author:
PER CURIAM.
      TYSON, Judge, DeCARLO, Judge.

text:
    Tommy LEWIS v. STATE.
    4 Div. 611.
    Court of Criminal Appeals of Alabama.
    Sept. 4, 1979.
    After Remandment Jan. 22, 1980.

      Warren Rowe of Rowe, Rowe & Sawyer, John C. Dowling, Enterprise, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   PER CURIAM.

The capital felony conviction of the appellant is affirmed but the cause is hereby remanded for resentencing.

The facts of this case are hereinafter set out in a separate opinion by Judge LEIGH CLARK, retired circuit judge serving as a judge of this court under the provisions of the Judicial Article, Amendment No. 328, to the Constitution of Alabama 1901. This court adopts Judge Clark’s opinion as the opinion of the majority with the exception of that portion which holds that this court may reduce the death penalty and, on its own, sentence the appellant to life imprisonment without, parole. (Opinion attached as Appendix)

This court must independently weigh the aggravating and mitigating circumstances in a capital case. Neal v. State, Ala.Cr.App., 372 So.2d 1331 (1979), cert. den. Ala. 372 So.2d 1348 (1979); Rule 45, A.R.A.P. In doing so, we do not substitute our judgment for that of the trial judge any more than we do that of a jury in reviewing the sufficiency of the evidence. Kent v. State, Ala.Cr.App., 367 So.2d 508 (1978).

As pointed out in Judge Clark’s opinion, the death penalty is not sustained by the evidence presented at the hearing on aggravating and mitigating circumstances. However, this court does not have statutory authority to reduce the penalty and resen-tence the appellant itself. That duty is vested in the trial court, § 13-11 — 4, Code of Alabama 1975, subject to our review on appeal. “The judgment of conviction and sentence of death shall be subject to automatic review as now required by law.” § 13-11 — 5, Code of Alabama 1975. [Emphasis supplied].

We additionally point out, as in the companion case of Colley v. State, Ala.Cr.App.; (Ms. Sept. 4, 1979), the findings of fact that the robbery was committed (1) for “pecuniary gain” and (2) that the killing was “unnecessary,” are inappropriate. The first for the reason that it was held to be so by our Supreme Court in Cook v. State, Ala., 369 So.2d 1251 (1978), and the second, because it is not listed as an aggravating circumstance in § 13-11-6. Another sentencing hearing is therefore mandated.

Affirmed in part; Remanded with Directions.

HARRIS, P. J., and DeCARLO, BOOK-OUT and BOWEN, JJ., concur.

TYSON, J., concurs in part, dissents in part.

TYSON, Judge,

concurring in part; dissenting in part.

I agree with my distinguished brothers that this court must weigh independently the aggravating and mitigating circumstances under the Alabama Death Penalty Statute.

I would vote, however, to uphold in full the opinion prepared for this court by Judge LEIGH CLARK, as I believe this court, in an appropriate case, can modify a sentence in a death case only on authority of Hubbard v. State, 290 Ala. 118, 274 So.2d 298 (1973); Hubbard v. State, 290 Ala. 120, 274 So.2d 301 (1973); Lokos v. State, 290 Ala. 122, 274 So.2d 303; Swain v. State, 290 Ala. 123, 274 So.2d 305 (1973).

APPENDIX

LEIGH CLARK, Retired Circuit Judge.

Appellant-defendant was indicted, tried and convicted under the Death Penalty and Life Imprisonment Without Parole Act (Acts of Alabama 1975, No. 213), now contained in Ala.Code 1975, § 13 — 11—1, et seq. He was charged with intentionally killing James O. Counts, Jr., also known as Junior Counts, by shooting him with a pistol, while robbing him. In compliance with § 13-11-2 of the Act, the jury fixed his punishment at death.

Pursuant to § 13-11-3 and § 13-11-4 of the Act, the trial court conducted a hearing “to aid the court to determine whether or not the court will [would] sentence the defendant to death or to life imprisonment without parole” and thereupon, after weighing the aggravating and mitigating circumstances, the court determined that defendant’s punishment should be death, and sentenced him accordingly.

Our review of the record convinces us that the death sentence should be reduced to a sentence to life imprisonment without parole. By reason of such determination, we limit our discussion in the main to considerations bearing materially upon the question of the appropriate alternative punishment, under all the circumstances, for the conviction of defendant for the crime committed.

On the afternoon of July 8, 1977, about 3:20 P.M. James O. Counts, Jr., was robbed and killed at his service station on Highway 84, commonly called the Dothan to Enterprise Highway. He was found soon thereafter lying with his face down behind the counter, in a pool of blood. An autopsy showed that two bullets had entered his back and a third wound from the bullet of a pistol was found in his upper left chest. The cause of his death was determined to have been acute internal hemorrhage subsequent to and originating from multiple gunshot wounds to the body.

There was ample evidence to support the conclusion of the jury that defendant was a participant in the robbery and the intentional killing of Mr. Counts. His fingerprints were found in the store; the pistol that was used in the killing was one that defendant delivered to defendant’s sister, who in turn delivered it to the authorities, after the crime; many other circumstances such as defendant’s presence at significant times at the particular service station, and at places in outlying areas, pointed to him and one Kelly Colley as the persons who had robbed and killed Mr. Counts. In addition, defendant confessed to his participation in the crime but denied actually firing the pistol. He first stated that a third person by the name of Franklin participated in the crime and actually fired the pistol, but the evidence as a whole shows that only two, in addition to the victim, were present at the time of the commission, and that they were defendant and Colley.

Defendant pleaded both not guilty and not guilty by reason of insanity. The record shows that the special defense of not guilty by reason of insanity was chiefly relied upon by defendant. Furthermore, the record shows that from the beginning of the proceedings until the sentence imposed upon defendant, the question of the mental condition of defendant was á matter of ceaseless serious concern, so much so that the trial court, acting pursuant to Ala.Code 1975 § 15-16-21 suspended the trial of defendant until a jury had determined whether he was competent to stand trial. It is to be noted that such a determination is required by said § 15-16-21 if “the trial court shall have reasonable ground to doubt his sanity.” The jury determined that defendant was competent to stand trial.

The evidence as to defendant’s mentality was approximately the same on the hearing as to his mental competency to stand trial as it was on the trial on the issue of his guilt or innocence as raised by his special plea of not guilty by reason of insanity. The testimony from law enforcement personnel on the point, chiefly from those who had participated in the investigation, apprehension or detention of defendant, was to the effect that in their contact with and their observations of, defendant he had appeared to them mentally alert and capable, and with no apparent mental handicap.

On the hearing, attended by all concerned, as to the sentence to be imposed by the court after the verdict of the jury, the State offered the testimony of law enforcement personnel, including some who had not previously testified, who had observed defendant at times between the date of the crime and the pre-sentence hearing. They testified that defendant appeared to them to be alert and responsive. In addition, a detective of the Montgomery Police Department testified that he had known defendant since 1975, a short time prior to the detention and conviction of defendant for the crime of assault with intent to murder, and that defendant “appeared to be very alert.” Upon being asked whether defendant appeared to have any physical or mental incapacity, he replied, “Not to me.” Some of the witnesses testified that defendant was allowed to make, and did make without assistance, phone calls from the jail, including a long distance call after he was convicted in the case now under consideration.

At the conclusion of the testimony offered by the State on the pre-sentence hearing, the following occurred:

“MR. STEPHENS: That’s all for the State.
“THE COURT: You got anything you want to present, Mr. Rowe?
“MR. ROWE: Your Honor, the only thing we would have, we would submit what Dr. George has already put in the record in front of this Court and the defendant’s age, nineteen years old.
“THE COURT: Well, the officer testified that his date of birth was 22 October, ’57.
“MR. STEPHENS: Right.
“THE COURT: Is there any dispute as that being the date of birth?
“MR. ROWE: None that I know of.
“THE COURT: Now, I want to say something to this defendant, because I realize you gentlemen are representing him by appointment. . . . ”

The material omitted from the last quoted portion of the record consists of three pages of a statement by the court to the defendant, a commendable and appropriate statement, directing defendant’s attention to the seriousness and importance of the hearing and of defendant’s being afforded every opportunity to present his side of the pending issue, which ended as follows:

“I’ll ask you this question: Do you under-what I have just stated?
“DEFENDANT LEWIS: Yes, sir.
“THE COURT: Would you like to have a few minutes or any length of time to confer with your lawyers?
“DEFENDANT LEWIS: Yes, sir.
“THE COURT: Please take it.
“Thereupon defendant and his attorneys retired from the courtroom to confer in private and after some time returned. Both he and his counsel said that defendant ‘did not want to take the stand.’ ”

Although defendant offered no evidence on the presentence hearing, it seems that it was distinctly understood, as it should have been, that as to the then pending question, the court would take into consideration not only the evidence presented on the pre-sen-tence hearing, but also the evidence that had been previously presented and all pertinent matters that had theretofore come to the attention of the court. In responding to the statement of counsel for defendant that the court consider the testimony of Dr. George, who had testified for defendant on the main trial and on the hearing to determine defendant’s competency to stand trial, the court said:

“THE COURT: Mr. Rowe, as I understand the whole ball of wax, we consider the whole record. Not only what was offered here but the total scope. Your request that we pay particular attention to whatever Dr. George testified to certainly will be complied with in formulating any judgment. . . . ”

From the beginning of the case until the end, it appeared that defendant relied chiefly upon the testimony of Dr. Fred George, a clinical psychologist practicing his profession in Enterprise. Defendant had requested, but had not obtained, an order of court pursuant to Ala.Code 1975 § 15-16— 22, for the initiation of process aimed toward the appointment of a Commission on Lunacy “with the view of determining the mental condition of such defendant and the existence of any mental disease or defect which would affect his present criminal responsibility or his criminal responsibility at the time of the commission of the crime.” Appellant insists that the court’s denial of defendant’s request or motion in this respect pervades the record to the extent of constituting error requiring a reversal of the judgment. We disagree, but we believe that presentation of such a motion, in the early stages of the case, and some of the evidence on the hearing of the motion, have an important bearing upon any question as to the correctness of our decision. We will attempt further reference thereto in this opinion, but for the time being we merely note the fact, of some significance we think, that at the time of the hearing on the motion looking toward the appointment of a lunacy commission, defendant, an indigent, had not been examined by Dr. George.

