author: BOWEN, Presiding Judge.

text:
    Ex parte Josephus ANDERSON. In re State of Alabama v. Josephus Anderson.
    1 Div. 722.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied Feb. 9, 1984.

      William N. Clark of Redden, Mills & Clark, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   PETITION FOR WRIT OF MANDAMUS OR, IN THE ALTERNATIVE, FOR WRIT OF CERTIORARI

BOWEN, Presiding Judge.

Through a 'petition for writ of mandamus filed in this Court, Josephus Anderson seeks to prevent his further prosecution and retrial for the capital murder of Birmingham Police Officer Albert Eugene Ballard. After a review of the issues raised, we deny the relief sought.

On the 29th of November, 1979, Officer Ballard was fatally shot while on duty in downtown Birmingham. Anderson was indicted that December. His motion for a change.of venue was granted and his trial was transferred to Mobile County. There, he has been tried three times for the same offense. Each trial resulted in a mistrial because of the inability of the jury to reach a verdict. Now, the State seeks to try Anderson a fourth time.

At the conclusion of each trial, defense counsel filed a plea of former jeopardy or, in the alternative, a motion to dismiss. After the third trial, he also filed a motion for judgment of acquittal. Each plea and motion was denied. The jury’s vote in each trial was stipulated to by defense counsel and the district attorney. In September of 1983, Anderson filed a petition for writ of mandamus in this Court seeking to terminate his further prosecution for the capital offense by requiring the trial judge to either sustain his plea of former jeopardy, grant his motion to dismiss, or grant his motion for judgment of acquittal.

In this mandamus proceeding, Anderson maintains that a fourth trial after three prior mistrials constitutes a denial of due process, violates traditional notions of fair play and substantial justice and results in an abandonment of the reasonable doubt standard. He also maintains that another trial would violate his Fifth and Fourteenth Amendment privileges against double jeopardy under the Constitution of the United States and Alabama Constitution Article I, Section 9.

I. THE FACTS

A. The First Trial

Anderson was first tried in March of 1981. The trial judge (Joseph M. Hocklan-der) declared a mistrial after the forewoman of the jury informed the judge that the jury was having difficulty and “might not even be able to get a verdict.” Judge Hocklander encouraged the jury to continue deliberating to reach a verdict. He questioned the forewoman as to the benefit of further deliberation and then asked the other members of the jury what they thought (“Does anyone feel that further deliberation would be of benefit?”). He also inquired if any disagreed with the forewoman’s answer.

Although we have only a portion of the record of Anderson’s first trial before us, we find no specific objection in the record to the declaration of the mistrial. Indeed, although the record does not reflect why, there is an indication that defense counsel had earlier requested a mistrial.

“MR. CLARK: If they have not reached a verdict, do you intend to let them deliberate longer?
“THE COURT: No.
“MR. CLARK: Could we approach the bench just a second?
(Bench:)
“MR. CLARK: It’s only actually been about four hours. It’s a four-day trial.
“THE COURT: That’s coming from the man who wanted the mistrial last night.
“MR. CLARK: That was denied.
“THE COURT: I considered it very seriously. Bring them in. I’ll see what they have to say.”

Although this is all the record shows on this matter, defense counsel maintains, and we have no reason to believe otherwise, that, when Judge Hocklander indicated that he was going to declare a mistrial, counsel “asked him if he would permit the jurors to deliberate further and he denied that request.” When the mistrial was declared, the jury had deliberated for four hours after a four-day trial and stood ten for acquittal and two for conviction.

B. The Second Trial

Anderson’s second trial was in November of 1981. The record shows that the trial judge (Telfair Mashburn) brought the jury into the courtroom “because it’s obvious that you must be having problems arriving at a verdict since you’ve been out since twenty-five minutes till nine this morning.” The judge encouraged the jurors to reach a unanimous verdict and gave a charge consistent in principle with Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Before the jury resumed deliberation, the foreman indicated “(t)hey want to stay here as late as possible to see could we come to a decision.”

Approximately one hour and forty-five minutes later the judge had the jury brought back into the courtroom and determined, by questioning the foreman, that there was “no possibility of your arriving at a verdict” and that they were “no closer than you were” before. Judge Mashburn then stated:

“If there’s no objections, I’m going to discharge this jury and declare a mistrial in this case.
“All of you agree that you would be unable to arrive at a verdict if I kept you here any longer?
“(Jury indicated in the positive.)”

The record reflects no objection to the declaration of the mistrial. The jury had been deliberating for seven hours after a four-day trial. The vote was nine for acquittal and three for conviction.

C. The Third Trial

Anderson’s third trial was in March of 1983. The trial judge (Mashburn) stated to the jury, “Now they tell me that you’ve reported that you are unable to arrive at a verdict?” The foreman replied, “That’s correct” and, in response to further questioning, indicated that the jury was “hopelessly deadlocked”. Judge Mashburn gave an “Allen” instruction and sent the jury back into the jury room. He then stated to defense counsel:

“THE COURT: I’m going to give them an hour or hour and a half and if they still say they are hopelessly deadlocked, I think I’m going to withdraw the case from them and declare a mistrial. What do you think about that Mr. Clark?
“MR. CLARK: Let’s just wait and see. I don’t know. That may be the only thing to do.”

Defense counsel then requested a mistrial on the grounds that some lawbooks had been in the jury room during the jury’s deliberation. After ascertaining that none of the jurors “looked at anything on that desk and none of you discussed anything on that desk in your deliberations”, the judge denied the mistrial.

The jury had been deliberating for four and one-half hours after a five-day trial when the following occurred:

“THE COURT: Now you understand what I plan to do. Bring them out here and ask them if there’s any possibility of them getting a verdict. Pointing out that it’s not fair to the defendant or the State either not to have one but that if they are convinced they are not going to be able to reach a verdict no matter how long they stay back there then there’s nothing I can do but discharge them. “MR. CLARK (Defense Counsel): I think you will let them know that when you say it’s not fair that none of us are mad at them. We all know they’ve been making a real effort, (emphasis added) “THE COURT: I wasn’t going to say anything about that. Just that it’s not fair to the defendant and the State. I don’t mean to these people, to the institution. Bring them on in.
(JURY PRESENT.)
“THE COURT: All right, Mr. Foreman, you still not able to reach a verdict?
“MR. FOREMAN: No, sir; we are not able to reach a verdict.
“THE COURT: And you don’t think that you would be able to reach one if I kept you in there longer?
“MR. FOREMAN: I don’t think we would be able to reach a verdict if you kept us longer.
“THE COURT: You know I’m faced with the proposition that it’s not fair to the defendant and not fair to the State. When I say the State, I don’t mean these two lawyers representing them. I mean the institution. To have the thing and not have it resolved. But as I explained to you this morning you’ve been a good jury and you’ve listened to the case patiently. I don’t think the whole week I’ve observed one of you looking like you weren’t wide awake and paying attention to what was going on and after all that’s the necessary thing because if you are asleep or if you are stargazing you certainly can’t be aware of what’s going on. And do all of you feel that it’s just a matter that you can’t resolve no matter how long you stay back there.
“(Jury indicated in the positive.)
“THE COURT: All right, reluctantly, I’m going to discharge you and declare a mistrial.”

The jury was split eight for acquittal and four for conviction.

This record contains no indication that the State intends to present any new evidence at Anderson’s fourth trial.

In denying Anderson's plea of former jeopardy, Judge Mashburn expressed his firm belief in Anderson’s guilt. This belief plays a significant role in our decision. In denying the motion after the second trial, he stated:

“I’m not going to turn loose a man that I feel (is guilty) from the evidence and I don’t see how 9 people could come out of there after listening to that evidence for four days and say that man was not guilty. I will never be able to understand that.”
“(I)f there was some doubt about his guilt in my mind, I might consider your motion, Mr. Clark. But since I’m convinced he is guilty from the evidence I heard, I’m going to deny your motion.”

After the third trial another hearing was held on the double jeopardy issue. During that hearing Judge Mashburn stated:

“THE COURT: Well, let me say this. I tried the case twice, heard the evidence from beginning to end, believe I’m more familiar with it than either of these gentlemen and how any reasonable man could have any doubt as to the defendant’s guilt on the evidence that the State brought here the two times I heard it tried is beyond my comprehension. We had a man, had the people from the savings and loan association that a man with a leather coat, cutie looking cap, came in, threw a gun on them, took money, took traveler’s cheeks, they gave him marked money, they had the numbers of the traveler's checks, they turned in burglar alarms, had people that heard the burglar alarm, the time frame worked out fairly close, that just a'few minutes later a few blocks — two or three blocks from here — there was this man. I admit there was quite a bit of confusion but that one black witness that testified never had any hesitation saying that’s the man that the policeman stopped and walked over to his car, reached down and picked up something either out of a bag — nobody knew exactly where he got it — leaning in that car, shot that policeman when the policeman had done nothing except call him over to the car to talk to him. We had these other people tracing him on. It was incongruous that one witness testified about a hat with a brim all the way around it. But in the excitement there would certainly be some discrepancies but they almost tracked him right on down to the place where he was shot and there you found them picking up the money, marked money, from the savings and loan. The identifiable traveler’s checks. You’ve got the gun that two people testified fired the shot not only there at the scene but fired the shots that killed this policeman. You remember that I told you that I had read somewhere where there had been rulings that two mistrials were equal to an acquittal. But having heard the evidence and as I say just being mystified how any reasonable person could fail to believe that that was the man that shot that policeman is beyond my comprehension. I don’t need any argument from the State to deny that motion.”

