text:
    Varnall WEEKS v. STATE of Alabama.
    5 Div. 726.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.

      Jock M. Smith, Tuskegee, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Varnall Weeks was indicted for the intentional killing of one Mark Batts, during the course of a robbery in the first' degree, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. The jury found him “guilty as charged” in the indictment. The appellant waived the participation of the jury in the sentence determination and demanded the trial judge sentence him to death. The trial judge held a sentencing hearing at which he found two aggravating circumstances and no mitigating circumstances.

See Appendix A, hereto attached and made a part hereof.

The trial judge determined the aggravating circumstances clearly outweighed the mitigating circumstances and sentenced the appellant to death.

The first witness for the State was Tommy Batts of Murfreesboro, Tennessee, the father of the deceased. He testified he had given his son a blue, two door, 1981 Honda automobile which bore the Tennessee license plate, 11XP67.

Christine Jenkins, a veterinary medicine student at Tuskegee Institute, testified the deceased was her boyfriend and she lived with him at 301 Neal Street in Tuskegee, Alabama.

On October 1, 1981, Jenkins left the house at 8:10 a.m. to attend class. The deceased was still at the house and was wearing his gold chain necklace, Seiko watch and Bata tennis shoes. His blue Honda was parked in front of the house. On this day, the deceased had an important class to attend from 8:00 a.m. until 4:30 p.m. It was a mandatory class at which he was to prepare his animals for surgery the next day. At 4:30 that afternoon, Jenkins learned that the victim had not shown up for class and she called the police at 9:00 p.m. to find out how to report a missing person.

The next morning, October 2, 1981, Jenkins went to the Tuskegee Police Station to place a “missing person report” on Mark Batts.

Celia Davis stated she lives at 600 North Gay Street in Tuskegee. On the morning of October 1, 1981, as she and her husband were leaving for work, she saw the appellant walking down Gay Street toward Neal Street. The house where the deceased lived was across the street from her house but faced Neal rather than Gay Street. She also noticed the deceased’s car parked in front of his house.

Mrs. Davis’ husband, Major Cecil Davis, testified that he also observed the appellant that morning at the corner of Gay and Neal Streets. Davis noticed the appellant because he had never seen him before in the neighborhood.

John R. Meadows, the Assistant Police Chief for the City of Tuskegee, took the missing person report from Ms. Jenkins on October 2, 1981. She described the deceased and his car to him.

On October 5, 1981, Don Williams, a criminal investigator with the Alabama Bureau of Investigation (ABI), went to Tuskegee to assist in a missing person investigation. The next day, he received information from the East Cleveland, Ohio Police Department, relating to an automobile which had been recovered.

On October 7, 1981, he went to East Cleveland. There, he saw appellant and talked to a Jewel Martin from Tuskegee. She gave him a deposit slip bearing the name of Mark Batts and vehicle identification papers belonging to Tommy Batts.

Williams also observed a blue Honda automobile at the police station. A Tennessee license plate, 11XP67, was recovered from the dashboard of that car. Detective Hughey of the East Cleveland Police Department gave Williams a .38 revolver which he turned over to Lonnie Harden.

On October 6, 1981, David Deardon, a police officer with the East Cleveland Police Department, noticed a blue Honda Civic make an illegal left turn. When he stopped the automobile, he noticed the driver, whom he identified as the appellant, was wearing a brown leather type jacket and the passenger was a black female. Deardon also observed a Tennessee license plate in the window.

When Deardon asked the appellant for his driver’s license, he gave him a license bearing the name of Mark Batts. Deardon then asked the appellant to get out of the car, which he did. As Deardon was making a pat down search of the appellant, the appellant pulled out a chrome-plated gun and shot Deardon in the chest.

As Larry Lester of the East Cleveland Police Department approached the scene of the routine traffic stop, he saw the appellant shoot Deardon and then point the gun at Deardon as if he were going to shoot again. Lester then shot at the appellant who fled into a nearby neighborhood.

As he and other officers searched the area, the appellant came out of a house and was placed under arrest. A .38 silver revolver and a brown imitation leather jacket were found under a porch approximately ten yards from where the appellant was apprehended. The jacket bore the name of the appellant’s brother, Chenoy Weeks.

Lieutenant Richard Stinson gave the .38 gun to the Cleveland Police Department Scientific Investigation Unit so that it could be processed for fingerprints. Later, the gun was given to Don Williams.

Lieutenant James Hughey of the East Cleveland Police Department processed the blue Honda for fingerprints and gave the appellant’s fingerprint card to Edward Walsh of the fingerprint section of the Cleveland Police Department Scientific Investigation Unit.

Walsh testified he lifted the appellant’s right thumb print off of a bullet found inside the .38 gun found under the porch.

Detective James Copeland of the East Cleveland Police Department, received a driver’s license belonging to Mark Batts from the ambulance driver at the scene where Deardon was shot. He also learned that the blue Honda belonged to Tommy Batts of Murfreesboro, Tennessee.

At this time, a hearing was held outside the presence of the jury to determine the voluntariness of the appellant’s statement. Copeland stated the appellant was advised of his Miranda rights and stated that he understood those rights and wished to make a statement. He refused to sign the transcribed statement. No threats, inducements, coercion or hope of reward were offered or used to obtain the statement.

The appellant stated that he was never advised of his rights and signed the waiver believing it to be a property slip. He denied making a statement. The appellant stated he requested a lawyer and the police continued asking questions after he made the request.

The trial judge ruled the appellant’s statement was voluntarily made and allowed its admission into evidence. The statement reads as follows:

“After advising Varnell Weeks of his rights he was interviewed. He stated that he left Tuskegee, Alabama some time Thursday, October 1st, near noon. Later that afternoon the bus stopped in Atlanta, Georgia, a Greyhound bus. At one point he stated that he spent the night in Atlanta and left the next day. He later changed that story to he got off the bus as he gased up and went to the men's room. The bus pulled out a short time later, and he was on the bus. He doesn’t remember any of the other towns the bus made stops in. But it took approximately five days for the trip. He stated that he made the trip alone. When he left Tuskegee, Alabama he took only the clothes he was arrested in, a pair of blue jeans, a short-sleeved white and yellow shirt, and a pair of tennis shoes. He also stated that the large amount of money that he had on his person was obtained from his relatives and friends but he could not give any names. He decided to come to Cleveland, Ohio to buy clothes. He then changed that story to he came to Cleveland for a job to buy clothes and to relocate. He stated that when he got in Cleveland he met a male at the bus station and that male, name unknown, drove him around Cleveland. While they were riding around Cleveland he and the male smoked marijuana, and he got very high. He stated that he got hungry, and when they saw McDonald’s he was let out of the car, and the unknown male continued on. He described the vehicle he was in as a small blue car, make and plate number unknown. As he approached McDonald’s a black male grabbed him and he fought with same breaking away and then running. He doesn’t know why the male grabbed him, but he was — he suspected the male wanted to rob him. A short distance away he saw the police and he was arrested. Weeks could give no description of any building or business in the area of the McDonald’s Restaurant and doesn’t know if he was in the front or at the rear of McDonald’s. When asked if he smoked while in the car he said no. He said that he does smoke and his brand is Kools. He further stated that he did eat while in the car. It was also noticed that there was an impression of a hat being around his head and hair. And he was asked if he wore a hat. And he stated that he had a hat, but he didn’t know where it was at. He stated that he knew nothing about the shooting of a police officer and became very nervous when questioned in that area. He denied wearing the leather jacket found by police and also ever seeing the blue and white shower slippers. He stated that he injured his foot fighting with the unknown male that grabbed him near or in front of McDonald’s. He stated that he had on tennis shoes at the time during the struggle and both shoes came off and he left them behind. When asked about lack of clothes and other personal items needed when relocating he stated that he travels light. When asked where he got the money he stated that he would meet females while enroute from Alabama and they would give him money. Again, names and addresses not known. During the interview Weeks stated that the jacket found by police with the name of Chevoy Weeks stamped on the lining was his brother’s. He didn’t know how it got here. And the black notebook with the photos in same was identified by Weeks. He stated that the photos were of him and his relatives. A card in the notebook from Reader’s Digest addressed to Che-voy Weeks was that of his brother’s.” (R. 198-200).

J.H. Abbett, an investigator with the ABI, coordinated the search for the body of Mark Batts on October 7, 1981. A search was conducted near the appellant’s home on Ashdale Road in Tuskegee.

At approximately 1:20 p.m., one of the members of the search party found two notebooks, one green and one black, which contained materials relating to veterinary medicine, in a wooded area behind the appellant’s house.

Both notebooks were turned over to Marietta Prevost, a latent fingerprint examiner with the ABI.

