text:
    Danny Harold WEAVER v. STATE.
    1 Div. 210.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Lee B. Williams, Grove Hill, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Washington County returned an indictment for murder against the appellant, Danny Harold Weaver, and he entered a plea of not guilty, and was convicted of manslaughter in the first degree. The appellant was duly sentenced to five years imprisonment, and he gave notice of appeal to this Court. Appellant filed a motion for a new trial and same was duly denied by the trial court.

The appellant was at all proceedings in the trial court represented by counsel of his choice, and is so represented in this Court. This appeal was submitted to this Court on briefs.

The appellant argues in his brief that the trial court erred to the prejudice of the appellant by: First, denying defendant’s motion for a directed verdict; second, refusing appellant’s written charge number 9; third, sustaining state’s objections to questions about threats made by deceased against the appellant and Jurlean Weaver; fourth, restricting appellant’s right of cross-examination of state’s witnesses; fifth, allowing a pathologist to give his opinion as to cause of death of the deceased; sixth, allowing state to introduce evidence by other prosecution witnesses that tended to impeach, or discredit, the testimony of state’s witness, Jurlean Weaver; seventh, overruling appellant’s motion for a new trial.

The ground for the first prejudicial error complained of by the appellant in his brief is that the indictment in this cause charges that the appellant killed Lonnie Dean Weaver by shooting him with a .25 caliber automatic rifle, while the undisputed evidence proves that the appellant killed the deceased by shooting him with a .25 caliber automatic pistol. The appellant contends that there is a fatal variance between the allegation of the indictment and the proof in support thereof, and that the trial court erred to his prejudice in overruling his motion for a directed verdict. A .25 caliber automatic rifle, and a-.25 caliber automatic pistol are the same in character. They both inflict the same character of wound. If the weapon described in the indictment, and the weapon proven are of the same nature and character, and inflict the same nature and character of the wound proven inflicted, there is no fatal variance in the allegation of the indictment and the proof. We hold that the trial court did not err when it overruled the appellant’s motion for a directed verdict due to a fatal variance between the allegation of the indictment and the proof. Hull v. State, 79 Ala. 32; Turner v. State, 97 Ala. 57, 12 So. 54; Taylor v. State, 148 Ala. 565, 42 So. 997; Matthews v. State, 51 Ala.App. 417, 286 So.2d 91.

The appellant’s second contention in his brief is that the trial court erred to his prejudice by refusing to give appellant’s requested, written charge number 9. Charge number 9 reads, as follows:

“The Court charges the jury that it is the settled law of this State that he who invokes self defense in protection of a third person, is placed in the shoes of the person whom he seeks to protect, and if the jury is reasonably satisfied from all the evidence in this case that at the time the Defendant fired the fatal shots Jewel Weaver was in imminent danger of losing her life or suffering grievous bodily harm at the hands of the deceased, he should be acquitted, unless the jury is satisfied beyond all reasonable doubt that Jewel Weaver entered the fight willingly or was at fault in bringing on the difficulty.”

The court’s general charge to the jury fully covered the same rules of law contained in appellant’s requested, written charge number 9, and was substantially, fairly, and clearly stated to the jury in the court’s general charge. We, therefore, hold that the trial judge did not err by refusing appellant’s requested, written charge number 9. Code of Alabama, 1975, Sec. 12-16-13; Brown v. State, Ala.Cr.App., 393 So.2d 513; Struggs v. State, Ala.Cr.App., 372 So.2d 49; Certiorari Denied, Ala., 372 So.2d 55; Lowman v. State, Ala.Cr.App., 400 So.2d 430; Certiorari Denied, Ala., 400 So.2d 434. We do not comment as to whether refused, written charge number 9 should or should not have been refused by the trial court for other reasons.

Appellant’s third contention in his brief is that the trial court erred to his prejudice by sustaining state’s objections to questions about threats made by the deceased against the appellant and Jurlean Weaver when the appellant had asserted the defense of self-defense of Jurlean Weaver and appellant. During the trial there was undisputed evidence introduced, without objection by the appellant, and before the jury, of numerous threats made by the deceased, prior to the time of the shooting, directed at deceased’s former wife, Jur-lean Weaver, and the appellant, Danny Weaver, such as: “The next time I lay my eyes on you and Danny Harold (the appellant) I’m going to kill you both” and, “you and Danny Harold or me one is going to hell tonight. I have come here to kill you all and might as well get it over with tonight,” and again in December, 1978, deceased said to appellant, “It will be two weeks before [the deceased] would kill the appellant and Jurlean,” and again some three weeks before the shooting the deceased told Coma Orso and Gene Sullivan that, Deceased “was prepared to and was going to kill both the appellant and Jurlean, and again deceased told Frankie Weaver that he was going to kill all of us, (meaning appellant and Jurlean) and drown the unborn baby.” All of these threats were made before, and were all communicated to the appellant before the shooting, and evidence of such threats was before the jury at the time the court sustained state’s objections complained of by the appellant with reference to threats directed at the appellant. If the trial court erred by sustaining state’s objection to appellant’s question about a threat directed against the appellant and Jurlean Weaver, still no reversible error was made, because it was harmless error under the rule that an error in excluding evidence of a certain fact is harmless where that fact is established by other undisputed evidence. In this case, after reviewing the entire record, the fact that the deceased had threatened to take the life of the appellant, and of the person he claimed to be defending, was established by other evidence which was undisputed. Rules of Appellate Procedure, Rule 45; McLemore v. Alabama Power Company, 289 Ala. 643, 270 So.2d 657; Hayes v. State, Ala.Cr.App., 395 So.2d 127; Certiorari Denied, 395 So.2d 150; Bush v. State, 282 Ala. 134, 209 So.2d 416; Thomas v. State, 41 Ala.App. 19, 122 So.2d 731.

The appellant’s fourth contention in his brief is that the trial court unduly restricted his right of cross-examination of two of state’s witnesses. The range and extent of cross-examination of a witness is a matter within the sound discretion of the trial court, and if the trial court determines that a question, or course of questions, is not of a material issue in the case, this Court should not reverse the determination of the trial court, unless the record reveals a clear abuse of discretion by the trial court by unduly restricting appellant’s right of cross-examination of the witness. We have examined the record and find no abuse of discretion by the trial court in this case. Seals v. State, 282 Ala. 586, 213 So.2d 645; Renfroe v. State, Ala.Cr.App., 382 So.2d 627; Certiorari Denied, Ala., 382 So.2d 632; Daniels v. State, Ala.Cr.App., 375 So.2d 523.

Appellant’s fifth contention in his brief is that the trial court erred to his prejudice by allowing a pathologist to give his opinion as to the cause of the death of the deceased. The state called Dr. Brian K. Montgomery who testified, in substance, the following: That he lived in Mobile, Alabama, and was a pathologist at the Mobile Hospital; that he received an M.D. degree from the University of London in England; attended the medical school at the University of Texas, in Galveston, Texas, and the University Medical School in Birmingham, Alabama, where he specialized in pathology; that he has been licensed to practice medicine in Alabama for 24 years, and has practiced in Mobile for the last 20 years; that he has performed autopsies for the determination of the cause of death on several thousand bodies; that on or about March 16,1979 he performed an autopsy on Lonnie Dean Weaver in the autopsy room of the Mobile Infirmary; that as a result of the autopsy he performed on the body of Lonnie Dean Weaver, his opinion as to the cause of death was due to loss of blood due to damage to the vital organs, the lungs, liver, and right pulmonary artery, caused by gunshot wounds, or the bullets. We hold that the trial court did not err to the prejudice of the appellant when Doctor Montgomery was allowed to state his opinion as to the cause of the death of the deceased. McElroy’s Alabama Evidence, Third Edition, Sec. 128.09.

State’s witness, Jurlean Weaver, had testified on direct examination that she and the deceased were divorced in 1974, and that they continued to live together after the divorce up until the fall of 1978. Later during the trial the state called Barbara Martin as a witness, and the trial judge allowed her to testify, over the objection of the appellant, that Jurlean Weaver and the deceased had continued to live together after the divorce, and slept together on a night in November, 1978. The appellant argues in his brief that the trial judge erred to appellant’s prejudice when he overruled his objection to this testimony of Barbara Martin, because it allowed the state to impeach its own witness, Jurlean Weaver. The relations, attitude, and feelings that existed between the deceased and Jurlean Weaver were material facts to be considered by the jury in arriving at its verdict in this case. We find no substantial difference between the above facts testified to by Jurlean Weaver and Barbara Martin. We hold that the trial judge did not err to the prejudice of the appellant by overruling his objections to questions to Mrs. Martin. We quote from McElroy’s Alabama Evidence, Third Edition, Sec. 165.01(9):

“There is no rule of law which precludes a party from proving the facts of his case or defense by any witness he may call even though the testimonies of his various witnesses concerning a relevant fact may be in conflict with each other.”