In reply to defense counsel’s objection to the correctness of the judge’s statement of facts, Judge Mashburn responded:

“I don’t need that (transcripts of the three prior trials). I heard the evidence. I was convinced beyond a reasonable doubt when I heard the evidence that the man was guilty. The second time I heard it, I was convinced he was guilty. Now I’m trying cases everyday. Just because I didn’t quote exactly the way the witnesses say it, I’ve quoted the substance of their testimony.”

We find especially significant Judge Mashburn’s comments in denying Anderson’s motions following the third trial:

“I’m faced in this thing — in as far as the mistrial, the State had nothing to do with the Court declaring a mistrial. The last time we were here on Easter weekend and that’s the reason I kept them here late Friday night hoping they could get a verdict and I absolutely refused to discharge them until they convinced me that there was no possibility of their reaching a verdict no matter how long I kept them out there. The State made no motion for me to declare a mistrial. While the record doesn’t reflect, if it doesn’t, that I questioned them and was informed on more than one occasion in both trials that there was no possibility of their reaching a verdict and that I declared a mistrial because of that. As I say, being convinced as I am of the guilt of the defendant, I might be inclined to grant your motion if there was in my thinking any possibility of a jury finding this man not guilty. But I, for the life of me, I can’t understand how reasonable people had any reasonable doubt of his guilt. For that reason, I’m going to deny your motion.”

In each of his three trials and in this mandamus proceeding, Anderson is represented by the same court appointed counsel, Bill Clark. In responding to Mr. Clark’s claim of “politics” in the continued prosecution of Anderson after the third mistrial, Judge Mashburn recognized the competency of both the prosecutor and defense counsel:

“I didn’t believe that any lawyer could have done a better job than he (the prosecutor) did. I thought he did a good job and it was only the expertise of his opponent (defense counsel), I felt, that kept him from getting a conviction.”

II. THE FORMER JEOPARDY ISSUE

We conclude that the double jeopardy clauses of both the state and federal constitutions do not bar or prevent a fourth trial for the same offense where the three prior trials have ended in properly declared mistrials due to hung or deadlocked juries.

“The fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant’s objection is United States v. Perez, (22 U.S. 579) 9 Wheat. 579 [6 L.Ed. 165] (1824).” Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973). Perez held that the declaration of a mistrial because of the jury’s inability to agree is not a bar to a subsequent trial for the same offense.

“We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.” Perez, 22 U.S. (9 Wheat) at 580.

This passage sets out the standard to measure the propriety of a mistrial declared without the consent of the defendant. United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971).

In applying the Perez standard, our United States Supreme Court has described the “classic basis” for a “proper mistrial” as being the conclusion of the trial judge that a divided jury will be “unable to reach a verdict.”

“At the other extreme (from those cases wherein the mistrial ⅛ declared to allow the prosecutor to buttress weaknesses in his evidence) is the mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict, long considered the classic basis for a proper mistrial. The argument that a jury’s inability to agree establishes reasonable doubt as to the defendant’s guilt, and therefore requires acquittal, has been uniformly rejected in this country. Instead, without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.”
Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978).

A retrial following a mistrial because of a deadlocked jury does not normally give rise to a colorable claim of former jeopardy unless the trial judge has abused his discretion in declaring that mistrial. United States v. Ellis, 646 F.2d 132, 135 (4th Cir.1981). See also United States v. Brown, 677 F.2d 26, 27 (6th Cir.1982); United States v. Cawley, 630 F.2d 1345, 1348 (9th Cir.1980).

In Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973), this Court held that a defendant was not placed in double jeopardy by a third prosecution for murder after his first two trials ended in mistrials because of the failure of the jury to reach a verdict. See also Clements v. State, 390 So.2d 1131 (Ala.Cr.App.), cert. denied, Ex parte Clements, 390 So.2d 1136 (Ala.1980).

“Section 9 of the Alabama Constitution of 1901 and Alabama Code Section 12-16-233 (1975) give the trial judge the authority and discretion to discharge a jury upon a failure to agree. Parham v. State, 285 Ala. 334, 231 So.2d 899 (1970); Parham v. State, 47 Ala.App. 76, 250 So.2d 613 (1971); Orr v. State, 40 Ala. App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). A jury’s inability to agree either on a verdict or punishment is a proper reason for the declaration of a mistrial. After such a mistrial, the retrial of the defendant is not barred by double jeopardy. Alford v. State, 243 Ala. 404, 10 So.2d 373 (1942); Curry v. State, 203 Ala. 239, 82 So. 489 (1919); Parker v. State, 51 Ala. App. 362, 285 So.2d 526, cert. denied, 291 Ala. 795, 285 So.2d 529 (1973); Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973); Powell v. State, 37 Ala.App. 192, 65 So.2d 718 (1953). ‘A mistrial is no trial.’ Willingham, 50 Ala.App. at 366, 279 So.2d 534. When the jury fails to agree on a verdict, the whole proceeding is completely nullified and nothing remains which can benefit the defendant. Powell, 37 Ala.App. at 193, 65 So.2d 718.”
Clements, 390 So.2d at 1132-33.

Some federal courts have indicated that there may be a “breaking point” at which double jeopardy will bar a reprosecution. Although United States v. Gunter, 546 F.2d 861, 866 (10th Cir.1976), held that a third prosecution after two hung juries was not barred, the court noted, “There indeed may be a breaking point, but we do not believe it was reached in the instant case.” In Preston v. Blackledge, 332 F.Supp. 681, 688 (E.D.N.C.1971), it was held that a fifth trial following four hung juries went “beyond the allowed exceptions” of Perez and violated the principles of the Double Jeopardy Clause. There, the court found an abuse of the State’s right to retry the accused when the jury could not agree. The court, citing Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), weighed “the public’s interest in justice” against “the accused’s right to be tried by a particular tribunal” and found that the accused’s rights outweighed the demand for public justice. 332 F.Supp. at 686.

“There is no doubt that such a practice (retrial after a jury has failed to reach a verdict) is oppressive, that it creates undue anxiety and insecurity, and that it enhances the possibility that an innocent man may be found guilty. Furthermore, this court feels that to try the petitioners five times is far beyond the allowed exceptions set forth in Perez, and also exceeds the limitations on the right to retry an accused subsequently set forth by our Supreme Court.”
Preston, 332 F.Supp. at 688.

Although Preston v. Blackledge does support Anderson’s argument, our attitude toward that case is the same as was expressed in United States v. Castellanos, 478 F.2d 749, 752, n. 2 (2d Cir.1973), which' dismissed Preston with the terse comment: “While we doubt the correctness of the case’s reasoning, it is distinguishable from the one at hand on the basis of numbers, if nothing else.” See also State v. Aillon, 182 Conn. 124, 438 A.2d 30, 37, n. 8 (1980).

Although double jeopardy was held to have precluded a third trial of the accused in United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034 (3rd Cir. 1975), the facts of that case show that the trial judge abused his discretion in declaring a mistrial. Where a mistrial is properly declared, double jeopardy does not bar a second trial. Arnold v. McCarthy, 566 F.2d 1377, 1386-88 (9th Cir.1978). “(T)he essential question in each case involving double jeopardy contentions after the declaration of a mistrial has been whether the trial judge abused his discretion in terminating the trial short of verdict. If so, retrial is barred.” United States v. Castellanos, 478 F.2d 749, 751 (2nd Cir.1973).

Upon the above authorities, we conclude that the Double Jeopardy Clause does not bar Anderson's retrial in this case.

Ill

Necessarily included in our determination that another retrial following the mistrials does not give rise to a colorable claim of double jeopardy is a finding that the trial judges did not abuse their discretion in declaring the mistrials. Ellis, 646 F.2d at 135. In Part I of this opinion, we have set forth the known details surrounding the three mistrials.

Here, we find 'no abuse of the trial judges’ discretion in declaring any of the three mistrials. While we may have allowed the jury to deliberate longer in at least one of the trials, that is not the criterion. “There is no minimum amount of time which a jury must spend in deliberations before a mistrial can be declared. This factor is one which is best left to the determination of the trial judge who was most aware of the circumstances of the trial.” Arnold v. McCarthy, 566 F.2d 1377, 1387 (9th Cir.1978). We cannot find as a matter of law that any of the time periods involved constituted an unreasonably short time for a jury to reach a deadlock.

“Also, the judge might have determined that requiring the jury to further deliberate could result in an unfair verdict. Coercion of an already exhausted jury to continue deliberations may induce jurors to accommodate a verdict which they would not otherwise support.
“Such compulsion may have resulted in nothing more than needless waste of judicial resources and time if the jury was actually deadlocked. The record does not tell whether these considerations entered the mind of the trial judge, but their subtle presence in almost every case is additional reason to defer to the district judge’s finding.”
Arnold, 566 F.2d at 1387 (citations omitted).

We have reviewed “a number of significant factors which are useful in determining whether a judge has properly exercised his discretion to declare a deadlocked jury.” Arnold, 566 F.2d at 1386. The application of those factors to this case supports the trial judges’ determinations that each of the three juries was hopelessly deadlocked. “(T)he trial court is in the the best position to assess all the factors which must be considered in making a necessarily discretionary determination whether the jury will be able to reach a just verdict if it continues to deliberate.” Washington, 434 U.S. at 510, n. 28, 98 S.Ct. at 832, n. 28.

