author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Bernard HARPER v. STATE.
    2 Div. 288.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      William T. Faile of Morris & Faile, Selma, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Spec. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant (defendant) was found guilty by a jury under the second count of an indictment charging him with buying, receiving, concealing or aiding in concealing “Nineteen (19) 10/20 tires and Eight (8) lug blocks and accessories ... of the total and combined value of, to-wit: $3800.00; the personal property of Jimmy Henderson, knowing the same had been stolen, and not having the intent to restore it to the owner.” In the first count he was charged with larceny of the property. The court fixed his punishment at imprisonment for ten years and sentenced him accordingly.

That the property had been stolen there can be no doubt. The owner, Mr. Jimmy Henderson, a farmer living and farming at Prairie, Alabama, in Wilcox County, said that he was called to his farm on Monday morning, April 9, 1979, to find that his two soybean trailers had been jacked up, that nineteen tires and some of “the nuts and cleats that hold the tires on the trailer were gone.” He said the value of each tire and attached rim was “between a hundred and fifty and two hundred dollars.” He said he next saw the stolen property in two pickup trucks at the Marengo County Jail at Linden.

There was undisputed evidence that about midnight of April 8-9,1979, two pickup trucks were halted by a deputy sheriff of Marengo County at Nanafalia on Highway 10 in Marengo County. The officer noted that the trucks were loaded with tires. One truck was being driven by defendant, the other by defendant’s son, Preston Leon Harper. In the truck with the defendant was defendant’s wife. The officer contacted the Marengo County Sheriff who told him “to bring them to the Maren-go County Jail.” The record shows that the particular officer and several other officers had been maintaining a lookout for the defendant and his son and trucks driven by them.

A large part of the transcript of the proceedings consists of hearings out of the presence of the jury in connection with defendant’s objections to, or motion to suppress, testimony pertaining to what defendant said subsequent to his being stopped on the highway and testimony as to the contents of the truck. A major ground for the objections and the motion was that there had been an illegal arrest of defendant, in violation of his rights under the Fourth Amendment to the Constitution of the United States. The same constitutes the essence of appellant’s first two contentions for a reversal. We will discuss such contentions later.

Perhaps the clearest portrayal of the circumstances pertaining to the alleged crime is to be found in the testimony of the only witness for defendant, his own son who was driving the other truck. He testified that at the time of the trial he was then in the Mississippi State Penitentiary, serving a seventeen-year sentence for three cases of burglary in Lauderdale County, Mississippi. He testified in part as to the crime charged in this case:

“Q. Do you recall coming to Alabama back in April of 1979 and you brought with you your mother and your father?
“A. I do.
“Q. And do you recall what day of the week that was?
“A. It was on a Sunday.
“Q. Now, at that time where were you living?
“A. Route 1, Toomsuba, Mississippi.
“Q. And where was your father living?
“A. Route 1, Toomsuba, Mississippi.
“Q. How far did you live from your father?
“A. About a quarter of a mile.
“Q. Did you make any plans to come to Wilcox County on that day?
“A. I did.
“Q. And what were those plans?
“A. I had a call Sunday afternoon from a man who had been buying tires from me. And he asked me to meet him in Meridian. And I met him in Meridian. And he said he needed some tires.
“Q. Did he say what kind of tires he needed?
“A. He was in the trucking business. He had been buying tires from me before. He said some of his trucks were getting in pretty bad shape on tires and he wanted to know did I have any.
“Q. What did you tell him?
“A. I told him no that I didn’t at the present time. And he wanted to know how long it would take to get some.
“Q. And what did you tell him?
“A. I told him I thought I could get him some pretty quick.
“Q. Did he indicate to you that he had to have them pretty quick?
“A. He did. He said he needed them right then.
“Q. After he told you this what did you do?
“A. I told him I would try to have them for him the next morning. That I knew where I could probably get some and he had the cash money waiting for me he said just as soon as I gave him the tires he would pay me for them.
“A. All right. After I had done talked to the man and had come back to my house I loaded up the tire tools and jacks and blocks and stuff and went to my father’s house. My mother and father were sitting in the back yard with my brother and his wife. And I walked up and my brother and his wife were getting ready to leave. And they lived right across there from my father there so they were just going to walk over to their house. And I told my father I needed him to run with me to haul a few truck tires.
“Q. Did you tell your father where you were going?
“A. No.
“Q. And what did he say to you when you told him you needed him?
“A. He said he didn’t feel very good and didn’t feel much like driving. I told him well he wouldn’t have to be gone all that long. And we probably would be back pretty early if we leave early.
“Q. And what kind of health is your father in?
“A. He just had a couple of major operations for intestinal blockage in his stomach. He was a diabetic and he was having trouble getting his stomach to heal up where they had put stitches in his stomach. And really he wasn’t supposed to be driving that much.
“Q. And did he have his own vehicle?
“A. He did. He had a pickup, that I helped him buy.”

He further testified that with his father and mother following him, according to his instructions, and after he had had the two trucks supplied with gasoline, they traveled into Alabama, passed through Sumter County, Choctaw County and Marengo County, and “there 'was a tool shed fairly close to where these tires were. These two trailers were parked under a shed.” In his further testimony, the witness said that he had his father park the truck he was driving somewhat out of sight of the place where the trailers and shed were, that he didn’t want his mother and father “to know I was going to break these tires down and steal them.” He said he told his father that he was going “to meet a man to pick up these tires,” that it didn’t take him long to jack up the trailers and take the tires off, that he put nine of them in his pickup, took them to the other truck, switched trucks with his father, went back and put ten tires in his father’s truck, then returned to the other truck and “told them to follow me.” According to his testimony, the two trucks then returned over the same route and came back into Marengo County, when the following occurred:

“A. When we got near Nanafalia we met a Sheriff’s car. And we were near Compton’s Store. So I pulled over at the store and the Sheriff’s car had turned around and followed us. And whenever I stopped there they got out and arrested us. No, excuse me, I’m wrong there. It was raining. And they got out and wanted identification, driver’s licenses. They didn’t say we were under arrest at that time. It was raining real hard and they got back in the car and I guess they called for help because it wasn’t but just a few minutes until there were several Sheriff’s cars and deputy cars surrounding us and the store.
“Q. They stopped you with a blue light?
“A. Right.”

According to further testimony of the witness, one of the officers asked for his driver’s license and “said something about the tires on my truck.” He told the officer he had bought them, that then “it really got raining hard so he said just get back in the truck. In other words, we were going to let the rain blow over.” His father got out of his truck and into the truck the witness was driving and asked the witness what was going on. He said he told the defendant to tell the officers that “we bought the tires in Montgomery.” The officers questioned the witness “maybe ten or 15 minutes as to where the tires had come from” and what he was doing with them, and he told them that he “bought the tires from a man I had met in Montgomery.” After the questioning, the witness, his father and mother, went with one or more of the officers to the Marengo County Jail at Linden and remained there the rest of the night. About 9:00 A.M. the next morning, according to the witness, the officers let him know that they had not learned that the tires had been stolen and were in the process of arranging for some papers to hold the tires but release the witness, his father and mother. However, soon after 9:00 A.M., the officers told them that they had just learned that the tires were stolen. Charges were then made against the witness, his father and mother for their participation in the theft of the tires.

It can be seen from the testimony of the defendant’s son, as to which there is little material conflict, that it is difficult to determine the precise moment of defendant’s arrest. However, it is to be reasonably concluded, we think, that whatever the precise time thereof, there was probable cause for believing, and that the officers did believe, that defendant had participated in the crime of stealing or of buying or receiving stolen property. According to the testimony of officers, law enforcement personnel of at least five counties in West Alabama were aware of the repeated, continuous and ever potential criminal conduct of defendant’s son, and to some extent of defendant. They had the two, particularly the defendant’s son, under observation and had learned during the afternoon or evening of Sunday, April 8, 1979, that the two trucks had left the homes of defendant and his son at Toomsuba, Mississippi, and were on the lookout for them in the five mentioned counties of Alabama. They were watching every crossing of the Tombigbee River between and including U.S. Highway 80 and U.S. Highway 84. The fact that they were known to be convicted felons as to a type of crime that had become recurrent, as it had become with them, was not in and of itself sufficient to justify an arrest of them while driving trucks along a country road in a farming section at midnight, when most farmers are known to be asleep, but it was a circumstance that increased the belief that they were not engaged in legitimate secular business at the time. When they became aware that the trucks were loaded with tires much too large to go on the small pickup trucks they were driving and were headed back toward Toomsuba, Mississippi, there was justification for stopping the trucks, detaining the drivers and inquiring of them as to what was taking place. There is no contention by appellant to the contrary.

Having lawfully detained them for questioning, they were told by defendant and his son that the tires had been obtained at Montgomery or from a man from Montgomery. The likely falsity of that information was obvious to the officers by reason of their knowledge of the environs of where they were at the time and of the location of Toomsuba, Mississippi, and that of Montgomery, Alabama. They could only reasonably conclude that in transporting tires from Montgomery to Toomsuba, without any ulterior purpose, the motorists would travel U.S. Highway 80. The officers were then justified in further detaining defendant for additional questions if he cared to answer them after the proper predicate had been laid, which he voluntarily did. The transcript is replete with evidence that he was given all advice and warnings as to his constitutional rights to an attorney and freedom from self-incrimination. This took considerable time, according to the evidence. The detention of defendant for an even longer time is understandable in view of the fact that his son and his wife were also there, presumably for the same purpose as he, whom he would not want to leave and who would not want to leave him.

