text:
    Jimmy Don PATTERSON v. Lynn Patterson GARTMAN.
    Civ. 3834.
    Court of Civil Appeals of Alabama.
    Sept. 21, 1983.

      Sherman B. Powell, Jr., Decatur, for appellant.
    Norman Roby, Decatur, for appellee.
   BRADLEY, Judge.

The parties to this appeal were divorced in 1979 and the custody of their two children was awarded to the mother. The father was ordered to pay $70 a week as child support for the two children, and he was awarded reasonable visitation privileges.

In January 1981 the father was ordered to pay $1,200 in monthly installments of $100 to the mother for child support arrear-age and he was given more specific visitation privileges with his children, including three weeks during the summer.

In January 1983 the father filed a petition seeking a reduction in his child support payments on the ground that he was not working and could not pay $70 a week. The mother counterclaimed by asking that the father be held in contempt for failure to pay child support and causing her to lose an automobile that she had been awarded in the divorce decree.

After an ore tenus hearing, the trial court found the father in contempt for failing to pay child support in the amount of $1,670, found that the father had been able to pay the child support had he but tried, and gave the father sixty days to pay the arrearage. No other sanction was imposed. The court also awarded the mother $295 as the value of the automobile she lost and denied the father’s request for a reduction in child support and his request for a more specific visitation schedule. The father appeals the denial of his petition for modification and the order holding him in contempt for failing to pay $1,670 in child support.

The father argues here that he is out of work, has very few assets, has filed a petition in bankruptcy, and that he cannot pay the child support arrearage and should not have been held in contempt.

The evidence shows that the father is a pipefitter and earned $24,000 in 1979, $15,-000 in 1980, $9,000 in 1981, and $11,000 in 1982. The father stated that he has not worked since June 1982, although he has looked for work in many places but has not been able to secure work as a pipefitter. He says that he is behind in his mobile home payments and fears the mobile home will be repossessed. His only other asset is a 1968 automobile worth about $400.

Review of a judgment of contempt is by way of certiorari if the contemnor is not in jail, not by appeal. Foster v. Foster, 409 So.2d 833 (Ala.Civ.App.1981). Scope of review in contempt eases is limited to questions of law and does not extend to the weight and sufficiency of the evidence but only to whether the decree is supported by some evidence. Matthews v. Matthews, 404 So.2d 692 (Ala.Civ.App.1981). Although the father has not used the proper vehicle for review of his contempt citation, we can and will consider his appeal as a request for certiorari in order to review his argument. Wilson v. Freeman, 376 So.2d 1096 (Ala.Civ.App.1979), cert. denied, 376 So.2d 1099 (Ala. 1979).

Inability to comply with a child support decree or noncontumacious failure to so comply, if proven to the court’s satisfaction, will avoid a finding of contempt. Cooper v. Cooper, 401 So.2d 99 (Ala.Civ.App. 1981). The father testified that he had not worked since June 1982, was about to lose his mobile home because he could not make the mortgage payments, and had no assets other than a $400 automobile; yet, he earned $11,000 in 1982.

Although the father, at times, seems to be arguing that he is presently unable to pay the arrearage of $1,670 established by the trial court, he clearly states the issue in brief to be that the trial court erred in holding him in contempt for not paying the child support when it became due. Moreover, this appears to be the basis of the trial court’s judgment because it found that the father had been able to make the payments but had failed to do so. We believe the evidence in the record supports such a finding.

The father’s next contention is that the trial court erred by not terminating or reducing the child support payments he had been ordered to make in the divorce decree.

The modification of a child support decree based on changed circumstances is within the sound discretion of the trial court, and its judgment will not be reversed except for a plain abuse of that discretion. Williamson v. Williamson, 391 So.2d 115 (Ala.Civ.App.1980). The burden of establishing the conditions authorizing a modification of a child support decree rests on the moving party. Taylor v. Taylor, 418 So.2d 148 (Ala.Civ.App.1982).

The standard for setting child support is the needs of the children compared with the ability of the parent to respond to those needs. Williamson v. Chappell, 408 So.2d 134 (Ala.Civ.App.1981). The father submits that he is presently unable to respond to the needs of his children because he is out of work. The evidence shows that the father has been out of work for about one-half of the year 1982, yet he earned $11,000 during that year. The arrearage occurred in 1982, while he was out of work, and amounts to $1,670. The trial court could have concluded that the father could have paid the child support out of the $11,-000 he earned in 1982.

The father testified in support of his position that he is a pipefitter and belongs to a union. For the last six months he has contacted his union about jobs in many different places. Based on the evidence in the record, the trial court could have concluded, however, that the father had sought work only as a union pipefitter and had not attempted to obtain other type work. There was nothing in the record to indicate that the father could not do other kinds of work. Moreover, the ability to work and earn as opposed to actually working is a factor for the trial court to consider along with all the other evidence in the record. Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979), cert. denied, 378 So.2d 1118 (Ala.1980). We find no reason to say that the trial court abused its discretion in refusing to terminate or reduce the child support payments.

Lastly, the father says that the trial court erred in refusing to more specifically prescribe the times of his child visitation. He says that he is presently allowed “reasonable rights of visitation” and this schedule has not been satisfactory.

A prior decree gave the father three weeks in the summer and other specified visitation times and places. The trial court has wide discretion in the settlement of visitation rights for the noncustodial parent. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980). And each case must be decided on its own peculiar facts and personalities. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967). We do not find that the trial court abused its discretion by not further modifying the visitation rights of the father.

The judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.

      . After holding the father in contempt, the court gave him sixty days to pay the arrearage. No other sanctions were imposed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Alabama v. Johnny PALMER.
    Civ. 3899.
    Court of Civil Appeals of Alabama.
    Sept. 21, 1983.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellant.
    T.M. Brantley, Bay Minette, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a paternity case.

The mother of a child born in July 1977 swore out a complaint in the juvenile court charging Palmer with being the child’s father. The juvenile court adjudicated Palmer’s paternity of the child and he appealed to the circuit court. Palmer filed a “plea in abatement” that, since October 1976, the child’s mother had been married to Ikner and that, as to the issues in the case, she was married to Ikner at all pertinent times. The learned circuit court granted Palmer’s plea in abatement and dismissed the case. The State appealed.

For over a century, a married woman, as a matter of law, could not institute a bastardy action in the Alabama courts because the bastardy statute only granted that privilege to a single woman. Judge of the County Court of Limestone v. Kerr, 17 Ala. 328 (1850). That ancient legislative enactment was repealed and replaced by 1961 paternity legislation which is now codified as § 26-12-1 through -9 of the 1975 Code and which is commonly referred to as the deGraffenried Act. Pertinent provisions of § 26-12-1 are as follows:

“Whenever any woman residing in any county of Alabama is pregnant with or delivered of an illegitimate child; complaint may be made in writing under oath by the mother of said illegitimate child ... to the juvenile court of the county where such woman resides ... stating that fact and charging the proper person with being the father thereof.”

Thus, unlike the bastardy statute which read “single woman,” the paternity legislation authorizes the commencement of the action by “any woman.” Accordingly, the prohibition against a married woman instituting bastardy proceedings, as declared by the Kerr case, has no application at this time.

The present paternity statute uses the words “illegitimate child.” An illegitimate child is a child born out of wedlock, or an illegitimate child may also be “a child born in wedlock but sired by a man who was not the mother’s husband.” Leonard v. Leonard, 360 So.2d 710, 712 (Ala.1978). That definition applies to the present paternity statute. State v. Scroggins, 419 So.2d 592 (Ala.Civ.App.1982).

Here, the juvenile court had jurisdiction over this case by reason of § 26-12-1, which authorizes the commencement of paternity proceedings in the juvenile court. Code § 12-15-31(2) gives exclusive jurisdiction to the juvenile court in proceedings to establish the paternity of a child born out of wedlock, but that code section does not dilute or diminish the broad general jurisdiction of the juvenile court over all paternity cases as granted by the deGraffenried Act. § 26-12-1, Ala.Code (1975).

For the foregoing reasons, a married woman who is pregnant with or delivered of a child sired by a man other than the woman’s husband may make the required sworn complaint in the proper juvenile court thereby initiating proceedings to judicially ascertain if the purported father is the actual father of the child. In fact, this procedure has been followed and impliedly allowed, although not expressly determined to be proper, in cases decided after the passage of the paternity act. For examples, see State v. Scroggins, 419 So.2d 592 (Ala.Civ.App.1982), and Ingram v. State, 364 So.2d 329 (Ala.Civ.App.1978), cert. denied, 364 So.2d 331 (Ala.1978).

The “plea in abatement” should not have been granted and the case should not have been dismissed. We must reverse and remand this case for further proceedings.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.

      . Civil procedures apply in paternity cases. § 26-12-2, Code 1975. In reality, the plea in abatement was a motion to dismiss which was converted into a motion for a summary judgment. Rules 12(b) and 56, A.R.Civ.P.


author: BOWEN, Presiding Judge.

text:
    Johnny FISHER v. STATE.
    8 Div. 797.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1001.
    James M. Gaines of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for robbery in the first degree in violation of Section 13A-8-41, Code of Alabama 1975. Sentence was twenty years’ imprisonment. Two issues are presented on appeal.

I

The defendant argues that the trial court erred in overruling his motion to exclude the victim’s pretrial identification of the defendant made during a lineup when the defendant was not represented by counsel.