“Moreover, in this situation there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not ‘manifest necessity’ justifies a discharge of the jury. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his ‘valued right to have his trial completed by a particular tribunal.’ But if he fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. If retrial of the defendant were barred whenever an appellate court views the ‘necessity’ for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of the serious societal consequences of an erroneous ruling, would employ coercive means to break the apparent deadlock. Such a rule would frustrate the public interest in just judgments. The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court.”
Washington, 434 U.S. at 509-10, 98 S.Ct. at 832 (footnotes omitted).

See also Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892).

In each instance, the record shows that the trial judge appropriately determined that there was a manifest necessity for a mistrial by questioning either the jury foreman or the entire jury. Cawley, 630 F.2d at 1349. Under the facts and circumstances of this case those determinations are due to be accorded deference.

IV. THE DUE PROCESS ISSUE

Even though the Double Jeopardy Clause does not bar Anderson’s retrial, he argues that another trial will violate his rights under the Due Process Clause. This is a valid argument, Castellanos, 478 F.2d at 753, n. 4, although we reject its application under the circumstances of this case.

Some courts have recognized that, even though reprosecution is not barred by double jeopardy, the trial judge has “inherent authority to terminate a prosecution” where previous trials have resulted in deadlocked juries. Annot. 4 A.L.R.4th 1274, 1283 (1981). In support of his argument, Anderson relies on United States v. Ingram, 412 F.Supp. 384 (D.D.C.1976); State v. Moriwake, 647 P.2d 705 (Hawaii 1982); State v. Witt, 572 S.W.2d 913 (Tenn.1978); and People v. Kirby, 112 Misc.2d 906, 447 N.Y.S.2d 606 (1982). In each of these cases the trial judge’s dismissal of the indictment after mistrials because of the jury’s failure to agree was upheld on appeal — not under the Double Jeopardy Clause but under principles of due process. Each of ■these cases is distinguishable from the present one because they involve a review of a trial judge’s finding that justice demanded that further prosecution be terminated.

In Ingram, the court noted that it was “simply a matter of fair play” and held that “(t)o permit (a third) retrial, after 21 of 24 jurors have already refused to convict, is to ignore the reasonable doubt standard.” 412 F.Supp. at 385-86. The district court felt that “the Government, always a hard loser, simply wishes to keep pressing so long as juries disagree in the hope that a conviction eventually will result.” 412 F.Supp. at 385. Weighing the government’s inability to convince a jury against “the strain on defendant, the burden on inadequately compensated defense counsel, the inconvenience to the ... (witnesses), and the urgency of the more significant court business subject to priority demands”, the district court found that its intervention was required in “the interests of justice.” 412 F.Supp. at 386.

In Moriwake, the court held that a trial judge had the inherent judicial power to “sua sponte dismiss an indictment with prejudice following the declaration of one or more mistrials because of genuinely deadlocked juries, even though the defendant’s constitutional rights are not yet implicated.” 647 P.2d at 712. However, the court recognized that a third or even more trials may be appropriate “in certain circumstances.” 647 P.2d at 713.

Witt, which was followed in Moriwake, specifically rejected the application of the constitutional ground of double jeopardy and held that “trial judges have the inherent authority to terminate a prosecution in the exercise of a sound judicial discretion where, ... repeated trials, free of prejudicial error, have resulted in genuinely deadlocked juries and where it appears that at future trials substantially the same evidence will be presented and that the probability of continued hung juries is great.” 572 S.W.2d at 917. The Tennessee Supreme Court emphasized that “the trial judge made a finding, ... supported by opinions of jurors who had heard the evidence and participated in deliberations seeking to reach a verdict, that the probability of any future jury reaching a verdict of guilt or innocence is almost nonexistent.” 572 S.W.2d at 916-17. However, even Witt recognized that the propriety of the trial judge’s dismissal of the indictment must be determined within the particular facts and circumstances of each case and the rights of the accused must be balanced against the public interest in justice without the “ ‘mechanical application of an abstract formula’ that the cases condemn.” 572 S.W.2d at 916.

In Kirby, the trial court dismissed the indictment after the defendant’s three trials had each resulted in a mistrial. The court recognized that trial courts “must have the discretion, ... to prohibit further prosecution where it appears that a just verdict, or any verdict, is unattainable.” 447 N.Y.S.2d at 610. There, the trial judge was of the opinion that there was “little likelihood that any jury would in the future reach unanimous agreement as to the charges.” He found that “the fatal flaw in the prosecution’s case is, ... the credibility of the prosecution’s principal witness.” 447 N.Y.S.2d at 607. Kirby also recognized that there is no magic number of mistrials to which an accused must be subjected before further prosecution is constitutionally impermissible.

“This opinion is not to be construed as fixing the permissible or impermissible number of mistrials caused by deadlocked juries. The relevant principles must be applied on an ad hoc basis. The court is not announcing a per se rule or applying a formula mechanically. The sound judicial discretion of a trial judge to terminate a criminal prosecution is a power that ought to be used with the utmost caution and then only where the circumstances clearly justify such action.”

Kirby, 447 N.Y.S.2d at 610.

We fully recognize and adhere to the principle that to allow the State repeated opportunities to convict an individual may unfairly shift the constitutional scheme of the criminal justice system. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Note: Mistrials And Double Jeopardy, 15 Amer.Crim.L.Rev. 169, 190 (1977). However, “a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury ... would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.” United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). Each case must turn on its own particular facts and circumstances. Arnold v. State, 563 S.W.2d 792 (Tenn.Cr.App.1977).

A number of factors have been suggested for consideration in determining the propriety of retrial following a mistrial. Schulhofer, Jeopardy And Mistrials, 125 U.Pa.L.Rev. 449, 493-507 (1977).

“Simply put, ‘(i)t is a matter of balancing the interest of the state against fundamental fairness to a defendant with the added ingredient of the orderly functioning of the court system.’ State v. Braunsdorf, supra [98 Wis.2d 569], 297 N.W.2d [808] at 817. The factors which the trial court should consider in undertaking this balance include the following: (1) the severity of the offense charged; (2) the number of prior mistrials and the circumstances of the jury deliberation therein, so far as is known; (3) the character of prior trials in terms of length, complexity and similarity of evidence presented; (4) the likelihood of any substantial difference in a subsequent trial, if allowed; (5) the trial court’s own evaluation of relative case strength; and (6) the professional conduct and diligence of respective counsel, particularly that of the prosecuting attorney.” Moriwake, 647 P.2d at 712-13 (considerations for the trial judge in sua sponte dismissing an indictment with prejudice following the declaration of one or more mistrials because of genuinely deadlocked juries).

See also State v. Lundeen, 297 N.W.2d 232, 236 (Iowa App.1980).

In finding that the Due Process Clause does not prevent Anderson’s fourth trial, we have carefully weighed and considered each of these factors, which we attempted to set out in Part I of this opinion. We find that reprosecution will not cause Anderson any substantial and specifically identifiable prejudice.

The harm resulting from the delay caused by mistrial and reprosecution is minimal, as will be the personal strain of another trial, Green, 355 U.S. at 187-88, 78 S.Ct. at 223, because Anderson has been and remains incarcerated within the Alabama Prison System serving a sentence for robbery. There is no evidence that the strain and expense of a fourth trial will hamper Anderson’s chances for an acquittal. Anderson continues to be represented by the same appointed counsel. In balancing all the factors involved, we have considered the inconvenience to both counsel and witnesses which a fourth trial will entail. Although we fully recognize the hardship imposed on appointed counsel by Anderson’s continued prosecution, we do not consider that inconvenience paramount in deciding the issue before us, but only one of several important factors to consider.

There is no evidence that either deliberate governmental misconduct is involved in any of the mistrials or that the repeated prosecutions are the result of deliberate harassment by a prosecutor whose evidence is weak and insufficient. We see no unilateral advantage that the State will gain in reprosecuting Anderson. Implicit in Judge Mashburn’s rulings and comments is a finding that the State’s ease is not fraught with inherent weaknesses of probative evidence or insufficient to present a prima facie case.

We recognize that a mistrial due to the inability of the jury to agree upon a verdict “involves acute possibilities for prejudice to the defendant.” Schulhofer at 522. Yet, we weigh more heavily in this case the public’s right to justice and both the State’s and the defendant’s right to a final determination of the accusation. A contrary ruling under the circumstances we have described would “subvert the public interest and permit a person, however guilty of serious crimes against society, to walk away unadjudicated, thereby reducing the detriment of punishment by increasing in a large measure the probabilities of escaping it.” People v. Baker, 70 Misc.2d 986, 335 N.Y.S.2d 487, 492 (1972). This principle is especially compelling here for two reasons. First, the nature of the particular crime committed is significant here because not only is it so serious as to be classified as a capital offense and merit the death penalty, but also because it involves the murder of a uniformed police officer in the performance of his official duty. Few crimes so tear at the very fabric of our criminal justice system as does the intentional killing of one charged with and actively engaged in enforcing the law.

Second, the trial judge’s finding that he could not “understand how reasonable people had any reasonable doubt of his guilt” stands in stark contrast to every case Anderson cites on his behalf. If for no other reason, this fact alone distinguishes and differentiates every other case we have reviewed in seeking a just answer to the questions Anderson presents to this Court.

The petition for writ of mandamus is denied.

WRIT DENIED.

TYSON, SAM TAYLOR and HUBERT TAYLOR, JJ., concur.

HARRIS, J., not sitting.

      . Those factors include:
      “(1) a timely objection by defendant, (2) the jury's collective opinion that it cannot agree, (3) the length of the deliberations of the jury, (4) the length of the trial, (5) the complexity of the issues presented to the jury, (6) any proper communications which the judge has had with the jury, and (7) the effects of possible exhaustion and the impact which coercion of further deliberations might have on the verdict.”

