author: BEATTY, Justice. TORBERT, Chief Justice

text:
    Ex Parte Raben James HICKS. (Re Raben James Hicks v. State).
    82-440.
    Supreme Court of Alabama.
    Sept. 16, 1983.
    Arthur Parker, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., Joseph G.L. Marston, III, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

Certiorari was granted to determine if the Court of Criminal Appeals, 437 So.2d 1344, was correct in finding valid the search warrant in this case. We affirm.

The facts set out by the opinion of the Court of Criminal Appeals are as follows:

“The search warrant in question, which was issued by Judge Peter A. Hall, Judge of the Municipal Court of the City of Birmingham, was directed to ‘the Chief of Police or any police officer of the City of Birmingham, Alabama,’ commanded a daytime search for marijuana of 6305 Crest Club Circle, Birmingham, Alabama, and was returnable to the judge of the Jefferson County District Court. The search was carried out solely by Birmingham police officers, who were not accompanied by any sheriff or deputy sheriff, and who did not conduct the search at the request of, or in aid of, any sheriff or deputy sheriff. None of the police officers were constables for the county.
“Appellant filed a motion to suppress the evidence obtained as a result of the search on the basis that the search warrant was defective. The trial court denied the motion to suppress.”

Petitioner would have this Court find reversible error, arguing that the search warrant in this case is defective because it does not comply with Code 1975, §§ 15-5-5 and 15-5-7. In our view the Court of Criminal Appeals was correct in finding that statutory power authorizing municipal judges to direct the execution of search warrants to municipal law enforcement officers for the search in this case is found in Code 1975, §§ 12-14-4 and 12-14-82. These sections provide in pertinent part as follows:

“Section 12-14-4.
“The sheriffs of the counties and law enforcement officers of the municipalities of the state of Alabama shall obey the municipal judge having legal authority in faithfully executing the warrants and processes committed to them for service according to their mandates.”
“Section 12-14-32.
“Municipal judges are authorized to issue arrest and search warrants for municipal ordinance violations returnable to the municipal court and for violations of state law returnable to any state court.”

It is true that from 1852 until 1975, those statutes now codified at Title 15, Chapter 5, Code 1975, were the only statutes relating to search warrants in general. In 1975, however, the legislature approved Act No. 1205 (the Judicial Article Implementation Act), codified in Title 12, Code 1975. This Act did not repeal Title 15, Chapter 5 (see Rivers v. State, 406 So.2d 1023 (Ala.1981)) but, instead, provided new provisions for search warrants complementing Title 15, Chapter 5. Thus, where the subject matter of Title 15 is search warrants issued by state courts, the subject matter of Title 12 is search warrants issued by municipal courts.

As to petitioner’s contention that §§ 12-14-4 and 12-14-32, are repugnant to Amendment 328, Section 6.065, Alabama Constitution 1901, to the extent that they authorize courts to issue search warrants directed to city officers for violations of state law, we look to Womack v. State, 281 Ala. 499, 205 So.2d 579 (1967). In Womack this Court held that the Etowah County Court did not need jurisdiction over the felony to issue a search warrant to search Etowah County premises for evidence of a felony. All the county court needed was jurisdiction over the place. We conclude that because city courts have territorial jurisdiction over the city and police jurisdictions, §§ 12-14r-4 and 12-14-32 simply authorize the exercise of that jurisdiction in the case of search warrants.

Finally, petitioner contends that the Court of Criminal Appeals is in conflict with the opinion of Rivers v. State, supra. We find no conflict and affirm the opinion below with respect to this issue.

For the reasons stated, the judgment of the Court of Criminal Appeals is due to be, and it is hereby, affirmed.

AFFIRMED.

MADDOX, FAULKNER, JONES, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C.J., dissents.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent. The majority holds that §§ 12-14-4 and 12-14r-32, Code 1975, authorize municipal judges to issue to and to direct municipal law enforcement officers to serve and execute a search warrant for a violation of state law without the need of a sheriff, deputy sheriff, or any constable of the county to execute said warrant. These statutes, however, do not specifically authorize municipal law enforcement officers to serve and execute search warrants for state law violations.

General statutes authorizing the issuance and execution of search warrants are strictly construed. United States v. Martin, 600 F.2d 1175, 1179 (5th Cir.1979); Rivers v. State, 406 So.2d 1021, 1022 (Ala.Cr.App.) cert. denied, 406 So.2d 1023 (Ala.1981). Both the issuance and the execution of search warrants must strictly comply with the formalities prescribed by the empowering statutes, including the specifics of authorization to execute such warrants. United States v. Martin, 600 F.2d at 1179. When the empowering statutes exclude certain agents or officers from those authorized to execute search warrants, a court must look for some specific authorization. Rivers v. State, 406 So.2d at 1022. A municipal law enforcement officer will not be allowed to serve and execute search warrants in the absence of some specific authorization.

Code 1975, § 15-5-1, provides:

“A search warrant is an order in writing in the name of the state signed by a judge or by a magistrate authorized by law to issue search warrants and directed to the sheriff or to any constable of the county, commanding him to search for personal property and bring it before the court issuing the warrant.”

A judge or a magistrate must issue a search warrant signed by him and directed to the sheriff or to any constable of the county for execution if he is satisfied of either the existence of the grounds of the application or a probable ground to believe their existence. Code 1975, § 15-5-5. “A search warrant may be executed by any one of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution.” Code 1975, § 15-5-7. The general statutes concerning the issuance and execution of search warrants limit execution to the county law enforcement officers of the particular county in which the warrant is issued. These statutes, however, are supplemented by certain provisions of the Judicial Article Implementation Act, which is codified in Title 12 of the Alabama Code, 1975.

One of the express purposes of the Judicial Article Implementation Act is the establishment of municipal courts with uniform jurisdiction, procedures, and costs. Judicial Article Implementation Act, No. 1205, 1975 Ala. Acts 2384. “The provisions of this Act are cumulative and shall not be construed to repeal or supersede any laws not inconsistent herewith.” § 18-102. Under this Act, “Municipal judges are authorized to issue arrest and search warrants for municipal ordinance violations returnable to municipal courts and for violations of state law returnable to any state court.” Code 1975, § 12-14-32. The sheriffs of the counties and law enforcement officers of the municipalities of the state are directed in Code 1975, § 12-14-4, to obey the municipal judge having legal authority in faithfully executing the warrants and processes committed to them for service. These supplemental statutes, however, cannot be construed together as creating the specific authorization by the Legislature necessary to permit municipal law enforcement officers to execute search warrants issued by municipal judges for state law violations.

Alabama Constitution Amendment 328, § 6.065, provides that “.. . municipal courts shall have uniform original jurisdiction limited to cases arising under municipal ordinances as prescribed by law.” The Legislature in Code 1975, § 12-14-l(a), directed that municipal courts are established subject to the authority, conditions and limitations provided by law. Such courts were granted jurisdiction over all prosecutions for the breach of the ordinances of the municipalities within their police jurisdiction and concurrent jurisdiction with the district courts of all acts constituting violations of state law committed within the police jurisdiction of the municipalities which may be prosecuted as breaches of municipal ordinances. Code 1975, § 12-14-1(b), (c). A municipal judge is given the power coextensive with the jurisdiction of the district court to issue writs and other process. Code 1975, § 12-14-31. It is apparent from the language of Amendment 328 and the implementing legislation that the drafters intended a municipal court to have legal authority coextensive with district courts. District courts cannot direct a municipal law enforcement officer to execute a search warrant for a general state law violation, and the statutes authorizing a municipal court to issue and direct the execution of search warrants should not be broadly construed to grant a municipal judge such authority.

The Legislature has provided specific authorization for the execution of search warrants by any lawful officer of the state in the case of searches for prohibited liquors, Code 1975, § 28-4-256, and for gambling equipment, Code 1975, § 13A-12-54. Code 1975, §§ 12-14-4 and 12-14-32, if strictly construed, cannot constitute specific authorization for a municipal law enforcement officer to serve and execute search warrants for general state law violations. Thus, the search of petitioner’s residence was illegal, because the search warrant was not properly executed in accordance with Code 1975, §§ 15-5-1,15-5-5,15-5-7. The Court of Criminal Appeals erred in sustaining the trial court’s failure to suppress the fruits of the illegal search and seizure.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Horace Franklin DUNKINS, Jr. v. STATE.
    6 Div. 669.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.
    Rehearing Denied March 1, 1983.

      Murray P. Stovall, III, of Dinsmore, Waites & Stovall, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., Ed Carnes, P. David Bjurberg, Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the capital offense of “rape when the victim is intentionally killed” in violation of Alabama Code Section 13A-5-31(a)(3) (1975). A jury found him guilty of “the capital offense as charged in the indictment.” A separate sentencing hearing was held and the jury fixed the defendant’s punishment at death. The trial court then held a separate hearing as required by Alabama Code Sections 13A-5-32 and -33 (1975), adjudged the defendant guilty of the capital offense as charged in the indictment, and fixed his sentence at death. Three issues are argued on appeal.

I

The defendant contends that his Fifth Amendment rights were violated when he was subjected to police questioning after requesting counsel. He argues that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), is controlling. Edwards followed the holding of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that if the accused requests counsel, “the interrogation must cease until an attorney is present.” Miranda, 384 U.S. at 474, 86 S.Ct. at 1628.

“(W)e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchange or conversations with the police.” Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1885.

The crime was committed sometime during the night of Monday, May the 26th or the early morning of May the 27th. The defendant and Ernest Jackson were taken into custody by Deputy Sheriff James Earl Smith a little after 9:00 A.M. on the 27th and transported from Alabama Wire Company, where they were employed, to the Jefferson County Sheriff’s Office. The defendant was fully advised of his constitutional rights under Miranda v. Arizona, supra, and made a voluntary, knowing and intelligent waiver.

