author: BEATTY, Justice.

text:
    Ex parte James M. BOYD, et al. (In re James M. BOYD, et al. v. Catherine BOYD, et al.)
    81-618, 81-619.
    Supreme Court of Alabama.
    July 23, 1982.

      William H. Mills of Redden, Mills & Clark, Birmingham, and Paden, Green & Paden, Bessemer, for petitioners.
    No brief for respondents.
   BEATTY, Justice.

Petitions for writ of mandamus directed to the Honorable Walter G. Bridges, Judge of the Circuit Court of Jefferson County, Bessemer Division. The writ is granted.

On April 19, 1981, petitioners James M. Boyd, Lawrence Martin Boyd and Karen Elizabeth Boyd, filed complaints in the Circuit Court of Jefferson County, Bessemer Division, contesting two separate instruments dated October 22, 1979. One instrument purports to be the last will and testament of Carl Evans Boyd, who died September 4, 1980, and the other the last will and testament of Luther Claud Boyd, who died December 23,1980. Hereinafter, those instruments will be referred to as the “1979 wills.” The plaintiffs/contestants in the will contests are heirs-at-law of both Carl Evans Boyd and Luther Claud Boyd and/or beneficiaries of instruments dated May 14, 1975, amended by codicils dated June 1979, which also purport to be the last wills and testaments of the aforementioned decedents. Those instruments will hereinafter be referred to as the “1975 wills.” The basis of the contests is the plaintiffs’ allegations that at the time the 1979 wills were executed neither Carl Evans Boyd nor Luther Claud Boyd had testamentary capacity to make a will.

Petitioners Catherine Boyd, Edna Ruth Butler, Kay B. Mitchell and Bari B. Montgomery, are defendants in the will contests and beneficiaries of the 1979 wills, which were admitted to probate in the Probate Court of Jefferson County on October 17, 1980, and December 29, 1980, respectively. The defendants are also beneficiaries of the 1975 wills.

During the pendency of the will contests, all the parties entered into written agreements which settled and resolved all questions regarding the administration and distribution of the estates of Carl Evans Boyd and Luther Claud Boyd.

By the terms of the settlement the parties agreed that consent orders be entered in the cases holding that the purported 1979 wills are null and void and not the last wills and testaments of the testators in question. The parties further agreed that the estates be administered and distributed in accordance with the 1975 wills and agreement of the parties.

After entering into the settlement, the parties petitioned Judge Bridges to enter an order confirming the agreements and making a disposition of the will contests in accordance with the agreements. On April 6, 1982, Judge Bridges entered an order denying the joint petitions for settlement and disposition of the will contests. Thereafter, all the parties joined as petitioners to file this petition for writ of mandamus.

It is well settled that mandamus is the appropriate remedy by which to compel a lower court to perform particular ministerial duties. In re Estate of Potts, Ala., 356 So.2d 142 (1978). And, the act of entering a consent judgment in a manner lawfully agreed upon between the parties and within the authority of the court is ministerial. State v. Jones, 252 Ala. 479, 41 So.2d 280 (1949). Petitioners contend that mandamus should lie in the present case because, contrary to the principles enunciated by this court in First National Bank of Birmingham v. Brown, 287 Ala. 240, 251 So.2d 204 (1971), Judge Bridges refused to enter consent judgments carrying out the settlement of the will contests. We agree.

In Brown, supra, we recognized the right of heirs-at-law and beneficiaries of wills to settle and adjust among themselves a will contest and all issues that arise from it, including the division, distribution and administration of the decedent’s estate. The effect of the parties’ agreement in Brown was that the trial court entered an order declaring that the will which was the subject of the contest was null and void. We affirmed, holding “that the form of judgment or decree to be entered in such a case may itself be a matter of agreement and compromise between parties sui generis represented.” Id. at 247, 251 So.2d at 209 (citing Harris v. Harris, 211 Ala. 144, 99 So. 913 (1924)).

Judge Bridges, the respondent in this case, claims that he could not enter judgments declaring the 1979 wills null and void without a finding of fact that the testators lacked testamentary capacity to make the wills. However, the will in Brown was declared null and void without any such finding of fact. An order or decree approving the proposed compromise should be entered if there is “some reasonable ground for the existence of the controversy,” without regard to whether the claim would prevail at law. 287 Ala. at 246, 251 So.2d at 209. The disputed claim is sufficient consideration to support an agreement as to such subject. Actual proof of the contested facts through litigation is not a prerequisite to the parties’ settlement. Here, the alleged lack of testamentary capacity of the decedents was a reasonable ground for justifying the controversy.

The petitioners’ right to relief is clear. Accordingly, the writ of mandamus must be, and is, granted. We hereby direct the trial court to set aside and vacate the orders denying the joint petitions for settlement and disposition of the will contests and to enter an order granting the petitions.

WRIT GRANTED.

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


source: Caselaw Access Project

author: BOWEN, Judge. BOWEN, Judge.

license: Public Domain

text:
    Ogie L. HAYES v. STATE.
    3 Div. 468.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    On Return to Remand June 29, 1982.
    Rehearing Denied July 27, 1982.

      L. Gilbert Kendrick, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

This is an appeal from the denial of a petition for writ of error coram nobis.

Hayes alleges that he was represented by incompetent counsel and was coerced into pleading guilty because his attorney told him he would receive a twenty year sentence with probation on a conviction for “first degree murder.”

A petition meritorious on its face entitles the petitioner to a hearing on the merits. Henry v. State, 387 So.2d 328 (Ala.Cr.App.1980).

However, a petition for writ of error coram nobis may be denied without an evi-dentiary hearing where inexact conclusions are stated as grounds for the writ. Ex parte Phillips, 276 Ala. 282, 161 So.2d 485 (1964); Thomas v. State, 274 Ala. 531, 150 So.2d 387 (1963); Johnson v. Williams, 244 Ala. 391, 13 So.2d 683 (1943), or where the review court could have found that the grounds of the writ are unreasonable or false. Adams v. State, 281 Ala. 432, 203 So.2d 448 (1967); Ex parte Taylor, 249 Ala. 667, 32 So.2d 659 (1947).

“In passing upon the petition for writ of error coram nobis this court is in the exercise of a wise discretion and must look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof, and grant leave only when it appears that the proposed attack on the judgment is meritorious.” Ex parte Taylor, 249 Ala. at 669, 32 So.2d 659.

In Taylor v. Alabama, 335 U.S. 252, 68 S.Ct. 1415, 92 L.Ed. 1935 (1948), the United States Supreme Court found that a court could constitutionally deny a writ of error coram nobis because it considered the facts alleged implausible. Taylor was followed and commented on in Ex parte Williams, 268 Ala. 535, 108 So.2d 454 (1959).

We note that the petition was denied by the same judge, the Honorable Perry 0. Hooper, who accepted Hayes’ plea of guilty. Since this judge denied Hayes’ petition less than three months after the guilty plea was accepted, Judge Hooper may well have based such denial upon his own personal knowledge of the facts of the case. In view of this fact, we remand this cause to the circuit court with instructions that Judge Hooper either state his reasons for summarily denying the petition or afford the defendant an evidentiary hearing.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

BOWEN, Judge.

On remand to the circuit court an evidentiary hearing was held, following which the trial judge issued the following order.

“THE COURT: All right. Now, it is the conclusion of the Court, having heard the first trial which took a couple of days, and having heard the presentation by Mr. Heller at the guilty plea and the sentencing, and having known Mr. Heller a number of years as a lawyer, he is highly competent, and that he did an excellent job for the Defendant.
“Secondly, it is my conclusion that the Defendant understood his rights at the time of the sentence.
“It is the further conclusion of the Court that the Defendant knew that he would not get probation.
“Therefore, the Court denied the request for reduction of the sentence and the Court denies the Writ of Error Coram Nobis.”

These findings are fully supported by the facts in the record.

The only evidence to support the defendant’s allegation that he was coerced into pleading guilty because he “understood” and “thought” he was going to get probation is the defendant’s own testimony. The testimony of the defendant’s appointed trial counsel is in direct conflict with the contentions and testimony of the defendant.

Contained in the record is an “Ireland” form. Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971). At the hearing on remand, the defendant admitted signing this form but stated that he did not read it before he signed it: “Like I say, the only thing that I understood is that I would receive probation. That’s the only thing that I understood.”

On the second page of this Ireland form and one paragraph above the defendant’s signature appears the following sentence printed in large capital letters: “I FULLY UNDERSTAND THAT THERE WILL BE NO AGREEMENT OF ANY KIND WITH THE DISTRICT ATTORNEY’S OFFICE IF I PLEAD GUILTY AND REQUEST PROBATION.” This sentence is at the end of a paragraph which begins with a sentence which has been marked to indicate that the defendant is not applying for probation.

The defendant first learned that he did not get the sentence he thought he was going to get when the sentence was pronounced. No direct appeal was taken, the defendant testifying that he “didn’t know” he could appeal.

In the search for truth in our judicial system and in the implementation of due process, the writ of error coram nobis serves a valuable role. Since its recognition in Johnson v. Williams, 244 Ala. 391, 394, 13 So.2d 683 (1943), the writ has served as a “remedy for one who claims that his incarceration is due to failure to observe that fundamental fairness essential to every concept of justice, even after a sentence has been duly affirmed by the highest court of the state.” Johnson, 244 Ala. at 394, 13 So.2d 683. The writ serves a broad purpose.