The change of the scene of the detention from Nanafalia to the county jail in Linden was not unreasonable procedure. The place where they were was not suitable for further inquiry, upon consideration of the heavy rain then falling, no lights except from vehicles, no open house or shelter nearby, two pickup trucks that would have been left to the elements or worse, three persons in the trucks; the nearest facilities for the convenience and comfort of all concerned to have been found in Marengo County were obviously in Linden, the county seat. There was no suggestion otherwise; there is no contention to the contrary.

After all vehicles, including the two pickup trucks, had traveled to Linden and were secured, and all persons directly concerned with the further progress of the matter had arrived and become well settled and comfortable at the jail, whatever wavering there was as to what to do with defendant thereafter and until about 9:00 A.M. that morning was not because of any doubt as to his guilt of a felony but as to the identity of the victim, the establishment of which would have been a requisite to a formal charge, unless it could be averred therein that his identity could not be ascertained after reasonable effort. Their lack of knowledge as to the identity of the victim would hardly have been more of a barrier to a constitutional and legal arrest for larceny or the like than it would have been if they had seen a person unjustifiably kill another but did not know the victim’s identity.

None of the cases cited by appellant is an authority for appellant’s view that there was a lack of reasonable or probable cause for believing the defendant guilty of the charge for which he was tried and convicted. He relies upon Dunaway v. New York, 422 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and says that the Supreme Court ruled therein “that the actions of law enforcement officers in a similar situation were illegal.” Any similarity of the facts in the instant case to those in Dunaway, supra, pale in the glare of the dissimilarities. In Dunaway, a man had been killed during an attempted robbery on March 26, 1971. On August 10, 1971, an officer had told another officer that an informant had supplied a possible lead implicating Dunaway in the crime. The second officer questioned the informant but “learned nothing that supplied enough information to get a warrant for petitioner’s arrest.” Nevertheless, the officer ordered other detectives to “pick up” petitioner and “bring him in,” which they did. While Dunaway was thus in custody, the officers obtained a confession or other incriminating extrajudicial statement from him. The Court held that there had been an exploitation of the arrest in order to obtain the extrajudicial statement.

Rudolph v. State, Ala.Cr.App., 371 So.2d 962 (1979), also relied upon by appellant, is also inapt. The question decided there was as to the legality of a search of the defendant’s automobile, not as to the legality of an arrest of defendant. In the instant case, there was no need to search the trucks. The stolen property thereon was in open view.

Cases in which officers have arrested an accused about whom they have heard some evil but have seen no evil are not precedents for a case, such as this one, in which they have been convinced upon reliable information that the accused is in the process of an attempt to commit, or is committing, a felony and they actually see him in the commission of such felony accompanied by the visible fruits of the felony.

The State was allowed, over objections of defendant, to introduce in evidence a tape of an incriminating statement made by defendant on the morning of April 9, 1979, and to play the tape in the presence of a jury. It was obvious from the very beginning, as it so often is, that there were flaws in the tape or in the phonographic reproducing apparatus. Before any substantial progress could be made, the jury was excused for lunch. During that time, a smaller machine was substituted for the one previously started in the presence of the jury. Again an effort was made to play the tape in the presence of the jury, but it proved to be unsatisfactory, and the jury was again excused. During the intermission, the court suggested that the machine be connected with the public address system in the courtroom. When this was done and tested, it was obvious that the amplification of the voice of defendant or the voice of his questioner, or both, would prevent a satisfactory understanding by the jurors, while in the jury box, of what was asked by the questioner and answered by the defendant. The court then decided for the jury not to sit in the jury box but in the back of the courtroom, and upon the return of the jury to the courtroom, the following, inter alia, occurred:

“THE COURT: If y’all will have a seat in the back three rows, in the back corner of the room there, we’ll try to play this tape for you through the speaker there and see if we can do it better. Just have a seat anywhere in the last three rows. You’ll just have to stay there temporarily-
“Now, what we are going to try to do at this time is this recording has been admitted into evidence. And it’s important that you hear whatever is there. Now, I understand that even if the volume is as loud as it can conceivably be there may be some parts there that nobody can understand. But that is not for me to say. It’s up to you to make the determination of what you can understand and if you are able to understand what is there with a sufficient degree of clarity to at least understand what is there. And we have a PA system here in the courtroom .... And we’ll play it through and then after we have finished I’ll ask you about what you heard.
“(Whereupon State’s Exhibit No. 7 was played through the courtroom’s PA system).
“THE COURT: Ladies and gentlemen, would you return to the jury box, please?
“(Complied).
“THE COURT: Now, I’m going to ask you ladies and gentlemen again or first of all I want to thank you for your patience, you have been mighty patient and I do thank you for that. But what — how do you feel now? Could you hear what was said on that tape on that occasion?
“JUROR: Much better.
“THE COURT: Is there anyone that feels that you could not hear it and if so please let me know.
“(No response).
“THE COURT: All right.
“JUROR: I could hear it better too.
“THE COURT: All right. Thank you. Now, was there any one of you that could not hear at least what was there, what sounds were there; if so I need to know that.
“(No response).
“THE COURT: All right. You may proceed.
“MR. FAIL: Judge, I would like to make a motion outside the presence of the jury.
“THE COURT: Tell me what your motion is.
“(Whereupon an off-the-record discussion was held between counsel and the court).
“MR. FAIL: I withdraw that request, Your Honor.
“MR. GREEN: He’s your witness; I’m through.”

Thereupon, cross-examination by defendant of the witness on the stand was completed, the State called another witness and after he completed his testimony, the State rested. At that time, out of the presence of the jury, defendant moved the court to exclude the evidence and included in his argument on the motion, a motion to exclude as evidence that which had been played to the jury from the tape. The gist of his argument on the point is now contained in his brief in the following statement:

“Without regard to the fact that the statement of the Appellant should have been suppressed and not allowed into evidence the tape which was presented to the Court was so inaudible that same should have been rejected and not allowed.”'

In response to defendant’s argument in support of his motion to exclude the evidence of the conversation reproduced by the recorder and transmitted via the PA system, the court said:

“As far as the playing of the tape for the jury, it was done twice. The first time the jury generally acknowledged when they were questioned by the Court that they could not —It wasn’t a question so much of understanding, they just couldn’t hear what was being said on the tape and I couldn’t hear what was being said either. But of course it was closer to the jury and directed to them. Now, I think when we played the tape through the PA system that is available here in the courtroom that what was there, whatever it was was available to be heard and . could be heard by anybody not deaf. Now, whether or not it was completely understandable — to the person that tried to transcribe it it was definitely not. I made numerous notations on the paper and I didn’t catch them all I’m sure. Now, I allowed it into evidence for whatever weight and value and credibility the jury wants to give it and understanding there are some parts there that nobody on this earth could understand. But whatever is there, whatever groans and grunts and utterances are there are there for their consideration. And your motion is overruled.”

There is no claim, and we find no reasonable basis for a claim, that the reproduction by the playing of the tape of the conversation between defendant and his questioner contained any material additions to or any material omissions from the purportedly recorded conversation. It appears that none was brought to the attention of the trial court. The trial court expressed, and the jury indicated, reasonable satisfaction therewith. Similar problems, though not exactly like the one here presented, have been presented in other cases. In the absence of any showing or claim that any material part of the conversation was not audible to the jury or that some material part of the verbalisms heard by the jury was not a part of the particular conversation between the questioner .and ,the defendant, we are confident there was no error prejudicial to defendant in overruling his objection to the evidence and his motions to exclude it.

There is no merit in appellant’s contention that there was no proof of the proper venue. There was definite evidence that the tires were stolen in Wilcox County. Furthermore, “When property is stolen in one county and carried into another, venue is in either county.” Code of Alabama 1975 § 15-2-9. The offenses charged in the indictment were “ambulatory.” Milam v. State, 240 Ala. 314, 198 So. 863 (1940); Holt v. State, 49 Ala.App. 582, 274 So.2d 356, 359, cert. denied, 290 Ala. 367, 274 So.2d 360 (1972); Weeks v. State, Ala.Cr. App., 346 So.2d 1181 (1977).

Another contention made by appellant is that the court erred “in denying appellant’s motion for new trial concerning jury conduct.” In the pertinent part of the motion for new trial, the movant stated:

“8. Defendant’s right to a fair and impartial trial was prejudiced by the sitting on said jury of a person employed by the Wilcox County Sheriff’s Office and who was present with and came in contact with Defendant at the jail during the course of the trial and by the failure of said juror to properly respond to questions concerning separation when Court was in recess.
“9. Defendant’s right to a fair and impartial trial was prejudiced by members of the jury visiting the jail and having a conversation with one of Defendant’s witnesses.”