Sergeant Smith then asked the defendant “some questions about some of his personal history and he said he didn’t want to talk to no one, wanted to talk to a lawyer.” Smith asked, “In other words you don’t want to talk to me any more, is that correct?” The defendant replied, “No” and Smith concluded the statement at 10:00 A.M. without asking any additional questions. The record indicates that defendant answered a few of Sergeant Smith’s questions and then said, “Before I talk any more now I would like to talk to my lawyer, or either my mama or somebody, I’m run down at this place.” After the defendant said this, Sergeant Smith asked him some “personal history questions” concerning his age, height, weight, name, address and phone number.

After the request for counsel, the defendant was not questioned about the murder. The interview began at 9:49 A.M. and ended at 10:00 A.M.

After the questioning stopped, the defendant was told that he was going to be placed in a lineup and that if he could not be identified he would be taken back to work. The defendant was not identified, was released from custody and was taken back to his place of work around noon.

On the way back to Alabama Wire Company, Jackson volunteered to take a polygraph test. The defendant also agreed to do the same. The next day, May 28th, Deputy Sheriff Fred House picked up the defendant and Jackson at the Alabama Wire Company and took them to the Sheriff’s Office to take the polygraph. After the test, both the defendant and Jackson were taken back to the Wire Company. Deputy House testified that on the way back to the company, the defendant told him that “he would be willing to talk with me more if I wanted him to, and what time he would get off that evening and he would be home if I needed to talk to him more.”

Deputies Smith and House talked with the defendant’s parents around 4:00 that afternoon. During the conversation, the defendant arrived and remained present but was not questioned.

About two or three hours later that afternoon, Deputy House telephoned the defendant at home and told him he needed to talk to him. The defendant agreed to go to City Hall with Deputy House. There, the record shows, the defendant was repeatedly advised of his Miranda rights and made both an oral and a written waiver of his constitutional rights.

Roger Dale Beam, Chief of Police of Warrior, told the defendant that Frank Marie Harris had given a statement implicating the defendant, that Beam knew the defendant was involved and would prove it if it was the last thing he ever did. The Chief was in the same room with the defendant for no more than a minute and a half and made this statement as they “were passing”.

Deputy House told the defendant that he was being arrested for rape and murder. After House informed the defendant of the evidence against him, including the statement given by Harris, the defendant confessed and admitted his participation in the crime. Before the defendant told his “side of the story”, Deputy House asked him whom he wanted present during the interview and the defendant stated that he wanted House and Deputy Carl Johnson present. With these officers present, the defendant then admitted his involvement.

The substance and intent of Edwards were not violated. After the defendant requested counsel all questioning concerning the facts of the case ceased. The defendant’s constitutional rights were not violated by the fact that Deputy Smith sought biographical information from the defendant after the defendant had requested counsel. Varner v. State, 418 So.2d 961, 962 (Ala.Cr.App.1982). Miranda does not erect “an absolute per se bar on any conversation with the accused by investigating officers after the former has requested counsel. It only inhibits investigative interrogation related to the specific crime itself.” United States v. Grant, 549 F.2d 942, 946 (4th Cir.), cert. denied, 432 U.S. 908, 97 S.Ct. 2955, 53 L.Ed.2d 1081 (1977).

After the defendant was not identified in a lineup, he was released from custody and remained free for more than twenty-four hours. Sometime during that time he indicated to the police that he would be willing to talk to them. This is just the opposite of the facts in Edwards where Edwards, after having requested to see counsel, was told that “he had” to talk to the police. This case is clearly distinguishable from Edwards because of the critical facts that the defendant was released from custody after he requested counsel and that he expressed a complete willingness to talk with Deputy House. Swint v. State, 409 So.2d 992 (Ala.Cr.App.1982); Warrick v. State, 409 So.2d 984 (Ala.Cr.App.1982).

In this case we have both express and explicit oral and written waivers of Miranda. North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S.Ct. 1755, 1758-59, 60 L.Ed.2d 286 (1979) (Although a Miranda waiver must be made specifically, it need not be express but may be inferred from the circumstances).

Confrontation with a co-defendant’s confession is not necessarily an unfair tactic or unlawfully coercive. Gibson v. State, 347 So.2d 576, 582 (Ala.Cr.App.1977). That the defendant’s statement was motivated by his feeling of revenge against Harris and induced by his desire to see Harris prosecuted for the murder and rape does not render his statement involuntary. Moore v. State, 415 So.2d 1210, 1214 (Ala.Cr.App.1981); Oliver v. State, 399 So.2d 941, 945 (Ala.Cr.App.1981).

Clearly, a confession induced by a threat that the accused will be prosecuted unless he confesses will render any statement or confession involuntary and inadmissible in evidence. Hinshaw v. State, 398 So.2d 762 (Ala.Cr.App.), cert. denied, 398 So.2d 766 (Ala.1981). We do not consider Chief Beam’s statement that he would prove that the defendant “did it” as a threat in order to get the defendant to confess. We find no express or implied threat in Chief Beam’s statement that the defendant would be prosecuted unless he confessed.

Threatening the defendant with prosecution if he does not confess is not the same as confronting an accused with evidence of his guilt. From the record, it appears that the law enforcement officers were totally candid in their dealings with the defendant. The statements made and the attending circumstances were not calculated to delude the defendant as to his true position, or exert improper and undue influence over his mind. There was no fraud, trickery, or subterfuge employed. 99 A.L.R.2d 772 (1965). The record supports no inference of pretense, artifice or deception. To the contrary, the record shows that the law enforcement officers were honest and straightforward in confronting the defendant with the case they had against him.

We have thoroughly reviewed the totality of the circumstances surrounding both statements given by the defendant, including the facts that he was. nineteen years old and almost illiterate. Our assessment of these facts convinces us that both statements were completely voluntarily given after a knowing and intelligent waiver of constitutional rights.

II

We cannot accept the defendant’s contention that the corpus delicti of the capital offense charged in the indictment was not proven because the State failed to prove rape or attempted rape.

It is true, as the defendant argues, that there was no physical evidence of rape presented. Because of the quantity of blood present, tests of the victim’s body cavities did not reveal the presence of seminal fluid. However, the circumstantial evidence affords satisfactory proof of the corpus delicti. A small area on the front of the defendant’s undershorts was stained with human blood.

Michael Beckham was with the defendant and Frank Harris on the afternoon of May 26th. He heard the defendant tell Harris, “I’m going to get some pussy from a white lady” and Harris responded, “Yeah, I’m with you Horace.” At the defendant’s request, Beckham purchased the tape that was later used to bind the victim’s wrists.

The victim was found tied to a tree with sixty-six stab wounds “over multiple body surfaces, including the chest, the abdomen, the upper legs, both back and front, and also in the personal region.” The victim was naked except for a nightgown or negligee which was wrapped over her head.

In addition to a stab wound which penetrated the vaginal vault, there were lacerations of the vagina. Jay Glass, Chief Medical Investigator of the Office of the Coroner — Medical Examiner of Jefferson County, testified that lacerations mean “a tearing injury, tearing of tissue.” There were also lacerations of the rectum.

What this Court said in Watters v. State, 369 So.2d 1262 (Ala.Cr.App.1978), reversed on other grounds, 369 So.2d 1272 (Ala.1979), another capital case, applies here. There the appellant argued that the only evidence of any attempted robbery in a prosecution for attempted robbery when the victim is intentionally killed was supplied by the confession, and that there was no independent, probative evidence to corroborate the confession. We held:

“It is a settled principle of law that a mere extrajudicial confession, uncorroborated by other facts, is insufficient to show the corpus delicti and cannot support a conviction. Matthews v. State, 55 Ala. 187, 28 Am.Rep. 698 (1876); Reynolds v. State, Ala.Cr.App., 346 So.2d 979, cert. denied, Ala., 346 So.2d 986 (1977). However, it is equally as settled that inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti. Hill v. State, 207 Ala. 444, 93 So. 460 (1922); Bryant v. State, 33 Ala.App. 346, 33 So.2d 402 (1948).
“Circumstantial evidence may afford satisfactory proof of the corpus delicti. The presentation of facts, from which the jury may reasonably infer that the crime charged was committed, requires the submission of such question to the jury. Johnson v. State, 247 Ala. 271, 24 So.2d 17 (1946); Taylor v. State, 276 Ala. 232, 160 So.2d 641 (1964). Reasonable inferences may furnish a basis for proof beyond a reasonable doubt. Royals v. State, 36 Ala.App. 11, 56 So.2d 363, cert. denied, 256 Ala. 390, 56 So.2d 368 (1952). “The facts in this case and the legal inferences springing from them fully support and corroborate the appellant’s confession. The evidence is therefore sufficient to support a conviction.” Watters, 369 So.2d at 1271-72.

Under those principles set forth in Dolvin v. State, 391 So.2d 133 (Ala.1979), and Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), there was evidence from which the jury might reasonably conclude that the evidence and all reasonable inferences therefrom excluded every reasonable hypothesis other than guilt and proof of the corpus delicti of rape.

The corpus delicti of a crime need not be shown by evidence “wholly independent of the relation of the accused to the offense charged. The evidence that defendant committed the crime may be so inextricably blended with proof of the corpus delicti as to make a separation impossible.” DeSilvey v. State, 245 Ala. 163, 165, 16 So.2d 183 (1944).

Any error in the failure to prove the corpus delicti prior to the introduction of a confession is cured by subsequent proof of the corpus delicti. Phillips v. State, 248 Ala. 510, 517, 28 So.2d 542 (1946); Cooley v. State, 233 Ala. 407, 409, 171 So. 725 (1937).

Ill

Prospective juror Mencer was properly excluded for cause because she made it unmistakably clear that she would automatically vote against the death penalty regardless of the evidence. Ms. Mencer was questioned by the State, the defendant and the trial court. She repeatedly and consistently made it clear that she would automatically vote against the death penalty in favor of life imprisonment without parole regardless of the evidence because “to die would be the easy way out.”