On direct examination, the victim positively identified the defendant as the robber. He testified, also without objection, that the next time he saw the defendant was at a lineup at the Huntsville Police Department. The record reflects that the following then occurred:

“Q. And the gentleman you saw in that lineup, did you indicate to the officers at that time that that was the gentleman that robbed you?
“MR. SANDLIN (Defense Counsel): I object at this time and if I may approach the bench. Your Honor, we would like to voir dire the witness outside the presence of the Jury in relation to the lineup on that occasion.”

After the victim had been examined outside the jury’s presence concerning the lineup and a photographic display, defense counsel moved “to exclude the initial identification and any subsequent identification based on suggestion.” This motion was overruled.

On appeal the defendant argues that identification evidence was inadmissible because (1) the extrajudicial identification was admissible only after the in-court identification had been attacked by defense counsel on cross examination of the witness, and (2) the defendant was not afforded counsel at the lineup even though he had been arrested and charged.

Here, there was no timely objection to the in-court identification. “A motion to exclude, ... will not preserve error in the admission of evidence where no timely objection has been made at the time of its admission.” Snider v. State, 406 So.2d 1008, 1014 (Ala.Cr.App.), cert. denied, Ex parte Snider, 406 So.2d 1015 (Ala.1981).

Despite the failure to preserve any error, our review of the record discloses no unduly suggestive identification procedures employed to obtain eyewitness identifications prior to trial. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The facts do not warrant a finding of an impermissibly suggestive pretrial confrontation resulting in a very substantial likelihood of irreparable misidentification. Neil v. Biggers, 409-U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The totality of the circumstances under review indicates the reliability of the identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

It is a settled principle of evidence that on direct examination a witness should not be permitted to corroborate his in-court identification by evidence of an earlier extrajudicial identification. Carlisle v. State, 371 So.2d 975, 977-78 (Ala.Cr.App.1979). Only after an attack upon the credibility of a witness’s in-court identification, sufficient to raise an inference of misidentification, is evidence of an earlier, extrajudicial identification properly admitted. Gilham v. State, 382 So.2d 616, 619 (Ala.Cr.App.), cert. denied, Ex parte Gilham, 382 So.2d 619 (Ala. 1980); C. Gamble, McElroy’s Alabama Evidence, Section 177.01(6)(a) (3rd ed. 1977). This is merely an application of the general rule that evidence is not admissible to sustain the credibility of a witness whose testimony has not been sought to be impeached. Funderberg v. State, 100 Ala. 36,14 So. 877 (1893). However, defense counsel did not object to the extrajudicial identification on this basis. Specific grounds of objection waive all grounds not specified. The trial judge will not be put in error on grounds not assigned at trial. Williams v. State, 377 So.2d 634, 638 (Ala.Cr.App.), cert. denied, Ex parte Williams, 377 So.2d 639 (Ala.1979).

The right to counsel established in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), applies only to post-indictment corporeal identification procedures. Wade, 388 U.S. at 237, 87 S.Ct. at 1937. A suspect has no right to counsel at a post-arrest lineup. Lomax v. Alabama, 629 F.2d 413, 415 (5th Cir.1980), cert. denied, 450 U.S. 1002, 101 S.Ct. 1712, 68 L.Ed.2d 205 (1981).

II

On cross examination by defense counsel, Huntsville police investigator Ron Derting volunteered that the photographs he displayed to the victim were “just a stack of pictures that we have current of people arrested.” The trial judge sustained defense counsel’s objection but denied his request for a mistrial.

On further cross examination the following occurred:

“Q. (Defense Counsel) Were all those pictures uniform? Were they all black and white photographs, color photographs, basically the same size and all that?
“A. All these photos were uniform, mug type photographs taken — ”

Again, defense counsel requested a mistrial. The trial judge denied this request, cautioned the witness to “just answer exactly what is put to you and don’t expound too much” and instructed the jury to disregard the unresponsive answer. The trial judge asked the jurors “if there are any of you who cannot put that response out of your mind and just forget it.” Receiving no response, the judge overruled the request for a mistrial.

On appeal, the defendant argues that the judge’s instructions to disregard only referred to the “mug type photographs” and did not address the officer’s prior reference to “people arrested”. Because defense counsel did not request any instruction concerning this matter, he cannot now be heard to complain that the judge’s instructions should have covered additional matter. See Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955).

We have addressed each issue presented on appeal. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Robert Lee TRAYLOR v. STATE.
    No. 6 Div. 65.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Oct. 4, 1983.

      Richard E. Sandefer, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

Robert Lee Traylor was found guilty of burglary in the third degree in violation of § 13A-7-7, Code of Alabama 1975. Sentence was thirty months’ imprisonment.

On May 7, 1981, at approximately 8 a.m., Ellis Brasfield left her apartment at 2716 Thirteenth Avenue North, Apartment 1, to go to work. Later that day, after receiving a call from her landlady, she returned to her apartment. Her door had been “busted,” window panes broken, and she discovered her stereo receiver, turntable, tape recorder, and television were missing. Mrs. Brasfield later saw these missing items at the north precinct police station in Birmingham.

Angel Awad owns and resides at the apartment building in which Mrs. Brasfield lives. Mrs. Awad was in her apartment lying down when she heard a noise. She looked out her window and saw a man, whom she identified as the appellant, sitting in a car. When Mrs. Awad went into the next room to get a gun, she heard another noise which sounded like something breaking. She then looked out her bedroom window and saw a man running.

Mrs. Awad then went to the front room window again but did not see the appellant. When she went outside to check the apartments, she noticed the door to Mrs. Bras-field’s apartment was broken, the screens were torn, and there was glass on the floor. Several of Mrs. Brasfield’s belongings were next to the door.

At this point, she saw a policeman standing across the street, and she went to speak to him. While Mrs. Awad and the policeman were talking, a patrol car drove up.

Mrs. Awad then got into the front seat of the patrol car and spoke to the appellant, who was in the back seat. She asked him “.. . why do you all go and break, you broke my home and you stole all of this stuff. Why do you do it?” The appellant replied that he just drives the man around who does the stealing.

On May 7, 1981, at 2:10 p.m., John Nun-nellee, an officer with the Birmingham Police Department, received a call concerning a burglary in progress. He also was given a description of a suspect and a vehicle. As he was arriving at the scene, a blue Ford, driven by a black male, drove away. The vehicle matched the description he had been given, so he pursued the car and stopped it approximately four blocks from Mrs. Bras-field’s apartment. When a back-up unit arrived, Officer Nunnellee asked the appellant to get out of the car, and he then patted the suspect down. The appellant was placed in the patrol car.

An inventory search was made of the contents of the vehicle the appellant was driving, and a Panasonic 8-Track Recorder, a Panasonic turntable, a Quasar 19" color television, and one Fisher amplifier were found in the trunk.

Officer Nunnellee then took the appellant back to the scene. When he arrived, Mrs. Awad came out of the apartments, pointed her finger, and asked to speak with the appellant. He does not recall if he gave her an answer because he was on his way to Mrs. Brasfield’s apartment.

I

The appellant claims the State failed to prove a prima facie case and, therefore, the verdict was contrary to the evidence.

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. 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.” (Citations omitted.) Cumbo v. State, 368 So.2d 871 (Ala.Cr. App.1979).

The State presented evidence that the appellant was seen sitting in a car outside of the apartments where Mrs. Brasfield lived at the time the burglary occurred. Officer Nunnellee stopped the appellant in his car about four blocks from Mrs. Bras-field’s apartment. He had received a description of the appellant and his vehicle and had observed the appellant drive away from the scene of the burglary. The stolen property was recovered in the trunk of the appellant’s vehicle, and the appellant admitted driving his vehicle for the man who did the actual stealing.

The trial judge instructed the jury on the law of complicity and on the elements of burglary in the third degree. Thereafter, the jury found the appellant guilty of the offense charged.

From our examination of the record, we find that there was, in fact, sufficient evidence presented by the State, from which the jury could conclude, by fair inference, that the appellant was guilty of the offense of burglary in the third degree.

II

The appellant’s contention, that his statement to Mrs. Awad is inadmissible because he had not been informed of his Miranda rights, is without merit. It is clear that Miranda has no application when an inculpatory statement is made to a private citizen. Kelley v. State, 366 So.2d 1145 (Ala.Cr.App.1979). Miranda only applies to custodial interrogation of a suspect by the police. Terry v. State, 397 So.2d 217 (Ala.Cr.App.), writ denied, 397 So.2d 223 (Ala. 1981).

Therefore, the appellant’s inculpato-ry statement made to Mrs. Awad was properly admitted.

Ill

The appellant contends the police lacked sufficient probable cause to effectuate his arrest and conducted an unreasonable search and seizure of his automobile and, therefore, his motion to suppress should have been granted.

A

In order to address these issues which the appellant raises on appeal, we must first determine whether the initial stop and seizure of the appellant was reasonable. To justify governmental intrusion upon the Fourth Amendment rights of a private citizen, specific and articulable facts must be present which, when taken together with rational inferences from those facts, would reasonably warrant such intrusion. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sterling v. State, 421 So.2d 1375 (Ala.Cr.App.1982). In situations such as the case at bar, we must ask “... [WJould the facts available to the officer at the moment of the seizure ... ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry v. Ohio, supra; Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

Section 15-5-30, Code of Alabama 1975, provides that a police officer may, without probable cause, “stop any person ... in a public place whom he reasonably suspects is committing, has committed, or is about to commit a felony or other public offense and may demand of him, his name, address and an explanation of his actions.” (Emphasis added.)

