text:
    Don Lamar CADY v. STATE.
    4 Div. 160.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 22, 1984.
    Certiorari Denied July 20, 1984 Alabama Supreme Court 83-972.

      L. Merrill Shirley, Elba, for appellant.
    Charles A. Graddick, Atty. Gen. and Fred F. Bell, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The following STATEMENT OF THE CASE is found in appellant’s brief and is adopted in appellee’s brief:

“The December 1982, term grand jury for the Circuit Court of Coffee County, Alabama, Elba Division, returned an indictment against the Appellant, Don Lamar Cady, charging the Appellant with engaging in sexual intercourse with [a named individual, whose name we omit], a female, by forcible compulsion in violation of Section 13A-6-61 of the Code of Alabama, against the peace and dignity of the State of Alabama.
“On December 13, 1982, the undersigned attorney was appointed to represent the Defendant and arraignment was conducted. The defendant pled not guilty and the matter was placed on the jury docket. “Motion for Discovery was filed, granted, and discovery furnished by the District Attorney’s Office of Coffee County, Alabama.
“On March 24, 1983, the case was brought to trial and on March 25, 1983, a - jury returned a verdict of guilty against the Defendant as charged. The Defendant served oral notice of a working appeal and requested a sentence hearing. The sentence hearing was conducted on April 8, 1983, wherein, the Defendant was adjudged guilty and sentenced to life imprisonment in the penitentiary of the State of Alabama. Defendant again gave notice of appeal seeking a working appeal and the undersigned attorney was then appointed to represent the Defendant on his appeal.
“On April 26, 1983, a Motion for New Trial was filed by the Defendant. On May 9, 1983, a hearing was conducted and Motion for New Trial was denied. After the denial of the Motion for New Trial, appellant has prosecuted this appeal.”

The alleged victim testified that she was 17 years old at the time of the trial. Her last birthday was during the month before the trial. The incident involved occurred approximately fourteen months before the trial, which means that the victim was 15 years of age, lacking a month or two of being sixteen years of age, at the time of the incident. The alleged victim was the only eyewitness who testified as to what occurred at the time and place of the incident. She testified that on the night of January 19, 1982, she and a girl friend had been to a ball game at the gym at Elba High School, and that after the game a friend of the two drove them to a house, and thereafter to another home. Continuing in her testimony, the alleged victim said that she went from home to home and after calling her mother she realized she had dropped her sock and she “went back to find it.” Her testimony continued as follows:

“Q. And what path did you follow when you went back to find it?
“A. The same one that—
“Q. All right. Will you show us that? “A. All right. I walked back around and I was looking down, and then I walked and cut through here and that’s when the man — who was parked in the car — blue car.
“Q. All right. You say blue car.
“A. Right here.
“Q. And you also stated earlier in your testimony you had seen a blue car. Does this appear to you to be the same blue car?
“A. Yes.
“Q. Okay. What happened then?
“A. And then he got out of the car and asked me did I know somebody and I didn’t know the name, but he pointed away and I looked that way and about the time I looked he grabbed my neck. “Q. With regard to where you were standing and with regard to that distance — and I realize it’s not drawn to scale — but with reference to that diagram, approximately where were you standing?
“A. About right here [evidently pointing to a diagram] in the driveway—
“Q. What if anything occurred at that point?
“A. He grabbed my neck and then he told me not to make any noise and not to scream or he would kill me or something like that. I don’t remember exactly what words it was said. Then I told him not to hurt me. I would do almost anything. “Q. Go ahead.
“A. At this time he still had my neck and he had pressure on it. And then he pulled me back sort of behind the house but it wasn’t exactly behind, like if somebody walked by he probably would have saw us. And he told me to take my pants down and so I did — and he still had me by the neck—
“Q. What happened after he drug you back to this other area?
“A. He told me to take my britches— my pants down.
“Q. What if anything did you do?
“A. I took them down.
“Q. Why?
“A. Because I didn’t want to get hurt and killed.
“Q. Were you afraid?
“A. Yes, sir.”