Dr. George was the only witness who testified as an expert on the subject of sanity or mental ability. He did so at length at the competency hearing and on the trial as to defendant’s guilt or innocence. He is a Ph.D. in psychology, with a major in clinical psychology from the University of Texas; he attended undergraduate school at the University of Pennsylvania. At the time of his testimony he had been practicing his profession for six years, for the United States Army at Ft. Rucker for four years and thereafter in private practice. He professionally examined defendant on November 21, 1977, a few days only before the hearing as to defendant’s mental competency to stand trial.

According to Dr. George, his professional examination of defendant consisted chiefly of an interview with defendant and two tests that he gave defendant, one the Wechsler Adult Intelligence Scale and the Rorschach Ink Blot test. He testified that based on the clinical interview and the testing, defendant “is retarded and retarded in the level of not being able to think abstractly, not being able to produce concepts. There is also evidence of very poor reality contact and the clinical view is consistent with psychotic behavior also.” He stated emphatically that in his opinion defendant was not “able to help prepare his own defense”; that he was not “mentally capable or mentally competent to stand trial” at that time. When asked whether in his opinion defendant was faking during the interview when the tests were given him, Dr. George said, “My opinion is that it is the valid examination, and I have that on several things.” He further said:

“The Yershock has a number of characteristics that are typical of people who are retarded, and like I said it would be almost impossible for me to imagine that a person with a seventh grade education could know what to give me on Vershock. Number 2, was my observation of his behavior and there were a number of unusual mannerisms, talking to himself, mumbling to himself. I didn’t hear words. Distractability from one thing to another. The disorientation to the times. Not remembering my name. His total disinterest, as would seem to me, a disinterest in what we were doing and indifference to it. It was just an overall impression you get as to the validity or invalidity of it. I suppose I could be fooled, but based on my experience my total evaluation is that it was a valid indicator.
“Are you asking me if I thought he faked it? No. Did I feel like he was trying to give me a snow job? No. He seemed to be pretty disinterested in what was going on around him and pretty much in his own world. I should mention that I saw many people in the Army who were malingering trying to get out and we got relatively good at—
“Q So you are familiar with fakers and malingerers, and in your opinion is this man a faker?
“A No.”

According to the testimony of Dr. George, in referring to the Wechsler test administered to defendant:

“The average score for an IQ test is 100. A score of 65 would put him in the bottom one percent of the population. But, his [defendant’s] score is 45 which would approximately put him in the bottom one-tenth of one percent, which would mean out of a thousand people if we tested them his score would be the lowest or the second lowest or possibly even the third lowest.”

In referring to the Rorschach test, Dr. George testified:

“On this score, his score was twenty-five percent for those responses which just use the shape of the blot and twenty percent for his total score. Now, the score by itself doesn’t mean anything. The twenty-five percent and the Twenty percent. What we do is go to our table compiled by Dr. Exner on different patient groups. On people, non patients— we will say that instead of normal — but, in non patients the average score for the reality testing is either eighty-one percent just using the shapes, and eighty-nine percent using the — I’m sorry. Eighty-one percent for all the responses and eighty-nine percent for just using the shape.”

The witness compared the defendant’s score of twenty-five percent and twenty percent to sociopaths who would score seventy-five percent on all responses and eighty-five percent for “just using shapes.” He also compared defendant’s score with “inpatient schizophrenics,” who he said generally scored fifty-seven percent for all responses and sixty-two percent as to shapes, that defendant’s “scores were in the bottom one percent of hospitalized schizophrenics.” He said that his evaluation of defendant’s “ability to perceive reality, based on his tests is well below that of a typical five and six year old. Even those with behavior problems.”

Dr. George was the only witness called by the defendant on the trial as to his guilt or innocence. The only evidence in the case as to the mental condition of defendant, in addition to the testimony of Dr. George and the law enforcement officers discussed above, was some testimony of defendant’s sister, who testified as a witness for the State as to the pistol turned over to her by defendant after the crime involved. On cross-examination, her testimony was in part as follows:

“Q And you have observed Tommy— how old is Tommy now?
“A Tommy is about twenty.
“Q How many brothers and sisters?
“A There is eight of us in all.
“Q Have any of you ever been to a mental institution?
“A Yeah, I have been to Mt. Vernon and I have got a brother been in there ever since he was nine.
“Q Is he still in that mental institution?
“A He got out when he was twenty-nine.
“Q Is Tommy’s mother still living?
“A No, she has been dead ever since Tommy was about nine or eight.
“Q Have you observed Tommy’s demeanor over the years that you have known him as your brother?
“A Tommy has always been disturbed.
“Q Mrs. Thornton, do you have an opinion yourself as to whether or not Tommy ought to go to seek medical attention? “A It helped me. I think he should have went too.
“Q Do you think he needs medical attention now?
“A Yes, I do.
“Q Have you observed Tommy for nineteen years?
“A Except when he was in the hospital.
“Q Is this a normal position for Tommy?
“A No.
“Q How is Tommy’s normal attitude?
“A Before Momma died he was real nice and talked a lot and stuff like that. Always talked and laughed, but when she died he just.
“Q How old was he when she died?
“A He was about eight or nine.
“Q Has he been kind of like this ever since?
“A Yes, because he put my sister’s hair on fire and do all crazy — he burnt my stomach when I was laying in the bed.
“Q Do you have an opinion whether or not Tommy is crazy?
“A Something is wrong with him. I am definitely sure of that.”

There is some vagueness as to how much schooling defendant had, some of the evidence indicating that he went to or through the seventh grade. His sister testified:

“The teacher put him out of school when he was in about the third or second grade.
“Q Did he go to regular school or was he in a special education class?
“A Special education. I was too. Both of us.”

The evidence indicates that defendant had been living with his father, in Montgomery, prior to the death and robbery of Mr. Counts. The evidence further indicates, although it does not positively show, that defendant’s father was not at the trial and took no action in regard to the case.

Upon allocution upon rendering judgment of conviction and thereafter upon sentencing the defendant, his reply was:

“I ain’t kilt nobody.”

In determining that defendant’s punishment should be death instead of life imprisonment without parole, the court found as follows:

“The capital felony was committed by the nineteen-year-old Tommy Lewis while he was engaged or was an accomplice in the commission of robbery of James O. Counts, Jr., for pecuniary gain.
“The intentional death of James 0. Counts, Jr., was especially heinous, atrocious, and cruel as these terms are understood by ordinary men. The death of James 0. Counts, Jr., was unnecessary.
“Tommy Lewis’ participation in the corpus delicti of the intentional capital felony was with another. Participation by Tommy Lewis was not under duress or domination of any other person. Participation by Tommy Lewis in the capital felony was significant, major and voluntary.
“Tommy Lewis has a significant history of prior criminal activity. He has been heretofore lawfully convicted of a felony involving use of violence to the person of another.
“At the time of trial Tommy Lewis was twenty years of age. The pitiless acts of Tommy Lewis in the intention capital felony were voluntary and with capacity to appreciate the criminality of his motive for unlawful pecuniary gain.
“The age of Tommy Lewis is insufficient to outweigh the aggravating circumstances heretofore found to exist.”

Notwithstanding the obviously careful and conscientious action of the trial court, we are unable to agree with his conclusion that the punishment fixed by the jury under the statute should not have been reduced to life imprisonment without parole. In so deciding we endeavor to accord the trial judge, by reason of his opportunity for observation of the witnesses and the defendant for a long period of time, a point of vantage over appellate judges to determine the particular issue decided. Even so, after due deference to the mentioned factor in favor of the trial court, we cannot thrust aside our own judgment in the matter. It seems clear that the rights of a defendant under the Death Penalty and Life Imprisonment Without Parole Act are not adequately protected if the court on appeal permits itself to become bound by the judgment of the trial court on the issue. We cannot say in this case, as we have said in other cases under the mentioned Act, that it is the opinion of this Court, taking the particular Act in its fullness, and all the circumstances of this case, into consideration, that appellant should be sentenced to death instead of life imprisonment without parole.

As stated by Judge Bowen in his concurring opinion in Neal v. State, Ala.Cr.App., 372 So.2d 1331 (1979):

“The import of Jacobs v. State, 361 So.2d 607 (Ala.Cr.App.1977), affirmed, 361 So.2d 640 (Ala.1978), and Clements v. State, 370 So.2d 708 (Ala.Cr.App.1978), reversed on other grounds, 370 So.2d 723 (1979), is that this Court must independently weigh the aggravating and mitigating circumstances to determine whether they are sufficient to support a sentence of death.”