Furthermore, in Campbell v. State, 354 So.2d 325 (Ala.Cr.App.1977), Judge Bowen stated that the police are justified in stopping an automobile after receiving a description of a suspect and his vehicle and after observing the suspect and the automobile in the general area of the crime at the approximate time it occurred. Therefore, the information Officer Nunnellee received and the observation he made clearly gave him a valid reason for believing the appellant was involved in the burglary in question and justified the initial stop of the appellant’s automobile.

B

Next, we must determine whether the appellant’s arrest was lawfully made. Section 15-10-3, Code of Alabama 1975, allows a police officer to effectuate a war-rantless arrest if at the moment the arrest was made, the officer had reasonable and probable cause to make it. White v. State, 45 Ala.App. 1, 221 So.2d 117 (1969).

From our examination of the facts in this case, we are convinced Officer Nunnellee had probable cause to arrest this appellant.

“... Where a law enforcement officer has received information from a credible source leading to a reasonable belief on his part that an individual has committed a felony, it is not necessary to obtain a warrant in order to effect the arrest of that person. Burrow, supra; Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81 (1975); Culbert v. State, 52 Ala.App. 167, 290 So.2d 235 (1974). Title 15, Section 154, Code of Alabama 1940, Recompiled 1958 (see Code of Alabama 1975, §§ 15-10-3).
“A law enforcement officer may have probable cause for a warrantless arrest based on the identification or description of the suspect or his motor vehicle without knowing the identity of the person to be arrested. Sexton v. State, Ala.Cr.App. 349 So.2d 126 (1977); also Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1975); Jackson v. State, 55 Ala.App. 334, 315 So.2d 131, cert. denied, 294 Ala. 760, 315 So.2d 136, cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46 L.Ed.2d 132 (1975). The arresting officer may base his arrest on an official description of the suspect or his motor vehicle as where he receives information from a police radio bulletin or report describing the person or vehicle. Brown v. State, 55 Ala.App. 615, at 619, 318 So.2d 311 (1975); McClendon v. State, Ala.Cr.App., 341 So.2d 174, writ quashed, Ala., 341 So.2d 178 (1976). The identification or description of an offender or a motor vehicle may also be supplied to the police by the victim of or witness to an offense as well as by an informer. Turk v. State, 53 Ala.App. 106, 298 So.2d 37 (1974); Burrow v. State, 55 Ala.App. 24, 312 So.2d 596 (1975); Thomas v. State, 50 Ala.App. 227, 278 So.2d 230 (1973); Smith v. State, 51 Ala.App. 349, 285 So.2d 512, cert. denied, 291 Ala. 798, 285 So.2d 515 (1973).” Campbell v. State, supra.

Therefore, we hold that the arrest of the appellant was certainly valid.

C

Lastly, we must determine whether the search of the appellant’s automobile was reasonable.

“The constitutional provision involved in this case is the Fourth Amendment to the United States Constitution. This amendment, of course, does not require that every search be made with a warrant. It only prohibits unreasonable searches and seizures. The reasonableness of the search and seizure must be examined rather than the reasonableness of the opportunity to procure a warrant. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).” Sterling v. State, supra.

The Supreme Court of this State has recognized six circumstances in which the police may conduct a search of an automobile without first procuring a search warrant. See Daniels v. State, supra. One of these exceptions to the search warrant requirement is “[w]here ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables.)” Daniels v. State, supra. This is commonly known as the “automobile exception.”

“The right to search and the validity of the seizure under the automobile exception is not dependent on the right to arrest. Rather, the search and the seizure are based on the probable cause the police officer has for belief that the automobile contains contraband or other illegal items. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
“A police officer is authorized to make a warrantless search of an automobile under the automobile exception whenever (1) he has probable cause to believe that the automobile contains evidence of a crime and (2) exigent circumstances which require an immediate search. See Moylan, The Automobile Exception, supra, at 987. The automobile exception, as established in Carroll v. United States, supra, is applicable only to searches of automobiles based on probable cause. United States v. Ross, [456] U.S. [798], 102 S.Ct. [2157], 72 L.Ed. 572 (1982). See also Ex Parte Vogel, [426 So.2d 882] No. 80-175 (Ala. July 23, 1982). A warrant-less search is justified if it is based on facts which would be sufficient for the issuance of a warrant. United States v. Ross, supra.Sterling v. State, supra. “. .. ‘Probable cause exists when the facts and circumstances within the knowledge of the officers and of which they had reasonably trustworthy information are sufficient to cause the officers to conscientiously entertain a strong suspicion that the object of the search is in the particular place to be searched.’ Hatton v. State, 359 So.2d 822 (Ala.Crim.App. 1977); People v. Gregg, 43 Cal.App.3d 137, 117 Cal.Rptr. 496 (1974); Carroll v. United States [267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543], supra.” Sterling v. State, supra.

Officer Nunnellee certainly had good reason, after receiving a description of the appellant and his vehicle and then seeing him drive away from the crime scene, to suspect that the stolen articles were contained in the trunk of the appellant’s vehicle. It is most likely that one would assume a thief would place stolen items in a trunk of an automobile in an attempt to conceal them.

Thus, we find sufficient probable cause existed to justify the search of the trunk of the appellant’s automobile.

“Given the inherent mobility of automobiles, courts have recognized that, in certain instances, it is impractical, if not impossible, to secure a warrant to search an automobile before it is removed from the jurisdiction. United States v. Ross, supra. Thus, when exigent circumstances coexist with probable cause, police officers are justified in conducting an immediate search of the vehicle at the scene. United States v. Ross, supra.
“However, the United States Supreme Court as well as the Supreme Court of this state, have upheld warrantless searches of automobiles where [there was] no indication that the automobile would be removed from the jurisdiction or that evidence within it would be destroyed. South Dakota v. Opperman, supra; Reid v. State, 388 So.2d 208 (Ala. 1980).
“The United States Supreme Court in Chambers v. Maroney, supra, addressed the issue of exigent circumstances and held that ‘[F]or constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.’ Hatton v. State, supra; Reid v. State, supra.” Sterling v. State, supra.

Furthermore, we must note that the search could have been justified as a proper inventory of the appellant’s vehicle.

We hold the search of the appellant’s automobile trunk was reasonable and valid.

IV

The appellant argues that defense counsel’s motion for a mistrial should have been granted on the ground that the answers of one of the State’s witnesses, Mrs. Awad, were unresponsive to defense counsel’s questions.

From our examination of the record, it is obvious that the witness had some difficulty with the use of the English language. The majority of her answers were responsive, and those which were not did not prejudice the appellant. It is clear that the witness was not unresponsive intentionally and did the best she could and certainly the jury understood her problems with the English language.

The trial judge was in the best position to determine if the witness’s answers prejudiced the appellant in any way, and, therefore, we hold the trial judge properly refused to grant defense counsel’s motion for a mistrial.

V

The appellant’s, contention that the trial court erred in charging the jury on the law of complicity is without merit. From our examination of the record, it is clear that the trial judge properly charged the jury on the law of complicity.

Furthermore, the record does not reveal the presence of any written charges made by defense counsel requesting further instructions or corrections concerning the judge’s oral charge on the subject. Therefore, we cannot consider this issue on appeal. Smith v. State, 53 Ala.App. 657, 303 So.2d 157 .(1974).

VI

The appellant contends he was improperly sentenced because a full presen-tence investigation was not conducted even though he had requested one be done.

Section 13A-5-5, Code of Alabama 1975, provides that:

“On motion of the court or written motion of either party, the court shall require a written report of a presentence investigation of a defendant convicted of a felony, and such defendant shall not be sentenced or otherwise disposed of before such report has been presented to and considered by the court. (Acts 1977, No. 607, p. 812, § 1220.)

See also A.R.Crim.P.Temp. 3.

Immediately after the jury returned its verdict, defense counsel orally requested a presentence investigation but failed to make a written motion. The trial judge told defense counsel that he knew the appellant had no prior felony convictions and that he was only interested in the outcome of another case pending against the appellant. The trial judge then passed sentencing pending the completion of a presentence report.

At the sentencing hearing, the trial judge stated he received an abbreviated presen-tence report which showed that the appellant had been convicted in the pending case. Defense counsel objected because he felt the abbreviated report was not as complete as it should have been since it failed to include such matters as his mental status, his reputation in the community, his educational background, and his family history.

However, the trial judge gave defense counsel ample opportunity to bring any matter to the court’s attention which might be beneficial to his client, but defense counsel refused to say anything on his client’s behalf because he wanted the information to come from an objective source.

We fail to see any grounds for complaint. The trial judge ordered that the presen-tence investigation be conducted on his own motion. Furthermore, defense counsel refused to provide the court with beneficial information concerning his client when given the opportunity to do so.

Therefore, we hold the appellant was properly sentenced.

For the reasons stated above, the judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Roderick Anthony STURDIVANT v. STATE.
    No. 6 Div. 896.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Oct. 4, 1983.