A short time later that afternoon, in the same area, another member of the search party noticed an area of gray dirt which had been recently overturned. Abbett used a shovel to remove some dirt and uncovered the deceased’s body. The body was covered by a green blanket. Two pillowcases had been placed over the head and the feet were tied together with a rope. The deceased was wearing a gold necklace, a Seiko watch and Bata tennis shoes. The area where the body was found was approximately 100 feet from the appellant’s house. The body was turned over to Dr. Thomas Gilchrist, a pathologist for the Department of Forensic Sciences (DFS).

Gilchrist determined the body to be that of Mark Batts after examining the dental charts of Mark Batts, provided by the deceased’s dentist, Dr. Jerry Compton. Next, Gilchrist conducted an autopsy on the body. An external examination of the body revealed ligature marks on the legs where they had been tied with a rope and a bullet wound behind the right ear. The soot deposition around the wound indicated the gun was extremely close to the head when it was fired. Gilchrist removed the bullet from the head and gave it to Lonnie Harden.

Marietta Prevost processed the two notebooks which were found for fingerprints. Along with the fingerprints of the deceased, she found two of the appellant’s fingerprints on the notebooks and the fingerprints of Chenoy Weeks.

Lonnie Harden, a Firearm and Toolmarks coordinator for the DFS examined the .38 revolver given to him by Don Williams and a bullet taken from the head of the deceased Batts. He determined the bullet had been fired from that particular gun.

On October 1, 1981, Jewel Martin saw the appellant at the Chicken Coup in Tuskegee. She and a girlfriend then went to the appellant’s house on Ashdale Road where they drank beer and smoked marijuana with the appellant and Chenoy Weeks.

On October 3, 1981, at approximately 11:00, the appellant picked up Martin in a little blue Honda from the Astrology Club. The two drove to Montgomery and the appellant left her there overnight. The appellant came back the next morning and they drove to Cleveland.

On the way to Cleveland, Martin found the deceased’s driver’s license in the glove compartment. When she asked about the license, the appellant stated he had killed a Tuskegee Institute student and buried him in his backyard. The appellant told her if she told anyone he would kill her.

Martin further testified that the police and the District Attorney’s office agreed to drop all charges pending against her if she would testify at the appellant’s trial.

I

The appellant’s first contention is that the trial court erred in admitting evidence which showed the appellant had committed another “unrelated crime” in East Cleveland, Ohio. The appellant objects to the testimony concerning the appellant’s shooting Officer Deardon, his subsequent arrest and the statement which he gave to the police in East Cleveland.

“While it is true that evidence of separate crimes is inadmissible where the only probative function of such evidence is to show bad character, or an inclination or propensity to commit the type of crime for which an accused is being tried, if the accused’s commission of another crime or misdeed is an element of guilt, or otherwise tends to prove his guilt, then proof of such other crimes is admissible. Sparks v. State, 376 So.2d 834 (Ala.Cr.App.1979); C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (3rd ed. 1977).”

Watson v. State, 398 So.2d 320 (Ala.Cr. App.1980); Cheatham v. State, 431 So.2d 1350 (Ala.Cr.App.), cert. denied, 431 So.2d 1350 (Ala.1983).

Therefore, evidence of other distinct crimes committed by an accused is not admissible as substantive evidence to prove the accused’s guilt of the particular offense for which he is on trial. Allen v. State, 380 So.2d 313 (Ala.Cr.App.1979), cert. denied 380 So.2d 341 (Ala.1980), cert. denied 449 U.S. 842, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980); Wilkins v. State, 29 Ala.App. 349, 197 So. 75 (1940). However, if evidence of other collateral crimes which were committed by an accused tends to point to the guilt of the accused as to the offense upon which he is being tried, then the “... evidence is relevant and competent [and] it should be admitted regardless of its incidental effect.” Allen, supra; Wilkins, supra.

“All evidence is relevant which throws, or tends to throw, any light upon the guilt or innocence of the prisoner. And relevant evidence which is introduced to prove any material fact ought not to be rejected merely because it proves, or tends to prove that at some other time or at the same time the accused has been guilty of some other separate, independent and dissimilar crime. The general rule is well settled that all evidence must be relevant. If the evidence is relevant upon the general issue of guilt, or innocence, no valid reason exists for its rejection merely because it may prove, or may tend to prove, that the accused committed some other crime or may establish some collateral and unrelated fact.”

Allen, supra; Cheatham, supra.

The evidence adduced at trial showed the appellant was stopped in the deceased’s automobile by Officer Deardon for a minor traffic offense and he presented the deceased’s driver’s license to Dear-don. A short time later, the appellant shot Deardon, fled the scene and was apprehended shortly thereafter. The gun that was used to shoot Officer Deardon and that which killed the deceased, Batts, and a jacket belonging to the appellant’s brother, were found a short distance from where the appellant was apprehended in East Cleveland, Ohio.

The evidence about which the appellant complains was absolutely essential to establish the appellant’s possession of the murder weapon. Furthermore, the evidence tended to connect the appellant with the deceased in that the appellant was in possession of the deceased’s automobile, and his driver’s license when he was stopped by Officer Deardon.

This court has stated that evidence of other crimes is admissible in court “when it is necessary to prove the identity of the the offender, or of an instrument used in committing the offense.” Allen v. State, supra.

The evidence admitted at trial concerning the incident in East Cleveland was clearly relevant to prove the identity of the appellant as the person who killed the deceased, Batts, and the identity of the weapon used in this murder.

Furthermore, the fact that the appellant, after being stopped for a minor traffic offense and being found in the possession of the deceased’s automobile and driver’s license, shot Officer Deardon and then fled, indicates a consciousness of guilt and thus, was also relevant for this reason.

The admission of the' appellant’s statement which was made to the police in Cleveland was relevant for the purpose of establishing the fact that the jacket which was found with the murder weapon was his brother’s. The appellant certainly cannot object to the admission of his statement here at issue because it did not prejudice him in any way. He did not say anything about the murder in Tuskegee and he denied involvement in the shooting of Officer Deardon and even claimed he had no knowledge of how his brother’s jacket came to be found approximately ten yards from where he was apprehended.

The evidence about which the appellant complains was relevant to prove the murder weapon had been in the possession of the appellant and that the appellant had possession of the deceased’s automobile and driver’s license. This evidence circumstantially links this appellant to the murder at issue and was certainly admissible for that purpose.

We must also commend the trial judge in this case for his diligent efforts in instructing the jury that the evidence of the crime in Ohio was not relevant for any purpose except to connect him to the crime here at issue. (See R. 141, 142, 147).

Merely because the evidence of the crime in Ohio, which was admitted during trial, showed the appellant had committed another crime does not justify its exclusion. The trial judge weighed the probative value of the evidence and determined its admission clearly outweighed any incidental prejudicial effects on the appellant.

Therefore, this evidence was properly admitted.

II

The appellant contends reversible error occurred because the trial judge failed to grant a mistrial after learning that one of- the State’s witnesses, Jewel Martin, rode in the automobile to the courthouse with two jurors.

While no one should contend that this course of conduct was proper, we do not find it to be here erroneous. The United States Supreme Court in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), stated that:

“Past decisions of this Court demonstrate that the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.”
“These cases demonstrate that due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.”

As Judge Bowen stated in Bascom v. State, 344 So.2d 218 (Ala.Cr.App.1977), the facts and circumstances of each case must be examined on an individual basis to determine whether an accused’s rights have been prejudiced when a situation occurs where a juror’s impartiality might be in question.

The trial judge in this case questioned the bailiff who rode in the car with the witness, and also the two jurors, to determine if any discussion of the case had occurred. Each denied that any conversation had taken place. Further, he asked each of the jurors if this incident had affected their ability to decide this case impartially and solely based on the evidence which they heard at trial. Both jurors stated that it did not. The trial judge correctly decided that the appellant had not been prejudiced in any way by this incident even though he did admit it was improper. We find no abuse of the trial judge’s discretion in overruling the appellant’s motion for a mistrial, based on this incident.

Ill

The appellant alleges that the State maintained custody of Jewel Martin on the night before she testified to insure that her testimony was favorable to the State. We find no merit to this contention.

The record clearly shows that the State believed they had to maintain custody of Martin to insure her appearance for trial. We have no knowledge of the reasons the State believed Martin would not appear for trial but in the absence of evidence to the contrary, we must believe that such existed. We find no error on this ground.

IV

The appellant’s contention that he should have been granted a new trial because Jewel Martin was coerced into testifying against the appellant is totally without merit.