“I feel that anybody who commits a crime should be punished even if it’s my son, and I only have the one. However, I do not feel that death is the answer. I feel that if I take a life, an eye for an eye is not the answer. I feel that I need to know the feeling. I need to feel it. And the only way I can feel it is to live, eventually live, with my conscience, live with the thought that I have committed this act or this crime. So that I feel to suffer behind bars is a much greater punishment than death. I look at death as being the same as being asleep. And when I’m asleep, I don’t know anything about what I’ve done. I mean I’m at peace — let me say it that way — I’m at peace. But if I have to face day in and day out behind bars and I know that I’m not going to be paroled, or the other person, I feel that’s worse than dying.”
“Under no circumstances would I want them to get out that lightly (with life without parole). And that’s what I’m saying. I feel that if they have committed a crime, then they should not die, because that is too easy.”

Under questioning by the trial judge, Ms. Mencer indicated unequivocally and positively that even if convinced beyond a reasonable doubt and to a moral certainty of the defendant’s guilt she could not fix punishment at death and she could not conceive in her own mind of any circumstance, even if convinced of the defendant’s guilt, where she would fix punishment at death if that were one of the available or alternative punishments.

Witherspoon v. Illinois, 391 U.S. 510, 522-23, 88 S.Ct. 1770, 1777-78, 20 L.Ed.2d 776 (1968), made it clear that a prospective juror may properly be excluded for cause where he “would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case.” (Emphasis in original). See also Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Annot., 39 A.L.R.3d 550 (1971). Witherspoon does not compel any inquiry into the subjective reasons why a prospective juror is irrevocably committed to vote against the death penalty. Such an inquiry is, in fact, irrelevant to the very purpose of Witherspoon, which is to produce a fair and impartial jury.

“The right under the Sixth and Fourteenth Amendments to trial by a jury guarantees .to the criminally accused ‘a fair trial by a panel of impartial, “indifferent” jurors.’ Irvin v. Dowd, supra, 366 U.S. at 722, 81 S.Ct. at 1642. Accord, e.g., Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). But the state also enjoys the right to an impartial jury, Williams v. Wainwright, supra, 427 F.2d at 923, and impartiality requires not only freedom from jury bias against the accused and for the prosecution, but freedom from jury bias for the accused and against the prosecution. Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887). See Comment, 21 Vand.L.Rev. 864, 865 (1968).”
Spinkellink v. Wainwright, 578 F.2d 582, 596 (5th Cir.1978).

“Coexisting with the petitioner’s right to an impartial jury, after all, is the State’s right to have a jury that is willing to consider all the penalties prescribed by law.” Williams v. Maggio, 679 F.2d 381, 385 (5th Cir.1982).

“All veniremen are potentially biased. The process of voir dire is designed to cull from the venire persons who demonstrate that they cannot be fair to either side of the case. Clearly, the extremes must be eliminated — i.e., those who, in spite of the evidence, would automatically vote to convict or impose the death penalty or automatically vote to acquit or impose a life sentence. The guarantee of impartiality cannot mean that the state has a right to present its case to the jury most likely to return a verdict of guilt, nor can it mean that the accused has a right to present his case to the jury most likely to acquit. But the converse is also true. The guarantee cannot mean that the state must present its case to the jury least likely to convict or impose the death penalty, nor that the defense must present its case to the jury least likely to find him innocent or vote for life imprisonment.”
Smith v. Balkcom, 660 F.2d 573, 578-79 (5th Cir.1981) (emphasis in original), modified on unrelated point, 671 F.2d 858 (5th Cir.1982).

Here, Ms. Mencer indicated that she was unwilling to consider all of the penalties provided by state law, and that she was irrevocably committed, before the trial began, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings and even if convinced of the defendant’s guilt of the crime charged beyond any reasonable doubt and to a moral certainty. Therefore, she was properly excused for cause. This is exactly what With-erspoon requires. 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21.

IV

As required, Beck v. State, 396 So.2d 645, 664 (Ala.1981), this Court has examined this particular death sentence in light of the standards and procedure approved in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The defendant was indicted and convicted for a crime that is, in fact, properly punishable by death. We take judicial knowledge that similar crimes throughout the state are being punished capitally. The defendant’s accomplice, Frank Marie Harris, pled guilty and received life imprisonment.

The trial judge specifically found, and we agree, that the death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. The evidence overwhelmingly supports the finding of the statutory aggravating circumstance that the capital offense was especially heinous, atrocious, or cruel. Kyzer v. State, 399 So.2d 330, 333-34 (Ala.1981); Alabama Code Section 13A-5-35(8) (1975). The trial judge specifically found (and all the evidence supports that finding) that the victim “was alive at the time she was stabbed sixty-six times.” The aggravating circumstances (Sections 13A-5-35(4) and (8)) far outweigh the mitigating circumstances (the defendant’s age (19)) and the fact that he had no significant history of prior criminal activity.

Because the aggravating circumstances remarkably and exceedingly outweigh the mitigating circumstances, this Court concurs in and affirms the findings of the jury and the trial court that death is the appropriate sentence. Indeed, applying the laws of this state and nation to the particular facts of this case, we do not see how any other penalty is justified. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . The defendant had been previously charged with rape in an unrelated case, but was acquitted. The trial judge, properly, did not consider that charge to negate the Section 13A-5-31 • (a)(1) mitigating circumstance. See Cook v. State, 369 So.2d 1251, 1257 (Ala.1979).


author: FAULKNER, Justice.

text:
    Ex parte Horace Franklin DUNKINS, Jr. (Re: Horace Franklin Dunkins, Jr. v. State of Alabama).
    82-540.
    Supreme Court of Alabama.
    Sept. 16, 1983.

      Murray P. Stovall, III, of Dinsmore, Waites & Stovall, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., Ed Carnes, P. David Bjurberg, Asst. Attys. Gen., for respondent.
   FAULKNER, Justice.

Horace Franklin Dunkins, Jr. was sentenced to die for “rape when the victim is intentionally killed.” Code of Alabama, § 13A-5-31(a)(3). On appeal the defendant raised three issues which he claimed entitled him to a new trial. The Court of Criminal Appeals thoroughly examined the defendant’s arguments, found them to be without merit, and after independently determining that the death sentence was appropriate, affirmed his conviction and sentence.

In his petition to this court seeking a review of the decision of the Court of Criminal Appeals, Dunkins raised the same issues he had previously presented to the court below. They are:

(1) Whether the trial court erred in denying the defendant’s motion to suppress his confession because it was obtained in violation of his fifth and fourteenth amendment rights.
(2) Whether the trial court erred in admitting the defendant’s confession before the corpus delicti had been proven by the state.
(3) Whether the trial court erred in allowing a challenge for cause of a prospective juror.

In its opinion, Dunkins v. State, 437 So.2d 1349 (Ala.Cr.App.1983), the Court of Criminal Appeals addressed each issue in detail, including the aggravating and mitigating circumstances, and we are of the opinion that it decided the issues correctly.

We do, however, wish to expand on that opinion regarding the petitioner’s claim that his confession was obtained in violation of the fifth and fourteenth amendments. There are crucial factual distinctions between this case and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which the defendant cited as controlling. In both cases the defendants indicated during their initial questioning a desire to have an attorney present, whereupon questioning relating to the offense ceased. In Edwards the defendant remained in custody. The next morning when the guard came to his cell to take him to be questioned again he told the guard “that he did not want to talk to anyone.” The guard replied that “he had” to talk and took him to meet with detectives. During the meeting the defendant gave the confession in question. In this case Dunkins was released after the initial questioning. While he was being returned to his place of employment he volunteered to take a polygraph test. After taking the test, he told the police that “he would be willing to talk” and told them when he would be home that evening. Deputy House telephoned Dunkins that afternoon and Dunkins agreed to go to city hall and talk with House. After being informed that his co-defendant had implicated him, he indicated a desire to tell “his side of the story.” Dunkins was not only read his Miranda rights, but was asked by House who he wanted present during the interview, to which Dunkins replied that he wanted Deputies House and Johnson present.

Edwards prohibits the police from further interrogation with respect to the offense after the accused requests that an attorney be present, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards, supra at 484-485, 101 S.Ct. at 1884-1885. Unlike Edwards, who, while still in custody, was told “he had” to talk to the police, Dunkins, after being released, volunteered to take a polygraph test and to make himself available for questioning. In light of the evidence that Dunkins volunteered to be questioned, made an oral and written waiver of his constitutional rights, and specified who he wanted present when he made the statement, we cannot agree that his motion to suppress the confession should have been granted.

Without reiterating those facts leading us to the conclusion that the offense was particularly nefarious, we also agree with the finding of the courts below that the evidence overwhelmingly supported the conclusion that the crime was “especially heinous, atrocious, or cruel,” Code of Alabama, § 13A-5-35(8) (1975), and that the aggravating circumstances outweighed any mitigating factors.

Having considered the petition, the briefs, and the opinion of the Court of Criminal Appeals, we are of the opinion that the judgment of the Court of Criminal Appeals, which upheld Dunkins’s conviction and death sentence, is due to be, and it hereby is, affirmed.

AFFIRMED.

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


author: HARRIS, Judge.

text:
    Edward Jett FAVORS v. STATE.
    7 Div. 932.
    Court of Criminal Appeals of Alabama.
    March 1, 1983.
    Rehearing Denied March 29, 1983.

      Ralph L. Brooks of Brooks & Brooks, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellant was convicted in Calhoun County of the murder of Mary Louise Williams. Notice was given by the District Attorney that the Habitual Offender Act would be invoked, and, after a pre-sentenc-ing hearing, the trial court sentenced appellant to life imprisonment without parole.

At the close of the state’s evidence, appellant moved for the exclusion of the state’s evidence for lack of prima facie proof of murder. Appellant also argues the insufficiency of the evidence on appeal. Thus, a detailed recital of the facts is necessary.

