text:
    Ronnie LOWE v. STATE.
    6 Div. 709.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Rehearing Denied April 22, 1980.

      Issac P. Espy of Tucker, Gray & Epsy, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Robbery; ten years and one day.

This robbery occurred at a Junior Food Mart in Tuscaloosa, Alabama, on March 17, 1977. Clyde Jerry Skelton, the manager, was operating the store at the time. About 9:07 A.M., the appellant entered the store and purchased a drink. After leaving the store, he remained outside, standing near the building for a few minutes before re-entering the store. He purchased a cake, and, when the manager turned to give him his change, she saw a small weapon in his hand. Ms. Skelton said that he demanded money, and she gave him the bills from the register. She stated that she also gave him three dollars of her own. According to Ms. Skelton, when the appellant was leaving, he said that he would “blow” her head off if she followed him outside.

Ms. Skelton testified that her assailant was “shaky” at the time of the robbery and that she, “out of fear,” gave him the money. After he left, she went to a drugstore and informed the owner of the drugstore that she had been robbed. She then went back to her store and called the police.

During the trial, Ms. Skelton described the person who robbed her as a black male with a “long-type head — sideburns and a goatee,” who was wearing a light blue jumpsuit. Further, she said that there was something wrong with his eyes and that “there must be something wrong with his legs.” She stated, “[H]is knees went in or something, and when he walks he gives a prissy walk.”

According to Ms. Skelton, from the time the appellant entered the store until he left approximately two and a half to three minutes elapsed. The witness made a positive, in-court identification of the appellant as her assailant.

Judy Leonard testified that she was the office manager of the “Junior Food Stores of Tuscaloosa,” and, on March 17, 1977, she went to the store operated by Ms. Skelton. After arriving at the store, the witness checked the register and found that approximately one hundred and forty dollars had been taken. She stated that this amount did not include the three dollars which had been taken from Ms. Skelton. At the end of Ms. Leonard’s testimony, the State rested its case, and the appellant took the stand in his own behalf.

The appellant testified that he lived on Knoll Circle in Northport, Tuscaloosa County, Alabama, and that he lived there with his mother, brothers and sisters. He stated that, on the day in question, he was wearing a beard. During the trial, he testified that his eyes were “crossed.” On the day in question, he was working with West Alabama Bottling Company as a helper on a “drink truck.” He denied owning a pair of coveralls and said he did not rob the “Junior Food Mart of East Village.”

The State called in rebuttal two witnesses, Lane Ray Harris, the appellant’s employer on the West Alabama Bottling Company truck, and Tim Bigham. Harris stated that he could not swear that the appellant was working on March 17,1977. Moreover, the witness said that there were some days on which the appellant did not work.

Tim Bigham testified that he was the manager of the snack bar in the basement of the courthouse and that Lane Ray Harris delivered the drinks to his business establishment. Mr. Bigham knew Ronnie Lowe because he was Harris’ helper. Bigham stated that, during the period from February to July, he could not state that Ronnie Lowe was with Harris every Thursday when a delivery was made to his business establishment.

I

The appellant has raised, on this appeal, two issues which have been considered together because they raise specific problems regarding the attitudes and preconceived ideas of veniremen who were chosen for the jury in the present case. The appellant complains that the trial court erred when it refused to grant defendant’s challenge to jurors who answered in the affirmative to a question “regarding their beliefs whether a defendant would lie just because he was a defendant.”

Additionally, he contends that the trial court erred when it refused to grant the defendant’s challenge to jurors who answered in the negative regarding the issue “would they vote for acquittal even though they believed the defendant was probably guilty if they had a reasonable doubt after hearing the evidence and instructions of the court.”

In order to review these issues concerning the “prospective juror,” we must look to the pertinent part of the record, which reads as follows:

“MR. GRAY: Do you think that a person who is accused of a crime would probably lie; please stand.

“A VOICE: Speck Shirley.

“MR. GRAY: Mr. Shirley. Wait just one second. Let me ask Mr. Shirley, do you think that the fact that he was — Does anyone else want to stand?

“Do you understand my question? I see some of you shaking your heads.

“The question is, do you think that a person who is accused of a crime would probably lie? If so, please stand.

“All right. Let me get your names, first of all. Let’s start over here on the right with Mr. Shirley, and go across the front, and then the next row all the way across, and so forth.

“A VOICE: Speck Shirley.

“MR. GRAY: All right. You may be seated for the time being, please.

“A VOICE: Dorothy Cubine.

“A VOICE: Ethel Rutley.

“A VOICE: Herman Collins.

“A VOICE: Alma Rutley.

“A VOICE: Let me ask you just a second: Are you two related (indicating)?

“A VOICE: Well, we just married into the same family.

“A VOICE: Gertrude Wilson. “A VOICE: Alma Roberts.

“A VOICE: Jean Griffin.

“A VOICE: Nancy Olson.

“A VOICE: Alan Roberts.

“A VOICE: John Gooden.

“MR. GRAY: All right.

“A VOICE: Ethel Griffin.

“A VOICE: Henrietta Wilson.

“A VOICE: Adelle Custard.

“A VOICE: Elizabeth Brant.

“A VOICE: Thurman Lee.

“A VOICE: James P. Richardson.

“A VOICE: Lamar Pearson.

“A VOICE: Norma Franklin.

“A VOICE: Margaret Warbington.

“A VOICE: Letaw Martin.

“A VOICE: Billy Joe Bagwell.

“A VOICE: Lang Ray.

“MR. GRAY: Now, those of you who just answered, you believe that a person accused of a crime would probably lie. I would ask you whether or not you think that that would impair your ability to consider the truthfulness of his answers? If so, please stand.

“A VOICE: Would you repeat that, please, sir.

“MR. GRAY: Would that affect or impair your ability? Please answer as truthfully as you can; we want to know it, you know, if you would consider that — we would like to know that. Would that affect or impair your ability to consider the truthfulness of his answers — the person accused of a crime? If so, please stand.

“A VOICE: Jeanne Griffin. What do you mean ‘consider the truthfulness?’ That question is extremely hard to understand.

“MR. GRAY: All right. The question that I previously asked you was, if a person who was accused of a crime, if you thought he would probably lie? And you said, as I understood it, yes, you thought that he would probably lie.

“All right, if you felt that he would probably lie, do you feel that you could consider that he is telling the truth from the stand?

“MS. JEANNE GRIFFIN: What do you mean ‘consider the truthfullness?’ What does that mean?

“MR. GRAY: Well, do you think that you could consider that the witness was telling the truth if he took the stand in his own defense?

“MS. JEANNE GRIFFIN: Do you mean, would you have an open mind as to whether it was true or not? Is that what you are asking?

“MR. GRAY:

Yes.

“MS. JEANNE GRIFFIN: Okay, fine.

“MR. GRAY: If so, please stand.

“A VOICE: Norma Franklin. When I stood in answer to your question that I believed they would tell a lie, that did not necessarily mean in connection of his being accused of a crime. I think anybody will lie under certain circumstances. This is not necessarily because he is accused of a crime, but everybody will lie now and then, I believe.

“A VOICE: Lang Ray, and those are my feelings, also.

“MR. GRAY: Okay. Well, let me go back and ask you this, then. Would you be able to have an open mind about what he was testifying? If so, please stand.

“THE COURT: I think you better turn that question around if you are going to get all those names.

“MR. GRAY: All right. Is there anybody who just stood a minute ago, who could not have an open mind about what he testified about? If so, please stand.

“All right. Now, do you understand what I am saying? Is there anyone who stood on the question, ‘Do you think that a person who is accused of a crime would probably lie’ — any of you who stood on that question indicating that you thought he would probably lie, now, if you feel that you could not have an open mind about that, please stand.
“(No response.)

“MR. GRAY: All right. Let the record reflect that no one stood.

“Now, ladies and gentlemen, in the trial of a criminal case, we expect that the Judge will ultimately charge you that the law requires that the burden of proof is on the prosecution to prove that a person is guilty beyond a reasonable doubt and to a moral certainty. And he will explain all that to you at the proper time, assuming you sit on this case. The question I would have for you is: Assuming that at the conclusion of the evidence, that it were to be your opinion that the defendant probably committed the crime with which he is charged, but you were not—

“MR. MADDOX: Judge, we will have to object to this at this time, and I feel it is improper on voir dire examination for him to be explaining the law to the jury at this time, and asking them questions regarding hypothetical facts in that situation.

“MR. ESPY: Your Honor, I would be glad to present to you a copy of the exact question we propose to ask, and let you rule on it in advance.

“THE COURT: Well, I think your objection is a little untimely, Mr. Maddox. I will have to wait until he finishes that question before I can understand.

“If you ladies and gentlemen will refrain from standing or answering, go ahead and finish your question, Mr. Gray.

“MR. GRAY: All I am asking you is, assuming that we took evidence, you were to be of the opinion that the defendant was probably guilty, but you were not convinced beyond a reasonable doubt, would you vote to acquit him? If so, please stand.

“MR. MADDOX: We object.

“THE COURT: Overrule.