Weighing heavily with us is the undisputed testimony as to the mentality of appellant. By stating, “undisputed,” we do not mean to imply that there was not a just basis for the verdict of the jury as to defendant’s mental competency to stand trial and the verdict of the jury that said in effect that he was not insane at the time of the commission of the crime. We greatly appreciate the value of the testimony of lay witnesses, as well as testimony of expert witnesses, on an issue as to mental competency or sanity. The weight of each kind of evidence as compared with the other is variable. By reason of the variety of circumstances, lay testimony is weightier at times than expert testimony, and at other times the reverse is true. In- the final analysis, a jury is generally the best judge of the issue, and in this particular case, we do not say that the verdict of the jury, either on the competency hearing or on the guilt or innocence trial, was wrong or unjust. On the post-verdict, pre-sentence hearing, however, the extent of sub-normal mental capacity does not have to measure up to the applicable test necessary to show a lack of sufficient competency to stand trial or a state of insanity that makes one incapable of committing a crime. Two specific mitigating circumstances are important factors and are prescribed by § 13-11-7 of the Death Penalty and Life Imprisonment Without Parole Act. They were not addressed directly by the trial court. They are:

“(2) The capital felony was committed while defendant was under the influence of extreme mental or emotional disturbance; .
(6) [t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired;”

The existence of both of said mitigating circumstances does not necessarily require the reduction of punishment from death to life imprisonment without parole. Such circumstances and other mitigating circumstances must be considered with, and weighed against, aggravating circumstances and the extent of the aggravation of such circumstances.

The sub-normality of defendant’s mind was so great, we think that the fixation of his punishment at death should not be allowed to stand. We are so persuaded by the evidence as a whole. In addition, we note as worthy of comment and consideration some testimony of one of his attorneys:

“Q Mr. Dowling, in response to that, his objections, on the several occasions that we have seen this man, just basic simple questions how many times would you have to ask him where he was born, his date of birth? How long would it take you to get a response to that if you got it?
“A On basic simple questions like when he was born, birth date, things of this nature, you would have to ask him three, four, five times and then he would answer it in an irrational manner.
“Q When we explained to Mr. Lewis what he was charged with and what we were there for how many times did you have to explain that to him?
“A Pour or five times at least.
“Q Have you talked to Mr. Lewis this morning?
“A Yes, I have.
“Q Did you try to explain what we are here for this morning?
“A Approximately five minutes ago we tried to explain to Mr. Lewis what we were doing here today as we have done in the past and he does not understand why he is here or why he is in jail.
“Q Now, Mr. Dowling, were you able to explain to him why we are here this morning?
“A No, sir, I was hot.
“Q Did you explain to him that we are up here to determine whether or not he should be examined or see whether he is sane or insane?
“A We attempted to explain to him, but I don’t think he understands why he is here. I don’t think he has the intellect to understand any of this.”

A point was made by the district attorney to the effect that defendant’s counsel should not have acted both as his counsel and as a witness in his behalf. This is not .for us to decide, but we find no contention by the State, the trial court or here, that tends in any way to discredit the testimony of defendant’s counsel.

We are favored by a record of the argument in full of counsel for the State and counsel for the defendant as they addressed the jury at the conclusion of the trial. We agree with the argument of counsel for the State, and can fully understand the favorable impression it made upon the jury, that the burden of proof as to the issue of insanity on the trial was upon the defendant. We find no insistence on the trial, and none has been made here, to the effect that there was any burden on either party, at the pre-sentence hearing, as to defendant’s mental condition.

It appears that there was no contention by the State that Dr. George was not an able psychologist. In the closing argument of State’s counsel, it was stated:

“Dr. George, there is absolutely no question in my mind is a fine psychologist. I don’t argue with that. I don’t argue with any of their testing devices or vehicles that they use. That is probably called for in some way and I don’t understand it.

If this were a case in which the evidence shows that a crime was committed that demonstrated acumen on the part of the criminal, we would not be as convinced as we are of the low mental score of appellant when tested by any recognized standard. That his mind was innately criminal, we have no doubt; that it was far down the scale of intelligence we are fully convinced. The judgment of conviction should be affirmed, but the sentence should be reduced to life imprisonment without parole.

Contentions of appellant in addition to those discussed above have been considered, but, as to any that have merit, we are of the opinion that a serious problem exists as to whether the questions now raised by the contentions were raised in the trial court. If not a reversal of the judgment would not be precluded if the death sentence were upheld. Ala.Code 1975, § 12-22-241 and authorities there cited. As the death penalty is not upheld by this opinion and judgment we deem it appropriate to forego for the time being determination of other contentions not determined above.

AFTER REMANDMENT

DeCARLO, Judge.

In response to our remandment and in conformity with our opinion in this case, supra, the circuit court of Coffee County (Enterprise Division), conducted another sentencing hearing and re-sentenced the appellant.

The trial court, in compliance with our opinion, supra, made the following written findings:

“STATE OF ALABAMA, )
“Plaintiff )
“TOMMY LEWIS )
“Defendant )
IN THE CIRCUIT COURT OF
COFFEE COUNTY, ALABAMA
ENTERPRISE DIVISION
Case No. CC 77-25
“Tommy Lewis was convicted of robbery when the victim was intentionally killed. The jury fixed the punishment at death. This Court held a sentencing hearing to aid the Court to determine whether or not Lewis would be sentenced to death or to life imprisonment without parole as required by Section 13-11-3, Code 1975. This Court after weighing the aggravating and mitigating circumstances accepted the death penalty as fixed by the jury and sentenced the defendant to death. Section 13-11-4, Code 1975. The judgment of conviction and sentence of death was subject to an automatic appeal to the Alabama Court of Criminal Appeals. The Alabama Court of Criminal Appeals on September 4, 1979, affirmed the capital felony conviction, reversed the sentence of death and remanded the case to this Court with directions for another sentencing hearing by this Court.
“The new sentencing hearing was held on October 4, 1979. The evidence originally submitted in 1977 at the first sentencing hearing was offered with new evidence consisting of testimony of Jerry Scarb-rough and Grady Reeves which is cumulative in nature and scope to the evidence on the first hearing, and four judgments of conviction for second degree burglary and one judgment of conviction for grand larceny obtained on guilty pleas entered by Lewis in Pike County Circuit Court subsequent to the sentence of death in 1977. The Court could not and did not consider pending unadjudicated felony charges in imposing sentence in 1977. Cook v. State, Ala.Cr.App., 369 So.2d 1243, Ala., 369 So.2d 1251, Ala.Cr.App., 369 So.2d 1260 (1978). Thus, the relevant evidence before the Court at this time is essentially the same as in 1977.
“In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), it was declared that the imposition of death by public authority is so profoundly different from all other penalties, that an individualized decision is essential in capital cases.
“The aggravating circumstances are:
“That Lewis committed the capital felony while he was engaged or an accomplice in the commission of robbery; and “That Lewis was previously convicted of a felony involving the use of violence to the person.
“The Alabama Court of Criminal Appeals concluded two specific mitigating circumstances require life imprisonment of Lewis without parole. They are:
“That Lewis committed the capital felony while under the influence of extreme mental or emotional disturbance; and
“That the capacity of Lewis to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.
“The Alabama Court of Criminal Appeals, on page two of its judgment reversing the sentence of Lewis to death declared:
“As pointed out in Judge Clark’s opinion, ‘the death penalty is not sustained by the evidence presented at the hearing on aggravating and mitigating circumstances.’
“On page sixteen of the judgment, it is also stated:
“ ‘The sub-normality of defendant’s mind was so great, we think, that the fixation of his punishment at death should not be allowed to stand. We are so persuaded by the evidence as a whole . . .’
“The directions given the trial judge as the sentencing authority by The Alabama Court of Criminal Appeals in reversing the death sentence of Lewis are more than adequate to enable him to weigh the aggravating circumstances against the mitigating circumstances. The judgment rendered by this Court is founded upon the directions of The Alabama Court of Criminal Appeals that the sentence of death would not be sustained on evidence essentially the same in nature which has been declared inadequate to sustain a sentence of death by The Alabama Court of Criminal Appeals; the aggravating circumstances; the mitigating circumstances found to exist by The Alabama Court of Criminal Appeals; and the mandate to this Court by The Alabama Court of Criminal Appeals reversing the sentence of death for the sub-normality of the mind of Lewis.
“IT IS, THEREFORE, ORDERED AND ADJUDGED BY THE COURT, that the mitigating circumstances outweigh the aggravating circumstances, and that Tommy Lewis, for the capital felony of robbery when the victim is intentionally killed, is sentenced to life imprisonment without parole, which shall be served without parole.
“DONE AND ORDERED this 13th day of November. 1979.
“/s/ Riley Green
“CIRCUIT JUDGE
“FILED IN OFFICE
THIS THE 13th Day
of November, 1979
“/s/ Jim Ellis
“REGISTER — CLERK
CIRCUIT COURT,
COFFEE COUNTY ALA.”

Therefore, the judgment of conviction and sentence by the Coffee Circuit Court (Enterprise Div.) is affirmed.

AFFIRMED.

HARRIS, P. J., and DeCARLO, BOOK-OUT and BOWEN, JJ., concur.

TYSON, J., concurs in result only.

      . Dr. Fred George, whose testimony is hereinafter treated.

      . It is understood that the name is incorrectly spelled in the record and that the reference is to Herman Rorschach (1884-1922), of renown in psychodiagnostics.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Huey Edward COON v. STATE.
    4 Div. 708.
    Court of Criminal Appeals of Alabama.
    Sept. 4, 1979.
    Rehearing Denied Oct. 2, 1979.

      Donald P. Colquett, Eugenia L. Loggins, Opp, for appellant.
    Charles A. Graddick, Atty. Gen. and Paul E. Johnson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Huey Edward Coon was charged in a four-count indictment under Alabama’s Death Penalty Statute, § 13-11 — 1, through § 13-11-9, Code of Alabama 1975, for the intentional killing of John Ezra Brown by striking him about his head and body with a heavy instrument and by stabbing him with a knife while in the commission of a robbery during which some $190.00 was taken.

The jury found the appellant “guilty as charged in the indictment” and fixed punishment at death by electrocution.