At the hearing on the appellant’s motion for a new trial, Martin stated that some of the things which she testified to at trial she was forced to say. She said that the police and the district attorney told her if she did not testify she was going to jail. When asked about which parts of her testimony were untrue, Martin stated- she didn’t remember.

The trial judge held that her testimony was not credible and overruled the appellant’s motion for new trial. Since the trial judge was present during trial and also at the hearing and listened to Martin’s testimony and observed her demeanor, we feel he was in the best position to determine which portions of Martin’s testimony were to be believed.

We find no abuse of the trial judge’s discretion in his overruling the appellant’s motion for a new trial.

V

The appellant cites two cases, Cox v. State, 50 Ala.App. 339, 279 So.2d 143 (1973) and Alberson v. State, 254 Ala. 87, 47 So.2d 182 (1950) for the proposition that appellate courts must exercise a higher standard of review in death cases than in non-capital cases.

This court certainly agrees with this point as made by this appellant. The scope of review in death cases is clearly set out in Rule 45A, Rules of Appellate Procedure. It states:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

Therefore, in death cases, we must search the record for any errors which occurred during trial, that may have gone unnoticed and determine whether such, if any, of these errors were injurious to the appellant. We have examined the record in this case and we do not find any errors that have adversely affected the substantial rights of this appellant.

VI

As required by § 13A-5-53(a), Code of Alabama 1975, we have independently reviewed the sentence of death imposed on this appellant to determine whether it was the proper sentence under the particular circumstances of this case.

We do not find any evidence that the sentence was imposed under the influence of passion, prejudice or any other arbitrary factor. In view of the fact that this court has also found two aggravating circumstances and no mitigating circumstances in this case, such aggravating circumstances clearly here outweigh any mitigating circumstances. The sentence of death has been imposed in many cases in which the circumstances are similar to the facts in this case. See Bush v. State, 431 So.2d 555 (Ala.Cr.App.1982), cert. denied, 431 So.2d 563 (Ala.1983); Baldwin v. State, 456 So.2d 117 (Ala.Cr.App.1983) and cases cited therein; Luke v. State, 444 So.2d 393 (Ala.Cr.App.1983), affirmed, 444 So.2d 400 (Ala.1983).

After our review of the record, this court finds the sentence of death was proper in this case. Therefore, the judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

BOWEN, P.J., and HARRIS and SAM TAYLOR, JJ., concur.

HUBERT TAYLOR, J., dissents with opinion.

APPENDIX A

STATE OF ALABAMA IN THE CIRCUIT COURT OF PLAINTIFF, MACON COUNTY, ALABAMA AT TUSKEGEE Vb CRIMINAL ACTION CC 82-42 VARNELL WEEKS DEFENDANT.

SUMMARY OF CRIME and ORDER ON SENTENCE HEARING

Varnell Weeks, 27 years of age, abducted Mark Anthony Batts, a. Tuskegee Institute student, robbed him of his car, a 1981 Honda automobile, tied his feet and hands together, placed a pillowcase over his head, shot and killed Batts at close range through the pillowcase with a pistol. The victim was then buried in a shallow grave near the home of Weeks.

Weeks took the car and gun and fled to Ohio with a woman known as Jewell Martin. Miss Martin found Batt’s driver’s license in the ear and questioned Weeks about it. Weeks told her he had killed a Tuskegee Institute student to get his car.

During the flight in the car of Batt’s, Weeks was stopped by the East Cleveland, Ohio, police and asked for his driver’s license. Weeks gave him the license of Batts and while the officer was patting Weeks down, Weeks drew the gun which he had used to kill Batts and shot the policeman. Weeks was apprehended by the East Cleveland police and subsequently returned by the Ohio authorities for trial in Alabama.

Defendant was tried by a jury and convicted of capital murder during a robbery in the first degree on June 22, 1982.

Judgment of Conviction was pronounced by the Court. Sentence hearing was set for 9 a.m. on June 23, 1982, before the jury which had convicted Weeks.

On the 23rd day of June, 1982, the Court was informed by the attorney for the defendant that the defendant desired to waive the participation of the jury in the sentence hearing.

In open Court in the presence of his attorney, the defendant was expressly advised by the Court that he had the right to have the jury participate in the sentence hearing and advise the Court on the sentence. The defendant himself indicated to the Court that he did not want the jury to participate and he would waive participation of the jury. Further interrogation of the defendant by the Court convinced the Court that the defendant was freely waiving the right of jury participation. He indicated that the jury had done its duty and he would leave the sentence in the hands of the judge but would prefer death. The waiver of jury participation was approved by the State, the attorney for the defendant and by the Court as required by law.

Evidence was heard by the Court and the Court finds from the evidence presented at the trial and sentence hearing aggravating circumstances beyond a reasonable doubt as follows:

1. The capital offense was committed by the defendant while the defendant was engaged in the commission of a robbery in the first degree or flight after committing the robbery. The jury found the defendant guilty of the offense and the jury was justified in such finding.

2. The capital offense was especially heinous, atrocious or cruel compared to other crimes. The victim was tied by his feet, a pillowcase placed over his head. He was shot at close range through the pillowcase, killed and buried in a shallow grave all in gangland style.

The young victim must have suffered much physical pain with his feet tied so securely as to cause marks on his legs.

The emotional pain must have been great with the pillowcase over his head and tied up while worrying about what was going to happen to him and who would feed his animals at school.

The Court finds no mitigating circumstances and the defendant presents none and agrees there are none.

The aggravating circumstances clearly outweigh the mitigating circumstances and the Court is of the opinion that the death sentence should be and will be imposed. Such determination is made without consideration of the defendant’s request that the death sentence be imposed.

Ordered this 23 June, 1982.

s/William I. Byrd Circuit Judge

HUBERT TAYLOR, Judge, dissenting.

The very appearance of two jurors riding in the same automobile with the prosecuting witness is sufficient to cause inherent prejudice. This case falls within that minority of cases in which the accused should not be required to prove prejudice; the appearance of the thing itself initiates prejudice per se.

We do not know what really was discussed during the ride from the motel to the courtroom. We do know, however, two jurors who were part of deciding the ultimate fate of the accused were in personal contact with the one whose testimony sealed that fate. This conduct is not only offensive but erodes the entire process of law.

      . We must note the State has pointed out to us several cases in which the identical situation as we found in this case occurred in other states and those courts have held reversible error did not occur when the trial judge makes a finding that the appellant’s rights were not prejudiced. See People v. Wilson, 36 Cal.App. 589, 172 P. 1116 (1918); People v. Murphy, 412 Ill. 458, 107 N.E.2d 748 (1952); U.S. v. Daubner, 17 F. 793 (E.D.Wis.1883); Perry v. State, 38 Okl.Cr. 202, 259 P. 657 (1927).


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Varnall WEEKS. (Re Varnall Weeks v. State of Alabama).
    83-424.
    Supreme Court of Alabama.
    June 8, 1984.
    Rehearing Denied Sept. 7, 1984.

      Jock M. Smith, Tuskegee, for petitioner.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
   FAULKNER, Justice.

This is a death penalty case. The jury found Weeks guilty of an intentional killing during the course of a robbery, in violation of § 13A-5-40(a)(2), Code of Alabama. Weeks waived the participation of the jury in the sentencing hearing and demanded that the judge sentence him to death, a request to which the judge ultimately acceded. The Court of Criminal Appeals, 456 So.2d 395, affirmed and we granted certio-rari because the death penalty was imposed. A.R.A.P. 39(c).

The deceased, a veterinary student at Tuskegee Institute, was first reported missing after he failed to appear at school on October 1, 1981. A witness testified that he had seen Weeks near the deceased’s home on the morning of October 1. The witness noticed Weeks because he had never seen him before in the neighborhood. On October 6, the Alabama Bureau of Investigation received information that the deceased’s automobile had been recovered in East Cleveland, Ohio. The previous day a police officer in East Cleveland had stopped an automobile, subsequently determined to be the deceased’s, for making an illegal left turn. The car was being driven by Weeks. When the officer asked Weeks for a driver’s license, he produced a license bearing the name of the deceased. Weeks then shot the officer and fled. Another officer witnessed the shooting and shot and wounded Weeks as he attempted to escape. Weeks was ultimately apprehended. A pistol and a brown imitation leather jacket bearing Weeks’s brother’s name was found about ten yards from the place where Weeks was apprehended.

On October 7, Alabama Bureau of Investigation officials began a search for the deceased’s body near Weeks’s home in Tuskegee. Members of the search party found two notebooks containing materials relating to veterinary medicine in a wooded area behind Weeks’s house. Later that day, they found the victim’s body buried about one hundred feet from Weeks’s house.