“(No response.)

“MR. GRAY: At the conclusion of the evidence, in your opinion, if you thought the defendant was probably guilty but you were not convinced beyond a reasonable doubt, would you vote to acquit him?

“MR. MADDOX: Your Honor, I have to renew my objection. What he is doing in effect here, is going to legal definitions with the jury at this point, by referring to, ‘probably guilty,’ and the terminology, ‘to a moral certainty and beyond a reasonable doubt.’ And those terms have not been explained as a matter of law, to the jury at this time by the Court. And it is improper at this time for him to ask questions along those lines.

“THE COURT: I will overrule at this time, Mr. Maddox. Go ahead.

“MR. GRAY: All right. Now, those of you who understood the question may stand: If you would vote to acquit.

“All right. Now, the rest of you may remain seated. The ones that are standing, we need your names. Let’s start over here, please.

“A VOICE: Alan Roberts.

“A VOICE: Nancy Olson.

“MR. GRAY: Mrs. Olson?

MRS. NANCY OLSON: Yes. A VOICE: Jeanne Griffin.

A VOICE: Alma Roberts.

A VOICE: Emma Rutley.

A VOICE: Ethel Rutley.

A VOICE: John Hamner.

“MR. GRAY: Mr. Hamilton?

“MR. HAMNER: Hamner, h-a-m-n-e-r.

“A VOICE: Speck Shirley.

“A VOICE: Herman Collins.

“A VOICE: Dorothy Cubine.

“MR. GRAY: All right.

“A VOICE: Ethel Griffin.

“A VOICE: Margaret Warbington.

“A VOICE: Norma Franklin.

“A VOICE: Sandra Baker.

“A VOICE: Gaye Cabell.

“A VOICE: John Faucett.

“A VOICE: James Richardson.

“A VOICE: Lamar Pearson.

“A VOICE: Letaw Martin.

“A VOICE: Harvey Davis.

“A VOICE: Billy Bagwell.

“A VOICE: .Lang Ray.

“MR. GRAY: All right. Now, those of you who did not stand on that question, would you please stand. Those of you who did not stand on that question, please stand.

“And give your names to the court reporter, please.

“A VOICE: Thurman Lee.

“A VOICE: Elizabeth Brant.

“A VOICE: Adelle Custard.

“A VOICE: Genia Washington.

“A VOICE: Henrietta Wilson.

“MR. GRAY: Wait just a minute, please.

“THE REPORTER: Mrs. Wilson, yours was the last name I heard.

“MRS. HENRIETTA WILSON: Yes, Henrietta Wilson, I did not stand because I did not entirely understand the question.

“MR. GRAY: All right. I will come back to you in just a minute, then.

“A VOICE: Gertrude Wilson.

“A VOICE: John Gooden.

“A VOICE: Alfred Samuel.

“A VOICE: Eddie Byrd.

“A VOICE: Ronnie Walters.

“A VOICE: Adelle Custard. I did not understand that question, either.

“MR. GRAY: All right, so there were two of you who did not understand it?

“MRS. BRANT: I did not understand the question, either.

“MR. GRAY: All right. Three of you did not, then. Now, the Judge will instruct you as to what the law is, what law to apply. If, at the conclusion of the evidence and the conclusion of the Judge’s instructions, you were — in your opinion, you thought that the defendant was probably guilty, but you were not convinced beyond a reasonable doubt and to a moral certainty, according to the definitions that you were given, would you vote to acquit him?

“MRS. BRANT: I think I would.

“MR. GRAY: All right. Do you want to change what you said, then?

“MRS. BRANT: Yes, I change.

“MR. GRAY: All right.

“A VOICE: Adelle Custard.

“MR. GRAY: All right. Now, then, thank you very much ladies and gentlemen, for your patience and my, perhaps, inability to explain these things to you.

“I have a few more that may be a little difficult to understand. If you do not understand it, tell me you don’t understand it.

“Do any of you ladies and gentlemen have an opinion that just because a man is indicted by the Grand Jury, he is probably guilty? If so, please stand. Just because a man is indicted by the Grand Jury, he is probably guilty? If so, please stand.

“(No response.)

“MR. GRAY: Let the record so reflect that none stood.

“Let me ask you this, ladies and gentlemen. Do any of you have an opinion that the fact that a person is accused of a crime and is in this court to be tried for that crime, indicates that he is probably guilty? If so, please stand.

“(No response).

“MR. GRAY: Is there anyone who did not understand the question?

“(No response).

“MR. GRAY: Let the record reflect that none stood.”

This court, in Tidmore v. City of Birmingham, Ala.Cr.App., 356 So.2d 231, laid down rules regarding the disqualification of a prospective juror. In that case, the court said:

“To disqualify a prospective juror, he must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused. Such opinion must be so fixed as that it would bias the verdict a juror would be required to render.”

See McCorvey v. State, Ala.Cr.App., 339 So.2d 1053 and Johnson v. State, Ala.Cr. App., 356 So.2d 769.

In discussing this same issue, this court, in Dial v. State, Ala.Cr.App. (2 Div. 245, Ct.Cr.App.Ms., Nov. 20, 1979), quoting from Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589, observed:

“ ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’
“At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’ ” [Emphasis added].

According to this court in Dial, supra, the burden rests on the defendant to adduce evidence to demonstrate that the juror could not be impartial.

The voir dire in the present case did not indicate that the prospective jurors could not lay aside their partiality. When the threshold question, whether the accused would lie, was asked, a number of jurors stood to answer affirmatively. However, when the question was clarified and the question, “Whether they could not have an open mind about what he testified about,” was asked, no response was made by the jurors. Regarding the question, “[I]n your opinion [if] you thought that the defendant was probably guilty, but you were not convinced beyond a reasonable doubt and to a moral certainty, according to the definitions that you were given, would you vote to acquit him?”, none of the jurors answered in the affirmative, some nine answered in the negative.

We note that the record does not indicate any other questions by the defense attorney which would demonstrate that the opinions of these specific jurors were so fixed that they would “bias the verdict that a juror would be required to render.” Tidmore v. City of Birmingham, supra.

Under Murphy v. Florida, supra, and Dial v. State, supra, the appellant has failed to demonstrate that the defendant could not receive a fair and impartial trial. We note that, in qualifying the veniremen who ultimately composed the jury, the trial judge asked the following questions:

“THE COURT: Do any of you ladies and gentlemen have a fixed opinion as to the guilt or innocence of the defendant?
“(No response.)
“THE COURT: Do any of you know anything that would prevent you from serving impartially as a juror in this case?
“(No response.)”

Considering these circumstances, we believe that, under Tidmore v. City of Birmingham, supra, and Johnson v. State, supra, disqualification of a prospective juror must be predicated on more than that prospective juror’s biased or fixed opinion as to the guilt or innocence of the accused. This court said in Johnson v. State, supra, that, “His opinion must be so fixed that it would bias the verdict that the juror would be required to render.”

Under the present case, the appellant has not demonstrated the requirement of Murphy v. Florida, supra, and Dial v. State, supra, that the prospective juror’s opinion was so fixed that it would bias the verdict he was called on to render.

Therefore, the denial of the appellant’s challenge for cause to the prospective jurors was proper.

II

The appellant also asserts that the trial court was in error when it failed to grant the appellant’s challenge for cause to a ve-nire person who was employed by the district attorney at the time of the trial.

In United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78, the United States Supreme Court, speaking on the issue of disqualification of government employees to serve as jurors in criminal cases, said:

“[T]he imputation of bias simply by virtue of any governmental employment, without regard to any actual partiality growing out of the nature and circumstances of particular cases, rests on an assumption without any rational foundation.
“It is said that particular crimes might be of special interest to employees in certain governmental departments, as, for example, the crime of counterfeiting, to employees of the treasury. But when we consider the range of offences and the general run of criminal prosecutions, it is apparent that such cases of special interest would be exceptional. The law permits full inquiry as to actual bias in any such instances.”

In the case at bar, there was no proof that the venire person would not render a fair, just, and impartial verdict. The fact that she was employed by the district attorney’s office did not alone impute bias as a matter of law.

Therefore the trial court properly exercised its discretion in denying appellant’s challenge for cause of the prospective juror. See McAdory v. State, 37 Ala.App. 349, 68 So.2d 68.

Having searched the record for error and found none, we affirm the judgment of conviction by the Tuscaloosa Circuit Court.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte Ronnie LOWE. (Re Ronnie Lowe v. State of Alabama).
    79-550.
    Supreme Court of Alabama.
    June 20, 1980.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge. BOWEN, Judge.

text:
    Thomas Lee HINES v. STATE.
    6 Div. 933.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Rehearing Denied April 22, 1980.

      U. W. Clemon of Adams & Clemon, Birmingham, Elaine R. Jones, Brent E. Simmons, James Liebman, Jack Greenberg, New York City, for appellant.
    Charles A. Graddick, Atty. Gen., James F. Hampton, Sp. Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

In an atmosphere infected with racial conflict and tension the black defendant was convicted for the rape of a white Decatur railway clerk. Sentence was fixed at thirty years’ imprisonment.