Thereafter, the trial court conducted a post-conviction hearing on the aggravating as well as the mitigating circumstances as required by law. The trial judge found three aggravating circumstances, but found no mitigating circumstances, and set appellant’s sentence as death by electrocution.

In the early morning hours of August 29, 1978, while working as a clerk-manager in a Zippy Mart in Andalusia, John Ezra Brown was stabbed with a knife and beaten with a blunt instrument. He was taken to a hospital and died later that morning.

Dr. Nathan D. Fiebelman testified that he examined and treated the deceased, Brown, in the emergency room of the Andalusia Hospital that same morning. He described in detail the numerous head injuries, such as multiple fractures, and massive bleeding within the cranial bowl, received by the deceased, and expressed the view that these injuries were caused by repeated blows from a heavy object, and by stabbing with a knife on the neck and back.

Jake Whatley testified that he drove a truck and regularly delivered the Montgomery Advertiser to the Zippy Mart in Andalusia. Whatley indicated that, as he arrived at the store shortly before 3:00 A. M., on August 29, 1978, two other vehicles arrived at the same time. While the drivers of the other vehicles conversed outside the store, Whatley went inside and found John Ezra Brown lying on his side near the cash register.

Whatley testified that he ran outside, called to one of the other drivers for help, re-entered the store with the other driver and saw that Mr. Brown was bleeding profusely. He then drove his truck to the Andalusia Police Department, reported the incident, and returned to the Zippy Mart. When the ambulance arrived, Whatley helped load the victim into it. On cross-examination, Whatley testified that he did not know the defendant and had not seen him at the Zippy Mart.

Mozelle McCurley testified that she was the manager of the Zippy Mart in Andalusia. She stated that as soon as she learned of the robbery she went to the store and gave Lt. Knox of the Andalusia Police Department a key which he used to lock the store.

Richard McCurley testified that he managed the Zippy Mart each day from 3:00 P. M. to 11:00 P. M. He stated that, when he went off duty at 11:00 P. M., on August 28, 1978, John Ezra Brown signed for the contents of the store’s cash register, which contained approximately $200. in cash. He further testified that, Budweiser beer was being sold on special at that time, for $2.09 per six-pack.

James McCurley stated that he was the supervisor for Zippy Mart in the area. On the morning of August 29, 1978, after learning of the robbery, he went to the police station where he was shown two six-packs of Budweiser beer, one of which had a can missing. He stated that he recognized the price labels on the beer as being those used by Zippy Mart and that, he recognized the price of $2.09, appearing on the two six-packs as being the special price for which Zippy Mart was selling the beer at that time.

The witness also related that about 10:30, on the morning of the incident, he went to the Zippy Mart and unlocked it to allow two investigators access to the scene and he stayed in the store until the investigators had finished their examination.

The district manager for Zippy Mart, Luther Quillen, testified that on the morning of the incident he went to the store and inventoried the store’s cash register and safe and found a shortage of $190.34.

Wilson J. Keller’s testimony corroborated that of Jake Whatley. Keller stated that he arrived at the Zippy Mart about 3:00 A. M., on August 29th and that two other drivers arrived about the same time. While Keller talked outside with one driver, the other entered the store, but came back outside immediately and called to him. He then entered the store, saw the bloody condition of Mr. Brown, and while the other driver left to get the police, Keller used his C.B. radio to try and get help. Keller also stated that as he was helping the ambulance attendants load Mr. Brown into the stretcher, he noticed the cash register drawer was empty except for a few pennies.

Investigator for the State Department of Forensic Sciences, G. R. McCahan, Jr., testified that he performed a post-mortem examination on the body of John Ezra Brown. He stated that Brown died as a result of massive, multiple skull fractures and massive cranial bleeding caused by repeated blows to the head. He also observed stab wounds on the neck and back. Furthermore, he said he secured several items from the body of Mr. Brown and from the scene of the crime for possible use as evidence.

Lt. J. T. Knox of the Andalusia Police Department testified that, at 3:00 A. M. on August 29th, he and another policeman, Farris Wood, were dispatched to the Zippy Mart where he helped Mr. Keller and Mr. Whatley load Mr. Brown onto the stretcher and into the ambulance. He noticed that the store’s cash register was open and empty, except for change. He also noticed that a metal milk crate on the floor was close to where Mr. Brown’s head had been lying. Lt. Knox recalled that after Mrs. McCurley locked the store, he proceeded to Eighth Avenue where he found Officer Wood and Lt. Glass talking to a suspect, Ernest Marvin. Marvin was taken to the police station by Lt. Knox and placed in a cell.

Another suspect, Charlie Jenkins, was brought in by Officer Wood and also placed in a cell. Thereafter, about 5:00 A. M., Knox and Wood returned to Eighth Avenue, found the defendant, and placed him in custody, and took him to the police station. Lt. Knox stated that he did not have an arrest warrant for the defendant when he took him in custody; that, he did not inform him that he had the right to consult an attorney; that, he did not inform him for what purpose he was being detained, nor did he explain to the defendant that he was under arrest, although he handcuffed the defendant when he placed him in the patrol car.

Lt. Knox indicated that all three suspects had been drinking something alcoholic but that in his opinion the defendant was not intoxicated.

Andalusia Investigator, Lt. Charlie Glass, testified that about 3:00 A. M., on August 29th, he was called to investigate a crime at the Zippy Mart. He said that he noticed that the cash register drawer was open and contained only change, and that a bent metal milk create, smeared with blood and hair, was found near the cash register. He locked the metal milk crate in the trunk of his police car and drove to Eighth Avenue where he and Officer Wood took Ernest Marvin in custody. Lt. Glass stated that while Lt. Knox took Marvin to the police station, he- and Officer Wood drove to the home of Charlie Jenkins and were invited inside by him.

While inside, the two officers found eleven cans of cold and frosted beer under a cake cover in the kitchen. Jenkins was then taken in custody and driven to the police station by the two officers, along with the beer. Shortly after, Coon, the defendant was brought to the police station.

Lt. Glass read him (Coon) his Miranda rights and the defendant signed a waiver form. Coon denied knowing anything about the incident at the Zippy Mart. Lt. Glass stated that he questioned the defendant again later that morning, and again the next day. On both occasions he advised the defendant of his Miranda rights, and the defendant signed waiver forms prior to questioning.

Glass also related that on August 31st, he and Deputy Howard Easley, along with an investigator for the district attorney, Jim Stallings, went to an alley near Eighth Avenue, where they found some burnt clothing and two magazines, “Club” and “High Society.” According to Glass, although three stores in Andalusia sell “Club,” only the Zippy Mart sells “High Society.”

Thereafter, on September 5th, this same group returned to this same alley and found a blade from a paring knife and additional items of clothing.

Lt. Glass admitted on cross-examination that to his knowledge, none of the items found in the alley were in any way connected to the defendant, Coon.

Officer Farris Wood of the Andalusia Police Department, testified that he lived on Eighth Avenue, three houses away from where Charlie Jenkins lived with his sister, Edith Anderson, and brother-in-law, Rufus Anderson. He said that while he was patrolling on August 29, 1978, about 2:10 A. M., he saw the defendant, Coon, also Charlie Jenkins, and Ernest Marvin in front of Jenkins’ house on Eighth Avenue. Officer Wood said he had a short conversation with them during which they mentioned that they were about to go to the Zippy Mart for beer.

After the conversation, he continued to patrol, but later was present at the police station when Whatley reported the crime at the Zippy Mart. While investigating the crime, Wood told Lt. Glass of his conversation with the defendant (Coon), Jenkins and Marvin. Thereafter, they drove over to 210 Eighth Avenue and saw Ernest Marvin run out the back door. Wood gave chase, but was unsuccessful and returned to 210 Eighth Avenue where Lt. Glass was waiting. Shortly thereafter, Marvin walked up to the two officers and was taken into custody, and transported to the police station by Officer Knox who had arrived by that time.

Lt. Glass and Officer Wood then were allowed inside Charlie Jenkins’ residence by Jenkins. There they took possession of eleven cans of Budweiser beer, took Jenkins into custody, and transported him to. the police station. Lt. Glass stated that later that morning he and Lt. Knox saw the defendant, Coon, walking on Eighth Avenue, that they placed him in custody and took him to the police station.

The sister of Charlie Jenkins, Edith Anderson, testified that she and her husband, Rufus Anderson lived with Charlie Jenkins at 210 Eighth Avenue. Mrs. Anderson said that after the police had taken Jenkins into custody, that the defendant came by her house on August 29th and asked for some clothes he said he had left in Jenkins’ room. She said he also asked for two magazines that her husband was reading.

After receiving the magazines and the clothes, which were rolled up and wet, Coon left. Mrs. Anderson said that several weeks later she found a wallet in a chest of drawers in Charlie Jenkins’ room in her house. She gave the wallet to her husband, Rufus, who took it to the police station.

On cross-examination, she testified that before August 29, 1978, she had never seen the two men’s magazines that the appellant took with him. She further stated that the appellant did not live with her or have any control over her home or its contents.

Rufus Anderson’s testimony corroborated that of his wife.

William H. Landrum, a forensic serologist for the Department of Forensic Science, testified that he examined a metal milk crate and items of clothing marked as belonging to John Ezra Brown for traces of blood. He said he compared his findings with a sample of blood reportedly taken from the body of the deceased, Brown, and determined that they were of the same blood type “A., n.” He stated on cross-examination that to his knowledge none of the items he examined were in any way connected to the appellant.

Howard Easley, Chief Deputy Sheriff, testified that on August 31,1978, he participated in the search of the alley behind 210 Eighth Avenue, and on August 29, participated in questioning the appellant. He said that, although appellant was never told that he might face the death penalty if convicted, he was told before questioning that he might be charged with a capital crime.