        Arnold, 566 F.2d at 1387.
      See also Rogers v. United States, 609 F.2d 1315, 1317 (9th Cir.1979):
      “(F)actors to be considered by the judge include the jury's collective opinion that it cannot agree, the length of the trial and complexity of the issues, the length of time the jury has deliberated, whether the defendant has made a timely objection to the mistrial, and the effects of exhaustion or coercion on the jury.” "The most critical factor is the jury’s own statement that it is unable to reach a verdict.” United States v. Cawley, 630 F.2d 1345, 1349 (9th Cir.1980).


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice

license: Public Domain

text:
    Ex parte Josephus ANDERSON. (Re Ex parte Josephus Anderson. Petition for Writ of Mandamus or in the Alternative for Writ of Certiorari. (In re State of Alabama v. Josephus Anderson)).
    83-551.
    Supreme Court of Alabama.
    Sept. 28, 1984.
    William N. Clark of Redden, Mills & Clark, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This review initially arose from a petition for writ of mandamus, or in the alternative, petition for writ of certiorari, filed by the petitioner, Josephus Anderson, in the Court of Criminal Appeals. The petitioner sought to prevent his further prosecution and fourth trial for the capital murder of a Birmingham police officer. The Court of Criminal Appeals, 457 So.2d 435, denied the relief sought and the petitioner is now before this court on a writ of certiorari.

The facts of this case are as follows:

The petitioner, Josephus Anderson, was indicted on December 7, 1979, in Jefferson County for the November 29th capital murder of Officer Albert Eugene Ballard. The petitioner was charged under § 13 — 11— 2(a)(5), Alabama Code 1975. Following the petitioner’s motion for a change of venue, the case was transferred to the Circuit Court of Mobile County.

Anderson was first tried during the week of March 16, 1981. The trial judge, Joseph M'. Hocklander, declared a mistrial after the foreperson of the jury notified the court that the jury could not reach a verdict. The trial had consumed approximately. four days. The jury had deliberated for approximately four hours. There is no indication that there were any objections to the declaration óf a mistrial, although defense counsel asked the court, out of the presence of the jury, whether the court was going to allow any further deliberations. The court did not allow any further deliberations. When the mistrial was declared, the jury stood ten for acquittal and two for conviction.

Anderson’s second trial took place during the week of November 2, 1981. The trial lasted four days. Although the trial judge, Telfair Mashburn, encouraged the jury to reach a verdict, they were still unable to reach a unanimous verdict after approximately seven hours of deliberation; the trial court declared a mistrial after being advised by the foreperson that the jury could not reach a verdict. There is no indication that there were any objections to the declaration of the mistrial. After deliberating, the jury stood nine for acquittal and three for conviction.

Anderson was tried again during the week of March 28, 1983. Judge Mashburn again presided. This trial consumed approximately five days. Defense counsel requested a mistrial on the grounds that some law books were in the jury room when the jury was deliberating. This was denied, however, upon ascertaining that none of the jurors had looked at the books. After the jury had deliberated for approximately four and one-half hours, the foreperson informed the court that the jury was unable to reach a unanimous verdict. The court then declared a mistrial. At the conclusion of this trial, the jury stood eight for acquittal and four for conviction.

There is no indication that the state intends to present any new evidence at Anderson’s fourth trial.

At the conclusion of each trial, Anderson filed a plea of former jeopardy, or in the alternative, a motion to dismiss. Following the third trial, the defendant also filed a motion for judgment of acquittal. Hearings were held on all of these motions and all motions were denied.

In denying the defendant’s plea of former jeopardy after the second trial, Judge Mashburn strongly stated his belief that the defendant was guilty. He said:

[If] there was some doubt about his guilt in my mind, I might consider your motion, Mr. Clark. But since I’m convinced he is guilty from the evidence I heard, I’m going to deny your motion.

Upon denying all three motions after the third trial, Judge Mashburn stated:

[A]s I say, being convinced as I am of the guilt of the defendant, I might be inclined to grant your motion if there was in my thinking any possibility of a jury finding this man not guilty. But I, for the life of me, I can’t understand how reasonable people had any reasonable doubt of his guilt. For that reason, I’m going to deny your motion.

Anderson has been represented by the same appointed counsel in each trial, in the mandamus proceeding, and on this review.

Anderson asserts here that a fourth trial of this case would violate his constitutional privilege against double jeopardy and his right of due process under the law. The issues to be decided in this case are as follows:

1) May a defendant be tried a fourth time following three prior trials which have ended in mistrials, without violating the prohibitions against double jeopardy under the 5th and 14th Amendments of the Constitution of the United States and Article I, § 9, of the Alabama Constitution of 1901; and 2) Would such a fourth trial violate the constitutional concept of due process?

I.

The forerunner of the decisions concerning whether a defendant may be tried again for the same offense after an earlier trial has ended in a mistrial is United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). The Court set out the following standards in determining whether a valid claim of double jeopardy existed:

We are of the opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think, that in all cases of this nature, the law has invested the courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with great caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be' extremely careful how they interfere with any chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

Perez, 22 U.S. (9 Wheat.) at 580, 6 L.Ed. 165.

The “prototypical example” of a case meeting the “manifest necessity” standard of Perez is the hung jury. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The Court stated:

Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the “manifest necessity” standard first enunciated in Justice Story’s opinion for the Court in United States v. Perez, 9 Wheat. 579, 580 [6 L.Ed. 165] (1824). Perez dealt with the most common form of “manifest necessity”; a mistrial declared by the judge following the jury’s declaration that it was unable to reach a verdict. While other situations have been recognized by our cases as meeting the “manifest necessity” standard, the hung jury remains the prototypical example. See, e.g., Arizona v. Washington, 434 U.S. 497, 509 [98 S.Ct. 824, 832, 54 L.Ed.2d 717] (1978); Illinois v. Somerville, 410 U.S. 458, 463 [93 S.Ct. 1066, 1070, 35 L.Ed.2d 425] (1973).

456 U.S. at 672, 102 S.Ct. at 2087. In the present case, the defendant made no objections to the declaration of any mistrial and therefore the argument that this case meets the “manifest necessity” standard is even stronger.

The basic reason for allowing a plea of former jeopardy and not permitting a retrial has been to prevent “a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury may not convict.” Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

In Clements v. State, 390 So.2d 1131, 1132 (Ala.Crim.App.), cert. denied, Ex parte Clements, 390 So.2d 1136 (Ala.1980), the court held that “a jury’s inability to agree either on a verdict or punishment is a proper reason for the declaration of a mistrial. After such a mistrial, the retrial of the defendant is not barred by double jeopardy.” (Citations omitted.) It has also been held in Alabama that a “mistrial is no trial” and, therefore, that retrial would not place a defendant in double jeopardy. Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, 537, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973).

Federal courts have also held that where a jury becomes deadlocked and the judge does not abuse his discretion in declaring a mistrial, a retrial will usually not result in a valid claim of double jeopardy. United States v. Ellis, 646 F.2d 132, 135 (4th Cir.1981); United States v. Castellanos, 478 F.2d 749 (2d Cir.1973). See also United States v. Brown, 677 F.2d 26, 27 (6th Cir.1982), cert. denied, Brown v. United States, 459 U.S. 855, 103 S.Ct. 124, 74 L.Ed.2d 107 (1982); United States v. Gunter, 546 F.2d 861, 866 (10th Cir.1976), cert. denied, Gunter v. United States, 431 U.S. 920 (1977).

The petitioner cites Preston v. Black-ledge, 332 F.Supp. 681 (E.D.N.C.1971), in support of his plea of former jeopardy. Preston supports the petitioner’s argument; however, the great weight of authority supports the holding that a retrial after a mistrial where the judge has not abused his discretion will not give rise to a claim of double jeopardy and bar retrial. This court rejects Preston on the basis of Castellanos, 478 F.2d 749, 752, n. 2. The Castellanos court stated, “[T]he cases clearly recognize that the accused’s right to a quick determination on the merits may in some instances be outweighed by the ‘ends of public justice’ Perez, supra, 9 Wheat. (22 U.S.) at 580, 6 L.Ed. 165, or put another way, ‘the public’s interest in fair trials designed to end in just judgments,’ Wade v. Hunter, supra, 336 U.S. at 689, 69 S.Ct. at 837.” 478 F.2d at 752.

Although we agree that there may be a “breaking point” in the retrial of a defendant, we do not find that the “breaking point” has been reached in this case. Gunter, 546 F.2d at 866.

In the present case, there is no record of any objections made by either side to the declaration of a mistrial in any of the three trials. Since there is no record of any objections and no indication that the declarations of the mistrials were improper, we must presume that the actions of the trial judges were proper. Clements, 390 So.2d at 1132.

Since the propriety of the trial judges’ declaring any of the mistrials has not been challenged and there is no indication of any abuse in the declaration of the mistrials, we find that the “manifest necessity” standard required by Perez and its progeny has been met. Therefore, the petitioner’s right against double jeopardy has not been violated in this case.

II.

The petitioner also contends that a retrial would violate his right of due process under the law. Although we find this to be a valid argument, the circumstances of this case do not allow us to find a breach of due process.