Although several issues have been raised on appeal, the most significant one involves the defendant’s mental subnormality as affecting the voluntariness and admissibility of his confession.

I

Under the Constitutions of the United States and the State of Alabama, any suspect of a crime is guaranteed the right of assistance of counsel and the right to remain silent during in-custody police interrogation. So sacred are these rights that any statement obtained in violation of them is inadmissible in a subsequent criminal proceeding. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The suspect may, of course, waive these rights provided that the waiver is knowingly and intelligently made. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). However, the United States Supreme Court has stated:

“[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we reassert these standards as applied to in-custody interrogation.” Miranda, 384 U.S. at 475, 86 S.Ct. at 1628.

An extrajudicial confession is prima facie involuntary and inadmissible. C. Gamble, McElroy’s Alabama Evidence, § 200.02(1) (3rd ed. 1977). The prosecution must prove “at least by a preponderance of the evidence” that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

The major question presented by this appeal is whether the evidence in the record sustains the trial court’s determination that the “high standards of proof” for the waiver of constitutional rights were met in this case. We conclude that it does not.

On Monday, May 22, 1978, the defendant came to the court reporting office of Barbara Woods in the Morgan County Press Building in Decatur and asked for a job. Mrs. Woods told him that she did not have any employment available.

The next morning, May 23, the defendant returned to the office and “peered” in the windows on both the east and south sides of the building. Mrs. Woods telephoned the police between 10:00 and 10:30 A.M.

Officer Keith Russell and his partner of the Decatur Police Department responded to the call and talked to Mrs. Woods. They obtained a description and searched the area with a total of six officers. Within a short time they found the defendant filling out a job application at Automatic Screw Machine Company which was located only a short distance across an adjacent parking lot from Mrs. Woods’ office.

Officer Russell recognized the defendant from having seen him on two prior occasions and knew his name “from working the area and knowing the names of some of the people.” He had known the defendant for six or seven months. Russell stepped inside and asked, “Tommy, would you mind stepping outside for a moment and talking with me?” Russell initially testified that the defendant replied “sure,” but later stated that the defendant did not say anything at that time but just stepped outside with him.

Because of the alleged activities of the defendant that morning, “peeking in the windows, acting suspicious,” and because Officer Russell thought that the defendant matched the description of a rape suspect, Officer Russell immediately read the defendant his constitutional rights from a printed card. Officer Russell stated that he did not read the defendant his constitutional rights “in one phrase” and did not read the “whole thing” at one time but “asked him in between those phrases like anything you say will be used against you in Court, do you understand your constitutional rights.” The defendant indicated that he understood his rights and wished to talk. Officer Russell then “frisked” the defendant for weapons. Officer Russell testified that the defendant became nervous and agitated after being read his rights and “began looking around rather nervous.”

When the defendant denied looking in Mrs. Woods’ windows, he was placed in the back seat of a patrol car and driven to Mrs. Woods’ office, where he was identified. Officer Russell then radioed Detective Sergeants Doyle Ward and Robert Clark and told them he had a suspect in custody. He testified, “I worded it ten-fifteen, J.W., that means I have a prisoner in custody,” and he told them he had someone that they needed to talk with. After the defendant was identified, he was still nervous and agitated and put his head in his hands. Officer Russell testified, “I asked Tommy if he would go down to City Hall with us to talk with the detectives and also explained again in plain language that he did not have to do so and also his constitutional rights without using the card.” The defendant stated that he understood and would “be glad” to go.

On the way to City Hall, according to Officer Russell, the defendant became “nervous and agitated” and placed “his head in his hands and began rocking back and forth.” The defendant was becoming “increasingly agitated” and his behavior indicated to Officer Russell that “something was bothering him.” Russell asked the defendant “keeping in mind what your constitutional rights are, why don’t you get it off your chest, it is bothering you,” and the defendant stated, “I know.” Officer Russell continued:

“I then said why don’t you tell me about it, got no response and then I believe I asked him again, I said when was the last time you went to the post office and he stated six weeks ago. I then asked what did you do with the can and he said I threw it in the garbage. I said how many women have you raped, two or three, and he stated three.”

Officer Russell said he then stopped questioning the defendant: “I felt in my mind that I should not go any further.”

Officer Russell described the defendant’s “emotional appearance”:

“Once, when we stepped outside the Automatic Screw Machine Company he became rather agitated and nervous, he became increasingly so as we went up and had him identified and put him in the rear of the patrol unit, talk[ed] with him a moment and let the ladies look at him. I told him just to relax, everything will be fine and he became nervous on the way to City Hall, agitated.”

Russell did not know that the defendant was retarded and “assumed” that he understood what was “going on.” Officer Russell stated that the defendant answered his questions “coherently in his speaking, not slurring of the words or anything of that nature” although his responses were “somewhat slow.” Officer Russell was “convinced that he understood his rights without any coercion,” and testified, “I felt he understood his rights completely.” However, Russell did not know if the defendant understood the phrase “constitutional rights.”

Officer Russell said he and the defendant arrived at City Hall “right at 10:30 A.M.” and the defendant was turned over to Detective Sergeants Ward and Clark. At this time Sergeant Ward had interviewed neither any suspects nor the victim of the rape for which the defendant was later tried and convicted.

In an office in the detective division, Sergeant Clark advised the defendant of his rights from a printed form. The defendant indicated that he understood his rights. To Sergeant Ward, the defendant was “basically calm, . . . considering the circumstances.” Sergeant Clark asked the defendant to take the form and read it. The defendant looked at the form, and then, according to Sergeant Ward:

“Sergeant Clark asked Mr. Hines if he understood his rights, Mr. Hines stated he did, Sergeant Clark then asked Mr. Hines if he understood he didn’t have to talk to us, he had the right to have an attorney present.”

The defendant indicated that he understood, and at 10:35 A.M. he signed a waiver of rights, signing his name as “TOMMY iNESH.” Sergeant Clark then interrogated the defendant about “another matter” under investigation. At approximately 11:00 A.M. the defendant directed Ward and Clark to the scene of another rape and gave them the details surrounding the crime. They returned and the defendant was placed in the city jail around 11:45 A.M. Sergeant Ward stated that the defendant was “cooperative” during this interview session, and that the defendant did not cry or shake. Ward said he knew that the defendant “did not read well” but did not know that he was mentally retarded.

At 1:30 P.M. Sergeant Clark again advised the defendant of his constitutional rights, using a printed form. According to Sergeant Ward:

“Sergeant Clark asked him if he understood and he stated he did. At this point Sergeant Clark again gave him the form and asked him to read it, he looked at it and handed it back to Sergeant Clark. Sergeant Clark asked him if he understood his rights and he stated he did and Sergeant Clark again asked him if he understood, he didn’t have to talk to us and that he had the right to have an attorney present and Mr. Hines stated that he did and Sergeant Clark again asked the subject to sign the form.”

The defendant signed “TOMMY iNES.”

At this time the detectives “discussed some other matters” with the defendant. At 1:30 P.M. Ward and Clark took a written statement from the defendant “concerning another matter.” At 2:57 P.M. the defendant’s second oral statement was reduced to writing. Ward read it to the defendant, who stated that it was correct. After looking at the statement, the defendant signed this statement at 3:25 P.M. In this second statement the defendant admitted the rape for which he was later tried. At 2:50 P.M., just before this statement was taken, the defendant was again advised of his rights by Sergeant Ward, who used a printed form.

Sometime during the afternoon, Sergeant Ward asked the defendant about calling his parents. Ward testified that the defendant responded that they didn’t have a phone and that he was going to try to get in touch with somebody else. Ward stated that he told the jailer to let the defendant call somebody but he did not know if the defendant ever contacted anyone. Sometime on May 23rd, Ward spoke with Steve Wynn, a friend of the defendant’s: “He asked me if his (defendant’s) parents had been notified and I told him to my knowledge they had not and I asked him to go by and let them know and he agreed to do so.”

At 7:45 P.M., on the same day of his arrest, the defendant was taken to the Southern Freight Depot where the charged offense had occurred. He made some statements and explained how the crime was committed.

A third statement was taken from the defendant the following day, May 24th. The statement started at 7:42 A.M. and was completed at 7:55 A.M. Sergeant Ward admitted that on the morning of the 24th the defendant’s father was not allowed to see the defendant.

Richard Hines, the defendant’s father; Alfonzo Robertson, the minister at the defendant’s church; Maggie Holmes, a case worker who gave the defendant individual instruction in her home before the school for the mentally retarded opened; Cora Daily, a neighbor; Tim Dunlap, a teacher-supervisor for the Decatur Adult Center; and Marvin Dinsmoore, the central president of the board of directors for the center, all testified to their knowledge of the degree of the defendant’s mental retardation.