It appears that the deceased, Lonnie Dean Weaver, and Jurlean Weaver were husband and wife, and had three children. That their married life was wrought with many difficulties, and ended with a divorce in 1974. That after the divorce in 1974, and up until the fall of 1978, they continued to live together. That the appellant began to go with Jurlean Weaver. That the deceased made threats to harm or kill the appellant and Jurlean. That on the 15th day of March, 1979 the appellant and Jurle-an Weaver were parked and were sitting in appellant’s car in front of Mrs. Orlowski’s house when the deceased, driving Jurlean’s ear, pulled up beside appellant’s car. That Jurlean got out of appellant’s car and, after having a few words with the deceased, began to run toward Mrs. Orlowski’s house. That the deceased got out of the car he was driving, and caught Jurlean and began to beat her about the head with his fist. That after deceased had hit Jurlean several times, the appellant got out of his ear and told the deceased to stop beating Jurlean, and that the deceased stopped beating her, and turned toward the appellant, and the deceased made a motion as if to draw a gun from under his shirt. The appellant testified that the appellant had a pistol, and shot the. deceased. There was no evidence that the deceased had a weapon of any kind. The appellant then went to the police officers and told them what he had done, and at his trial asserted the defense of self-defense. Under proper instructions from the trial court, the jury returned a verdict of manslaughter in the first degree, and fixed his punishment at 5 years in the penitentiary. All of state’s evidence was sufficient to sustain a jury verdict of first degree murder if believed by the jury, and the appellant’s evidence was sufficient to sustain the appellant’s defense of self-defense if believed by the jury. We hold that the credibility of appellant’s evidence of self-defense is for the jury. They may accept it as true or reject it. The trial court did not err in submitting the matter to the jury for a determination, and in overruling appellant’s motion for a new trial. Kemp v. State, 278 Ala. 637, 179 So.2d 762; Dan dridge v. State, 283 Ala. 271, 215 So.2d 714; Carpenter v. State, Ala.Cr.App., 400 So.2d 417; Certiorari Denied, Ala., 400 So.2d 427.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Alfred James LAW v. STATE.
    1 Div. 291.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    William E. Kimbrough, Thomasville, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

There is no contention by appellant that the evidence was not sufficient to sustain the verdict of the jury finding him guilty of rape in the first degree. The evidence convinces us that there is no reasonable basis for such a contention. The alleged victim testified positively that between about 3:00 A.M. and 4:00 A.M. on February 21, 1981, after she and appellant and others had been together at some parties, appellant drove her in an automobile to an isolated area and caused her to submit to sexual intercourse with him by wrapping a belt around her neck, choking her and threatening to kill her. § 13A-6-61 provides:

“(a) A male commits the crime of rape in the first degree if;
“(1) He engages in sexual intercourse with a female by forcible compulsion.”

Appellant denied that he had ever had sexual intercourse with the alleged victim. A jury issue as to his guilt was presented, and the trial court was not in error in overruling defendant’s motion for a new trial on grounds relative to the sufficiency or weight of the evidence.

During the closing argument of counsel for the State, the following occurred:

“MR. McPHEARSON: [District Attorney]:
“Mr. Gilmore says this young lady in here, Linda Rogers, after this event happened and she reported it to the law, why didn’t she go down that road and carry the law down there where this thing took place at? Well, ladies and gentlemen, the answer to that is very simple. I want to show you why — this picture right here. Ya’ll look at this picture. It’s a hospital bed, ladies and gentlemen, she wasn’t able to go down that dirt road that night, ladies and gentlemen. She was in the hospital, and in the hospital for a couple of days.
“MR. GILMORE [Defendant’s counsel]:
“Now, Your Honor, we object. There is no evidence that she was in the hospital for a couple of days.
“THE COURT: I sustain that. There is no evidence of that and I will exclude that from you, ladies and gentlemen.
“MR. McPHEARSON: Ladies and gentlemen, how can she go down the dirt road when she is in the hospital?
“MR. GILMORE: Your Honor, we object and you’ve done told—
“THE COURT: —Mr. McPhearson, I don’t recall any evidence of her being in the hospital and I exclude that from the ladies and gentlemen of the jury.”

Appellant argues in his brief that the quoted statement of the District Attorney “was so damaging as to have unduly influenced the jury in its verdict, and that even though the jury was told not to consider it, “it would be impossible for it to be completely purged from the minds of the jurors.” We do not agree that the argument was of such a highly prejudicial nature that it justified any stronger action in favor of the defendant than that taken by the court. Furthermore, it is to be noted that there was some evidence that some time after the alleged rape, the alleged victim went to the hospital where she was examined and found to have had some trauma to her neck and that there had been recent sexual intercourse with her.

In one ground of his motion for a new trial, defendant alleges, “There is evidence of alleged misconduct by the jury which would cause prejudice against the defendant.” On the hearing of the motion for a new trial, defendant attempted to show by the testimony of one of the female jurors that another female juror had made a statement during the deliberations of the jury to the effect that “She had once been a rape victim.” Upon questioning the witness, the following occurred:

“Q. Would you tell the Court what words she did use?
“MR. McPHEARSON: Judge, at this point we are going to object to any testimony concerning this unless the proper predicate has been shown here as regards this testimony. There has been no testimony brought out here today that on voir dire or any matter like that that there were questions asked at that time concerning whether any person had been a rape victim.
“Until that is proven I don’t think that would be relevant to inquire into discussions that were held back in the jury room.
“MR. KIMBROUGH: Your Honor, we’ve got a couple of cases on Taylor v. State, (18 Ala.App. 466) 93 So. 78, Martin v. State, (22 Ala.App. 154) 113 So. 602, says that a juror may not testify as to their deliberations to impeach the verdict of the jury but that extrinsic facts may be testified to.
“It’s our contention that if in fact one member of the jury had been a victim of a similar crime, that would constitute an extrinsic fact or evidence that should have been outside the deliberations of the jury.
“THE COURT:
“Is there anything in this record that shows that the jury was asked that question on voir dire?
“MR. KIMBROUGH:
“I have not been provided with a copy of the record, Your Honor, and I was not representing the defendant at the trial. I do not know.
“THE COURT:
“I sustain the objection.
“MR. KIMBROUGH:
“No further questions.”

In urging that the court committed error in not allowing defendant to show by the witness, a female juror in the case, that another female juror had said in effect that “she had once been a rape victim,” appellant continues to rely upon Taylor v. State, 18 Ala.App. 466, 93 So. 78 (1922) and Martin v. State, 22 Ala.App. 154, 113 So. 602 (1926), arguing that they stand for the proposition that, even though the verdict of a jury cannot be impeached by an affidavit or testimony of a juror as to what was said among the jurors during their deliberations, the evidence sought to be introduced constituted “extrinsic evidence” and should have been admitted as a recognized exception to the rule that forbids the impeachment of a verdict by the testimony or affidavit of a juror as to what transpired among the jurors during their deliberations. Taylor v. State, supra, involves such “extrinsic evidence” or evidence as to extraneous facts, in that it pertained to information that had been improperly communicated to some of the jurors by the sheriff, as distinguished from information that passed from one or more jurors to other jurors while all of the jurors, and no one else, were deliberating in the jury room. Martin v. State, supra, is not as readily distinguishable. We now consider it.

In Martin v. State, supra, the then Alabama Court of Appeals reversed the trial court for its refusal to allow the defendant on its motion for a new trial to show that one of the jurors revealed during the deliberations of the jury that he had knowledge of facts that were in conflict with the testimony of the defendant. There was a reversal by the Supreme Court of Alabama, 216 Ala. 160, 113 So. 602, not on the merits of what the Court of Appeals had held but on the ground that appellant had failed to show an exception to the ruling, as was then required. The Court of Appeals based its conclusion largely on the provisions of Code 1923, § 5634, identical with Code 1975, § 12-16-7, as follows:

“If a juror has personal knowledge respecting any fact in controversy, he must declare it in open court during the trial; and, if during the retirement of the jury a juror declares a fact as of his own knowledge which could be evidence in the case, the jury must forthwith return into court and such juror must, in either case, be sworn and examined as a witness in the presence of the parties.”

In Lackey v. Lackey, 262 Ala. 45, 55-56, 76 So.2d 761 (1954), in reaffirming the principle that the verdict of the jury could not be impeached by testimony or affidavits of jurors as to what transpired among them while deliberating, the Court gave special attention to Code of 1940, Tit. 30, § 7, the successor to Code 1923, § 5634 and the predecessor of Code 1975, § 12-16-7 by stating:

“In this connection we are cited to the provisions of § 7, Title 30, Code of 1940. There is nothing in this statute, however, which forms an exception to or is inconsistent with the general rule to which we have referred. Under the provisions of this statute while the jury is in its deliberations, if a juror declares a fact as of his own knowledge which could be evidence in the case, the jury is admonished and directed forthwith to come back into court so that the juror may be sworn and examined as a witness. But this does not mean that after a jury has concluded its deliberations and returned its verdict that the verdict may be impeached by a showing of statements made by a juror during the deliberations.”

We are unable to reconcile what was held by the Alabama Court of Appeals in Martin v. State, supra, with what was held by the Alabama Supreme Court in Lackey v. Lackey, supra. We are bound by the latter. In addition, we observe that what was sought to be shown by the evidence on the motion for a new trial in the instant case was not that one of the jurors had personal knowledge of material facts and should have been a witness in the case.

We believe that appellant is mistaken in his notion that a prospective female juror is necessarily disqualified to serve as a juror, or is necessarily subject to challenge for cause by the defendant, in a rape case. It could well be, as the trial judge obviously thought, that by questioning such a prospective juror prior to the selection of the jury it could be shown that she was disqualified, and that defendant could have had the right to have had her so questioned in order to determine whether she was qualified and as information for the defendant to consider in determining what prospective jurors he would strike. We realize that perhaps in most instances, if the questioning did not show that she was disqualified in the case, the defendant would have elected to strike her. This is not certain, however, for by the questioning it may have developed that defendant would have been convinced that he should not strike her.

The trial court was not in error in determining that as defendant had never exercised his right to a voir dire interrogation of the prospective jurors to disclose whether any of them had ever been raped, defendant was not entitled to a new trial on the ground that one of the jurors trying the case had previously been the victim of rape.

In an amendment to the motion for a new trial, defendant alleged that there was newly discovered material evidence, which was set forth in an affidavit of Glenda Portice, in pertinent part as follows:

“Affiant shows that after all the evidence had been received in the trial of the above case and after the jury had returned to the courtroom and announced that it found the defendant guilty as charged, she was told by Sam Henley that he was responsible for the crime for which the defendant was found guilty. This statement is not an exact quote but is representative of the statement made by Sam Henley to the best of my knowledge and recollection.”