Mrs. Mozelle McCurley was recalled to the stand and testified that the Zippy Mart had the exclusive franchise to sell “High Society” in Andalusia.

Charles Brooks, a laboratory analyst for the Department of Forensic Science at En-terprize, testified that he examined the Zippy Mart in Andalusia on August 29, 1978. He identified a number of photographs of the scene and the same were admitted into evidence without objection. He explained the photographs in relation to a chart of the layout of the Zippy Mart.

On cross-examination, Brooks admitted that when he arrived at the Zippy Mart the building was open and that he did not know if anyone had been in the store prior to his arrival. Defense counsel moved to exclude his testimony, and this was overruled.

Sgt. Marlon Brewer, an investigator for the Alabama Bureau of Investigation, Department of Public Safety, testified that on the morning of August 30, 1978, the appellant was brought to his office where Howard Easley and Jim Stallings were present, by Lt. Glass, and that appellant signed a waiver of rights form after his rights were read to him.

Over objection, the form was admitted into evidence as State’s Exhibit No. 41. Over objection, Brewer testified that appellant admitted being at the Zippy Mart when John Ezra Brown was attacked but, that he denied any overt involvement.

Brewer said that on the afternoon of August 30,1978, he again questioned appellant. Prior to questions, appellant’s rights were read to him and appellant signed another waiver (State’s Exhibit 42). Appellant made another oral statement substantially similar to the one he had made that morning and this statement was reduced to writing. Defendant read the statement, initialed each page, and signed it before a notary. The statement was admitted into evidence over objection. (State’s Exhibit No. 43).

Sgt. Brewer stated that he again questioned the appellant after lunch on September 5, 1978, after appellant had signed a waiver of Miranda rights form after having same explained to him. At this time, appellant admitted he had taken part of the money stolen from the Zippy Mart and agreed to show the officers where it was hidden. Appellant also showed the officers where he had hidden the knife and where he had burned his own clothing that he had worn on August 29, 1978.

Brewer said that appellant finally admitted killing Brown without provocation because “something just told him to jump on that old man.” Brewer then took the incul-patory statement from the appellant which was reduced to writing. The next day, appellant went over the statement line by line, pointed out corrections, initialed each page, and signed it before a notary public. (State’s Exhibit No. 46). Brewer said that Howard Easley brought the knife blade which had meanwhile been found. The knife handle and blade were shown to appellant and he said this was the one.

On cross-examination, Sgt. Brewer admitted that a tape had been made of the interview with the appellant on the morning of August 30,1978, whereupon, defense counsel moved for a mistrial because the tape was not furnished them pursuant to their motion to produce. The motion was denied.

Thereafter, defense counsel and appellant were allowed to hear the tape privately and later the judge heard the tape himself, while having before him the written statement of appellant (State’s Exhibit No. 43).

Apparently, State’s Exhibit No. 43 was a combined transcription of the interviews with appellant on the morning and afternoon of August 30, 1978. Both interviews were taped.

Defense counsel again moved for a mistrial on the same grounds and his motion was overruled.

On a voir dire examination, outside the jury’s presence, to determine the voluntariness of State’s Exhibits, Nos. 43 and 46, the appellant testified that he was questioned twice on August 29th, and twice on August 30, 1978, and each time had been read his rights and each time he had signed a waiver of rights form. He testified that he had not been allowed to communicate with his family from August 29th through September 6, 1978, and had not been told of the severity of the punishment he might receive.

Furthermore, he said that he was hypnotized, with his consent, by a Lt. Coffman on August 31, 1978, and that he did not remember what he told him.

The trial court determined that both of the statements were voluntarily made. State’s Exhibit No. 43 was read to the jury over objection.

After the jury was recalled, Sgt. Brewer then testified that he again questioned appellant on September 5, 1978, after reading him his Miranda rights, and after appellant signed a waiver form. Over objection, State’s Exhibit No. 45 (appellant’s confession) was read into evidence.

On cross-examination, Sgt. Brewer admitted he never told appellant he might face the electric chair if convicted. Furthermore, he admitted that a Lt. Coffman from Florida had hypnotized appellant on August 30, 1978, but that appellant’s story did not differ, substantially, from State’s Exhibit No. 43.

The tapes of the interviews on the morning and afternoon of August 30, 1978 were played to the jury while each member of the jury also heard, over objections, a tape of the September 5, 1978, interview with appellant in which he admitted killing and robbing the victim.

The appellant did not testify at trial, nor present any evidence in his behalf.

I

Appellant asserts that the trial court committed reversible error in denying his two motions for a change of venue.

Section 15-2-20, Code of Alabama 1975, provides that a person charged with an indictable offense may have his trial moved to an adjacent county if “he cannot have a fair and impartial trial in the county in which the indictment is found.”

In Acoff v. State, 50 Ala.App. 206, 278 So.2d 210 (1973) we find the following discussion:

“In Mathis v. State, 280 Ala. 16, 189 So.2d 564, we find the following:
“ ‘Publicity by. the press, radio and television does not necessarily constitute ground for a change of venue. See: Denton v. State 263 Ala. 311, 314-315, 82 So.2d 406; Campbell v. State, 257 Ala. 322, 324-325, 58 So.2d 623; Littlefield v. State, 36 Ala.App. 507, 63 So.2d 565, cert. den. 258 Ala. 532, 63 So.2d 573. Whether a motion for a change of venue should be granted is a matter addressed to the sound discretion of the trial court. See: Cobern v. State, 273 Ala. 547, 551, 142 So.2d 869; Collins v. State, 234 Ala. 197, 199, 174 So. 296; Littlefield v. State, supra. From a consideration of the evidence taken on the hearing of the motion, we cannot say that the trial court abused its discretion in denying the motion.’
“Additionally, the movant has the burden to reasonably satisfy the trial court that an impartial jury cannot be had in the circuit court to which the indictment is returnable, Tiner v. State, 271 Ala. 254, 122 So.2d 738; Dannelly v. State, 47 Ala.App. 363, 254 So.2d 434, cert. den. 287 Ala. 729, 254 So.2d 443.”

Judge Bookout, in Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975), observed the following:

“The newspaper articles objectively reported the commission of a cold and calloused crime. The articles in the record do not carry inflammatory headlines, nor do they editorialize on the facts in a manner to inflame the community or create an atmosphere of prejudice.”

We have examined the newspaper articles attached to appellant’s motions and find that the reporting was “factual.” We observe no false or prejudicial publicity present in these newspaper articles.

As observed by Mr. Justice Blood worth in Mathis v. State, 292 Ala. 732, 296 So.2d 764 (1974):

“Therefore, where, as here, there has been no showing of any actual prejudice nor any showing that the pre-trial publicity (although admittedly extensive and widespread) was anything other than ‘factual,’ ‘truthful,’ ‘objective,’ and ‘reasonably free from any calls for action based upon emotional subjective judgments’ (Mathis v. State [1973] 52 Ala.App. 674, 296 So.2d 760, and Mathis v. State [1973] 52 Ala.App. 668, 296 So.2d 755), I am unwilling to presume that the defendant was prejudiced.”

Moreover, the trial court requested that questions be submitted to the judge and through him an extensive voir dire examination was allowed of all members of the jury venire. While some of the members of the venire had seen some of the newspaper stories, nevertheless, each venireman stated that he or she could render a true and impartial verdict based on the evidence presented.

In light of the foregoing, we are of the opinion that the trial court correctly overruled appellant’s motions for change of venue.

II

Appellant’s attorneys contend the trial court erroneously refused to grant his two motions for a continuance. Essentially both motions sought more time to prepare for trial.

The two attorneys were appointed to represent appellant on September 12,1978, the day after the indictment was returned. These attorneys had filed a motion to produce on September 27, 1978, and received the district attorney’s reply thereto on October 2, 1978.

The trial court had directed that the attorneys be allowed to hear the taped interviews with appellant and to see any signed statements.

Additionally, a list of State’s witnesses was furnished counsel.

Trial of this cause did not commence until October 9, 1978.

We are of the opinion that the trial court did not abuse its discretion in denying appellant’s motions for continuance. Rogers v. State, Ala.Cr.App., 365 So.2d 322 (1978); Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956); Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970); O’Neal v. State, 53 Ala.App. 133, 298 So.2d 62, cert. den. 292 Ala. 744, 298 So.2d 70 (1974)

III

Appellant next asserts error due to the failure of the State to disclose specific items of evidence following his two motions to produce. Specifically, appellant requested all tape recordings of interviews of appellant, and a copy of any written statements. Counsel also requested an opportunity to view all items of physical evidence, which the prosecution intended to introduce at trial.

Pursuant to appellant’s motions he was furnished with a cassette recording of the September 5, 1978 interview and a transcript which was a composite of the two interviews conducted on August 30, 1978. Essentially, appellant asserts that his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated since the State did not furnish him with the actual tapes made on August 30, 1978.

We do not agree with appellant’s contention. The composite transcript disclosed all relevant and material matters stated to the officers in the interviews of August 30, 1978, in which the appellant denied being a major participant in the robbery-murder. The interview, wherein he gave his inculpa-tory statement took place on September 5, 1978, and this was the tape provided to counsel before trial.

Moreover, this court has compared the tapes and the transcript as the same appears in the record and find no material difference. We find no violation of appellant’s rights.

IV

Appellant asserts that under the “totality of the circumstances” of the taking of appellant’s confession on September 5,1978, and its subsequent admission into evidence at trial, shows that such was not voluntarily given.

Essentially, appellant’s argument is that he was not informed of the possible consequences due to the severity of the charge against him, and that he was hypnotized by one officer about a week before he gave his inculpatory statement.

