author: TORBERT, Chief Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re Omar TAYLOR v. STATE of Alabama).
    79-732.
    Supreme Court of Alabama.
    Feb. 27, 1981.
    Rehearing Denied April 10, 1981.

      Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for petitioner.
    Robert M. Beno, Montgomery, for respondent.
   TORBERT, Chief Justice.

We granted certiorari to review the decision of the Court of Criminal Appeals in Taylor v. State, 399 So.2d 875 (Ala.Cr.App.1980), which reversed the trial court decision. The principal issue presented for our consideration is whether the trial court erred in admitting the fingerprints and confession of the defendant, Omar Taylor. We hold that the evidence was properly admitted, and we reverse the decision of the Court of Criminal Appeals.

At approximately 7:00 p.m. on December 2, 1978, two males entered and robbed Moseley’s Grocery Store at the intersection of West Jeff Davis Street and Cleveland Avenue. There had been a number of robberies in this area of Montgomery in recent weeks, and the police initiated an intensive manhunt in an effort to apprehend the culprits. A number of suspects were interviewed, and during the course of the interviews it was learned that Appellant might be involved in the robbery of Moseley’s Grocery Store. According to one of the investigating officers, the information linking Appellant to the robbery came from a jail inmate, Charles Martin, who was himself a suspect in the same robbery. Martin was in custody, charged with rape and robbery in an unrelated case.

At a suppression hearing, Police Officer R. D. Mobley testified that during numerous conversations with Martin, he told the officer he had information that Appellant was involved in the robbery of Moseley’s Grocery Store. Mobley stated: “[Martin] didn’t tell me how he got it. I don’t know how he got it.... He did not go into any details or who told him or when or where he obtained the information, but only that he was involved in a robbery.... He said that he had heard that Omar Taylor [Appellant] was involved in the robbery of Moseley’s Grocery. What part he took, he doesn’t know.”

Officer Mobley did not arrest Appellant. He referred the information which he had received from Martin to two other officers assigned to the Robbery-Homicide Division of the Montgomery Police Department, and these two officers arrested Appellant without a warrant on January 4, 1979. The arrest was based on the information furnished them by Officer Mobley following his interview with Martin.

Upon arresting Appellant, the officers informed him who they were and told him that he was being arrested in connection with the robbery of Moseley’s Grocery. After Appellant was placed in the patrol car, one of the officers recited to him his constitutional rights, and, upon arriving at the station house, Appellant was surrendered to other detectives for questioning.

Sergeant Ed Alford, one of the arresting officers, testified that the arrest was made on information furnished by another investigator in the Robbery-Homicide Division who had interviewed informant Martin. Based on this information, Appellant was arrested without a warrant, as the officer felt it necessary to pick him up and check him out. When asked if he felt his information was sufficient to arrest Appellant, he replied, “Well, I did not know because I had never seen him.” Asked if there was any basis on which the credibility of Martin could be established, he answered, “I did not attempt to establish any credibility on him.”

Mr. and Mrs. John Moseley were in their store on the night of December 2, 1978, when the robbery occurred. Mr. Moseley was at the cash register checking out customers and Mrs. Moseley was in the office near the back of the store when she observed two men come in. One of the men entered the office, pulled a pistol on Mrs. Moseley and said, “This is a stick up. Give me all the money in the safe.” When she told him there was no money in the safe, he repeated the demand, whereupon she told him that the safe was old and was not in use. He grabbed her by her collar, forced her from the office, and told her to go to the back of the store. As she was leaving the office, she glanced in the direction of the check-out register and saw her husband and an employee with their hands in the air and another man pointing a pistol at them. Shortly thereafter, she saw two men exit the store.

Mr. Moseley testified that just before closing time a man, approximately five feet, five inches tall, came to the checkout counter with a two-pound bag of Domino sugar and a package of Zeigler hot dogs. He then asked for some lighter flints. Mr. Moseley turned away to get the flints, and when he turned back around, the man pointed a pistol at him and ordered him to open the cash register. Mr. Moseley flipped open the register, from which the bandit took $600.00. The bandit then demanded his wallet. Mr. Moseley told him he did not have a wallet. When the man again ordered him to produce his wallet, Mr. Moseley then reached in his back pocket and got his wallet which contained eight or nine hundred dollars. He handed the wallet to the robber. The man immediately ran from the store, but left the packages of sugar and hot dogs on the counter. Mr. Moseley then called the police.

Mr. and Mrs. Moseley were unable to identify either of the men engaged in the robbery, either at a line-up or in court. Fingerprints on the sugar and weiners turned out to be those of Appellant. This fact was undisputed. The interrogating officers informed Appellant that his fingerprints were found on the bags of sugar and hot dogs. Subsequently, he signed a waiver of rights form and executed a written confession. The form and signed confession were later admitted into evidence.

Appellant does not question the voluntar-iness of his confession, as it was shown to have been given in compliance with Miranda. Additionally, no promises, threats, coercion, rewards or hopes thereof were made or held out to Appellant to induce him to make and sign the confession. Appellant contends, however, that he was illegally arrested without probable cause and without an arrest warrant, and was involuntarily transported to the station house for interrogation which thereafter led to his confession.

The United States Supreme Court, in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), held that the question of whether a confession has been purged of the taint of an illegal arrest under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), “must be answered on the facts of each case.” 422 U.S. at 603, 95 S.Ct. at 2261. We are of the opinion that the facts in the case before us fall somewhere between those surrounding the confession in Wong Sun, where the Court held that the connection between Wong Sun’s unlawful arrest and his statement “had become so attenuated as to dissipate the taint,” 371 U.S. at 491, 83 S.Ct. at 419, quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939), and those in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), where the Court held that the confessions were tainted by the unlawful arrests. We must therefore determine on which side of the line separating admissible confessions from inadmissible ones the confession of Omar Taylor falls.

In Dunaway, the petitioner was arrested without probable cause in hopes that something would “turn up.” 442 U.S. at 218, 99 S.Ct. at 2259. Less than an hour after he reached the police station, after being informed of his Miranda rights, he waived counsel and made the first of two statements and drew sketches that eventually incriminated him. 442 U.S. at 203, 99 S.Ct. at 2251. Between the time of Dunaway’s arrest and that of his confession, “no intervening event of significance whatsoever” took place. 442 U.S. at 218, 99 S.Ct. at 2259.

Brown contained facts similar to those in Dunaway. Petitioner Brown was arrested without probable cause and made a statement shortly thereafter. The State of Illinois argued that the Miranda warnings were sufficient to attenuate the taint of the illegal arrest. The Court held that “[t]he Miranda warnings are an important factor ... in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered.” 422 U.S. at 603, 95 S.Ct. at 2261. Three additional factors were then set out by the Court to aid in determining whether the taint of an illegal arrest has been attenuated. They are: “[1] [t]he temporal proximity of the arrest and the confession, [2] the presence of intervening circumstances, and ... [3] the purpose and flagrancy of the official misconduct.” Id. at 603-04, 95 S.Ct. at 2261-62 (citations omitted).

In Davis, the police in Meridian, Mississippi, without warrants, picked up 24 Negro youths over a period of 10 days and took them to police headquarters, where they were questioned briefly, fingerprinted, and then released without being charged. 394 U.S. at 722, 89 S.Ct. at 1395. Davis was subsequently arrested, without a warrant and without probable cause, and fingerprinted again. The second set of fingerprints, along with the fingerprints of 23 others, was sent to the FBI for comparison with prints taken from the scene of the crime. Id. The FBI matched Davis’s prints to those of the perpetrator of the crime, and he was indicted. Id. at 723, 89 S.Ct. at 1395. The Court held that the fingerprints should be suppressed as the fruit of an illegal arrest. Id. at 728, 89 S.Ct. at 1398.

The Court held in Wong Sun, however, that where the defendant was lawfully arraigned and released on his own recognizance, and several days later voluntarily returned to the police station and made a statement, the taint had been attenuated. 371 U.S. at 491, 83 S.Ct. at 419. On the other hand, statements made by Toy, another defendant in the case, at the time he was illegally arrested, and contraband seized during his arrest, were suppressible, since the statement did not result from “an intervening independent act of free will.” Id. at 486, 83 S.Ct. at 416.

While there admittedly has not been the same degree of attenuation here as in Wong Sun, neither is the statement as closely connected to the illegal arrest as in Dunaway, Brown, and Davis. Taylor had been under arrest for more than six hours when he made his statement. During that time he had been allowed to converse privately with his girlfriend and a male companion. He had been given his Miranda rights on three separate occasions. Additionally, subsequent to Taylor’s arrest but prior to his confession, an arrest warrant was filed based on a comparison between his fingerprints and those found at the scene of the crime. In Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), the Supreme Court held that where, prior to a line-up, the defendant was brought before a committing magistrate who advised him of his rights and set bail, the line-up was “sufficiently distinguishable to be purged of the primary taint.” Id. at 365, 92 S.Ct. at 1626. Since a similar finding of probable cause separated the arrest and confession of Omar Taylor, it would seem that the taint has been purged here as it was in Johnson.