The jury was selected in this case on Wednesday, February 20, 1980. After its selection, with the consent of the prosecution, the defendant and defendant’s attorney, the jury was excused and allowed to separate, under plenary instructions by the court as to their duties and behavior during their separation and an order of the court that they were to return at 9:00 A.M. on Friday, February 22, which they did. Trial was then commenced and was concluded that day by the verdict of the jury and the judgment of conviction and sentence. On February 28, defendant’s counsel informed the court that he intended to file a motion for a new trial in which there would be allegations as to “the improper conduct of some of the jurors in the case which was in direct violation of the Court’s instructions,” and he would like to present the testimony of Preston Leon Harper at that time as he would “be taken back to Mississippi shortly.” In accordance with the request, the testimony of Preston Leon Harper was taken at that time. He said that about noon on the Friday of the trial, while he was incarcerated in the Wilcox County Jail, two men, whom he afterwards noted were on the jury trying the instant case, came to the jail and inquired of him and other inmates as to their food and other treatment in the jail. He said also that he learned that a third juror was a jailer at the Wilcox County Jail but that he had no contact with him until after the trial.

Immediately after testimony of Preston Leon Harper, the attorney for defendant testified. When questioned by the court, his testimony was in part as follows:

“Q. Had you made the determination that in fact the man serving on the jury was at that present time employed as a jailer?
“A. We had made the determination that we thought — I don’t know that he was employed at the jail; but that he had some business or some connection with the Sheriff’s Office and the jail.
“Q. And was having personal contact with your client in jail?
“A. Possibly, yes, sir.
“Q. You knew that before you tried the case on Friday, didn’t you?
“A. Well, I assumed, Your Honor, when I asked—
“Q. (Interposing) I’m not asking about your question. I’m saying you knew that when you tried the case on Friday morning didn’t you?
“A. Yes, sir.”

The motion for new trial was filed on March 13, 1980, and was set for hearing on June 5. At the commencement of the hearing, counsel for defendant informed the court that defendant “had filed a complaint or grievance against me before the Bar.” The defendant interposed:

“At the time I filed that there were some things I didn’t know. And I made a mistake. And I would like for Mr. Faile to continue the case.”

After further colloquy, defendant stated that he was satisfied with the services and advice of his attorney and had no “reservations about that whatsoever,” and the court proceeded with the hearing on the motion for a new trial. A juror in the case, Colvin C. Towns, was called as a witness by defendant and testified that he was employed as jailer and dispatcher by the Sheriff’s Department during the month of February, and he recalled defendant as an inmate. He said that defendant required medication, which he gave the defendant, and on one occasion took him “to the doctor for a shot.” He further testified:

“Q. So there’s no question then that you and he knew who each other were and what you did there during the course of the trial, is that correct?
“A. Right.
“Q. Now, did you at any time discuss the ease with this defendant?
“A. Once after the trial.
“Q. After the trial. But not any time before the trial?
“A. Not any time before the trial.”

There was also testimony by two other jurors who were on the jury that tried the defendant, presumably the two that defendant’s son said visited the jail about noon on the Friday of the trial, who said in effect that they just went over to the jail to look around, that they did not talk with anyone in the cells of the jail.

Our review of the transcript convinces us that if any of the jurors visited the jail during the trial of defendant and talked with a witness for defendant [defendant’s son], it was a mere casual conversation with no relation whatever to the issue in the case or any person involved in the case. The contention made by ground 9 of the motion for new trial is not substantiated.

It was indecorous and likely productive of injustice for a juror in a particular case to be at the same time serving as a jailer in such a way as to come in contact with a defendant on trial, but we are persuaded that no harm was thereby done to defendant in this particular instance. The particular juror should have made an affirmative response to the question asked by defendant’s counsel on assembly on Friday morning of the trial as to whether he had had any contact or conversation with defendant. The question to which there was no response was:

“I would like to ask you have any of you been around Mr. Harper or had any contact with Mr. Harper or had any conversation with Mr. Harper or any members of his family or to be in a crowd of people who were in his presence?”

The meaning of the question is rendered more obscure than it would have been if its five components had been asked as separate questions. Adding to any confusion is the fact that there was more than one “Mr. Harper.” We are not persuaded that there was anything devious about the juror’s silence at the time. Furthermore, defendant was as aware of the truth as to the facts inquired about as was the juror himself.

In emphasizing that there was a burden upon the State to show that “separated jurors were not subject to influence or contacts which might have swayed them in reaching their verdict,” appellant relies upon Pennington v. State, Ala.Cr.App., 368 So.2d 866 (1978). In that case, appellant did not consent to a separation; in the instant case he did.

In our opinion, defendant’s right to a fair trial was not “prejudiced” as alleged in ground 8 of defendant’s motion for a new trial.

In a brief portion of his brief, appellant asserts that the trial court committed error in permitting testimony as to “the search of Appellant’s truck on which the tires were located.” There was some reference in the testimony to a “search,” but, as previously shown, there was no need for any search. The tires were in open view. They were identifiable in gross by the owner thereof. The record shows that defendant voluntarily gave his consent to a search, after all of his constitutional rights had been explained to him and appropriate warnings against any relinquishment of his rights were given him. The action complained of does not constitute prejudicial error.

Our review of the record fails to reveal any 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.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Lynn BERRY v. STATE.
    3 Div. 259.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    Charles P. Hollifield, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Lynn Berry brings this appeal from the denial by the Montgomery Circuit Court of her petition for a writ of error coram nobis. It appears from a statement of facts stipulated to by present counsel for Appellant and a representative of the Montgomery County District Attorney’s office that on July 3, 1979, Appellant was convicted for the sale of marijuana in violation of the Controlled Substances Act, § 20-2-70, Code of Alabama 1975, and sentenced to seven years imprisonment in the penitentiary. She was at the time represented by retained counsel, who gave oral notice of appeal for her immediately after her sentencing.

Subsequently, on October 26,1979, Appellant’s retained counsel, apparently because of Appellant’s indigency, notified the trial court of his intent to withdraw from the ease as attorney of record, an action apparently acquiesced in by the court. It appears, however, that this attorney did, at the request of the court, file appropriate motions for the appointment of counsel for Appellant and for a free transcript on November 14, 1979. After the filing of these motions and the withdrawal of Appellant’s counsel, nothing further was done in the trial court until January 7, 1980, when the court determined after a hearing that Appellant was indeed indigent, appointed her counsel and ordered a free transcript provided to her. This court had, however, already dismissed Appellant’s original appeal on December 31, 1979, for failure to timely file a transcript, and on January 18, 1980, we dismissed her motion to reinstate the appeal. On February 28, 1980, Appellant’s appointed counsel filed the petition for writ of error coram nobis in the Montgomery Circuit court, which court denied the motion after hearing on March 24, 1980.

I

We are of the opinion that the attempt to perfect an original appeal is governed by the provisions of § 12-22-192 Code of Alabama, 1975, which reads as follows:

“In such criminal cases where the defendant has been adjudicated guilty by the trial court he may, if no motion for a new trial is filed within 10 days after the last day on which a motion for a new trial could have been filed or within 10 days after the ruling of the trial court upon a motion for a new trial, duly filed and ruled on adversely to defendant, file with the clerk or the trial judge of the court wherein such defendant was adjudicated guilty and sentenced a petition in writing, sworn to and subscribed by said defendant, stating that the defendant desires to take an appeal under the provisions of this division. Such petition must identify the style of the case, the offense for which the defendant was convicted, the plea made by the defendant, the date of the adjudication of guilt, the sentence and the punishment therefor and the name of the court imposing such punishment, together with the name of the trial judge. Such petition shall also contain the full name of the defendant, together with a statement that he desires to appeal either from the judgment of conviction or from the adverse ruling on the motion for a new trial, or both. Such petition must contain an averment that the defendant is without sufficient funds, and has no reasonable way to procure the same, to pay the court reporter all of his lawful fees for transcribing the evidence and other proceedings had at the trial of said case, or the fees of the clerk for preparing the record on appeal. In such other cases, including habeas corpus and coram nobis, which are related or collateral proceedings to a conviction of a criminal offense and which proceedings involve the life, liberty or property of a person convicted of a crime, the person convicted may, within 10 days after a judgment or order disposing of the proceedings adversely to said person, file with the clerk or the trial judge of the court making said order a similar petition describing and identifying the proceeding and stating the desire of the petitioner to appeal under the provisions of this division.”

It appears that the appellant was represented by retained counsel at trial who gave oral notice of appeal following conviction on July 3, 1979. However the trial court was not advised of Appellant’s indigency at the earliest date until October 26, 1979 and an adjudication to this effect did not take place until January 7, 1980, following a hearing. It appears therefore that the trial court was without jurisdiction to enter an order determining that the Appellant was an indigent after the time set out in the above Code section had expired.

It therefore follows that this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Cecil BRAZZLEY v. STATE.
    3 Div. 261.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    L. H. Walden, Montgomery, and W. Clarence Atkeison and Kenneth Shinbaum, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of the offense of possession of marijuana and the court sentenced him to ten years in the penitentiary.