The state’s first witness was Mary Ann Farrell, the victim’s sister. Ms. Farrell last saw the victim around noon on Wednesday, September 30,1981, at their mother’s house in Hobson City. According to Ms. Farrell, appellant was living with another of the victim’s sisters, Betty Joyce Wright.

After sitting on the porch for a while, the victim, appellant, and a Carl Cooley got into appellant’s ear and headed towards West Anniston. The victim had expressed a desire to rent a motel room for a while, because she had fought with the man she was living with and had decided to move. They left around 12:30.

Carl Wesley Cooley was called to the stand. Mr. Cooley testified that he asked appellant to give him a ride to his girl friend’s house on the way to the motel. The three of them left the victim’s mother’s house around noon. The witness rode in front with the appellant while the victim rode in back. Before reaching the witness’s girl friend’s house, the three of them stopped very briefly at a gas station where the witness bought himself a grape cola and the appellant a Miller beer. The witness was let off at his girl friend’s house around 12:45 p.m. He stated that in his opinion the trip took about 45 minutes.

According to Mr. Cooley, appellant and the victim discussed the victim’s relationship with the man she was living with, Willie Towns, while they were in the car. Appellant told the victim that Towns would kill her before the weekend.

Diane Houston, the Hobson City Clerk, testified that she received a phone call while at work around 2:30 or 3:00 the afternoon of October 2,1981, two days after the victim had disappeared. The caller, a male who identified himself as “Robert Miller,” told her that he was hunting in the woods near a local rock quarry and had run across a black female’s body. The caller gave directions to the location of the body and agreed to meet the police there.

After the call, the witness contacted the Calhoun Sheriff’s Department and the Hob-son City Police Department. The officials subsequently found the body where “Robert Miller” had told the witness he had found it.

On October 8, while monitoring outgoing calls on the City phone, the witness recognized the voice over the phone as that of the man calling himself “Robert Miller.” When Mrs. Houston looked up to see who was using that line, she saw the appellant using the phone. According to the witness, appellant was the man who called on October 2 giving directions to the body. She immediately informed the Hobson City Police Department.

The witness had used two different phones on the two occasions that she heard appellant’s voice. On cross-examination, the witness testified that she had listened to the second conversation about thirty seconds.

Ed Traylor, an investigator for the ABI, was one of the first officials who arrived at the scene of the body. He helped photograph the area, make measurements, and collect evidence. He also obtained a statement from appellant that night. Appellant was not then a suspect.

In this first statement, appellant told Officer Traylor that, on the morning of September 30, he had driven the victim’s mother, Mrs. Ruby Fluker, to the welfare office. While there, the victim called from the food stamp office and asked appellant to pick her up there because she had argued with Willie Towns, her boyfriend, and he had beaten her. Appellant drove to the food stamp office and picked up the victim. According to appellant, the victim’s eye was swollen. He took her to the Anniston City Police Department, where she was told to get the key to Towns’ residence and the police would then escort her.

Appellant drove the victim to Towns’ residence where they met Towns as he walked up from the street. Towns allegedly told the victim that, if she returned, he would kill her. The victim got her clothes, including a leather coat.

After a short visit at Mrs. Fluker’s house, the victim asked appellant to take her to the Jackson Motel where she could rent a room. He gave her a ride to the Jackson Motel and let her off at the corner of 12th Street. He gave the victim 60 or 70 cents, and the victim asked him to take her clothes to her mother’s house except for her leather coat which he was instructed to give to his girl friend for safekeeping. When he left the victim, she was wearing blue pants, tennis shoes, and a blouse with flowers on it.

Appellant also told Officer Traylor that Towns had a violent temperament towards the victim.

He finished his statement by stating that a few hours after the victim’s body was found, he and some of the victim’s relatives rode past Towns’ residence, where they found a piece of the blood-stained blouse the victim was wearing the day she disappeared hanging on Towns’ fence. They turned the blouse over to the Hobson City Police.

Calhoun Deputy Sheriff Bobby Clark was at the scene of the body. He identified a number of photographs of the area. He did not notice any blood on the ground around the body. He did notice bent shrubs and small trees in the general vicinity.

Deputy Sheriff Larry Amerson was also at the scene. He identified a number of photographs of the victim’s body and the general area. The body was badly cut. Both wrists were slashed and the victim’s abdomen had been cut open. He pointed out small trees and shrubs that had been pushed over near the body.

Deputy Amerson also helped collect physical evidence at the scene, including a red bandana and two pairs of cotton panties found near the victim’s head, the remains of the victim’s blouse which had been cut, one tennis shoe that the victim was wearing and some buttons. He also collected other evidence near the body: a beer bottle, paper towels, a plastic paper towel wrapper, and a mattress pad. He also collected soil samples from underneath the victim’s head and from the dirt roadway. This physical evidence was sent to the Birmingham labs.

According to the witness, it was about three or four miles from the highway to the dirt road leading to the crime site, and it took from three to five minutes to drive on the dirt road to the actual scene.

Deputy Amerson also testified that he collected blood and saliva samples from both appellant and Willie Towns. He found the mate to the victim’s tennis shoe at the Towns residence on October 10 and the victim’s pants in a storage area in Towns’ yard on October 3. He also received a piece of the victim’s blouse from Hobson City Policeman Cleotus Jones.

Finally, the witness collected a number of items belonging to appellant including carpet sweepings and samples, rags, a white blanket from appellant’s car, a pair of pants, three shirts, the tennis shoes appellant was wearing the day the victim disappeared, appellant’s pocket knife, and hair samples.

The witness also cut a section of tile from Towns’ kitchen floor which had a bloodstain on it, and received a knife belonging to Towns.

Deputy Amerson did not notice any blood in the soil around the body, and he would expect to if the wounds had been made while the victim was still alive.

According to the witness, the investigation had narrowed the time of death to between 2:30 and 3:30 on the afternoon of September 30.

Dr. Joseph Embry, a forensic pathologist for the State of Alabama, performed the autopsy on the victim. He removed the remains of the victim’s clothes which in his opinion had been cut.

According to Dr. Embry, there were three sets of deep knife type wounds in the abdomen. Both of the victim’s wrists had been slashed. The wounds went through the tendons to the bone.

Dr. Embry believed that the wrist wounds were made after the victim had died because of the lack of bleeding. Conversely, he believed that the abdomen wounds were made before the victim was dead but while she was dying because of the amount of blood in her abdominal cavity. The victim had a high percentage of alcohol in her blood.

Dr. Embry stated that there was no single specific factor he could positively label as the cause of death. Because of the lack of any definite cause of death, along with the proximity of a mattress cover to the victim’s head, he believed that the cause of death was asphyxia due to smothering, in association with sharp force or cuts to the abdomen. In his opinion, the victim did not die from alcohol abuse, but was the victim of a homicide.

Charles Windfrey, an investigator for the District Attorney’s Office, took a second statement from appellant at appellant’s home in the morning hours of October 3, the day after appellant gave his first statement and the day after the victim’s body was found.

The second statement corresponded with the first statement, except appellant added that he, the victim, and the victim’s mother briefly stopped by a neighbor’s house on September 30, before stopping at the victim’s house. He also added that after he left the victim in front of the Jackson Motel on September 30, he saw the victim stop and get into a yellow pickup truck. Two black males were in the truck. This occurred around 2:45 p.m.

After appellant gave the statement, he told Investigator Windfrey that he had a phone number of someone who might be able to give them the information as to who was in the truck. Appellant first searched his car for the number and then searched the yard to no avail.

Deputy Amerson was recalled to the stand. Deputy Amerson took another statement from appellant at 6:10 p.m. on October 3. This third statement corresponded with the early morning statement made to Investigator Windfrey.

Deputy Amerson again took appellant’s statement at 4:45 p.m. on October 8. By this time, appellant was a suspect because of the City Clerk’s identification as the caller giving the location of the victim’s body.

After he was given his Miranda warnings, appellant basically gave the same story as he had given twice on October 3. He added that, after he saw the victim get into the yellow truck, he drove back to Mrs. Fluker’s house, arriving around 2:00 p.m. He left there with his girl friend, Betty Joyce Wright, at 2:40 p.m. and went straight home where he remained the rest of the night.

In the early morning hours of October 10, appellant gave a final statement in which he changed his story considerably from the time he let Carl Cooley off at his girl friend’s house. Appellant told Deputy Am-erson that instead of leaving the victim at the Jackson Motel on September 30, and seeing her for the last time there, he and the victim went to a liquor store and the victim bought a bottle of whiskey. While driving around town, the two of them drank the whiskey after the victim asked not to be taken home.

According to appellant, after drinking the whiskey, the victim coughed and she seemingly fell asleep. Appellant then drove up a dirt road and felt the victim’s wrist for a pulse. After determining that she had no pulse, he took the body out of the car and shook it. He discovered that she had died, so he left the body on the side of the road near the rock quarry.

Appellant told Deputy Amerson that she was not cut nor unclothed when he left, but he was sure she was dead. He then admitted taking off her tennis shoes and her pants and throwing them in Willie Towns’ yard. He also hung the portion of the blouse on Towns’ fence. He did all of this to frame Towns with the murder of the victim.

Appellant then stated that he returned to the site the next day to discover the body unclothed and mutilated. The next morning, October 2, he drove to Anniston and called the Hobson City and Oxford authorities, telling them he was hunting near the rock quarry and found a body. He agreed to meet them near the body.

The witness then identified a number of exhibits which were introduced. He identified the remains of the clothing found on the victim, and he identified objects found near the body and he identified the portion of the blouse found hanging on Towns’ fence that the appellant and the victim’s relatives had given to Officer Cleotus Jones as well as the victim’s pants found in Towns’ back yard. He also identified the mate to the tennis shoe that the victim was wearing which he found in Towns’ back yard after appellant had told him that he had thrown the shoe there. He further identified a pair of appellant’s tennis shoes. Finally, he identified a paper towel from some 30 to 40 feet from the body in a roadway where cars had apparently pulled in and parked. The towels were nearer a trash pile than the body.