“It lies to set aside a conviction obtained by duress or fraud, or when by some excusable mistake or ignorance of accused, and without negligence on his part, he has been deprived of a defense which he could have used at his trial, or where facts have been concealed at the trial which, if known, would have prevented a conviction, and the accused cannot at the time present such matter in a motion for a new trial, on appeal or other existing statutory proceeding .... We do not intend here to make a complete statement of all the circumstances when the writ will lie. But what is said serves to illustrate its broad purpose.” Brown v. State, 250 Ala. 444, 446, 35 So.2d 518 (1948).

However, the writ of error coram nobis is often abused and its very purpose frustrated and perverted by that abuse. “Often such petitions are based upon assertions of alleged facts, which have originated in the fertile minds of cunning criminals.” Wi-man v. Argo, 308 F.2d 674 (5th Cir. 1962).

“The petitioners take great comfort in the fact that no matter how frivolous their allegations or how utterly deficient their pleadings may be, the state must respond to these ofttimes unintelligible pleadings, letters or memorandums, and/or proceed to costly and time-consuming hearings. The petitioners have nothing to lose, for they know that the very least they can obtain is a day away from their prison surroundings.” Cooper v. Wiman, 273 Ala. 699, 701,145 So.2d 216 (1962).

In this case, the defendant, who pled guilty to first degree murder, has used the writ as a harlot, for his own purposes and without regard for the majesty of the writ itself and the dignity of the judicial system.

The judgment of the circuit court denying the defendant’s petition for writ of error coram nobis is affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Carl BASS v. STATE.
    6 Div. 664.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied March 23, 1982.

      Dennis N. Balske, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Denial of petition for writ of error coram nobis.

Appellant’s conviction of first degree murder was affirmed by this court in Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975). Appellant’s assertion that he was denied effective assistance of counsel in that case forms the basis for the present appeal.

Contrary to appellant’s contention, this jurisdiction has not directly or indirectly adopted any standard of review for examining allegations of incompetency of counsel other than that which we have previously utilized. The standard remains that appellant must show that the conduct of the attorney reduced the trial to a farce, sham, or mockery of justice. Behel v. State, Ala. Cr.App., 405 So.2d 51 (1981); Bridges v. State, Ala.Cr.App., 391 So.2d 1086 (1980); Goodman v. State, Ala.Cr.App., 387 So.2d 862, cert. denied, Ala., 387 So.2d 864 (1980); Lewis v. State, Ala.Cr.App., 367 So.2d 542 (1978), cert. denied, Ala., 367 So.2d 547 (1979). This court is not bound by the decisions of the Fifth Circuit Court of Appeals. Harris v. State, Ala.Cr.App., 367 So.2d 524, cert. denied, Ala., 367 So.2d 534 (1978).

The function of a writ of error cor-am nobis under Alabama law is to bring to the attention of the trial court an error of fact, which had it been known, would have prevented the judgment challenged. In effect, the writ serves as a motion for a new trial on the ground of newly discovered evidence. Vaughn v. State, Ala.Cr.App., 395 So.2d 95 (1979); Seibert v. State, Ala., 343 So.2d 788 (1977); Lewis, supra; Summers v. State, Ala.Cr.App., 366 So.2d 336 (1978), cert. denied, Ala., 366 So.2d 346 (1979).

“In a coram nobis proceeding, the petitioner bears the burden of submitting clear, full and satisfactory proof of facts which, had they been timely submitted at trial, would have prevented judgment .... The degree of proof is ‘highly exacting as to facts’ and must convince the trial judge of the truth of the allegations in the petition... . ” Bibby v. State, Ala.Cr.App., 394 So.2d 73, 75 (1980), cert. denied, Ala. 394 So.2d 76 (1981).

See also, Seibert, supra; Corley v. State, Ala.Cr.App., 397 So.2d 223, cert. denied, Ala., 397 So.2d 225 (1981); Lewis, supra; Summers, supra.

Challenges based on the ineffective assistance of counsel constitute grounds for a petition for error coram nobis despite earlier indications to the contrary. Counsel is presumed adequate and the fact that the petitioner was convicted does not establish incompetency or lack of zeal, especially when counsel had been retained rather than appointed. Summers, at page 341. See also Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964); Willis v. State, 42 Ala. App. 85, 152 So.2d 883 (1963).

The writ of error coram nobis does not serve the purpose of an appeal. Nor does it serve as a second review of those issues previously raised or not initially raised on appeal. Adams v. State, 281 Ala. 432, 203 So.2d 448 (1967); Butler v. State, 279 Ala. 311, 184 So.2d 823 (1966); Thigpen v. State, Ala.Cr.App., 374 So.2d 401, cert. denied, Ala. 374 So.2d 406 (1979); Summers, supra; Groce v. State, 48 Ala.App. 709, 267 So.2d 499 (1972).

Appellant’s first assertion, that his trial counsel failed to investigate his case by not interviewing State’s witnesses to discover their criminal backgrounds or deals with the State, is not supported by the evidence. At the outset, we note that had such information been learned prior to trial, it could only have been used to impeach the credibility of the witnesses and not as substantive evidence of appellant’s innocence. Nevertheless, James Davis, one of the State’s witnesses, admitted on examination that he had a criminal case pending against him.

Appellant’s trial counsel testified that he interviewed two other witnesses, James Merritt and Joe Ferguson. He read the statements all three witnesses made to the police prior to the time for the preliminary hearing and stated that, had there been any deals by the State and the witnesses, which he suspected, he did not think he would have been told of them regardless of his attempts to discover them. Mr. Fred Pick-ard, the prosecuting attorney in appellant’s case, testified that he did not make any deal with any of the above witnesses.

Mr. Charles Purvis, Davis’ attorney at the time of appellant’s trial, testified that the State “didn’t promise me anything (in exchange for Davis’ testimony) and I didn’t promise James anything.” Nevertheless, he felt that for testifying against appellant, Davis was given probation on his pending charges, a usual and common practice, according to Purvis.

An adequate defense in the context of a constitutional right to counsel does not mean that counsel will not commit what may later prove to be tactical errors. The evidence presented by appellant on this ground does not disclose any error in tactics or inadequacy of representation. Summers, supra.

Appellant’s counsel testified that he waived appellant’s preliminary hearing because he had already learned from the arresting officers all the evidence that would have been presented at the hearing. He stated that he had already done his own investigative work, and had read the statements of the witnesses but he could not locate the witnesses appellant suggested.

Appellant offered no evidence to rebut his lawyer’s testimony other than his statement that he was not consulted prior to the waiver. In fact, an inference exists that his preliminary hearing was waived at arraignment when both he and his counsel were present.

The record reflects that appellant’s trial counsel exercised his professional judgment in waiving the preliminary hearing. The attorney apparently concluded that the State had sufficient evidence to establish the commission of the offense and probable cause for charging appellant therewith. While a preliminary hearing is widely used by defense counsel for discovery purposes, which is what appellant contends his trial counsel failed to do by waiving it, that is not its primary purpose. Daniels v. State, Ala.Cr.App., 335 So.2d 412 (1976); § 15-11-9, Code of Alabama 1975. There is no general constitutional right to discovery by an accused in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).

Appellant’s next argument, that his counsel’s incompetence was demonstrated by his failure to file any pretrial motions, especially a motion to suppress the in-court identification of an eyewitness to the shooting, is not supported by the record.

Initially, we note that there is no rule stating that trial counsel’s failure to file pretrial motions constitutes per se inadequacy of representation. The failure to act must cause the trial to be reduced to a farce, sham, or mockery of justice. See generally Pace v. State, Ala.Cr.App., 369 So.2d 1281 (1979).

No testimony was offered at appellant’s hearing to substantiate his claim. We have reviewed the original transcript of the witness’s testimony and we find that the supposed eyewitness admitted that he did not, in fact, see the actual shooting, although he was present at the scene and had the opportunity to observe the appellant. He was shown a photographic array two days after the murder and picked out appellant’s picture at that time. It thus appears that the witness had an independent basis for his identification of appellant. Pace, supra.

Appellant next asserts that, by not meeting with him to prepare for his trial, and especially by not meeting with him during the overnight recess in his trial, his counsel inadequately represented him.

As to the former allegation, appellant testified that he met with his lawyer about three times prior to trial. His lawyer, however, testified that they met about six times. The obvious conflict in the evidence was a matter properly decided by the trial court. Harris v. State, Ala.Cr.App., 367 So.2d 524, cert. denied, Ala. 367 So.2d 534 (1978).

On his latter contention, appellant cites Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), for the proposition that counsel’s failure to meet with him during the recess constituted inadequate representation.

In Geders, the federal district court ordered the defendant’s counsel not to contact the defendant during an overnight recess. The Supreme Court held that the order violated Geders’ Sixth Amendment right to effective assistance of counsel. Geders does net stand for the proposition that counsel is required to confer with his client during a recess, but for the principle that the right exists if the accused and his counsel so desire.

Appellant does not indicate in what manner he was prejudiced. The record does not disclose any prejudice; if anything, it supports the opposite conclusion. Thus, we find no inadequacy demonstrated. See Taylor v. Alabama, 335 U.S. 252, 68 S.Ct. 1415, 92 L.Ed. 1935 (1948); Thomas v. State, 274 Ala. 531, 150 So.2d 387 (1963); Brown v. State, Ala.Cr.App., 373 So.2d 1232 (1979).

Appellant contends that his attorney announced ready for trial when in fact he was unprepared. At appellant’s hearing, the only testimony offered on this ground was by the attorney, who stated that, although he was “surprised” when appellant’s case was called for trial because it was so far down on the docket, “we had been talking about this for almost a year and it wasn’t something that we didn’t fully understand what was going to happen.”

We find appellant’s proof of incompetency on this ground insufficient to sustain the allegation. Harris, supra.