Floyd Jones, a defense witness, was a parttime carpet installer. On May 23,1978, he was repairing some carpet at the Decatur City Hall in a courtroom located right above the detective offices where the defendant was being questioned. In contradiction to Sergeant Ward’s testimony that the defendant never cried out during the time he was in custody, Mr. Jones stated that he heard “somebody hollering, 'Oh Lord, Leave me alone,’ ” and “ ‘Oh Lord, Oh Lord, my God, you leave me alone, I ain’t done nothing.’ ”

Around 4:00 or 5:00 in the afternoon, Mr. Jones went to tell Mr. Richard Hines that his son was in the city jail.

Eddie Marshall, who was helping Mr. Jones that day, saw the defendant in the window of the detective's office. Around 2:30 or 3:00 that afternoon he heard somebody say “Oh Lord, Oh Jesus, I ain’t did nothing.”

Billy Hines, the defendant’s brother, first learned around 5:30 on the afternoon of May 23 that the defendant had been arrested. He went to the city jail around 6:15 P.M. but was not allowed to see the defendant, and Sergeant Ward told him that “the best thing was to leave.” The defendant’s brother testified that Sergeant Ward “told us that he could lock us up.” Billy Hines went on three different days to visit his brother but never was allowed to see him.

The defendant, at the time of the crime, was twenty-five years old. Every professional who testified admitted that the defendant was at least moderately mentally retarded with an I.Q. of 39. Every professional except Dr. Edwin C. Seeger gave the defendant a mental age of six years and four months.

Testifying for the defense was Jack Anderson, a psychiatrist who was a clinical Professor of Psychiatry at the University of Alabama School of Medicine. Dr. Anderson examined and interviewed the defendant on three different occasions in September of 1978. Based on these interviews and a review of the defendant’s mental history, Dr. Anderson’s conclusion was that “at very best, his best level, he was never able to operate intellectually above an I.Q. of between 35 to 45 at his very best.” Dr. Anderson classified the defendant in the moderate mental retardation range with a mental age of six years and four months.

Dr. Anderson testified unequivocally that the defendant could not understand or waive his Miranda rights:

“[T]he Miranda wording that you gave there is much beyond the ability of anyone in the moderate level of intelligence to understand at all.”
* # # #• * #
“No, I don’t believe he had any chance in the world of understanding them as far as waiving them, he would think that was something you did with a flag, waiving in the abstract sense, he would never be able to understand that concept.”

Dr. Anderson also stated that moderate level mental retardates are “highly suggestible”:

“. . . [Tjhey tried to go along with people that they suspect are in authority, for example, I ask[ed] this young man where we were when I saw him and he obviously didn’t know, so, I asked him if we were in Atlanta and he said yes, we are in Atlanta. In fact, we were in Birmingham, Alabama. I could have said New York, he would have said sure, New York, that kind of suggestibility, yes.”

Ferris O. Henson was an Associate Professor of Special Education at Alabama A & M University. He taught courses in how to teach the mentally retarded. He examined the defendant approximately six weeks before trial. He classified the defendant in the trainable but not educable level of retardation, meaning that the defendant could be taught to perform simple but not complex tasks, and said that, at the defendant’s level, tying a shoe would be a complex task.

After testifying that the defendant could not understand certain abstract concepts contained in the Miranda warning, Dr. Henson concluded:

“I doubt that anyone functioning at Tommy’s level would know what a constitution is, let alone of the implication it included . . . .”
******
“Q. Dr. Henson, if the Miranda Warning was read one time to a person of Tommy Hines’ mental status, could he understand it?
“A. No, they couldn’t understand it if you read it ten times.
“Q. Why?
“A. Again, there are too many abstract concepts involved. What we have to realize is that people functioning at Tommy’s level cannot abstract . . . .”

Dr. Henson also testified that the defendant was susceptible to suggestion: “. . [MJentally retarded individuals usually respond very positively toward authority figures.” According to Dr. Henson, police officers are authority figures: “[T]hese would be people of authority and so, a person functioning at Tommy’s level has learned to externalize their focus of control and seek guidance from authority.” He further stated:

“They would more or less probably try to say what they thought that person wanted to hear, you see, because this association with the authority figure is the closest thing to an ego or self-concept, a mentally] retarded individual can have . . so, what happens in this kind of situation is that there is a kind of conforming behavior and passive behavior in a person that functions at that level.”

Dr. Henson noted that being placed in a police car would create a very stressful situation causing tension and anxiety and would cause a “deterioration of performance.” Persons functioning at the defendant’s level “would know they were in trouble, they were in big trouble, the police came to get them. Now, they wouldn’t know why they were in trouble, they would know they were in trouble, again, because the police came to get them.” Considering the conditions the defendant faced in the police car, Dr. Henson stated, “I wouldn’t give any real significance to replies made at that time, because, of the state of the person, in other words, it wouldn’t be a very reliable time to get information from this person.” Dr. Henson stated that in his professional opinion the defendant could not knowingly and intentionally waive his Miranda rights: “Unequivocally, no, he could not.”

Jowel Loftin was employed as a Psychologist II with the Alabama Department of Mental Health at the Lurleen B. Wallace Center. He was the only professional called by the State or the defendant who had examined the defendant before the crime charged was committed.

On October 22, 1977, he administered the Stanford-Binet Intelligence Scale and the Peabody Speech Vocabulary Test to the defendant. Loftin said the defendant achieved a mental age of six years and four months and an I.Q. of 39, and fell “toward the lower end of the range of the moderate level of mental retardation.” This witness testified to the test results but did not express an opinion as to whether the defendant could knowingly and intelligently waive his constitutional rights.

To prove that the defendant was capable of knowingly and intelligently waiving his constitutional rights, the State called Dr. Thomas Luther Smith, Jr., a psychiatrist with a law degree, who is a member of the Alabama Bar Association although not actively engaged in the practice of law. Dr. Smith was a consultant at Bryce Hospital and a member of the Forensic Unit that found the defendant competent to stand trial.

The defendant was admitted to Bryce Hospital pursuant to court order on June 23,1978, and was given physical and mental examinations. Dr. Smith said he reviewed the defendant’s history and found that the defendant had “a clear idea about the concept of right and wrong at that point.”

Although Dr. Smith testified that the defendant could understand the Miranda warning, his conclusion that the defendant could intelligently waive his constitutional rights was conditional:

“Q. Do you feel that he understood or would understand what he was doing if he waived those rights and made a statement to the police officers on May the 23rd, 1978?
“MR. HAIRSTON: Objection, Your Hon- or.
“THE COURT: Overruled.
“A. Yes, sir, I believe that he would, at the level, if it was put the way that you are stating it, but, not the reading of it. “QUESTIONED BY MR. MOEBES:
“Q. Not the reading, if it were read to him orally by a police officer?
“A. And explained in the sense that you just-.”
# # * # # *
“Q. You are misunderstanding me, if the Miranda Warning was read as I am reading them to you, read to him, he doesn’t read them, they are read to him by a policeman?
“A. I think he could understand.
“Q. You said a few minutes ago that they must be explained?
“A. I heard that they were explained. “Q. You heard?
“A. Yes. Let’s assume they were not explained to him, I would say that could be put to him in such a way, read coldly, using only those terms, there might be a borderline case in that situation, if they were read and not explained.
“Q. Now, say that again.
“A. I said if they were read without any explanation, without any modification it might be difficult for him to understand them word for word as you were putting them, you are taking one word out at a time.”

After the defense had rested its case, the State called two witnesses to testify in rebuttal. Both witnesses testified to the defendant’s degree of mental retardation. Dr. Smith’s testimony was substantially the same as that which he had given during the hearing on the voluntariness of the confession.

Dr. Edwin C. Seeger did not testify at the voluntariness hearing but was called by the State in rebuttal after the defense had rested its case. He was a clinical psychologist at Bryce Hospital in Tuscaloosa and was a member of the Forensic Unit or “lunacy commission” which found the defendant competent to stand trial.

Based on his personal observation and his study of the defendant’s mental history, his conclusion was that the defendant was mentally retarded: “It was obvious to me that he was retarded and that I would have to explain things more thoroughly than I usually do to normal functioning patients.”

Dr. Seeger testified as follows:

“. . . [H]is IQ was approximately at 39, but, from observing him we knew he had additional skills, a lot more advanced than the 39 IQ would, ... I decided that the IQ figure was not an indication of his functioning level, I needed to give him another test. So, a social test was given him that goes to his IQ, but, also goes to such things as self-help skills and social skills, communication and occupational skills, which I gave him, that came out with the raw score of ninety, a mental age of 15 years and 5 months.” * * * # * #
“Then sometimes after that we received his records from the Cherry Street School and I reviewed those records and those records more or less confirmed the fact that although he had a low IQ, that he was functioning at a much higher level than it measured.
“Q. Based on your observations and testing that was done there and the data, I believe you said it was your findings that he had a mental age of 15 years and 5 months?
“A. Yes. That was more indicative of his total functioning than the IQ score of 39, which would place him in the 7 or 8 year old range.”

Dr. Seeger also concluded that the defendant could understand his constitutional rights if they were explained to him.