The witness further testified that there was a trail leading from the body to the roadway where it appeared vehicles had parked.

On cross-examination, the witness testified that he did not believe any fingerprints were detected on a beer bottle found leaning against the body.

John Case, a criminalist for the State of Alabama, was called to the stand. He was given the remains of the blouse found on the victim’s body and the pieces of the blouse found in Towns’ back yard. In his opinion, the two pieces appeared to match. He also testified that the tennis shoe found on the victim’s body appeared to be the mate of the tennis shoe found in Towns’ back yard.

During cross-examination, the witness testified that the mattress cover found near the body contained what appeared to be animal hairs, Negroid hairs, and Caucasian hairs. There were also red stains on the mattress covering. He also stated that he could not detect latent fingerprints on a candy wrapper and paper towel found near the body, nor did he detect the presence of any blood in a soil sample taken from beneath the victim’s head.

The witness further testified that he compared “sweepings” from appellant’s car with fibers on the mattress cover, and none matched. Neither did he find any of the fibers from appellant’s car on any other of the physical evidence found near the body, including the victim’s clothes.

The witness also received hair samples from the victim, appellant and Willie Towns. He could not make any hair comparisons with the mattress cover because of the fragmentary nature of the hair. As to the matching of the hair samples with hair found on the other physical evidence, because of the great similarity between the samples submitted and Negroid hair in general, it was often difficult to make a comparison. Thus, he could not make any conclusive match between hair samples submitted and Negroid hair found on the evidence. However, he did testify that a pubic hair found on a paper towel found near the body, which also had seminal fluid on it, was not similar to any of the three submitted hair samples.

Finally, the witness testified that he found no evidence of any bloodstains on the other items submitted to him, including appellant’s shirt, a number of rags and a blanket from appellant’s car, and appellant’s pocket knife. He could not detect any latent fingerprints on the physical evidence found near the victim’s body.

Jimmy Fluker, the victim’s brother, was at his mother’s house on Friday, October 2, when appellant and Betty Joyce Wright came by. They had just learned that the victim’s body had been found. After about 10 to 20 minutes, he, his sisters, and appellant drove to the house of another sister, Shirley Dixon, arriving at about 4:00 p.m.

Around 4:30 p.m., Fluker rode with appellant and the victim’s relatives to Towns’ residence. Appellant was driving his car. While driving down an alley next to Towns’ back yard, the witness saw a rag hanging on Towns’ fence. When the witness got the rag off the fence, appellant identified the rag as a piece of the blouse the victim was wearing the day she disappeared. They then turned the blouse over to Officer Cleo-tus Jones.

Mary Ann Farrell, the victim’s sister, lived behind her mother’s house. Around dark on September 30, the day the victim disappeared, appellant came to her house to leave the clothes the victim had gotten from the Towns’ residence when the victim moved out. The witness told appellant to leave the clothes at her mother’s house. The witness was also in appellant’s car when her brother spotted the remains of the victim’s blouse on Towns’ fence.

According to the witness, the appellant and Betty Joyce Wright came to her mother’s house, which was adjacent to her mother’s residence, about thirty minutes before they all went to Shirley Dixon’s house on Friday, October 2. As far as she could determine, no one used her phone while at her house, and neither her mother nor Shirley Dixon had a phone.

During cross-examination, the witness stated that the victim and Towns had fought before. She also testified that there was nothing unusual about appellant’s clothes when she saw him deliver the victim’s clothes.

Officer Cleotus Jones testified that the victim’s relatives had given him the remains of the victim’s blouse that they had found at Towns’ residence. Officer Jones gave the blouse to Deputy Amerson.

Clarence Royal, Jr., also saw appellant the day the victim disappeared. According to the witness, appellant stopped at the witness’s residence around 1:30 to 2:00 p.m. and asked to borrow a rag to remove stuff from the carpet in his car. Appellant wet-ted a towel and wiped off the front seat, front door, and the back seat on the passenger’s side. Appellant also wiped his tennis shoes. The witness identified two tennis shoes as the shoes appellant had on that day.

Appellant told the witness that he had taken the victim to find an apartment on 12th Street. Appellant also said that he had come from “off the hill,” which was in the direction of the rock quarry.

On cross-examination, the witness testified that he did not see any blood in the car when he got a cigarette from the dash of the appellant’s car.

The state’s next witness was Kevin Nop-pinger, a serologist for the state. Mr. Nop-pinger received blood samples from the victim, appellant, and Willie Towns.

The witness testified that about 80 percent of the populace secreted their blood type into their bodily fluids, hence they are labeled “secretors.” The other 20 percent do not, and are labeled “non-secretors.” He tested Willie Towns and appellant and determined that Towns was a “secretor” while appellant was a “non-secretor.” The witness tested seminal fluid found on the green paper towels which were near the body and determined that the semen came from a “non-secretor.” He also detected the presence of seminal fluid in a vaginal slide taken from the victim’s body.

After typing the blood samples of appellant, Towns, and the victim, he determined that the appellant and the victim had identical blood types, while Towns’ was of a different blood type.

Mr. Noppinger then made a blood analysis on various items to see if there was a match. The witness first typed blood found on the two pieces of the victim’s blouse. The blood type matched the blood of appellant and the victim, but not of Towns.

After analyzing blood found on the victim’s pants, he determined that the blood was human blood but he could not type the blood.

The witness also typed blood found under the victim’s fingernails which matched appellant’s and the victim’s blood but was inconsistent with Towns’ blood type.

An analysis of the appellant’s tennis shoes he was wearing the day the victim disappeared showed that there was blood on one of the shoes, but the witness could not determine whether the blood was human or animal.

Finally, Mr. Noppinger analyzed stains found on Towns’ kitchen floor as blood stains which matched appellant’s and the victim’s blood type but were inconsistent with Towns’ blood type.

During cross-examination, the witness testified that he had typed blood found on Towns’ clothes and that the blood was consistent with Towns’ own blood type. He found no blood on appellant’s clothes, knife and towels which were submitted to him. He did find blood on a towel found in Towns’ kitchen but was unable to type the blood. Also, in the witness’s opinion, the victim had had intercourse within approximately 48 hours of when the body was found.

On redirect examination, the witness stated that generally a normal wash will wash any bloodstains from clothes.

Officer Richard Townsley of the Anniston Police Department testified that he found the victim’s pants on a box underneath a shed in Towns’ back yard. He álso cut the piece of tile from Towns’ kitchen floor. According to the witness, the tile was covered with dirt and the stain appeared to be old. He also identified the towel he got from Towns’ kitchen.

Mrs. Ruby Fluker, the victim’s mother, testified that she and appellant picked up the victim in front of the food stamp office the day the victim disappeared. She last saw the victim with appellant. The appellant returned around dark that night with the victim’s clothes, stating that the victim instructed him to give them to her.

The day the victim disappeared, she heard Towns threaten to kill the victim if she returned to his house.

After the state rested, appellant called Shirley Ann Dixon, the victim’s sister, to the stand. Mrs. Dixon had seen appellant at her house on the afternoons of September 30, October 1, and October 2. According to the witness, on Friday, October 2, her sister, brother, and the appellant came by between 4:30 and 5:00 p.m. and told her that her sister’s body had been found.

Although her testimony was somewhat confusing she also testified on direct and again on redirect examination that, while appellant and Betty Joyce Wright were at her house on the afternoon of Friday, October 2, appellant had left walking, telling them he was going to a local store.

The witness then testified that she and her relatives and appellant had ridden by Towns’ residence the day the victim disappeared. She testified that it was appellant’s idea to ride down the alley besides Towns’ residence when the blouse was found on the fence. She also testified that, on each of three days she saw appellant before the victim’s body was found, he would ask if she had seen the victim.

Betty Joyce Wright, the victim’s sister and appellant’s girl friend, testified that she saw appellant leave at 9:00 a.m. the day the victim disappeared. She also saw him when he, the victim and her mother stopped at a neighbor’s house around 12:00. She did not see him again until 4:00 p.m. that day. On the day the body was found, appellant left home at 8:00 a.m., telling her he was going to look for a job. He returned at 9:00 a.m.

According to Mrs. Wright, she and appellant went to her sister Shirley Dixon around 10:30 a.m. that day. She seemed to indicate that appellant had walked to a store while they were at her sister’s house some time later.

During cross-examination, the witness testified that appellant asked her to wash his car and a car mat. She also stated that she had just washed appellant’s clothes when the police collected them from her.

Mary Thomas was with the victim and Towns at a bar a few years earlier. According to the witness, Towns claimed that someone had stolen some money from him and began accusing the victim. After the victim refused to allow Towns to search her, he threw a meat cleaver at her. She also testified that two months previously he had pushed the victim against a car.

During cross-examination the witness admitted dating appellant for one to two years and that she had been convicted of theft and arson.

Appellant’s last witness was Evelyn Den-ton. Mrs. Denton testified that she saw the victim around 2:00 p.m., fighting, either on the day the victim disappeared or the day before. The witness, after reviewing the statement she made, testified that the date on the statement was September 30, the day the victim disappeared.

However, during cross-examination she testified that the event could have just as easily occurred on September 29 as on September 30.

On redirect examination, she testified that the victim was wearing blue pants the day she disappeared, as well as a flowered blouse and a red bandana. She identified the red bandana in evidence as the one the victim was wearing on that day.

Appellant first argues that the trial court erred in denying his motion to exclude the state’s evidence.

Much of this case involves circumstantial evidence. In reviewing a conviction based on circumstantial evidence, this court will view the evidence in the light most favorable to the state. The test to be applied is “whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.” Dolvin v. State, Ala., 391 So.2d 133 (1980); Cumbo v. State, Ala.Cr.App., 368 So.2d 871, cert. denied, Ala., 368 So.2d 877 (1978).

We believe that the evidence, when viewed in the light most favorable to the state, was sufficient to allow the jury to reasonably conclude that the evidence excluded any reasonable hypothesis except that of guilt.