The exclusionary rule is especially harsh in situations such as this, where the motion to suppress involves a confession that is admittedly voluntary and where Miranda rights were given, not just once, but three times. The development of the rule reveals that it is a “judicially created means of effectuating the rights secured by the Fourth Amendment,” Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976), rather than a constitutionally required sanction. It is not coextensive with the fourth amendment. Wolf v. Colorado, 338 U.S. 25, 29, 69 S.Ct. 1359, 1362, 93 L.Ed. 1782 (1949).

The roots of the rule can be found in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). In that case the Court held that the federal government could not subpoena incriminating documents from criminal defendants. 116 U.S. at 638, 6 S.Ct. at 536. The Court stated:

Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.

Id. at 630, 6 S.Ct. at 532.

Twenty-eight years later, in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the Supreme Court made a definitive ruling that evidence seized by federal agents in violation of the fourth amendment was inadmissible in federal court. If evidence may be seized illegally and placed into evidence, the Court held, the fourth amendment “might as well be stricken from the Constitution.” Id. at 393, 34 S.Ct. at 344. At that time, however, the fourth amendment was not thought to be applicable to the states. Id. at 398, 34 S.Ct. at 344.

Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), went one step further than Weeks and Boyd. In Silverthorne, the Court held not only that evidence illegally seized must be excluded in federal court, but also that a prosecutor may not admit copies of the evidence made while it was unlawfully in his possession, nor may knowledge gained from the unlawfully seized evidence be the basis of a search warrant. Id. at 392, 40 S.Ct. at 182. The evidence, however, did not become “sacred and inaccessible,” but could be obtained “[i]f knowledge of [it] is gained from an independent source.” Id. The Court stated that “[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” Id.

The Court held for the first time, in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), that the fourth amendment applies to the states. There the Court said that “[t]he security of one’s privacy against arbitrary intrusion by the police ... is basic to a free society.” Id. at 27, 69 S.Ct. at 1361. The Court further stated that the fourth amendment is “implicit in the concept of ordered liberty,” and therefore is “enforceable against the States through the Due Process Clause.” Id. at 27-28, 69 S.Ct. at 1361-62. The Court declined, however, to apply the exclusionary rule to the states, holding that “the ways of enforcing such a basic right raise questions of a different order,” Id. at 28, 69 S.Ct. at 1361, and that “it is not for this Court to condemn as falling below the minimum standards assured by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective.” Id. at 31, 69 S.Ct. at 1362.

The Wolf holding was reinforced in Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954), but the Court indicated there that violation of an individual’s fourth amendment rights by state officials might constitute a crime under federal statutory law. Id. at 137, 74 S.Ct. at 385. Mr. Justice Jackson, writing for a plurality, directed the Clerk of the Supreme Court to “forward a copy of the record in this case, together with a copy of this opinion, for attention of the Attorney General of the United States.” Id. at 138, 74 S.Ct. at 386. However, two of the four Justices making up the plurality did not join in this directive. Id.

In Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956), an injunction was sought against a federal agent who proposed to testify in state court as to evidence gained through an illegal search and seizure. Id. at 216, 76 S.Ct. at 293. The Court directed that the injunction be granted, basing its ruling on its “supervisory powers over federal law enforcement agencies.” Id. at 217, 76 S.Ct. at 294. The exclusionary rule, however, was still not made applicable to the states.

The so-called “silver platter doctrine” was overruled in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Although federal agents could not use evidence they themselves had seized unlawfully, evidence given to them by state officials could be admitted into federal court, regardless of how it had been obtained. The evidence was thus handed to federal agents on a “silver platter.” The exclusionary rule was still not applied to the states, but the Court did hold that the exclusionary rule was the “only effectively available way” to deter law enforcement officials from violating the fourth amendment. Id. at 217, 80 S.Ct. at 1444.

The exclusionary rule was finally applied to the states the next year, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). There the Court held that it was “clospng] the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct.” Id. at 654-55, 81 S.Ct. at 1691-92. The Court found that in so holding it ended the practice of federal agents “stepping] across the street to the State’s attorney with their unconstitutionally seized evidence.” Id. at 658, 81 S.Ct. at 1693. The Court cited Irvine for the proposition that “[t]he obvious futility of relegating the Fourth Amendment to the protection of other remedies has . . . been recognized by this Court since Wolf.” Id. 367 U.S. at 652-53, 81 S.Ct. at 1690-91.

The exclusionary rule has been highly criticized, both from within and without the United States Supreme Court. The justification for the rule is generally stated to be deterrence. Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976). Early cases also set out the preservation of “judicial integrity” as a justification for the rule, but this theory has been largely abandoned. Id. at 485, 96 S.Ct. at 3048. See, United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). The exclusionary rule is more or less unique to the United States among common law countries. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 415, 91 S.Ct. 1999, 2014, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting). See, Kuruma v. The Queen, [1955] A.C. 197. See generally “The Exclusionary Rule under Foreign Law,” 52 J.Crim. L.C. & P.S. 271 (1961). Laymen generally view the exclusionary rule as a “technicality” that releases known criminals into society. See Wilkey, “The Exclusionary Rule: Why Suppress Valid Evidence?” 62 Judicature 214, 223 (1978). Evidence suppressed under the fourth amendment is not inherently unreliable, as are involuntary confessions, suppressed under the fifth amendment, and unduly suggestive lineups, suppressed under the fifth and sixth amendments. See, Oaks, “Studying the Exclusionary Rule in Search and Seizure,” 37 U. of Chi.L.Rev. 665, 737-38 (1970). Additionally, the Court has consistently ruled that a criminal defendant may be forcibly abducted from another state or country and brought into a jurisdiction to stand trial. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). Also see Oaks, supra, at 669. By refusing to bring out the whole truth, critics have charged, the courts allow the truth to be completely distorted. “Undeniable facts, of the greatest importance, are forever barred.... ” Wilkey, supra, at 222.

One of the more compelling criticisms leveled against the rule is that it does not accomplish the stated objective, i. e., deterrence. In 1960, when some states were still operating without the exclusionary rule, the United States Supreme Court stated in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), that “[ejmpirical statistics are not available to show that the inhabitants of states which follow the exclusionary rule suffer less from lawless searches and seizures than do those of states which admit evidence unlawfully obtained.” Id. at 218, 80 S.Ct. at 1444. See also, Irvine v. California, 347 U.S. 128, 136, 74 S.Ct. 381, 385, 98 L.Ed. 561 (1954), where the Court said, “There is no reliable evidence known to us that inhabitants of those states which exclude the evidence suffer less from lawless searches and seizures than those of states that admit it.” Chief Justice Burger further developed this idea in his dissenting opinion in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting). There he stated that the effect of the exclusionary rule on police conduct is lessened by the long time lapse between the original police action and the final judicial evaluation. The Chief Justice surmised that “[g]iven a policeman’s pressing responsibilities, it would be surprising if he ever becomes aware of the final result after such a delay.” 403 U.S. at 417, 91 S.Ct. at 2015. Additionally, Burger continued, “[T]he exclusionary rule’s deterrent impact is diluted by the fact that there are large areas of police activity that do not result in criminal prosecutions.” 403 U.S. at 417-18, 91 S.Ct. at 2015-16. There are several motivations that prompt arrests and searches and seizures by police other than criminal prosecution. These include:

arrest or confiscation as a punitive sanction (common in gambling and liquor law violations), [2] arrest for the purpose of controlling prostitutes and transvestites, [3] arrest of an intoxicated person for his own safety, [4] search for the purpose of recovering stolen property, [5] arrest and search and seizure for the purpose of “keeping the lid on” in a high crime area or of satisfying public outcry for visible enforcement, [6] search for the purpose of removing weapons or contraband such as narcotics from circulation, and [7] search for weapons that might be used against the searching officer.

Oaks, “Studying the Exclusionary Rule in Search and Seizure,” 37 U. of Chi. L. Rev. 665, 721-22 (1970). This multiplicity of goals for an arrest or a search and seizure is in sharp contrast to the limited number of reasons for line-ups and confessions, two other types of commonly excluded evidence. The predominant incentive for the latter two is to obtain evidence for use in court. Oaks, supra, at 722. If the evidence is not to be used in court, the possibility of exclusion is a hollow threat.

Even worse than the lack of deterrence, however, is the conduct that the rule does promote among police officers. In a study conducted by Dallin Oaks pursuant to a grant from the National Institute of Law Enforcement and Criminal Justice of the United States Department of Justice, Professor Oaks concluded that “some experienced [police] officers will ‘twist’ the facts in order to prevent suppression of evidence and release of persons whom they know to be guilty.” Oaks, “Studying the Exclusionary Rule in Search and Seizure,” 37 U. of Chi. L. Rev. 665, 739-40 (1970). Oaks further stated that subsequent to Mapp, “the police were fabricating testimony in order to comply with arrest formalities and circumvent the exclusionary rule.” Id. at 708.