      Roy Brown, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Ger-rilyn V. Grant, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This is an appeal from a conviction under an indictment charging the appellant with the unlawful possession of “1.3 grams of marijuana, a controlled substance, contrary to and in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of Section 20-2-70 of the Code of Alabama 1975.” The trial court submitted to the jury not only the issue of the defendant’s guilt but also the question whether the marijuana allegedly possessed by defendant was possessed by him for his personal use only. Defendant was adjudged guilty of a felony and sentenced to imprisonment for fifteen years, it having been shown at the sentence hearing that' defendant had been previously convicted of three felonies.

The undisputed evidence shows that law enforcement authorities had obtained a search warrant of an apartment in an apartment building in Pinson, Jefferson County, Alabama, and upon their execution of that warrant they found in the locked apartment the defendant and a female companion. The following is a part of the testimony of one of the officers:

“I opened the door, there is a straight shot down the hallway of the apartment building. I saw a — I didn’t know if it was a male or a female dart run across the hall into a room. At that point we used back there myself and David Luker and McAdams and got a black female and a black male out of the bedroom, got the female out of the first bedroom and got the black male out of the back bedroom.”

The marijuana was found in the back bedroom of the apartment. A witness testified that there was clothing for men and women in the closet of that bedroom, that at the time he entered the room the TV was playing, that “There was a cold drink on top of the television and there was a pair of men’s shoes under the television.” He further testified that “There was clothing throughout the bedroom, bathroom and closet, both men’s and women’s.”

I

We agree with the legal proposition relied upon by appellant that if the evidence does no more than furnish basis for “suspicion, surmise or conjecture” that defendant is guilty, he should not be convicted, but we disagree with his conclusion that such proposition is applicable here. The circumstances as a whole were sufficient to convince a jury that defendant was not just a momentary visitor in the particular apartment where the marijuana was found and that he, either singly or jointly with the other occupant, had constructive possession of the drug. Appellant’s present position would be stronger if, at the time of the search by the officers, there had been evidence that the apartment was owned or rented by the other occupant, rather than appellant, but the evidence was silent on this point. This fact distinguishes the instant case from Parks v. State, 46 Ala.App. 722, 248 So.2d 761, cited by appellant.

II

Appellant questions the sufficiency of the evidence to establish the chain of possession by the officers of the marijuana found in the apartment. One of them testified:

“I kept it in my possession and I took those items from him [another officer present at the time], sealed them up in an envelope and wrote on the front of it certain information that it required, and I locked it in the trunk of my car, my UNCO vehicle.
“Q. How did you package that particular substance?
“A. I placed it in an envelope.
“Q. What kind of envelope did you place it in?
“A. It’s a Manila envelope that we have at our office and I put another envelope on the top of it with certain information that is required by our office. Then, I sealed it and initialed it on the back.”

The witness testified that he then put the envelope in the trunk of his car until the following Monday when he gave it to the toxicologist who testified that the chemical analysis of the material proved that it was marijuana.

Thus, the chain of custody was established by this evidence.

III

Appellant next challenges the sufficiency of the affidavit justifying the issuance of the search warrant. The transcript does not include a copy of the search warrant or the affidavit upon which it is based. As we have often observed, an affidavit or search warrant not contained in the record cannot be reviewed by this court as to its sufficiency or as to the facts supporting the warrant. Thomas v. State, 383 So.2d 214 (Ala.Cr.App.1980).

IV

Appellant states his next issue as follows:

“May the State obtain a search warrant ' alleging drugs, (talwin and cocaine), when the true purpose is to arrest an alleged FBI fugitive, Deborah Annsenet-ta Williams?”

He bases his contention upon that part of the testimony of the officer procuring the search warrant which reads:

“Mr. Carson, you had a search warrant at about, approximately, 4:00 or thereabouts you search this location. The two Federal Bureau of Investigation Agents, they were with you, were they looking for drugs or were they along for some other reason?
“A. At my request.
“Q. Mr. Carson, isn’t it a fact that they thought this Deborah, was a fugitive from justice?
“A. I thought that.
“Q. You thought it?
“A. Yes, sir.

Although the above-quoted testimony indicates that “a dual purpose existed to say ,the least, or a trumphed [sic] up purpose of looking for drugs, to enter the house so the FBI agents could arrest the alleged fugitive,” we cannot say that there was such a trumped up purpose.

V

Appellant apparently contends that possession of a small amount of marijuana should be a misdemeanor. The law is clear that showing possession for personal use is a matter of defense; the burden of proof as to this statutory exception is on the accused. Roberts v. State, 349 So.2d 89 (Ala.Cr.App.1977). Also found in the apartment searched in this case were a dietetic scale, mannite (a substance used to dilute cocaine), papers and a pipe. The appellant did not testify.

VI

The sixth issue presented by appellant is thus stated in his brief: “Was the verdict of the jury contrary to the law?” He makes substantially the same argument and relies largely upon the same case that we have considered in I above. He cites the additional authority of Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520 (1970) for the established principle that in order for the defendant to have been guilty of the “constructive possession” of marijuana, he must have known of its “presence.” As indicated in I above, we are of the opinion that the circumstances shown by the evidence were sufficient to provide substantial evidence that appellant knew of the presence of the marijuana.

VII

In his short argument as to this next issue, appellant says, “The tip of a drug user was not properly corroborated so that a search warrant could be issued” and that “the real purpose was not drugs, but to get into the apartment and arrest the alleged fugitive.” We have considered the first quoted part of his argument in III above and the second part of his argument in IV above. We are unable to agree with either part of appellant’s argument. Furthermore, we do not agree with the last of appellant’s arguments as to his seventh issue, wherein he simply states, “The jury verdict was contrary to the great weight of the evidence.”

VIII

In a one-paragraph argument, appellant attempts to convince us that “the jury was caused to convict the appellant based on bias, prejudice, and improper motive, and was contrary to the great preponderance of the evidence.” We are not convinced that the verdict was contrary to the great preponderance of the evidence. We also disagree with appellant’s conclusion that the verdict was “based on bias, prejudice, and improper motive.” Our attention is not specifically called to any statement or occurrence that reflects any bias, prejudice, or improper motive on the part of anyone connected with the case. The mere fact that an individual may have had strong convictions in favor of law enforcement and law observance does not permit a just conclusion that he acted with bias, prejudice, or improper motive.

IX

Appellant’s ninth issue pertains to the action of the court in sentencing defendant to imprisonment for a period of fifteen years. Much attention was given to the extent of the punishment both at the sentencing and upon the hearing of the defendant’s motion for new trial. The state, after due notice, invoked the Habitual Felony Offender Act, and there was considerable argument as to whether the Act was applicable under the circumstances, particularly since two of the three previous felony convictions of the defendant were for the possession of marijuana. All concerned apparently took note of the fact that under the Controlled Substances Act, the maximum term of imprisonment for punishment for a felony “conviction for the first offense” is 15 years. (Code § 20-2-70(a)). It appears also that all concerned took note of the fact that pursuant to the Habitual Felony Offenders Act, if said Act is applicable in the instant case, the appellant’s three previous felony convictions necessitated that he “be punished by imprisonment for life or for any term not more than 99 years but not less than 15 years.” (Code § 13A-5-9(c)(1)). Counsel for the state insisted that the law as to habitual felony offenders should apply. Counsel for defendant argued to the contrary.

The question as to the legality or appropriateness of the punishment, imprisonment for fifteen years, was raised again in the trial court, this time on defendant’s motion for a new trial. At that time counsel for defendant who had represented him on the trial of the case had been replaced by his present counsel, who was appointed by the trial court between the time of trial and the motion for a new trial. After considerable argument by counsel for the State and counsel for defendant, they were still in disagreement as to whether the statutory limits of the punishment should be in accordance with the Habitual Felony Offenders Act or in accordance with the Controlled Substances Act. The trial court said:

“This court should never be presumptuous enough to overrule the Alabama Court of Criminal Appeals, especially if the Supreme Court has denied cert. However, in recording this particular case, this court charged on the possession of marijuana for personal use, a misdemeanor, and the jury chose not to find this defendant guilty, and in fixing the punishment the court was very careful not to go over the statutory limit for the punishment fixed in the 20-22-70, so I fixed in only at fifteen years.
“Motion for new trial hereby denied.”

Perhaps, in the light of the last quoted statement of the trial court, we could well affirm this judgment on the theory that whether or not the Habitual Felony Offenders Act was applicable the punishment imposed was lawful, just and appropriate under the Controlled Substances Act. Nevertheless, we think we should go further and resolve the dispute between the parties on the subject, as well as any doubt that may have been in the court’s mind. We now decide, in accordance with Palmer v. State, 54 Ala.App. 707, 312 So.2d 399 (1975), followed by Kidd v. State, 398 So.2d 349 (Ala.Cr.App.), cert. denied, 398 So.2d 353 (Ala.1981), that the “second or subsequent offense” punishment prescribed by the statutory law as to controlled substances is not applicable in the instant case but that the law pertaining to habitual felony offenders is. This is made clear in the opinion of Judge Tyson in Palmer v. State, supra, at 312 So.2d 405-6 as follows:

“For clarity, each of the Judges of this Court concurs in the following observations with reference to Section 401(a) and (b), of Act No. 1407, Acts of Alabama 1971, Regular Session:
“1. ...
“2. That Section 401(a) and (b) of said Act (Title 22, Section 258(47), Code of Alabama 1940, as amended 1971), is controlling as to the possession of marihuana for personal use on first offense, and also for punishment for subsequent offenses for possession offenses relating to the possession of marihuana.
“3. That Section 407(a) and (b) of Act No. 1407, Acts of Alabama 1971, Regular Session, (Title 22, Section 258(33), Code of Alabama 1940, as amended, 1971), is controlling as to punishment for other types of narcotic drugs or drug offenses relating to marihuana other than possession of same.”