The record at arraignment and the judgment entry affirmatively show that appellant was not represented by counsel at arraignment and that he did not waive the presence of counsel. This constitutes reversible error. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Garsed v. State, 51 Ala.App. 622, 288 So.2d 161; Knight v. State, 42 Ala.App. 672, 178 So.2d 101; Perkins v. State, 281 Ala. 139, 199 So.2d 839; Drummond v. State, Ala.Cr. App., 353 So.2d 546.

Since this case must be reversed for the error noted we do not deem it necessary to set forth the facts constituting the offense.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Clyde Edward GUY v. STATE.
    6 Div. 271.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      Jerry O. Lorant of Lorant, Harris & Yearout, Birmingham, 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.

Appellant (defendant) was indicted for murder in the first degree of Clyde Ottis Alverson III by shooting him with a shotgun. A jury found him guilty of manslaughter in the second degree.

One of the only two issues raised by appellant is that the trial court erred “in refusing to give the Defendant’s requested charges on withdrawal from a conspiracy. The charges are:

“25. If you find that the defendant withdrew from the conspiracy before the crime actually occurred, then you must find for the defendant on the charge of conspiracy.
“26. If you find that the defendant acted to defeat the purpose of the conspiracy, then you must acquit the defendant of the charge of conspiracy.
“27. If you find that the defendant acted to disavow the purpose of the conspiracy, then you must acquit the defendant on the charge of conspiracy.
“28. If you find that the defendant took affirmative steps or affirmative action to withdraw from the conspiracy, then you must acquit the defendant .of the charge of conspiracy that has been lodged against him.”

None of the charges was hypothesized upon a belief or finding “from the evidence.” This justified their refusal. Murrell v. State, Ala.Cr.App., 377 So.2d 1102, cert. denied, 377 So.2d 1108 (1979); Lewis v. State, Ala.Cr.App., 372 So.2d 882, cert. denied, 372 So.2d 885 (1979); Hudson v. State, Ala.Cr. App., 335 So.2d 208, cert. denied, 335 So.2d 211 (1976); Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956).

In addition, the charges were misleading in their reference to “the charge of conspiracy.” Although in the court’s oral charge there was reference to a conspiracy in connection with the court’s instructions as to the criminal responsibility of defendant as an aider or abettor of the person who actually fired the shotgun and thereby killed the alleged victim, there was no “charge of conspiracy” against defendant.

The other issue raised by appellant is stated in his brief as follows:

“Once the jury had resolved the issue of a malicious, intentional or voluntary killing in favor of the Defendant, was there then sufficient evidence to hold the Defendant accountable for manslaughter in the second degree?”

Counsel correctly states that the verdict of the jury constitutes in effect an acquittal of defendant of murder in the first degree, murder in the second degree and manslaughter in the first degree; he says also that the evidence was to the effect that the homicide was not unintentional, which would seem to exclude the crime of manslaughter in the second degree. He ingeniously argues therefrom that the conviction should not stand.

On March 23, 1979, at 7:30 or 8:00 P.M., the defendant, accompanied by his girl friend and his girl friend’s sister, went to the apartment of the alleged victim to purchase some marijuana. The victim refused to sell it to them. Thereafter, the defendant and his girl friend went elsewhere where they met Wayne Hurst and others. About 9:30 P.M., the defendant and Hurst, accompanied by four others, went in defendant’s automobile to the apartment complex containing the apartment where defendant had previously sought to buy marijuana from the alleged victim. The defendant and his girl friend then went to another apartment in the same complex. The victim was in that apartment at the time; defendant’s girl friend asked the victim if he would sell them some marijuana, and the victim again refused. An argument ensued between defendant and the victim, which upset defendant, who returned with his girl friend to the automobile and took his girl friend and her sister home. Defendant then went by his own home and put a spare tire and a shotgun in the trunk of his automobile.

Appellant then returned to the apartment he had last visited and was accompanied by Hurst and two others. Defendant left the automobile and told the others therein to stay there but that if they heard any trouble to get the gun out of the trunk. He left the keys to the trunk with one of the others in the automobile and went to the apartment he had last visited and where he had his argument with the victim. No one answered the door at that apartment, and defendant then went downstairs to the victim’s apartment.

In the meantime, Hurst had obtained the keys to the trunk. He took the gun from the trunk and went with one of the two others to the door of the victim’s apartment. Just after they arrived, the victim came to the door, belligerent in word and action. Hurst pointed the shotgun at the victim daring him to “whip my Defendant pleaded with Hurst to put the gun away; then he and the other man who had accompanied Hurst the last time to the apartment began to run and as they arrived at the automobile, they heard the gun go off. This proved to be fatal.

After the shooting occurred, Hurst ran and entered the automobile. The defendant, Hurst and the two others then left the scene, but shortly thereafter Hurst said that he had to go back to the apartment— that the shooting was his fault and he would take the responsibility. Upon being called as a witness for defendant in the instant case, Hurst exercised the privilege not to testify accorded him by the Fifth Amendment to the Constitution of the United States.

We think the jury could have determined from the evidence that whether or not defendant was a felonious participant in any intentional or voluntary killing by Hurst, defendant was at least grossly negligent in providing the shotgun that was used by Hurst in killing the alleged victim. Such conduct constitutes manslaughter in the second degree. Ivery v. State, 48 Ala.App. 257, 263 So.2d 712 (1972).

Although appellant is clearly correct in saying that the verdict of the jury has the effect of an acquittal of defendant of manslaughter in the first degree and murder in both degrees, he presents no authority for his contention that it necessarily follows therefrom, when coupled with absence of evidence that the homicide was unintentional, that the conviction of manslaughter in the second degree should be set aside. Whatever mistake the jury may have made in returning its verdict for a lesser offense than the evidence supports, the mistake was favorable to defendant, and he is not legally entitled to complain. Gibson v. State, 25 Ala.App. 197, 143 So.2d 207 (1932); Thompson v. State, 28 Ala.App. 257, 182 So. 410 (1938); State v. Vestal, 283 N.C. 249, 195 S.E.2d 297 (1973); Mallette v. State, Miss., 349 So.2d 546 (1977).

We find no error in the record prejudicial to defendant as to the judgment of conviction, and such judgment of the trial court should be affirmed.

According to the record before us, the verdict of the jury was as follows, “We, the Jury, find the Defendant guilty of Manslaughter in the Second Degree as charged in the indictment and fix his punishment at one year.” The transcript shows that the form of the verdict was in accordance with the court’s instructions, as to which no objection was made or exception taken. The punishment for manslaughter in the second degree, at the discretion of the jury, is imprisonment in the county jail or hard labor for the county for not more than one year. Code of Alabama 1975, § 13-1-92. In the record before us of the record of the judgment and sentence of the court, we find:

“It is the judgment of the Court and sentence of the Law that defendant, the said Clyde Edward Guy, be imprisoned in the Penitentiary of the State of Alabama for a term of one year.”

If the record before us correctly reflects the place of imprisonment as shown by the judgment of the trial court and there are practical obstacles giving rise to legal grounds for an ad hoc variance from the place of imprisonment prescribed by statute, the record of the trial court should be clarified accordingly; if the statement in the judgment as to the place of imprisonment is in the nature of a clerical error that can be corrected by an amendment nunc pro tunc, such amendment should be made and entered. Otherwise, defendant should be resentenced, this time to imprisonment in the county jail for a term of one year. The case should be remanded to the trial court with directions that it proceed in accordance with this paragraph of this opinion.

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.

JUDGMENT OF CONVICTION AFFIRMED; REMANDED WITH DIRECTIONS AS TO THE SENTENCE.

All the Judges concur.


author: BOWEN, Judge.

text:
    Chester Lee BLAND v. STATE.
    6 Div. 327.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      William J. Baxley and Joel E. Dillard of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., Montgomery, for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the offense of obtaining personal property by false pretenses in violation of Alabama Code 1975, Section 13-3-90. The property consisted of various roofing materials of a value fixed by the jury at $2,028.46. Sentence was ten years’ imprisonment — the maximum punishment allowed by law. Alabama Code 1975, Section 13-3-50. Three issues are presented on appeal.

I

Initially the defendant contends that the one-for-one jury strike procedure used in Jefferson County (Alabama Code 1940, Vol. 14 Appendix, Section 714) , when coupled with the Alabama Habitual Offender Statute, Alabama Code 1975, Section 13A-5-9, operates to deny the defendant equal protection of the law. The defendant argues that “he, tried as an habitual offender in Jefferson County, Alabama, is denied the same equal treatment under the law as habitual offenders tried in counties using a two for one strike procedure.”

“It is inherently unequal and unfair for one defendant to be subject to the risk of greater punishment due to prior convictions, when his second conviction was based on a trial by jury which was not selected with the same protection for a fair and impartial jury of peers that other habitual offenders receive or as he received in his prior trial.”

Initially we note that the record does not indicate that the defendant was classified or treated as a “habitual offender” or that he was sentenced under the habitual offender statute.

In this respect the only indication of this matter in the record appears in a statement by defense counsel in requesting additional strikes.