A further criticism of the rule is that it fails to “provide effective and meaningful compensation to those citizens, particularly innocent victims of illegal searches and seizures.” Wilkey, “The Exclusionary Rule: Why Suppress Valid Evidence?” 62 Judicature 214, 228 (1978). The “compensation” provided for the victims of an illegal arrest or search and seizure is irrational in that “the guilty are overrewarded by a commutation of all penalties for crimes they did commit and the innocent are never compensated for the injuries they suffered.” Wil-key, supra, at 228. The policeman who engages in the unlawful conduct is rarely, if ever, subject to any type of personal sanction. See, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 416, 91 S.Ct. 1999, 2014, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting); Oaks, “Studying the Exclusionary Rule in Search and Seizure,” 37 U. of Chi. L. Rev. 665, 724 (1970). The immediate sanction that is triggered by the exclusionary rule is against the prosecutor, whose case against a criminal is either weakened or destroyed. The prosecutor, however, is not an official of the police department. The exclusionary rule is well tailored to. deter the prosecutor from illegal conduct. However, he is not the guilty party in an unlawful arrest or search and seizure, and he rarely, if ever, has control over those who are, the police. See 403 U.S. at 416, 91 S.Ct. at 2014, Oaks, supra, at 726.

Furthermore, the exclusionary rule “fails to discriminate between the degrees of culpability of the officer or the degree of harm to the victim of the illegal search and seizure.” Wilkey, “The Exclusionary Rule: Why Suppress Valid Evidence?” 62 Judicature 214, 225-26 (1978). Regardless of whether there is a mere technical violation, such as a defective warrant, or a gross violation of the fourth amendment, such as was seen in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the penalty is the same; the evidence is excluded. Wilkey, supra, at 226. In contrast, the judicial system customarily applies different standards to crimes that vary as to seriousness, such as in granting bail and in imposing sentence. Id. Additionally, even though “[ijnadvertent errors of judgment that do not work any grave injustice will inevitably occur under the pressure of police work,” Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 418, 91 S.Ct. 1999, 2015, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting), these errors are, from a law enforcement standpoint, impossible to correct. Once the unlawful search or arrest is made it is often difficult or impossible to convict the defendant involved, irrespective of his guilt. E. Griswold, Search and Seizure: A Dilemma of the Supreme Court 57 (1975). The courts make decisions as to the legality of arrests and searches and seizures “after full briefs and oral arguments, ... with full deliberation within the court, and often with numerous and vigorous dissents.” E. Griswold, supra, at 52. The same decisions must be made by police officers “usually in a moment or two, with no opportunity for deliberation and in the stress of immediate action.” E. Griswold, supra, at 52.

The tenor of the criticism of the exclusionary rule was summed up by Wigmore when he stated that “the two effects of the exclusionary rule are to produce a troublesome grist for the courts and to return rascals to the practice of their nefarious trades.” 8 J. Wigmore, Evidence in Trials at Common Law (rev. by J. McNaughton) § 2184a at 52 (1961). More important than the outside criticism, however, is the criticism of the exclusionary rule by members of the United States Supreme Court. In the past five years, the members of the Court have, in their opinions, evidenced more and more restraint in the application of the rule.

This “backing off” process began as early as 1954. In that year, the Court decided the case of Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). There it held that if a defendant asserts on direct examination that he has never seen or possessed evidence seized unlawfully (there, narcotics), the evidence may be admitted solely for purposes of impeachment. Id. at 64, 74 S.Ct. at 355. The Court stated:

It is one thing to say that the government cannot make an affirmative use of the evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.

Id. at 65, 74 S.Ct. at 356.

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court ruled that its decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was not retroactive. In support of this conclusion, the Court stated that “the fairness of the trial is not under attack,” 381 U.S. at 639, 85 S.Ct. at 1743, and that “the ruptured privacy of the victims’ homes and effects cannot be restored.” 381 U.S. at 637, 85 S.Ct. at 1741.

The Court recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that the exclusionary rule is an imperfect tool for controlling police misconduct. There it stated:

Regardless of how effective the [exclusionary] rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.

Id. at 14, 88 S.Ct. at 1876. Terry carved out an exception to the warrant requirement in the area of “stop and frisk,” lowering the requirement in that situation from probable cause to “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 27, 88 S.Ct. at 1883.

Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), continued the rationale of Terry when it refused to apply retroactively Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the case which defined the limits of fourth amendment protection in terms of reasonable expectation of privacy, 389 U.S. at 353, 88 S.Ct. at 512. The Court stated that “we simply decline to extend the court-made exclusionary rule to cases in which its deterrent purpose would not be served.” 394 U.S. at 254 n.24, 89 S.Ct. at 1036 n.24.

Chief Justice Burger’s vigorous dissent in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), has previously been noted, but even the majority opinion in that case was not completely favorable to the exclusionary rule. The majority found it necessary to recognize a cause of action for damages by citizens subjected to unlawful searches and seizures against the officials who violated their fourth amendment rights. Id. at 397, 91 S.Ct. at 2005.

Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), was a case involving violation of fifth amendment rights. It was, however, highly critical of the exclusionary rule. The Court there stated:

Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policemen investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.

Id. at 446, 94 S.Ct. at 2364. The Court went on to say that “[w]here the official action was pursued in complete good faith ... the deterrence rationale loses much of its force.” Id. at 447, 94 S.Ct. at 2365.

The Court made an even stronger statement in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). There it stated that “evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. at 542, 95 S.Ct. at 2320. Peltier declined to apply retroactively the rule of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), which requires a warrant for border searches made elsewhere than at established border crossings.

The Court found in United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), that the taint of an unlawful search and seizure is much easier to attenuate where the evidence discovered was the identity of a live witness who later testified at trial. “The penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve,” the Court stated. Id. at 279, 98 S.Ct. at 1061. Mr. Justice Rehnquist, writing for the Court, concluded that “the degree of free will exercised by the witness is not irrelevant in determining the extent to which the exclusionary rule will be advanced by its application.” Id. at 276, 98 S.Ct. at 1060.

Even more compelling than the language cited from the foregoing cases, however, are the numerous exceptions to the exclusionary rule the Court has created over the years. Although “a search conducted without a warrant issued upon probable cause is per se unreasonable,” Schneckloth v. Busta-monte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973), and “the burden is on those seeking [an] exemption [from the requirement] to show the need for it,” Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969), quoting United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951), the Court has recognized that “[t]here are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with.” Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369-70, 92 L.Ed. 436 (1948). These exceptions have multiplied over the years, and have seriously limited the scope of the warrant requirement and, a priori, the exclusionary rule.

The first exception to be recognized by the Supreme Court was the automobile exception. It held in 1925, in the case of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), that a warrant to search an automobile could be dispensed with since “[b]efore a warrant could be secured the automobile would be beyond the reach of the officer.” Id. at 146, 45 S.Ct. at 282. The Court went on to say, however, that the officer carrying out the search must possess “a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction.” Id. at 149, 45 S.Ct. at 283. In other words, there must be probable cause for the search. This mandate has been required in all cases setting out exceptions to the warrant requirement. The automobile exception was further developed in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). There the Court again focused on the mobility of the car, and held further that a car could be searched without a warrant even after the suspect-driver of the automobile had been arrested and the car had been driven to the police station. However, the Court limited the exception in the case of stationary cars in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), stating that “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” 403 U.S. at 461-62, 91 S.Ct. at 2035-36. More recently, the Court has held that police may make a warrantless search of an automobile at the station house for the purpose of making an inventory of its contents. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The justification for this rule is threefold. First, the police have the responsibility of protecting the owner’s property while it remains in police custody. Second, the police may conduct an inventory to protect themselves against claims or disputes over lost or stolen property. Third, an inventory will protect police and the public from potential hazards, such as bombs or other explosive devices. 428 U.S. at 369, 96 S.Ct. at 3097. An inventory may be made not only of cars driven by persons who have been arrested, but also of cars abandoned or towed away for parking violations. 428 U.S. at 368, 96 S.Ct. at 3096.

A second exception promulgated by the Court was the “evanescent evidence” exception. This exception applies to evidence that is either of short duration or highly destructible. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), dealt with the suppression of a blood-test for the purpose of showing the percentage of alcohol in the defendant’s blood. The Court recognized that “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” Id. at 770, 86 S.Ct. at 1835. Because of the short duration of the existence of this type of evidence, and because of the length of time necessary to procure a warrant, the Court held that “the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.” Id. at 771, 86 S.Ct. at 1836. In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), the Court extended this doctrine to searches and seizures of evanescent evidence that were not incident to arrests. There the police took fingernail scrapings from a suspect who was present at the police station but who was not under arrest. The validation of the search was premised on “the existence of probable cause, the very limited intrusion undertaken incident to the station house detention, and the ready destructibility of the evidence.” 412 U.S. at 296, 93 S.Ct. at 2004.

The Court set forth the so-called “hot pursuit” exception in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). There the Court upheld the search of a residence for “a suspected felon, armed, within the house into which he had run only minutes before the police arrived.” Id. at 299, 87 S.Ct. at 1646. The scope of the search, the Court held, is “as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape.” Id. The Court justified its holding on the ground that “[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” Id. at 298-99, 87 S.Ct. at 1645-46.