A forensic scientist testified that the gun found by the East Cleveland police near Weeks when they arrested him contained a bullet with Weeks’s fingerprints on it. Another expert testified that the bullet removed from the victim’s head had been fired from the gun in question. Fingerprints belonging both to Weeks and to the victim were found on the notebooks found near the location where the victim’s body was recovered.

Jewel Martin testified that Weeks picked her up at the Astrology Club in Tuskegee on October 3. He drove her, in a car matching the description of the victim’s car, to Montgomery, where she spent the night. The next day he returned to Montgomery and the two of them drove to Cleveland. Martin testified that while en route to Ohio she found the victim’s driver’s license in the glove box of the automobile. She asked Weeks about the license and he reportedly replied that he had killed the victim.

Weeks raised the following issues in support of his petition:

' (1) Whether the trial court committed reversible error in allowing evidence to be introduced with regard to the shooting of the East Cleveland, Ohio, police officer.

(2) Whether the court erred in refusing to grant a mistrial upon learning that a witness, Jewel Martin, had been transported to the courthouse on the second day of the trial in the same car with two jurors.

(3) Whether the court should have granted a new trial based on Jewel Martin’s claim that she was coerced by the State into testifying against Weeks.

I.

Testimony Regarding The Subsequent Crime.

The trial court allowed the State to introduce evidence regarding the shooting in Ohio, the defendant’s flight from that crime, and his subsequent statements to the police in East Cleveland. The trial court allowed the testimony in order to link Weeks to the murder weapon. Since the gun was found under the porch of a third party’s house, ten yards from the place where Weeks was apprehended, the testimony about the shooting was necessary to show how Weeks happened to be near the gun and why he had a motive for hiding it. Similarly, his admission to the East Cleveland police that the jacket found with the gun belonged to his brother linked him to the gun. Weeks argues that instead of limiting the testimony to the evidence necessary to link Weeks to the gun, the trial court allowed the State to elicit detailed testimony about the shooting, Weeks’s flight from the scene of the shooting, and his statement to officers in East Cleveland.

The Court of Criminal Appeals addressed this issue and resolved it correctly. It is axiomatic that, during the trial of an accused, evidence of other crimes is not admissible if the only probative value of such evidence is to show the defendant’s propensity to commit crimes of the sort charged. The rule does not, however, exclude evidence of all other crimes, only those offered to show the accused’s bad character.

We disagree with the defendant’s suggestion that the testimony should have been limited to the evidence necessary to link Weeks to the murder weapon. Evidence of the entire course of events from the time he was stopped until he was apprehended after the shooting all tends to link Weeks to the crime in Alabama. Testimony that Weeks was stopped while driving the victim’s automobile, that he presented the victim’s driver’s license as his own, and that he reacted violently to being stopped for a minor traffic violation all circumstantially link him to the crime in Alabama and were properly admitted.

II.

Whether A Mistrial Should Have Been Granted Because Of An Improper Contact Between A Witness And Two Jurors.

On the second day of the trial a bailiff transported Jewel Martin, one of the State’s witnesses, to the courthouse in the same automobile with two jurors. At a hearing on the defendant’s motion for a mistrial the bailiff and the jurors testified that there was no conversation between Martin and the jurors and that no one in the car discussed the case. Both witnesses testified that the incident in no way affected their impartiality or their ability to decide the case based solely on the evidence.

An unauthorized contact between the jurors and a witness does not necessarily require the granting of a mistrial. It is within the discretion of the trial court to determine whether an improper contact between a juror and a witness was prejudicial to the accused. Cox v. State, 394 So.2d 103, 106 (Ala.Crim.App. 1981). The trial court conducted a proper hearing and concluded from the evidence that no prejudice resulted. We agree with the Court of Criminal Appeals that there was no abuse of discretion shown.

III.

Whether A New Trial Should Have Been Granted On The Grounds That The State Coerced A Witness Into Giving Favorable Testimony.

For reasons not disclosed, the State was apparently of the opinion that it would be necessary to take Jewel Martin, Weeks’s traveling companion, into custody in order to secure her presence at the trial. The night before she was to testify, the police took her into custody at a local lounge and took her to a motel, where she was placed in the custody of a bailiff, Dorothy Macon. Ms. Macon was under instructions to watch Ms. Martin continually during the evening to prevent her from leaving the motel. (The desire to keep Ms. Martin in her presence was apparently the cause of the witness’s being in the automobile the following morning while Ms. Macon was transporting the two jurors to the courthouse.) At some point during the night Ms. Macon apparently found it necessary to handcuff Ms. Martin to the bed in order to insure that she did not leave the motel room. At the motion for a new trial Ms. Martin complained bitterly about her treatment at the hands of those in the district attorney’s office who were responsible for her ordeal. She claimed that “some of the things I said I was forced to say.... Because they already told me, they said if I don’t testify against Yarnell [sic] Weeks that I was going to do time in prison.”

We have carefully reviewed the record of the hearing on the motion regarding Ms. Martin’s testimony. She testified that she was “threatened” and “lied to” and “bribed,” but was unable to state who had coerced her or what false testimony she was forced to give. She was asked about each attorney in the district attorney’s office individually and was never able to identify any one person as the perpetrator. She stated only that “Ya’ll threatened me.” Similarly, the court questioned her at length in an attempt to determine what portion, if any, of her testimony was inaccurate. When asked what part of her testimony was untrue, she replied “I don’t remember.”

It appears that the evidence supported a finding that Ms. Martin was coerced to testify, but there was no evidence that the State attempted to force her to testify to anything untrue or misleading. Her testimony at trial was substantially the same as the statement she gave to authorities in Ohio. The State may compel a witness in a criminal case to appear. Witnesses can even be confined if necessary to compel their presence. See § 14-6-3(4), Code of Ala. We find no error in the refusal to grant a new trial.

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

AFFIRMED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Thelonious Lowe BENNETT v. STATE.
    3 Div. 939.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.

      Laird R. Jones of Argo & Enslen, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal from judgments of conviction and sentence in two separate and distinct cases. In one case, CC-83-1370, appellant was charged in an indictment with having robbed Ben Sud-deth of one hundred and twenty-eight dollars; in the other case, CC-83-1371, he was charged in one count of the indictment with burglary of the residence of Johnny Johnson and in another count with robbery of Johnny Johnson. The two eases were consolidated on motion of the State. Although the appeal was from the judgments in both cases, appellant presents no issue as to the case in which Mr. Suddeth was the alleged victim. Therefore, we limit our discussion to the case in which Mr. Johnson was the alleged victim.

Appellee agrees, subject to an addendum, that the following Statement of the Facts contained in appellant’s brief is substantially correct.

“On or about April 29, 1983, Johnny Johnson was asleep at his residence when about 2:00 A.M. he was awakened by the sound of a fan falling over in the floor. Mr. Johnson arose from bed and found Jimmy Lee Pinkston squatting behind the refrigerator in his kitchen. Johnson grabbed Pinkston and the two men began to struggle. Pinkston called out the name ‘Slim,’ and a second man entered Johnson’s house by breaking a window out of Johnson’s door and unlocking the door from the inside. The second man aimed what Johnson testified to be a shotgun at Johnson as Jimmy Lee Pinkston ordered the second man to shoot. At no time did either intruder demand property or anything of value from Johnson. In fact, it was Johnson who initiated the physical struggle which ended in ‘Slim’s’ aiming the shotgun at Johnson and Johnson’s subsequent flight from the house.
“Johnson admitted that he was unable to identify Bennett as the man referred to as ‘Slim’ at the court hearing held at Juvenile Court but Johnson did identify Bennett as the second man who entered the house the night in question.
“The only direct evidence that a theft was committed is that Pinkston testified that he took Johnson’s pants.
“Jimmy Lee Pinkston was called to testify on behalf of the State. He testified that he had entered Johnson’s house but denied that Bennett accompanied him. The state attempted to impeach Pinkston on the basis of a prior inconsistent statement which Pinkston made to the police which incriminated Bennett. Jimmy Lee Pinkston denied that the statement offered by the State was his statement. However, the statement was admitted over Bennett’s objection. At the close of all evidence, Bennett moved for judgment of acquittal which the trial court denied.”

In addition to the facts as agreed upon by the parties, we quote the following from the testimony of the alleged victim, Johnny Johnson:

“Q. What happened then?
“A. I went off the way through the whole projects slam across Bell Street to a white lady’s house. I don’t know the address. And, she called the police.
“Q. Okay. Did you ever return to your house?
“A. Me and the police went back over there.
“Q. When you went back to the house, did you have an opportunity to look through your property?
“A. They did let me look through the house.
“Q. Okay. Did you notice if anything was missing at that time?
“A. My blue jeans containing my billfold, driver’s license, money, and car keys were missing.
“Q. And how much money was in there?
“A. Three hundred dollars was in my billfold.
“Q. Okay. Have you recovered any of this property?
“A. I haven’t seen none of it.”