Appellant claims that trial counsel did not advise him of the consequences of his testifying. Appellant testified that near the end of his trial, his lawyer whispered a question to him whether he wanted to testify, and he replied affirmatively. About five minutes later, he was called to testify. Appellant stated that counsel did not tell him what questions he was going to ask on direct, or inform him of what to expect on cross-examination. He stated that the attorney never discussed with him the advantages and disadvantages of testifying in his own behalf. Counsel was not cross-examined at the hearing by appellant concerning this matter.

A close review of appellant’s trial testimony indicates that his lawyer questioned him in a manner that attempted to refute the State's evidence. On both direct and cross-examination, appellant denied being at the store on the night of the fatal shooting. An attempt by the State to impeach appellant concerning his refusal to make a statement to the police failed as he continually proclaimed his innocence.

Once again we find insufficient support in the record to uphold appellant’s contention and reverse the trial court's ruling denying his petition. The record is conspi-ciously lacking any glimmer of prejudice to appellant. Scrutiny of all the circumstances reveals no lack of adequate representation in this regard.

Appellant also asserts that his trial counsel elicited the most damaging evidence against him during the cross-examination of Davis. Our review of the record, however, indicates that the State was the first to bring out the testimony, and we find no support for appellant’s contention.

Next, appellant maintains that, in failing to cross-examine Davis, Merritt, and Ferguson about their deals with the State, counsel provided inadequate representation to him.

Initially, we note that no deals were made by the State with any of the above witnesses. With that fact, appellant’s argument loses most of its vigor. In addition, then-assistant district attorney Fred Pick-ard testified that he remembered the witnesses’ testimony as not being overly favorable to the State. Our review of the trial record confirms his assessment.

Appellant’s attorney made the same assessment as Pickard. It would appear to have been a part of his trial stategy not to cross-examine the witnesses extensively on their interest, especially in light of their mediocre performance for the State.

The evidence presented on this contention clearly shows that appellant’s counsel used sound professional judgment in not questioning the witnesses about their presumed bias against appellant and their interest in testifying. Tactical considerations often become paramount in a trial. Matters of trial strategy should be left to the judgment of trial counsel in the absence of a clear showing of inadequate representation. Bridges, supra; Goodman, supra; Summers, supra.

Appellant also argues that his lawyer’s failure to object to that portion of his cross-examination in which he was being questioned about his refusal to make a statement to the police, and to the State’s closing argument on the same subject, constituted incompetent representation.

The trial record reveals that appellant testified that he did not refuse to make a statement to the police but that he “didn’t have any reason to.... ” He testified that the police did not ask him whether he wanted to make a statement, but why he had killed someone, to which appellant answered that he had not killed anyone. He stated that the police said he did not want to cooperate which he answered by saying that he could not cooperate when he did not know who he was supposed to have killed. Appellant unequivocally stated that he did not refuse to make a statement.

An objection by his lawyer to this questioning would have been of little consequence since appellant answered all the questions in the negative and without prejudice to his case.

Appellant urges this court to retroactively apply Houston v. State, Ala.Cr.App., 354 So.2d 825 (1977), cert. denied, Ala., 354 So.2d 829 (1978), in which we held that the State may not use an accused’s post-arrest, post-Miranda silence as evidence of his substantive guilt or for impeachment purposes. Houston did not deal with the issue of whether counsel’s failure to object to the State’s use of the accused’s post-arrest, post-Miranda silence at trial constituted ineffective assistance of counsel. To make such an application would remove the holding of Houston from the context in which it was made.

The State’s closing argument regarding appellant’s supposed refusal to make a statement is not preserved for the record. Consequently, this court is unable to determine whether the claimed lack of an objection was injurious.

Based upon the foregoing, we find no incompetency of counsel in this regard.

Appellant’s last contention centers upon his attorney’s failure to contact him after his trial to inform him of the outcome of his appeal.

Appellant testified that after his trial he never again talked to, communicated with, or received a communication from his lawyer. He stated that he was never made aware of this court’s action on appeal.

Appellant’s counsel testified that after appellant’s conviction, “he [appellant] went on to the penitentiary, I never saw him again after that, and I don’t remember if I contacted him or not for sure. I would assume my secretary would have written him a letter, but I don’t know for a fact if we did.”

The attorney stated that he did not practice law from September, 1975 to May, 1980, and he had misplaced his trial file several years ago. Thus, he could not accurately document his efforts, if any, to communicate with appellant.

A review of the record does not establish the degree of proof required to sustain appellant’s contention. Harris, supra.

In Trammell v. State, 276 Ala. 689, 166 So.2d 417 (1964), the Supreme Court stated:

“Trial counsel must make many decisions of an almost infinite variety in the course of a criminal trial whether to seek a change of venue; whether to object; whether to offer a witness of probable doubtful credibility or with a criminal record; whether to advise the defendant to take the stand and subject himself to cross examination; how to argue the case to the jury; whether the jury be polled. All these and more are practical questions and very real ones. Bad judgment, or even good but erroneous judgment, may result in adverse effects. They are simple facts of trial; they are not justiciable issues in a proceeding of this kind.”

Even though it can be definitely shown that trial counsel has made a mistake unfavorable to his client, that alone is insufficient to establish inadequacy of representation. Lewis supra.

As we stated in McKinnis v. State, Ala. Cr.App., 392 So.2d 1266 (1980), cert. denied, Ala., 392 So.2d 1270 (1981):

“ ‘[T]he inadequacy of counsel is not established by his failure to claim every possible legal advantage for his client. While counsel is expected to contest every step of the case, he may make concessions warranted by the facts. Counsel is not obligated to advance points or arguments that are specious or frivolous, or to submit evidence which he believes is inadmissible or immaterial; nor is he called on to manufacture evidence.
“ ‘Counsel for accused is vested with broad latitude in the conduct of the defense and he is not to be adjudged incompetent and his client deemed denied effective assistance of counsel by reason of the commission of what, in retrospect, appear to be errors of judgment. Mere errors, omissions, or mistakes by counsel do not establish a lack of effective representation by counsel. Trial strategy, even though unsuccessful, is an inadequate basis for an attack on the competency of counsel, and this rule has been applied where counsel refrained from cross examination or from calling certain witnesses, or where counsel decided that accused should not take the stand.’ 23 C. J. S. Criminal Law, § 982(8) (1961).
“We have examined every potential infringement of the defendant’s right to effective counsel with the most exacting scrutiny. Zuck v. State of Alabama, 588 F.2d 436 (5th Cir. 1979). The defendant’s own statements in the record reveal that either his arguments and contentions are totally without merit or that the complained of failures and inactions on the part of his trial attorney do not amount to ineffective assistance of counsel. No doubt, after the jury returned the guilty verdict, the defendant was greatly dissatisfied with trial counsel. However, this is a far cry from a denial of the constitutional right to the effective assistance of counsel.” [Footnote omitted]

The order of the Circuit Court in denying appellant’s petition for writ of error coram nobis is hereby affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON, J., concur. BOWEN, J., concurs in result.


author: PER CURIAM. TORBERT, Chief Justice

text:
    Ex parte Carl BASS. (In re Carl Bass v. State of Alabama)
    81-558.
    Supreme Court of Alabama.
    July 23, 1982.
    Dennis N. Balske, Montgomery, for petitioner.
    No brief for respondent.
   PER CURIAM.

WRIT DENIED.

JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and FAULKNER, J., dissent.

TORBERT, Chief Justice

(dissenting).

I dissent and would grant review of petitioner’s conviction on the issue of whether petitioner was denied effective assistance of counsel, in violation of Article I, § 6, of the Alabama Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. I believe this Court should examine the standard presently used by our state courts when presented with a claim of incompetency of legal counsel in light of the recent decision of Harris v. Oliver, 645 F.2d 327 (5th Cir. 1981). The Fifth Circuit Court of Appeals has adopted a “reasonably effective assistance” standard, while our courts, when faced with a claim of incompetent legal counsel, have traditionally used the standard of “whether the trial was reduced to a farce, sham or mockery of justice.”

While the Court of Criminal Appeals is correct when it states that Alabama state courts are not bound by the decisions of the Fifth Circuit Court of Appeals, it is also true that federal courts have the power to review state court decisions through a petition for habeas corpus. A federal court will therefore review a claim of denial of effective assistance of counsel by the Fifth Circuit standard — not the standard presently used by our courts.

Much has been said about the interference by the federal courts in state court decisions in criminal cases. But as long as we have a legal standard different from the federal standard, we have no reason to complain about federal courts accepting collateral attacks against state court judgments.

It is my view that this Court, as the court of last resort in this state, should review the standard adopted by the Fifth Circuit. This does not mean that we have to adopt its standard for our courts, but if we are going to have a different standard we should at least consider the matter by granting certiorari in this ease.- If we fail to address the issue now, every criminal defendant will allege that his attorney was incompetent, knowing that his chance of getting a reversal of his conviction is greater in the federal court system due to our failure to examine the differing standards.

If we address the issue now, and should we decide to retain the “whether the trial was reduced to a farce, sham or mockery of justice” standard, the State will have a more solid foundation upon which to argue that this Court’s standard for determining whether a defendant received effective assistance of counsel is correct, when the case is ultimately argued before the United States Supreme Court. Accordingly, I would grant the writ.

FAULKNER, J., concurs.


author: BOWEN, Judge.

text:
    Schullar PICKETT v. STATE.
    6 Div. 686.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    On Return to Remand June 29, 1982.
    Rehearing Denied July 27, 1982.