“A. In my opinion, if the rights on that sheet were just read to him, as you would read to a normal person, he would not be able to understand it. However, if they were explained — .
“MR. MIMS [Defense Counsel]: I object to the latter part.
“THE COURT: Overruled.
“A. However, if they were explained to him, some of the words in there are large three syllable words, if they were broken down to where a person, a teenager could understand them, yes he could understand.”

With regard to Miranda, Dr. Seeger further stated:

“If the Miranda Rights were read to him and explained to him, in other words, some of the abstract words on the Miranda decision were broken down into terms that he could understand, there would be no problem of understanding his rights.

These abstract words would have to be “broken down” to “a functional level of 15 years”, according to Dr. Seeger:

“Q. And you had estimated that he could understand the Miranda Waming[s] and make a knowing waiver, if they were explained to him, is that not so, sir? “A. Yes.
“Q. How would this explanation as to what type of explanation would have been necessary, sir?
“A. The explanation would have to be in more concrete rather than abstract terms. “Q. Would you give an example to the Jury, sir?
“A. Well, when he got down to where he could pick out the word that needed to be defined, you could just read him, one of the sentences and he could point to the word, point to the word out that would need explanation, like his right to talk to a lawyer for advice before we ask you any questions and have him with you during questioning, I don’t think he would know the word advice, the term advice would have to be explained, rather—
“Q. What about, sir, during questioning? “A. I think he might understand what questioning is.
“Q. The phrase you have the right? “A. I believe that he understands what rights he has.
“Q. No, we are talking about the phrase, sir?
“A. I believe he knows that right, you have the right, I believe he would understand that.
“Q. Constitutional right?
“A. Perhaps not constitutional right.
“Q. Could he possibly think it was the right arm?
“MR. MOEBES: Objection.
“THE COURT: Overruled.
“A. Not in the context — .
“QUESTIONED BY MR. HAIRSTON:
“Q. Not in that context? If you cannot afford a lawyer, one will be appointed for you if you wish, what about that one, sir? “A. That would also have to be broken down.
“Q. Alright. What words would have to be explained and defined to the Defendant in order for him to understand that, sir?
“A. Afford, for one, I don’t think he would know what the word afford would mean, if you can’t pay, something like that. Also the word lawyer, when asked if he wanted to talk to the attorney, he knew what a lawyer was when I talked to him.
“Q. How do you know that he understood?
“A. Well, we are getting back to what we talked about earlier.
“Q. What did he say to you that indicated that he understood what a lawyer was?
“MR. MOEBES: Objection to that as being repetitious.
“THE COURT: One more time, Mr. Moebes.
“A. When I was talking to him about a lawyer and the fact that when a lawyer came to see him and we told him that there was a lawyer out there to see you, one that was sent to Tuscaloosa by a black organization to see him, he knew that was the lawyer.
“QUESTIONED BY MR. HAIRSTON: “Q. I am trying to pin it down as to how he indicated that you knew, sir?
“A. By his behavior.
“Q. His behavior, he didn't tell you that he knew?
“A. When I talked to him he said yes, you are getting into that same log jam. “Q. I am going to move on, I had one crack at that one, I believe. Now, to the warning, the next warning, if you decide — if you decide to answer questions now without a lawyer present you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. Are there any abstractions in that, abstract concepts?
“A. I don’t think you would have to change decide, if you wanted to ask him questions, talk to him normally, more or less, street language, rather than legal language.
“Q. Alright. What about the waiver of rights, would he understand waiver of rights, sir?
“A. Not unless they were explained to him.
“Q. The word waiver, would have to be explained, sir?
“A. Yes.
“Q. Did you explain to the Defendant what a lawyer was, sir, do you recall? “A. No, I didn’t have to, he seemed to know what a lawyer was, when I talked to him, I had to change the word attorney, he had a puzzled look, I changed it to lawyer, he seemed to know what a lawyer was.
“Q. So, in other words, your testimony is that he could understand the Miranda Warning and waiver only if certain words were explained to him in such a manner that he could understand, is that your testimony, sir?
“A. Yes, sir.”

Dr. Seeger stated that the stressful situation surrounding the defendant’s being placed in and interrogated in police custody would inhibit his intellectual functioning “to a degree.”

The transcript of the hearings to determine the voluntariness of the confessions consumes a large portion of the voluminous record on appeal. We have omitted most of the testimony given at those hearings and focused on those portions most determinative of the voluntariness question.

The Alabama Supreme Court recently stated the law governing the determination of voluntariness of a confession given by a mentally retarded defendant:

“Thus, in most cases, the defendant’s mental deficiency will be but one factor to be considered in the ‘totality of the circumstances’ surrounding the confession. In some cases, however, it may be the most important or controlling factor. See e. g. Dover v. State, 227 So.2d 296 (Miss.1969); People v. Langston, 57 Mich. App. 666, 226 N.W.2d 686 (1975). See also Redwine v. State, 258 Ala. 196, 61 So.2d 724 (1952). The importance of this factor increases with the degree of the accused’s mental retardation because he must be able to understand his right to remain silent and to an attorney before he can waive them. It is a knowing and intelligent waiver that is required. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).” Garrett v. State, 369 So.2d 833, 836 (Ala. 1979).

In Garrett the defendant was mentally retarded with an I.Q. of 50. The court held, “Although such a degree of mental retardation in a given case may be controlling, we need not so hold here because we find from the totality of the circumstances that the confession was involuntary.” Garrett, 369 So.2d at 836.

The testimony and facts of this case dictate that the most important and controlling factor to be considered in the totality of the circumstances is the defendant’s mental deficiency. We need not cite a long list of cases stating the general principles on the mental subnormality of the accused as affecting the voluntariness or admissibility of a confession. These principles were concisely and efficiently stated in Garrett. Cases touching this issue have been collected in the annotation at 69 A.L.R.2d 348 (1960). In addition, this question has repeatedly been faced by the courts of this state. Jackson v. State, 375 So.2d 1271 (Ala.Cr.App.), cert. denied, 375 So.2d 1274 (Ala.1979); Twymon v. State, 358 So.2d 1072 (Ala.Cr.App.1978); Parker v. State, 351 So.2d 927 (Ala.Cr.App.), cert. quashed, 351 So.2d 938 (Ala.1977); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977). Yet in none of these cases has there existed a mental deficiency so extensive as the defendant’s. We have diligently searched and have been unable to find any case involving mental retardation and the voluntariness of a confession wherein the degree of mental retardation was as extreme as that presented here.

The United States Supreme Court has repeatedly recognized that a confession made by a person whose verbal intelligence is limited is more likely to be involuntary. Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967); Culombe v. Connecticut, 367 U.S. 568, 624-25, 81 S.Ct. 1860, 1890-91, 6 L.Ed.2d 1037 (1961); Fikes v. Alabama, 352 U.S. 191, 196, 198, 77 S.Ct. 281, 284, 285,1 L.Ed.2d 246 (1957); Jurek v. Estelle, 593 F.2d 672 (5th Cir. 1979).

The “suggestibility” of the defendant must also be considered:

“The Supreme Court has said that in deciding whether a confession is voluntary we must ‘[weigh] . . the circumstances of pressure against the power of resistance of the person confessing,’ Stein v. New York, 346 U.S. 156, 185, 73 S.Ct. 1077, 1093, 97 L.Ed. 1522 (1953), and has held confessions to be involuntary partly because of the unusual suggestibility of those who gave them. See Culombe v. Connecticut, 367 U.S. at 625, 81 S.Ct. 1860; Fikes v. Alabama, 352 U.S. at 198, 77 S.Ct. 281. See also United States v. Lehman, 468 F.2d 93, 100 (7th Cir.), cert. denied, 409 U.S. 967, 93 S.Ct. 273, 34 L.Ed.2d 232 (1972).”

Jurek, 593 F.2d at 677.

Whatever definition of voluntariness we employ, Jurek, 593 F.2d at 676, it is clear from the record that the defendant could not have knowingly and intelligently waived his constitutional rights without adequate explanation. See Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972). Proof of that explanation is missing from this record. When expert testimony indicates that a defendant could have intelligently understood the waiver of his constitutional rights only if they were simply and clearly explained, the record must expressly and specifically establish that such an explanation was given. See Davis v. Henderson, 473 F.2d 679 (5th Cir. 1973).

“The requirement of ‘knowing and intelligent’ waiver implies a rational choice based upon some appreciation of the consequences of the decision.” Cooper, 455 F.2d at 1146. The record demonstrates that the defendant had no appreciation of the options before him or the consequences of his choice. It is virtually undisputed that the defendant could not understand all of the words in the Miranda warning. Consequently, we conclude that the defendant could not have made a “knowing and intelligent” waiver of his constitutional rights. The confessions were therefore inadmissible. Their admission deprived the defendant of his constitutional rights of due process of law and a fair trial. His conviction must be reversed.

II

Dr. Smith testified as a rebuttal witness for the State. Qualified bom as a psychiatrist and an attorney, Dr. Smith stated that the defendant could “function sexually.”