A search warrant is not required when the party in control of the searched premises gives his consent to the search, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). The consent, however, must be “freely and voluntarily given,” and the prosecution has the burden of proving voluntariness, Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). Consent given after a claim of authority to search by a police officer is not valid, since he has in effect told the occupant of the house that he has no right to resist the search. “Where there is coercion there cannot be consent.” 391 U.S. at 550, 88 S.Ct. at 1792. However, “knowledge of a right to refuse is not a prerequisite of a voluntary consent.” 412 U.S. at 234, 93 S.Ct. at 2051. Although consent may not be coerced, either explicitly or implicitly, “[vjoluntariness is a question of fact to be determined from all the circumstances.” 412 U.S. at 248-49, 93 S.Ct. at 2058-59. While knowledge of the right to refuse consent to a search, or lack thereof, is a factor to be considered in assessing voluntariness, it is not determinative. 412 U.S. at 249, 93 S.Ct. at 2059.

The permissible limits of a search incident to arrest were set out by the Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Chime] held that an arresting officer may search “the arrestee’s person and the area ‘within his immediate control.’ ” 395 U.S. at 763, 89 S.Ct. at 2040. The phrase “area within his immediate control” was construed to mean “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S. at 763, 89 S.Ct. at 2040. Chambers, however, limited that search to the time and place of the arrest, since “[o]nce an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” 399 U.S. at 47, 90 S.Ct. at 1979, quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964).

The “plain view” exception was developed by the Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Basically, the police “may seize evidence in plain view without a warrant.” Id. at 465, 91 S.Ct. at 2037. However, for the doctrine to apply, the police must be legitimately on the premises, by way of a warrant or one of the other recognized warrant exceptions, id. at 465, 91 S.Ct. at 2037, and the “discovery of evidence in plain view must be inadvertent.” Id. at 469, 91 S.Ct. at 2040. “[PJlain view alone is never enough,” id. at 468, 91 S.Ct. at 2039; it must be coupled with a warrant or with one of the other exceptions.

A final way in which the Supreme Court has limited the application of the exclusionary rule is by drawing strict standing requirements for- defendants who challenge the admissibility of unlawfully seized evidence. At the time Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was decided, standing was governed by the case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Under Jones, “anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.” 362 U.S. at 267, 80 S.Ct. at 734.

The broad standing requirements of Jones, however, were somewhat narrowed in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). The Court held there that “suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence." Id. at 171-72, 89 S.Ct. at 965-66. The Court recognized the exclusionary rule and reiterated its importance, but stated:

[W]e are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.

Id. at 174-75, 89 S.Ct. at 966-68.

United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), followed Alderman very closely, while also discussing the “balancing process” used in determining standing. The Calandra Court described the exclusionary rule as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Id. at 348, 94 S.Ct. at 620.

The most recent pronouncement by the Supreme Court on the subject of standing to challenge evidence seized in violation of the fourth amendment is found in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). There the Court adopted the “reasonable expectation of privacy” test of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), in cases involving standing. The Court attempted to reconcile Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), by stating:

[T]he holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using and therefore could claim the protection of the Fourth Amendment with respect to a governmental invasion of those premises, even though his “interest” in those premises might not have been a recognized property interest at common law.

439 U.S. at 143, 99 S.Ct. at 430. Rakas revealed an underlying dissatisfaction with the exclusionary rule by stating that “[e]ach time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected.” 439 U.S. at 137, 99 S.Ct. at 427. Since the Petitioner failed to show that, as a passenger, he had a legitimate expectation of privacy in the glove compartment of the car in which he was riding, he had no standing to challenge the admission of the evidence.

The requirements surrounding arrest warrants are more lenient than those concerning search warrants. Although the Supreme Court has expressed a preference for arrest warrants, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), the common law rule authorizing felony arrests on probable cause without a warrant remains the law. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). However, police may not make a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 (1980). Nevertheless, an unlawful arrest is not a defense to a criminal action. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). The problem in most cases involving an illegal arrest, as is the problem in the present case, is that any search conducted incident to an unlawful arrest is invalidated, thus rendering inadmissible any evidence seized pursuant to the search. The same problems therefore, associated with unlawful searches and seizures are also relevant to arrests made on less than sufficient probable cause. Although a defendant may be guilty, the evidence that proves that fact cannot be used if he was arrested before a police officer’s suspicions have hardened into probable cause.

The exclusionary rule is a crude, heavy-handed sanction of doubtful effectiveness. Although there is no doubt that there is a necessity for some sanction, it is now time to explore alternatives to the exclusionary rule. Chief Justice Burger has suggested that “Congress should develop an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated.” Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 422, 91 S.Ct. 1999, 2017, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting). The exclusionary rule is an impairment to the search for truth; it vastly overreaches its function as a disciplinary measure for police officers. A comparison between our system, with its exclusionary rule, and that of Great Britain, which does not have such a rule, fails to reveal in the British system any of the abuses warned against by proponents of the rule. “Abuse of power by the police is not thought to be a problem in England and Wales .... The reputation for excellent police work which the British have established and which others envy seem to the foreign observer to be well justified.” E. Friesen & I. Scott, English Criminal Justice: An Introduction for American Readers 63-64 (1977). The English procedure consists of rigorous investigation of all complaints against the police, no matter how petty. E. Friesen & I. Scott, supra, at 63. Confessions are evaluated merely on the basis of voluntariness; if voluntary they are admitted, otherwise they are excluded. The Royal Commission on Criminal Procedure, Part II of the Written Evidence of the Commissioner of Police of the Metropolis 145 (1978) [hereinafter cited as Royal Commission]. The standard of voluntariness is admittedly more stringent than the American standard, as evidenced in the case of R. v. Partridge [1836] 7 C. & P. 551, wherein the statement “I should be obliged to you if you would tell us what you know about it; if you will not, of course, we can do nothing,” was held to render a confession involuntary. However, evidence discovered as a result of an involuntary confession is admissible, since the involuntariness of a confession only goes to its reliability. Royal Commission, supra, at 148.

To summarize, given the history of the development and application of the exclusionary rule as applied to the states, and its obvious failure to accomplish its stated purpose of deterring unlawful police conduct, we are simply not willing to extend the rule any further than is necessary to comply with decisions of the United States Supreme Court. Therefore, the decision of the Court of Criminal Appeals is reversed, and we remand this case to that court so that the verdict of the trial jury may be reinstated.

REVERSED AND REMANDED.

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

FAULKNER, JONES, and EMBRY, JJ., would quash the writ and, therefore, dissent.

ADAMS, J. (not sitting).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Omar TAYLOR v. STATE.
    3 Div. 118.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Robert M. Beno, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED ON AUTHORITY OF Ex Parte State (Re: Taylor v. State), Ala., 399 So.2d 881, 1981.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Charles Lee BUFFORD v. STATE.
    2 Div. 231.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    Rehearing Denied April 21, 1981.
    For prior opinions see 382 So.2d 1162, 1175.
    J. L. Chestnut, Jr., Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for ap-pellee.
   ON RETURN TO REMAND

BOOKOUT, Judge.

Reversed and remanded on the authority of Beck v. State, Ala., 396 So.2d 645, [1980, modified March 6, 1981].

REVERSED AND REMANDED.

All the Judges concur.


text:
    George Thomas ERVIN, alias v. STATE.
    5 Div. 507.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied April 21, 1981.

      Richard D. Lane, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

The State’s evidence was sufficient to prove appellant’s guilt beyond any reasonable doubt. Although appellant testified in his own behalf after the State had rested, in essence he neither challenged nor contradicted the evidence offered against him. Each element necessary to sustain a conviction for first degree murder was firmly established. Cosby v. State, 269 Ala. 501, 114 So.2d 250 (1959); Sanders v. State, 392 So.2d 1280 (Ala.Cr.App. 1981); Ala. Code § 13-1-70 (1975). Due to the overwhelming nature of the State’s evidence, a detailed narration of the facts would serve no useful purpose.

Briefly, appellant left his place of work the morning of January 22, 1979, and traveled by taxi to Willie Mann’s house in Smiths Station near Phenix City to find his wife, the deceased. Mann was the deceased’s ex-husband, and the deceased sometimes went to Mann’s house when she and appellant were separated.

Appellant stated that the deceased “just didn’t stay home”; that she “drank the whole time she was gone”; and that she “had been gone for about a week” on this occasion. Appellant testified that he had talked with the deceased several times the previous night and that she sounded drunk. Appellant decided to go to Mann’s house “to try to get her straightened out.”

On arriving at Mann’s house, appellant entered the unlocked back door and waited for the deceased to come in. While waiting appellant found a list containing men’s names and telephone numbers in the deceased’s handwriting and “decided to beat her up when she got home.” Appellant “knew some of the names were people that was [sic] buying Mary’s booze for her.” At approximately 9:30 a. m., Eastern Standard Time, someone let the deceased out at Mann’s house. The deceased was staggering drunk and was carrying a sack of beer.