      Belle H. Stoddard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane Lecroy Brannon, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was found guilty of the first degree robbery of Charles Long. Sentence was twenty-five years’ imprisonment.

I

Although the State’s evidence did not establish that $400.00 was stolen as alleged in the indictment, such a variance is not fatal to the robbery conviction. Wilson v. State, 268 Ala. 86, 105 So.2d 66 (1958). In a prosecution for robbery, the value of the stolen goods need not be proved to be exactly as alleged in the indictment. Nolen v. State, 376 So.2d 1143, 1148 (Ala.Cr.App.), cert. denied, 376 So.2d 1148 (Ala.1979).

II

Although the pretrial showup identification of the defendant by the victim of the robbery was suggestive, after examining those factors which must be considered when evaluating the likelihood of misidentification, Jackson v. State, 361 So.2d 1152 (Ala.Cr.App.1977), we hold that the procedure was not so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny due process of law. As the trial judge remarked in denying the defendant’s motion to suppress: “Sure it’s suggestive. Just because it’s suggestive doesn’t throw it out.”

The pretrial confrontation was held approximately twenty minutes after the robbery was committed. The victim, Charles Long, stated, “I think that’s him” when the defendant was brought over to the police car in which Long was sitting. When an officer told Long that he had to be sure, Long replied: “(W)ell, where (are) the coat and hat? Put that on him.” Long then made a positive identification of the defendant. On voir dire examination by defense counsel, Long was asked: “So you were able to pick him out by a coat and a hat?” Long answered: “Well, the face.”

“Standing alone the fact that the accused wore a distinctive article of clothing may not have tainted the identification procedure.” Brazell v. State, 369 So.2d 25, 29 (Ala.Cr.App.1978), cert. denied, 369 So.2d 31 (Ala.1979). The mere fact that an unusual number of policemen were present at the time of the pretrial identification does not render the confrontation procedure so unduly suggestive as to violate due process. Cartee v. State, 390 So.2d 1121, 1125 (Ala.Cr.App.), cert. denied, 390 So.2d 1126 (Ala.1980).

Even if pretrial identification procedure employed in this case were unduly suggestive, the in-court identification of the defendant was still properly admitted because the prosecution established, by clear and convincing evidence, that the in-court identification stemmed from an independent source rather than the unfair pretrial confrontation. Cartee, 390 So.2d at 1123; Brazell, supra. See also Thomas v. State, 399 So.2d 915 (Ala.Cr.App.1981).

Ill

We find the testimony of the victim sufficient to establish a prima facie case of first degree robbery and to support the jury’s verdict thereof. Thus, the trial court properly overruled his motion to exclude. Lynn v. State, 380 So.2d 366 (Ala.Cr.App. 1980); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977).

IV

The defendant contends that the trial court committed reversible error in overruling his objection to portions of the State’s closing argument.

From the record:

“MR. WHISONANT (Assistant District Attorney): They were very close to the wrecker company. They arrived there within just a few minutes, say five minutes. There they talked to the victim. He told them what happened, he described his assailant. He described the vehicle. They called back in and updated the description of the vehicle. He testified they were there within maybe 10 or 12 minutes, something along those lines. “MR. NEWMAN: Your Honor, just a second. I think I heard him testify to something that’s not in evidence — argue something that is not in evidence as to what description was given to the police. “THE COURT: Ladies and gentlemen, in arguing the case these lawyers can give their best recollection of the evidence. They can also argue any inferences or conclusions that they can draw from the evidence. They can also argue if they desire their interpretations of the law. Of course what they say is not evidence. It’s going to be up to you to decide what the evidence is in this case. You decide that, and I’ll give you the law in the case. Overruled.”
* * * * * #
“MR. WHISONANT: Mr. Long testified he had a police scanner in his business that he listened to. I assume because of the nature of his work.
“MR. NEWMAN: Your Honor, I object again. He’s back on the track again of testimony that’s not in evidence.
“THE COURT: I’ve already said the jury has 12 minds and 24 ears. They heard the evidence. They’ll decide what the evidence is. He can give his recollection. If there’s a disagreement then they can argue that. If there is something absolutely not in evidence they can’t argue that.
“MR. NEWMAN: But Your Honor, that’s absolutely not in evidence.” (Emphasis added).

Defendant argues that the above underlined portions of the State’s argument referred to substantive facts not before the jury.

The defendant is correct in arguing that the above arguments concerned facts not before the jury. The district attorney’s statements related to evidence adduced during defendant’s motion to suppress outside the jury’s presence. However, we do not find the facts so prejudicial as to require a reversal.

Statements of counsel in argument to the jury must be viewed as in the heat of debate, and such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict. Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981); McQueen v. State, 355 So.2d 407 (Ala.Cr. App.1978). In reviewing allegedly inflam matory questions or remarks by counsel which may result in irreparable prejudice to the accused, no legal standard exists by which to judge the effect of such. Each case must be determined on its own merits with deference given to the issues, parties, and general circumstances of the particular case. Lawson v. State, 377 So.2d 1115 (Ala.Cr.App.), cert. denied, 377 So.2d 1121 (Ala.1979). See also Robinson v. State, 389 So.2d 144 (Ala.Cr.App.), cert. denied, 389 So.2d 151 (Ala.1980); Madison v. State, 55 Ala. App. 634, 318 So.2d 329, cert. denied, 294 Ala. 764, 318 So.2d 337 (1975). The trial judge is in the best position to collect and weigh all of these considerations and great weight should be accorded his determination. Harrison v. State, 340 So.2d 849, (Ala.Cr.App.), cert. denied, 340 So.2d 854 (Ala.1976).

“Where the trial court acts promptly to impress upon the jury that improper statements should not be considered by them in their deliberations, the prejudicial effect of such remarks is removed.” Lawson, supra, at 1117.

In Flint v. State, 370 So.2d 332, 334 (Ala.Cr.App.1979), this court stated:

“To require a reversal on the ground that the prosecutor has made a statement unsupported by the evidence, the objectionable statement must be made (1) as of fact, (2) the fact must be unsupported by any evidence, (3) must be pertinent to the issues, and (4) its natural tendency must be to influence the finding of the jury.”

Here the statements of the prosecutor did not have a natural tendency to influence the finding of the jury.

“It is not every improper remark to which objection is not sustained which will require a reversal. . . . We do not regard the remarks in question as having a natural tendency to influence the jury adversely to the appellant or to have denied him a fair trial under the facts and issues of this case.” (Citations omitted). Flint, supra, at 334.

V

Finally, the defendant contends that the police had no probable cause to stop the vehicle in which he was riding.

On the motion to suppress, the State called the victim as its only witness. Mr. Long testified that between 8:40 P.M. and 9:00 P.M. he was closing his wrecker service in downtown Birmingham and observed a turquoise or greenish colored “sixty model series” Chevrolet or Buick drive slowly in front of his business and around the corner. Moments later, as Long was walking to his car, he was approached from the rear by a black male wearing a tan colored overcoat and a hat and carrying a sawed-off shotgun. The robber told Long that he was being robbed and took his watch, diamond ring and billfold. He immediately fled around the same corner where the car had turned shortly before the robbery. Mr. Long testified that the area was well lit. The robber was so close to Mr. Long that he could have touched him. The whole incident took about three minutes.

Mr. Long immediately telephoned the police and gave a description of the car, although he did not know whether it was involved in the robbery. While waiting for the police to arrive he overheard on his police scanner the dispatch concerning the description of the car. The description stated the color as “dark”. Long called the police station and added the specific color he had seen which was turquoise. He described the car as “greenish” in color.

About five minutes after the robbery, Birmingham Police Officer Joe Johnson and his partner arrived on the scene. Mr. Long gave them a description of the robber. Long could not testify as to whether it was broadcast over the police radio. He did not think that he had given such a description when he had earlier called the police to report the crime.

Approximately twenty minutes after the robbery, and about ten minutes after Officer Johnson arrived on the scene, Mr. Long was taken a short distance from the scene of the robbery to the scene of the defendant’s arrest. Without hesitation, Mr. Long identified the automobile stopped as the one he had seen only moments before the robbery. He could not identify one of the occupants of the vehicle. However, after having the defendant put on a tan colored overcoat and hat, he positively identified him as the robber.

No other evidence was offered by the State to support the stopping of the vehicle.

During his direct examination, Long testified that the vehicle he had seen prior to the robbery contained two occupants. He stated that the color of the ear initially attracted his attention as well as it being the only car on the street at that time.

At the scene of the defendant’s arrest, Long identified the shotgun as the one used in the robbery. He subsequently identified his watch and ring and valued them at $65.00 and $600.00, respectively.

During the defendant’s cross examination of Officer Johnson, he testified that the reason he and Long left the scene of the robbery was due to his hearing a police dispatch that “some units reported) seeing a car that fit our description.” He drove Long to the scene of the arrest and arrived as the vehicle was being stopped. He described the vehicle as a light blue four door Buick. Officer Johnson did not stop the vehicle.

Initially, we note that this case is not analogous to Paschal v. State, 365 So.2d 672 (Ala.Cr.App.), reversed, 365 So.2d 681 (Ala.1981). In Paschal, there was no evidence of the underlying circumstances which gave rise to the police dispatch. Thus, in Paschal the police dispatch alone was insufficient to meet the requirement of probable cause to search the defendant’s vehicle.