On recross examination of Dr. Smith by defense counsel the following occurred:

“Q. Have you observed Mr. Hines performing a sexual act, sir?
“A. No.
“Q. Have you observed Mr. Hines’ genitalia, at all, sir?
“A. Yes, not by physical examination, but — .
“Q. That is what I mean, observe with your eyes, with your eyes, sir, did you make a physical observation and examination of the Defendant’s genitalia?
“A. I did in this courtroom, I saw that he had an erection one time.
“MR. HAIRSTON: Objection.
“THE COURT: Overruled.
“A. You asked, I don’t know. “QUESTIONED BY MR. HAIRSTON: “Q. I was asking during your examination?
“A. You asked me about an examination .
“Q. I am not personally — I asked you had you ever observed his genitalia during your examination?
“A. You asked me if I observed here — . “QUESTIONED BY MR. HAIRSTON: “Q. You knew what I asked you — .
“A. I don’t know, you were asking me — .”

Immediately after this exchange, the trial court recessed the jury and requested an apology from defense counsel for his loss of “total composure.”

When the jury returned, defense counsel apologized for his outburst and the trial judge, of his own initiative, carefully instructed the jury to disregard the answer, “to erase it from your mind” and “not utilize it for any purpose.” The judge polled the jury and no juror indicated that he could not comply with the court’s instructions. As in Stain v. State, 273 Ala. 262, 266, 138 So.2d 703, 706 (1962), it must be recognized that “if the situation was curable by admonition, the instructions were adequate for that purpose.” Later, defense counsel requested a mistrial based on Dr. Smith’s answer.

The State contends that the answer was responsive to the question of defense counsel. However, the record reflects that the answer was totally unresponsive and volunteered.

In Stain, 273 Ala. at 266, 138 So.2d at 706, the Alabama Supreme Court addressed the issue we now face.

“The decision of the question as to its eradicability is a delicate operation. It requires recognition of, without definitely drawing, the imponderable line where the broad legal discretion lodged in trial courts ends and the more objective review of appellate tribunals begins. Furthermore, the doctrine of harmless error must be given full play. The purpose of the doctrine is to cast upon the party complaining of technical or procedural errors the burden of showing that they have substantially affected his legal rights. In such cases, there is always the possibility, often the probability, that the prejudicial statement entered into the judgment, and the harmless error rule is not intended to save such a verdict from appellate condemnation.”

We are left in grave doubt as to whether or not the jury was humanly able to follow the trial court’s instructions to erase and disregard Dr. Smith’s answer. In view of such doubt, the conviction cannot stand. Stain, 273 Ala. at 266, 138 So.2d 703.

Dr. Smith’s answer was clearly unresponsive, illegal and irrelevant for any purpose in this ease. Unquestionably, the remark was extremely prejudicial. It was given by one trained in the law and accustomed to testifying as a witness. It went to the merits of the defense and related to a material fact in issue. The “circumstances indicate more than a possibility that appellant’s legal right to a fair trial was substantially impinged by the incompetent and prejudicial testimony.” Stain, 273 Ala. at 267, 138 So.2d at 707. We do not think that the explosive and prejudicial effect of this remark can be exaggerated or overestimated in the context of this particular case.

Ill

In examining the defendant’s brother, Billy Hines, defense counsel questioned the witness about his attempt to find out the whereabouts of the defendant on May 23rd. The trial court sustained the objections of the State and did not allow defense counsel to make an offer of proof. This was reversible error. Fields v. State, 382 So.2d 598, Ala. (1980), relying on White v. State, 48 Ala.App. 111, 262 So.2d 313 (1972), and Sellers v. State, 7 Ala.App. 78, 61 So. 485 (1919).

IV

In granting the defendant’s motion for a change of venue and moving the trial from Morgan County to Cullman County, the Circuit Judge issued a written order which describes the conditions of the time. We quote a portion of that order:

The sworn motion is evidence in itself as an affidavit. It verifies, among other things:
“ ‘The facts of the race of the defendant and victims have so overshadowed the case as to make it appear to the community as a racial incident. . Several groups, motivated by the racial aspects of the case have been marching, demonstrating, holding rallies and erecting camps upon the courthouse grounds and other facilities within the community which has had the result of polarization between the races in the Morgan County community. . [L]ocal newspaper and radio stations have through their extensive broadcasts and publications greatly increased the prejudice . . . ’
“The Court has observed much of this evidence itself first-hand. Such incidents have occurred with some regularity within sight of the courthouse — many times in view of the Court itself — since last spring. These incidents continue. Some have resulted in arrests, convictions, and appeals. Other criminal charges growing out of these incidents are still pending. “Media coverage has been almost continuous from the first. It reflects two racially identified political organizations commonly referred to as SCLC and KKK — both using this case as a rallying point for their opposing views — each seeking as much publicity as possible to increase membership. These activities have resulted in the gathering of crowds estimated in the thousands.
“Media also reflect that the leader of one of these factions is from the state of Georgia and the other is led by a man from Louisiana. Followers have been brought to the city of Decatur in bus loads.
“The result of this has been to turn Morgan County into a battleground of opposing political thought. The tactics have been political action in the streets and public places. The cases against the defendant have been the weapons used by each side in their war against each other. “Each side appears to have sought to persuade every available mind of the guilt or innocence of the defendant before he is ever tried.
“This is an intolerable result.
“It is almost inconceivable that there are prospective jurors who have not heard of or discussed these incidents or the cases. “Any man or woman — black or white— required to sit as a juror on any of these cases would'be victimized by [the] present atmosphere to such an extent as to have questions in the mind about his or her own impartiality.
“Such a jury could not serve in the interests of justice. Neither could it serve in the interests of itself, the State, nor the defendant. It could not in law be called impartial.”

From the record we note that some of these conditions were present during the defendant’s trial in Cullman County. The trial judge repeatedly had to admonish the courtroom spectators to remain silent and refrain from any outbursts or disruptive conduct. At one point the trial was interrupted and the courthouse evacuated because of a bomb threat. Extensive security precautions were necessitated in order to insure the personal safety of the courtroom participants. Defense counsel were subjected to intimidating remarks and racial slurs upon entering and leaving the courthouse.

These comments are made in light of our decision reversing the defendant’s conviction and remanding the case for a new trial. Should the trial judge find that the defendant cannot get a fair trial in Cullman County, a change of venue must be granted. The statutory restrictions of Alabama Code 1975, Section 15-2-24, allowing only one change of venue, cannot be construed as operating to deny an accused his constitutional right to a fair trial. Additionally, we do not think that the restriction of that statute was meant to apply in such a situation as here presented where the case is reversed on appeal and remanded for new trial.

The conviction of the defendant is reversed and the cause is remanded for a new trial for the reasons we have stated in this opinion. Regardless of his race or the crime with which he is charged, an accused must receive a fair trial. This Court will not tolerate anything less. In the most basic and fundamental sense of the term, the defendant was denied that right.

REVERSED AND REMANDED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

On application for rehearing the State challenges parts I and II of our opinion. No issue is made on part III and IV.

In reaching the conclusion that the defendant did not have the mental capability of understanding the Miranda warnings read to him without additional explanation and, therefore, did not rationally and intelligently waive his constitutional rights, this Court did consider the totality of the circumstances surrounding the confession. After reviewing the entire record, we found the defendant's mental deficiency to be the most important and controlling factor of all the circumstances. See People v. Bruce, 62 A.D.2d 1073, 403 N.Y.S.2d 587 (1978). “[T]he concept of ‘voluntariness’ is one which concerns a mental state.” Culombe v. Connecticut, 367 U.S. 568, 603, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961).

Part II of our opinion concerns the prejudicial quality of Dr. Smith’s volunteered testimony at trial. To the original opinion, we only add that within the context of this particular case we consider his answer analogous to the stone which once hurled can never be recalled.

The State presents no argument which we have not already considered in writing our opinion. We remain firm in our conviction that the defendant was denied a fair and impartial trial. Therefore, the application for rehearing is overruled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.

      . After examining the application form, Officer Russell gathered that the defendant might not be literate. On the form the defendant wrote his name, “TOMMYINESH;” listed other training, “509M;” his present employer, “509M;” his employer’s address, “509DdA;” and his title, “509DbM.” On one page the defendant had written “509MDdiNESH” upside down.

      . According to Officer Russell, the description was “[a] black male, approximately 5'6" to 5'7", 19 to 23 years of age, rather closely cropped hair, clean shaven and a full mouth of [prominent] white teeth.” A physical examination of the defendant at Bryce Hospital revealed that the defendant weighed 143 pounds, had a height of 5'2", and was 25 years old. A police photograph of the defendant shows that he does have “white teeth” and “rather closely cropped hair.”

      . Officer Russell further stated:
      “He was sitting in the car and I was standing there and I asked him would you go down to City Hall and talk to two detectives. I remind you again that you don’t have to say anything, anything you say can be used against you, you have the right to have an attorney with you and do you understand.”

      . Officer Russell testified that the defendant was not under arrest and he “most certainly” would have let the defendant get out of the police car and leave if the defendant had said he wanted to go home.