“(S)ince the new criminal code will go into effect that has a very different punishment concerning the number of convictions, and since these indictments are on a series of, more or less, continuing transactions, partially in Jefferson County and partially in an adjoining county, since the punishment is statewide in nature regarding the number of convictions wherever had, we would move that to restrict Mr. Bland’s strikes in Jefferson County on a one-for-one basis and not do so in the other 66 counties is unequal treatment. We make a motion to be allowed two-for-one strikes as in the other 66 counties.”

Generally, “the rule of fundamental importance is that a person who is seeking to raise the question as to the validity of a discriminating statute has no standing for that purpose unless he belongs to the class which is prejudiced by the statute.” 16 Am.Jur.2d Constitutional Law, Section 192 (1979). A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights; as a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

Moreover, even if the defendant had standing, he produced no evidence that convictions are more easily obtained in Jefferson County because of the one-for-one jury strike system than in other counties of the state following the two-for-one strike procedure.

“It is the law, of course, that a party attacking a statute has the burden of overcoming the presumption of constitutionality, of negativing every conceivable or reasonable basis which might support the classification, and of showing clearly that the statute is unjustly discriminatory or that the classification is essentially arbitrary or unreasonable.” Thorn v. Jefferson County, 375 So.2d 780 (Ala.1979).

It is the duty of a court to sustain an act unless it is convinced beyond a reasonable doubt of its unconstitutionality. Johnston v. Alabama Public Service Commission, 287 Ala. 417, 252 So.2d 75 (1971).

In our opinion the constitutionality of the statute, as originally stated in Dixon v. State, 27 Ala.App. 64, 167 So. 340 (1936), is sound and valid. The trial court’s denial of the defendant's request to be allowed additional strikes was properly denied.

II

Secondly, the defendant contends that the prosecution illegally introduced evidence of a separate and unrelated criminal offense committed by the defendant.

The defendant was indicted and tried for the offense of obtaining roofing materials by false pretenses. At trial, State’s witness Robert Greggory, an architect, testified that he had drawn a set of house plans for the defendant. This house was located at the same address where the roofing materials were found.

On direct examination, Mr. Greggory testified that he made the plans at the defendant’s request. On cross examination he stated that all he was testifying to was that he did some plans for “Chester Bland’s (defendant’s) house.” However, on cross examination, defense counsel asked:

“Q. Mr. Gregory, are you sure you didn’t deal with A1 Bland?
“A. When he came in and introduced himself he said he was Chester Bland.”

On redirect examination, the prosecutor continued this same line of questioning.

“Q. * * * * Well, Mr. Baxley is curious about whether or not it was Chester or Al. I don’t know Al. The man that came and talked to you about doing the plans for the house on Fairview Avenue, is he in the courtroom?
“A. It appears to be the one seated at the table.”

The record reflects that the witness identified the defendant.

The State then introduced, over the objections of defense counsel, a check which Mr. Greggory testified he received from the defendant. The check was signed by the defendant and was stamped “Returned Not Paid Because NSF.”

Apparently the State introduced the check to prove that the defendant had requested the particular plans. In response to defense counsel’s objections, the prosecutor replied, “He’s questioned the identity of the man that had these plans done.”

The defendant contends that this check constitutes evidence of another offense committed by the defendant; that other offense being issuing a worthless check as prohibited by Alabama Code 1975, Section 13A-9-13.

At trial, defense counsel did not object to the introduction of the check on the grounds raised on appeal. However, counsel did specifically state his grounds for objecting to the introduction of the check.

“Prejudicial. Immaterial. We’re not disputing the fact that these plans were drawn up. It has no relevance or materiality in connection — The check does not— with the transaction charged in the indictment. It is prejudicial.”

Other than the notation on the face of the check itself, no mention was made, by either side, of the fact that the check was returned for insufficient funds.

The objection here did not preserve the error argued on appeal. Long v. State, 165 Ala. 101, 51 So. 636 (1910); Manson v. State, 349 So.2d 67 (Ala.Cr.App.), cert. denied, Ex parte Manson, 349 So.2d 86 (Ala. 1977).

The fact that the defendant had an architect draw some plans for a house to be built at the same address where the roofing materials were found was a fact of probative value when considered in conjunction with the other facts and circumstances of this case. We do not think it so irrelevant as that evidence in Paul v. State, 47 Ala. App. 115, 251 So.2d 246, cert. denied, 287 Ala. 739, 251 So.2d 248 (1971), where a general objection was sufficient to preserve the error on review. Identification was an issue in the trial and the trial judge instructed the jury on this issue in his oral charge.

Only those grounds of objection presented to the trial court can serve as a basis for reversal of its action. Harris v. State, 57 Ala.App. 558, 329 So.2d 618 (1976). The trial judge will not be placed in error on grounds not assigned in the objection. Cook v. State, 384 So.2d 1158 (Ala.Cr.App.), cert. denied, Ex parte Cook, 384 So.2d 1161 (Ala.1980); Knight v. State, 381 So.2d 680 (Ala.Cr.App.1980); Cooper v. State, 380 So.2d 1003 (Ala.Cr.App.1980). Even though evidence may have been inadmissible on different grounds, the defendant is bound by the specified grounds of objection. Turley v. State, 356 S.2d 1238 (Ala.Cr.App. 1978). The trial court must be apprised of the basis for the objection with sufficient particularity to allow an informed decision to be made on the particular legal issue involved. Ward v. State, 376 So.2d 1112 (Ala.Cr.App.), cert. denied, 376 So.2d 1117 (Ala.1979).

Ill

As his final contention for reversing his conviction, the defendant argues that the trial court erred in overruling defense counsel’s objections to statements made by the District Attorney in closing argument that the burden of proof rested upon the defendant.

The relevant portions of the record are as follows:

“MR. MAHON (Deputy District Attorney): His job is to convince you, using any means short of breaking the law, that his man is not guilty. That’s his job.
“MR. BAXLEY (Defense Counsel): Your Honor, we object. That’s not our job. Their job is to convince them he is guilty. It’s not our job to convince them he is not guilty.
“THE COURT: Overruled. I’ll tell them about the burden of proof.”
* * * * * *
“MR. MAHON: Don’t you think somebody who’s been doing their job as long as this fellow over here at the end of the table has been doing it, wouldn’t think or wouldn’t try to get William King down here or some relative down here to say that was his (King’s) wife, or I’m his son, or I’m his brother, or I’m his mother, and he was in the roofing business, and he died six months ago. He didn’t do that.
“MR. BAXLEY: Your Honor, we object. The burden is not on us.
“THE COURT: Overruled.”

The statements by the prosecutor were not calculated to give to the jury the impression that the court believed the defendant guilty. Such arguments constitute error and were condemned in Adkins v. State, 38 Ala.App. 659, 93 So.2d 519, cert. denied, 265 Ala. 666, 93 So.2d 522 (1957).

In his instructions to the jury, the trial judge properly and correctly instructed the jury on the burden of proof, the presumption of innocence, and the principles of reasonable doubt.

We hold that the trial court’s refusal to sustain the defendant’s objections did not constitute reversible error where the court fairly and adequately charged the jury on the burden of proof. See Bayne v. State, 375 So.2d 1236 (Ala.Cr.App.1977), reversed, 375 So.2d 1237 (Ala.1978).

While the law of the case must be taken from the court and not from either counsel, it is improper for the prosecuting attorney to misstate the law applicable to the case. Wade v. State, 381 So.2d 1057 (Ala.Cr.App.), cert. denied, Ex parte Wade, 381 So.2d 1062 (Ala.1980); House v. State, 36 Ala.App. 550, 61 So.2d 457, cert. denied, 258 Ala. 196, 61 So.2d 458 (1953).

While the jury was never specifically instructed that they were to receive the law only from the trial court, the trial judge did state that he would instruct the jury on the burden of proof.

In overruling the prosecutor’s objection to an argument made by defense counsel the trial court stated that, “It is the duty of the Court (to instruct the jury what the law is) but Counsel can comment on it.” Later the court charged, “They (the lawyers) can interpret the law, their own interpretation of the law. What they say is not evidence.” The judge’s comments prevented the jury .from receiving the impression that he approved of the prosecutor’s statements as correct propositions of law. While the prosecutor’s remarks and the failure of the trial judge to sustain the objections of defense counsel venture very near the area of reversible error, House, in view of the judge’s comments and his instructions to the jury, we do not find reversible error in this instance. This present case is distinguishable from House because here the judge (1) stated that he would instruct the jury on the burden of proof and (2) correctly did so.

We have searched the record for error. prejudicial to the defendant and have found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . Statutes of the Alabama Code 1940, Recompiled 1958, which apply to one or more counties on the basis of population were not repealed by the 1975 Code. Alabama Code 1975, Section 1-1-10.


author: PER CURIAM.

text:
    Donald PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 53003.
    Supreme Court of Florida.
    Dec. 18, 1980.
    Rehearing Denied April 7, 1981.

      Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant, Donald Perry, was convicted of murder in the first degree. The trial judge imposed the death sentence in accordance with the jury’s advisory sentence recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. For the reasons expressed, we affirm the conviction but find we must remand for a new jury sentencing hearing.

This was a robbery-murder of a highly intoxicated victim who, at the time of the murder, was seated in a parked car conversing with a prostitute. A total of five witnesses testified in this cause, all of whom were presented by the state. The two primary witnesses who witnessed the incident were Johnny Peck and Belinda Burton.