The affiant testified on the hearing of the motion for a new trial. She said that the exact words of Sam Henley were, “I’m the one who beat Linda Rogers whorish a—.” Appellant says in his brief that such testimony constituted evidence “that another individual had made the statement that he committed the crime of which the appellant stands convicted.” We are not sufficiently cognizant of all implications of the words alleged to have been stated by Sam Henley, in which we have truncated the last two letters as it is obvious to all what they were, to agree with appellant in his contention that there was newly discovered evidence that another person had stated “that he committed the crime for which the appellant stands convicted,” but even if so, it would not have been a valid ground for a new trial. The particular evidence would not have been admissible on the trial of the case and would not be admissible on any retrial thereof, for the reason that it constitutes hearsay.

“The proposed testimony of thé witness Warren Lancaster, to the effect, or which would have tended to show, that one Lee Lancaster had admitted or confessed to the witness that he, Lee Lancaster, killed Will Welch, for whose murder defendant was being tried, was the merest hearsay, wholly irrelevant and incompetent and the court properly excluded it from the jury. — 3 Brick. Dig. p. 287, § 592; State v. Duncan, 6 Ired.L. (28 N.C.) 236; State v. Haynes, 71 N.C. 79.” Welsh v. State, 96 Ala. 92, 96, 11 So. 450 (1891-92).

It has been correctly reasoned since Welsh v. State, supra, that such evidence would be inadmissible on any retrial and it would not furnish a basis for granting a motion for a new trial. See Prince v. State, Ala.Cr.App., 356 So.2d 750 (1978), which collates intervening authorities on the subject.

There was no error in overruling defendant’s motion for a new trial.

We have vainly searched the record for error prejudicial to defendant. 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: DeCARLO, Judge.

text:
    Roger A. MARVIN, alias v. STATE.
    4 Div. 912.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    L. Joel Collins of Smith, Smith & Collins, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen. and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Robbery, first degree; sixteen years.

On September 2, 1980, Raymond K. Stephens, the victim, was operating a radio cab in Columbus, Georgia. At approximately 2:30 A.M., he picked up the appellant-defendant and co-defendant. The appellant got into the back seat and the other man rode in the front next to the driver. Appellant asked Stephens to drive them to Phe-nix City and after going to two different night clubs which were closed, Stephens was asked to take them the back way to Fort Benning. The cab driver informed the two that he did not drive that road at night. According to Stephens the appellant pulled a gun and told him to “stop the damn cab.” Stephens recalled that he “had the feeling they wanted to kill me anyway,” so he accelerated in an attempt to get to a nearby service station. At that time, the man sitting in the front passenger seat next to Stephens hollered back, “This son of a bitch is not going to stop; shoot him.”

Stephens testified that he was then shot twice in the back but he did not feel anything. He stated that the man sitting in the front seat next to him started hitting him in the head with a Coca-Cola bottle while the appellant in the back seat was beating him with a gun. Stephens said he drove his cab to a nearby Chevron station just across the Georgia line into Columbus. Stephens recalled that when he drove into the station, the attendant came out and the two men in the cab jumped out and ran.

On September 2, 1980, Wilford J. Marsh was working as a clerk at the service station. Around 3:00 or 3:30 A.M., Marsh’s attention was drawn to “loud squealing tires.” He turned and saw a blue and white taxi-cab jump the center median in the road and then go over the median immediately in front of the service station. The cab “swerved up” in front of the service station and the driver opened the cab door and started stumbling and swaying. Marsh saw blood coming from the cab driver’s mouth at the time. As Marsh ran to Stephens he heard the victim yell, “Help me, help me; they are trying to rob me.”

Phenix City Police Detective Sgt. Joe Edwards testified outside the presence of the jury that he saw the appellant at the Columbus, Georgia Police Department. Edwards advised the appellant of his rights as mandated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and appellant said he understood those rights. Edwards said that neither he nor Detective Arrington from the Phenix City Police Department made any threats or promises to induce the appellant to make a statement. Edwards recalled that he asked the appellant if he wanted to talk to him about “the attempted robbery and assault on the cab driver.” The appellant responded at that time, “Yes, me and David did that and I want to be straight with you and tell you what happened.” Edwards testified that he wrote the statement in longhand as the appellant told him what had occurred. Edwards said that the statement was taken on September 4,1980, was signed by the appellant, and was witnessed by Detective Arrington and himself.

The appellant took the stand in his own behalf and testified out of the presence of the jury. He stated that the officer said that it would be a “lot easier on me if I signed the statement.” Further, he said that the officer failed to read him his constitutional rights.

At the end of the hearing, the court ruled it would admit the confession and Detective Edwards was permitted to read to the jury the following statement:

“About five of us were staying at the Candlelight Motel. A guy named Douglas, John, Floyd É. Pitts, myself and David Thomas. Me and David left to catch the cab by the Columbus Motor Lodge. This was about 2:30 or 2:45 in the morning. We told the driver to take us to the H & D center in Phenix City. We left the H & D and went to Richardson’s. We left Richardson’s and was coming up a side street and Davis told me to pull the [sic] out. I pulled it out just before we got onto the expressway and told him to pull over. He did not pull over but speeded up. I yelled for him to stop the car but he didn’t. He reached back for something and I fired the gun. I think I fired before he reached back. I fired the first time and it missed fired, the second time it fired, the third time and fourth time it missed fired and the fifth time it fired. He was yelling, ‘Don’t shoot me no more, please, don’t shoot me no more.’ We told him to stop and Davis picked up a bottle and started hitting him in the face. I’m not sure if it was a Coke or a beer bottle. I hit him in the back of the head with the gun and tried to knock him out. It did not knock him out and he pulled into a gas station. He jumped out of the car and started yelling, ‘They are robbing me, they are robbing me.’ It was about 15 or 20 people watching this. I think this gas station was in Columbus. When he pulled into the gas station and we jumped out of the car and Davis told the people, ‘Yea, someone tried to rob him,’ and I said, ‘Let’s get out of here.’ Then we ran around the gas station to the apartment complex and we saw a security guard and talked to him and then we ran again. We ran into an abandoned house. We left the gun in the house to start and when I went back to get it, David had already got it and he said he lost it or it was stolen.
“This is a true and correct statement made by me with no threats or promises made to me.”

At the completion of the State’s case, the appellant made a motion to exclude the State’s evidence. Appellant argues that his motion to exclude should have been granted because 1) the State failed to present evidence to show that he robbed the cab driver or that the actions taken by him were done with the intent to rob, and 2) the State failed to establish that there was a theft or that the money alleged to have been taken was the property of the victim, Raymond K. Stephens. The motion was overruled and the appellant rested his case without presenting any evidence.

I

The appellant contends that the denial of his motion to exclude the State’s evidence was error because the State failed to present evidence of a theft of money from the victim.

Robbery in the first degree is defined in § 13A-8-41, Code of Alabama 1975, in the following manner:

“(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
“(2) Causes serious physical injury to another.
“(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.
“(c) Robbery in the first degree is a Class A felony.”

Section 13A-8-43, Code of Alabama 1975, which must be violated in order to constitute robbery in the first degree, reads:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power or resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.
“(b) Robbery in the third degree is a Class C felony.”

“In the course of committing a theft” is defined in § 13A-8-40, Code of Alabama, 1975, as follows:

“(b) ‘IN THE COURSE OF COMMITTING A THEFT’ embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.”

Section 13A-4-2, Code of Alabama 1975, defines attempt. That section states:

“(a) A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.
“(b) It is no defense under this section that the offense charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such offense could have been committed had the attendant circumstances been as the defendant believed them to be.”

Further explanation of the law as it pertains to the facts in the present ease is found in the commentary to §§ 13A-8-40, and 13A-8-44, Code, supra. There we find:

“The Criminal Code adds two new methods of committing robbery. The first, use or threat of violence in an attempted theft, simply combines into robbery the present separate offense of assault with intent to rob. Present Alabama law does not generally concern itself with how much money or property was taken. However, the failure to take any money or property reduces the offense to assault with intent to rob.
“The practical effect of this change is to provide an identical penalty range for robbery and assault with intent to rob, which is justified because the conduct is equally dangerous whether or not the theft is technically completed.” [Citations omitted]

The commentary concludes that:

“[T]he basic theory of this chapter is to protect the citizen from harm and from fear for his or another’s health and safety, as well as the protection of his property.”

The facts are undisputed in this case that the appellant and his companion entered the victim’s cab in the wee hours of the morning on September 2, 1980. Appellant pulled a gun, placed it at the victim’s neck, and then shot him in the back twice when the victim failed to stop the cab.

Under § 13-1—46, Code of Alabama 1940 (Recomp.1958), this set of facts would have established an assault with intent to rob. See Harris v. State, Ala.Cr.App., 366 So.2d 377 (1979). The commentary to the current robbery statutes indicates that the former offense of assault with intent to rob has been merged into the present offense of robbery. Ala.Code §§ 13A-8—40—44 (Commentary). Therefore, facts constituting the offense of assault with intent to rob under the former code now establish the crime of robbery under the current statutes.

Furthermore, both the victim’s statement to the gas station attendant and the appellant’s confession tend to strengthen the inference that robbery of the cab driver was intended. Inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, although such facts and circumstances, standing alone, would not satisfy the jury of the existence of the offense. Bryant v. State, 33 Ala.App. 346, 33 So.2d 402 (1948); Hill v. State, 207 Ala. 444, 93 So. 460 (1922).

A close reading of the appellant’s statement, which we find to be voluntary and not coerced by promises or threats, along with the other foregoing facts, indicates that the State presented a prima facie case of robbery under the current statutes.