      . The record indicates that in arguing for the voluntariness of the defendant’s confession, the State cited this case to the trial judge.


author: TORBERT, Chief Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re Thomas Lee HINES v. STATE of Alabama).
    79-556.
    Supreme Court of Alabama.
    June 20, 1980.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.


author: BOWEN, Judge.

text:
    Ronald Wayne ROMINE v. STATE.
    8 Div. 310.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Rehearing Denied April 22, 1980.
    Clyde D. Baker, Guntersville, for appellant.
    Charles A. Graddick, Atty. Gen., J. Anthony McLain, Sp. Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for rape and sentenced to twenty years’ imprisonment. The only question presented on appeal is whether the trial court erred in admitting into evidence a statement handwritten by the defendant while he was confined in jail and before he was given his warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The sufficiency of the evidence is not contested. There was no motion to exclude the State’s evidence, no request for any written charge and no mention for a new trial. Thompson v. State, 347 So.2d 1371, 1373 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977). The prosecutrix testified that she was abducted outside a lounge in Birmingham and taken to Marshall County where she was repeatedly raped and assaulted by the defendant and two other men. The defendant, his brother, Ernest Romine, and his cousin, Allen Abbott, each testified that the prosecutrix voluntarily went with them and consented to various sexual acts.

While the prosecutrix was at the Marshall County Sheriff’s Department she asked that a handwritten note be delivered to her attackers who were upstairs in the county jail. The note stated, “If you know where my car is, tell me if you want out of this.” The subject of this note was interjected into trial by defense counsel on his cross examination of the prosecutrix and the note itself was introduced as a defense exhibit.

Sometime after 5:00 P.M. on the day of the rape, the prosecutrix handed Deputy Sheriff Lacy Galloway the note. When he read the note he asked her “if she got her car was she going to forget about it, and she said, ‘No, I cannot find my car, and I want this note carried up to tell me where my car is.’ ” When Deputy Galloway had this conversation with the prosecutrix, the Sheriff was present. The Sheriff had called the Deputy out to the “booking counter near the elevator” and asked him to “carry the note up”.

Deputy Galloway then:
“. . . carried a note from (the prose-cutrix) and called all three of them to the bars and told them that she had sent a note up there, and all of them was standing there, and Ernest took the note. He started writing on it, and Ronald (the defendant) asked someone for a piece of paper, and he started writing, and they gave me the notes back.”

All three men read the note and Ernest was “the one that took it” from Deputy Galloway. On the bottom portion of the note Ernest wrote, “We never saw your car. You got in with us at Al’s Cabaret in Birmingham. Please let us out of here.” On a separate piece of paper the defendant wrote, “Please drop charges. We are sorry. Please I got a baby and a wife Please.” After Galloway read the notes he gave them to the prosecutrix but later got them from her and placed them in his file.

The Deputy had no conversation with the defendant when he carried the prosecutrix’s note upstairs to the jail. The defendant told Galloway to “carry the note down and give it to her”, or words to that effect.

Defense counsel never objected to the note on the specific grounds that it was involuntary or given without a proper Miranda warning. In fact, the trial judge, on his own motion, initially directed an inquiry into the voluntariness issue: “I need some testimony on self-incrimination if you will.”

The State then adduced the following testimony:

“Q. Officer Galloway, at the time that you went upstairs to deliver the note, did you have any conversation other than what you have already testified to with any of the three individuals?
“A. I do not recall any conversation, no more than telling them that lady sent a note up there.
“Q. Did you or anyone in your presence ask them to or direct them to sign a response or to indicate any sort of response on this note?
“A. No, I did not.
“Q. Did you or anyone in your presence tell them that they should send a response back down on this note?
“A. No.
“Q. Did you or anyone in your presence threaten them in any way in order to tell them if they did not sign it something was going to happen to them?
“A. No, sir.
“Q. Did you or anyone in your presence tell them that things would go easier for them if they would respond to that note? “A. No, sir.
“Q. Lacy, as a matter of fact other than what you have testified to, was there any questioning that was done by you?
“A. No, sir.
“Q. Did you ask them any question? “A. No.”

In overruling an objection by the State to the line of questioning being pursued by defense counsel, the trial judge noted that there had been no evidence of custodial interrogation. However, the court allowed defense counsel to show that the defendants had not been given the Miranda warnings in Deputy Galloway’s presence. The defendant did not testify on the issue of the voluntariness of his written statement.

Testimony in the record shows that the defendants were stopped and arrested around 12:00 noon on June 8, 1979, by an officer of the New Hope Police Department. They were turned over to a unit of the Marshall County Sheriff’s Office. Shortly after the defendants were arrested, Investigator A. G. Lang advised Allen Abbott of his Miranda rights. The record does not reflect when or if the defendant was warned of his constitutional rights.

After this predicate the defendant’s handwritten note was admitted into evidence. Then the note written by the prose-cutrix and the reply written by Ernest on the bottom of that note were received into evidence on the offer of defense counsel.

Without objection from defense counsel, the State cross examined the defendant about the note he wrote in the jail.

“Q. What were you sorry about, that you were so sorry when you wrote this? “A. I was sorry things happened the way they did.
“Q. The way things happened. You had not done anything to be sorry about, had you?
“A. No, sir.
“Q. You had not laid a hand on her? “A. No, sir, I had not.
“Q. She was perfectly willing?
“A. Yes, sir.
“Q. But you were sorry about it?
“A. Yes, sir.”

The defendant maintains that his handwritten note was involuntary because it was the product of custodial interrogation before he was given his Miranda warnings. The State argues that the written statement was volunteered and that the defendant was never subjected to any questioning or interrogation and therefore Miranda was not necessary. Under Miranda, the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of a defendant unless it demonstrates the use of the “procedural safeguards” effective to secure the privilege against self-incrimination.

Initially we preface our remarks with recognition of the fact that “(w)hen the circumstances indicate that, according to the common probabilities of experience, the confession was not improperly induced, then no formal predicate is required”. C. Gamble, McElroy’s Alabama Evidence, § 200.02(4)(a) (3rd ed. 1977).

There is no dispute that the defendant was in actual custody when he wrote the note. The basic issue is whether the Deputy’s actions constituted “interrogation” within the contemplation of Miranda. “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. We think it unquestionable that “certain police conduct, though not verbal, may nevertheless be tantamount to interrogation for purposes of requiring Miranda warnings”. See the excellent treatment of this subject in Vines v. State, 402 A.2d 900 (Md.1979).

“Any police conduct, verbal or otherwise calculated to, expected to, or likely to stimulate incriminating statements from one in custody would seem to fall within the term ‘custodial interrogation’.” Rothblatt and Pitler, Police Interrogation: Warnings and Waivers—Where Do We Go From Here? 42 Notre Dame Law, 479, 486, n.42 (1967) source cited in Vines, 402 A.2d at 903.

“Interrogation” has been defined as “police questioning or conduct which is calculated to, expected to, or likely to evoke admissions”. Com. v. Whitman, 252 Pa.Super. 66, 380 A.2d 1284 (1977).

Yet, even if we consider that the defendant’s admission was obtained in violation of Miranda in that the conduct of the Deputy amounted to “interrogation”, we do not think that its admission into evidence requires a reversal of his conviction in view of his testimony and that of his two alleged accomplices at trial. All three men admitted being with the prosecutrix at the time she alleged that she was raped. The defendant and Ernest admitted performing sexual acts with the prosecutrix. The entire and sole defense was that the prosecu-trix freely consented to sexual conduct with the defendant and his brother.

Alien Abbott stated that the prosecutrix, Ernest and the defendant were in the back seat of the automobile he was driving; that he saw the prosecutrix have “oral sex” with Ernest but that he never saw any act of intercourse.

Ernest Romine, the defendant’s brother, testified to trying unsuccessfully to have intercourse with the prosecutrix on four separate occasions and having her perform fellatio on him. Ernest stated that the defendant “wanted me to scoot over and let her have oral sex with him * * * I scooted over, and she did that to him.” According to Ernest, Abbott said that he was going to have sexual intercourse with the prosecutrix but that he did not know if Abbott did or not. Ernest stated that no one had intercourse with the prosecutrix and that the defendant never attempted to have intercourse with her.

The defendant admitted being with Ernest and the prosecutrix in the back seat of the automobile. He stated that Ernest tried but could not “make love” to the prosecutrix so she performed fellatio on Ernest. The defendant testified that after this Ernest “still could not do anything, so he moved over, and then I asked her would she do the same thing to me” and the prosecutrix performed fellatio on him. The defendant denied ever having sexual intercourse with the prosecutrix.

A defendant cannot complain of the admission of improper evidence where he himself testifies to the same facts. Yelton v. State, 294 Ala. 340, 342, 317 So.2d 331 (1974). Even though there may have been error in admitting an admission or confession, such error is cured or rendered harmless by the defendant’s own testimony which is substantially in the language of the confession or admission. Smith v. State, 253 Ala. 220, 43 So.2d 821 (1950); Ray v. State, 248 Ala. 425, 27 So.2d 872 (1946); Burlison v. State, 369 So.2d 844, 850 (Ala.Cr.App.), cert. denied, 369 So.2d 854 (Ala.1979); Thompson v. State, 53 Ala.App. 484, 301 So.2d 248 (1974); Etheridge v. State, 47 Ala.App. 233, 252 So.2d 655 (1971); Smith v. State, 40 Ala.App. 393, 114 So.2d 295 (1959).