We agree with appellant that incriminating circumstantial physical evidence found at the scene of the crime was weak to nonexistent. Although blood analysis of the victim’s clothes and finger scrappings was consistent with appellant’s blood type, the victim had an identical blood type. The evidence technician was unable to detect any latent fingerprints on various objects found at the scene. The evidence tends to indicate that the body was dragged from a nearby roadway to where cars had apparently parked at the scene after the victim was murdered. No one noticed any blood on the ground near the body; small bushes were flattened in the general vicinity, and there was testimony of a trail leading to the body. There was no fiber or hair evidence linking appellant or his car with the mattress pad found next to the body or the body itself. The only evidence found at the scene linking the appellant to the crime was testimony that seminal fluid found on a paper towel near the body was from a “non-secretor” and appellant was a “non-se-cretor.” However, this evidence was offset by subsequent testimony that a pubic hair found on the paper towel was not similar to samples of the victim’s, appellant’s or Willie Towns’ hair. About the only reasonable inference to be drawn from the evidence was that neither did it implicate Willie Towns.

Neither were incriminating bloodstains found on appellant’s shirt and pants and pocket knives. Again, the same can be said of Willie Towns, except for apparently old bloodstains found at the residence he and the victim lived in which were compatible with the victim’s blood type.

However flimsy and conflicting the evidence may be, we are faced with appellant’s highly incriminating statements along with incriminating evidence surrounding that statement. After giving numerous statements that he had last seen the victim alive in West Anniston, appellant finally admitted leaving the body where it was found. He stated that the victim was dead. He admitted removing articles of clothing that day from the body and placing them in Willie Towns’ back yard where they were subsequently found. Although he denied cutting the victim, the portion of the blouse that he hung on Towns’ fence was stained with blood consistent with her blood type along with her blood soaked pants and her tennis shoe. This certainly gave rise to a legitimate inference that he removed her blouse after she was cut. He admitted calling authorities two days later, describing himself as a hunter who had run across the body, and he admitted he was attempting to frame Towns by placing the victim’s clothing in Towns’ yard.

Besides this statement, there was corroborating testimony that appellant, using a pseudonym, had called the Hobson City authorities two days after the victim had disappeared, describing the location of the body. There was corroborating testimony that the victim’s bloodstained clothes were found where appellant had stopped at a friend’s house the afternoon the victim disappeared, telling the friend that he had come from “off the hill” which was in the direction of the rock quarry. After appellant asked for a rag to wipe out his car, he wiped off his tennis shoes. An analysis of the shoes determined the presence of blood.

This court must take the evidence favorable to the prosecution as true and accord to the state all legitimate inferences therefrom. Bozeman v. State, Ala.Cr.App., 401 So.2d 167, cert. denied, Ala., 401 So.2d 171 (1981). Reasonable inferences from the evidence may furnish a basis for proof beyond a reasonable doubt. Hayes v. State, Ala.Cr.App., 395 So.2d 127, cert. denied, Ala., 395 So.2d 150 (1981).

We believe that the jury drew a reasonable and legitimate inference from appellant’s final statement and related circumstances that he was guilty beyond a reasonable doubt. The evidence was sufficient to sustain the verdict.

Appellant next argues that the trial court erred in allowing Diana Houston to identify appellant as the caller reporting the location of the body and identifying himself as “Robert Miller.” Appellant contends that the witness had no proper basis in which to identify the caller.

On October 2, 1981, the witness talked to the caller who identified himself as “Robert Miller” and gave directions to the body. Six days later, as she was monitoring the telephone calls on a City phone, she testified that she recognized the voice of “Robert Miller” on one of the lines. When she looked up, she saw appellant talking on that particular line.

Contrary to appellant’s assertion, we believe that the trial court properly allowed into evidence the voice identification.

This court has held:

“Generally, testimony by a witness that he recognized the accused by his voice is admissible in evidence, provided only that the witness has some basis for comparison of the accused’s voice with the voice which he identifies as that of the accused. Orr v. State, 225 Ala. 642, 144 So. 867 (1932); Hall v. State, 208 Ala. 199, 94 So. 59 (1922); Shaffer v. State, 202 Ala. 243, 80 So. 81 (1918); McGraw v. State, 34 Ala.App. 43, 36 So.2d 559 (1948); Kirby v. State, 16 Ala.App. 467, 79 So. 141 (1918). There is a sufficient basis for comparison of voices even if the witness acquires his knowledge of the accused’s voice after the event testified to by the witness. Stemple [v. State, 352 So.2d 33 (1977) ], supra; McGraw, supra.” [Emphasis added.] Odom v. State, 356 So.2d 242 (1978).

Appellant correctly states that a witness may identify the voice as that of the accused if he has had a subsequent face-to-face conversation with the accused. McGraw v. State, 34 Ala.App. 43, 36 So.2d 559 (1948). However, McGraw, supra, did not hold that this was the only means. We believe that hearing appellant’s voice on the telephone subsequent to the first conversation coupled with seeing appellant while he used the telephone provides the required basis for comparison. We do not see how this situation substantially differs from a subsequent face-to-face conversation. If anything, hearing appellant’s voice over the telephone subsequent to the conversation would be more reliable.

Any distortion caused by the electronic transmission of the voice over the telephone would possibly be present in both conversations whereas such possible distortion would not be present in a face-to-face conversation.

In any event, the trial court properly allowed the voice identification into evidence. Taylor v. State, 75 Ga.App. 205, 42 S.E.2d 926 (1947).

Moreover, even if allowing this testimony was error, any error was rendered harmless by the subsequent introduction of appellant’s statement in which he admitted calling the Hobson City authorities on October 2 and stating he had found the body while hunting. Although in the statement he told Officer Amerson he called in the morning of Friday, October 2, and Mrs. Houston testified that “Robert Miller” called in the afternoon of that day, apparently this was the same phone call. The issue is further clouded by the somewhat confusing testimony of the victim’s relatives as to appellant’s action that afternoon, although there was testimony that appellant had left Shirley Dixon’s house some time that afternoon and had walked to a local store. In any event, the incriminating nature of Mrs. Houston’s testimony was that appellant called the authorities two days after the body was found, giving the location of the body without ever subsequently informing them that he was the caller or had any knowledge as to her whereabouts.

Our Supreme Court has held that testimony apparently illegal may be rendered prejudicially innocuous by subsequent legal testimony to the same effect or from which the same facts can be inferred. Yelton v. State, 294 Ala. 340, 317 So.2d 331 (1974).

Appellant also argues that his inculpatory statement made to the police in which he changed his story and admitted leaving the victim’s body at the rock quarry and attempting to frame Willie Towns may have been the result of an illegal detention and the trial court erred in not allowing him to question the validity of the detention.

It appears from the record that, on the night of October 9, 1981, appellant was asked to make a statement concerning the present case. At 11:14 p.m., appellant made a statement at the Hobson City Police Department basically sticking with his original story that he had left the victim at a local motel. Appellant was given his Miranda warnings and he signed a waiver form. Appellant was not in custody nor was he in any way officially detained when he made the 11:14 statement.

Around midnight, the police received verbal telephone confirmation of an earlier teletype message that appellant was wanted for a separate and unrelated murder in California and that an arrest warrant charging appellant with the murder had been issued in California. Based on this information, appellant was arrested for this unrelated charge and given his Miranda warnings. Subsequent to this arrest, around 12:45 a.m., October 10, appellant indicated that he wished to make another statement concerning the present case. He was again advised of his rights and signed a waiver form. In the 12:45 statement, appellant admitted leaving the body, calling the Clerk’s Office to report the location of the body and attempting to frame Willie Towns.

During the suppression hearing, appellant questioned the policeman who took the two statements and requested that he produce the arrest warrant based on the California charge. The trial court refused the request and did not allow appellant to further inquire about the California charge. We believe that the trial court did not err in doing so because the issue of appellant’s arrest on a separate charge did not affect his subsequent statement concerning the case.

The Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed. 416 (1975) identified the relevant inquiry in determining whether an illegal arrest would improperly taint a subsequent confession as being whether the statements were obtained by exploitation of the illegality of the arrest. An especially important factor in determining the issue is the purpose and flagrancy of the possible official misconduct.

There was no exploitation of any prior illegal police conduct in the attainment of appellant’s statement. Appellant was arrested for independent and non-investigatory reasons, i.e., the California murder charge. This arrest had nothing to do with the subsequent statement concerning this case, and was obviously not made in order to produce a subsequent statement in the present case. Neither was any possible technical illegality concerning the California charge in any way the result of flagrant official misconduct concerning the present case.

We hold that the relationship between the detention of appellant on wholly unrelated charges and the subsequent statement concerning the present case is sufficiently attenuated to render the statement admissible and no deterrent purpose is served by applying the exclusionary rule in these circumstances. State v. Osbond, 128 Ariz. 76, 623 P.2d 1232 (1981).

Moreover, assuming arguendo that the arrest was relevant, the arrest was lawful. It appears from the record that appellant was initially arrested based only on the teletype information and subsequent verbal confirmation of an outstanding arrest warrant in California. Subsequent to the arrest and the second statement the arrest warrant based on the California charge was obtained. The Code of Alabama allows a warrantless arrest whenever someone has “reasonable information” that an accused stands charged with.a crime punishable by death or life imprisonment. § 15-9^42, Code of Alabama 1975. All degrees of murder in California carry a possible life sentence. Cal. [Penal Code] Tit. 8 § 189 (West 1968). Thus, the arrest was legal, rendering any subsequent statement admissible.

Appellant’s last contention is that the trial court erred in allowing into evidence a number of Georgia records of prior felony conviction during appellant’s sentencing hearing.

After giving adequate notice, the prosecution introduced six documents purporting to show six prior felony convictions of appellant in Georgia. The trial court allowed the records into evidence and sentenced appellant to life without parole under § 13A-5-9 of the Habitual Offender Act. Under this section, when it is shown that a defendant has been convicted of three prior felonies, on conviction of a fourth Class A felony, he must be sentenced to life imprisonment without parole.