At the outset, it is important to note that there is no specific Alabama law concerning the issue now before this Court. The petitioner relies on four cases, in support of his argument: United States v. Ingram, 412 F.Supp. 384 (D.D.C.1976); People v. Kirby, 112 Misc.2d 906, 447 N.Y.S.2d 606 (S.Ct.Cr. Term 1982), reversed on other grounds, 92 A.D.2d 848, 460 N.Y.S.2d 572 (1983); State v. Moriwake, 65 Hawaii 47, 647 P.2d 705 (1982); and State v. Witt, 572 S.W.2d 913 (Tenn.1978). Each of these cases, however, is substantially different from the case at bar.

In Ingram, the trial judge dismissed the case from the bench after two trials resulted in jury votes of ten-to-two and eleven-to-one for acquittal. That case can be distinguished from the present case for two reasons. First, in Ingram, the case was dismissed from the bench. The present case was not dismissed by the trial judge. Secondly, in Ingram, the court recognized that there were weaknesses in the government’s case, stating:

Despite its contentions, the prosecution was not prejudiced by defense counsel’s reference to the obvious fact that the defendant is black and the identifying witness a white. There were aspects in addition to race that weakened her in-court identification.

Ingram, 412 F.Supp. at 385.

In the present case, there has been no challenge to the strength of the State’s case or any indication of a weakness in the evidence.

In Witt, the trial judge also dismissed a case from the bench; the dismissal followed three mistrials. The court stated:

[TJrial judges have the inherent authority to terminate a prosecution in the exercise of a sound judicial discretion, where, as here, repeated trials, free of prejudicial error, have resulted in genuinely deadlocked juries and where it appears that at future trials substantially the same evidence will be presented and that the probability of hung juries is great.

Witt, 572 S.W.2d at 917.

Although we agree with this statement, the Witt case is also distinguishable from the present case. In Witt, the trial judge not only had the affidavits of two jurors stating that they thought no jury could ever agree on a verdict if substantially the same evidence was presented at a new trial, but he also heard the testimony of eight jurors who agreed with these affidavits. 572 S.W.2d at 915. There are no such affidavits or testimony in the present case.

Furthermore, Witt also stated that the trial judge is in the best position to evaluate the evidence and that the discretion of the trial judge in terminating a criminal prosecution “is a power that ought to be used with the greatest caution and only in the most urgent circumstances.” 572 S.W.2d at 917. The judge who presided over Anderson’s second and third trials believed that the evidence proved Anderson’s guilt and, therefore, felt that he could not terminate any criminal prosecution.

In the first Kirby decision, the court upheld a decision by the trial judge to dismiss a criminal case after the juries stood ten-to-two for conviction, six-to-six, and ten-to-two for conviction. The charges involved in the case were murder in the second degree and attempted murder in the first degree. The main problem in obtaining a conviction was the credibility of the prosecution’s principal witness. Kirby, 447 N.Y.S.2d at 608. In upholding the dismissal, the court stated that it had been informed by the trial judge that there would be little likelihood that any jury would reach a unanimous verdict. Kirby, 447 N.Y.S.2d at 607. Again, in the present case, there was neither a challenge to the prosecution’s evidence, nor any indication by the trial judge in any way that future juries would not be able to reach a verdict.

Kirby was reversed a year later because the court found that the trial judge had improvidently exercised his discretion. 460 N.Y.S.2d at 573. In reaching this decision, the court considered the seriousness of the crimes that were involved. 460 N.Y.S.2d at 573.

The Moriwake court upheld the dismissal of a manslaughter charge after two juries had been unable to reach a verdict. Mori-wake listed several factors to be considered in reaching such a decision:

The factors which the trial court should consider in undertaking this balance include the following: 1) the severity of the offense charged; 2) the number of prior mistrials and the circumstances of the jury deliberation therein, so far as is known; 3) the character of prior trials in terms of length, complexity and similarity of evidence presented; 4) the likelihood of any substantial difference in a subsequent trial, if allowed; 5) the trial court’s own evaluation of the relative case strength; and 6) the professional conduct and diligence of respective counsel, particularly that of the prosecuting attorney.

Moriwake, 647 P.2d at 712.

These factors effectively reflect the competing interests that must be balanced in a case of this type. In considering these factors, the court relied on several statements made by the trial judge:

“There have been two trials in this case entailing essentially the same evidence. And if there were a third trial, virtually the same evidence would very likely be presented. Both of these previous instances, there were hung juries. And the court feels that under the circumstances of this ease, a third trial would pose undue emotional, personal and financial hardship on the defendant.
“Of course, if this were a situation entailing, say, murder for hire or a criminal situation, then it would be an element against dismissal. But, as the trial has indicated, this entailed certain shall we say, mitigating circumstances that were not indicative of criminal propensity as in the case, say, of murder or a criminal situation.”

Moriwake, 647 P.2d 708-709. (Emphasis added.)

In weighing the factors set out in Moriwake, this Court finds that the petitioner’s due process rights have not been breached. This is not to say, however, that this Court does not recognize the legitimacy of such a challenge under the proper circumstances. We agree with Kirby that such decisions must be made on a case-by-ease basis:

This opinion is not to be construed as fixing the permissible or impermissible number of mistrials caused by deadlocked juries. The relevant principles must be applied on an ad hoc basis. The court is not announcing a per se rule or applying a formula mechanically. The sound judicial discretion of a trial judge to terminate a criminal prosecution is a power that ought to be used with the utmost caution and then only where the circumstances clearly justify such action.

Kirby, 447 N.Y.S.2d at 610.

This ease involves one of society’s most serious crimes — murder of a police officer. The severity of the offense charged must weigh heavily in this decision. As in the cases cited by the petitioner and previously cited by this court, the trial judge’s evaluation of the evidence must also be given serious consideration. In the present case, the trial judge stated after both the second and third trials that the evidence convinced him of Anderson’s guilt. Furthermore, there is no claim that the conduct of counsel on either side was . anything but diligent. Therefore, the prosecution does not appear to be trying to obtain a retrial because of a lack of diligence in prior trials. In other words, the prosecution is not asking for another chance because of its own errors. There is also no explicit or implicit evidence that a future jury could not reach a unanimous verdict.

Although the total number of votes of all jurors in this case favored acquittal and no new evidence is expected at the next trial, we still feel that a mechanical formula based on jury votes and evidentiary expectations is not enough to dismiss an indictment in a capital murder case.

The petitioner cites several errors in the trial of this case. During the second trial, the jury was given a copy of the indictment which showed Anderson’s last known address as Cook County Jail. The foreperson asked whether the jury could consider this information and was told that they could not. The petitioner also cites oral instructions given at the third trial as being prejudicial. Most notably, in one instance, the judge stated, “And if the jury is convinced beyond a reasonable doubt that at the time the defendant shot the officer and that all of these elements existed ....” (Emphasis added.)

Whether the indictment or the instructions affected the jury and prevented them from reaching a unanimous verdict is purely speculative. The fact is that the defendant was not convicted after the second or third trials.

We agree that under certain circumstances “[rjequiring defendants to face additional juries with the continuing prospect of no verdict offends traditional notions of fair play and substantial justice.” Witt, 572 S.W.2d at 917. Upon looking at the facts and circumstances of this case and balancing all of the competing interests, we find that no breach of due process will occur by retrying the petitioner.

For all of the above reasons, the judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, FAULKNER, SHORES, EMBRY, BEAT-TY and ADAMS, JJ., concur.

JONES, J., dissents.

JONES, Justice

(dissenting).

I respectfully dissent. Generally speaking, I do not disagree with the precedents relied upon by the majority; and I agree that their application to the facts of this case, in the final analysis, is a policy call. The test is one of essential, basic fairness. How many times must a defendant in a criminal case be put to trial, with each one ending in a hung jury, before the “unfairness” flag is raised? If three times is not enough, would three more times likewise not be enough? Except for the seriousness of the matter at hand, one might theorize in jest that, because the State gained one more juror for conviction with each successive trial, the State should be afforded eight additional trials in order to obtain a guilty verdict (at the third trial the jurors stood eight for acquittal, four for conviction). Or maybe “fairness” would dictate that so long as the State gains at least one more juror for conviction with each trial, the defendant’s constitutional challenge to a retrial is due to be rejected.

While the cited precedents are helpful, these cases, as does the majority opinion in this case, lay undue stress upon the defendant’s burden to object to the trial court’s declaration of a mistrial, as well as the burden to produce evidence from the trial jurors to the effect that in their opinion no future jury could agree upon a verdict. It seems to me that these are misplaced elements in the fairness test. The legal conclusion of fairness vel non must be found in the inherent fact that the defendant is being put to a fourth trial where three separate juries in three separate prior trials have failed to reach a verdict.

The only precedent with respect to successive trials, to my knowledge, is found in the statutory proscription in civil cases against more than two new trials on the weight of the evidence ground. Code 1975, § 6-8-104. While, admittedly, the parallel between successive hung juries in the instant case and post-judgment new trial motions (see Casey v. Jones, 410 So.2d 5 (Ala.1981) (n. 2)) is less than complete, this legislative expression of public policy, barring more than three trials in any civil cause, finds its basis in the same essential fairness test applicable to the instant case. Indeed, I believe the considerations here are even more favorable to the defendant, and this for the reason that the test applicable to a criminal prosecution finds its genesis not merely in a legislative expression but in the organic law — the State Constitution.

After all, once we have appliéd all the objective elements, “fairness,” ultimately, is a matter of subjective judgment; and in this case it is my personal subjective judgment that to put this defendant to a fourth trial is violative of constitutional due process.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Mitchell HOPKINS, alias v. STATE.
    4 Div. 241.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    On Return to Remand Aug. 14, 1984.
    Rehearing Denied Oct. 9, 1984.