The evidence required the question of the appellant’s guilt to be submitted to the jury and was sufficient for the jury reasonably to infer that the robbery charged to the appellant was committed. Johnson v. State, 247 Ala. 271, 24 So.2d 17 (1945); Taylor v. State, 276 Ala. 232, 160 So.2d 641 (1964).

We have searched the record and have found no error; therefore, the judgment of conviction by the Russell Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    James Irvin TYREE, alias James E. Tyree, alias James I. Tyree v. STATE.
    6 Div. 563.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.

      John A. Bivens of England & Bivens, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the offense of buying, receiving or concealing stolen property. Alabama Code 1975, Section 13-3-55. Sentence was four years’ imprisonment.

I

The defendant argues that the evidence presented at trial does not show that he had knowledge that the property was stolen.

To establish the offense of buying, receiving or concealing stolen property it must be proven beyond a reasonable doubt that (1) the property was stolen; (2) that the accused bought, received or concealed it; (3) knowing that it had been stolen; and (4) that the accused had no intention of returning it to the owner. Boyd v. State, 150 Ala. 101, 43 So. 204 (1907); Fulton v. State, 8 Ala.App. 257, 62 So. 959 (1913). Guilty knowledge or scienter may be inferred by the jury from the facts and circumstances surrounding the entire transaction. Vacalis v. State, 204 Ala. 345, 86 So. 92 (1920); Waters v. State, 360 So.2d 358 (Ala.Cr.App.), cert. denied, 360 So.2d 367 (Ala.1978).

The guilty knowledge may be inferred from the unexplained possession of recently stolen property. Boyd, supra.

“(P)ossession of recently stolen property gives rise to a permissible inference of knowledge on the part of the possessor that the property had been stolen, unless the possession thereof is accounted for in a reasonable and satisfactory manner consistent with the circumstances of the possession. Stanley v. State, 46 Ala.App. 542, 245 So.2d 827, cert. denied, 286 Ala. 738, 245 So.2d 828 (1970); Character v. State, 51 Ala.App. 589, 287 So.2d 916, cert. denied, 291 Ala. 775, 287 So.2d 919 (1973); Rhone v. State, 53 Ala.App. 338, 299 So.2d 781 (1974). The reasonableness of the explanation given by one in possession of recently stolen property is to be determined from all the circumstances, and, if reasonable people can come to a different conclusion on the subject, the question of whether the explanation is reasonable is one to be determined by the jury. Haynes v. State, 40 Ala.App. 106, 109 So.2d 738 (1958).”
Ford v. State, 383 So.2d 601, 603 (Ala.Cr.App.1980).

The receipt of stolen goods under circumstances which would induce a man of ordinary observations to believe that they had been stolen may constitute evidence of guilty knowledge. Collins v. State, 33 Ala. 434 (1859). “(G)uilty knowledge may be inferred from the fact that the receiver purchased the goods for very much less than their value.” Fulton v. State, 8 Ala.App. 257, 263, 62 So. 959 (1913). The fact that the transfer of stolen property was made clandestinely or secretly may evidence a felonious intent, Boyd v. State, 150 Ala. 101, 43 So. 204 (1907), as may the false denial by a receiver of stolen goods that he received the property. Fulton v. State, 8 Ala.App. 257, 62 So. 959 (1913).

The issue of the failure of the State to present a prima facie case was raised for the first time in the motion for new trial. Consequently, in reviewing the question of the sufficiency of the evidence to support the conviction we may look to all the evidence presented at the defendant’s trial and are not limited to only the evidence presented by the state in its case in chief. Compare James v. State, 339 So.2d 1047 (Ala.Cr. App.), cert. denied, Ex parte State ex rel. Atty. Gen., 339 So.2d 1052 (Ala.1976).

Viewing the evidence in the light most favorable to the prosecution as we must, Johnson v. State, 378 So.2d 1164 (Ala. Cr.App.), cert. quashed, Ex parte Johnson, 378 So.2d 1173 (Ala.1979), the testimony shows that the defendant had a prior conviction for petit larceny and that he knew Willie Sledge and “occasionally” associated with him. Sledge also had a prior criminal record of which the defendant was aware. The evidence supports the finding that, the day after four guns were stolen from Mr. J. D. Christian, Sledge and Eugene Williams either sold or pawned one rifle and one shotgun to the defendant in exchange for $22.50 worth of pills (five pills consisting of “Talwin and Blues”). These two weapons had a fair market value of $125.00.

Although Williams told the defendant that the weapons were not “hot”, it would be reasonable to conclude that the defendant at least suspected the weapons had been stolen because he asked if they were “hot”. Sledge admitted on cross examination by defense counsel that “at times” he dealt in fencing hot merchandise.

The evidence also shows that the defendant returned the two weapons to Sledge who owed the defendant $26.50 for the “pawned” weapons. In a confession. the defendant admitted that he returned the weapons on partial payment of the $26.50 because he had heard that the guns were stolen and wanted to get rid of them.

In his own defense, the defendant claimed that he held the weapons as security for a loan made to Sledge; that he did not give Sledge any pills; that Sledge had pawned other items to him in the past; that initially he had been assured by Sledge and Williams that the weapons were not hot; that after he overheard a conversation about some weapons having been stolen from Mr. Christian, he began looking for Sledge to return the weapons.

The resolution to the argument presented by the defendant is clear. The State’s evidence proved and the defendant admitted having possession of recently stolen property. The defendant’s intent and the reasonableness of his explanation of his possession of the property were matters only the jury could determine. Ford, supra; Johnson v. State, 349 So.2d 110 (Ala.Cr.App.), cert, denied, Ex parte State ex rel. Atty. Gen., 349 So.2d 113 (Ala.1977). This is far from being a case where the jury’s verdict is contrary to the great weight of the evidence and manifestly unjust. Under the facts, the jury’s verdict is reasonable and supported by the evidence.

II

We find no error in the opening remarks of the prosecutor. From the record:

“MR. SUMMERFORD (Assistant District Attorney): Now, I mentioned to you in my opening statement that one of our witnesses would be a person with a criminal history, and I expect that our evidence will show Mr. Sledge, Jr. has an extensive criminal history, but of course I am sure you know criminals deal only with other criminals, and as a result the circumstances in this case require us—
“MR. BIVENS (Defense Counsel): Your Honor, if the State expects the evidence to show that criminals only deal with criminals, then I am prepared to withdraw my objection. If they are not prepared to put that evidence on the witness stand, then, Your Honor, I tender my objection to this form of opening statement.
“MR. SUMMERFORD: We intend to show in this case what happened.
“THE COURT: Well just make your statement brief and please confine it to what you expect the evidence to show. I don’t know what it will be, just confine it to what the record will show. You gentlemen know how I rule or have a pretty good idea.
“MR. BIVENS: Your Honor, I would like to have a ruling on that objection.
“THE COURT: Well, I don’t know how to rule. I will just overrule, I suppose. I will just ask you to confine your remarks to what you expect the evidence to show, and you know what the evidence is.
“MR. BIVENS: We take an exception to your ruling, Your Honor. That is improper.
“THE COURT: What do you mean it is improper?
“MR. BIVENS: I beg your pardon, sir?
“THE COURT: You said my ruling is improper?
“MR. BIVENS: No, sir. I was simply—
“THE COURT: The opening statement is merely to let the jury know what you expect the evidence to be. I ask that you not argue the case or go beyond just what you expect the evidence to show, but go ahead, please.” (Emphasis added)

In light of the State’s evidence and the remarks of the trial judge, we find no error in this portion of the record despite the fact that the judge did overrule defense counsel’s “conditional” objection.

The State’s evidence proved that Sledge did in fact have an extensive criminal record of eight prior felony convictions and that he had known and “associated” with the defendant for “about two or three years”, that the defendant sold Sledge some “pills”, and that the defendant told Sledge that he was going to get Sledge some pills and “take care of” Sledge. On cross examination of Sledge, defense counsel elicited testimony that showed that Sledge and the defendant were friends; that the defendant had loaned Sledge money before; that Sledge “at times” dealt in “fencing hot merchandise”; that Sledge could not buy the pills he got from the defendant at the store; and that Eugene Williams had also gotten some pills from the defendant. The State also proved, in its case in chief, that the defendant knew that the guns had been stolen and gave them back to Sledge on a “partial payment” of the loan or pawn because he did not want to get caught.

The propriety of counsel’s argument to the jury depends on the particular issues, facts and atmosphere of each case. Bryson v. State, 264 Ala. 111, 84 So.2d 785 (1956).

In his opening statement the prosecutor may and should “state to the jury the case as he proposes and expects to present it to them on the evidence.” Mann v. State, 134 Ala. 1, 18, 32 So. 704 (1902). “At most these preliminary statements . are tentative and intended to give the jury a general grasp of the case that they may be the better able to understand and apply the facts as they are developed in the course of the trial; and they constitute no evidence of the facts nor in any sense take the place of evidence.” Mann, 134 Ala. at 18.

While we find that no reversible error was committed in this particular case, argument touching matters of common or general knowledge is not without bounds or restrictions.

“Even though evidence of such facts has not been formally introduced, it is proper for counsel to argue to the jury matters of common knowledge or matters of which the court will take judicial notice, to refer to well-known facts in history, literature, science, and the public press by way of illustration and ornament, or to read extracts from general histories for the purpose of refreshing the memory oí the court as to something it is supposed to know. However, it is improper in argument, even by way of illustration, to refer to facts which are merely matters of general belief and common opinion, rather than of established history. The same is true as to appeals by counsel to the common knowledge and experience of the jurors themselves, although counsel is allowed a reasonable latitude of speech in this respect without being open to the charge of having abused his privilege to the injury of the opposing party.”

75 Am.Jur.2d, Trial Section 252 (1974).

Much is left to the discretion of the trial judge in limiting the latitude argument may take. Our review convinces us that this discretion was not abused in this particular case in light of the judge’s comments and remarks in overruling the objection.