In Thomas v. State, Ala., (1979) 373 So.2d 1167, the Alabama Supreme Court determined that law enforcement officers are not required to inform suspects of all possible punishments at the time they begin questioning.

While the record does indicate that appellant was hypnotized several days before he gave his inculpatory statement, there is no indication in the record that this led appellant into making his confession or that such broke down appellant’s will, or that he was otherwise induced to confess to the crime.

To the contrary, the record discloses that the appellant was fully advised of his Miranda rights on at least three occasions. On each of these occasions, he signed a written waiver. The record also discloses that there was no abuse, threats made to appellant, no coercion or intimidation in any manner, but rather that appellant understandingly, intelligently and voluntarily gave his statement. Williamson v. State, Ala.Cr.App., 370 So.2d 1054, affirmed 370 So.2d 1066 (1978), and authorities therein cited; Thomas v. State, supra.

V

Appellant next asserts that the trial court erred in excusing certain prospective jurors outside his presence.

This action of the trial court is now specifically allowed by the provisions of 1971 Ala.Acts, Local Act 200, p. 493. The Supreme Court of Alabama in the case of Bracewell v. State, Ala.S.Ct. Ms. 78-301 (July 6, 1979), specifically approved of the practice here challenged. Thus the trial court’s action was correct.

VI

(a)

Appellant asserts the trial court erred in admitting, through the testimony of two experts, Dr. Feibelman and Dr. McCochran, their statements concerning the condition of the victim’s body and the wounds thereon. Such contention is without merit, since this testimony was properly admitted. Daniels v. State, 50 Ala.App. 88, 277 So.2d 364 (1973); Johnson v. State, 21 Ala.App. 565, 110 So. 55 (1926); Dobbins v. State, 274 Ala. 524, 149 So.2d 814 (1963); Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. den. 294 Ala. 764, 318 So.2d 341 (1975).

(b)

Also, counsel challenges the admission of photographs of scene of the crime and of the deceased’s body.

Such photographs were properly admitted. Smarr v. State, 260 Ala. 30, 68 So.2d 6 (1953); Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Brodka v. State, 53 Ala. App. 125, 298 So.2d 55 (1974).

VII

Appellant also asserts that the wallet belonging to the deceased and its contents were improperly admitted. This wallet was found by Mrs. Anderson in the bedroom of Charlie Jenkins, her brother, who lived with her. The appellant (Coon), Jenkins and Marvin were observed outside this house on the night of the robbery-homicide by Officer Wood, about 2:10 A. M. Later the officers recovered eleven cans of Budweiser beer from this residence, which had the Zippy Mart price of $2.09 per six-pack.

Therefore, the admission of the wallet was proper. Grissett v. State, 241 Ala. 343, 2 So.2d 399 (1941); Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965).

VIII

Appellant’s final contentions challenge Alabama’s Death Penalty Statute, in that, such violates the Eighth Amendment and the Due Process clause of the Fourteenth Amendment of the United States Constitution.

The Alabama Supreme Court has considered these contentions but found the Alabama statute to meet constitutional standards. Thus, appellant’s contentions have been rejected. Jacobs v. State, Ala.Cr.App., 361 So.2d 607, affirmed, Ala., 361 So.2d 640 (1978); Cook v. State, Ala.Cr.App., 369 So.2d 1243 (1977); Williamson v. State, Ala.Cr.App., 370 So.2d 1054, affirmed, Ala.Cr. App., 370 So.2d 1066 (1978); Beck v. State, Ala.Cr.App., 365 So.2d 985 (1978). This record is free of error.

The judgment is therefore affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

The Court having considered the evidence presented on the trial of this case on October ninth, tenth, eleventh and twelve of this year, and the verdict of the jury returned on October 12, 1978, the evidence presented on hearing on November 15, 1978, and the applicable law of Alabama finds the following aggravating circumstances:

One. That the Defendant, Huey Edward Coon, did intentionally kill John E. Brown in the perpetration of a robbery or attempt thereof of the said John E. Brown.
Two. That the Defendant, Huey Edward Coon, committed the capital felony with which he is charged in the commission of a robbery.
Three. That the Defendant, Huey Edward Coon, committed the capital felony with which he is charged for pecuniary gain.
Four. That the capital felony was especially heinous, atrocious or cruel in that Huey Edward Coon killed John E. Brown by beating him about the head and face with a wire, metal milk crate resulting in the death of the said John E. Brown.

The Court having considered the mitigating circumstances enumerated in Code of Alabama 1975, Title 13, Section 11-7, and also the record in this cause and any and all other evidence relating to mitigating circumstances whether enumerated or not, specifically finds that no mitigating circumstances exist.

It is therefore ORDERED AND ADJUDGED that the Defendant, Huey Edward Coon, is guilty of the aggravated offense of robbery or attempt thereof in which the victim was intentionally killed by the Defendant.

It is further ORDERED AND ADJUDGED that the aggravating circumstances as set out hereinabove outweigh mitigating circumstances which do not exist. The Court therefore sentences the Defendant, Huey Edward Coon, to death, to be executed on Wednesday, January 17, 1979, by causing to pass through the body of the Defendant, Huey Edward Coon, a current of electricity of sufficient intensity to cause death, and the application and continuance of such current through the body of the Defendant, Huey Edward Coon, until he is dead.

The conviction and sentence being subject to automatic review under Alabama law, the sentence is suspended pending appeal. No bail.

Done and Ordered this twentieth day of November, 1978.

MR. COLQUETT: Judge, the Defendant gives notice of appeal and ask permission to proceed as a pauper.

THE COURT: All right. Let the record so reflect that notice of appeal is again given today, and we will prepare the necessary forms for the Defendant to proceed in pauperis.

You may take charge of the prisoner.

(Whereupon, Court was adjourned at 10:15 a. m.)

This cause coming on to be heard on the motion of the Defendant, Huey Edward Coon, for new trial and the Defendant and his attorneys and the District Attorney being present in open Court submitted the motion as filed to the Court without testimony or argument, and the Court having considered the Motion for New Trial filed in behalf of the Defendant, Huey Edward Coon, is of the opinion that the same is due to be denied. But, the Court is further of the opinion that the Court may have misapplied the law in its consideration of aggravating and mitigating circumstances in that the Court listed in its order of November 20, 1978, aggravating circumstance number three (3), as follows: “That the Defendant, Huey Edward Coon, committed the capital felony with which he is charged for pecuniary gain.” The Court further finds, however, that when aggravating circumstance number three (3) is excluded from consideration, the aggravating circumstances still outweigh mitigating circumstances, it is;

Therefore CONSIDERED, ORDERED AND ADJUDGED that the Motion for New Trial filed in behalf of the Defendant, Huey Edward Coon, be and the same is hereby denied, it is;

Further ORDERED, ADJUDGED AND DECREED that aggravating circumstance number three (3), as set out in this Court’s order of November 20, 1978, be and the same is hereby excluded and removed from consideration by the Court. In all other respects, this Court’s order of November 20, 1978, shall remain in full force and effect, it is;

Further ORDERED AND ADJUDGED that copies of this Order be furnished to the District Attorney, the Defendant’s attorneys of record, and that the Sheriff be and he is hereby directed to serve a copy of this Order on the Defendant, Huey Edward Coon, and make return reflecting said service.

Done and Ordered this the 30th day of January, 1979.

      . See Appendix A, the trial court’s order and judgment.

      . See Vol. 5, R.P. 815-824.


author: BLOODWORTH, Justice.

text:
    Ex parte Huey Edward COON. In re Huey Edward Coon v. State of Alabama.
    79-66.
    Supreme Court of Alabama.
    Feb. 8, 1980.
    Donald F. Colquett, Eugenia L. Loggins, Opp, for petitioner.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for respondent.
   BLOODWORTH, Justice.

We granted the petitioner’s request for certiorari to review the judgment of the Court of Criminal Appeals, 380 So.2d 980 (Ala.Cr.App.1979), upholding the conviction of petitioner under Alabama’s Death Penalty Statute for the intentional killing of John Ezra Brown during the commission of a robbery.

We have carefully reviewed the opinion of the Court of Criminal Appeals and the record of the proceedings in this cause, and are convinced that each contention raised by the petitioner has been correctly answered by the Court of Criminal Appeals in its opinion. Thus, its judgment of affirmance is due to be, and is hereby, affirmed.

AFFIRMED.

All the Justices concur.


author: BOWEN, Judge.

text:
    Michael HOLDERFIELD v. The CITY OF BIRMINGHAM.
    6 Div. 38.
    Court of Criminal Appeals of Alabama.
    Dec. 4, 1979.
    Rehearing Denied Jan. 22, 1980.

      Ferris S. Ritchey, Jr., Birmingham, for appellant.
    W. O. MacMahon, III, Asst. City Atty., Birmingham, for appellee.
   BOWEN, Judge.

This is a pornography case involving the sale of a magazine entitled “Color Sperma” in violation of Birmingham City Ordinance 16-18 as amended.

The defendant was employed as a clerk by the Bessemer News, an adult bookstore in Jefferson County. In May of 1978, an officer of the Vice Squad of the Birmingham Police Department purchased the magazine from the defendant. The defendant was tried without a jury in Municipal Court and convicted. He appealed to the Circuit Court of Jefferson County, was tried by a jury, convicted and fined five hundred dollars and costs.

I

The defendant contends that under the United States Supreme Court’s definition of obscenity stated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), only a jury can apply “contemporary community standards” in determining whether a publication is obscene. Although Alabama Code (1975), § 12-14-6, provides that “(a)ll cases in municipal courts shall be tried by a judge without a jury”, the defendant contends that an obscenity prosecution must be the exception to this statute.