      Mitchell Hopkins, pro se.
    Charles A. Graddick, Atty. Gen. and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appeal was “Submitted on Record on January 27, 1984.” It is from an order dismissing a pro se petition for writ of habeas corpus. No brief has been filed by appellant. Appellee urges that the judgment should be affirmed without an opinion. Nevertheless, to avoid any future question as to the status of the proceeding, we render this brief opinion.

The pro se petition was prepared by petitioner while he was in prison at Fountain Correctional Center. While so imprisoned, he was given notice of the order dismissing the petition, and he promptly thereafter filed a pro se notice of an appeal.

The only record of the judgment or order dismissing the appeal is in the following language, “Petition for Writ of Habeas Corpus dismissed. Filed in wrong county.”

No explanation is to be found in the record for the filing of the petition in the Circuit Court of Houston County, a county considerably removed from the county in which petitioner was apparently imprisoned at the time his petition was filed and at the time it was dismissed, which of itself would indicate that the dismissal of the petition was justified. However, our perusal of the pro se petition leads us to believe that it tends at least to present a contention that he was imprisoned on a conviction of a felony as to which he had not had adequate ^presentation by counsel. In that event, his remedy would not be by a habeas corpus petition but by a petition in the nature of a petition for writ of error coram nobis, which should be filed in the court that rendered the judgment of conviction and sentence.

The designation by letter and number of the case in which defendant was convicted indicates, but does not clearly disclose, that it was in the Houston County Circuit Court.

Although all concerned other than this court are apparently informed as to what circuit court rendered the judgment of conviction and sentence, wé are not, and we cannot presently obtain such information other than from sources dehors the record.

The case should be remanded to the trial court with directions that it amend its order or judgment dismissing the petition nunc pro tunc so as to explain the statement therein, “Filed in wrong county,” and make due return to such order of remandment, with notice thereof to appellant and appellee. Our determination of this appeal should be suspended until receipt of the trial court’s return, which we trust will not be more than sixty days from the date of the release of this opinion unless further time therefor is requested by the trial court.

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

REMANDED WITH DIRECTIONS.

All the Judges concur, except BOWEN, P.J., who dissents.

ON RETURN TO REMAND

LEIGH M. CLARK, Retired Circuit Judge.

By the recently filed return to this Court’s previous order remanding this ease to the trial court with directions, we are informed that on March 23, 1984, the trial court deemed it appropriate that the pro se petition for writ of habeas corpus be treated as a petition for writ of error coram nobis, ordered a hearing on the petition, appointed an attorney to represent the petitioner, made arrangements for the attendance of the petitioner at the hearing which was conducted on May 21, 1984, and rendered an order as follows:

“On hearing the evidence, defendant’s petition for writ of habeas corpus (writ of error coram nobis) is denied and said petition is hereby dismissed.”

The trial court is to be commended for its superogatory works as shown above. However, our only concern on original submission as to the action we should take on this appeal was as to the identity of “the court that rendered the judgment of conviction and sentence,” from which petitioner was seeking to obtain relief. Although the dismissal of the petition for habeas corpus was ordered by the Circuit Court of Houston County, the writer was not then absolutely certain that the judgment of conviction and sentence was rendered in that court. As to this, however, there is now no longer any uncertainty.

The judgment of the trial court should be affirmed.

AFFIRMED.

All the Judges concur.


author: TAYLOR, Judge.

text:
    Talmadge PRUITT v. STATE.
    7 Div. 164.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.

      John Baker, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TAYLOR, Judge.

Talmadge Pruitt was convicted by a De-Kalb County jury of the offense of burglary in the first degree and sentenced by the court to ten years’ imprisonment in the penitentiary. The facts as adduced by state’s evidence are unusual. At 6:30 a.m. on April 4, Mr. Tom Fricks received a phone call from appellant Talmadge Pruitt, who asked Fricks when he was leaving to go into town. Appellant then verified with Fricks that the Frickses’ son had gone away camping overnight. Just after Fricks left his house, the victim in this case, Mrs. Ramola Fricks, heard her door bell at her garage door ring. She testified that only strangers used her front door, since everyone who knew them used the garage door to enter the home.

Mrs. Fricks went to the garage door, which then swung open, and a man stepped into the house. Mrs. Fricks described him as being a very large man wearing blue and white tennis shoes and a ski mask with a stocking underneath the mask. He grabbed Mrs. Fricks, put her arms behind her back, stuck a gun in her side and began punching and pushing her around the house. She said to him, “Talmadge, if money is what you want, there lays one.” The man continued to push her around the house, made her get on her knees and tied a blindfold on her. She could see around the blindfold. After forcing her to lie on the bed and pull her panties off, he yanked her gown up around her neck, and felt her. She told him that her doctor had said that if any man “bothered her” within the next few weeks she would bleed to death. The intruder then told her to get on her knees at the foot of the bed, and proceeded to expose his penis. Mrs. Fricks then told the man, “No, I am not going to do this.” He again began to jerk and push her, she grabbed for his gun and he finally wrested it from her grasp, cutting her thumb severely.

Thrown to the floor, she began crawling away, telling the man to go ahead and kill her, that she was going to get out of the house. She jumped out the window and ran toward her neighbor’s house. The neighbor to whose house she retreated said that he found her running down the garden in her gown with blood all over her. She told him that someone had just broken in her house and that she knew who it was but she just couldn’t believe it. She identified the appellant as the perpetrator. She later stated she had known him since 1957 and had known him so long she could recognize him by his movements without seeing his face and that she also recognized his voice.

Tom Price, an investigator with the De-Kalb County Sheriff’s Department, found a pillow at the home of the victim which did not belong to her. He took the pillow to the residence of the appellant where the appellant’s wife, in his presence, identified the pillow as belonging to them.

The defense was one of alibi.

I

Appellant contends first that the court should have charged the jury on the lesser included offenses of burglary in the second degree and criminal trespass in the first degree. The state, citing Williams v. State, 377 So.2d 634 (Ala.Cr.App.), writ denied, 377 So.2d 639 (Ala.1979), argues that where a defendant denies the event in to to, the court is not obliged to charge on a lesser included offense.

The appellant admits the validity of this argument but contends that the rule is unconstitutional. We disagree. In our judgment, the court conformed to the law and committed no error in refusing charges on lesser included offenses.

II

Appellant next contends that the trial court should not have allowed into evidence the testimony regarding the pillow. When the investigator produced the pillow found at the victim’s home, the appellant’s wife stated that the pillow was similar to the one which was missing from her residence. The appellant’s wife then turned to the appellant and asked him how the pillow came to be found at the Fricks residence. To this implicitly accusatory question, the appellant evasively responded that he guessed that “the dogs drug it up.” The appellant’s wife then stated, “Well, the pillow was here last night.”

Identification of the pillow by appellant’s wife as being joint property of herself and appellant, in his presence and not denied by him, is admissible. Failure to deny an oral incriminatory statement is an implied admission and has long been admissible in this state. See C. Gamble, McElroy’s Alabama Evidence §§ 193.01(1), 193.01(2) (3d ed. 1977).

nr

Appellant finally contends that the court erred in not informing the jury of the range of punishment. A jury must be informed as to the range of permissible punishment when they have the duty to impose punishment. Luker v. State, 39 Ala.App. 548, 105 So.2d 834, cert. denied, 268 Ala. 346, 105 So.2d 845 (1958). Where the jury has nothing to do with fixing punishment, instructions to the jury as to punishment are not necessary. Hogg v. State, 18 Ala.App. 179, 89 So. 859 (1921). Such instructions are, in any event, usually misleading since trial courts are not allowed to explain such factors as probation, parole, and credit for “good time”, all of which can affect the actual length of punishment.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Talmadge PRUITT. (Re Talmadge Pruitt v. State of Alabama).
    83-843.
    Supreme Court of Alabama.
    July 20, 1984.

      John Baker, Fort Payne, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   PER CURIAM.

We deny the writ because defendant has failed to comply with Rule 39, A.R.A.P., in presenting additional facts not contained in the opinion of the Court of Criminal Appeals. In denying the writ, we are not to be understood as approving the holding of the Court of Criminal Appeals that “where a defendant denies the event in toto, the court is not obliged to charge on a lesser included offense.” 457 So.2d 454 (Ala.Crim.App.1979). The accused is entitled to have the trial court charge on lesser included offen-sps where there is a reasonable theory from the evidence supporting defendant’s position, regardless of whether the State or defendant offers the evidence. See Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978). The Court of Criminal Appeals reached the correct result in Williams, a case “where the only reasonable conclusion from the evidence is that the defendant is guilty of robbery [the greater offense] or no crime at all.” 377 So.2d at 637. If, however, the defendant denies the charge but the evidence presented by the State suggests a reasonable theory supporting a charge on a lesser offense, the trial court is obliged to give a charge on the lesser offense when requested.

WRIT DENIED.

TORBERT, C.J., and FAULKNER, AL-MON, EMBRY and ADAMS, JJ., concur.


text:
    Charles Thomas PHILLIPS v. STATE.
    6 Div. 140.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Carl J. West, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Charles Thomas Phillips was indicted and convicted for rape in the first degree in violation of Alabama Code 1975, § 13A-6-61. He was sentenced as an habitual offender to life without parole.