Ill

The defendant’s third and final contention is that the trial judge’s instructions to the jury concerning reasonable doubt were so confusing and misleading that the jury was unable to reach a “fair and unprejudiced verdict.”

The charge of the trial judge, regarding the law of reasonable doubt contains correct legal principles and is stated without error. Defense counsel stated that he had no exceptions to the court’s oral charge to the jury. Our review convinces us that any alleged confusion in the collective mind of the jury was caused by the six written charges requested by the defendant and given by the trial judge. The confusion resulted from the defendant’s use of the following terms in his requested charges: reasonable doubt, fair and reasonable conclusion, reasonable hypothesis, reasonable grounds, reasonable explanation. The record clearly supports this explanation.

“MR. BIVENS: Your Honor, the only problem I have right now is that one of the jurors has said concerning the instructions to the jury and said this in front of the jury that none of these charges that were given by you contained the words reasonable doubt. Now, charge number one says reasonable doubt.
“THE COURT: Excuse me, let me interrupt. I said that several times.
“MR. BIVENS: Yes, sir, charge number two clearly says reasonable doubt. Charge number three says reasonable conclusion. It does not say reasonable doubt, but it says reasonable conclusion. Charge number four says reasonable doubt in two places. Charge number five says reasonable doubt and also says reasonable grounds.
“MR. SUMMERFORD: Your Honor, it is my impression, I think what he meant to say was reasonable grounds. I think that is what he is referring to when he said reasonable doubt. I don’t think he is talking about the burden of proof. I think he is talking about reasonable grounds for believing that the property was stolen. I know he used the words reasonable doubt. That was the impression I got.
“MR. BIVENS: Well, I am concerned that some of the other jurors may have gotten the other impression. I hate to keep having you to explain things to the jury, but I am concerned that maybe the charges you gave them, they do not understand.
“THE COURT: John, I feel like I have already done all I can. You all may except. If you can, be specific as to your exception. I have used that word reasonable doubt. I get the impression they are hung up on the word reasonable, and perhaps they are, but I just can’t say much more, I don’t think. Do you want to except to anything? You may do so.
“MR. BIVENS: I feel I must except, Judge. I think you have done your job on it.”

Initially we note that defense counsel excepted after acknowledging that the trial judge had “done his job.” If this is so, then why does counsel object and what further action could or should the trial judge have taken? We also note that the defendant cannot predicate error on confusion caused by the particular wording of his own written requested charges. An accused cannot “invite” error and then seek to profit thereby. Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965).

There is nothing in the record to indicate that any of the jurors were still confused after the trial judge answered their questions.

We have searched the record and found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Robert WILSON, alias v. STATE.
    7 Div. 861.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.

      Lee Clyde Traylor, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Burglary, second degree; sentence: four years’ imprisonment.

The sole issue presented for review is whether the appellant was denied a speedy trial in violation of the sixth amendment to the United States Constitution and article I, § 6, of the 1901 Alabama Constitution. We hold that the seven-year delay between appellant’s arrest and trial did deprive him of his right to a speedy trial.

The following timetable chronicles the facts of the case pertinent to this issue:

November 25, 1973 — Defendant was apprehended and arrested by a Collinsville policeman at the burglarized National Guard Armory in Collinsville.

November 28, 1973 — Defendant posted bond. Defendant’s future attorney signed bond as surety.

December 20, 1973 — Defendant retained Lee Clyde Traylor as his attorney.

January 17, 1974 — Defendant indicted.

February 5, 1974 — Defendant’s attorney filed a motion to be released from bond. Motion indicated that defendant was incarcerated in the Hamilton County jail in Chattanooga, Tennessee, and a hold had been placed on defendant by DeKalb County authorities at attorney’s request.

June 24,1974 — Defendant’s attorney filed a motion to be released from bond. Motion reflected that defendant was being held at the Davidson County jail in Nashville, Tennessee. Motion indicated that a hold had been placed on defendant by DeKalb County authorities at attorney’s request.

September 5,1974 — Defendant’s attorney filed a motion to be released from bond. Motion stated that defendant was imprisoned at the Fulton County jail in Atlanta, Georgia. Motion indicated that a hold had been placed on defendant by DeKalb County authorities at attorney’s request.

September 13, 1974 — Letter from Fulton County, Georgia, sheriff’s office to DeKalb County sheriff stating that defendant had been held in custody at the Fulton County jail since July 11, 1974, and that Hamilton County, Tennessee, had placed a hold on defendant. However, letter noted that Tennessee had not initiated any extradition proceedings as of this date.

September 24, 1974 — The “Motion to be Released from Bond” of defendant’s attorney was denied since “to grant the Motion would work an undue hardship upon the State of Alabama, or it might be reasonably anticipated that an undue hardship would be worked upon the State of Alabama in bringing the defendant back to this jurisdiction.”

October 11, 1974 — Defendant filed a motion for a speedy trial. Motion stated that defendant was incarcerated at the Fulton County jail in Atlanta, Georgia, on this date.

December 12,1974 — Defendant’s attorney requested and was granted a continuance due to family illness.

January 27, 1975 — Teletype message from Fulton County, Georgia, authorities informing the sheriff of DeKalb County that there would be no extradition hearing to Alabama or Kentucky because defendant had appealed his extradition to Tennessee. Message also said that defendant “indicated that he is not intending to waive extradition to any state.”

September 19,1977 — Defendant’s case set for trial. Bench note reflected that defendant was in a Kentucky penitentiary.

August 10, 1978 — Arraignment was scheduled, but bench note reflected that defendant failed to appear “due to his incarceration elsewhere.”

May 16, 1979 — Defendant filed second motion for a speedy trial. Motion indicated that he was currently confined but did not specify where.

June 28, 1979 — Defendant’s case set for trial, but was not reached and was continued.

September 12, 1979 — Case set for trial. Defendant failed to appear.

October 4, 1979 — Forfeiture entered against defendant and his bond.

March 3, 1980 — Case set for trial. Defendant failed to appear.

March 10, 1980 — Forfeiture entered against defendant and his bond.

November 24, 1980 — Defendant arrested pursuant to Alabama alias warrants. Defendant waived extradition from Fulton County, Georgia.

November 27, 1980 — Defendant committed to DeKalb County jail.

January 29, 1981 — Defendant filed motion to dismiss for lack of a speedy trial.

February 10, 1981 — Motion denied.

February 12,1981 — Defendant arraigned, tried and convicted of burglary in the second degree.

March 5, 1981 — Defendant sentenced to four years in the penitentiary.

March 10, 1981 — Defendant filed a motion for a new trial alleging, inter alia, violation of his right to a speedy trial.

Four factors must be considered when determining whether a criminal defendant has been denied his right to a speedy trial; namely, (1) length of the delay, (2) reason for the delay, (3) defendant’s assertion of his rights, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors are the basis for the ad hoc balancing process that we must employ in which the conduct of the prosecution and that of the defendant are weighed. Johnson v. State, 356 So.2d 769 (Ala.Cr.App. 1978).

Length of the Delay

The pretrial delay must be long enough to be “presumptively prejudicial” and thus “trigger” the court’s inquiry into the other Barker factors. Watson v. State, 389 So.2d 961 (Ala.Cr.App. 1981). The right to a speedy trial attaches “when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.” United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). Appellant’s arrest on November 25, 1973, constituted the initiation of a criminal prosecution for the application of the Barker test in this case. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); Prince v. State, 354 So.2d 1186 (Ala.Cr. App.), cert. denied, 354 So.2d 1193 (Ala.1977). Therefore, the time span between appellant’s arrest and trial on February 12, 1981, was a period of about seven years and three months. Certainly, this inordinate delay is “presumptively prejudicial” and “patently offensive” requiring our inquiry of the remaining Barker factors to determine whether the delay was “unjustified.” Corn v. State, 387 So.2d 275 (Ala.Cr.App.), writ denied, 387 So.2d 280 (Ala.1980).

Reason for the Delay and Defendant’s Assertion of His Right

As early as October 10, 1974, appellant filed a motion for a speedy trial. The motion indicated that the appellant was currently incarcerated in the Fulton County jail in Atlanta, Georgia. Courts have consistently held since the landmark case of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), that upon a defendant’s demand state authorities must make a diligent good-faith effort to secure the presence of the defendant for trial regardless of his incarceration in another state. Furthermore, it has been held that “[m]ere inquiries about release and availability are not compliance with this duty. Attempts at extradition or the issuance of a writ of habeas corpus ad prosequendum by the Alabama courts would have been in the nature of such affirmative action.” Prince v. Alabama, 507 F.2d 693 (5th Cir.), cert. denied, 423 U.S. 876, 96 S.Ct. 147, 46 L.Ed.2d 108 (1975); Corn, supra.

The record reveals no such attempts of this nature by DeKalb County officials. At the hearing on the motion to dismiss, these officials testified that, although they telephoned prison officials in other states, they were unable to locate the appellant during the seven-year period. They did not offer any proof that detainers had been placed on appellant during this time. Instead, appellant’s attorney in his motions to be released from his capacity as surety on appellant’s bond averred that he had DeKalb County authorities place detainers on the appellant in Georgia and Tennessee. However, De-Kalb County officials offered no corroboration that the holds were ever placed by them or received by Georgia and Tennessee.

DeKalb County authorities could not merely wait to take action until the accused was “available” to Alabama once he demanded his return for trial. Ex parte Slaughter, 377 So.2d 632 (Ala.), on remand, 377 So.2d 634 (Ala.Cr.App. 1979). We realize that appellant’s various incarcerations in Georgia, Tennessee and Kentucky during these seven years made it inconvenient for DeKalb County officials to ascertain his whereabouts, but it did not eradicate their duty to exert an affirmative effort to bring him back to Alabama for trial.