Appellant argues in his brief four alleged defects in the state’s manner of proof of the prior convictions: (1) a number of the documents do not establish that appellant was represented by counsel when convicted of the prior offense as required under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), (2) it was not adequately shown that the named defendant on each document was the same person as appellant, (3) in allowing the introduction of only the Georgia public records, appellant was denied his right to cross-examination and confrontation of witness, and (4) the records were not properly certified.

There is no merit to any of the four grounds.

We first note that although records of six prior convictions were introduced under § 13A-5-9(c)(3) only three prior convictions must be properly proven. Any possible error in accepting into evidence additional prior convictions which were improperly proven is harmless error. Watson v. State, Ala.Cr.App. 392 So.2d 1274 (1981). The state properly proved at least three prior convictions.

As to appellant’s first asserted ground of error, although one out of the six documents is questionable, state’s exhibits 1, 4 and 6 all contain the signature of counsel who represented the appellant.

As to the second ground, appellant specifically argues that because a number of the documents list “Edward Favors” without “Jr.”, the state did not adequately show that appellant was the same as the person listed. However, both state’s exhibits 1 and 6 list the defendant as “Edward Favors, Jr.” State’s Exhibit 4 lists the defendant as “Edward Jett Favors.” “Jett” is appellant’s middle name.

The word “Jr.” is ordinarily a matter of description and is no part of a person’s legal name. Taylor v. State, 282 Ala. 567, 213 So.2d 566, cert. denied 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795 (1969). We note that even on the documents listing the defendant as “Edward Favors, Jr.” the defendant did not use the description “Jr.”

This court in Williams v. State, 364 So.2d 717 (1978) held that the identity of the name raises the presumption of sameness of person. We note that in the present case as in Williams, supra, appellant introduced no evidence to rebut this presumption of sameness of person.

Appellant did not raise at his sentencing hearing the specific objections he argues in the third and fourth grounds in his brief. The trial court will not be placed in error for these grounds on appeal that were not specified during the sentencing hearing. Smith v. State, Ala.Cr.App., 409 So.2d 455 (1981).

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Edward Jett FAVORS. (Re Edward Jett Favors v. State of Alabama).
    82-648.
    Supreme Court of Alabama.
    Aug. 19, 1983.

      Ralph L. Brooks of Brooks & Brooks, Anniston, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ger-rilyn V. Grant, Asst. Atty. Gen., for respondent.
   PER CURIAM.

We granted certiorari to review one of the issues in this case, the issue of voice identification. The full facts are amply set forth in Favors v. State, 437 So.2d 1358 (Ala.Cr.App.1983). The following, however, is a synopsis of the facts as they pertain to this specific issue.

Diana Houston, city clerk to the town of Hobson City, received a telephone call from a man on October 2, 1981, two days after the victim had been reported missing, identifying himself as “Robert Miller.” The substance of the call was that he had been hunting in the area of the local rock quarry and had discovered a dead body. Six days later, she was monitoring telephone calls on the city hall telephone lines and she recognized the voice on one of the lines as the voice of the person who had identified himself as “Robert Miller.” Ms. Houston testified at the trial that when she looked up that day, she saw Edward Jett Favors, the appellant, a short distance away using a telephone and talking on that particular line.

In its opinion, the Court of Criminal Appeals discusses the trial court’s permitting the state to introduce into evidence Ms. Houston’s testimony that the voice of “Robert Miller” was the voice of Edward Favors:

“Contrary to appellant’s assertion, we believe that the trial court properly allowed into evidence the voice identification.
“This Court has held:
“ ‘Generally, testimony by a witness that he recognized the accused by his voice is admissible in evidence, provided only that the witness has some basis for comparison of the accused’s voice with the voice which he identifies as that of the accused.’ Orr v. State, 225 Ala. 642, 144 So. 867 (1932); Hall v. State, 208 Ala. 199, 94 So. 59 (1922); Shaffer v. State, 202 Ala. 243, 80 So. [81], 82 (1981); McGraw v. State, 34 Ala.App. 43, 36 So.2d 559 (1948); Kirby v. State, 16 Ala.App. 467, 79 So. 141 (1918). There is a sufficient basis for comparison of voices even if the witness acquires his knowledge of the accused’s voice after the event testified to by the witness. Stemple, [v. State, 352 So.2d 33 (1977)] supra; McGraw, supra. [Emphasis added.] Odom v. State, 356 So.2d 242 (1978).’
“Appellant correctly states that a witness may identify the voice as that of the accused if he has had a subsequent face-to-face conversation with the accused. McGraw v. State, 34 Ala.App. 43, 36 So.2d 559 (1948). However, McGraw, supra, did not hold that this' was the only means. We believe that hearing appellant’s voice on the telephone subsequent to the first conversation coupled with seeing appellant while he used the telephone provides the required basis for comparison. We do not see how this situation substantially differs from a subsequent face-to-face conversation. If anything, hearing appellant’s voice over the telephone subsequent to the conversation would be more reliable.
“Any distortion caused by the electronic transmission of the voice over the telephone would possibly be present in both conversations whereas such possible distortion would not be present in a face-to-face conversation.
“In any event, the trial court properly allowed the voice identification into evidence. Taylor v. State, 75 Ga.App. 205, 42 S.E.2d 926 (1947).”

437 So.2d at 1367-68 (Ala.Cr.App.1983).

It is evident from the facts that there was no face-to-face conversation per se between the witness and Edward Favors subsequent to the October 2, 1981, telephone call, as Favors contends there must be under McGraw v. State, 34 Ala.App. 43, 36 So.2d 559 (1948), cert. dismissed, 251 Ala. 123, 36 So.2d 560, for the voice identification to be properly admitted into evidence. Ms. Houston testified that she recognized the voice on a city hall telephone line six days later as being the voice of the person who had previously identified himself as “Robert Miller,” and that it was the appellant she saw but a short distance away talking on that particular telephone line.

We do not believe that our voice recognition rule, as articulated in McGraw v. State, supra, should be interpreted so strictly and absolutely as to preclude, under these facts, Ms. Houston’s testimony. See generally Annot., 79 A.L.R.3d 79 (1977). The witness’s “hearing the appellant’s voice on the telephone subsequent to the first conversation coupled with seeing appellant while he used the telephone provides the required basis for comparison,” Favors v. State, 437 So.2d at 1368 (Ala.Cr.App.1983), thereby ensuring its reliability. Plainly, the weight and probative value of such testimony rests with the jury. See McGraw v. State, supra.

The decision of the Court of Criminal Appeals is hereby affirmed.

AFFIRMED.

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


text:
    James E. MEEKS v. STATE.
    3 Div. 519.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    See also 434 So.2d 848; 434 So.2d 843; 434 So.2d 836.
    Paul R. Cooper of Cooper & Cooper, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant, James E. Meeks, was indicted by the Montgomery County Grand Jury for felony possession of drugs. At his arraignment on December 8,1981, appellant pleaded not guilty and not guilty by reason of insanity. A motion to suppress was filed on December 15, 1981, which was later denied. After waiving his right to a jury trial on January 25, 1982, appellant’s case was submitted to the trial court, and he was thereupon adjudged guilty. He was sentenced to five years in the state penitentiary.

This case arises out of the same set of facts found in Meeks v. State, 434 So.2d 843 (Ala.Cr.App.1982), and Meeks v. State, 434 So.2d 836 (Ala.Cr.App.1982), two companion cases, which were reversed by the Supreme Court of Alabama in Meeks v. State, 434 So.2d 844 (Ala.1983).

The evidence stipulated to by the parties established that, on August 13,1981, at 6:45 a.m., James Meeks was taken into custody at the Paradise Motel in Montgomery County on Troy Highway in Room 26 or 27 by two unidentified police officers in the Vice and Narcotics Division of the Montgomery Police Department. The unknown officers knocked on the door, kicked the door in, handcuffed Meeks, and did not give him his Miranda rights. They had no permission to enter the motel rooms by the manager of the motel or by Meeks. They had no arrest warrant and Meeks was involuntarily taken downtown to talk with Lieutenant Green, the head of the Narcotics Division.

At police headquarters, Meeks signed a departmental rights form at 9:00 a.m. Officer R.H. Davis testified at the suppression hearing that he advised Meeks he was being investigated for the Carter Hill Drug Store robbery, and Meeks consented to a lineup. Meeks testified he was refused an attorney and forced into a lineup.

Meeks was identified in the lineup as the person who robbed Carter Hill Drug Store in Montgomery, Alabama, and Cook’s Drugstore in Millbrook, Alabama.

After the lineup, Meeks signed another standard waiver of rights form at 12:30 p.m. in the presence of Officers T.H. Roper and Roy Houlton. According to them, Meeks stated that he had been involved in some robberies, but not according to the information they had.

After Meeks was taken into custody, a search warrant was obtained and executed in Rooms 26 and 27 of the Paradise Motel. In the room in a brown paper bag various controlled substances were found for which Meeks was indicted.

Appellant contends that the trial court erred in denying his motion to suppress the controlled substances found in his motel room, since said substances were obtained as a result of his illegal arrest and subsequent invalid search warrant. Appellant argues that the search warrant authorizing the search of his motel room was invalid since its issuance was based on evidence illegally obtained from his illegal warrant-less arrest.

We note that in the companion cases cited above, our Supreme Court held that appellant’s initial arrest for suspicion of robbery was illegal since the State failed in its burden of proving probable cause to make an arrest.

This case is reversed and remanded on authority of the opinion of the Supreme Court of Alabama in Meeks v. State, 434 So.2d 844 (Ala.1983); Taylor v. Alabama, 457 U.S 687, 102 S.Ct. 2664, 73 L.Ed.2d 314; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824; Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416.

REVERSED AND REMANDED.