Jimmy Lee Pinkston testified on call of the State. He testified that he was present in Johnny Johnson’s home on the night of the crimes for which appellant was being tried, that he (Pinkston) had been convicted of “robbery and burglary” involving “this very incident.” His testimony as to his participation and as to his conviction continued in pertinent part as follows:

“Q. You plead guilty to that, didn’t you?
“A. Yes, sir.
“Q. As a matter of fact, when you plead guilty to that, you told the judge what happened, didn’t you?
“A. Yes.
“Q. Is it a fact that you told the Judge at the time you plead guilty that Mr. Bennett was with you?
“A. I don’t remember.
“Q. You don’t remember making that statement either, do you?
“A. No, sir.
“Q. As a matter of fact, the reason you don’t remember making any of these statements, Mr. Pinkston, is because you are afraid something is going to happen to you, isn’t that true?
“A. No, sir.
“Q. You are afraid if you fink and that gets around to up there at the penitentiary or something, that something is going to happen to you?
“A. No, sir. I’m not scared.
“Q. Isn’t that the reason you are telling the lie here today?
“A. No, sir.
“Q. All right.
“MR. GUY [Assistant District Attorney]” Your Honor, at this time, we would like to offer into evidence his statement.
“MR. JONES [Defendant’s attorney]: We object. It hasn’t been authenticated.
“THE COURT: Admitted. Objection overruled.
“(WHEREUPON, State’s Exhibit Numbers Two and Three, having been previously marked, were admitted into evidence.)
“MR. GUY: No further questions.
“THE COURT: Cross-examination.
“MR. JONES: I don’t have any questions.
“THE COURT: Okay. Step down. Call your next witness.”

Appellant challenges the admission in evidence of State’s Exhibits 2 and 3 by a short argument that is captioned as follows:

“The Trial Court erred in admitting into evidence Jimmy Lee Pinkston’s statement because the statement was not authenticated and the statement was offered to impeach the State’s own witness.”

Appellee responds in its brief to the quoted contention of appellant by arguing in effect that the only objection of defendant to the introduction in evidence of State’s exhibits 2 and 3 was that the exhibits had not been “authenticated” and that the State’s inquiry of its own witness as to previous statements made by him “was simply making an attempt to refresh the witness’ recollection and allow him to correct his testimony,” and that there is no merit to appellant’s contention that State’s exhibits 2 and 3 had not been authenticated. State’s exhibits 2 and 3 purport to be two pages of a typed “statement taken by A.F. Blankenship, investigator of Jimmy Pinkston,” State’s Exhibit 2 being the first page thereof and State’s Exhibit 3 being the second page thereof. Each page purports to bear the signature of A.P. Blankenship and the signature of Jimmy Pink-ston. We quote the first few questions and answers found in the statement:

“In your own words tell me of the events which took place on 04-29-83.
“We were standing out on the corner there at Bibb Graves. About 2:00 AM me and Slim decided to walk down to Johnny’s house. We went to the back door you know and we opened the back door with a knife. We went in and we seen him sleeping. I kicked the fan over. I went over to the refrigerator and I opened it up and took some beer out of there. I heard him get up out of the bed. When I heard him come out I got over beside the refrigerator and squatted down. First he went into the living room and then he walked into the kitchen. Then he came on into the kitchen and I stood up. He saw me and then he grabbed me by the wrist. When I hollered at Slim he came and Johnny ran out the back door. We ran out the back and I ran no Johnny ran out the back and I ran into the bedroom. Slim ran out the front. I got a pair of pants from up under the mattress. I took the beer and the pants from under the mattress and ran out of the front door. Me and Slim joined up on Bibb Graves and went to 15 Eugene Street.
“Q. Who is Slim that you keep referring to?
“A. I think it is Theo something Bennett. I’m not sure about the first name but his last name is Bennett and they call him Jap.”

The questions and answers on the second sheet, State’s Exhibit 3, are as follows:

“Q. When you took the pants what was in the pants?
“A. 620.00 dollars.
“Q. How much of the 620.00 dollars did you get?
“A. 310.00 dollars.
“Q. Where is the money now?
“A. The money is gone. I spent it. I bought a pair of pants and a shirt down at Dungaree Fashions and I lost the rest in a crap game.
“Q. Did any glass get broke while this incident took place?
“A. The front door window got knocked out when Jap came in when I called him.
“Q. What kind of shotgun did you have?
“A. It wasn’t a shotgun it was a stick.
“Q. Did you use it in such a way as to make Johnson think it was a gun?
“A. I didn’t have nothing. Jap had the stock.
“Q. Do you have anything to add or delete from this statement?
“A. No sir.”

That State’s Exhibits 2 and 3 purportedly signed by Jimmy Pinkston were materially contradictory of the testimony of Jimmy Pinkston is clear. In our opinion, the State was entitled to show that it was surprised by the testimony of its witness and was entitled to show by the witness, if it could do so by admissible evidence, his materially contradictory statement. Prior to the introduction in evidence of State’s Exhibits 2 and 3, the witness had been shown the exhibits and had said that some of it was true and that some of it was not true. In an effort to clarify the situation, the trial court conducted a hearing out of the presence of the jury, in which the witness was given an opportunity to explain or rationalize, if he could, the obvious conflict between his testimony and some of the contents of'State’s Exhibits 2 and 3, which was concluded as follows:

“BY MR. JONES [Defendant’s attorney]:
“Q. Is that statement your statement or was it somebody else’s statement that— and they made you sign it?
“A. I don’t know where the statement — the police statement, where it came from.
“Q. Did you read it before you signed it?
“A. I read it, but all of it isn’t true.
“Q. Did you sign it?
“A. I don’t know where all of that typing came from. Some is added to it or something.
“Q. Did you read it before you signed it?
“A. Yes, sir.
“Q. Is it the same thing that was there when you read it?
“A. Not all of it.
“Q. What is different?
“A. It was different about him coming in the door breaking the window with a shotgun and all of that. That isn’t true.
“Q. What about the part that asks who was with you and you said that it was a guy by the name of Theo, you think, Bennett. They call him Jap. Did you say that?
“A. No, sir.
“THE COURT: Okay. You can cross-examine when he comes back. Let me ask you this: are you saying that you don't remember telling me that Thelonious Lowe Bennett was outside with his shotgun, broke the window, and when you plead guilty—
“MR. GUY [State’s attorney]: Back on the 29th of August.
“THE WITNESS: No.
“THE COURT: All right. Bring the jury back in you can continue examining him.
“THE COURT: Wait a minute.
“(WHEREUPON, the following proceedings occurred outside the presence and hearing of the jury:)
“THE WITNESS: Do I have to say anymore?
“THE COURT: You have to answer the questions that the lawyers ask you.
“THE WITNESS: Well, I have done said all I have to say.
“THE COURT: Bring the jury out.
“WHEREUPON, the following proceedings occurred within the presence and hearing of the jury:)”

Our review of the entire transcript convinces us that the proffer of State’s Exhibits 2 and 3 was subject to the objection made by defendant’s attorney that the particular two-page document “hasn’t been authenticated,” and the trial court was in error in overruling defendant’s objection to such evidence. Nevertheless, whether it constituted error prejudicial to defendant deserves additional consideration, which we now give to the issue.

Before the State rested its case, it called, as a witness, Investigator A.F. Blankenship, the same investigator who had signed State’s Exhibits 2 and 3, which were shown him while he was testifying. With specific reference to the exhibits, he testified:

“Q. Did you have an opportunity to go over that statement with Mr. Pinkston?
“A. Before he signed at the bottom, my personal procedure that I do is before I allow him to sign at the bottom, they have to read the entire statement, they have to agree to it, and then they have to sign at the bottom after reading the statement which says that they hereby affirm that the facts and description are true.
“Q. So you allowed him to go over that?
“A. That’s correct.
“Q. And he signed it at the bottom?
“A. Yes.
“Q. Did you put anything in here that he didn’t say?
“A. I tried as best as humanly possible to type exactly what he told me as he told me.”

During intensive cross-examination, Officer Blankenship said that Jimmy Lee Pinkston, when first apprehended, denied any participation in the alleged crimes but soon thereafter, after his rights had been explained to him, “The statement that you see before you is the story that he gave us at that time.” Although the evidence is not as clear as it should be as to the authenticity of State’s Exhibits 2 and 3, it cannot be seriously questioned that they were authenticated by the testimony of Investigator Blankenship, which cured and made harmless and non-prejudicial the error in overruling defendant’s objection to State’s Exhibits 2 and 3 on the ground that they had not been authenticated.