It was not until January 27, 1975, that DeKalb County received a Georgia teletype which stated that appellant would not waive extradition to any state. At any rate, the State did not offer to prove that Alabama had ever attempted to extradite the appellant from Georgia. A mere supposition that the appellant would refuse to waive extradition mentioned in the Georgia teletype should not be weighed against him. The possibility that another jurisdiction may refuse to cooperate is not the equivalent of asking and receiving a rebuff. Smith v. Hooey, supra.

Appellant filed two more requests for a speedy trial during these seven years. It therefore appears that the reason for the delay in this case was due to the inaction and negligence of Alabama prosecuting officials. While we must weigh this bureaucratic inertia less heavily than deliberate prosecutorial delay, Barker and Corn, supra, we nevertheless find that this was the major cause for the seven-year delay.

Since the first three Barker factors coalesce in appellant’s favor, we need not weigh the prejudice suffered by the appellant in our balancing test. Prince v. Alabama, supra. However, we note that appellant was over seventy years old when the case was finally tried, at least three witnesses had died in the interim, and some of the physical evidence could not be found. We conclude that the appellant was unconstitutionally denied his right to a speedy trial, and pursuant to Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), his motion to dismiss based upon this premise should have been granted.

REVERSED AND RENDERED.

All the Judges concur.


text:
    Walter MIXON, Jr. v. STATE.
    7 Div. 874.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.

      Ed W. Harwell, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was charged by information filed by the District Attorney with receiving stolen property. He was afforded youthful offender treatment and adjudged guilty. Sentence was thirty months’ imprisonment.

I

On June 29, 1980, Calvester Swain’s residence in Anniston was burglarized. On September 30, 1980, the defendant’s residence was searched pursuant to a search warrant and Mr. Swain’s shotgun, which had been taken in the burglary, was found. At trial, this shotgun was admitted over the objections of defense counsel on the grounds that “there has been no proof that any crime has been committed at all.”

Later in the trial, after the State announced that it had rested its case, defense counsel moved to “exclude the gun from evidence, at this time, based on illegal search and seizure.” This statement constituted the defendant’s entire objection to the alleged illegal search and seizure. There was no written motion to exclude.

On appeal, the defendant contends that the search of his residence and seizure of the shotgun were illegal because the search warrant was executed by an officer of the Anniston Police Department and not by a county law enforcement officer.

“(T)he provisions of the Alabama Code which deal specifically with the question limit the issuance and execution of search warrants to county law enforcement officers.” United States v. Martin, 600 F.2d 1175, 1179 (5th Cir. 1979); Rivers v. State, Ala.Cr.App., 406 So.2d 1021 (1981). The general objection made at trial to the “illegal search and seizure” did not specifically raise this issue and nothing in the record indicates that this matter was ever brought to the attention of the trial judge.

Although the search warrant itself shows that it was executed by Sergeant R. D. Stewart and the testimony at trial shows that Sergeant Stewart was a detective for the Anniston Police Department, the record is silent as to who else, if anyone, was present when Sergeant Stewart searched the defendant’s apartment. Specifically, there is nothing in the record to indicate whether the search warrant was executed by Sergeant Stewart in aid of a county officer and at that officer’s request as authorized by Alabama Code 1975, Section 15-5-7. We do not think that the burden was on the State to prove the proper execution of the search warrant in light of the general objection and in view of the fact that the particular alleged defect in the warrant’s execution was never brought to the attention of the trial judge.

The general rule is that a general objection which does not specify any grounds presents nothing for review. Steele v. State, 389 So.2d 591 (Ala.Cr.App. 1980).

The exception is that a general objection is sufficient to predicate error on appeal if the evidentiary matter to which it is addressed is patently inadmissible. Satterwhite v. State, 364 So.2d 359 (Ala.1978). The exception does not apply here because the search and seizure was not patently inadmissible and could have been made legal and admissible by the introduction of evidence showing that Sergeant Stewart acted at the request of and in aid of a county officer. Alabama Code 1975, Section 15-5-7. From the record — because the issue was never raised — we simply have no way of knowing whether this additional element could be proved.

We do not deem it an excessive or burdensome requirement that timely and specific objection be required to preserve error on appeal except in cases of the most clear, obvious and flagrant error. Fundamental fairness dictates that the trial court must be apprised of the basis of the objection with sufficient particularity to allow an informed decision to be made on the legal issue involved. Ward v. State, 376 So.2d 1112 (Ala.Cr.App.), cert. denied, Ex parte Ward, 376 So.2d 1117 (Ala.1979).

II

A review of the evidence shows that it is sufficient to support and sustain the circuit court’s adjudication of guilt.

A witness testified that she saw the defendant with the stolen shotgun in his front yard. Subsequently the shotgun was found at the defendant’s residence. Under these facts, the trial court was justified in finding the defendant guilty. Since the case was tried without a jury, the judge was the finder of fact. It was his function and duty to determine the credibility of the witnesses.

III

The trial judge sentenced the defendant to “the custody of the Director of the State Board of Corrections.” The Board of Corrections was abolished by legislative act on October 1, 1979. Alabama Code 1975, Sections 14-1-1 et seq. (Amended 1979). “(A)ll duties, responsibilities, powers ...” of the Board are now vested in the governor of this state. Section 14-1-16. Consequently, the judgment of conviction is affirmed and this cause is remanded to the Circuit Court for proper sentencing.

AFFIRMED; REMANDED FOR PROPER SENTENCING.

All Judges concur.


author: TYSON, Judge.

text:
    Jerry Ronald HENSON v. STATE of Alabama.
    8 Div. 531.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.

      Clyde D. Baker, Guntersville, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

The appellant was indicted for robbery in the first degree growing out of an incident which occurred on September 24, 1980, at the Jitney Jr. convenience store in Arab, Alabama. The jury found the appellant guilty of robbery in the first degree and following a sentencing hearing, the trial court fixed punishment at 20 years’ imprisonment.

Mrs. Sue Collier testified that she was cashier of the Jitney Jr. store and on duty at about 11:00 o’clock on September 24, 1980, and that another girl named Gay Haynes had also been working that day. She stated that Mrs. Haynes had just left when the appellant drove up and parked in front of the store. He came in and indicated that he wanted to purchase some gasoline. She described the vehicle that the appellant drove as being a large, dark green, older model, perhaps a Buick. She indicated that no one else was in the store at the time and that the appellant told her that he wanted to get some gas. She asked him how much and he said that he was not sure. Mrs. Collier told him he would have to leave a deposit with her. She said that the appellant stuttered a few moments, went out and said that he would come back and pay her. Henson then left the store and within a few moments returned and pointed a blue steel pistol at her and told her that this was a holdup. She stated that he then went to the cash register and removed the proceeds, amounting to $150.00, and that he also took a bank bag which was underneath on a shelf, but Mrs. Collier explained this only had receipts for deposits, not money in it. She stated that the pistol was pointed at her the entire time as the appellant removed the monies from the cash register and took the bank bag. Mrs. Collier indicated that the Jitney Jr. Store Number 8 was owned and operated by the Jo-Nee Corporation and was located on North Main Street in Arab, Alabama.

Mrs. Collier stated that she immediately called the police and a few moments later they answered the call and she gave them a description of the appellant and of his clothing and of the dark green automobile which he was driving.

Mrs. Collier also testified that she subsequently viewed a police lineup of six persons and immediately recognized the appellant as being the party who had come into the store on September 24, 1980 and robbed her. She made an in-court identification of the appellant based upon her viewing him at the time of the robbery. She described the appellant as having bloodshot, red eyes and a heavy beard. She gave this description to Officers Sanders and Parks, as well as Officer Walden.

The appellant was subsequently arrested on September 27, and taken to the Marshall County Sheriff’s Department, where he was interrogated. Officer Walden indicated that he gave the appellant a complete Miranda warning both at the time of his initial arrest and subsequently at the Marshall County Sheriff’s office, and that the appellant signed a waiver of his constitutional rights.

Officer Walden explained at trial that he had telephoned the appellant’s cousin, one Keith Staton, concerning the appellant’s whereabouts on the day in question and advised the appellant that he got a different or conflicting story concerning the appellant’s whereabouts.

Appellant, through David Henson and also Bill Henson, presented testimony that the appellant was at his grandfather’s home sleeping and had not been to the convenience store in question.

The appellant’s relatives did admit that the appellant owned a dark green Buick with a light green top.

■Mrs. Collier was recalled and identified a photograph and stated that the automobile in question appeared to be the one that the appellant was driving on the day in question.

I

The sole issue on appeal concerns the admission into evidence, over objection, of certain testimony with reference the telephone conversation which Officer Walden had with Keith Staton concerning the whereabouts of the appellant on the date in question. The appellant asserts as error the following, which occurred during Keith Sta-ton’s testimony on direct examination: (R. 159-163).