Appellant met the deceased at the front porch, knocked her down on the floor and kicked her in the face. During the intermittent argument which transpired, and trips to the bathroom by the deceased to wipe the blood from her face appellant continued to strike the deceased with various objects including a transistor radio, an aluminum boiler and a baseball bat. “I beat her with everything that I could find.” During the course of the beating, appellant remembered tying the deceased to the bed with a belt and piece of torn cloth so that she could not call the police. After completing his fatal attack, appellant called a cab, “pulled the phone wire loose and left.” When Mann returned home from work around 3:15 p.m. that afternoon, he discovered the deceased tied to the bed and beaten to death.

After a flight to Atlanta that evening, appellant was apprehended and placed under arrest the next day in Albany, Georgia. Appellant “couldn’t believe” he had killed his wife and maintained that at no time did he have any intention to kill her. “I went over there to help her.”

I

At the time appellant was apprehended in Albany, Georgia, Lieutenant John Lodge, of the Albany Police Department, asked appellant for some identification as appellant got off a bus arriving from Atlanta. Appellant initially made no response. Lieutenant Lodge testified that since appellant was the only passenger that fit the description given him by the Lee County Sheriff’s Department he told appellant he was under arrest for murder in Lee County, Alabama. While still at the bus terminal, Lieutenant Lodge asked appellant if he was George Ervin. Appellant again made no response, but then spontaneously exclaimed, “I didn’t know that I killed her.” Appellant then continued in his exclamation:

“I beat her with anything that I could. I hid in her apartment, her and her boyfriend arrived and some come in alone, [sic] I tied her to the bed. I beat her with a ball bat and anything else that I could. I didn’t know that I killed her, because when I left the house she was still talking to me.”

Lieutenant Lodge was emphatic that no process of interrogation of any sort had been started by himself, or any officer in his presence, at the time appellant made his spontaneous exclamation. Appellant was not asked any questions other than his name.

A spontaneous statement, blurted out by the accused and volunteered to a police officer prior to any questioning, is admissible against him even though he was not given the Miranda warnings. Hammons v. State, 371 So.2d 986 (Ala.Cr.App. 1979); Espy v. State, 365 So.2d 356 (Ala.Cr.App. 1978). An unsolicited remark, not in response to any interrogation, does not fall within the Miranda rule. Hammons, supra. Moreover, it is not error to ask a defendant his name before giving him the Miranda warnings. Hill v. State, 378 So.2d 249 (Ala.Cr.App.), cert. denied, 378 So.2d 256 (Ala.1979); Lee v. State, 364 So.2d 687 (Ala.Cr.App. 1978). We find that appellant’s unsolicited statement was properly admitted.

II

During the voir dire of the jury venire by defense counsel, one of the prospective jurors responded affirmatively that he had, at some time, had an attorney-client relationship with someone in the district attorney’s office or their former law partners. The following exchange then occurred:

“MR. HARPER (Assistant District Attorney): We object to anything that I may have done for a juror, I don’t think that would be proper.
“THE COURT: Sustained. Mr. Melton, you can ask them if they’ve had a client-attorney relationship, but not the nature of it.”

Although the record fails to reflect what follow-up question defense counsel may have wished to propound to the juror who had the prior attorney-client relationship, we must be guided by that sound principle of law which states that much must be left to the sound discretion of the trial court as to the nature, variety and extent of the questions that should be asked prospective jurors by the parties, or their counsel, in the process of selecting the jury to try a case. Peoples v. State, 375 So.2d 561 (Ala.Cr.App. 1979), and cases cited therein.

Furthermore, even had the record been properly preserved, because of the high degree of confidentiality which has historically attended the attorney-client relationship, we can see no valid reason which would require a prospective juror to divulge to the world the nature of such relationship with one of the lawyers now representing other parties in a case he may be called upon to decide.

Also, during the voir dire of the jury, and after asking several questions concerning the issue of insanity which were not objected to by the State, defense counsel asked the following questions:

“Do any of you have difficulty with the proposition that a person over the course of a number of years can become so addicted to alcohol that as a result thereof his mental condition can deteriorate to a point where he is no longer legally responsible for his actions?”

The trial court sustained the State’s objection to this question.

As stated previously, the scope of voir dire examination is within the broad discretion of the trial court. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Peoples, supra. It has specifically been held not to be an abuse of discretion for the trial court to sustain an objection to questions by defense counsel to jurors as to their individual feelings toward the use of alcoholic beverages. Steel v. State, 363 So.2d 1060 (Ala.Cr.App. 1978). Questions which border on argument should be avoided. Peoples, supra.

We further note that in the present case the trial court’s examination of the prospective jurors was thorough and extensive. When such is the case, it has been held not to be an abuse of discretion to refuse every question requested by defense counsel. Holmes v. State, 342 So.2d 28 (Ala.Cr.App.), cert. denied, 342 So.2d 36 (Ala. 1977).

In addition, the trial court permitted defense to conduct a lengthy examination of the prospective jurors, allowing thirty-four of defense counsel’s thirty-five questions. Ex parte Finley, 292 Ala. 424, 295 So.2d 428 (1974). Clearly, there was no abuse in the trial court’s discretion in so limiting the voir dire questioning.

III

Photographs of the deceased were admitted without error. Lewis v. State, 339 So.2d 1035 (Ala.Cr.App. 1976), cert. denied, 339 So.2d 1038 (Ala. 1976).

IV

Whether leading questions will be allowed is within the sound discretion of the trial court and that discretion will not be reversed absent an abuse. Chambliss v. State, 373 So.2d 1185 (Ala.Cr.App.), cert. denied, 373 So.2d 1211 (Ala. 1979). Each case must rest on its own particular circumstances. Blunt v. Strong, 60 Ala. 572 (1877).

Moreover, as stated in Gamble, McElroy’s Alabama Evidence, § 128.01 (3rd ed. 1977):

“It is a generally recognized exception to the opinion evidence rule that a witness, lay or expert, may give his opinion as to the sanity of another person. A lay witness may testify that another was sane or of sound mind if he has first testified to facts showing that he had an adequate opportunity to observe such other’s conduct and that he observed nothing irrational or abnormal in such other’s conduct....”

We have carefully reviewed the testimony of Phillip Roy Minno, the taxicab driver who drove appellant from the Bay Service Station in Phenix City to Smiths Station at approximately 7:05 a. m. the morning the deceased was murdered, and find no abuse in the trial court’s discretion in allowing certain leading questions. Based on Minno’s opportunity to observe appellant and converse with him for ten to twelve minutes during appellant’s cab ride, it was not error for Minno to state that appellant appeared to be “just a normal individual.” Furthermore, appellant’s objection to Minno’s “opinion” came too late after Minno had answered the question. Miller v. State, 52 Ala.App. 525, 294 So.2d 774 (1974).

V

During closing argument by the State, the following occurred:

“MR. MYERS: —Not a place that he walk [sic] away from, not to a place that he can escape if he decides to—
“MR. MELTON: Your Honor, we’re going to object. That’s improper argument. Move for a mistrial.
“THE COURT: Overruled.

The record shows no other remarks by defense counsel or the prosecutor in this connection.

The official court reporter is not required to transcribe the argument of counsel except where objection is made. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1974); Langford v. State, 354 So.2d 297 (Ala.Cr.App. 1977), rev’d on other grounds, 354 So.2d 313 (Ala. 1978); Ala. Code § 12-17-275 (1975). Remarks by the prosecutor deemed objectionable should be fully quoted, or substantially so, in any objection to improper argument. McClary, supra, and cases cited therein. Appellant’s objection here is too fragmentary to present the questions insisted upon.

VI

There was no error in the admission of appellant’s written confession. Appellant was fully advised of his constitutional rights before the confession was made and signed a written waiver. Additionally, appellant took the witness stand and presented testimony substantially the same as the language of the confession. Mack v. State, 348 So.2d 524 (Ala.Cr.App. 1977).

We have carefully considered each issue raised by appellant. In addition, we have searched the entire record as required by law for any prejudicial error affecting appellant’s substantial rights and have found none.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex Parte George Thomas ERVIN. (Re George Thomas Ervin, alias v. State of Alabama).
    80-530.
    Supreme Court of Alabama.
    June 19, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    Randolph YOUNG, alias v. STATE of Alabama.
    6 Div. 493.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Benjamin Daniel of Daniel, Fawal & Spi-na, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jacquelyn L. Lufkin, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Randolph Young, also known as Randy Harris, was indicted and tried for the murder of a friend of his, one Ruben Martin. Due to the circumstances surrounding this homicide, the jury found appellant guilty of “manslaughter”, and the trial court set sentence at ten years’ imprisonment.

On the night of February 2, 1980, the appellant and Ruben Martin (the victim) had been drinking at a local “shot house” when each of them and several other men were asked to leave. Just outside the “shot house” Ruben Martin had an altercation of some kind with one or two of the other men. It was during this incident that appellant drew his .22 caliber pistol and shot and killed Ruben Martin.

The state’s evidence in support of a murder charge tended to show that appellant recklessly caused the death of another “under circumstances manifesting extreme indifference to human life” in violation of § 13A-6-2(a)(2), Code of Alabama 1975, when he fired his pistol at the men from a short distance away.