In the only other issue presented in appellant’s brief, he contends that the trial court “erred in denying” defendant’s “motion for judgment of acquittal on the robbery count in the case in which Johnny Johnson was the alleged victim.” We do not agree with the argument in appellant’s brief to the effect that the threatened violence on the part of this appellant in aiming a shotgun at Johnson was “in order to extricate Pinkston from Johnson’s grasp.” The evidence was sufficient to warrant a finding that this appellant’s conduct in aiming the shotgun at Johnson was also for the purpose and “in the course of committing a theft.” Nor do we agree with appellant’s argument that the fact that “all violence had ceased” at the time of the commission of the theft prevented such violence from meeting the specific requirement of Alabama Criminal Code § 13A-8-43 that to constitute robbery the force of violence exercised or threatened must be “in the course of committing a theft.” The trial court was correct in denying defendant’s motion for a-judgment of acquittal.

The judgments of conviction and sentence in both of the cases under consideration should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All Judges concur.


author: BOWEN, Presiding Judge.

text:
    Daryl Dewayne LEWIS v. STATE.
    6 Div. 244.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.

      Gary Pears, Yestavia Hills, for appellant.
    Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

On August 9,1982, Lasker B. Tapley was robbed of $304.66 and shot to death at the Trackside Service Station in Birmingham, which he managed. Daryl Dewayne Lewis was indicted for the capital offense of murder during a robbery in the first degree. Alabama Code 1975, § 13A-5-40(a)(2). A jury found him “guilty of the capital offense as charged in the indictment.” After Mr. Tapley’s wife and son testified that because of their Christian heritage and beliefs they did not want Lewis to receive the death penalty, Lewis waived a sentencing hearing before the jury. The trial judge then sentenced Lewis to life imprisonment without parole. Two major issues are raised on appeal.

I

Lewis presents four objections to the closing argument of the Assistant District Attorney:

A. He argues that the prosecutor attempted to intimidate the jury by stating that they would have to reconcile their verdict with the victim’s family. During his closing argument, the prosecutor stated:

“And, sure, we contend that this man committed a robbery from the evidence in this case. But if you think that that’s all he did, then maybe you’d better just look at this and let’s get the stark realization.
“We’ve got a man out there, and he’s dead. And right now, from the pictures, we’ve got probes in his arms and in his belly. And if you think he’s just guilty of robbery, you’d better be able to reconcile with yourself and with that family what’s Lasker Tapley doing dead out there.
“MR. PEARS [Defense Counsel]: Your Honor, we’re going to object for the record, that the jury is going to have to reconcile anything with the Tapley family-
“THE COURT: Sustained. Disregard it, ladies and gentlemen.
“MR. PEARS: Your Honor, we would move for a mistrial on that ground. “THE COURT: Overruled.”

We find no error in the refusal of the trial judge to grant the requested mistrial. “A motion for a mistrial should not be granted where the prejudicial qualities of the comment can be eradicated by action of the trial court.” Nix v. State, 370 So.2d 1115, 1117 (Ala.Cr.App.), cert, denied, Ex parte Nix, 370 So.2d 1119 (Ala.1979).

Windom v. State, 18 Ala.App. 430, 93 So. 79, cert, denied, Ex parte Windom, 208 Ala. 701, 93 So. 924 (1922), involved a murder prosecution wherein the prosecutor urged the jury to consider the victim’s wife and children in reaching its verdict. That comment did not constitute reversible error.

“In the course of his closing argument to the jury, the solicitor said:
“ ‘In reaching your verdict you should consider the widow of George Black and his orphan children.’
“The bill of exceptions recites:
“ ‘The defendant then and there objected to the statement of the solicitor’, etc. “But no motion was made to exclude the remark. An isolated remark, such as the above, made in the course of an argument in a murder case, where the widow and children of the deceased had testified, without more, does not show such an impassioned appeal to the prejudice of the jury as to constitute reversible error. Besides, no motion was made to exclude the remark of the solicitor, ...” Windom, 18 Ala.App. at 433, 93 So. 924.

We find no element of intimidation present in prosecutor’s comment in this case.

B. Lewis also argues that the prosecutor improperly “educated” the jury on the complicity laws of Alabama.

In his argument to the jury, defense counsel admitted that Lewis was “accountable for the robbery” but denied any complicity in the murder. Defense counsel explained to the jury how Lewis could not be considered an accomplice or co-conspirator in the murder of Mr. Tapley. In rebuttal, the prosecutor argued the explanation he thought the trial judge would give on the law of complicity. Defense counsel raised no objection to the prosecutor’s statements of the law at trial and, hence, has preserved nothing for review. Jones v. State [Ms. 83-431, May 11, 1984] (Ala.1984); Embrey v. State, 283 Ala. 110, 120, 214 So.2d 567 (1968).

On appeal, Lewis does not argue that the prosecutor misstated the law. He merely contends that arguing the law to the jury was improper.

There was nothing objectionable in the prosecutor’s comments on complicity. “Counsel may argue law generally to the jury, subject to the control and guidance of the trial court.” Crowe v. State, 435 So.2d 1371, 1382 (Ala.Cr.App.1983). “(I)t is the right of counsel under the guidance of the court to discuss the rules of law applicable to different phases of the testimony.” Van Antwerp v. State, 358 So.2d 782, 788 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978). A trial judge may properly allow a district attorney to comment in his opening statement and closing argument on the principles of conspiracy, aiding and abetting, and principal and accessory. Clements v. State, 370 So.2d 708, 713 (Ala.Cr.App.1978), affirmed as to this issue, reversed on other grounds, 370 So.2d 723 (Ala.1979).

C. It is also argued that the prosecutor argued that Lewis used a shotgun during the course of this robbery-murder when there was no evidence of such.

The objectionable remark and the response it elicited appear in the record as follows:

“[Assistant District Attorney:] When you go into a store with loaded guns and you say you’re going to rob, if there is a killing, that is the proximate result. You don’t take that gun in there to pick your nose.
“MR. PEARS: Your Honor, we’re going to object to the D.A.’s characterization of a loaded gun. It’s arguable that there may or may not have been a shotgun. But never once in this trial has there ever been evidence to show there was a loaded shotgun.
“THE COURT: Sustained.
“MR. PEARS: And I would ask—
“THE COURT: Ladies and gentlemen, let me instruct you one thing: The statement of these lawyers, any one of the three lawyers, is not evidence in this case. You are not to consider those statements as evidence. The only evidence that you will consider in this case came from this witness stand. And as to what that evidence was, I’ll leave it up to your individual recollection.
“Go ahead, Mr. Cahill.
“MR. PEARS: Thank you.”

The judge’s instructions to disregard and to consider only the evidence that came from the witness stand raises a prima facie presumption against error prejudicial to the defendant. Chambers v. State, 382 So.2d 632, 635 (Ala.Cr.App.1980), cert. denied, Ex parte Chambers, 382 So.2d 636 (Ala.1980).

Additionally, there was evidence that Lewis, armed with a shotgun, entered the Trackside Station with the triggerman, Kenneth Davis, who was carrying a loaded .22 caliber pistol. In a statement to the police, Lewis admitted that he had a shotgun when he went in the station. Although there was no testimony that the shotgun was loaded, the prosecutor’s argument that the robbers went into the station with “loaded guns” is a reasonable inference from the evidence. We know that one of the “guns” was, in fact, the murder weapon. The statute defining robbery in the first degree establishes a presumption that any firearm is a deadly weapon for purposes of bringing the offense within the statute. Carter v. State, 420 So.2d 292, 294 (Ala.Cr.App.1982); Alabama Code 1975, § 13A-8-41. “[I]t was unnecessary for the State to prove the gun was ‘operable and/or loaded.’ ” Carter, supra.

D. We have considered the cumulative effect of these arguments and conclude that they did not create an atmosphere of passion or prejudice. Sprinkle v. State, 368 So.2d 554, 560 (Ala.Cr.App.1978), cert. quashed, 368 So.2d 565 (Ala.1979). Our review of the entire argument of the Assistant District Attorney convinces us that his comments were within the bounds of proper argument based on the evidence and the legitimate and reasonable inferences to be drawn therefrom.