In the instant case, the deficiency in Paschal is fully met by the testimony of Mr. Long. Consequently, the arresting officer could rely solely upon the police dispatch in stopping the vehicle as there was sufficient probable cause to support it. Parker v. State, 397 So.2d 199 (Ala.Cr.App.), cert. denied, 397 So.2d 203 (Ala.1981); Robinson v. State, 361 So.2d 379 (AIa.Cr.App.), cert. denied, 361 So.2d 383 (Ala.1978); Bagony v. City of Birmingham, 371 So.2d 80 (Ala.Cr.App.1979); Owens v. State, 51 Ala.App. 50, 282 So.2d 402, cert. denied, 291 Ala. 794, 282 So.2d 417 (1973).

Therefore, the initial question is on what basis and with what knowledge or information did the arresting officer stop the vehicle in which the defendant was riding? There is no doubt that if the arresting officer relied upon the police dispatch, then he had sufficient probable cause in stopping the vehicle. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959).

While an officer may rely upon a police radio broadcast to stop and arrest a suspect, the subsequent determination by any court as to whether probable cause existed must turn on all the underlying circumstances giving rise to the police dispatch. Owens, supra. “Although a police officer is entitled to assume information dispatched over their official radio is supported by probable cause; however, where the contrary turns out to be true, an otherwise illegal arrest cannot be made legal merely because the officer was acting upon a radio dispatch.” Cook v. State, 377 So.2d 162, 163 (Ala.Cr.App.1979); Paschal, supra.

The record sheds no light on what “facts and circumstances within the arresting officer’s knowledge” were relied upon to stop the vehicle. The arresting officer was not called by the State as a witness. Thus, we can only speculate as the reason why he stopped the vehicle. While the implication is present, it cannot be assumed, in establishing probable cause, that the arresting officer stopped the defendant on the basis of a radio dispatch.

In addition, the record is void as to the nature and content of the police dispatch other than Mr. Long’s testimony indicating that it initially reported the incorrect color of the vehicle. The record does not indicate with specificity whether the stopping of the vehicle occurred after Long had called in the correct color of the vehicle, although an inference in support of such a conclusion is possible.

Consequently, a wide gap in the State’s proof exists. While the police dispatch could have been relied upon by the arresting officer in stopping the vehicle, this fact must be established at trial. Without such, the trial court could not properly determine the legality of the stop and arrest as there is nothing to show why the stop and arrest occurred.

We remand this cause to the circuit court in order that a hearing be held to determine the facts and circumstances within the arresting officer’s knowledge at the time he stopped the vehicle in which the defendant was riding. The record and transcript thereof, along with the findings of the trial court, should be sent to this Court for review.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

The record submitted on Return to Remand clearly shows that the defendant’s automobile was stopped by the police on the basis of a radio dispatch which was in turn based on information provided by the victim. Added to the facts previously stated in this opinion, the record now supports the finding of probable cause made by the trial judge.

The judgment of the circuit court is affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.


text:
    Terry HAMMES v. STATE.
    4 Div. 961.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied July 27, 1982.

      L. Merrill Shirley, Elba, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Rape in the second degree; sentence: ten years’ imprisonment.

The fourteen-year-old prosecutrix testified she was awakened by her father, the appellant, at 6:00 a. m. on the morning of February 14,1981. He directed her to go to his bedroom, and then he went to look to make sure that her step-mother had departed for work and that the door was locked. Appellant returned to the bedroom and instructed the prosecutrix to undress and get into his bed. After a few minutes, he pulled down his underwear and made the prosecutrix sit on top of him. He then proceeded to have sexual intercourse with the prosecutrix, after which he instructed the prosecutrix to take a shower. The pros-ecutrix testified this was only one incident in a long history of sexual abuse which began when she was only seven years old, after her mother and appellant divorced.

Dr. Andy Kirk testified he examined the prosecutrix on February 17, 1981. His examination revealed that the prosecutrix’s vaginal opening was consistent with that of a sexually mature woman who had repeated sexual intercourse, rather than with that of a fourteen year old girl. He also observed that the prosecutrix’s hymen had been destroyed, indicating that she had been sexually active.

The appellant testified in his own behalf and also presented corroborating witnesses who refuted the chronological sequence of events testified to by the prosecutrix. He denied ever having sexually abused his daughter.

The sufficiency of the evidence is not raised and we will detail only that evidence necessary to determine the issues raised.

I

The record reflects the following occurred during the direct examination by the State of Dr. Kirk:

“Q Now, prior to your examination did you elicit what we know as a history from this patient?
“A I did obtain a history both from the patient and the social worker together. “MR. McCABE: Your Honor, we would object to anything that he obtained from the patient or the social worker. As far as his findings that’s fine. But anything that they would say would be hearsay we would say.
“THE COURT: Overruled.
“MR. McCABE: We would respectfully except.
“Q What history did [the prosecutrix] present to you at that time?
“A At the time of her presentation she was at that time fourteen years old. And she indicated to me that she had had sexual abuse or intercourse that had been going on since the age of eleven.
“Q Did she indicate with or by whom? “A This was from her father.
“Q What other history did she give you in terms of her medical—
“A She gave a history that she had been to a physician in a nearby clinic who had placed her on oral contraceptives. He did not at the time do a complete exam. She was having some problem with her menstrual period and was concerned about the possibility of pregnancy or some difficulty with her period — with the pills.”

Appellant alleges it was improper for the doctor to testify as to who was responsible for the prosecutrix’s sexually mature condition. However, we point out that appellant’s objection was not directed to that portion of the testimony in which the appellant was identified as the source of the condition. There was no error in allowing the doctor to merely testify that he received a history from the prosecutrix, so as to allow him to show the basis of his opinion. Frazier v. State, 366 So.2d 360 (Ala.Crim.App.1978).

A timely objection, stating specific grounds, must be made to the introduction of the evidence. As well, a ruling on the objection must be made by the trial court. Pickett v. State, 391 So.2d 154 (Ala.Crim.App.1980); Gibbs v. State, 342 So.2d 448 (Ala.Crim.App.1977). Because there was no objection, no ruling by the trial court, and no motion to exclude, there is no error preserved for our review.

II

Appellant argues that the introduction of testimony by the prosecutrix concerning her father’s prior sexual misconduct toward her created error requiring reversal of his conviction. We note first that the initial testimony by the prosecutrix that her father had forced relations upon her since she was seven years old came in without objection, and hence appellant preserved no error for us to review as to the substance of that testimony. Pickett, supra. The later introduction of further details of appellant’s sexual conduct which were objected to created no error because in a carnal knowledge case the prosecution may introduce proof of sexual relations between the accused and the prosecutrix which occurred both before and after the act on which the prosecution is based. Dea-son v. State, 363 So.2d 1001 (Ala.1978). There is a remoteness limitation placed upon this rule. However, it appears to be liberally applied, as in the three-year time span in Deason, supra. In the instant case, while the evidence of prior misconduct went back some seven years, the testimony illustrated a continuing pattern from that time until February 14, 1981, with repetition of the misconduct occurring “almost daily” at points during the seven-year period.

Where the evidence of the misconduct is admissible, as here, the State may prove in meticulous detail the manner in which a defendant committed the misconduct. Weatherford v. State, 369 So.2d 863 (Ala.Crim.App.) 369 So.2d 873 (Ala.1979), cert. denied, 444 U.S. 867, 100 S.Ct. 141, 62 L.Ed.2d 91 (1979). Therefore, we find no error in the admission of the prosecutrix’s testimony.

Ill

During the appellant’s presentation of his case-in-chief, his counsel called the prosecutrix to the stand to testify. The court reporter indicates in the record that the prosecutrix was called as a witness by the defendant. Appellant’s counsel did not indicate for what purpose he called the prosecutrix. Appellant’s counsel did make the following statement, however, at the close of the prosecutrix’s testimony during the presentation of the State’s case:

“MR. McCABE: That’s all at this time.
“MR. HOOKS: That’s all at this time. “MR. McCABE: Subject to recall, please, Your Honor.
“THE COURT: You mean to recall her as your witness?
“MR. McCABE: Perhaps later, Your Honor.”

Additionally, during the argument before the judge concerning appellant’s having called the prosecutrix to testify, the following appears:

“He just called this witness as his own witness. He asked her was her stepmother nosey and she said no. Now he can’t impeach her. She’s his own witness.
“THE COURT: David, let the record show that we are out of the hearing of the jury. I don’t think the letter can come in.
“MR. McCABE: Okay. We respectfully except. That’s the only questions we have of this witness, Your Honor.”

We note appellant’s counsel did not rebut the prosecution’s argument that he had called the prosecutrix as his own witness.

Appellant now contends the trial court erred in refusing to allow him to introduce a letter written by the prosecutrix, for the purpose of impeaching her testimony. This issue has been thoroughly discussed in our recent case of Walker v. State, 416 So.2d 1083 (Ala.Cr.App.1982). We find under the principles discussed in Walker, supra, appellant called the prosecutrix as his own witness. Absent a clear showing of surprise or of an intent to refresh recollection by the introduction of the letter, it was not proper for appellant to impeach his own witness, and the trial court did not err in refusing to allow him to do so. Walker, supra. Appellant’s discussion of the rules of cross examination in his brief are inapplicable to the instant case as we view the record in light of the above holding.