Mr. Peck, a forty-five-year-old retired Navy man, was the owner of a two-story rooming house on the corner where the victim was parked. Peck’s testimony was as follows. Peck was on his second-floor porch watching television, and had observed the victim’s car approach the corner and park. Edith Rawls was standing on the passenger side of the car speaking to the victim when two men, later identified as Daniel Rawls and Donald Perry, approached the car. As Peck was getting up to enter his house from the porch, he heard a shot and saw Daniel Rawls and Perry running from the car. Perry had a gun in his hand and was saying, “Let’s go, let’s go.” The two men entered a white Cadillac and left the scene. Immediately after the shot went off, he heard Edith Rawls yell: “You didn’t have to do that. You didn’t have to do that.” After the men left, Peck advised Edith Rawls to call the police and gave her a dime to do so. Peck did not advise the police of what he had seen on the night of the incident, but on the next day voluntarily went to the police station and gave a statement.

The second primary witness to the incident was Belinda Burton, who testified as follows. She was a prostitute who frequented the area. On the night in question she was standing on the corner near a telephone booth and saw Daniel Rawls and Perry approach the car of the victim. The victim was in the driver’s seat and Edith Rawls was on the passenger side. Daniel Rawls approached and stood on Edith’s side of the vehicle while Perry approached the driver, pulled a gun, and said: “Give it up, this is it.” Burton stated this was street slang meaning “Give me your money.” A few seconds later Burton heard a shot, saw sparks, and immediately ran away from the scene. Burton did not tell the police about what she saw until three weeks later, while she was incarcerated at the county prison farm for larceny. She stated it was her belief that, because of her testimony, the prosecutor would speak in her behalf to the judge in her case but she was not promised anything specific for testifying.

The record indicates that Peck knew Burton as a prostitute who frequented the area, but he did not see her on the night of the murder. Peck stated she could have been there and he may not have seen her if she was behind something. The record further reflects there was a phone booth on the corner.

The examining physician testified the victim was shot with a .22- or .25-caliber weapon at a range of ten to twelve inches, with a bullet entering the upper left chest region and exiting at the lower right chest. He further stated this was consistent with the victim being shot while sitting in a car by a person standing on the driver’s side of the auto. He also testified the victim was “very drunk,” having a blood alcohol reading of .30.

The other witnesses at the trial phase were a friend of the victim who identified the body, and the investigating police officer who described the murder scene.

\ At the conclusion of the testimony of the five witnesses, the state rested. The defense chose not to call witnesses, including known eyewitnesses, or offer any evidence, and rested. The state then moved to reopen and proffered the testimony of a woman who allegedly would testify that Perry had asked her to state that he was playing basketball at the time of the murder, and the testimony of Mrs. Peck to corroborate her husband’s testimony. The defense objected, and the trial court denied the state’s request to reopen. The case proceeded to the conclusion of the trial phase, with the jury finding Perry guilty of first-degree murder.

Approximately fifteen minutes prior to the final argument, the public defender’s office received a telephone call from Jacob Johnson, Jr., who stated that Belinda Burton could not have been at the murder scene because she was with him on that evening. The defense did not bring this information to the attention of the court and no motion was made to reopen the testimony.

Upon request of the defense, Jacob Johnson was allowed to testify at the sentencing phase on the grounds that since Burton was the only witness to state the appellant pulled the trigger, the jury could reject her testimony and determine from Peck’s testimony that Perry, although a participant, was not the trigger man. Johnson stated he was Belinda Burton’s boyfriend and that they had gone to dinner and to a double feature movie on the evening of the murder. He further testified that Belinda Burton had told him that she would testify for the state in order to have her sentence reduced. Johnson, when he testified, was himself incarcerated in the county jail pending trial on fifteen federal felony offenses. He could not remember what movies they had seen on the evening in question. He further admitted having been in contact with Perry while both were incarcerated in the county jail pending trial.

During the sentencing phase of the proceedings, other alleged mitigating evidence was rejected. Counsel for the appellant sought to present the testimony of the mother of Perry concerning his age, background, and upbringing. The trial court ruled the testimony was inadmissible because it was not within the itemized statutory mitigating factors, citing our decision in Cooper v. State, 336 So.2d 1133 (Fla. 1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). Further, the trial court allowed the prosecution to present as an aggravating factor evidence of pending criminal charges.

At the conclusion of the sentencing phase, the jury recommended the imposition of the death penalty. In imposing the death sentence, the trial judge found three aggravating factors: (1) the appellant was previously convicted of a felony involving the use or threat of violence to the person; (2) the murder was committed while the defendant was engaged in the commission of a robbery, and (3) the murder was committed for pecuniary gain. The trial court found no mitigating circumstances present, stating the age of the appellant at the time of the crime, twenty years, was the only one that could be arguably present and he rejected it as a mitigating factor.

Trial Phase

The appellant asserts the following grounds as reversible error in the trial phase: (a) denial of a motion for new trial on the ground of newly discovered evidence; (b) limitation of defense cross-examination of a state witness; (c) improper comments by the prosecutor in closing argument; (d) failure to compel disclosure of police investigative reports; (e) state’s successful challenge for cause of a juror; (f) insufficient evidence to sustain the verdict; (g) improper jury instructions concerning flight and first-degree felony murder; (h) admission of improper testimony concerning fingerprint exemplars taken from the appellant; (i) insufficient inquiry concerning jury influence by outside matters.

We find no error in the carefully conducted trial phase of this trial. The evidence is clearly sufficient to sustain the verdict of first-degree murder. We reject all the asserted grounds for error, and find the only contentions warranting discussion are (a) a new trial should have been granted for newly discovered evidence, and (d) the police investigative reports should have been disclosed.

New Trial for Newly Discovered Evidence

The appellant claims he should have a new trial because the testimony of Jacob Johnson, Jr., stating Belinda Burton was not present at the scene and only testified to reduce her sentence, is adequate impeachment of Burton’s eyewitness testimony to meet the two-prong test of Florida Rule of Criminal Procedure 3.600(a)(3) as (1) “new and material evidence, that if introduced at the trial would probably have changed the verdict ...” and (2) “that the defendant could not with reasonable diligence have discovered. ... ” The trial court found that the evidence was discovered' not after the trial but rather before closing arguments on the guilt phase. The court held that under Robinson v. State, 50 Fla. 115, 39 So. 465 (1905), the appellant did not use proper diligence and could have properly moved the court to permit him to reopen and introduce such testimony at any time prior to the jury’s retiring to consider its verdict. In considering the effect of Johnson’s testimony, the trial court held:

[T]he newly discovered evidence was directed toward the impeachment of one of the State’s witnesses and did not go to the merits of the case within the meaning of the aforesaid requirements. The new witness, John Jacobson [sic], knew nothing about the facts regarding the murder. He was not at the scene of the crime. His testimony was sought to be elicited to impeach the credibility of one of the state’s witnesses....

We agree that Johnson’s testimony pertained only to the credibility of Burton. We reject an absolute rule that impeachment testimony can never satisfy that portion of rule 3.600(a)(3) which requires that new evidence “would probably have changed the verdict.” In this case, however, we find the new evidence did not satisfy the new trial standard under rule 3.600. The record reflects that Johnson’s character was itself susceptible to impeachment, the new evidence was nonsubstantive in nature, and the advisory jury rejected Johnson’s testimony in recommending the death penalty. Having held the new trial standard was not met, we need not address the issue of timeliness of the new trial request. We do, however, note that appellant had effectively blocked the state from reopening the testimony to put on additional witnesses and the presentation of Johnson’s testimony would have opened the door to allow the state to call other witnesses which this record reflects were knowledgeable about the incident.

Demand for Police Investigative Reports

The appellant sought, by discovery motion and subpoena duces tecum, the police investigative reports of this murder upon the grounds of (a) Florida Rule of Criminal Procedure 3.220; (b) the public records law, chapter 119, Florida Statutes (1977); and (c) the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial judge denied the motion, finding that appellant had failed to establish sufficient grounds either to require the court to order an in camera examination or to produce the discovery demanded. We agree.

There is no constitutional right to discovery, and the Supreme Court of the United States has said there is “no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972). We recognize that the doctrine set forth in Brady v. Maryland and Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967), requires the prosecutor to disclose material exculpatory information that the prosecutor has in his possession. However, as stated by the United States Supreme Court in United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976), “[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” The court further stated that “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” 427 U.S. at 109-10, 96 S.Ct. at 2400, 2401.

To grant the request of the appellant under the circumstances of this record would require the police to produce all their investigative reports for all defendants charged with criminal offenses. We reject this contention and find that neither the federal constitution, the Brady doctrine, Florida criminal rules pertaining to discovery, nor the Florida statutes mandate disclosure or in camera inspection of these police investigative reports. Disclosure requirements for the prosecution principally concern those matters not accessible to the defense in the course of reasonably diligent preparation. We find the appellant had the benefit of all relevant information and was able to discover much more than would be available in most other jurisdictions, including the federal courts. Compare Fla.R. Crim.P. 3.220(a) with Fed.R.Crim.P. 16(a). We have broad discovery rules, and defendants must diligently utilize them. See State v. Gillespie, 227 So.2d 550 (Fla.2d DCA 1969).