“Q Do you know the man seated at the end of the table down there?
“A Yes, sir.
“Q And who is that?
“A It is Ronnie Henson.
“Q How long have you known him? “A About twenty years.
“Q Is he related to you in some way?
“A Yes, sir.
“Q What is the relationship?
“A Cousins.
“Q First cousins?
“A Second.
“Q How old are you?
“A Twenty.
“Q How old is the Defendant?
“A Twenty.
“Q Do you recall receiving a telephone call from Officer Larry Walden, the man that just walked out of the courtroom here back in the latter part of September concerning — him questioning you about Ronnie?
“A Yes, sir.
“Q All right. Do you recall what questions — what he asked you?
“MR. BAKER: I object to any questions that he may have been asked. The conversation did not take place in the presence of the Defendant.
“MR. WALDROP: The conversation, Your Honor, took place—
“THE COURT: Overruled.
“MR. WALDROP: You can answer. “A He asked me if Ronnie spent the night with me a few nights before.
“MR. BAKER: I—
“Q What did you tell him?
“MR. BAKER: I object to the — certainly the Defendant has no way to cross examine this witness.
“MR. WALDROP: It is not hear — excuse me, Go ahead, Mr. Baker.
“THE COURT: Finish your objection, Mr. Baker.
“MR. BAKER: The Defendant has no way of cross examining this witness about what was said. He did not hear it. He simply was at one — present when Larry Walden made some telephone calls to somebody, but there is no evidence that this Defendant could possibly be aware of what he may or may not have said to Larry Walden.
“MR. WALDROP: May I respond, please, Your Honor?
“THE COURT: There is no need. Overruled.
“MR. WALDROP: Sir?
“THE COURT: Overruled.
“Q (By Mr. Waldrop) All right. What did you tell him?
“A I told him that he had come up there and woke me up, and I went back to sleep before he left. I don’t know whether he spent the night or not.
“Q Do you recall him asking you about what time that he may have gotten there?
“MR. BAKER: I object — I object to leading the witness.
“THE COURT: Sustained. Don’t lead, please.
“MR. WALDROP: All right. May he answer the question, sir?
“MR. BAKER: I—
“THE COURT: Rephrase it.
“MR. WALDROP: All right, Let me rephrase it. Let me rephrase my question.
“Q (By Mr. Waldrop) Was there any other conversation by Officer Walden other than did he spend the night there?
“A I don’t remember really.
“Q All right. Did in fact you see the Defendant a couple of nights earlier from the time that Officer Walden called you?
“A Yes, I saw him.
“Q All right. Where did you see him?
“A At my home.
“Q Do you have a judgment as to the approximate time of the day or evening that you saw the Defendant?
“MR. BAKER: I object to this line of questioning. I don’t see that it is related at all to the charges against the Defendant. I don’t even know what day.
“THE COURT: Well, you did not base your objection on that, but now that you have, sustained. It has not been designated what day, only the time.
“MR. WALDROP: All right, sir.
“Q (By Mr. Waldrop) Do you recall on the Wednesday before you received the telephone call from Officer Larry Walden — on the Wednesday before whether you saw the Defendant at any time of the day or the evening?
“A Yes, sir, I saw him.
“Q All right. Now, approximately what time of the day or evening would that have been?
“A Around midnight.
“Q All right. And was that at your house?
“A Yes, sir.
“Q Were you up at the time the Defendant arrived?
“A No, sir.
“Q I am sorry, I can’t hear you.
“A No, sir.
“Q Where were you at the time the Defendant arrived?
“A I was in bed.
“Q Was anyone else at the house?
“A Yes, sir.
“Q Who else was at the house?
“A My roommate.
“Q Who?
“A My roommate.
“Q Who is that?
“A Pat Patterson.
“Q Were you good friends — or friends with the Defendant?
“A Yes, sir.
“Q During the last several years?
“A Yes, sir.
“Q Do you know whether the Defendant within six months of this occasion that you have testified to — have you ever seen him driving a car?
“A Yes, sir.
“Q What kind of car?
“A It is a Buick.
“Q What color?
“A Green I believe.
“Q Now, do you know whether he was in the green Buick that evening that you have just testified about — on the Wednesday before?
“A No, sir, I don’t.
“Q You didn’t see the car?
“A No, I didn’t look at it.
“Q When he arrived, what did you do? “A I just opened the door and let him in. I was in bed.
“Q Did you go back to bed?
“A Yes, sir.”

In reviewing the record of this trial, we find that Officer Walden was allowed, without objection, to state the essence of his conversation with Keith Staton and this testimony was admitted without objection. R. 106-107, reading as follows:

“Q All right. After you asked him that, then what did you ask him?
“A I asked him had Ronnie spent the night down there on Wednesday night.
“Q All right. And after you asked him that, was there any more conversation?
“A I asked him what time he got down there.
“Q All right. And after you asked him that, do you recall any other conversation?
“A I asked him what time he left.
“Q Now, after that, was there any other conversation that you had?
“A I believe I asked him if there was anyone with him.
“Q With who?
“A With Ronnie when he came.
“Q And after you asked him that, then what?
“A I hung up.
“Q Okay. Now, did you have any further conversation with the Defendant at that time?
“A Yes, sir, I did.
“Q What did you say to him and what did he say to you?
“A I told him — I told Ronnie that apparently he or his cousin one was lying to me, and, he said that—
“Q Who is he?
“A Ronnie. He said that at that point he guessed he had better talk to his lawyer before he answered any more of my questions.
“Q Did he tell you he wanted a lawyer?
“A No, sir.
“Q Did you stop asking him questions at that point?
“A Yes, sir, at that point I did.”

It is clear that the essence of this testimony having been admitted at trial without objection through Officer Walden, the trial court may not be put in error for allowing Staton’s version of this telephone call to be admitted in evidence over appellant’s objection. Johnson v. State, 378 So.2d 1164 (Ala. Cr.App.) cert. quashed, Ala., 378 So.2d 1173 (1979).

No doubt such conversation between Officer Walden and Staton was inadmissible hearsay, but since such had already been admitted into evidence without objection, the trial court may not now be put in error for its ruling in admitting the testimony during the direct examination of Keith Sta-ton by the district attorney. Johnson, supra, and cases cited therein.

We have carefully examined this record and find no error therein. The judgment of conviction is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: SUNDBERG, Chief Justice. OVERTON, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Barry D. SCHREIBER, Respondent.
    No. 59946.
    Supreme Court of Florida.
    Oct. 22, 1981.
    Rehearing Denied Jan. 11, 1982.
    John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, Paul A. Gross, Bar Counsel, and Harry K. Bender, Chairman, Grievance Committee 11 E, Miami, for complainant.

      Burton Young and Glen Rafkin of Young, Stern & Tannenbaum, North Miami Beach, for respondent.
   SUNDBERG, Chief Justice.

In this disciplinary proceeding The Florida Bar seeks review of the referee’s order granting respondent Shreiber’s motion to dismiss which asserted that an attorney’s direct mail solicitation of a potential client is constitutionally protected commercial speech. Having found that no United States Supreme Court decision protects the attorney’s actions under the circumstances here involved and that other states are equally divided as to protecting such conduct, we decide that the state’s interests in regulating the professional conduct of attorneys is paramount to the attorney’s right to solicit by mail.

On June 30, 1979, Schreiber mailed a letter to Miami International Forwarders, an international trade company, in which he recommended his employment for immigration and naturalization matters. As a result, The Florida Bar charged Schreiber with violations of Disciplinary Rules 2-103(A) and 1-102(A)(6) of The Florida Code of Professional Responsibility, on the ground that the letter was a prohibited solicitation of legal business. Schreiber sought and was granted dismissal by the judicial referee who found that respondent’s actions were not in-person solicitation and could not be prohibited because they were protected under freedom of speech guaranteed by the federal and state constitutions.

I.

We begin with the settled proposition that even commercial speech is a constitutionally protected form of communication. Virginia. State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). But equally well recognized is that commercial speech does not receive the same staunch first amendment protection as non-commercial speech, and that commercial speech occupies a “subordinate position in the scale of First Amendment values.” Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978). The protection afforded commercial speech turns on the nature of the expression and its informational function. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Whenever the expression is connected with ancillary first amendment notions such as political, ideological expressions or associational rights, the first amendment cloak is heavier, and the countervailing state interest must be of increased importance and the corresponding regulation must be drawn with exactitude. See In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). The second value of commercial speech lies in its informational value to society. This concern focuses on the societal benefits to be derived from a communication. The greater the social utility and interest in the communication, the lesser the state’s ability to regulate it. See Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).

Solicitation involving legal services has been supported only in Supreme Court cases in which either political or associational rights were implicated, and the pecuniary motive was subdued. In Primus, the attorney mailed a letter disclosing to a sterilized mother that free legal assistance was available from the ACLU concerning her coerced sterilization. Because there was no profit motive behind the letter there was little danger of conflicts of interest that might tempt an attorney to “subvert the paramount interests of his client to enrich himself.” NAACP v. Button, 371 U.S. 415, 443, 83 S.Ct. 328, 343, 9 L.Ed.2d 405 (1963). Also present was the critical first amendment element of freedom of association. Supreme Court cases that precede Primus in allowing solicitation of legal business all have the central elements of lack of pecuniary motive and a collective activity aimed at providing increased access to the courts. The solicitation allowed in Primus thus can be seen as a culmination of cases which typically involve a group seeking promotion of legal rights without direct monetary aspirations.

Schreiber’s conduct is of course not covered under protections offered in Primus both because his letter was entirely motivated by his pecuniary self-interest and because no political or associational rights are implicated whatsoever. Moreover, Primus notes that the speaker’s motive is critical in distinguishing between altruistic, associational speech and pecuniary, non-associational speech, a distinction which may not be easily drawn, but ought to be undertaken. Id. 436 U.S. at 438, n.32, 98 S.Ct. at 1908. In Schreiber’s case, the motive and line are rather apparent, and his conduct squarely rests on the less favored side, requiring only an important state interest to justify its prohibition.

Nor does Schreiber’s letter warrant protection on grounds of its informational value and social utility. The information contained in the letter could be made readily available through various media sources for any citizen who desired it. This is not a case in which access to information has been denied. See Virginia Pharmacy Board. Thus the social benefit from this method of commercial promotion is extremely marginal particularly when cast against possible harms to the recipient. See Harris v. Beneficial Finance Co., 338 So.2d 196 (Fla.1976), cert. denied, 430 U.S. 950, 97 S.Ct. 1591, 51 L.Ed.2d 800 (1977) (commercial speech with little public interest not constitutionally protected).

II.