The trial court was not in error in fixing defendant’s punishment at imprisonment for fifteen years. According to the applicable law, he could have given more but he could not have given less.

We do not agree with appellant’s contention that defendant was denied equal protection of the laws by the fact that the other person in the apartment with appellant at the time of their arrest was allowed to plead guilty to misdemeanor possession and was allowed to pay a $100 fine in a plea bargaining arrangement while the state insisted on a felony conviction and the resulting sentence for this appellant. The only authority cited by appellant on the point, Opinion of the Justices, No. 293, Ala., 410 So.2d 60, is inapposite. The cited opinion involved a bill in the House of Representatives that provided “that certain judicial officers convicted of a felony shall receive the mandatory sentence of imprisonment equal to the minimum time prescribed for said felony.” The Alabama Supreme Court said:

“While the Legislature has a broad discretion to classify and provide a special punishment for a special class of offenders, such as minors, convicts and habitual offenders, there is no fact contained in your request for this opinion which shows a reasonable basis for a law which would single out members of the judiciary for special punishment as a class. ...”

In the instant case, there is every good reason to believe that the prosecution would have had a harder case against her than it did against the appellant, in that he was closer than she to the marijuana at the time it was found and there were circumstances to indicate that of the two he was the dominant party. Moreover, although she had had a prior marijuana conviction, the appellant had had three prior felony convictions.

X

As to his next issue, appellant concludes with the sentence:

“I submit to this Honorable Court that Title 20 does provide enhanced punishment and the amount of marijuana one possesses does have a bearing and equally true a small amount should have a presumption that it would be for personal use only.”

We have considered the question of whether Title 20 provides enhanced punishment in IX above; the rest of the sentence just quoted in appellant’s brief was considered by us in I and V above. In accordance with what we have already stated, we disagree with appellant as to each of the two prongs of this issue.

XI

Any comfort appellant finds in Luker v. State, 344 So.2d 1219 (Ala.Cr.App. 1976), writ quashed, 344 So.2d 1224 (Ala. 1977), in which appellant’s enhanced punishment was imposed in accordance with the applicable provision of the Controlled Substances Act, is unmerited, for the reason that, as explained above, such provision, though applicable in Luker v. State, is not applicable in cases of felony convictions of possession of marijuana. Luker v. State, supra, was not a marijuana case.

XII

Appellant challenges the sentence as “cruel and unusual punishment” and cites in support of his contention People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972); Carvajal v. State, Fla.App., 392 So.2d 287 (1981); State v. Weigel, 228 Kan. 194, 195, 612 P.2d 636 (1980). In none of the three cases cited was a recidivist statute involved.

The judgment of the trial court should be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Edward Lee MINNIFIELD v. STATE.
    No. 6 Div. 900.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Oct. 4, 1983.

      Orson L. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Gregory J. Robinson, and William D. Little, Asst. Attys. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Edward Lee Minnifield was convicted for the robbery of the Big M Market in Birmingham, Alabama. He was sentenced, pursuant to Alabama’s Habitual Felony Offender Act, to life imprisonment without parole.

On August 12, 1980, James Earl Franks and another man robbed the Big M Market. During the robbery, the other robber shot Paul Maniscalco, the owner and operator of the store, in the stomach, while Franks held Maniscalco’s son, Sam, on the floor at gunpoint. The two men fled the scene with about $3,000 that they had taken from the store’s cash register.

I

The appellant concedes the fact that Franks and another man robbed the Big M Market and that the other man shot Paul Maniscalco in the stomach during the robbery. However, he insists that he was not the “other” robber. He presented an alibi defense at trial and contends on appeal that, in light of this defense and certain inconsistencies in the state’s case, the evidence was insufficient to support the jury’s conclusion that he was the second robber. We disagree.

Appellant’s argument on appeal is, in effect, a complaint that the jury improperly determined the weight and credibility of certain witnesses. The only issue for the jury was the identification of the appellant as one of the robbers. Paul Maniscalco, who was for several minutes face to face with the robber who eventually shot him in the stomach, made positive and unequivocal identifications of the appellant, a man he recognized from appellant’s previous visit to the store several years before, during a photographic line-up and, subsequently, from the witness stand at trial. Appellant’s alibi witness, James Earl Franks, who had already been convicted for the same robbery, testified that another man, not the appellant, was the second robber during the Big M Market robbery. This obvious conflict presented a jury question, which “was peculiarly within the province of the jury to resolve.” Garrison v. State, 416 So.2d 793 (Ala.Cr.App.1982), and cases therein cited; see also, Zimmerman v. State, 49 Ala.App. 442, 272 So.2d 914 (1973); May v. State, 335 So.2d 242 (Ala.Cr.App.1976). The jury’s resolution of this conflict against the appellant and its corresponding guilty verdict will not be disturbed on this appeal.

II

Appellant’s arguments concerning the application of Alabama’s Habitual Felony Offender Act are without merit. Prior felony convictions acquired before the effective date of the new Alabama Criminal Code are to be considered as prior felonies under the Habitual Felony Offender Act. Davis v. State, 401 So.2d 218 (Ala.Cr.App. 1981), cert. denied, 401 So.2d 221 (Ala.1981); Lidge v. State, 419 So.2d 610 (Ala.Cr.App. 1982), cert. denied, 419 So.2d 616 (Ala.1982). Prior felony convictions resulting from allegedly involuntary guilty pleas should be attacked in a petition for error coram nobis rather than by collateral attack in a habitual offender setting on appeal from a subsequent conviction. Jones v. State, 431 So.2d 1367 (Ala.Cr.App.1983); Scott v. State, [Ms. 1 Div. 535, July 5, 1983] (Ala.Cr.App.1983). Furthermore, a trial court is not required, before accepting a guilty plea, to inform the accused that a conviction based upon his guilty plea might be used at some future date to enhance punishment for some hypothetical future crime. Wright v. United States, 624 F.2d 557, 561 (5th Cir.1980); Zambuto v. State, 413 So.2d 461 (Fla.Dist.Ct.App.1982); Smithwick v. State, 636 S.W. 2d 557 (Tex.Ct.App.1982); McMillan v. Wil- Hams, 116 Misc.2d 171, 455 N.Y.S.2d 523 (1982); State v. Mace, 97 Wash.2d 840, 650 P.2d 217 (1982). An accused is entitled to information concerning the direct consequences of his plea. He is not entitled to information concerning all collateral effects, or future contingencies that might arise. The possible enhancement of punishment for a future crime is not a direct consequence of a plea of guilty.

In Miliner v. State, 414 So.2d 133 (Ala.Cr. App.1981), and Hall v. State, 418 So.2d 946 (Ala.Cr.App.1982), the defendants already had prior convictions which made them subject to the “enhancement of punishment” provisions of the Habitual Felony Offender Act. The trial court in each instance failed to inform the defendant that a plea of guilty and a conviction based thereon would automatically trigger the enhancement provisions of the Habitual Felony Offender Act, because of the evidence of prior felony convictions: In effect, the trial court failed to properly inform the defendant of the enhanced, minimum and maximum punishment he might receive for the offense charged, the triggering offense. This failure in Miliner and Hall was a failure to inform the defendant of a direct consequence of his guilty plea and the convictions were, accordingly, reversed. Miliner and Hall, are therefore, not controlling here.

Ill

In a “pro se” brief, which was submitted by the appellant in addition to the brief submitted by his appointed attorney, the appellant makes several arguments which are well stated but not supported in the record. The major emphasis in his own brief is appellant’s contention that he was denied effective assistance of counsel at trial. (His trial counsel also represents him on this appeal.)

We have reviewed the entire record in light of the accusations the appellant has made on appeal and have -determined that he was not denied the effective assistance of counsel at trial.

The applicable standards for assessing the competency of a defendant’s trial counsel are well settled and well articulated in other opinions of this court. See, for example, Bridges v. State, 391 So.2d 1086 (Ala.Cr.App.1980); McKinnis v. State, 392 So.2d 1266 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1270 (Ala.1981); Graham v. State, 403 So.2d 275 (Ala.Cr.App.1980), cert. denied, 403 So.2d 286 (Ala.1981). In light of these standards, it appears from the record that the appellant was well represented at trial. He was represented by an experienced criminal attorney who earnestly and zealously defended him. Appellant’s trial counsel made numerous objections to the state’s evidence, thoroughly cross-examined the state’s identification witnesses, and presented an adequate alibi defense which, if believed by the jurors, would have exhonerated the appellant. See, Bonner v. State, 389 So.2d 174 (Ala.Cr.App.1980).

The failure to object to the victim’s in-court identification on the ground that it was tainted by an improper photographic line-up was not a mistake, because there was nothing irregular or illegal to support such an objection. The failure to request a specific jury instruction on mis-identification by the victim was not prejudicial to the appellant. See, McKinnis v. State, supra. The only issue in the case was the identity of the appellant and it was properly emphasized during the trial, and in the trial court’s oral instructions concerning the credibility of the witnesses who gave conflicting testimony on appellant’s identity. Finally, the record does not reveal any prejudice to the appellant from his counsel’s refusal to call other alibi witnesses in addition to James Earl Franks. This decision was a matter of trial strategy which, “in the absence of a clear showing of improper or inadequate representation, will be left to the judgment of trial counsel.” Bridges v. State, supra, and cases therein cited.