The only issue raised on appeal is whether the trial court properly admitted evidence of four prior convictions for sentencing purposes under the Habitual Felony Offender Act. These same prior convictions were used to enhance Phillips’ sentences for his convictions for the murder of Henry Bearden and the attempted murder of Walter Sharp. Phillips v. State [6 Div. 96, August 14, 1984] (Ala.Cr.App.1984). In those cases which were consolidated at trial and on appeal, we found no reversible error in the sentencing process.

Here, appellate counsel states that the issue in this case is the same issue presented in the appeal of the murder and attempted murder convictions and requests this Court to consider the brief filed in that cause with reference to the sentencing hearing.

Therefore, the judgment of the circuit court is affirmed on authority of Phillips v. State [Ms. 6 Div. 96, August 14, 1984] (Ala.Cr.App.1984).

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Floyd ENGLISH v. STATE of Alabama.
    3 Div. 13.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    B.F. Lovelace, Brewton, for appellant.
    Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Floyd English was indicted for “knowingly entering] or remaining] unlawfully in a building of Emily B. Davis with intent to commit a crime therein”, in violation of § 13A-7-7, Code of Alabama 1975. The jury found the appellant “guilty of Burglary in the Third Degree as charged”, and following a sentencing hearing the trial court sentenced the appellant to ten years in the penitentiary pursuant to the habitual offender act.

I

The only issue raised on appeal is that there was insufficient evidence to support the jury’s verdict.

The sufficiency of the evidence is raised for the first time on appeal. It has long been the established law in this state that the sufficiency of the evidence is not subject to review by' this court unless the appellant has challenged such evidence by a motion to exclude the State’s evidence, motion for judgment of acquittal, request for the affirmative charge, or through a motion for new trial filed in the trial court. See George v. State, 54 Ala.App. 90, 304 So.2d 908 (1974); Sprinkle v. State, 368 So.2d 554 (Ala.Crim.App.1978), writ quashed, 368 So.2d 565 (Ala.1979); Lewis v. State, 372 So.2d 882 (Ala.Crim.App.), cert. denied, 372 So.2d 885 (Ala.1979); Johnson v. State, 424 So.2d 1379 (Ala.Crim.App.1982).

In the present ease, the record does not reveal that any of the above procedures were followed. Therefore this court has nothing before it which can be subjected to review.

This record is free of error and therefore this cause is affirmed.

AFFIRMED.

All the Judges concur.


author: PATTERSON, Judge.

text:
    Greg Lewis OAKLEY v. STATE.
    6 Div. 245.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    David Cromwell Johnson of Johnson & Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   PATTERSON, Judge.

Appellant Greg Lewis Oakley was indicted for assault with intent to murder, and subsequently convicted of assault and battery by a jury. Appellant was sentenced to six months’ hard labor and fined $500, plus costs. The major argument advanced on appeal is that the in-court identification of appellant by the victim of the assault was tainted by the use of impermissibly suggestive out-of-court identification procedures. We agree.

At approximately 6 a.m. on July 19, 1979, the twelve-year-old victim, also the State’s primary witness, Sheree Aneese McCain, went to swimming practice at the Huffman-Roebuck YMCA in Birmingham. Sheree went into the YMCA dressing room to investigate an insect bite, and was putting her pants back on when she saw someone enter the room. This person walked into the room and “stuck” her with a hypodermic syringe, injecting an unspecified quantity of a drug later determined to be ketamine into Sheree’s posterior area. Sheree did not notice the hypodermic syringe until after she was injected. Shortly thereafter Sheree became dizzy and left the dressing room to get help. According to Sheree, the entire incident lasted from fifteen to twenty seconds. The assailant departed without further incident as Sheree was leaving the dressing room. The hypodermic syringe was later found in a nearby garbage can. Sheree found a YMCA employee, told her what happened, and then became unconscious. She awoke that evening at the Childrens Hospital, and after a short stay, was discharged.

While in the hospital, Sheree gave a description of the assailant to police officers, which she later did not remember giving. After her release from the hospital, she aided the police in drawing a composite picture.

Two and a half years after the incident, Sheree identified her assailant from a photographic lineup which forms the basis of the appellant’s contention of error.

Sheree testified at trial that she felt under pressure to “pick” the person who assaulted her. On the way to the photographic lineup her mother had told her that it was her duty and responsibility to pick out a photograph from the array. Sheree later described the procedure as “like a test ... I was afraid to choose because I was afraid of getting something wrong.”

Sergeant James E. Gay conducted the lineup, and Sheree’s mother was present. All three individuals present at the photographic lineup testified. The testimony of Sergeant Gay and Mrs. McCain was in conflict with the testimony of Sheree.

Sheree testified that she was shown “about ten” photographs, which she studied and narrowed down to two photographs. Officer Gay told her to choose between the two pictures, which she did. Officer Gay then told her she picked the wrong one. On cross-examination, Sheree testified that she had been told that appellant was one of the two men in the photographs she had ultimately chosen. Although her testimony was not precise, she did testify that it had been communicated to her that her assailant was the man in the photo that she had not chosen. The next day Mrs. McCain contacted Officer Gay and told him that Sheree was positive the other man, appellant, was the person who assaulted her on July 19, 1979.

At trial Sheree identified Oakley as her assailant. In an attempt to explain her eventual identification of appellant, Sheree testified that her change of mind resulted from talking with her mother and praying about it. Sheree’s mother testified that she knew appellant was a suspect and had seen his picture prior to the photographic lineup, but had not communicated any of this information to Sheree prior to or after the photographic lineup.

Appellant contends that the photographic lineup was unnecessarily suggestive, due to the information given to Sheree after narrowing down her choice of possible assailants to two individuals, i.e., that the suspected assailant was among the two and she chose the wrong one. Appellant argues that this action irreparably tainted Sheree’s subsequent in-court identification of appellant as the assailant.

In determining whether an out-of-court identification procedure has violated appellant’s due process rights, we are guided by established case law. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the United States Supreme Court established the “totality of the circumstances” test to determine if an out-of-court identification procedure “was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process”. Stovall at 301-302, 87 S.Ct. at 1972.

Each case must be determined on its own facts and will be set aside only if the procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Fitchard v. State, 424 So.2d 674 (Ala.Crim.App.1982); Daniels v. State, 335 So.2d 251 (Ala.Crim.App.1976).

This court has held that in order to satisfy the totality of the circumstances test, a two-part analysis is required:

“.... 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 ‘impermissibly’ 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 a 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, 28-29 (Ala.Crim.App.1978).

In answer to the threshold question, we find that the out-of-court identification procedure was impermissibly suggestive. To allow a witness to identify a defendant from a photographic lineup wherein the witness is told that one of two individuals is the suspect, the witness selects the wrong person, and then is allowed to identify the second person as the criminal, would totally erode the photographic lineup technique, reducing the procedure to a mere formality. Sheree was the State’s primary witness against the appellant. She was the State’s only eyewitness to the crime specified in the indictment. Her testimony and in-eourt identification were the key factors in appellant’s trial. We, therefore, find that appellant has met his burden in showing that the error complained of has probably injuriously affected the substantial rights of appellant. Chillous v. State, 405 So.2d 58 (Ala.Crim.App.1981); A.R.A.P. 45.

We now turn to the second part of this two-step analysis. Where it has been shown that an unduly suggestive pretrial identification procedure has taken place, the in-court identification testimony need not be excluded if the prosecution can establish by clear and convincing evidence that the identification stems from an independent source rather than the unfair pretrial photographic lineup. Phillips v. State, 409 So.2d 918 (Ala.Crim.App.1981). Cartee v. State, 390 So.2d 1121 (Ala.Crim.App.1980); Carpenter v. State, 380 So.2d 368 (Ala.Crim.App.1980); Brazell v. State, 369 So.2d 25 (Ala.Crim.App.1978), cert. denied, 369 So.2d 31 (Ala.1979).

Sheree’s mere assertion that her in-court identification was based on her observation of appellant during the crime is not sufficient evidence of an independent source. United States v. Gambrill, 449 F.2d 1148 (D.C.Cir.1971). In order to determine whether an independent basis exists to support the in-court identification, the five factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), must be applied. See Cargill v. State, 432 So.2d 520 (Ala.Crim.App.1983); Cartee v. State, supra. These considerations are as follows:

“The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382 (1972).

In applying these factors, as follows, we conclude that clear and convincing evidence is not present to support a finding that the identification stemmed from an independent source:

(1) Sheree testified that she observed the assailant when he entered the dressing room and that the entire incident lasted fifteen to twenty seconds. In certain circumstances, a fifteen to twenty second observation of an individual may be sufficient. However, when we consider this evidence of Sheree’s opportunity to view her assailant in light of the remaining factors, we are not convinced that her opportunity was sufficient in this case.

(2) The degree of attention exhibited by Sheree is clearly evidenced from the record. Sheree testified that she did not notice the hypodermic syringe until after the assault. She was in fact facing the wall rather than the door, when the assailant entered the dressing room. We do not find from the record any high degree of attentiveness directed toward the assailant until after the assault, at which time the assailant turned and left the dressing room.

(3) In reviewing Sheree’s prior description of her assailant, we find absolutely no support in the record for a determination that it was accurate. The only thing apparent from the record and exhibits before us is that Sheree’s conception of her assailant did not coincide with the appearance of appellant until after she was told she had picked the wrong photograph. We conclude that her accuracy level was insufficient.

(4) Sheree’s level of certainty at the time of the photographic lineup was also demonstratively below standard. Sherée testified that the first photograph she identified as that of her assailant “pretty much looked like him”. She related her indecision to Officer Gay, who told her, “Try to pick out the one that looks most like him.” Officer Gay’s testimony supports Sheree’s testimony in this regard. Officer Gay further testified that Sheree could not make a positive identification at the photographic lineup. It was not until after she was told that she had chosen the wrong photograph that Sheree identified appellant as her assailant.