II

“[N]o defendant is guilty of a capital offense unless he had an intent to kill, and that intent to kill cannot be supplied by the felony murder doctrine. Beck v. State, 396 So.2d 645, 662 (Ala., March 6, 1981)”; Carnes, Alabama’s 1981 Capital Punishment Statute, 42 Ala.Law. 456, 468 (1981). See also Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), but see Godbolt v. State, 429 So.2d 1131, 1134 (Ala.Cr.App.1982), holding that Enmund is inapplicable to a defendant who does not receive the death penalty. However, a non-triggerman can be convicted of a capital offense if he was a knowing accomplice to the intentional killing itself. Ritter v. State, 375 So.2d 270 (Ala.1979). “[T]he accomplice liability doctrine may be used to convict a non-triggerman accomplice, if, but only if, the defendant was an accomplice in the intentional killing as opposed to being an accomplice merely in the underlying felony.” Ex parte Raines, 429 So.2d 1111, 1112 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983).

Alabama’s 1981 capital punishment statute under which Lewis was convicted “provides that a defendant who does not personally commit the intentional killing which is part of the capital offense is nonetheless guilty of it and can be convicted of the capital offense, if that defendant intentionally promotes or assists in the commission of the intentional killing which is actually done by another.” Carnes, 42 Ala.Law. at 471.

Our duty on appeal was stated in Raines, 429 So.2d at 1113. “To affirm a finding of a ‘particularized intent to kill’, the jury must be properly charged on the intent to kill issue, and there must be sufficient evidence from which a rational jury could conclude that the defendant possessed the intent to kill.”

The jury was given proper instructions on the “intent to kill requirement.” Womack v. State, 435 So.2d 754, 763 (Ala.Cr.App.), affirmed, Ex parte Womack, 435 So.2d 766 (Ala.1983). The trial judge explained the doctrine of felony murder and that it could not be included as a component part of the capital charge. He stated that the jury must find the existence of an intentional killing. He defined the law of conspiracy and charged that the jury must find that Lewis was “legally accountable for the behavior and act of Kenneth Davis” before they could convict of the capital charge. The judge instructed the jury, as requested by Lewis, that the defendant’s mere presence at, the scene of the crime and that his failure to raise a hue or cry for help do not necessarily constitute complicity by the defendant in the murder. The only two instructions requested by Lewis were given. Defense counsel stated that he had no exceptions to the judge’s instructions, and therefore he preserved nothing for review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), cert. denied, Ex parte Allen, 414 So.2d 993 (Ala.1982). Since this is not a case “in which the death penalty has been imposed”, this Court is not required to “notice any plain error or defect in the proceedings under review.” Rule 45A, A.R.A.P. Although the judge’s charge did not use the “most helpful language possible”, United States v. Rosa, 705 F.2d 1375, 1380-81 (1st Cir.1983), his instructions on intent did not constitute plain error, because what he did state was not improper, because it was made clear that the jury could not use the felony-murder doctrine to supply the intent necessary for a capital offense, and because no clarifying or additional instructions were requested. The judge’s failure to give a clearer or more exhaustive charge on the particularized intent to kill falls far short of rising to the level of a “particularly egregious error” that would result in a miscarriage of justice if a reversal were denied. Womack, 435 So.2d at 769.

Here, there was sufficient evidence from which a rational jury could conclude that Lewis possessed the intent to kill.

In his confession, Lewis admitted that he was a willing participant in the robbery, that he helped plan it, and that he was armed with a borrowed shotgun when he and Davis entered the gasoline station. Lewis claimed that Davis shot Mr. Tapley because he recognized Davis. Lewis also stated that Tapley “could a knowed me, I wouldn’t kill him, I really don’t, my heart ain’t that strong.” The fact that Lewis was armed with a shotgun supplies a legitimate inference that he intended to use it during the commission of the robbery under the circumstances of this case. Before Mr. Tapley died, he told a customer, who arrived shortly after the shooting, that “they shot me.” The .22 caliber pistol, the actual murder weapon, was hidden and located at Lewis’ sister’s house, with Lewis’ cooperation. Lewis received a share of the money taken in the robbery. “Whether a non-triggerman aided and abetted the actual killing itself, such as by being present to render assistance in the killing itself if it becomes necessary, will almost always be a jury question.” 42 Ala.Law. at 469. See also Tomlin v. State, 443 So.2d 47, 53 (Ala.Cr.App.1979), affirmed, Ex parte Tomlin, 443 So.2d 59, 64 (Ala.1983).

Our review of this appeal convinces us that the judgment of the circuit court is due to be affirmed.

AFFIRMED.

All Judges concur.


author: McDONALD, Justice. ADKINS, Justice, OVERTON, Justice,

text:
    STATE of Florida, Petitioner, v. Charles L. BAKER, Respondent. Charles L. BAKER, Petitioner, v. STATE of Florida, Respondent.
    Nos. 63269, 63135.
    Supreme Court of Florida.
    July 12, 1984.
    Rehearing Denied Oct. 22, 1984.
    Jim Smith, Atty. Gen., Shawn L. Briese and Sean Daly, Asst. Attys. Gen., Daytona Beach, and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for petitioner/respondent.
    Nancy Little Hoffmann and Cathy Jackson Burris of the Law Offices of Nancy Little Hoffmann, Fort Lauderdale, for respondent/ petitioner.
   McDONALD, Justice.

We have for review Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982), because of conflict with Borges v. State, 415 So.2d 1265 (Fla.1982). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and approve the part of Baker dealing with opinion testimony, but quash the rest of that decision.

An indictment charged Baker with first-degree premeditated murder and use of a firearm during the commission of a felony. The jury convicted him of both counts, and the trial court sentenced him for both. On appeal the district court reversed the sentence for the firearm conviction.

Baker argued to the district court that the use of the firearm was a Brown v. State, 206 So.2d 377 (Fla.1968), category four lesser included offense of the first-degree premeditated murder. The district court agreed with his contention and framed the question presented to it as

whether or not the language of section 775.021(4), in its reference to “lesser included offenses” is limited to necessarily included offenses or also includes a lesser offense encompassed by the charging language of the greater offense for which a defendant has been convicted and sentenced.

425 So.2d at 39 (emphasis in original). Deciding that this Court had never answered that question, the district court held that a Brown category four lesser included offense was within the meaning of “lesser included offense” as used in subsection 775.021(4), Florida Statutes (1979). We disagree and hold that the statutory language refers only to necessarily lesser in-eluded offenses and that the Brown category four lesser included offense analysis, while still possibly viable for jury alternatives, has nothing to do with double jeopardy. In determining whether separate convictions may flow from a single event one looks at the statutory elements of the charged crimes, as opposed to the language of the charging document. If each crime, under the respective statutes, requires an element of proof that the other does not, then one is not an included offense of the other. They are separate offenses.

In Brown this Court considered the problem of jury instructions on lesser included offenses. Writing for the Court, Justice Thornal analyzed former sections 919.14 and 919.16, Florida Statutes (1965), and found those statutes suggested four categories of lesser included offenses:

(1) Crimes divisible into degrees.
(2) Attempts to commit crimes.
(3) Offenses necessarily included in the offense charged.
(4) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.

206 So.2d at 381 (emphasis in original).

Categories one and two are self-explanatory. In category three “the lesser offense must be an essential aspect of the major offense.” Id. at 382. The necessity for giving instructions on category one through three offenses is obvious. These categories of lesser included offenses implement “the nonconstitutional right of ... giving the jury an opportunity to find the accused guilty of an offense lesser in severity of punishment than that with which he was charged.” Baker, 425 So.2d at 53 (Cowart, J., dissenting). Jury pardons are the province of the jury, and a trial court is not permitted to invade that province. Brown.

The inclusion of category four in Brown extended this principle of law to the elements contained in the accusatory pleading. As the Court stated in Brown:

Section 919.16, [sic] makes provision for offenses which are necessarily included in the offense charged. It is applicable to that group of offenses which includes lesser offenses as essential elements. This suggests a further type of “lesser included” situation. This fourth category comprehends those offenses which may or may not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at the trial. In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, albeit such lesser offense is not an essential ingredient of the major offense alleged. If the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense. If the allegata and probata are present then there should be a charge on the lesser offense.

206 So.2d at 383 (emphasis in original). Former section 919.16, however, concerns “any offense which is necessarily included in the offense charged.”

As Judge Cowart pointed out in his dissent to Baker, Brown’s category four is likely derived from the single transaction rule. Subsection 775.021(4), however, abolished that rule. Borges v. State, 415 So.2d 1265 (Fla.1982). The focus on the common elements of two or more crimes is another erroneous way of thinking in terms of the single transaction rule. “Since proof overlaps only when two crimes arise out of a single factual event (single transaction), this means that mere commonalty [sic] of some events occurring in the same factual transaction does not constitute double jeopardy.” 425 So.2d at 51 n. 25.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court considered whether a single act could result in multiple punishments and stated:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Id. at 304, 52 S.Ct. at 182. The Court later explained the Blockburger test:

As Blockburger and other decisions applying its principle reveal, the Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.

Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975) (citations omitted). Blockburger “means that two statutory offenses are essentially independent and distinct if each offense can possibly be committed without committing the other offense.” 425 So.2d at 50 (Cowart, J., dissenting) (emphasis in original). The Block-burger test is a rule of statutory construction which “should not be controlling where, for example, there is a clear indication of contrary legislative intent.” Alber naz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981).

In Borges v. State we held that separate convictions and sentences did not violate the double jeopardy clause. We relied on Albernaz to reach the conclusion that

where the legislature has expressed its intent that separate punishments be imposed upon convictions of separate offenses arising out of one criminal episode, the Double Jeopardy Clause is no bar to such imposition.

415 So.2d at 1267. Shortly after Borges, we acknowledged the Iannelli explanation of Blockburger: “In applying the Block-burger test the courts look only to the statutory elements of each offense and not to the actual evidence to be presented at trial or the facts as alleged in a particular information.” State v. Carpenter, 417 So.2d 986, 988 (Fla.1982) (emphasis supplied). Judge Cowart echoed this in Baker:

Since the relationship between a greater offense and a permissibly lesser included offense depends only on pleading techniques and proof, and not on the law, this relationship constitutes no logical basis upon which to distinguish between offenses for the purpose of determining if they are constitutionally “the same offense.”

425 So.2d at 54 (footnote omitted). Looking at the evidence and the alleged facts, however, is exactly what is required when dealing with a Brown category four lesser included offense.

“Lesser included offense” in regard to jury alternatives is different from what that term means in regard to double jeopardy. The former implements the nonconsti-tutional right of an accused to an instruction which gives the jury an opportunity to convict of an offense with less severe punishment than the crime charged. The latter, on the other hand, involves distinguishing offenses in order to protect against multiple prosecutions for the same crime. As stated by Judge Cowart:

Attributing category four connotations to the term “lesser included offenses” in double jeopardy analysis results in an improper consideration of the severity of the punishment and the factual allegations in [the] charging document, rather than [of] the elements of the statutory] offense.

425 So.2d at 53. Brown category four lesser included offenses have nothing to do with double jeopardy or with this case.

Baker’s indictment charged him with first-degree premeditated murder, section 782.04, Florida Statutes (1979), and with use of a firearm during the commission of a felony, section 790.07, Florida Statutes (1979). The statutory elements of first-degree premeditated murder are: (a) the unlawful (b) killing (c) of a human being (d) when perpetrated from a premeditated design to effect the death of the person killed or any human being. § 782.-04(1). The statutory elements of use of a firearm during commission of a felony are: (a) while committing or attempting to commit any felony, (b) displaying, using, or threatening or attempting to use any firearm or carrying a concealed firearm. § 790.07(2). These crimes have no elements in common.

Use of a firearm during the commission of a felony is not a lesser included offense of first-degree premeditated murder, and Baker could be convicted of and sentenced for each of these crimes. The district court, therefore, erred in reversing his sentence for the firearm conviction. We hold that Bell v. State, 437 So.2d 1057 (Fla.1983), is limited to necessarily lesser included offenses and quash the part of Baker dealing with that point. We find no error in the district court’s holding regarding opinion testimony and approve that paragraph of Baker.

It is so ordered.

BOYD, C.J., and ALDERMAN, EHRLICH and SHAW, JJ., concur.

ADKINS and OVERTON, JJ., dissent with an opinion.

ADKINS, Justice,

dissenting.

I would follow the views expressed in Bell v. State, 394 So.2d 979 (Fla.1981).

OVERTON, Justice,

dissenting.

I dissent. If an offense is a lesser included offense for which a jury must be instructed, then it is neither reasonable nor logical to allow a defendant to be charged separately for that lesser included offense as an independent offense. In my view, the holding of the majority raises serious equal protection problems. Further, I find that the majority has clearly indulged in judicial legislation by interpreting the words “lesser included offenses” in section 775.021(4), Florida Statutes (1979), to mean “necessarily lesser included offenses.”

The majority opinion has never explained how this decision and our approved table of lesser included offenses must be reconciled and applied. I am particularly concerned that there is no discussion in the opinion of how the principles adopted therein will be applied under the two consolidated categories of lesser included offenses we adopted in In re Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981). In discussing Brown v. State, 206 So.2d 377 (Fla.1968), the majority fails to explain the proper application of the present table of lesser included offenses. The comment to the table of lesser included offenses states:

[T]he supreme court also approved the schedule of lesser included offenses and accepted the recommendation of the committee to consolidate the four Brown categories into two categories. The supreme court directed that the categories should be renumbered and designated as follows:
1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses
2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses
The court also directed that the appropriate Florida Rules of Criminal Procedure be amended to accommodate these changes. The categories of the offenses which appear on the schedule of lesser included offenses have been renumbered and designated according to the supreme court mandate.

Fla. Std. Jury Instr. in Crim. Cases 257 (S.Ct.Comm.1981).

Under the present law, if evidence is presented to justify a permissive lesser included offense, the trial judge has no choice and must instruct on the lesser included offense, the same as the trial judge has no choice and must instruct on a necessarily lesser included offense. The majority, however, is apparently approving a procedure whereby, if a defendant is charged separately with a permissive lesser included offense, then that offense can no longer be presented to the jury as a lesser included offense. The result is that the jury may find the defendant guilty of both the primary offense and the permissive lesser included offense and the defendant may be sentenced for both. However, if a defendant is not charged separately, then such a defendant would be entitled to a jury instruction on the permissive lesser included offense when the evidence justifies such a charge. In this latter situation, the defendant can be found guilty of only one offense, either the offense charged or the lesser included offense, and sentenced accordingly. In my view, this presents a clear equal protection issue because two defendants guilty of identical conduct may, because of this procedural interpretation, be treated and sentenced entirely differently.

I fail to see how there can be any logical application of the present table of lesser included offenses under the rule of law the majority has adopted. It appears that we are going back to the rule that degrees of crimes are always necessarily lesser included offenses. The majority states: “li each crime, under the respective statutes, requires an element of proof that the other does not, then one is not an included offense of the other. They are separate offenses.” (Emphasis added.) It appears to me that under this principle of law, all defendants could be convicted and sentenced separately for an “attempt” if the attempt is charged separately since attempts are always permissive lesser included offenses and they apparently fall within the majority’s definition of separate offenses because the primary offense has an element of proof which is not required for the lesser included offense of “attempt.” This is illustrated by the situation in which a defendant is charged with grand larceny and attempted grand larceny. Larceny requires the taking of - property of another. Attempted grand larceny does not require a taking. Consequently, each of those crimes has an element of proof that the other does not and, under the definition, the crimes are “separate offenses subject to separate convictions and sentences.” The majority opinion will raise significant questions as to how the present table of lesser included offenses should be used. This Court recently stated in Bell v. State, 437 So.2d 1057 (Fla.1983), that “the explicit exclusion of lesser included offenses in section 775.021(4) makes clear that the legislature does not intend separate convictions and punishments for two or more statutorily defined offenses when in fact only one crime has been committed.” Id. at 1058. I cannot reconcile that holding with the majority opinion in this case which does not attempt to distinguish Bell. Our decisions in this area of the law are inconsistent and confusing to say the least. I am deeply concerned that we have made a shambles out of the approved table of lesser included offenses. More important, I find the majority holding results in an equal protection violation of the fourteenth amendment to the United States Constitution and a violation of article I, section 2, of the Florida Constitution. In my view, a permissive lesser included offense which is established by the evidence is entitled to the same consideration as a necessarily lesser included offense. There is no reason or justification to hold otherwise.

      .§ 775.021(4), Fla.Stat. (1979), provided as follows:
      (4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

      . We do not address this issue in this case.

      . Ch. 70-339, Laws of Fla., repealed these sections. Similar provisions are now located in Fla.R.Crim.P. 3.490 and 3.510.

      . In re Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981), replaced the four Brown categories with two categories of lesser offenses.

      . § 919.16, Fla.Stat. (1965), provided:
      Conviction of attempt; conviction of included offense. Upon an indictment or information for any offense the jurors may convict the defendant of an attempt to commit such offense, if such attempt is an offense, or convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.
      (Emphasis supplied.)

      . This Court adopted former § 919.16 as Fla.R. Crim.P. 3.510 in 1972. In re Florida Rules of Criminal Procedure, 272 So.2d 65, 118 (Fla. 1972).

      . The legislature amended § 775.021(4) in 1983 to adopt the Blockburger test. That subsection now reads:
      (4) Whoever, in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

      (Emphasis supplied.)