The prosecutor is obligated under our reciprocal discovery rules to provide the defendant with a broad range of information relevant to the offense. Fla.R.Crim.P. 3.220(a). Nothing in this record demonstrates that the state has not complied or has acted in any improper manner. Indeed, it appears that the state voluntarily gave the defense information pertaining to police records of prospective witnesses which was neither required by discovery rules nor otherwise available to defense counsel. We conclude there is no merit in appellant’s broad-brush demand for police investigative reports.

Sentencing Phase

During the sentencing phase, the trial judge excluded the proffered testimony of Perry’s mother on the grounds that it did not fall within the statutory mitigating factors, citing our decision in Cooper v. State, 336 So.2d 1133 (Fla.1976). The trial judge followed the law as he believed it was being interpreted at the time of trial. The United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), subsequently held that a defendant may not be precluded from offering as a mitigating factor any aspect of his character and record or any evidence concerning the circumstances of the offense which might justify a reduction of a death sentence to life imprisonment. In Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), we clarified the apparent misconstruction of Cooper v. State, expressing the view that our statute allowed any relevant mitigating evidence, and we explained that our decision in Cooper was never intended to limit consideration of mitigating circumstances to the named statutory factors. The exclusion of the mother’s testimony was error under Lockett and Songer.

As conceded by the state, we also find the trial court committed error by allowing the prosecutor to present as evidence of aggravation to both the jury and the trial court the existence of pending criminal charges against Perry, of which he had not been convicted at the time of sentencing. Clearly, the death penalty statute expressly limits what may be considered concerning a defendant’s prior criminal record to only those offenses for which “the defendant was previously convicted,” and these convictions are limited to “another capital felony or ... felony involving the use or threat of violence to the person.” § 921.141(5)(b), Fla.Stat. Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977).

Finally, the trial court found as aggravating factors both the underlying felony of robbery and the commission of murder for pecuniary gain. We have expressly found these factors are cumulative and may not be considered individually in aggravation when the only evidence that the crime was committed for pecuniary gain was the same evidence of the robbery underlying the capital crime. Gibson v. State, 351 So.2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978); Provence. The doubling up of these aggravating factors was also error. At the new sentencing hearing, the commission of the murder as a crime committed for pecuniary gain can be considered only as one aggravating circumstance.

We find that the trial judge correctly rejected proffered testimony concerning a polygraph examination. Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976); see United States v. Masri, 547 F.2d 932 (5th Cir. 1977), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977).

In conclusion, we affirm the conviction and remand for a new sentencing hearing before a new jury in accordance with the views expressed in this opinion.

It is so ordered.

SUNDBERG, C. J., ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., and VANN, Associate Justice, concur.


text:
    QUAIL HOLLOW INVESTMENTS, INC., Appellant, v. The LOMAS & NETTLETON COMPANY, Appellee.
    No. LL-348/NT1-22.
    District Court of Appeal of Florida, Fifth District.
    Aug. 21, 1979.
    Michael D. Jones, Altamonte Springs, for appellant.
    Edward A. White, Jacksonville, for appel-lee.
   PER CURIAM.

The Court has carefully considered the record and briefs filed in this cause. The appellant having failed to demonstrate reversible error, it follows that the judgment appealed from be and the same is hereby AFFIRMED.

MILLS, ROBERT P. SMITH, Jr. and SHIVERS, JJ., concur. (Associate Judges, sitting by assignment pursuant to Supreme Court Administrative order filed July 17, 1979).


author: LARRY G. SMITH, Judge. LARRY G. SMITH, Judge.

text:
    Jimmy NELSON, Appellant, v. STATE of Florida, Appellee.
    No. PP-80.
    District Court of Appeal of Florida, First District.
    May 30, 1980.
    On Rehearing March 13, 1981.

      Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Jimmy Nelson appeals a judgment and sentence adjudicating him guilty of grand theft. His appeal is based upon contentions that his trial was flawed by the trial court’s denial of his right to cross-examination of prosecuting witnesses to show their motives or interest in the outcome of the case, adverse to him; and he further argues that he was denied due process of law by the trial court’s error in permitting the State’s recross-examination of appellant concerning his conviction of specific crimes. He also contends that the trial court committed reversible error by refusing a requested jury instruction on penalties for the offenses of which he was subject to conviction. We find no error and affirm.

During Nelson’s trial for grand theft of clothing from a Montgomery Ward department store, Nelson’s attorney on cross-examination addressed the following question to the witness Ms. Antzakas, a store detective who had been instrumental in procuring Nelson’s arrest on the charge:

Mr. [sic] Antzakas, two brief questions, as an employee of Montgomery Ward’s, if you stopped someone and in fact there is shown to be no probable cause, are you or are you not and the store personally and civilly liable. .

The trial judge sustained the State’s objection to the above question. A similar question was addressed to the arresting officer, Speiser, a security officer employed by the mall where the Montgomery Ward’s store is located. Again the trial judge sustained the State’s objection.

We agree with the statement of the Florida Supreme Court in Wallace v. State, 41 Fla. 547, 26 So. 713 (1899):

For the purpose of discrediting a witness, a wide range of cross-examination is permitted, as a matter of right, in regard to his motives, interest, or animus, as connected with the cause or with the parties thereto .

Denial of the full right of cross-examination of a principal State witness has been held to be harmful error. Simmons v. Wainwright, 271 So.2d 464 (Fla. 1st DCA 1973); Kirkland v. State, 185 So.2d 5 (Fla. 2nd DCA 1966); Coxwell v. State, 361 So.2d 148 (Fla.1978). It has also been held, however, that the defendant does not have the unrestricted right to cross-examine adverse witnesses on any matter desired. Initially the cross-examination must be shown to be relevant. The determination of relevancy is within the discretion of the trial court. Skinner v. Cardwell, 564 F.2d 1381 (9th Cir. 1977), cert. den. 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978); and see Maycock v. State, 284 So.2d 411 (Fla. 3rd DCA 1973).

Upon review of the question propounded to the witnesses, in the light of the authorities cited, we conclude that the error, if any, in denial of the right to ask the question was harmless. Initially, we note there was no predicate for the question, and in the form stated, it merely sought the expression of an opinion of the witness concerning his or her (or the store’s) civil liability for possible improper arrest, or false imprisonment. There were no questions preceding this to determine the witness’ knowledge or familiarity with the law on civil liability, nor was there any indication that any action for civil damages was threatened or pending. Finally, no proffer was made to show what answer was sought to be extracted from the witness and how it might have a bearing upon the witness’ credibility. We must simply view the particular question asked of the witness in isolation, just as did the trial judge, and in so doing we cannot say that reversible error occurred. We have viewed this particular ruling in the context of the whole trial, and we conclude that prejudice to the appellant has not been demonstrated. See Coxwell v. State, supra, at page 152.

On the second issue, appellant’s claim of improper cross-examination concerning conviction of specific crimes, we note initially that on cross-examination appellant acknowledged that he had previously been convicted of a crime six times. Upon again being questioned as to the number of convictions, appellant stated: “Three misdemeanors, one felony. Not six times I don’t think.” On redirect examination by his counsel, appellant stated that he had never been tried by a jury before. He stated further that on his previous convictions he had pleaded guilty because he was guilty; that he had not pleaded guilty in this case, because he was not guilty. Upon recross-examination the State Attorney was permitted to ask appellant to name the three misdemeanors of which he had been convicted. His counsel’s timely objection was overruled. Upon answering, appellant stated that not all the prior offenses were for petty theft. Then the State Attorney asked the following question:

Q. But, you stole something from a store didn’t you, and you have done it twice before, haven’t you?

Upon objection, the court responded: “That’s going too far.” Appellant’s counsel immediately moved for a mistrial, arguing that the testimony was beyond the scope of recross-examination, and constituted improper use of Williams rule testimony. The court denied the motion.

This court in Harmon v. State (Fla. 1st DCA 1980), Case No. LL-336, Opinion filed May 9, 1980, recently pointed out the impropriety of prosecutorial overreaching by improper references to collateral crimes. However, in that case the court reversed upon other grounds, and it also appeared that the improper questions were not timely objected to. It has long been the law of this State that an attack upon the credibility of a witness by means of “other crimes” evidence is limited to the question whether the witness has been convicted of a crime. If the conviction is admitted, the inquiry may not be pursued to the point of naming the crime of which he was convicted. McArthur v. Cook, 99 So.2d 565 (Fla. 1957). We find no error in this instance, however, because appellant’s own counsel “opened the door” to further examination regarding his specific crimes by his additional questions bn redirect examination eliciting from appellant the self-serving declarations that he had “pled guilty” to the other crimes because he was guilty, but that he pleaded not guilty in the instant case, because he was not guilty. Under the circumstances, it was permissible for the State to inquire further as to the type of crimes defendant admitted being guilty of in the past. See Dodson v. State, 356 So.2d 878 (Fla. 3rd DCA 1978).

As to the third point, the trial court’s refusal to instruct on penalties for offenses, we adhere to our ruling in Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978) (cert. pending, Case No. 55,394, Florida Supreme Court).