(5) The length of time between the crime and the photographic lineup was approximately two and a half years. This is an extremely lengthy period of time under the circumstances of this case. In making this observation, we do not attempt to create a standard or set limits on the amount of time between the crime and the pretrial identification; each such determination should be made according to the facts of the particular case. Under the facts of this case, the lapse of time weighs heavily against the identification, when viewed in conjunction with the other four factors discussed above. In Neil v. Biggers, supra, there was a lapse of seven months between the time of the rape and the confrontation. In discussing this lapse of time, the Court stated:

“This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any showup, lineup, or photographic showing. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup. Weighing all the factors, we find no substantial likelihood of misiden-tification.”

Neil v. Biggers, at 201, 93 S.Ct. at 383. In the case at bar, the lapse of two and a half years in all probability created a substantial likelihood of misidentification, when viewed under the totality of the circumstances.

The State has failed to prove by clear and convincing evidence that Sheree’s in-court identification of appellant stemmed from a source independent of the suggestive photographic lineup. Appellant’s right to due process was thus violated; he was not afforded a fair and impartial trial. The pretrial identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidenti-fication. This is evident from the State’s failure to prove a source of identification independent of the photographic lineup.

Appellant raises two other issues on appeal which we do not deem necessary to address, due to our foregoing findings.

We, therefore, hold that the in-court identification of appellant was unreliable, when weighed in the totality of the circumstances, and should not have been admitted. Accordingly, we reverse the judgment and remand the cause to the lower court.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Gary Steven CAGLE v. STATE.
    6 Div. 311.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    David S..Luker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Gary Steven Cagle was convicted of violating the Alabama Uniform Controlled Substances Act, and sentenced to eighteen years’ imprisonment as a habitual offender. On appeal, he challenges the legality of his arrest and the subsequent search of his person which revealed two pills containing diazepam.

On the afternoon of July 28, 1982, Jefferson County Sheriff’s Deputy Norman Harris and Leeds Detective Sergeant C.A. Hudson went to a residence on Lovick Road in Leeds, Alabama, to execute a search warrant. The officers encountered Cagle walking along the roadside in front of the residence, and, after determining that he was intoxicated, they arrested him for public intoxication, searched him, and found several pills on his person, two of which were later determined to contain the controlled substance diazepam.

Detective Sergeant Hudson testified as follows regarding the defendant’s condition:

“A The main thing I remember about him is his eyes, they were real dialated (sic). His speech was running together, talking, you know, one word would run into the next word, slurred, or whatever. He was unsteady on his feet. He was standing on the edge of the roadway to a point where he could have stepped out in front of a car and got hurt or something.
“Q What was the name of the road again?
“A Lovick.
“Q Is it a well traveled road or only seldom used?
“A It’s fairly used.
“THE COURT: Got some industry out there.
“THE WITNESS: Yes, sir.
“Q Was there traffic at that time?
“A Yes, sir.
“Q Cars?
“A Yes, sir. People were getting off from work. It was late in the afternoon.
“Q Did you form an opinion as to whether this Defendant was endangering himself there near the roadway or on the roadway?
“A Yes, sir. Like I said, he could have stepped out in front of a car and hurt himself or hurt somebody else.
“Q Did you do anything in relation to him after you observed his conduct?
“A Yes, sir. My partner and I placed him under arrest for public intoxication.”

Deputy Harris stated the following:

“A He appeared to be intoxicated. There wasn’t any smell of alcohol. He was high and staggering. He was loud. Happy.
“Q Did he ever speak to y’all?
“A Yes, sir.
“Q Could you describe the manner in which he spoke and what he said?
“A We were coming out of the residence that we had searched and was in the process of searching. He said, ‘Hey, what the hell is going on down here?’
“Q Loud or soft?
“A He was loud.
“Q Did he say anything more?
“A Yes, sir.
“Q Could you describe the tone of his voice?
“A He was loud.
“THE COURT: What did he say?
“THE WITNESS: I don’t remember what all he said, Your Honor. I remember that initial statement he made. Then when we searched him he said, ‘Ah man, I ain’t got nothing.’ Said, T just come down here to see what y’all were doing.’
“Q Did he have anything in his hands?
“A He was eating ice cream.
“Q When you first saw him where was he?
“A He was walking down the road.
“Q Was that a public thoroughfare?
“A Yes, sir.
“Q Was there traffic, cars?
“A Yes, sir, there was traffic, light traffic.”

Cagle contends that the State did not prove the elements of public intoxication, that his arrest was unlawful, and that the ensuing search of his person was, therefore, illegal.

Section 13A-11-10, Code of Alabama 1975, provides that “A person commits the crime of public intoxication if he appears in a public place under the influence of alcohol, narcotics or other drug to the degree that he endangers himself or another person or property, or by boisterous and offensive conduct annoys another person in his vicinity.”

In order to prove that Cagle was intoxicated on the occasion in question, it was unnecessary for the State to present evidence that he failed a chemical or field sobriety test, as the defendant suggests. The testimony of the arresting officers regarding their observations of the defendant was sufficient. C. Gamble, McElroy’s Alabama Evidence § 60.03(6) (3d ed. 1977).

“Intoxication of a person at the time in issue may be shown by a combination of circumstances even though no one of the circumstances considered alone would be sufficient to prove such intoxication. Ev- ■ idence has been held admissible, for example, that shortly before and after the time in issue, the person was unsteady on his feet, drove his automobile in a wabbling manner and had a pint of whiskey in his automobile.” Id. at 115.

Even a lay witness may testify that, in his opinion, a person was intoxicated. Rivers v. Black, 259 Ala. 528, 68 So.2d 2 (1953). In the present case, the conclusions of the trained police officers, based on their observation of the defendant’s dilated pupils, slurred speech, and staggering gait, were sufficient evidence of Cagle’s intoxication.

Intoxication alone, however, is not prohibited by § 13A-11-10, Code of Alabama 1975. Our public intoxication statute is taken, almost verbatim, from the Model Penal Code provision. The commentary to the corresponding model code provision states that “It is not the state of incapacitation per se that is condemned, but only its public manifestation in ways that may endanger the actor or inconvenience others. It follows that where the prospect of neither harm exists, there is no liability under Section 250.5.” Model Penal Code and Commentaries § 250.5 at 376 (A.L.I.1980).

Here, the State did not rely on the statutory provision prohibiting boisterous, offensive or annoying conduct, but, instead, attempted to prove that Cagle’s behavior endangered himself. Similar statutes aimed at the protection of the intoxicated offender have been upheld against constitutional attack, See, e.g., United States v. Crutchfield, 418 F.Supp. 701 (W.D.Pa.1976). The Model Penal Code provision recognizes a State’s interest in protecting the drunken offender himself. Describing the purpose of the predecessor to § 13A-11-10, Judge Cates, concurring specially in Haywood v. State, 43 Ala.App. 358, 190 So.2d 725, cert. denied, 280 Ala. 171, 190 So.2d 728 (1966), observed that “[t]he Legislature has laid down a rule of conduct to protect the besotted pedestrian as well as the motorist.” 43 Ala.App. at 361, 190 So.2d at 728 (construing tit. 14, § 120(1), Code of Ala.1940 (Re-comp.1958) (later codified at § 13-6-15, Code of Ala.1975) (repealed by 1977 Ala. Acts 607, § 9901)).

Here, the testimony of Detective Sergeant Hudson that Cagle was “endangering himself ... on the roadway” because he was so unsteady on his feet that he “could have stepped out in front of a car and hurt himself” was, in our judgment, sufficient evidence of publicly manifested and potentially dangerous intoxication. Cagle’s arrest for public intoxication was, therefore, proper and the subsequent search of his person legal.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Bobby Eugene HARRIS v. STATE of Alabama.
    8 Div. 977.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.

      Michael E. Sparkman, Hartselle, for appellant.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Bobby Eugene Harris was indicted for theft in the second degree in violation of § 13A-8-4, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment.” Following a habitual felony offender hearing, the trial judge sentenced the appellant to fifteen years’ imprisonment in the penitentiary.

A discussion of the facts in this case is not necessary since the facts are not relevant to the sole issue raised by this appellant on appeal.

I

During the trial court's oral charge to the jury, he stated:

“A reasonable doubt is not a vague or speculative or unsubstantial doubt. It is not a strained or a contrived doubt. It is the kind of doubt that would arise or does arise from the want, lack or insufficiency of the evidence offered by the state or evidence that comes from a totality of the testimony, including that, of course, that offered, if any, by the defendant.” (R. 107).

The appellant objects to the last statement of the above-quoted portion of the court’s oral charge. He asserts this is an improper comment by the trial judge on his failure to testify.

We do not agree with this contention. The trial judge in this instance was instructing the jury that a reasonable doubt may arise from the evidence presented by the State and also any evidence presented by the defendant. Reading this statement in this context, we do not find that it constitutes a comment on the appellant’s failure to testify. See Davis v. State, 352 So.2d 3 (Ala.Crim.App.), cert. denied, 352 So.2d 8 (Ala.1977). Furthermore, the trial judge instructed the jury that they should not draw any inference due to the fact that the appellant did not testify. (See R. 108).

The trial judge thoroughly instructed the jury on the presumption of innocence and the State’s burden of proof. Therefore, we find no error in the trial court’s oral charge to the jury.

This cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.