While neither Miller nor Hamling specifically states that only a jury can determine the issue of obscenity, the Supreme Courts of Missouri and Minnesota have found such a holding implicit.

In McNary v. Carlton, 527 S.W.2d 343 (Mo.1975), the Supreme Court of Missouri held that in obscenity cases jurors must be the triers of fact.

“Third, in considering application of the ‘contemporary community standards’ guideline, we must note the following language from Hamling v. United States, 418 U.S. 87, at 104 and 105, 94 S.Ct. 2887, 2900, 41 L.Ed.2d 590:
* * * * * $
“ ‘(T)he test (for determining obscenity) was stated in terms of the understanding of ‘the average person, applying contemporary community standards’. 413 U.S., at 24, 93 S.Ct., at 2615. When this approach is coupled with the reaffirmation in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446 (1973) of the rule that the prosecution need not as a matter of constitutional law produce ‘expert’ witnesses to testify as to the obscenity of the materials, the import of the quoted language from Miller becomes clear. A juror is entitled to draw on his own knowledge of the views of the average person in the community or vici-nage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.
******
“ ‘The result of the Miller cases, therefore, as a matter of constitutional law and federal statutory construction, is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion ‘the average person, applying contemporary community standards’ would reach in a given case.’
******
“However, we consider the above language extremely significant. The emphasis which Miller and Hamling place on the unique qualifications of jurors to apply the ‘contemporary community standards’ guideline raises a practical question in this suit for injunctive relief . In ‘obscenity’ cases, we believe we should ‘rely on the jury system’ (413 U.S., at 26, 93 S.Ct. 2607), and require that jurors be involved as triers of fact under the Miller guidelines.”

McNary, 527 S.W.2d at 346-7.

In City of Kansas City v. Darby, 544 S.W.2d 529 (Mo.1976), the Missouri Supreme Court applied McNary and held that the denial of a jury trial on the issue of community standards in an obscenity prosecution in municipal court was unconstitutional, notwithstanding the fact that the municipal court was barred by ordinance from providing a trial by jury or that a jury was available on appeal to the circuit court.

“We hold, in obscenity cases only, that a trial by jury is required in the first instance and that a trial by jury after appeal to circuit court ‘does not satisfy the requirements of the Constitution’.
“We recognize that today’s holding renders the Kansas City obscenity ordinance unenforceable so long as juries are not permitted in Kansas City municipal courts.” (citations omitted) Darby, 544 S.W.2d at 532.

This same result was reached in Martin v. Municipal Court of Kansas City, 546 S.W.2d 7 (Mo.1976), and XLNT Corporation v. Municipal Court of Kansas City, 546 S.W.2d 6 (Mo.1976).

The Supreme Court of Minnesota, exercising its “supervisory powers”, has recently decided that a criminal obscenity charge must be tried before a jury even though not constitutionally required.

“The need for a jury determination is particularly compelling in cases such as this where no expert testimony or extrinsic evidence other than the allegedly obscene material itself is admitted at trial. When the issue is tried to the court, a judge is placed in the unenviable position of determining contemporary community standards, either upon impressions formed from his contacts with residents or upon his individual opinion of the locality’s values. Neither of these alternatives is wholly consistent with the test enunciated in Miller [v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)]. In contrast, a jury represents a cross section of the community and is better equipped to make the important and sensitive determination of community standards required in an obscenity prosecution. Although it is clear that a jury trial is not constitutionally mandated under these circumstances, see, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), we believe that the contemporary-community-standards test can best be applied by a jury and therefore hold, under the supervisory powers of this court, that a criminal obscenity charge must be tried to a jury.”
City of Duluth v Sarette, 283 N.W.2d 533 (Minn.1979) (emphasis added).

Sarette makes it clear that while the jury system may be the best method for determining obscenity as defined in Miller v. California, it is not a constitutional requirement. The statute requiring that all cases in municipal courts shall be tried by a judge without a jury is not unconstitutional as it applies to an obscenity prosecution in the municipal court. In this regard, the defendant was not denied due process of law.

Additionally, we note that the defendant never requested a trial by jury in the municipal court. The question of the constitutionality of the city ordinance and its failure to provide for a jury determination of obscenity was first raised by the defendant on appeal before the circuit court. Since the record shows no objection to being prosecuted in the municipal court until after the defendant had been convicted, we do not think he should be heard to complain. We do not think that it would have been a mere useless or futile gesture for the defendant to have voiced his objection before the municipal judge. We note that in Martin, supra, upon which the defendant bases his argument, the accused did file a motion for a jury trial in the municipal court even though a statute prohibited a jury trial in the municipal court.

II

The defendant contends that there is insufficient evidence of probable cause to support the arrest warrant from the face of the complaint and the testimony of the magistrate.

The affidavit of complaint sworn to by the arresting officer states:

“Personally appeared before me, the undersigned authority in and for said Municipal Court of Birmingham, D. L. McNutt, who being first duly sworn, says on oath that he has probable cause for believing and does believe that Mike Holderfield whose name is otherwise unknown to affiant, did within twelve months before making this affidavit and within the City of Birmingham, or the Police Jurisdiction thereof:
Did unlawfully on to-wit: May 10, 1978, at approximately 11:20 A.M. at or near 3021 Bessemer Road, Bessemer News, Birmingham, Jefferson County, Alabama, knowingly publish, print, exhibit, distribute, or have in his possession with intent to distribute, exhibit, sell, or offer for sale in the City of Birmingham, Alabama, any obscene matter, to-wit: an obscene book, ‘Color Sperma’, contrary to and in violation of General City Code 16-18 as amended against the laws and ordinances of the City of Birmingham.”

This affidavit in and of itself is insufficient to support a finding of probable cause for a warrant of arrest because it only recites the affiant’s belief and contains no supporting facts or circumstances upon which a finding of probable cause could be based. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

However, in passing on the validity of an arrest warrant, the reviewing court is not restricted to examining the four corners of the affidavit. United States v. Character, 568 F.2d 442, 445 (5th Cir. 1978). A reviewing court may consider an affiant’s oral testimony, extrinsic to the written affidavit, which is sworn before the issuing magistrate, in determining whether the warrant was founded on probable cause. United States v. Hill, 500 F.2d 315, 320-21 (5th Cir. 1974). Oral testimony is admissible to cure an otherwise defective warrant. Oliver v. State, 46 Ala.App. 118, 238 So.2d 916 (1970); Funches v. State, 53 Ala.App. 330, 299 So.2d 771, cert. denied, 293 Ala. 752, 299 So.2d 778 (1974).

Officer McNutt, at the time he gave the sworn affidavit before a magistrate for the City of Birmingham, presented the magistrate with the magazine “Color Sper-ma” which he had personally purchased from the defendant seven days earlier. The magistrate examined the magazine for ten minutes before issuing the arrest warrant. The affidavit together with the presentation of the alleged obscene matter to the magistrate support the finding of probable cause and issuance of the warrant despite the fact that the affidavit is conclusionary.

Ill

The defendant’s contention that Birmingham City Ordinance 16-18 as amended was systematically and selectively enforced against him resulting in purposeful and intentional discrimination violative of the equal protection clause of the Fourteenth Amendment was found to be without merit in Starley v. City of Birmingham, Ala.Cr.App., 377 So.2d 1171 (1979). The evidence presented by the defendant in this case is substantially identical to that presented in Starley. There simply has been no evidence to indicate an intentional selectivity based upon an unjustifiable standard.

We have searched the record for error and, finding none, affirmed the judgment of the circuit court.

AFFIRMED.

All Judges concur.


text:
    Ex Parte Michael HOLDERFIELD. Re: Michael Holderfield v. The City of Birmingham.
    79-333.
    Supreme Court of Alabama.
    March 7, 1980.
    Ferris S. Ritchey, Jr., Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., W. O. MacMahon, III, Asst. City Atty., Birmingham, for respondent.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    Cary HAWKINS v. The CITY OF BIRMINGHAM.
    6 Div. 975.
    Court of Criminal Appeals of Alabama.
    Dec. 4, 1979.
    Rehearing Denied Jan. 22, 1980.
    Ferris S. Ritchey, Jr., Birmingham, for appellant.
    W. O. MacMahon, III, Birmingham, for appellee.
   BOWEN, Judge.

This is a pornography case based on the sale of the book “Locker-Room Workout” in violation of Section 16-18 of the General Code of the City of Birmingham, 1964, as amended, prohibiting the sale of an obscene book. The defendant was an employee of the Pussycat Adult Theater. The defendant was tried before a jury on the complaint and found guilty. Sentence was "180 days hard labor and a fine of $500.00.

The issues in this case are exactly identical and the facts substantially identical to those in Holderfield v. The City of Birmingham, Ala.Cr.App., 6 Div. 38, 380 So.2d 990 (1979). The judgment of the trial court in this case is affirmed on authority of our opinion in Holderfield.

AFFIRMED.

All Judges concur.

Writ denied, Ala., 380 So.2d 995.


text:
    Ex Parte Cary HAWKINS. (Re: Cary Hawkins v. The City of Birmingham).
    79-334.
    Supreme Court of Alabama.
    March 7, 1980.
    Ferris S. Ritchey, Jr., Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., W. 0. MacMahon, III, Asst. City Atty., Birmingham, for respondent.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J„ and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Stanley Lee JAMES v. STATE.
    6 Div. 128.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.