IV

Appellant contends the trial court erred in allowing the State to introduce the testimony of witness Catherine Hanson to impeach the prior testimony of witness Cathlene Hammes without first laying a proper predicate in the formation of the question posed to witness Hanson. The record reveals the following:

“Q State your name for the Court, please, ma’am?
“A Catherine Hanson.
“Q By whom are you employed, Miss Hanson and in what capacity?
“A Coffee County Department of Pensions and Security.
“Q Were you so employed on February 17th of 1981?
“A Yes, sir.
“Q On that date did you have the occasion to become involved in a case of .. . [prosecutrix].
“A Yes, I did.
“Q And subsequently on that date did you have occasion to be present with [the prosecutrix] at the Department of Youth Services down at the Enterprise Police Station?
“A Yes, sir. I did.
“Q Did you have occasion on that same day to see Mrs. Cathy Hammes, stepmother?
“A Yes.
“Q Do you recall approximately what time of the day that was?
“A Approximately 5:00 o’clock in the afternoon.
“Q And I assume that Mrs. Hammes’ occasion for coming there was the fact that she had been notified that your agency had taken custody of the child, is that correct?
“A That’s correct.
“Q Once she arrived did she make any statements — was she advised of what the allegation was against her husband at that time?
“A Yes, sir. She was.
“Q What statements if any did she make to you at that time on February 17, 1981, in the DYS Office with reference to her beliefs concerning this defendant’s involvement in this case and an affair with a Henrietta Williamson, a seventeen year old girl.
“MR. McCABE: Judge, I’m going to object. He’s leading her.
“MR. HOOKS: Judge, I—
“MR. McCABE: Rephrase it.
“MR. HOOKS: No, I don’t want to rephrase the question. The question is this. It’s offered strictly to impeach the testimony of Cathy Hanson and it’s exactly the question I asked her and she denied the conversation took place.
“MR. McCABE: Impeach Cathy Hanson? “MR. HOOKS: I mean Cathy Hammes. The Court is aware of what I’m talking about.
“THE COURT: Overruled.
“MR. McCABE: Respectfully except.
“Q Did you have a conversation with the defendant’s wife at that time about that?
“A Yes, sir. I did.
“Q Cathy, what did she tell you in that regard?
“A Mrs. Hammes said that she had not known about the abuse but she could see somewhat how it could have happened. She said that because she had suspected her husband of having affairs with women in the past and she had some suspicion but no proof that he was having an affair with a seventeen-year-old girl named Henrietta.
“Q Named Henrietta. Would that be Henrietta Williamson?
“A She didn’t name a last name.”

The record indicates that appellant’s objection to Ms. Hanson’s testimony was on the grounds of a leading question, even though the prosecution made it clear that its purpose was to impeach Ms. Hammes’ prior testimony. Specific grounds of objection waive all grounds not specified, and the trial court will not be put in error on grounds not assigned. Franklin v. State, 357 So.2d 364 (Ala.Cr.App.), cert. denied, 357 So.2d 368 (Ala.1978); Johnson v. State, 364 So.2d 1187 (Ala.Cr.App.), cert. denied, 364 So.2d 1190 (Ala.1978). Additionally, the witness did not answer the question to which appellant objected. Had the question been improper, it was harmless in the absence of an answer. Ward v. State, 356 So.2d 238 (Ala.Cr.App.), cert. denied, 356 So.2d 242 (1978).

V

Appellant’s final contention is that the trial court erred in refusing to read the testimony of certain witnesses, upon the jury’s request, after the jury began deliberations. We point out that appellant’s counsel objected to the jury’s request, unless the entire trial was read back to the jury. The decision to allow the jury to rehear testimony is a matter addressed to the sound discretion of the trial court. Cooper v. State, 340 So.2d 91 (Ala.Cr.App.1976); Jenkins v. State, 51 Ala.App. 521, 287 So.2d 233 (1973). There was no abuse of the trial court’s discretion, in our view, in honoring appellant’s all or none request by refusing to read any of the testimony to the jury.

The judgment of the Coffee Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Lonnie HOWARD v. STATE.
    5 Div. 626.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied July 27, 1982.

      Cecil M. Matthews, Goodwater, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

Murder; twenty years.

On the morning of April 22, 1981, appellant and his wife stopped at a store and gasoline station operated by the deceased, Jeffie “Dink” Smith. Appellant and Smith began arguing and a fight broke out, during which Smith struck appellant and knocked him down. As appellant was trying to get up, Smith cut him with a knife. The evidence was in conflict regarding whether appellant reached in his pocket before Smith pulled the knife. Smith cut the appellant above the eye, on his back and on his stomach, and then put the knife to appellant’s neck, at which time a bystander yelled “Dink, don’t kill him.”

At that point, appellant called to his wife and told her to get his rifle from the truck. She brought the gun to her husband and he shot Smith. One witness testified that before appellant fired the shot, he and Smith had separated, and, when appellant pulled the trigger, he was ten feet away from the deceased. In addition, the State’s forensic expert testified that the absence of gunshot residue on the victim’s body indicated that the shot was not close-range.

After the shooting appellant left the scene. He was apprehended some three hours later when his truck overturned while he was attempting to flee from law enforcement officials. At that time he was found with several guns, including the alleged murder weapon. The appellant testified in his own behalf that he “blacked out” during the fight with Dink Smith and he could remember only part of what happened.

I

Appellant contends that the trial court erred by denying his motion for a new trial. He claims that, had he known of certain information concealed by one of the prospective jurors, he would have challenged the venireman for cause.

In brief, appellant maintains that during voir dire his counsel asked the members of the jury panel whether they were acquainted with Tallapoosa Deputy Sheriff David Berry, a witness for the State. Appellant insists that one of the veniremen who failed to respond to this question answered, in a subsequent trial, that he knew Deputy Berry and had worked with him as an auxiliary deputy sheriff.

Neither the voir dire question in the present case, nor the fact of the venireman’s participation in another proceeding, nor his answer to a question there appears in the record. We have before us only the assertions of counsel in the motion for new trial. There is no record of evidence presented on the motion. Compare Wallis v. State, 38 Ala.App. 359, 84 So.2d 788 (1955). Consequently, we have nothing to review. See James v. State, 246 Ala. 617, 21 So.2d 847 (1945).

II

To the charge in the indictment appellant entered pleas of not guilty and not guilty by reason of insanity. During opening argument appellant’s counsel referred to the insanity plea and to certain evidence which he claimed would indicate that appellant did not know what he was doing at the time of the shooting. Later, although the defense presented no direct evidence, expert or otherwise, on the issue of insanity, there was some testimony pointing to appellant’s irrational behavior on the day of the shooting.

After the defense rested the State called Dr. Thomas L. Smith, a psychiatrist at Bryce Hospital, in rebuttal. Immediately after the witness was sworn, and before the State began to examine him, the following occurred out of the hearing of the jury:

“THE COURT: The defendant withdraws his plea of insanity and the court is not going to instruct on the insanity if you are seeking to rebut the plea of insanity by introducing the testimony of the doctor concerning his insanity. The defendant objects to that.
“MR. CLAYTON: [Defense counsel] Yes, we object strenuously, there is no insanity plea. There’s been no evidence of insanity presented, and no expert witness on the part of the defense put on. We feel like it is not subject to rebuttal by an expert witness on his sanity or insanity.
“MR. GAVIN: [Assistant district attorney] Mr. Clayton in his opening statement stated that his primary defense would be insanity.
“MR. CLAYTON: Didn’t say that. Go ahead.
“MR. GAVIN: Throughout the entire trial there has been testimony concerning the erratic and eccentric acts by the defendant. This defendant has testified to all this grandeous ideas [sic] that he has. “THE COURT: May be true.
“MR. GAVIN: And at this point we’re going to present the rebuttal testimony of Dr. Smith who was ordered to examine the defendant pursuant to a court order issued by this court in Tallapoosa County. “MR. YOUNG: [District Attorney] Your Honor, if he ever told that jury that, that is going to be an issue in the trial, we’re entitled to put that on.
“MR. CLAYTON: Your Honor, I strenuously disagree, and I’d like a ruling from the court.
“THE COURT: Overruled.”

Appellant claims that it was error to allow Dr. Smith to testify in rebuttal that appellant was sane after the insanity plea had been withdrawn. He also insists that the physician’s testimony violated the psychiatrist-client privilege outlined in § 34-26-2, Code of Alabama 1975, as amended.

Although the psychiatrist’s testimony was unnecessary in view of the withdrawn insanity plea, we do not believe appellant was prejudiced by evidence that he was sane. Presumably, the withdrawal of the plea was an acknowledgment that appellant was sane, and we do not find that he was harmed by testimony to that effect. A.R.A.P. 45.

Appellant’s objection based on the confidential nature of the psychiatrist-client privilege came too late. The witness had already answered three questions about what appellant told him and there was no motion to exclude. See Asbill v. State, 390 So.2d 1168 (Ala.Cr.App.), cert. denied, 390 So.2d 1176 (Ala.1980).

III

Appellant maintains that the trial judge erred by allowing evidence of appellant’s flight and attempt to resist arrest three hours after the incident in question and six miles away from the scene. He claims that the evidence was not part of the res gestae and too remote to have any bearing on the issues in the case.

Evidence indicating a defendant’s consciousness of guilt is admissible without regard to its being part of the res gestae. See Stewart v. State, 398 So.2d 376 (Ala.1981). An accused’s actions at the time of his apprehension, if introduced to show his attempt to avoid capture, are relevant to prove his consciousness of guilt. See Sparks v. State, 376 So.2d 834 (Ala.Cr.App.1979).

The prosecution is generally allowed great latitude in proving the facts surrounding a defendant’s flight, C. Gamble, McElroy’s Alabama Evidence, § 190.-01(1) (3d ed. 1977). In our judgment, the circumstances of appellant’s apprehension three hours and six miles away from the crime scene were not too remote, see Gamble, supra at 190.01(4), reflected his consciousness of guilt, and were properly admitted.