Schreiber would have us characterize his letter as a permissible advertisement protected under the dictates of Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). But we do not read Bates so broadly, and note that in that case the Supreme Court specifically narrowed its holding to the type of advertisement before it, leaving related issues for another day. When Bates is read in the light of Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), it becomes apparent that in spite of Bates not every mode of communication is available to an attorney to sell his wares. Ohralik held that in-person attorney solicitation for pecuniary gain of a vulnerable client could be prohibited by the state. Certain modes are inherently problematic, and in-person solicitation offers potential for harm such as undue influence that warrants state prohibition. We feel that some degree of these harms exists in direct mail solicitation, and find the reasoning of Ohralik more applicable to our problem than that of Primus.

Alternatively, respondent relies on Central Hudson for the proposition that essentially the state can only regulate commercial speech through the least restrictive means, and offers that the Bar could institute filing requirements for all mail solicitations. Initially, we do not find the analogy of this case with Central Hudson convincing. Central Hudson dealt with the state’s total ban on promotional advertising by utilities. The declared purpose of the prohibition was to regulate consumer usage of energy through control of such advertising. Such a boldly manipulative effort through state imposed silence is a thrust at the heart of first amendment values. The Orwellian spectre is difficult to miss, a spectre we do not sense when the Bar seeks to prohibit attorneys from soliciting clients through the mail. Second, even applying Central Hudson’s standards, in all likelihood, a filing requirement would be both impractical if computer direct mailings were utilized and unenforceable due to the selectivity of direct mail campaigns. We read Central Hudson as requiring only the least restrictive reasonable means, not the least restrictive means imaginable.

III.

The discussion above serves to illustrate that there is no controlling law concerning the present problem. We turn therefore to our view.

The problems with direct mail solicitation are more akin to those of door-to-door canvassing than to those of newspaper advertising. The threat of door-to-door soliciting is the establishment of a relationship by the solicitor which overpowers the will of the recipient. In both mail and personal solicitation there is a possibility that the activity invades the privacy of citizens, see Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), and thrusts the advertiser’s message upon a captive audience. See Bigelow, 421 U.S. at 828, 95 S.Ct. at 2235. We do not perceive that a citizen receiving a letter written on stationary carrying an attorney’s letterhead would be bold enough to discard it after only a casual perusal. Read it he must, for letters from attorneys carry a special aura of respect because of the state’s power that attorneys can invoke, and the attorney’s words carry a corresponding sense of authority. We recognize that in Primus a letter sent following up an earlier meeting was not considered an appreciable invasion of privacy, but we feel that in circumstances in which the recipient is completely a stranger to the soliciting attorney and particularly if the recipient were emotionally, mentally or economically vulnerable, that a soliciting letter could be highly intrusive. The people of this state have evinced a deeply protectionistic attitude towards their privacy as Florida is one of a handful of states adopting an independent privacy amendment. This consideration must be given weight in our balancing of Schreiber’s right to commercial promotion through the mail against the state’s interest in prohibiting his activity.

Nor do we see direct mail solicitation as a necessary means of conveying commercial information to citizens. Alternative means of public advertisement are readily available to attorneys, and any social utility served by a purely commercial message motivated by pecuniary interests is adequately provided by the panoply of media available to attorneys.

Although the problems of overreaching and undue influence through direct mail solicitation are obviously less critical than those involved with in-person solicitation, such dangers are clearly enhanced in comparison with public advertising. Because a letter can be specifically targeted, appealing to a certain person’s known or calculated weaknesses, danger of overreaching cannot be totally dismissed.

We discern an essential difference between attorneys and entrepreneurs. “[T]he primary function of the lawyer is that of officer of the court for the administration of justice...." State ex rel. Florida Bar v. Murrell, 74 So.2d 221, 226 (Fla. 1954). As such, the Supreme Court has recognized a strong state interest in regulating the legal profession:

“The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the Court.’ ” Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572 (1975). While lawyers act in part as “self-employed businessmen,” they also act “as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes.” Cohen v. Hurley, 366 U.S. 117, 124, 81 S.Ct. 954, 958, 6 L.Ed.2d 156 (1961).

Ohralik, 436 U.S. at 460, 98 S.Ct. at 1920. Bates did not question the states’ interest in promotion of professionalism connected with the service and protection of clients. See Ohralik, 436 U.S. at 461, 98 S.Ct. at 1921. Because of the harm to the public’s best interest that we perceive when an attorney solicits a client, that harm being the blinding of an attorney’s legal judgment by pecuniary light, we feel that prohibition of direct mail solicitation is directly related to the state’s obligation to uphold professional standards for the protection of its citizens.

The final step in our assessment is to survey the courts of other states. We find that the cases supporting a prohibition of direct mail solicitation are equally divided with those which allow this solicitation. Compare Allison v. Louisiana State Bar Association, 362 So.2d 489 (La.1978), and Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), cert. denied, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979), with Kentucky Bar Association v. Stuart, 568 S.W.2d 933 (Ky. 1978), and Koffler v. Joint Bar Association, 51 N.Y.2d 140, 412 N.E.2d 927, 432 N.Y.S.2d 872 (1980), cert. denied, 450 U.S. 1026, 101 S.Ct. 1733, 68 L.Ed.2d 221 (1981).

Because the arguments in these decisions from other jurisdictions are in equipoise they assist little in the resolution of our problem.

In summary we find that because respondent’s letter implicates neither political expression nor associational rights, because the social benefits derived from this type of communication are negligible, and because we perceive certain harms to citizens such as undue influence, invasion of privacy, and distortion of an attorney’s legal judgment, the state has a paramount interest in the prohibition of direct mail solicitation motivated solely by pecuniary interests. The state under these circumstances has a crucial interest in restraining an attorney’s motive for personal gain and stressing the desirable societal goal of public service.

Accordingly, Schreiber’s letter does not fall within the ambit of protected commercial speech, and the judicial referee improperly dismissed the Bar’s complaint. The referee’s order granting dismissal is therefore reversed, and this cause remanded to the referee for further proceedings consistent with our opinion.

It is so ordered.

ADKINS, BOYD, ALDERMAN and MCDONALD, JJ., concur.

OVERTON, J., concurs in part and dissents in part with an opinion.

OVERTON, Justice,

concurring in part, dissenting in part.

I agree that direct mail solicitation by attorneys presents a type of attorney advertising that is not absolutely protected by the dictates of Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). Although I personally believe the majority’s decision serves the best interests of the public and the legal profession, my reading of the cases cited by the majority leads me to the legal conclusion that we can regulate this type of advertising, but we cannot constitutionally prohibit it under the existing case law. The issue may be answered by the United States Supreme Court during this term in its review of a recent decision of the Missouri Supreme Court in In re R.M.J., 609 S.W.2d 411 (Mo.1980), prob. juris, noted, - U.S. -, 101 U.S. 3028, 69 L.Ed.2d 404 (1981).

      . Schreiber’s letter reads:
      Gentlemen:
      It is noticed that possibly your company, dealing in International Trade would at times find yourselves confronted with Immigration problems. Should such a problem occur and should you wish the services of reputable Immigration attorneys specializing in Immigration and Naturalization Law, please feel free to contact the undersigned. It would be our pleasure to be of service to you.
      Additionally should you wish a copy of our outline on Immigration policy we will be pleased to send you a copy.

      . DR 2-103(A) reads:
      A lawyer shall not recommend employment as a private practitioner, of himself, his partner, or associate to a nonlawyer who has not sought his advice regarding employment of a lawyer.
      DR 1-102(A)(6) reads:
      A lawyer shall not:

      Engage in any other conduct that adversely reflects on his fitness to practice law.

      . In addition to applicable disciplinary rules, Ethical Consideration 2-3 of the Code provides that “a lawyer should not contact a nonclient, directly or indirectly, for the purpose of being retained to represent him for compensation.” Integration Rule 11.02(5), moreover, has consistently stated: “The solicitation of professional employment by advertisement, runners, solicitors, investigators, or in any other manner except as authorized by controlling court decision, the Integration Rule, or the Code of Professional Responsibility shall constitute grounds for disciplinary action.” The exception was directed at advertising, which became permissible after the United States Supreme Court’s decision in Bates v. State Bar of Ariz., 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), and includes solicitation permissible under In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). See The Fla. Bar re Amendment to the Code of Professional Responsibility (Advertising), 380 So.2d 435 (Fla. 1980) (conforming the Code to Bates).

      In light of these pervasive warnings against all manner of solicitation we reject Schreiber’s claim he lacked notice that his actions were prohibited.

      . See, e. g., United Transp. Union v. State Bar of Mich., 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); Brotherhood of Railroad Trainsmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1, 8 S.Ct. 1113, 12 L.Ed.2d 89 (1964); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

      . We have recognized the inherent differences between advertisement and solicitation. See The Fla. Bar re Amendment to the Code of

        Professional Responsibility (Advertising), 380 So.2d 435, 437 (Fla.1980).

      . Article I, section 23, Florida Constitution (1980), reads:
      Right of privacy. — Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
      As officers of the court, attorneys carry some hue of governmental color.

      . Florida is in the majority of states which allows electronic media advertising. See Bnosnahan & Andrews, Regulation of Lawyer Advertising: In the Public Interest?, 46 Brooklyn L.Rev. 423, 429 (1980).

      . “Solicitation, as distinguished from advertising, is fraught with adverse consequences in whatever form it takes no matter how pure the lawyer thinks his or her motives are.” Christensen, Advertising by Lawyers, 1978 Utah L.Rev. 619, 634.

      . “[I]f money making is the lawyer’s sole purpose, he worships a god that is too small.” Petition of Florida Bar Ass’n, 40 So.2d 902, 909 (Fla.1949).

      . We do not deal with as difficult an issue as the court faced in Allison v. Louisiana State Bar Ass’n, 362 So.2d 489 (La.1978), which upheld prohibition of mail solicitation by a prepaid legal program, a service arguably “socially desirable.” Id. at 497 (Tate, J., concurring). We express no view concerning this situation.