McCORD and WENTWORTH, JJ., concur.

OPINION ON REHEARING

LARRY G. SMITH, Judge.

In our opinion filed May 30,1980 we adhered to this Court’s ruling in Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978), and found no reversible error in the trial judge’s refusal to instruct penalties for the offenses. Florida Rule of Criminal Procedure 3.390(a). Our Tascano decision has been overruled by the Supreme Court of Florida, Tascano v. State, 393 So.2d 540 (Fla.1980).

Upon review of the record we conclude the point was properly preserved for review by appellant, and we are therefore compelled to apply the law as announced by our Supreme Court.

Accordingly, the judgment of conviction is reversed, and this cause is remanded for new trial.

McCORD and WENTWORTH, JJ., concur.

      . Q. Are you responsible to them for anything that might happen? For instances from someone being injured by you while you are on duty?


author: NESBITT, Judge. NESBITT, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellants, v. DAY CAR, INC., a Foreign Corporation, et al., Appellees. Salustiano CONTRERAS et al., Appellants, v. AMERICAN HARDWARE MUTUAL INSURANCE CO. and State Farm Mutual Automobile Insurance Co., Appellees.
    Nos. 76-64, 79-425 to 79-428, 79-433 to 79-436.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    On Motion for Rehearing and Clarification March 9, 1981.

      Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for State Farm Mut. and Penny Lynn Maddox.
    Quinton, Lummus, Dunwody & Adams and Peter M. Feaman, Miami, for Day Car, Inc. and Hallett Pontiac, Inc.
    Alan Oppenheimer, Herbert F. Krensky, Jeanne Heyward, Miami, for Salustriano Contreras, et al.
    John A. Murray, Daniels & Hicks and Sam Daniels, Miami, for American Hardware Mut. Ins. Co.
    Before HUBBART and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   NESBITT, Judge.

This is a consolidated appeal from multiple final judgments entered by the trial court which determined that appellant, State Farm Mutual Insurance Company (State Farm), rather than appellee, American Hardware Mutual Insurance Company (American Hardware), afforded primary coverage on a rental vehicle being operated by appellant, Penny Lynn Maddox. We disagree with the determination of the trial court and reverse.

On June 26, 1973, appellant, Penny Lynn Maddox requested appellant, Hallett Pontiac, Inc. (Hallett), to repair her automobile. The repairs were extensive and would take a number of days to complete. Maddox could not be without transportation and so informed Hallett. Hallett, in turn, advised Maddox to rent a car through their satellite rental company, appellant, Day Car, Inc. (Day Car). Day Car refused to rent to Maddox because she was nineteen years old. Day Car advised Maddox it would rent to someone on her behalf. Maddox’ married sister, appellant, Pat Catalano, accommodated her and signed the rental agreement. All parties knew that Catalano signed as an accommodation and that Maddox would be the sole driver of the vehicle. Maddox was involved in an accident while driving the rented car. Appellants, Perez and three minors, whose surnames are Mendoza, Leon and Contreras, were injured in the accident.

Perez commenced an action against Maddox and her insurer, State Farm, as well as against Hallett and Day Car and their insurer, American Hardware. Similar actions were also filed on behalf of the minors. Maddox and State Farm filed counterclaims against American Hardware alleging that American Hardware provided primary coverage to Maddox. Ultimately, the issues of insurance coverage were severed and resolved by non-jury trial. The trial judge held that no coverage was to be provided by American Hardware under the equipment dealers’ policy or the “garage liability” bodily injury and property damage section issued to Hallett. That section included coverage for vehicles rented to customers while the customer’s vehicle was left for repair. The trial court held State Farm, rather than American Hardware, primarily responsible for coverage for the accident upon its finding that: (1) Maddox brought a motor vehicle to Hallett for repair work; (2) Pat Catalano, a married sister of Penny Lynn Maddox, rented the vehicle involved in the accident; (3) Day Car knew Maddox would be using the rental vehicle; (4) the American Hardware policy extended coverage only to rental vehicles rented to a customer of the insured “while such customer’s vehicle is temporarily left for service, repair or sale”; (5) Catalano was not such a customer nor did she have any ownership interest in the car left by Maddox; and (6) Catalano was the actual lessee of the rental vehicle but was not acting as an agent for Maddox. Appellants contend that Catalano was simply Maddox’ agent and American Hardware should therefore have afforded coverage.

We will not undertake to pierce the trial court’s evaluation of the facts, in that liability coverage may, from the undisputed foundation of facts presented, be determined as a matter of law.

The American Hardware policy contained an “escape” clause which attempted to negate coverage to the extent that “there is other valid and collectible insurance . sufficient to pay damages up to the financial responsibility limit.” The insurance policy issued by State Farm to Maddox also contained an “escape” clause in connection with non-owned vehicles or temporary substitute automobiles.

At the outset, we note that the law in Florida is clear that when multiple or overlapping insurance coverage is provided, but mutual non-covering “escape” clauses are present, as in the instant case, such clauses, being mutually repugnant, are nugatory. State Farm Mutual Automobile Insurance Company v. Universal Underwriters Insurance Company, 365 So.2d 778 (Fla. 1st DCA 1978); World Rent-A-Car, Inc. v. Stauffer, 306 So.2d 131 (Fla. 2d DCA 1974).

It is settled in this jurisdiction that an owner’s insurance policy under Section 324.151(1)(a), Florida Statutes (1973) covers the owner as well as “any other person as operator using such motor vehicle . with the express or implied permission of such owner, against loss from the liability imposed by law for damages arising out of . use of such motor vehicle.” Coverage provided to the owner also applies to the owner’s lessee as well as lessee’s bailee or permittee and cannot be varied by unilateral agreement. Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977); Roth v. Old Republic Insurance Company, 269 So.2d 3 (Fla.1972); Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla. 1959); Lehman-Eastern Auto Rental, Inc. v. Brooks, 370 So.2d 14 (Fla. 3d DCA 1979); and State Farm Mutual Insurance Company v. Universal Underwriters Insurance Company, supra.

These principles of financial responsibility, grounded upon public policy and the dangerous instrumentality doctrine, do not bear on the allocation of risks between owners and operators of motor vehicles in excess of the minimum statutory coverage or the right of indemnification which derives from the common law principle that fault attracts primary responsibility, Insurance Company of North America v. Avis Rent-A-Car System, Inc., supra.

There is merit to appellant’s argument that Hallett and Day Car put Maddox “in the driver’s seat” and their insurer cannot escape primary responsibility therefor.

Under the foregoing principles of law and the authorities cited, it is clear that American Hardware afforded primary coverage up to the minimum statutory requirements in effect at the time of the subject accident and that State Farm is responsible for any excess up to its policy limits.

Reversed.

PEARSON, TILLMAN, Associate Judge, dissents.

ON MOTIONS FOR REHEARING AND CLARIFICATION

NESBITT, Judge.

American Hardware contends that we have overlooked Bankers and Shippers Insurance Company of New York v. Phoenix Assurance Company of New York, 210 So.2d 715 (Fla.1968) which held that Section 324.151(2), Florida Statutes (1973) does not provide for liability on an insurance policy unless it was certified as proof of future financial responsibility. Appellees are correct but the contention is nonetheless immaterial to a proper disposition of the cause. American’s argument ignores that the policy in question did not contain a conformity clause in accordance with our decision in Howard v. American Service Mutual Insurance Co., 151 So.2d 682 (Fla.3d DCA 1963), cert. discharged, 162 So.2d 666 (Fla.1964), which was approved in Bankers and Shippers Insurance Company of New York v. Phoenix Assurance Company of New York, supra, at 719. The effect of the failure to include the conformity clause was to make American responsible for the first accident occurring after the policy issued. Consequently, American’s motion for rehearing is denied.

The remaining motions for rehearing are directed to the final paragraph of our opinion where, although we recognize that mutual noncovering “escape” clauses rendered such clauses repugnant and nugatory, we erroneously concluded that American Hardware’s policy provided coverage only up to minimum statutory requirements in effect at the time of the subject accident. That portion of our opinion is vacated and withdrawn and the following substituted:

Under the foregoing principles of law and the authorities cited, it is clear that American Hardware afforded primary coverage up to and including the amount of its policy limits and that State Farm is responsible for any excess up to its policy limits. The petitions for rehearing directed to this portion of our opinion are thereby granted.

In all other respects, we adhere to our original opinion.

      . The question of primary coverage for rental vehicles has subsequently' been directly addressed by Section 627.7263, Florida Statutes (Supp.1976). This cause of action is not affected by the statute in that it arose prior to July 1, 1976, the date the statute was enacted. Ch. 76-56, Laws of Fla. Section 627.7263 has been modified by section 29 of Chapter 77-468, Laws of Florida, to reflect the case law cited herein. It will remain in effect until July 1, 1982, the date of its repeal, unless further modified by the Legislature. Ch. 76-168, Laws of Fla.

      . § 324.021(7), Fla.Stat. (1973) Proof of Financial Responsibility. Minimum liability coverage at the time of the accident was to be provided in the amount of $10,000 per person and $20,000 per occurrence.