IV

Appellant argues that the jury’s verdict was contrary to the weight of the evidence. It was undisputed that appellant shot and killed the deceased. The only contested issue was self-defense. Our examination of the record indicates that, while appellant may have been in peril justifying the use of force, there was a conflict in the testimony regarding whether he was free from fault or unable to retreat. Under these circumstances, the jury was justified in concluding that the killing did not fall within the legal definition of self-defense. Starling v. State, 398 So.2d 337 (Ala.Cr.App.), cert. denied, 398 So.2d 342 (Ala.1981). Conflicting evidence always presents a jury question and, provided the State establishes a prima facie case, this court will not disturb the verdict. McBryar v. State, 368 So.2d 568, cert. denied, 368 So.2d 575 (Ala.1979).

V

Appellant complains of error in the refusal of three of his written requested charges. At the end of the court’s oral instructions to the jury, however, appellant announced “satisfied.” There is no longer an “automatic exception” to the refusal of written charges, and counsel must specifically object to the court’s failure to give them in order to preserve the matter for review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981).

The record is free from error and the judgment of conviction by the Tallapoosa Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Charles BRACKIN v. STATE.
    4 Div. 984.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.

      Robert H. Brogden of Brogden & Quat-tlebaum, Ozark, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of Mary Judah, the mother of his child. Alabama Code 1975, Section 13A-6-2 (Amended 1977). Sentence was life imprisonment.

I

The defendant argues that the trial judge erred in instructing the jury on the plea of not guilty by reason of insanity. In his charge, the judge stated:

“In making the determination of whether the Defendant was at the time of the alleged commission of the offense charged not responsible by reason of mental disease or defect, the Code provides guidance to you in this respect. The term mental disease or defect does not include an abnormality of the mind which is only manifested by repeated criminal antisocial, immoral, or mean conduct. ” (emphasis added)

Defense counsel objected to the phrase “immoral or mean conduct:” “that is erroneous, it’s misleading, and that is not a correct statement of the law. It is also words used by the prosecutors in their closing argument.”

Section 13A-3-l(b) provides: “ ‘Mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” The purpose of this section is to deny the defense of insanity to “social psychopaths, i.e., habitual offenders without other symptoms.” Commentary to Section 13A-3-1.

Although we do not approve of the instructions as given, we find no error in the trial judge’s charge that the jury should not consider only “immoral or mean”, conduct as included within the term “mental disease or defect.”

Legal insanity does not embrace every kind of mental disease and disorder that renders a person not responsible for his acts. Waters v. State, 22 Ala.App. 644, 646, 119 So. 248 (1928). “Emotional insanity or moral obliquity will not sustain plea of insanity.” Rowe v. State, 243 Ala. 618, 624, 11 So.2d 749 (1943). Moral obliquity “has no recognition in the law of this state as an excuse for crime.” Hall v. State, 208 Ala. 199, 200, 94 So. 59 (1922). “(T)hat which is sometimes called ‘moral’, or ‘emotional insanity’, savors too much of a seared conscience or atrocious wickedness to be entertained as a legal defense.” Boswell v. State, 63 Ala. 307, 321 (1879). “Moral idiocy” does not qualify under the defense of insanity. Clayton v. State, 45 Ala.App. 127, 131, 226 So.2d 671 (1969).

“Where by ‘moral insanity’ is meant a mere mental depravity, or moral insanity, so-called, which results not from any disease of the mind, but from a perverted condition of the moral system, where the person is mentally sane, this does not exempt one from responsibility for crimes committed under its influence.” 22 C.J.S. Criminal Law, Section 63 (1961).

“High temper, hot blood, and passion, whether of an amorous nature, or arising from anger, hatred, jealousy, desire for revenge, or other emotions, will not excuse the commission of crime.” 22 C.J.S. Criminal Law, Section 63. “Unusual or ‘weird’ behavior alone cannot be equated with mental incompetency or insanity.” Carey v. State, 361 So.2d 1176, 1179 (Ala.Cr.App. 1978), cert. denied, 374 So.2d 332 (Ala.1979).

“The trial court has the right to read to the trial jury in its charge the law and the statutes of Alabama relative to the alleged crime.” Green v. State, 42 Ala.App. 439, 447, 167 So.2d 694, cert. denied, 277 Ala. 698, 167 So.2d 701 (1964). See also Cassell v. State, 55 Ala.App. 502, 510, 317 So.2d 348 (1975); Gavin v. State, 52 Ala.App. 469, 470, 294 So.2d 169, cert. denied, 292 Ala. 722, 294 So.2d 170 (1974). While the better practice is to use the identical language of the statute, the judge need not precisely follow the statutory language in reading the law to the jury. Higdon v. State, 367 So.2d 991, 994 (Ala.Cr.App.1979).

“Unless prohibited by statute, it is within the discretion of the court, in instructing the jury, to read or to quote a statute or a part thereof which is relevant and applicable to the case. Where a statute is referred to for the applicable principles of law, it is better practice to use its exact language, but this need not be done if the charge covers the subject matter of the statute in a substantial manner, and it is within the discretion of the court whether to read or state the substance of the statute.” 23A C.J.S. Criminal Law, Section 1192 (1961).

However, the trial judge has “no power to legislate and read into a statute something omitted therefrom by the legislature, as by adding to an instruction, copying a statute in part, words not in the statute.” 23A C.J.S., supra.

“It is not for the courts to say what the Legislature should have done, or what was its intention, unless such intention is contained in the legislative language. The language may be explained, it cannot be detracted from or added to. The office of interpretation is not to improve the Statute, it is to expound it; and the court knows nothing of the intention of an Act, except from the words in which it is expressed, applied to the facts existing at the time.” Gibbs v. State, 29 Ala.App. 113, 114-15, 192 So. 514 (1939), cert. denied, 238 Ala. 592, 192 So. 515 (1940).

A trial judge may explain to the jury the legal terms involved in his instructions where his explanation does not qualify, limit, or modify them. Harris v. State, 24 Ala.App. 59, 61, 129 So. 795 (1930); Hale v. State, 10 Ala.App. 22, 30, 64 So. 530 (1914). “(I)t is the duty of the court to see to it that the jury are not misled by any charge which is given, but so to simplify and explain the charges which are given, by additional instructions, as to prevent misunderstanding or a misapplication of them.” Morris v. State, 25 Ala. 57, 58 (1854). Thus, in Frazer v. State, 159 Ala. 1, 3, 49 So. 245 (1909), our Supreme Court held that there was no error “in the court’s reading to the jury the section of the Criminal Code under which the defendant was prosecuted, nor in explaining to the jury that the word ‘writing’ in the code included printing.”

By statute, the term mental disease or defect does not include an abnormality manifested only by “repeated criminal or otherwise antisocial conduct.” Section 13A-3-l(b). Although “immoral or mean conduct” is not mentioned in the statute, by definition it can be included within the term “otherwise antisocial conduct.”

“antisocial ... a: tending to interrupt or destroy social intercourse, b: hostile to the well-being of society, c: characterized by markedly deviating behavior. 2: averse to the society of others or to social intercourse...”
Webster’s Third International Dictionary 96 (1971). “immoral .. . .: not moral: inconsistent with purity or good morals: contrary to conscience or moral law: wicked, licentious ...: opposed to, critical of, or in conflict with generally or traditionally held moral principles.... ”
Webster’s at 1130.
“mean .... 7a: characterized by petty selfishness or malice: contemptibly disobliging or unkind. ...”
Webster’s at 1398.

The defendant does not assert that a mental disease or defect would include an abnormality manifested only by repeated “mean or immoral conduct.” Even if the evidence showed that the defendant’s life had been characterized by repeated or continuous immoral and mean conduct, such proof alone would not have established a defense of insanity. By adopting Section 13A-3-l(b), the legislature has “deliberately and positively excluded antisocial conduct from the statute.” Simpson v. State, 62 Wis.2d 605, 215 N.W.2d 435, 439 (1974).

Reviewing the trial judge’s charge to the jury as a whole and in light of the contentions and evidence, we find no error. The charge was expressed in plain language that is susceptible of ordinary understanding and should not be subjected to “hypercriticism”. Addington v. State, 16 Ala.App. 10, 19, 74 So. 846 (1916).

II

At trial, the judge properly sustained the State’s objection and refused to allow defense witness, psychologist Karl Kirkland, to testify to the results of neuro-psychological tests administered by another psychologist at Dr. Kirkland’s request. Dr. Kirkland was not present when the tests were given the defendant but had talked to the other psychologist over the telephone and had been sent the results of the tests. In a hearing outside the presence of the jury to determine the admissibility of the test results, Dr. Kirkland testified that the results would confirm what his “general psychological exam had evidenced.”

Dr. Kirkland’s testimony concerning the results of tests conducted by another constituted hearsay. “(W)itnesses, including medical witnesses, cannot testify to facts of which their knowledge is derived from the unsworn statements of others.” Hurst v. State, 356 So.2d 1224, 1236 (Ala.Cr.App. 1978); Cordle v. State, 53 Ala.App. 148, 156, 298 So.2d 77, cert. denied, 292 Ala. 717, 298 So.2d 85 (1974). “(E)xpert witnesses, even physicians, cannot testify to the opinions of others in giving their opinions.” Carroll v. State, 370 So.2d 749, 758 (Ala.Cr.App.), cert. denied, 370 So.2d 761 (Ala.1979).

“The traditional rule in this country has been that an expert, in giving his opinion, cannot rely upon the opinion of others. The basis for this rule of exclusion has been that such testimony is based upon what others have said, and, consequently, constitutes hearsay. In light of this rule a physician-witness’ testimony to his opinion with respect to the condition of his patient may not be supported by testimony by such witness that certain opinions or reports, including reports of radiologists, concerning the patient had been made to him by other physicians.” C. Gamble, McElroy’s Alabama Evidence, Section 110.01(3) (3rd ed. 1977).