All the Judges concur.


author: SAM W. TAYLOR, Judge.

text:
    Joe Eddie MOORE v. CITY OF EUFAULA.
    4 Div. 90, 4 Div. 90A and 4 Div. 90B.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.

      E.H. Graves, Jr., Eufaula, for appellant.
    William V. Neville, Jr., City Atty., Eufau-la, for appellee.
   SAM W. TAYLOR, Judge.

In Barbour County Circuit Court, the appellant, Joe Eddie Moore, was convicted of reckless driving, attempting to elude a police officer and driving while intoxicated.

The foundation for this appeal is a contention that there was a failure to prove venue.

Appellant appealed his convictions from the municipal court of Eufaula, Alabama. The cases were consolidated for trial in circuit court. There was a failure to ask the routine “venue question,” i.e., “Did these events to which you refer occur in the city or police jurisdiction of Eufaula, Alabama?”

Appellant contends, therefore, that venue was not proven. We disagree. In Stokes v. State, 373 So.2d 1211 (Ala.Cr.App.), cert. denied, 373 So.2d 1218 (Ala.1979), this court, speaking through Judge Bowen, stated: “Venue may be proved by circumstantial as well as direct evidence,” citing Wall v. State, 49 Ala.App. 285, 270 So.2d 831 (1972).

Our court said in Daly v. State, 47 Ala.App. 681, 260 So.2d 412, cert. denied, 409 U.S. 874, 93 S.Ct. 123, 34 L.Ed.2d 127 (1972):

“The appellant insists that the case should be reversed because of the failure of the state to prove venue. This is a matter which may be proven by circumstantial evidence and there is some evidence in the record tending to prove the location in Limestone County, Alabama, but aside from this the matter was not called to the court’s attention before argument by a request for the affirmative charge based on this failure by the state to prove venue. This matter cannot be raised for the first time by a motion for a new trial or an appeal. Rule 35, Circuit and Inferior Court Rules, Tit. 7, Appendix, Code of Alabama, 1940, as recompiled 1958; Richardson v. State, 39 Ala.App. 207, 98 So.2d 59, cert. denied, 266 Ala. 699, 98 So.2d 65; Payne v. State, 40 Ala. App. 493, 115 So.2d 670.”

The 1907 case of Dupree v. State, 148 Ala. 620, 42 So. 1004, states in pertinent part:

“Defendant’s counsel insist that charge 1 should have been given on account of the failure to prove the venue of the crime. ‘It is not necessary to prove in express terms, that the offense was committed in the county where the indictment was found; evidence from which the jury could so infer is sufficient.’ Tinney v. State, 111 Ala. 74, 20 South. 597. There was abundance of evidence by several witnesses, that the alleged crime was committed in ‘Montgomery, in the city of Montgomery,’ and the union depot of the Louisville & Nashville Railroad Company, in said city, and certain prominent streets therein, such as Monroe, South Court, etc., etc., are referred to in the evidence. From these facts, we can judicially know, that the city of Montgomery is in Montgomery county in the state of Alabama. Levy v. State, 133 Ala. [190] 192, 31 South. 805; Boardman v. Ewing, 3 Stew. & P. (Ala.) 293; 17 Am. & Eng. Ency. Law (2nd Ed.) 906.”

In the instant case there was testimony that the policemen were officers of the City of Eufaula Police Department. The complaint itself refers to the city limits. There was testimony that the officers answered a complaint made to the Eufaula Police Department. Lt. Bradshaw testified he was employed by the Eufaula Police Department as a shift supervisor. There was testimony regarding Eufaula streets such as College Hill Road, Broad Street, Kendall Drive, Cherry Street, Sanford Street and Abert Street, their intersections and directions. There was testimony as to what speeds were safe for “that area of town” and as to the speed limits for certain streets or areas.

It is a general rule that a court may take judicial notice of the existence and general aspects of the streets and highway systems. See 29 Am.Jur.2d, Evidence § 67 (1967) and annot. at 48 A.L.R.2d 1127.

In Hodge v. Joy, 207 Ala. 198, 92 So. 171 (1922), the Supreme Court stated at 92 So. 174:

“It is unnecessary to remark that we have the right of recourse to all sources of specific information for verification of a fact of which the court takes judicial knowledge. 1 Greenl. Ev. (14th Ed.), § 6; 23 Cor. Jur. § 2001, p. 169. In Gordon v. Tweedy, supra, it was said:
“ ‘It is customary for courts to take judicial knowledge of what ought to be generally known within the limits of their jurisdiction. This cognizance may extend far beyond the actual knowledge, or even the memory of judges, who may therefore resort to such documents of reference, or other authoritative sources of information as may be at hand, and may be deemed worthy of confidence. The rule has been held, in many instances, to embrace information derived informally by inquiry from experts.’ 74 Ala. [232] 237, 49 Am.Rep. 813.”

A portion of the above statement was quoted with favor by our Court of Civil Appeals in 3M Company, Inc. v. Dunn, 50 Ala.App. 329, 279 So.2d 132 (Ala.Civ.App.1973) at 279 So.2d 136:

“This statement of the subject matter of judicial knowledge is both general and flexible enough to meet the changing character of modem society. Not only is society more mobile in 1973 than it was in 1897, but the location and direction of major highways of our state are more generally known within our statewide community than they were in 1897. We would also point out that the matter of which we have here taken judicial notice is subject to irrefutable verification by reference to the official maps of this state.”

See the annotation at 15 A.L.R. Fed. 715 on the subject Propriety of Taking Judicial Notice of Geographic Facts For Purposes of Proof of Venue in Federal Criminal Prosecution. See also Weaver v. United States, 298 F.2d 496 (5th Cir.1962). We hold that venue was proved both by circumstantial evidence in this case and by the court’s judicial notice that the streets testified to were inside the City of Eufaula, Alabama. Therefore, venue was proved, without the necessity of asking that direct question.

We find the other contentions of appellant to be without merit. Thus, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Ralph BARKER v. STATE.
    5 Div. 766.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.

      John R. Formby, Jr., Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., and La-veeda Morgan, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

Ralph Barker appeals from the summary denial of his petition for writ of habeas corpus challenging the action of the disciplinary board in revoking two months good time. Barker argues that the evidence was insufficient to sustain the board’s finding of guilt.

I

Initially, we note that the petition was properly denied because Barker failed to verify his petition by oath. O’Such v. State, 423 So.2d 317 (Ala.Cr.App.1982).

II

However, in an effort to expedite a final determination of this issue, if and when a proper petition is filed, we note the following: The exhibits attached to the State’s motion to dismiss the petition show that the due process requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), were not satisfied. Specifically, those documents do not reveal the written statement by the fact finders as to the evidence relied upon and the reasons for the disciplinary action. Wolff, 418 U.S. at 564, 94 S.Ct. at 2978. Fielding v. State, 409 So.2d 964 (Ala.Cr.App.1981). The board’s statement, “Inmate plead not guilty. Based on arresting officer’s statement and evidence found, inmate was found guilty” simply does not satisfy Wolff. Washington v. State, 405 So.2d 62 (Ala.Cr.App.1981).

Ill

The lack of the procedural due process mandated in Wolff and approved by our Supreme Court in Williams v. Davis, 386 So.2d 415 (Ala.1980), is directly related to the substantive issue raised by Barker. Barker argues that the opinion of the arresting correctional officer that the hand-rolled cigarettes containing a green vegetable material actually contained marijuana does not constitute substantial evidence of his guilt. As was noted in Aikens v. Lash, 514 F.2d 55, 60 (7th Cir.1975), “As a practical matter, we fail to see the conflict defendants note between the term ‘substantial evidence’ and the phrase ‘evidence relied on and reasons for the disciplinary action.’ * * * The term ‘substantial evidence’ need not be something prison officials should be overly concerned about. In each case, they should write their conclusions and the reasons for them based on the evidence they have heard.”

We reject Barker’s árgument that scientific evidence was necessary to prove that the vegetable material was marijuana. Evidence that the arresting officer was qualified from study, experience, or observation to identify marijuana would have been sufficient. Jenkins v. State, 46 Ala.App. 719, 248 So.2d 758 (1971). In other words, why did the arresting officer “believe” the material was marijuana? Without such information the action of the board was arbitrary and capricious.

The decision of a prison disciplinary board must not have been arbitrarily or capriciously made but must have been based upon substantial evidence in order to satisfy due process. Washington, 405 So.2d at 64. “A disciplinary proceeding is not a criminal trial, and the traditional criminal standard of proof beyond a reasonable doubt is not necessary to support a finding of a rule infraction.” J. Cobert and N. Cohen, Rights of Prisoners 250 (1981). The standard of proof required is “necessarily lower than that demanded in criminal, parole-probation, revocation or civil proceedings.” Smith v. Rabalais, 659 F.2d 539, 546 (5th Cir.1981), cert. denied, 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853 (1982). For this reason, the production of physical evidence in disciplinary proceedings is usually not required. Babcock, Due Process In Prison, 22 Boston L.Rev. 1009 (1981).

Evidence which constitutes substantial evidence has been described as being “more than a scintilla. It means such evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In Ex Parte Morris, 263 Ala. 664, 83 So.2d 717, 720 (1955), the Alabama Supreme Court set forth the following definitions of substantial evidence:

“1. Substantial evidence is a ‘rational basis for the conclusions approved by the administrative body.’ Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282 (54 S.Ct. 692, 694, 78 L.Ed. 1260). “2. Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ * * * (Consolidated Edison Co. of New York v. National Labor Relations Board) 305 U.S. 197 (59 S.Ct. 206, 217, 83 L.Ed. 126).
“8. * * * substantial evidence is more than a scintilla and must do more than create a suspicion of the existence of a fact to be established. * * * ‘it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion * * * and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ National Labor Relations Board v. Columbian E(nameling &) Stamping) Co., 306 U.S. (292) 299-301 (59 S.Ct. 501, 505, 83 L.Ed. 660.)”

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.