For the reasons stated above, appellant’s conviction and sentence are, hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Gary COOLEY v. STATE.
    No. 7 Div. 27.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Oct. 4, 1983.

      Charles Ned Wright, Wedowee, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Gary Cooley was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment,” and the trial judge set sentence at thirty-five years’ imprisonment in the penitentiary.

On December 19, 1980, between 7 and 7:30 a.m., two black males entered Hendrix’s Service Station. One of the men had a shotgun and wore a “brown floppy hat.” The two men took $625 from Maggie Hendrix. The men left in a tan over tan Chevrolet.

Charles Harris, a Clay County deputy sheriff, received a description of the suspects and their automobile from Mrs. Hendrix. He went to a nearby store and was given the name of a person in Randolph County who owned a car similar to the one Mrs. Hendrix and another witness had described to him.

Harris then went to the residence of Earl Houston. An automobile, which matched Mrs. Hendrix’s description, was parked in the yard. A shotgun was on the front seat. The appellant was at Houston’s home at this time, and he fit the description of one of the suspects. Houston gave Harris permission to search his residence, and Harris found a “brown floppy felt” hat.

The appellant and James Boyd voluntarily went with Harris back to Hendrix’s store. They were not placed under arrest or in custody, but they were given their Miranda rights on the way to the store.

At the store, Mrs. Hendrix stated she thought that the appellant was the one who had robbed her store, but she was not sure. She said she was positive the hat was the same one worn by one of the robbers. At this time, the appellant was placed under arrest.

At trial, Mrs. Hendrix positively identified the appellant as one of the robbers. She stated she had told Harris that she was not sure at her store because she was afraid to sign the warrant.

The defense put on several alibi witnesses, and the appellant denied any involvement in the robbery.

I

The appellant contends that the trial court erred in denying his motion to suppress because the appellant gave information to the police before he was informed of his Miranda rights.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), assures that incriminating statements, elicited from an accused during custodial interrogation, may not be used against him at trial unless the prosecution presents evidence that the accused was informed of the rights set out in Miranda, supra, which are intended to protect the right against self-incrimination.

First, we must state that we cannot determine from the appellant’s motion to suppress or his brief what information the appellant wishes to suppress. From our examination of the record, we cannot find any evidence that the State sought to introduce a statement made by the appellant or that the appellant gave a statement to the police.

Secondly, the appellant voluntarily consented to return to Mrs. Hendrix’s store with Officer Harris. During that trip, he was given his Miranda rights. There is no indication that the Miranda rights were improperly given.

Therefore, for the reasons stated above, Miranda v. Arizona, supra, has no application to this issue.

II

The appellant alleges Mrs. Hendrix’s in-court identification should have been suppressed because he was subjected to an impermissively suggestive pretrial identification (e.g., a one-man showup).

“Whether an out-of-court identification procedure has violated due process depends upon the ‘totality of the circumstances.’ Stovall [Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)]; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Coleman [Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970)]; Biggers [Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ]. This totality of the circumstances test is the standard in deciding whether an identification procedure is unnecessarily suggestive and conducive to irreparable mistaken identification. Caver v. Alabama, 537 F.2d 1333 (5th Cir.1976).
“In determining the constitutional adequacy of pretrial identification procedures and the admissibility of identification testimony, the central question is whether, under the totality of the circumstances, the identification was reliable. Manson [Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)]. This determination involves the application of a two-pronged test.
“[T]he required inquiry is two-pronged. The first question is whether the initial identification procedure was ‘unnecessarily’ [Stovall] or ‘impermissibly’ [Simmons] suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been ‘unnecessarily’ or ‘impermissi-bly’ suggestive was so ‘conducive to irreparable mistaken identification’ [Stovall] or had such a tendency ‘to give rise to a very substantial likelihood of irreparable misidentification’ [Simmons] that allowing the witness to make an in-court identification would be denial of due process. United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.1970).” Brazell v. State, 369 So.2d 25 (Ala.Cr. App.1978).

In Hobbs v. State, 401 So.2d 276 (Ala.Cr.App.1981), this court held that:

“Although a showup is inherently suggestive, it is also considered to be consistent with good police work when done promptly after the commission of the crime. Donahoo v. State, Ala.Cr.App., 371 So.2d 68; Robinson v. State, 55 Ala. App. 658, 318 So.2d 354; Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623....

“Judge Burger, now Chief Justice of the Supreme Court of the United States, in Bates v. United States, 132 U.S.App. D.C. 36, 405 F.2d 1104, stated:

“ ‘There is no prohibition against a viewing of a suspect alone in what is called a “one-man showup” when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy.
“ ‘[T]he police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some .instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh . ... ’
“Although the use of the showup is a suggestive identification procedure, it can also be a procedure which tends to enhance the reliability of the identification. Bates v. United States, supra; Carter v. State, Ala.Cr.App., 340 So.2d 94.”

The appellant was returned to Mrs. Hendrix’s store only several hours after the robbery occurred. This was a reasonable amount of time since the events of that morning were certainly still fresh in Mrs. Hendrix’s mind. See Brazell, supra. Therefore, the mere fact that the appellant was subjected to a one-man showup does not necessarily render that identification procedure impermissively suggestive.

The appellant contends that requiring the appellant to put on a hat similar to the one worn by one of the robbers was unnecessarily suggestive. However, the mere fact that an accused wears a distinctive article of clothing does not by itself taint a one-on-one identification procedure. Brazell, supra.

We conclude that the pre-trial identification procedure was not impermissively suggestive and, therefore, Mrs. Hendrix’s in-court identification of the appellant was properly admitted.

Assuming arguendo, that we had found the out-of-court identification to be imper-missibly suggestive, we would still hold that Mrs. Hendrix’s identification of the appellant was reliable.

“Whether an in-court identification has been so tainted by an extrajudicial identification as to vitiate the in-court identification is not to be determined solely by the circumstances of the extrajudicial identification, but all of the circumstances relative to the identification of defendant by the witness are to be taken into consideration, and if it is determinable therefrom that an in-court identification was independent of the extrajudicial identification, evidence of the in-court identification is admissible. Matthews v. State, 361 So.2d 1195 (Ala.Cr.App.1978).” Raines v. State, 428 So.2d 206 (Ala.Cr.App.1983).

The fact that Mrs. Hendrix stated she was not absolutely sure the appellant was the robber when she saw him initially, does not mean that her in-court identification must be excluded. Hobbs, supra. Furthermore, Mrs. Hendrix stated she knew the appellant was one of the robbers when she first saw him, but she was afraid to sign the warrant, so she told Officer Harris she was not sure about the appellant.

Mrs. Hendrix’s in-court identification of the appellant was based on her eye-witness observation and confrontation with him on the day of the robbery. At trial, she stated she was absolutely positive the appellant was one of the men who robbed her store. Based on our application of the factors set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375,34 L.Ed.2d 401 (1972), we hold Mrs. Hendrix’s in-court identification of the appellant was reliable and independent of the pre-trial identification procedure.

Therefore, the trial judge properly denied the appellant’s motion to suppress.

Ill

The appellant argues the trial judge erred when he asked the appellant, during the suppression hearing, to stand up and repeat the words, “I’ll kill you if you don’t do what I tell you to do.”

This contention rests on the ground that requiring the appellant to utter these words, which were allegedly used by the man who robbed Mrs. Hendrix, violated his Fifth Amendment privilege against self-incrimination.

“... The Fifth Amendment privilege against self-incrimination ‘protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature ... ’ Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826 [1830] 16 L.Ed.2d 908.” Coleman v. State, 44 Ala.App. 429, 211 So.2d 917 (1968).

The United States Supreme Court stated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d. 1149 (1967), that:

“We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness pri- or to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.... [Compelling Wade to speak within hearing distance of the witness, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a ‘testimonial’ nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. We held in Schmerber, supra, 384 U.S. at 761, 86 S.Ct. at 1830, that the distinction to be drawn under the Fifth Amendment privilege against self-incrimination is one between an accused’s ‘communications’ in whatever form, vocal or physical, and ‘compulsion which makes a suspect or accused the source of real or physical evidence, Schmerber, supra, at 764, 86 S.Ct. at 1832. We recognized that ‘both federal and state courts have usually held that ... [the privilege] offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.’ Id., at 764, 86 S.Ct. at 1832.” (Emphasis added.)

The appellant in this case “was not asked, much less compelled, ‘to give evidence against himself.’ The sole object of the request was to afford the witness, [Mrs. Hendrix] ... an opportunity of seeing the [appellant], and hearing the sound of his voice, so that she might the more intelligently testify whether he was or was not the man by whom she was confronted.... ” Johnson v. Commonwealth, 115 Pa.St. 369, 9 A. 78 (1887).

The statement uttered by the appellant at the suppression hearing was not of a testimonial nature and did not have any testimonial significance. State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970). The appellant did not relate any facts tending to connect him with the robbery, and the mere utterance of the statement did not indicate the appellant had any independent knowledge of the facts of the robbery. Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696 (1967). The only purpose in requiring the appellant to speak was so that Mrs. Hendrix might possibly use the sound of his voice as an identifying physical characteristic. Coleman, supra. For an excellent discussion of this issue, see Judge Cates’s special concurrence in Coleman, supra.