Appellant testified to the contrary that the shooting was an accident. He said that he saw two men beating up his friend, Ruben Martin, at the back door of the “shot house” and rushed over to break up the fight. He hit one of the men on the head with his gun and it went off, firing the shot that killed his friend.

The jury’s verdict would indicate that they did not feel that the state proved the requisite intent for murder. Nevertheless, they found appellant guilty of “manslaughter” under § 13A-6-3(a)(l), Code of Alabama 1975, apparently believing that although appellant did not intend to kill Ruben Martin, he did “recklessly cause the death of another.”

I

Appellant contends on appeal that certain actions and remarks by the prosecution during cross-examination of appellant and closing argument were so prejudicial as to constitute reversible error. We do not agree.

A

Appellant’s assertion that the prosecution’s use of a “rap sheet” during cross-examination of appellant was error is unfounded since as the trial court ruled (out of the presence of the jury) the jury was not cognizant of the “rap sheet”, nor was such displayed to the jury.

B

The legal principles governing appellant’s contention that remarks by the prosecution during closing argument (R. 173-177), and made Appendix I to this opinion, constituted reversible error have been sufficiently addressed in two of our recent decisions, Chambers v. State, Ala.Cr.App., 382 So.2d 632, cert. denied, Ala., 382 So.2d 636 (1980); Harris v. State, Ala.Cr.App., 398 So.2d 381 (1981), and cases cited therein. On authority of these cases, we need only point out that in the case before us the trial court sustained appellant’s objections where appropriate, and properly instructed the jury when necessary, thereby preventing possible harm to appellant. Having reviewed the arguments cited to us by the appellant as improper, we are not persuaded they were improper. Rather, we hold that any possible harm was eradicated by the trial court’s rulings as evidenced by the verdict of the jury which was for a lesser offense (manslaughter) than that argued for (murder) by the prosecution. Chambers, supra; Harris, supra.

This case is due to be and is affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX I

And the State may argue first. Mr. Gomany.

MR. GOMANY: Thank you.

(Whereupon, Mr. Gomany then addressed the jury in closing arguments, at which time the following occurred:)

MR. GOMANY: We have here a black on black crime. People in the vicinity of Birmingham have been getting concerned about it and they have been complaining that nobody is doing anything about it. But, we know from working up here— MR. DANIEL: We are going to object to him telling them what he gets from up here, Judge.

THE COURT: Sustained.

MR. GOMANY: From working in law enforcement—

MR. DANIEL: Same objection.

MR. GOMANY: We up here in law enforcement know that the jury is the one, in these murder cases, that slaps the defendant on the wrist and lets them go—

MR. DANIEL: Judge, excuse me, Your Honor. We are going to move — we are going to object to this line of argument, it is outside of the evidence.

THE COURT: Sustained on that.

MR. GOMANY: Judge, I am just arguing the law.

THE COURT: All right. Go ahead.

MR. DANIEL: It is also to arise the prejudice and inflame the jury.

THE COURT: All right. Go ahead, Mr. Gomany.

MR. GOMANY: No, I am just stating the facts as they are.

MR. DANIEL: Judge, I am going to object to his defying—

THE COURT: Yes. Disregard that, ladies and gentlemen. All right. Go on, Mr. Gomany.

MR. GOMANY: And he knew at that time he had no legal right to kill that young man, or Jerome. Because, we are going to — of course, the theory of transfer intent, if you shoot somebody—

MR. DANIEL: Excuse me, Judge, may we approach the bench?

THE COURT: Un-huh. Well, members of the jury, the Court will charge you on the law in the case.

(Whereupon, there was a brief off the record discussion out of the hearing of the jury.)

THE COURT: The Court will charge you on the law.

MR. GOMANY: The people of Gate City-now I know they wouldn’t want to—

MR. DANIEL: Judge, we object to the Gate City business, same objection we had before.

THE COURT: You mean on what?

MR. DANIEL: Arguing facts, appealing to the prejudice of the jury.

THE COURT: Well, you can appeal for law enforcement, though, and I think that is what he has been doing.

MR. DANIEL: But he cannot use a specific group, Judge.

THE COURT: Well, I will sustain specifically but—

MR. GOMANY: Well, it happened in Gate City, Judge.

THE COURT: All right.

MR. GOMANY: The law says that if you believe a witness intentionally lied on the witness stand to a material fact that you can disregard any and all of his testimony— if a witness is merely mistaken, then that is the difference. But he sure got nervous and I sure heard a lot of objections—

MR. DANIEL: Judge, we are going to object to that argument, and move for a mistrial. I am entitled to object and he knows that. And he is making a reference to my objection.

THE COURT: Well, he is entitled to object, members of the jury. Any attorney is entitled to object in this case.

MR. DANIEL: Not only am I entitled Judge, I am bound to.

THE COURT: Yes, if you think you are right, you are bound to object.

MR. GOMANY: He will charge you on manslaughter, what it means. Criminal negligent homicide, a misdemeanor—

MR. DANIEL: Judge, excuse me. (Whereupon, the attorneys and reporter approached the bench and the following was had and done out of the hearing of the jury.)

MR. DANIEL: Judge, I move for a mistrial on the basis the jury has been told about the degree of punishment and not their problem.

THE COURT: He didn’t mention degrees of punishment.

MR. DANIEL: Said that is a misdemeanor, Judge.

THE COURT: Members of the jury, the court sets punishment in this case, it is not for you. All right. Go ahead, Mr. Gomany.

MR. GOMANY: That is all.

THE COURT: Mr. Daniel.

MR. DANIEL: Thank you, Your Honor.

(Whereupon, Mr. Daniel then addressed the jury in closing arguments, there being no exceptions reserved to rulings therefrom.)

THE COURT: Members of the jury, we will take a two or three minute recess and then come back and have the concluding arguments. You may go to the jury room.

(Whereupon, a brief recess was taken by the Court, after which the following was had and done before Court and jury.)

THE COURT: Mr. Gomany.

(Whereupon, Mr. Gomany then addressed the jury in final closing arguments, and the following was had and done:)

MR. GOMANY: Well, I wanted him to take the stand, he said, if he got—

MR. DANIEL: Judge, we are going to object to what I wanted him to do as far as his taking the stand is concerned.

MR. GOMANY: He opened the door, Judge.

MR. DANIEL: Opening the door does not mean he goes through it with a bus.

THE COURT: Members of the jury, the attorneys may handle their case as they see, each one of them can handle their own case.

And Mr. Gomany is arguing his case.

(Whereupon, Mr. Gomany concluded his closing argument without any further objections or exceptions reserved to rulings therefrom.)

THE COURT: Members of the jury, we had already made a request for the lunchroom to take you to lunch in just a few minutes. And you will be the guest of the court system today for lunch.


author: BOWEN, Judge.

text:
    Dale Lee ROBINSON v. STATE.
    1 Div. 219.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      Floyd C. Enfinger, of Lacey & Enfinger, Fairhope, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted for burglary in the first degree and convicted of burglary in the second degree. Sentence was ten years’ imprisonment.

I

The only semblance of a predicate laid by the State for introducing the in-custody statement of the defendant was on direct examination of Lieutenant Elbe McDowell, Jr. of the Bay Minette Police Department.

“Q. Did you warn Mr. Robinson of his rights?
“A. Yes, sir.”
$ ‡ Ht ‡ ‡ ‡
“Q. Did he indicate that he understood his constitutional rights?
“A. Yes, sir.”

Defense counsel objected on the basis that “the proper predicate has not been laid.” The trial judge made the following ruling.

“THE COURT: Would you (speaking to defense counsel) like to — unless you want to explain some area that the witness has not touched on specifically I am going to take his declaration that he gave the defendant his warnings or his constitutional rights as provided in the constitution.
“MR. ENFINGER (Defense Counsel): We are going to except.”

Because an in-custody statement by an accused is prima facie involuntary and inadmissible, the predicate laid for the admission of the statement is entirely inadequate. The assumption of the trial judge was unauthorized and has been rejected by the courts of this State. Thomas v. State, 370 So.2d 1066, 1069 (Ala.Cr.App.), cert. quashed, 370 So.2d 1070 (Ala.1979); Swicegood v. State, 50 Ala.App. 105, 277 So.2d 380 (1973). The State must show the precise and specific warnings given the accused so that the trial judge may make a determination of the compliance or noncompliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Thomas, supra; Kelley v. State, 366 So.2d 1145, 1149, n. 3 (Ala.Cr.App.1979). The duty rests in the first instance on the trial court to determine whether or not a confession is voluntary. Lokos v. State, 278 Ala. 586, 179 So.2d 714 (1965); Kendrick v. State, 356 So.2d 1222 (Ala.Cr.App.1977); Reynolds v. State, 346 So.2d 979 (Ala.Cr.App.), cert. denied, 346 So.2d 986 (Ala.1977).

Although it is generally recognized that a specific objection to evidence offered is a condition precedent to appellate review, a general objection is sufficient to predicate error on appeal if the evidentiary matter to which it is addressed is patently inadmissible. Satterwhite v. State, 364 So.2d 359 (Ala.1978). Here the objection was specific enough to inform the trial court that a proper predicate for the admission of the confession had not been established. Everett v. State, 25 Ala.App. 432, 148 So. 171 (1933).