There is a trend toward the admission of an expert’s opinion based partly on medical, psychological, or hospital reports not in evidence if the reports are of a type customarily relied upon by the expert in the practice of his profession. Anno. 55 A.L.R.3d 551 (1974). However, this trend has not been followed by the courts of this state. Wilbanks v. Hartselle Hospital, Inc., 334 So.2d 870 (Ala.1976); Prescott v. Martin, 331 So.2d 240, 244 (Ala.1976); Central of Georgia Railway Company v. Reeves, 288 Ala. 121, 257 So.2d 839 (1972); Price v. Lowe, 263 Ala. 410, 82 So.2d 606 (1955). This is in accord with the general and traditional rule 31 Am.Jur.2d Expert And Opinion Evidence, Section 86 (1967). Compare Braswell v. State, 371 So.2d 992, 995-97 (Ala.Cr.App. 1979), where the State was allowed to cross examine the defendant’s expert witness and introduce the defendant’s medical records from a state hospital after the expert had testified on direct examination that he had reviewed the records and specifically stated that they did not influence him one way or the other.

Quoting from Weihofen, Mental Disorder as a Criminal Defense (1954), p. 277, our Supreme Court has noted:

“ ‘A qualified expert may testify to his opinion concerning the defendant’s mental condition based either upon (1) personal examination of the defendant made by the witness, or (2) the testimony in the case, if he has been in court and heard it all. (3) He may also give his opinion upon hypothetical cases propounded by counsel.’ ” Smith v. State, 263 Ala. 1, 3, 82 So.2d 296 (1955).

“Although an expert witness may not express an opinion based on the opinion of another expert, he may base his opinion upon the facts testified to by another expert.” Johnson v. State, 378 So.2d 1164, 1170 (Ala.Cr.App.), cert. quashed, 378 So.2d 1173 (Ala.1979).

The source of our decision on this issue is the principle that insanity cannot be proven by hearsay evidence. Dickinson v. State, 228 Ala. 28, 29-30, 152 So. 29 (1934); Howard v. State, 347 So.2d 574, 575 (Ala.Cr.App.1977).

We have reviewed the errors raised on appeal and find that the judgment of the circuit court is due to be affirmed.

AFFIRMED.

All Judges concur.


author: BARRON, Judge.

text:
    Joe PINKERTON v. STATE.
    1 Div. 341.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.

      Charles N. McKnight of McKnight & Noonan, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

Joe Pinkerton was convicted of the sale of cocaine to an undercover agent of the Alabama Alcoholic Beverage Control Board, and punishment was fixed by the jury at a fine of $25,000.00, to which was added a 15-year term of imprisonment by the trial court.

This is the retrial of a case which was reversed and remanded by this court on November 25,1980. See Pinkerton v. State, 395 So.2d 1080, 1081 (Ala.Crim.App.1980), cert. denied, 895 So.2d 1090 (Ala.1981).

The facts are fully set out in our prior opinion and no useful purpose would be served by detailing them again.

Only one issue is presented for review, the qualification of the State’s expert witness, Alilee Pillman.

Witness Pillman testified that she is a toxicologist, and that she has been employed as director of the Mobile Police Department Crime Laboratory since its inception in October of 1975. She had been previously employed by the State Department of Toxicology and Criminal Investigation for 24 years. She further testified that she had taken numerous chemistry courses and was graduated from the University of South Alabama with a major in Criminal Justice Administration. Witness Pillman also testified that she had been qualified as an expert in toxicology in the Circuit Court of Mobile County more than 100 times.

Based on the above testimony, the trial court qualified Witness Pillman as an expert in toxicology.

Whether a witness is shown to possess the requisite qualifications to be called as an expert is a preliminary question largely within the discretion of the trial court. The criterion for admission of expert testimony is that the witness, by study, practice, experience or observation as to the particular subject, has acquired a knowledge beyond that of an ordinary witness. Meade v. State, 390 So.2d 685 (Ala.Crim.App.1980), cert. denied, 390 So.2d 693 (Ala.1980).

Whether a particular witness is an expert is a matter largely within the discretion of the trial court, and this court will not disturb that judgment unless there has been an abuse of that discretion. Johnson v. State, 378 So.2d 1164 (Ala.Crim.App.1979).

We find no abuse of the trial judge’s discretion in allowing witness Pillman to testify as an expert witness.

Accordingly, the judgment of the trial court is due to be, and it hereby is, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Jackie Robinson TATE v. STATE.
    1 Div. 362.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Nicki E. Patterson of Pennington, McCleave & Patterson, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Sentence was life imprisonment. Two issues are presented on appeal.

I

The trial judge granted the State’s challenge for cause of two veniremen who “knew” the defendant and “preferred not to sit in judgment of this defendant on this charge.” By failing to object to this action the defendant cannot avail himself of any alleged error and has preserved nothing for review. Riley v. State, 88 Ala. 193, 7 So. 149 (1889); Luttrell v. State, 357 So.2d 1021 (Ala.Cr.App.1978). The failure to make a timely objection waives the right to question the jury’s qualifications. Durden v. State, 394 So.2d 967 (Ala.Cr.App.), cert. denied, Ex parte Durden, 394 So.2d 977 (Ala.1980).

II

The showup held approximately thirty minutes after the robbery was not so unduly or unnecessarily suggestive as to violate due process and taint the in-court identification of the defendant. A showup, although suggestive by its very nature, is “permitted where conducted promptly after the commission of the crime.” Brazell v. State, 369 So.2d 25, 29 (Ala.Cr.App.1978), cert. denied, 369 So.2d 31 (Ala.1979). The return of a freshly apprehended suspect to the scene of the crime for identification is justified. Cartee v. State, 390 So.2d 1121, 1125 (Ala.Cr.App.), cert. denied, 390 So.2d 1126 (Ala.1980); Donahoo v. State, 371 So.2d 68, 69 (Ala.Cr.App.), cert. denied, 371 So.2d 74 (Ala.1979); Hobbs v. State, 401 So.2d 276 (Ala.Cr.App.1981); Matthews v. State, 401 So.2d 241 (Ala.Cr.App.), cert. denied, 401 So.2d 248 (Ala.1981). “The question is whether under the totality of the circumstances the identification was reliable even though the confrontation procedures may have been suggestive.” Cartee, 390 So.2d at 1124. Under Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the identification procedures in this case were not so suggestive as to create a very substantial likelihood of misidentification. The State established by clear and convincing evidence that the in-court identification, rather than stemming from any suggestive pretrial confrontation, had an independent source. Cartee, 390 So.2d at 1123; Brazell, 369 So.2d at 29. An important fact in this case is that the victim saw the two robbers in his barber shop some thirty minutes before they returned and robbed him.

That the victim was told that the police had captured the “suspects” and was asked to identify the “suspects” did not contaminate the identification procedure. Webber v. State, 376 So.2d 1118, 1126 (Ala.Cr.App.), cert. denied, Ex parte Webber, 376 So.2d 1129 (Ala.1979); Joshua v. State, 372 So.2d 885, 891 (Ala.Cr.App.), cert. denied, Ex parte Joshua, 372 So.2d 891 (Ala.1979); Thomas v. State, 399 So.2d 915, 918 (Ala.Cr.App.1981); Fletcher v. State, 337 So.2d 58, 59 (Ala.Cr.App.1976). A victim or witness has a right to assume that, when asked to make an identification or to view a person, the police have reason to suspect that individual of criminal activity.

We have answered the issues raised by the defendant. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    James Thomas BERRY v. STATE.
    1 Div. 394.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.

      Gary D. Porter, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

This is an appeal from a revocation of probation. Compliance with the requirements of Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), is not questioned.

Berry argues that the trial judge incorrectly considered conduct which did not relate to the specific charges of “failure to report—absconding supervision” and “failure to pay supervision fees.” At trial, defense counsel objected to everything outside of these allegations and charges.

This “extrinsic evidence” of other conduct was material and relevant to the specific charges against Berry. The trial judge stated the significance of the prejudicial but legal information.
“THE COURT: Mr. Berry, it seems that you didn’t like to report to Mrs. Moody because your past was catching up with you. It wasn’t her fault that you had these things—these traffic charges and these aliases against you. The things that you have done, you never wanted to face them.”
* * * * * *
“The point that I was saying, again, is that Mr. Berry didn’t want to report, he stopped reporting on his own because he didn’t like to have to face up to his past.”

A proceeding to revoke probation is not a criminal prosecution and the court is not bound by strict rules of evidence. Armstrong, supra, although hearsay information may not be used to furnish the sole basis of the revocation. Hill v. State, 350 So.2d 716 (Ala.Cr.App.1977); Morrow v. State, 47 Ala.App. 734, 261 So.2d 72 (1972).

The record contains substantial and reasonable evidence that Berry violated the terms of his probation. There is no evidence to support Berry’s allegation that the trial judge abused his discretion in revoking probation and failed to consider any alleged “mitigating factors”.

The judgment of the district court revoking Berry’s probation is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    George MOORE v. STATE.
    3 Div. 525.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.

      Charles M. Allen, II, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The trial court was not in error in denying appellant’s unverified petition for a writ of habeas corpus. Code of Alabama 1975, § 15-21-4 provides in pertinent part:

“Application for a writ of habeas corpus must be made by petition, signed either by the party himself for whose benefit it is intended or by some other person on his behalf, must be verified by the oath of the applicant to the effect that the statements therein contained are true to the best of his knowledge, information and belief ...”

It should be noted perhaps, in justice to the attorney representing appellant, that the petition was a pro se petition.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.