Moreover, we must note that the appellant was not required to exhibit himself or speak those words in front of the jury, and nothing was introduced at trial indicating that Mrs. Hendrix identified the appellant after she heard him speak. Therefore, we cannot see how the appellant was compelled to testify against himself in this instance. We find no error for reversal in this issue.

We have examined the record and find it free 0f err0r. Therefore, the judgment of ⅛6 ⅛] court ⅛ due to ⅛ and ⅛ hereby, affirmed

AFFIRMED.

All the Judges concur.


text:
    Charles Stewart MARQUIS v. STATE.
    1 Div. 621.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.

      Gilbert B. Laden, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant pled guilty to a charge of attempted extortion in the second degree. He was sentenced to one year in jail to be suspended for two years on the condition that he make restitution of $5,000 to the victim within four months.

A motion to revoke appellant’s probation was filed on October 4, 1982, and a hearing was held on April 28, 1983. On April 29, 1983, appellant’s probation was revoked. This appeal is a result of that ruling.

The sole issue raised by appellant is whether the trial judge abused his discretion in revoking appellant’s probation. This assertion is grounded on the absence of a court reporter at the revocation hearing and the resulting lack of a transcript which this court could review. From the record on appeal it is impossible to determine if appellant requested a reporter or made an objection to the lack of one.

Section 12-17-275, Code of Alabama 1975, reads in part that, “The official court reporter shall attend in person, except as otherwise herein provided, the sessions of court held in the circuit for which he is appointed, and in every case, where directed by the judge or requested by a party thereto, he shall take full stenographic notes of the oral testimony and proceedings .. .. ” Section 12-11-8, Code of Alabama 1975, says that, “The term ‘session of court,’ when used in this Code, means any period of time fixed by the presiding judge of the court for the trial of cases or the transaction of any other business, unless the context clearly indicates to the contrary.”

In Ex parte White, 403 So.2d 292 (Ala. 1981), the Supreme Court of Alabama held that, “The duty is not on the defendant to request a court reporter. He is entitled to a court reporter but can waive that right.” That case dealt with the absence of a court reporter during the course of a formal trial in which the defendant was charged with buying, receiving or concealing stolen property.

In Desroches v. Complete Auto Transit, Inc., 409 So.2d 417, 418 (Ala.1981), the Supreme Court of Alabama said:

“Plaintiff argues that it is inherently unfair to deny review of the proceedings at a hearing in which a court reporter is customarily not present, as was the sitúation here. However, in addition to her privilege to employ a reporter to record and transcribe the proceedings at the hearing on the summary judgment motion, plaintiff had available two devices for preserving a record of those proceedings under subsections (d) and (e) of Rule 10, ARAP.”

The court then described the two procedures provided for in Rule 10 and commented that plaintiff pursued none of the available options. The court then added, “This court is bound by the record before it; and the burden is on the appellant to perfect and prosecute the appeal as required by law and the rules of this court and to see that all proceedings before the trial court are contained in the record on appeal.” 409 So.2d at 419.

In the case sub judice, we are dealing with a probation revocation hearing. “Probation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to a crime.... A proceeding to revoke probation is not a criminal prosecution, and we have no statute requiring a formal trial.” Buckelew v. State, 48 Ala.App. 418, 420, 265 So.2d 202, 204 (1972). However, a hearing must be had before there can be a revocation. Martin v. State, 46 Ala.App. 310, 241 So.2d 339 (1970). The hearing must afford the parties an opportunity to adduce proof and to argue as to the inferences flowing from the evidence. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875, cert. denied, 270 Ala. 737, 121 So.2d 881 (1960). Formal procedures and rules of evidence are not employed in probation revocation hearings. Additionally, the trial judge must make a written statement as to the evidence relied upon and the reasons for revoking probation. Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

As the foregoing authorities suggest, the probationer is entitled to minimum standards of due process, but not the higher standards of a formal trial. Although most of the circuit courts of this state may use reporters during probation revocation hearings, the absence of one would not automatically deny due process to the probationer. A probation revocation hearing is an informal process where rules of procedure and evidence are not strictly followed and in which the trial judge has broad discretion. We feel that this is the type of hearing referred to by the Alabama Supreme Court in Desroches, supra.

The appellant, in any event, is entitled to a reporter upon request. Because of the nature of the hearing, the rule laid down in Ex parte White, supra, would not apply. Appellant has pursued none of the options allowed under Rule 10, nor has he met his burden of perfecting the record on appeal.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Roy Enis QUATES, alias v. STATE of Alabama.
    4 Div. 145.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.

      G.A. Lindsey, Elba, for appellant.
    Charles A. Graddick, Atty. Gen., and Ger-rilyn V. Grant, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Roy Enis Quates was indicted for the murder of Gerald Adkison, in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant guilty of the lesser included offense of manslaughter. Following a habitual offender hearing, the trial judge set sentence at forty years’ imprisonment in the penitentiary.

On May 29, 1982 at approximately 11:00 a.m., Lee Horace Gibson saw the appellant at the house of his next door neighbor, Gerald Adkison. Gibson heard the appellant and Gerald’s wife, Louise, having an argument. As the appellant was leaving, Louise told the appellant she was going to call the police. He then replied that he intended to wait on her husband to return home.

The appellant soon left but returned to the Adkinsons’ home at approximately 3:00 that afternoon. He parked his car in Gibson’s yard and asked Gibson to call Gerald. Gibson refused and the appellant yelled, “Come out you dirty coward.” (R. 9). When Gerald came out of the house, the appellant told Gibson, “I am going over and beat hell out of him.” (R. 9).

Soon after, the two men began fighting in between a truck and a car parked in Gerald’s yard. Gibson heard a gunshot. Gerald told Louise to call the police and the appellant said, “Shoot, shoot me again.” (R. 11). Gerald replied that he couldn’t because his gun would only hold one shell.

The two men began fighting again and Gibson saw the appellant hit Gerald with a jack after he was already lying on the ground. The appellant then threw down the jack, picked up the gun, got in his car and left.

The police and rescue squad arrived shortly thereafter. Gerald was transported to Flowers Hospital in Dothan, where he died on June 2, 1982, from the injuries which he had received.

Bob Breed, an officer with the Enterprise Police Department, went to the appellant’s house in an attempt to persuade him to answer some questions at the police station. The appellant was reluctant to go and asked about swearing out a warrant on Gerald Adkison. The appellant then agreed to go to the station. He had not been arrested at this point, just detained.

On the way to the station, the appellant asked Officer Breed if Gerald was still alive and Breed replied that as far as he knew, Gerald was still alive. The appellant said if they would take him to the hospital, “he would kill the son-of-a-bitch.” (R. 83). The appellant was taken to the police station where he was arrested for assault and later for murder.

On June 3, 1982, Bruce DeVane received a statement from the appellant after he had been given his Miranda rights and had waived them. No threats, hope of reward, inducements nor promises were made to the appellant in order to obtain his statement.

The appellant stated he went to the Adki-son house at about noon on May 29,1982, to get some of his property which Louise gave to him.

He returned to their house .later that afternoon and discovered Gerald was home. Gerald came out of his house and told the appellant to come over, which he did. Gerald then started pushing the appellant, cursing and arguing and told him he was going to kill him.

Louise got the shotgun and gave it to Gerald. He pointed the gun at the appellant who was trying to push the gun away, when it went off at his feet. In an effort to prevent Gerald from reloading the gun, the appellant picked up a jack and hit Gerald twice on the head before he fell to the ground.

The first defense witness was Louise Adkison. On May 29,1982, at approximately 4:00 p.m., her husband, Gerald, looked out the window and saw the appellant. He stated he was going to kill the son-of-a-bitch and picked up the shotgun and loaded it. Gerald told her to bring it to him if he needed it. He then put the shotgun beside the door, opened a knife, put it in his pocket and walked out the door.

Once outside, Gerald yelled for the appellant to come over, which he did. Gerald asked Louise for the gun and she brought it to him. He cocked it and pointed it at the appellant who did not have a weapon.

As Louise ran to call the police, she heard a gunshot.

Louise testified that she had earlier lied to the police concerning the events of May 29, because Gerald’s brothers had threatened her. She testified that the appellant is her son-in-law, and she does not want to see him go to jail. Louise admitted that Gerald and the appellant had been involved in a previous altercation in which the appellant hit Gerald on the head with a jack and he had to go to the hospital.

I

The appellant contends the trial court committed reversible error when it failed to charge the jury on the lesser included offense of criminally negligent homicide.

Section 13A-l-9(b), Code of Alabama 1975 states:

“The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.”

Section 13A-6-4(a), Code of Alabama 1975 provides that:

“A person commits the crime of criminally negligent homicide if he causes the death of another person by criminal negligence.”

The definition of “Criminal negligence” provided by the Code is as follows:

“.A person acts with criminal negligence with respect to a result or to a circumstance which is defined by statute as an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

Ala.Code, § 13A-2-2(4) (1975). (Emphasis added).

Certainly, it cannot be said that the appellant failed to perceive that the deceased’s death might result if he was hit on the head with a jack. The ordinary person would be aware that someone who is hit on the head with a heavy object, such as a jack, would sustain serious, if not fatal, injuries.