This Court has a statutory duty to consider “all questions apparent on the record” whether or not argued in brief. Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965); Norris v. State, 236 Ala. 281, 182 So. 69 (1938); Alabama Code 1975, Section 12-22-240.

II

The defendant contends that the trial court erred in charging the jury on the elements of burglary in the second degree when the undisputed evidence showed that he was guilty of the crime of burglary in the first degree or nothing at all. Because of our decision in part I of this opinion we need not decide this issue. However, we would refer to Richardson v. State, 390 So.2d 4 (Ala.1980), wherein the Supreme Court of Alabama held that a defendant indicted and convicted for the crime of attempt to commit larceny is not entitled to a reversal of his conviction based on the fact that the evidence at trial shows that his attempt was completed or amounted to a perpetration of larceny.

The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


text:
    Ricky JAMES v. STATE.
    2 Div. 300.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Frank L. Thiemonge, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   BOOKOUT, Judge.

This is an appeal from denial of a writ of habeas corpus. The record reveals that the appellant was originally charged in two separate complaints with third degree assault for assaulting two law enforcement officers in violation of § 13A-6-22, Code of Ala. 1975, as amended. The appellant was convicted in the District Court of Dallas County on both charges and was sentenced to hard labor for Dallas County for twelve months and a fine of $2,000 in each case. He appealed from the district court to the circuit court on March 5, 1980. The appellant is not an indigent and has been represented at all stages of these various proceedings by retained counsel, Frank L. Thiemonge, III, of Montgomery.

. On the appeal to the circuit court, a pretrial conference was scheduled for April 24, 1980, but the appellant and his attorney failed to appear, and the circuit judge dismissed the appeal. Counsel for the appellant then petitioned for a reinstatement of the appeal, alleging that “the district attorney and the defense attorney agreed to a continuance of the pretrial conference in hopes of settling the case.” After a hearing on July 1, 1980, the trial judge denied the motion to reinstate the appeal. On August 14 counsel for the appellant filed with the circuit clerk a notice of appeal to this court. The record indicates no further action on the appeal was taken by the appellant’s attorney, and on December 15, 1980, the circuit judge issued an order for the arrest of the appellant in each case. The appellant was arrested and committed to jail on December 18, and his attorney filed a petition for writ of habeas corpus with the Circuit Court of Dallas County the next day.

In the habeas corpus petition, counsel for the appellant alleges that he and his client failed to appear for the pretrial conference on April 24 “based upon the Petitioner’s attorney having a conflict of schedule and understanding that the case would be continued.” He alleges that, contrary to Code § 12-22-112, the appellant’s case was remanded to the district court for his and the appellant’s failure to appear. Counsel for appellant likewise alleges that after the circuit court refused to reinstate the appeal from district court that he gave notice of appeal to this court, but that the “Circuit Court of Dallas County has failed to provide the Court of Criminal Appeals with a transcript of court proceedings and copies of pleadings.”

On December 22, 1980, the Circuit Court of Dallas County, held a hearing on the petition for writ of habeas corpus, at which counsel for the appellant again failed to appear. A member of the Dallas County Bar appeared instead and stated to the court that “Mr. Thiemonge is the attorney of record in this case and he telephoned me and requested that I handle the matter for him today, that he is indisposed.”

The appellant’s contention on the habeas corpus hearing was that the trial court was without authority to dismiss the appeal from district court for failure of the appellant and his counsel to appear at the pretrial conference on April 24, 1980. The basis of that argument rested on Code § 12-22-112, which states:

“(a) If the defendant fails to appear at the circuit court as required by the appeal bond, he shall be liable to the same penalties, forfeitures and proceedings as on a forfeited bail bond taken in the court, and a new warrant of arrest may issue from that court without any other authority therefor.
“(b) Such warrant of arrest must be directed to any sheriff of the state of Alabama; and, when the defendant is arrested, he must be dealt with in all respects as if the arrest had been made on capias from the circuit court.”

The trial court denied the petition for writ of habeas corpus, and the appellant has appealed that ruling to this court.

The trial court in ruling on the habeas corpus petition stated:

“What you have here and I want the record to show what we have here is a lawyer who has by policy and by custom made some arrangements with various clients in various cases to make a token initial appearance but he has not and he customarily has not seen to his obligations, to take care of his client’s business. It is not just on this one occasion but on any number of occasions that he has been notified to be in court and he’s failed to be in court. Had any number of various phone calls from secretaries and otherwise but very seldom has there been any
appearance from this lawyer. Now, I might have been remiss in my responsibility by not holding this man a little bit more accountable to his obligations to his client and to the Court. And if I have in the past I want to assure you gentlemen that that will not happen again. If you are here on his behalf today I want you to be sure he understands that message.
“He has taken the position that he can appeal a case and let the matter go on forever and just let the defendant completely disappear and nothing can be done about the matter one way or the other. The only recourse is to do something one way or the other about possible forfeiture on the appeal bond but there’s no jeopardy and no problem so far as the defendant is concerned. All he has to do is just ignore the matter and stay away and he’s home free.- Now, I’m familiar with the code section that you cited and he’s cited previously but I don’t believe that that is the meaning or the spirit or the intent of that code section. And if a man does not appear in court when he’s ordered to appear in court, if he doesn’t take care of his case when I think I have an obligation to dismiss his appeal and that’s what I’ve done. And I probably should have gone further and taken some disciplinary action so far as the lawyer is concerned. I should have done that. The only question that is in my mind and that is when this appeal was dismissed and the case was remanded to the District Court, what if any status does this case have from that point forward in this court concerning— particularly when we've overruled his motion to reinstate the appeal. And that was done while that rascal was—pardon me, that gentleman was present in court back in July and he’s done nothing from July until December to perfect an appeal from my order; has he?”

I

The appellant’s assertion that the dismissal of his original appeal to this court was the fault of the Circuit Court of Dallas County is totally without merit. Although counsel for appellant contends the “Circuit Court of Dallas County has failed to provide the Court of Criminal Appeals with a transcript,” we would inform counsel that he should know that the burden to perfect an appeal is on him and not on the circuit court. “The appellant is under the duty of seeing that his appeal is perfected according to the requirements of statutes and rules of court.” Orum v. State, 286 Ala. 679, 680, 245 So.2d 831 (1971).

The circuit court was under no duty to perfect the appellant’s appeal for him. The burden is upon him and his retained counsel to obtain a transcript and see that it is timely filed in the appellate court, and this is so even in cases involving indigent appellants. Pope v. State, Ala., 345 So.2d 1385 (1976); Smith v. State, Ala., 346 So.2d 464 (1976).

We consider the instant contention on the part of the appellant’s counsel to be no more than an assertion that habeas corpus should lie because he was negligent in pursuing whatever legal remedies were available to his client. Habeas corpus does not lie to test the adequacy of counsel. Argo v. State, 41 Ala.App. 347, 133 So.2d 201, cert. denied, 272 Ala. 699, 133 So.2d 203 (1961).

II

Appellant contends he is unlawfully detained because the circuit court wrongfully dismissed his appeal from the district court for failure to appear at the pretrial conference. Such contention is not a proper ground to support the issuance of a writ of habeas corpus. “Habeas corpus is not a revisory remedy and cannot be made to answer the purpose of an appeal, certiorari, or writ of error.” Price v. Holman, 279 Ala. 324, 184 So.2d 835 (1966).

The appellant stands convicted of assault in the third degree under two judgments from district court which are valid on their face. Habeas corpus does not reach a valid judgment or even a voidable or irregular judgment; that writ lies only to chai-lenge a judgment which is void. Weathington v. City of Birmingham, 52 Ala.App. 77, 289 So.2d 645 (1973), cert. denied, 292 Ala. 757, 289 So.2d 649 (1974). The circuit court therefore did not err in denying the petition for writ of habeas corpus.

AFFIRMED.

All the Judges concur.


text:
    Leader LEWIS v. STATE.
    3 Div. 297.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      Charles Tom Payne, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the robbery of Flora Seymour. The trial judge sentenced the defendant to forty years’ imprisonment because of the heinous and aggravating circumstances of this case.

The facts show that at approximately 6:00 o’clock on the evening of December 28, 1979, the defendant attacked Mrs. Seymour as she was attempting to unlock the door to her home after returning from the grocery store. The defendant struck her from behind, knocked her against the house, grabbed her purse and jerked it out of her hand. This occurred during a time when a number of elderly residents of the Old Clo-verdale section of Montgomery were being attacked and robbed often right outside their own homes.

I

With the following order, the trial judge denied three pretrial motions filed by the defendant:

“The court having read and considered the motions for discovery, demurrers to the indictment, and motions to quash the indictments, and the court being of the opinion and finding that said motions are ‘canned’ motions and ‘form’ motions, the court finds that they are not filed in good faith and are due to be, and the same are, hereby denied.

The defendant now contends that the overruling of his motions on the basis of the Alabama Rules of Civil Procedure constitutes reversible error.

We have carefully reviewed the defendant’s pretrial motions and conclude that they are without merit and were therefore properly denied.