      Robert R. Bryan and Roger C. Appell of Bryan, Wiggins, Quinn & Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Virginia A. Johnston, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted under § 13-11-2(a)(2), “Robbery or attempts thereof when the victim is intentionally killed by the defendant,” of the Death Penalty and Life Imprisonment Without Parole Act (Acts 1975, No. 213), Code of Alabama 1975, § 13 — 11—1, et seq. In accordance with a plea bargaining understanding, in which he personally and his employed attorney expressly concurred, he pleaded guilty to the charge, a jury was selected, evidence was submitted to the jury clearly establishing his guilt, and the jury found him guilty and fixed his punishment at death. Thereupon, in accordance with the understanding of the parties and with § 4 of the Act (Code 13-11 — 4), the court refused “to accept the death penalty as fixed by the jury and sentence[d] the defendant to life imprisonment without parole.”

Appellant does not question the validity or sufficiency of the proceedings other than as they may be affected by two points, which we now consider.

The first is considered in appellant’s brief under the caption:

“§ 13-11-2 and 13-11-4, Code of Alabama (1975) VIOLATES THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION SINCE THE JURY IS NOT PERMITTED TO CONSIDER VARIOUS RELEVANT DEGREES OF HOMICIDE, AND ABSOLUTELY FORBIDS A TRIAL BY JURY UNDER THE ISSUE OF PUNISHMENT IN THE EVENT OF A GUILTY FINDING.”

Both aspects of appellant’s first contention have been solidly addressed and soundly answered by the Supreme Court of Alabama and the Alabama Court of Criminal Appeals. The Eighth Amendment (cruel and unusual punishment) phase and the Fourteenth Amendment (due process requirement) part were firmly and clearly rejected in Jacobs v. State, Ala.Cr.App., 361 So.2d 607 (1977), aff’d Ala., 361 So.2d 640 (1978), and afterwards were likewise rejected in Evans & Ritter v. State, Ala.Cr.App., 361 So.2d 654 (1977), aff’d as to Evans, Ala., 361 So.2d 666 (1978), as well as in Evans v. Britton, 472 F.Supp. 707 (S.D.Ala.1979).

Appellant also urges, under the caption in his brief quoted above, that the Death Penalty and Life Imprisonment Without Parole statute offends the Sixth Amendment (right to a jury trial) to the Constitution of the United States. This contention has also been exhaustively treated and firmly rejected. Beck v. State, Ala.Cr.App., 365 So.2d 985, aff’d Ala., 365 So.2d 1006 (1978).

“In view of the foregoing authority, it is our judgment that the appellant’s right to a trial by jury has not been abridged under Alabama capital sentencing procedure.” 365 So.2d at 1002.

The only other claim for a reversal arises out of action by a judge of the trial court, not the judge who rendered the judgment of conviction and sentence from which the instant appeal was taken, who, after a hearing on May 30, 1979, denied defendant’s motion for the entry of a guilty plea on a pending indictment of defendant for murder in the first degree of the same victim alleged in the indictment subsequently returned, June 8, 1979. The action of the court and its reason therefor are clearly set forth in the following order:

“ORDER ON DEFENDANT’S MOTION FOR ENTRY OF GUILTY PLEA
“This matter was first presented to the undersigned on an oral basis by defendant’s attorney and an assistant district attorney on Friday, May 25, 1979. At that time this Court was engaged in a hearing. The Court stated that the plea could not be accepted then and suggested that a written motion be filed and the Court would hear it at a time convenient with defendant. It was filed May 29, 1979, and set at 8:30 a. m., this date, before the Court went back into the trial of a case then in progress.
“This case is set on the trial docket for June 11, 1979, and the undersigned is the docket control judge on that date. Under the existing practice in the Tenth Judicial Circuit, the docket control judge controls the docket of that week, assigns cases to the five criminal judges and takes guilty pleas of the cases set that week, not otherwise assigned to a judge for trial. “In the interest of brevity, the arguments, agreements as to certain facts, and background information are being written up by the court reporter, and are not set forth in this Order. The transcript will have to be read to obtain a complete picture of the problem.
“To capsúlate the situation, the defendant’s attorney apparently wishes to have the defendant plead guilty to First Degree Murder (as he is presently) charged and accept life imprisonment before the state has an opportunity to reindict him under the capital punishment statute. “This case was routinely set for action by a court at the time of arraignment, March 23, 1979, before Judge Jasper, and Youthful Offender hearing before Judge Crowder on May 8, 1979. No move was made toward a guilty plea at those settings. New evidential developments apparently adverse to defendant have occurred since May 8, 1979.
“The next routine setting is on trial docket for June 11, 1979. This Court at this time is in the trial of cases set this week. “The Court parenthetically notes that defendant’s attorney, should a plea of guilty be entertained, has not mentioned in the hearing just completed what, if anything, is going to be done about defendant’s plea of “not guilty by reason of insanity” presently outstanding in this case.
“The Court exercising its discretion and noting Odoms v. State [Ala.Cr.App.], 359 So.(2) [2d] 1162, will act on this matter, in accord with the circumstances, conditions and developments then present twelve days from now; namely, June 11, 1979.
“IT IS, THEREFORE, ORDERED AND DECREED that the defendant’s motion is denied and overruled as of this date. Further action in this case will be dealt with on June 11, 1979, when the case is set on the trial docket.
“Done this the 30th day of May 1979.
“(Sgd.) William H. Cole.
William H. Cole, Circuit Judge.”

The record shows that on July 9, 1979, at 11:25 A.M., defendant, accompanied by his employed attorney, appeared before Judge Charles R. Crowder, with a jury available, and made known to the court that, subject to defendant’s reservation of his right to challenge the constitutionality of the Death Penalty and Life Imprisonment Without Parole Act, defendant desired to plead guilty to the indictment of June 8, 1979, and that there was an understanding between the parties that proof would be made before a jury that defendant was guilty, a verdict would be rendered accordingly and fixing defendant’s punishment at death, and thereafter the trial court would reduce the.punishment fixed by the jury and sentence defendant to life imprisonment without parole.

Appellant’s second claim for a reversal is argued under the caption in his brief:

“THE REFUSAL OF THE DUTY JUDGE TO ACCEPT THE APPELLANT’S PLEA OF GUILTY WAS NOT WITHIN HIS DISCRETION AND VIOLATED THE APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF LAWS.”

There is a disagreement between appellant and appellee as to whether this particular contention of appellant is consonant with the plea bargaining agreement, appel-lee arguing that it is inconsistent and appellant arguing to the contrary. Both cite portions of the record in an effort to sustain their respective positions. By reason of the determination hereinafter made, it is unnecessary for us to decide whether appellant has waived his right to present the contention under consideration.

It cannot be correctly stated, as appellant contends, that a trial court is under a duty, either under the Constitution of the United States or the Constitution of Alabama, to accept a defendant’s plea of guilty. The rule is to the contrary.

“We agree with appellee that under the holdings of the United States Supreme Court in Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) and Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962) the rule is stated in the Santobello case:
“ ‘There is, of course, no absolute right to have a guilty plea accepted . A court may reject a plea in exercise of sound judicial discretion.’
“We further agree with appellee that the acceptance of a plea being a discretionary act, mandamus will not lie to force appellee to accept the guilty plea tendered.” State, ex rel. Schieres v. Nimmons, Fla. App., 364 So.2d 1262 (1978)

To the same effect are State v. Jiminez, App., 89 N.M. 652, 556 P.2d 60 (1976) and State v. Goulette, Minn., 258 N.W.2d 758 (1977).

The order of the trial court on defendant’s motion to require the entry of a guilty plea discloses that it relied upon Odoms v. State, Ala.Cr.App., 359 So.2d 1162 (1978), which upheld action of the trial court in declining to accept defendant’s plea of guilty to a first degree murder indictment. Appellant recognizes the similarity between Odoms and the instant case, in that in each case defendant was charged in one indictment with murder in the first degree and in a subsequent indictment with homicide under circumstances proscribed by the Death Penalty and Life Imprisonment Without Parole Act and that in each case defendant was seeking to avoid the probable consequences of an indictment and trial under said Act, by insisting upon his plea of guilty under the indictment charging murder in the first degree. He says, however, that there were dissimilar circumstances. He refers particularly to the circumstances in Odoms that on the day he sought to have his guilty plea accepted, the “courtroom was practically full of people,” that the case “was not on a docket sheet and ‘was not set on that day.’ ” Although the circumstances are different from the circumstances in the instant case, as practically all cases are different to some extent from all other cases, we find no distinguishing difference between the cases that would justify a different determination from that made in Odoms. In some respects the circumstances were less favorable to defendant in Odoms than in the instant case. In each case each defendant on formal arraignment had pleaded not guilty to the indictment charging murder in the first degree. In the instant case, however, defendant had entered an additional plea of not guilty by reason of insanity, which in and of itself emphasized the caveat to the trial court against a hasty determination of whether the plea of guilty should be accepted. In Odoms the “courtroom was practically full of people.” The record shows in the instant case that the trial judge to whom the motion was submitted had intersticed it early in the morning, between a session (actual sitting) the day before and a session to follow the next morning in the trial of a case he was conducting. Although trial judges often endeavor, and should be appreciated for such endeavor, to attend to matters that are not on their docket, when by so doing they can handle their docket without serious interruption, the very nature of the motion was such that the trial court was justified in not allowing it to supplant the unquestionably important matter then before it. It was not in error in rendering the order quoted hereinabove.

In the absence of any error prejudicial to appellant, 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. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex Parte Stanley Lee JAMES. (Re: Stanley Lee James v. State).
    79-347.
    Supreme Court of Alabama.
    March 7, 1980.
    Robert R. Bryan and Roger C. Appell of Bryan, Wiggins, Quinn & Appell, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., Virginia A. Johnston, Asst. Atty. Gen., for respondent.
   ALMON, Justice.

WRIT DENIED.

All Justices concur, except BLOOD-WORTH, J., not sitting.