The substance of the note was the implication of the defendant’s presence at the scene of the alleged crime and his complicity with the other two men. However, the defendant, and the other defendants, admitted this on the witness stand rendering harmless the substance and implications of the note itself. We have reached this conclusion after careful consideration of the particular facts in this case mindful that the harmless error rule is not a panacea for any and all violations of a defendant’s right to a fair trial.

We have responded to the arguments advanced by the defendant and have searched the record for error as required by law. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Ronald Wayne ROMINE. (Re: Ronald Wayne Romine v. State of Alabama).
    79-548.
    Supreme Court of Alabama.
    June 27, 1980.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


author: HARRIS, Presiding Judge.

text:
    Ex parte Walter F. JOHNSEY.
    3 Div. 246.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Rehearing Denied April 16, 1980.
    L. Drew Redden of Redden, Mills & Clark, F. Timothy McAbee of Sirote, Per-mutt, Friend, Friedman, Held & Apolinsky, Birmingham, for petitioner.
    James H. Evans, Dist. Atty., Charles Lee Trúncale, James W. Traeger, Deputy Dist. Attys., Montgomery, for respondent.
   HARRIS, Presiding Judge.

This is a Common Law Writ of Certiorari to review the order of Honorable H. Randall Thomas ordering Petitioner to testify before the Montgomery County Grand Jury following a grant of immunity. The issue before this Court for determination is whether the order granting immunity is beyond the scope of the immunity statute which grants the immunity. We hold that it is and reverse the case.

The controlling statutes are found in Sections 37-8-1, 37-8-2, 37-8-3, and 37-8-4, Code of 1975. The sections follow:

“(a) Any utility doing business in this state or any of. its authorized agents, officers or employees who knowingly or willfully violate or procure, aid or abet a violation of any lawful order or decree of said commission shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than $1,000.00 for each offense. In the case of a violation of said commission’s orders or decrees, each day’s violation shall be deemed to be a separate offense.
“(b) Every officer, agent or employee of any common carrier or corporation who shall violate or who procures, aids or abets any violation of, or who shall fail to obey, observe or comply with any order of the public service commission or any provisions of any order of the commission, or who procures, aids or abets any such common carrier or corporation in its failure to obey, observe and comply with any such order or provision shall be guilty of a misdemeanor and, upon conviction, shall be fined a sum not exceeding $500.00 for each offense, to be fixed by the court or judge trying the case.”
“Any officer, agent or employee shall be subject to indictment or prosecution in any county in which a subordinate agent or employee of a common carrier violates any of the provisions of this Code relating to the public service commission, or any rule or order of the commission by the direction or in consequence of the direction of such officer, agent or employee.”
“The agent or employee who locally, in any county, violates any of the provisions of this Code relating to the public service commission or any of the rules or orders of the commission, in pursuance of the direction or authority of his superior officer or agent of the common carrier, may be called as a witness and be compelled to testify, showing the authority by which he acted, and such testimony shall not be used against him, nor shall he thereafter be subject to indictment for said offense.”
“Witnesses before the grand jury, summoned to give evidence of any violation of this title, may be required to answer generally as to any such offense within their knowledge committed within 12 months next preceding, without being specially interrogated as to any particular offense, but no witness shall be prosecuted for any offense as to which he testifies before the grand jury, and any member of the grand jury or district attorney may be a witness to prove this fact.”

Petitioner is presently under indictment in the United States District Court for the Northern District of Alabama, styled United States of America v. Drummond Coal Company, et al., Case No. Cr 79-M-00276-5. He is charged with conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity, such as mail fraud, bribery, wire fraud and extortion, condemned by the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sections 1961, et seq.

In obedience to three subpoenas duces tecum Petitioner appeared before the Montgomery County Grand Jury on March 7, 1980, and was sworn by the Foreman. He then refused to answer questions posed to him by the District Attorney on the ground that his testimony might tend to incriminate him.

Section 37-8-3, Code 1975, supra, is limited and restrictive and provides immunity with respect to testimony concerning witness’ violation of the penal provisions of the law governing the Public Service Commission perpetrated while an employee of a Common Carrier and at the direction of a superior officer or agent of the common carrier. However, the Court ordered Petitioner to testify before the Grand Jury with respect to any violation of the Code of Alabama which would relate to the Public Service Commission, or any Commissioner, employee or agent of the Commission, without limitation to the offense, perpetrated by Petitioner either at the direction of a superior officer or agent of a common carrier.

The lower court concluded that the scope of Section 37-8-3, supra, is not limited to testimony concerning violations of the penal provisions of the Public Service Commission but also includes testimony concerning the violations of any other penal provisions appearing in the Alabama Code relating directly. or indirectly to the Public Service Commission.

The order of the lower court is overbroad, unrestrictive and unlimited. It should have been confined to the violations set forth in Section 37-8-1, Code 1975, supra.

There is no general grant of immunity under the laws of this State. Immunity is provided only by specific legislative enactments, and it stops there. Grant of immunity as the basis for compelling a witness to give testimony which might be used in a prosecution against him is valid only if it is coextensive with the scope of the privilege against self-incrimination.

The constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law so long as the grant of immunity is confined within the scope of the specific statute granting such immunity. See Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678.

We hold the trial court went beyond the scope of the applicable statutes relating to the Public Service Commission in granting Petitioner immunity in compelling him to testify before the Montgomery Grand Jury. Undoubtedly, Petitioner can be compelled to testify before the Grand Jury but only as to the offenses prescribed in Section 37-8-1, Code of 1975, and no other offenses contained in other provisions of the Code relating to the authority of the Commission.

REVERSED AND REMANDED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte State of Alabama and the Circuit Court of Montgomery County. Re Ex parte Walter F. JOHNSEY. Common Law Writ of Certiorari to Montgomery Circuit Court.
    79-535.
    Supreme Court of Alabama.
    June 20, 1980.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, SHORES and EMBRY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Dennis KOCH v. STATE.
    4 Div. 795.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Rehearing Denied May 6, 1980.

      Joseph P. Hughes, Geneva, for appellant.
    Charles A. Graddick, Atty. Gen., George Hardesty, Jr., Sp. Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Carnal Knowledge of a girl under the age of twelve; sentence: ninety-nine years imprisonment.

The evidence indicates that the offense in question was committed sometime during the spring of 1977 while the prosecutrix was in the sixth grade. Although an exact date was not proved, the evidence indicates that the offense was committed prior to the effective date of the Code of Alabama of 1975. By proclamation of the governor, the 1975 Code became effective on October 31, 1977. See Proclamation, page vi, Volume 1, Code of Ala. 1975. That Code did not affect any prosecution for any offense already committed prior to its effective date. Section 1-1-9, Code of Ala. 1975. The instant prosecution was therefore brought pursuant to Title 14, § 398, Code of Ala. 1940:

“Any person who has carnal knowledge of any girl under twelve years of age, or abuses such girl in the attempt to have carnal knowledge of her, shall, on conviction, be punished, at the discretion of the jury, either by death or by imprisonment in the penitentiary for not less than ten years.” (Emphasis supplied.)

In the instant case the jury returned a guilty verdict without setting the punishment. Defense counsel objected to the receipt of such a verdict “upon the grounds that it does not fix the punishment.” The trial judge nevertheless accepted the verdict and fixed punishment at ninety-nine years imprisonment.

The State, in a tacit admission of error, declined to file a brief in the instant appeal filing only the following statement:

“In light of this offense having occurred prior to the effective date of the 1975 Code of Alabama, and in light of the fact that prior to the effective date of said Code the jury was statutorily mandated to set punishment in carnal knowledge cases (Tit. 14, § 398, Code of Alabama, 1958), and in light of the action of the trial court in exercising exclusive authority in imposing sentence on the defendant (TR 141-42), appellee respectfully declines to file a Brief. Thomas v. State, Ala.Cr.App., 365 So.2d 1013 (1978), cert. denied, Ala.S.Ct., 365 So.2d 1014 (1979); Tanner v. State, 23 Ala.App. 116, 121 So. 693 (1929); Smith v. State, 23 Ala.App. 106, 121 So. 692 (1929).”

The identical question was presented in Thomas, supra, in which this court stated:

“Inasmuch as the trial court here fixed the punishment instead of having this done by the trial jury, reversible error occurred. Accordingly, we have no alternative but to reverse and remand this cause for a new trial. . . ”

A new trial is therefore mandated wherein the jury must be instructed to fix punishment if a guilty verdict is again returned.

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte State of Alabama ex rel. Attorney General. In re Dennis KOCH v. STATE of Alabama.
    79-605.
    Supreme Court of Alabama.
    June 27, 1980.
   PER CURIAM.

WRIT DENIED — NO OPINION.

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