We do not interpret the order of the trial judge as being based solely on noncompliance with Rule 11 ARCP. The Alabama Rules of Civil Procedure “have no application in criminal proceedings.” See Committee Comments to Rule 1, ARCP.

Even if the trial judge erroneously denied the motions strictly because of noncompliance with the ARCP, his judgment does not constitute reversible error on appeal since we have found the motions to be without merit. If a court’s ruling is correct for any reason, it will not be reversed because the court assigned the wrong reason therefor. Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972); Knox v. State, 365 So.2d 349 (Ala.Cr.App.1978).

II

The defendant argues that the lineup procedure was “so necessarily prejudicial as to be a denial of due process of law.”

We have reviewed the totality of the circumstances surrounding the lineup which we have gathered from the testimony on the motion to suppress, the evidence presented at trial and the color photograph of the lineup. Without detailing all these circumstances, an adequate summary of the situation is contained in the order of the trial judge denying the motion to suppress.

“THE COURT: Mr. Payne (Defense Counsel), I don’t find, and I don’t think that the law requires, that the people who are in a line-up must be identical. I think it requires that they be substantially similar. And I think there are a sufficient number of people in this line-up that are of similar appearance to the Defendant’s in this case and I am going to deny your motion.
“And it would be my opinion that the only issue you have with regard to this is the dissimilarity of the individuals who are in the line-up. I don’t find from the facts that you have presented that there was any police misconduct or anything else that might have tainted the line-up in this case. And if you have an issue at all it is an issue of whether the people in the line-up, in and of themselves, are substantially similar enough to not make the line-up suggestive, or that the Defendant’s appearance is so substantially dissimilar from the rest of the people in the line-up that that would make it unnecessarily suggestive. But I see that as the only issue you have. And it is the court’s ruling that they are close enough; it is not suggestive.”

In this lineup, all the participants were dressed identically (in jailhouse clothing). Compare Brazell v. State, 369 So.2d 25 (Ala.Cr.App.1978), cert. denied, 369 So.2d 31 (Ala.1979), and Griffin v. State, 356 So.2d 723 (Ala.Cr.App.), cert. denied, Ex parte Griffin, 356 So.2d 728 (Ala.1978). The fact, in and of itself, that there was some slight discrepancy in physical appearance among the participants of a lineup does not taint that identification procedure or render it suggestive as a matter of law. Tate v. State, 346 So.2d 515 (Ala.Cr.App.1977).

“(T)he disparate physical appearances of the lineup participants is not alone sufficient to warrant a finding of suggestiveness. Caver v. Alabama, supra (537 F.2d 1333 (5 Cir. 1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1183, 51 L.Ed.2d 587 (1977)); United States v. Reid, 517 F.2d 953, 965-66, n.15 (2 Cir. 1975); United States ex rel. Pella v. Reid, 527 F.2d 380, 384 (2 Cir. 1975); United States v. Jackson, 166 U.S. App.D.C. 166, 172, 509 F.2d 499, 505 (1974). ‘Police stations are not theatrical casting offices; a reasonable effort to harmonize the lineup is normally all that is required.’ United States v. Lewis, 547 F.2d 1030, 1035 (8 Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977).”
Swicegood v. Alabama, 577 F.2d 1322, 1327 (5 Cir. 1978).

Our findings support the order of the trial judge and we find no error in the denial of the motion to suppress.

Ill

The trial court correctly admitted the testimony of Mrs. Elsie Walker and Mrs. Margaret McFall pertaining to robberies the defendant perpetrated against them on December 20, 1979, and December 18, 1979, respectively. Mrs. Walker and Mrs. McFall, like Mrs. Seymour, were returning to their homes, unaccompanied, after grocery shopping between 6:30 and 7:00 P.M. when the defendant accosted them and took their purses. All three ladies were elderly. Mrs. Walker had opened her car door and was preparing to exit when she felt the defendant touch her in reaching across the steering wheel to take her purse. Mrs. McFall had turned to get out of her car when the defendant wrestled her purse from her. Mrs. McFall like Mrs. Seymour, received minor injuries during her struggle with the defendant. None of the ladies had any doubt that the defendant was the robber.

The trial court instructed the jury that Mrs. Walker’s and Mrs. McFall’s testimony was being admitted for the limited purpose of showing plan, design, scheme, system or identity.

As a general rule, in a prosecution for a particular crime, evidence of other acts which of themselves constitute distinct and independent offenses is not admissible. Ex parte Williams, 350 So.2d 708 (Ala.1971); Hayes v. State, 384 So.2d 623 (Ala.Cr.App. 1979), cert. denied, 384 So.2d 627 (Ala.1980). However, this well established principle of criminal evidence is subject to several equally well-established exceptions. Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953); Hayes, supra. Wharton’s Criminal Evidence, Section 31, sets out the general categories of exceptions as follows:

“(1) Relevancy as part of the res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scien-ter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes.”

See also C. Gamble, McElroy’s Alabama Evidence, Sections 69.01 ef seq. (3rd ed. 1977).

We hold that Mrs. Walker’s and Mrs. McFall’s testimony was properly admitted under three of above exceptions: relevancy to prove identity, relevancy to prove intent and relevancy to prove system.

The defendant’s identity as Mrs. Seymour’s robber was in issue. As in Hayes, even though Mrs. Seymour gave a detailed eyewitness account of what transpired, no one else witnessed the assault. While the defense did not present testimony as in Hayes, the defendant placed his identity in issue in two ways: by his motion to suppress the State’s lineup procedures and by his extensive cross examination of Mrs. Seymour as to her eyesight, her opportunity to observe and the lighting conditions at the time she was robbed.

The State properly showed that the defendant robbed Mrs. Walker and Mrs. McFall in the same peculiar manner. The only difference in the three robberies is that Mrs. Seymour had already gotten out of her car when the defendant grabbed her purse; Mrs. Walker and Mrs. McFall were still in their cars. Mrs. Walker and Mrs. McFall both made positive identifications of the defendant as their assailant. Thus, under the identity exception their testimony was admissible. Hayes and cases cited therein. Also see McElroy, Section 69.01 (8) and cases cited therein for a full discussion on this exception.

Mrs. Walker’s and Mrs. McFall’s testimony was relevant to prove intent.

“If the accused is charged with a crime that requires a prerequisite intent, then prior criminal acts are admissible to show that he had the necessary intent when he committed the now-charged crime. This rule is based upon the theory that, because the unintentional doing of an act is abnormal and unusual, the more the person does other acts similar to the act in question, the greater the likelihood that the act in question was not done inadvertently.”
McElroy, Section 69.01(5). Also see Hayes, 384 So.2d at 626.

Because of the prior similar robberies of Mrs. Walker and Mrs. McFall, the particular intent the defendant had toward Mrs. Seymour becomes more certain. The prior robberies demonstrate clearly that the defendant did not act inadvertently.

Finally, the testimony of Mrs. Walker and Mrs. McFall was relevant to prove system. Again, we must refer to Judge McEl-roy:

“Evidence of the accused’s commission of another crime is admissible if such evidence, considered with other evidence in the case, warrants a finding that both the now-charged crime and such other crime were committed in keeping with or pursuant to a single plan, design, scheme or system. This rule is applicable whether such plan, design, scheme or system is narrow and specific in scope or is measurably broad and general in scope.” McElroy, Section 69.01(6).

A clearer example of scheme or system than the instant case would be difficult to imagine. The defendant in each of the three robberies, which were committed within ten days of each other, sought out unaccompanied elderly female victims returning home from the grocery store just after dark. In each case the victim either had just gotten out of her car or was preparing to do so. In each instance the defendant had one objective: to grab the victim’s purse, using whatever force he felt necessary, and to escape on foot. Thus, the system exception was satisfied.

Under the facts of this particular case, the criminal acts of the defendant against Mrs. Walker and Mrs. McFall were properly admitted into evidence for the reasons stated.

IV

During the cross examination of Mrs. Seymour the following exchange occurred:

“Q. The individuals in the line-up were not dressed the same as the man that you saw on December 28, 1979, were they?
“A. He had been in jail.
“Q. Pardon?
“A. He had been in jail. They were all crumpled and messy looking.”

The defendant’s motion for mistrial was denied and the trial court instructed the jury to disregard Mrs. Seymour’s remark, to “remove it from your minds. It is not evidence in this case.”

The granting of a mistrial rests within the sound discretion of the trial judge. The exercise of that discretion will not be interfered with absent a clear abuse. Woods v. State, 367 So.2d 982 (Ala.1978). Here, there was no abuse of discretion. Witness after witness testified without objection that the lineup was conducted at the police station. Obviously, the defendant “had been in jail.” Even had there been error in Mrs. Seymour’s remark, we hold that it was rendered harmless by the trial judge’s curative instructions.

We have considered each issue raised by the defendant. In addition, we have searched the record for errors prejudicial to the defendant’s substantial rights and have found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . “ ‘See Rule 11 ARCP wherein it provides, inter alia, “the signature of an attorney constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief, there is good ground to support it; and that it is not interposed for delay.” ’ ”
      This footnote is part of the Judge’s order.