla.1969); McRae v. Snelling, 303 So.2d 670 (Fla. 4th DCA 1974); Allstate Insurance Co. v. Anderson, 394 So.2d 461 (Fla. 3d DCA 1981). See also Hartford Accident & Indemnity Co v. Fonck, 344 So.2d 595 (Fla. 2d DCA 1977), cert. denied, 359 So.2d 1214 (Fla.1978).

Accordingly, the partial summary judgment in favor of appellee is REVERSED and the cause REMANDED with directions to enter summary judgment in favor of appellant.

RYDER and DANAHY, JJ., concur.

      . We do not disagree with the cases cited in appellee’s well prepared and concise brief; however, we are unpersuaded that they answer the precise question before us, i.e., whether Tilton is an insured under the policy here.


author: SCHEB, Chief Judge.

text:
    STATE of Florida, Petitioner, v. Omar R. BOWERS, Respondent.
    No. 82-359.
    District Court of Appeal of Florida, Second District.
    June 2, 1982.

      James T. Russell, State Atty., and Lawrence A. Jacobs, Asst. State Atty., Clear-water, Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for petitioner.
    Ira E. Berman of Yanchuek, Thompson & Young, P.A., St. Petersburg, for respondent.
   SCHEB, Chief Judge.

The State seeks a writ of common law certiorari to review the trial court’s order granting defendant/Bowers’ pretrial motion to exclude the testimony of defendant/Platt from Bowers’ upcoming trial for trafficking in cannabis. The court found that the State’s discovery violations consisting of its failure timely to notify Bowers of a tape recording and its intent to call Detective Platt as a witness required exclusion of the witness. We disagree.

The State filed an information charging Bowers with trafficking in marijuana. On September 14,1981, he demanded discovery. Discovery supplied on September 21, 1981, reflected that Detectives Hart and Ramey gave Bowers Miranda warnings. This discovery also disclosed the substance of Bowers’ statements to the police. The officers’ depositions, which were taken on August 28, 1981, and January 7,1982, revealed that neither detective advised Bowers of his Miranda rights. The deposition of Detective Brubaker, taken on October 27, 1981, revealed that an undercover deputy had advised Bowers of his rights. The State subsequently learned from defense depositions that the undercover deputy who recited the warnings was Detective Platt.

Trial was set for January 12, 1982, but was continued to January 26, after it originally was discovered that, due to a clerical error in reproducing the discovery, a portion of the paper listing a tape recording as evidence was cut off. Then, on January 26, the State moved for a one-week continuance to February 2, due to the unavailability of an essential witness. On January 27, the State supplied Bowers with an additional witness list bearing the name of Detective Platt. A memo attached to the witness list indicated that it appeared that Detective Platt had advised Bowers of his Miranda rights.

On February 3, Bowers filed a motion to exclude Detective Platt. After a Richardson hearing the trial court granted the motion to exclude, stating as follows:

THE COURT: ... We’re not dealing here with one discovery violation; we’re dealing here with two. They’re both substantial.
The failing to provide this, the name of this witness, who is, of course, the key witness to the introduction of the incriminatory statements at trial, in addition to the prospective testimony of the witness Arnold, if he testifies in the way Detective Ramey described his statements to be this morning, would be terminal to the defense, and I mean substantially prejudicial.
But we’re also dealing with the fact that the State inadvertently failed to provide defense counsel with notice of the tapes. Had notice of the tapes been provided, perhaps we could have gone to trial on the 12th. But because it was not, the case had to be continued from the 12th. It had to be continued again on the next reset date, again at the State’s motion or State’s instance.
So, we’re dealing here with two discovery violations: one discovery violation being a failing to provide _ Mr. Platt’s name, but the second discovery violation being that of failing to provide a notice of the tapes, which failure to provide notice resulted in the trial being continued to the 12th.
Had it gone to trial on the 12th, Mr. Platt’s testimony would not have been admissible, and I think it’s a substantial violation which requires that his testimony be excluded. I grant the motion to exclude.

In Richardson v. State, 246 So.2d 771 (Fla.1971), the Florida Supreme Court quoted with approval from Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970).

The point is that if, during the course of the proceedings, it is brought to the attention of the trial court that the state has failed to comply with Rule 1.220(e) CrPR, the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state’s violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial. (Emphasis added.)

Here, there is no evidence that the violations were wilful. The only testimony was that the discovery violation resulted from the number of lawmen involved and was inadvertent. The trial judge did not find to the contrary.

The trial judge did find, as to the second area of inquiry, that the violation was substantial. However, we note that defense counsel had been made aware of the substance of the statements given and that Bowers had been given his Miranda rights. The violation solely concerned which officer had given the Miranda warnings.

The trial court found here that the testimony of Detective Platt would be prejudicial in that he would be “the key witness to the introduction of the incriminatory statements at trial.” However, as was stated in Wilcox v. State, 367 So.2d 1020, 1023 (Fla.1979), “(t)he purpose of a Richardson inquiry is to ferret out procedural, rather than substantive, prejudice.” Wilcox equated prejudice with the third area of inquiry specified in Richardson — whether the discovery violation prevented the defendant from properly preparing for trial. Here, the State informed defense counsel of the new witness a few days before trial and offered to make him available at the defendant’s request. There was testimony that Bowers’ attorney thereafter contacted the sheriff’s office and was informed that Detective Platt was on vacation. The State points to testimony that had counsel contacted the state attorney’s office he would have found out that Detective Platt was on vacation but was present in the county and available as a witness.

In a discovery context, “relevant evidence should not be excluded from the jury unless no other remedy suffices.” Cooper v. State, 336 So.2d 1133 (Fla.1976). Here, the nature of the testimony was already known to defendant, and the State’s violation was apparently inadvertent. Any procedural prejudice Bowers suffered by the State’s untimely notice that it would call Detective Platt as a witness could have been alleviated by a continuance. The tape violation had nothing to do with the failure to include Platt’s name on the witness list.

Accordingly, we find the trial court’s order excluding the testimony of Detective Platt departed from the essential requirements of law. We grant the petition for writ of certiorari, vacate the order excluding Detective Platt as a .witness, and remand the cause for further proceedings consistent with this opinion.

GRIMES and DANAHY, JJ., concur.