The appellant’s argument that the jury should have been charged on criminally negligent homicide, because he claimed he killed the deceased in self-defense, is without merit. In Daly v. State, 401 So.2d 274 (Ala.Cr.App.1981), the defendant claimed he should have been found guilty of criminally negligent homicide, because he had acted in self-defense. In that case, Judge Leigh Clark stated:

“There would be considerable force to such contention if the section defining criminally negligent homicide, § 13A-6-4, had not been amended prior to its effective date, and prior to the commission of the alleged crime, by expunging therefrom one of the two kinds of criminally negligent homicide therein defined:
‘(a) A person commits the crime of criminally negligent homicide if:
‘(1) ...;
‘(2) He intentionally or recklessly causes the death of another person in the good faith but unreasonable belief that one or more grounds for justification exists under Article 2 of Chapter 3 of this Title.

“As thus amended, § 13A-6-4 sets forth only one kind of criminally negligent homicide. It states simply, ‘A person commits the crime of criminally negligent homicide if he causes the death of another person by criminal negligence.’ ”

The commentary to § 13A-6-4, Code of Alabama 1975, also addresses this issue. It states:

“Section 13A-6-4 originally included the ‘imperfect defense’ doctrine where defendant was not wholly justified or excused in an intentional.or reckless killing, but, at the same time, he was partially justified because he caused the death in the good faith but unreasonable belief that he had grounds for justification (self-defense; use of force in making arrest, necessity, duress, etc.) and is excused to the extent that he should not be held 100% liable for murder or manslaughter (voluntary), but liable only for the crime of criminally negligent homicide. The doctrine has never been formalized under Alabama law, except to the extent that sometimes whether defendant acted reasonably or rashly, hastily or without good judgment, becomes a state of mind closer to ‘negligence’ than ‘malice’ or ‘intentional,’ and is placed by the jury in a manslaughter category. The 1979 legislature repealed the ‘imperfect defense’ provision.”

A claim of self-defense does not reduce a charge of murder or manslaughter to criminally negligent homicide. The appellant is either guilty of manslaughter or he is innocent of the charge because the killing was justified. The jury chose to believe the former in this ease.

Therefore, we do not find any reasonable theory contained in the record which would support a charge to the jury on the lesser included offense of criminally negligent homicide. The trial judge was correct in refusing to give such charge.

II

The appellant’s contention that the Habitual Offender Act is being selectively and discriminately enforced is without merit.

A criminal statute will be found to violate the Equal Protection Clause of the United States Constitution if an accused can demonstrate to the court that similarly situated persons are not being treated equally, and that the discrimination is intentional and is based upon an unjustifiable standard or arbitrary classification. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

This appellant attempted to show that one individual who should have been prosecuted as a habitual offender was not treated as such. We do not find this instance to be sufficient to establish that the Habitual Offender Act is being selectively enforced.

First, the appellant offered proof of only one individual who had been treated differently under this statute. Secondly, he offered no evidence that this alleged discrimination was intentional or based on a suspect classification.

Therefore, there is no error shown in this record. For the reasons stated above, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Albert Joe RYANS v. STATE.
    4 Div. 151.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Dec. 22, 1983. Alabama Supreme Court 83-121.
    Julius H. Hunter, Jr., Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The record in this case contains three cases. The appellant, Albert Joe Ryans, was indicted by the Grand Jury of Russell County in 'Case Number CC-83-1 for theft of property in the second degree, a Class C Felony. He duly and legally entered a plea of guilty, and was sentenced on March 15, 1983 to 15 years’ imprisonment. In Case Number CC-83-2 he was charged with forgery in the second degree, a Class C Felony. He duly and legally entered a plea of guilty, and was sentenced to 15 years’ imprisonment. In Case Number CC-83-3 he was charged with escape in the third degree, a Class C Felony. He duly and legally entered a plea of guilty, and was sentenced to 15 years’ imprisonment, the sentences in Cases Numbered CC-83-2 and CC-83-3 to run concurrently with the sentence in Case Number CC-83-1. The appellant, having had 4 prior felony convictions, was sentenced under the Habitual Felony Offender Act of Alabama. He appeals to this Court.

The appellant was represented at all proceedings in the three cases in the trial court, and is represented in this Court by counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief that the issue presented to this Court is whether the Alabama Habitual Felony Offender Act and its mandatory provisions constitute cruel and unusual punishment pursuant to the Eighth Amendment, and violate the due process clause of the Fourteenth Amendment of the United States Constitution.

A diligent and thorough search of the record reveals that no objection, argument, or suggestion was made in the trial court that Section 13A-5-9, Habitual Felony Offender Act, or any section thereof, was unconstitutional. The failure to raise the unconstitutionality of Section 13A-5-9 of the 1975 Code of Alabama in the trial court prevents this Court from considering the matter. We hold the record does not present to this Court the question of the constitutionality of the Habitual Felony Offender Act. Owen v. State, Ala.Cr.App., 418 So.2d 214; Andersen v. State, Ala.Cr.App., 418 So.2d 967; Moore v. State, Ala.Cr.App., 415 So.2d 1210; Poe v. State, Ala.Cr.App., 389 So.2d 154; Hollis v. State, Ala.Cr.App., 380 So.2d 409; Smith v. State, Ala.Cr.App., 392 So.2d 1273.

We have examined the record, and do not find reversible error.

The judgment of the trial court is due to be, and is hereby affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Vernon Earl HASTINGS, Sr. v. STATE of Alabama.
    1 Div. 524.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.

      Charles N. McKnight of Bryant & McKnight, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Vernon Earl Hastings, Sr., was charged with unlawfully possessing Hydromorphone Hydrochloride, a controlled substance, on or about December 15, 1981, contrary to the provisions of Alabama Uniform Controlled Substances Act, in violation of § 20-2-70, Code of Alabama 1975, as amended.

Appellant waived jury trial and was tried before the court, following which the trial judge found the appellant guilty as charged and sentenced him to five years’ imprisonment and assessed a $2,500.00 fine.

The State’s testimony consisted of the arresting officer, Larry Mote, of the Mobile Police Department Narcotics Squad, who, pursuant to a valid search warrant, entered the home of the appellant on December 15, 1981, and conducted a daytime search of the appellant’s residence at 448 Sipsey Street, Mobile, and further conducted a strip search of the appellant’s person, shortly after 9 o’clock on the morning of December 15, 1981.

Officer Mote was assisted by fellow officers, Stokes and Osborne. They seized several syringes found lying on a bed in appellant’s bedroom and two additional syringes found in the kitchen of the home and a bottle of clear liquid and spoon.

The strip search of the appellant’s person was conducted at the residence because the police informant had advised that the appellant had a “body cavity” or other place on his person into which he placed controlled substances.

During the strip search of the appellant’s person, a large bottle was found by causing the appellant to lift up his stomach (the appellant weighed over 400 pounds) and there was a bottle hidden which contained 13 yellow tablets, 19 beige tablets and 47 orange tablets.

Officer Mote further testified that he took three syringes from another subject on the premises named Cliff Davis.

The items seized were subsequently delivered to the Mobile toxicologist’s office where Ms, Sylvia Bryant made her analysis of the seized items and found that each of the syringes was negative for any controlled substance as was the spoon found in a purse lying on appellant’s bed. However, the bottle found in the purse had a clear liquid substance and was determined to be a combination of Talwin and Tripalinmine, which is used by injection and is a controlled substance.

The 47 orange tablets removed from the bottle on the person of the appellant were determined to contain Pentazozine Hydrochloride, which goes under the trade name Talwin, a controlled substance. Some other 19 tablets were also shown to be a controlled substance known as Dilaudid and some other tablets contained the chemical Phenmetrozine, known as Prelaudine, also a controlled substance.

The appellant’s motion to suppress and to exclude were overruled and the appellant presented no testimony at trial.

I

The issue here presented is a challenge to the search of the appellant’s person after presentation of the search warrant upon entering the residence of the appellant.

It is clear from reading Officer Mote’s testimony that he and his fellow officers had probable cause which was spelled out in the search warrant to enter the appellant’s residence.

The officers were validly inside the appellant’s home pursuant to this warrant.

Officer Mote testified that he had been informed by his informant that the appellant had a quantity of narcotic drugs on his person which was secreted within some type of “cavity” or other hiding place on the person of the appellant.

A valid strip search of his person at the residence confirmed this information with the bottle being found underneath the appellant’s large stomach, containing a number of pills, i.e., 13 yellow tablets, 19 beige tablets and 47 orange tablets.

We are of the view that the opinion of the United States Supreme Court in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), clearly authorized Officer Mote and his fellow officers to detain the appellant and conduct a search of his person inside the appellant’s residence. Officer Mote’s testimony clearly establishes that a valid reason existed for making this search at the residence, and the officers acted in a proper manner in detaining the actions of the arrestee once they were validly on the premises. Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982).

The mere fact that the initial seizure of the syringes which were subsequently determined to be negative insofar as containing a controlled substance did not preclude the officers’ search of the appellant’s person. Authorities above cited.

The finding of other substances on the person of the appellant, other than those which were removed from the purse on the bed of the appellant, and seizures were entirely proper. Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975), and authorities therein cited.

We have carefully examined this record and find no error therein. The judgment appealed from is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.