The victim’s testimony continued for several more pages of the transcript. We quote therefrom only such portions as are pertinent and perhaps material to the issues presented on appeal:

“Q. Then what happened?
“A. And then I know he was choking me and I guess I passed out because the next thing I remember I was laying down and a bunch of sticks was around me and he was on me.
“Q. You say you think you must have blacked out?
“A. Yes.
“Q. But you did awaken?
“A. Yes.
“Q. And you say he was on top of you? “A. Yes.
“Q. Did this individual have his penis in your vagina?
“MR. SHIRLEY [Defendant’s attorney]: Again, Your Honor, we object to leading the witness. And object to the improper form.
“THE COURT: Overruled.
“MR. SHIRLEY: We except.”

ISSUES I AND II

The first two issues presented by appellant are as follows:

“I. The trial court committed reversible error when permitting the State over timely objection of Defendant, to elicit testimony from the Prosecutrix through improper, leading questions concerning a material element of the charge.
“II. The failure to establish penetration by Defendant upon the Prosecutrix in a charge of rape results in a failure of the State of Alabama to establish a crime has been committed.”

The two issues presented as applied to this case are in conflict with each other. As shown in appellant’s brief, the two issues pertain to the testimony of the alleged victim on direct examination which we have quoted above. By the first issue, appellant contends that the trial court erred in admitting testimony by the victim that penetration, “a material element of the charge,” occurred. By the second issue, it is contended that the evidence fails to show a penetration. As to the first issue, we would have no difficulty in disposing of it adversely to appellant, if the witness had been a few years younger, as were the witnesses, fourteen years of age or younger, in cases cited by Judge McElroy in the footnote to Gamble, McElroy's Alabama Evidence, § 121.05(8) (3d ed. 1977):

“A child should, as far as possible, be permitted to tell, in his own language, what he saw and heard before resort is made to leading questions. It is, however, within the discretion of the trial court to permit leading questions asked of an immature witness on direct examination by the party who called him.”

Even though the witness was older than the witnesses in the cases cited, we believe the nearness of the age of the witness in the instant case to the ages of the witnesses in the cited eases, whose answers to leading questions on direct examination were authoritatively approved, is a proper factor to be considered in this case; especially so, we think, because of the delicacy of the subject matter. Furthermore, we note that the question could have been definitely answered by “Yes” or by “No.” Although the “yes” or “no” answer test is not a conclusive test, we are assisted by it, when applied to all the circumstances herein, in our effort to resolve appellant’s first issue, i.e., whether the question under consideration was leading. As stated by Judge Harwood, afterwards Justice Harwood, in Williams v. State, 34 Ala.App. 603, 42 So.2d 500, 503 (1949), cert. denied, 252 Ala. 602, 42 So.2d 504:

“... The ‘yes’ or ‘no’ answer test may furnish assistance in many cases in determining the leading character of a question, but it is uncertain and inconclusive, and the ends of justice cannot be served by its mechanical application.”

We conclude that the trial court was not in error in overruling defendant’s objection to the question. We further conclude that, as the answer disclosed clearly that there was penetration, there is no merit to appellant’s contention that there was a “failure to establish penetration.”

III.

Appellant asserts, as his third contention for a reversal, the following:

“The trial court committed reversible error when it permitted, over objection of Defendant, the introduction of the details of the complaint given by the Prosecutrix to the investigating police officer.”

The issue is complex, and we are not in full agreement with the argument of either the appellant or the appellee on the question. The investigating police officer referred to in the foregoing quotation was Officer Kenneth R. Paul, who, at the time of the trial, was a police officer with the Green-ville Police Department; at the time of the alleged crime in this case, he was “the investigating officer” of the Elba Police Department. Upon being called as a witness by the State, he testified for about two pages of the court reporter’s transcript until there was a colloquy among the attorneys, the trial judge, and the witness, out of the hearing of the jury. Soon after the hearing in the presence of the jury resumed, the following occurred during the direct examination of Officer Paul:

“Q. Did she tell you any details of the alleged rape itself?
“Q. What did she tell you?
“MR. SHIRLEY: We would object. “THE COURT: Overruled.
“MR. SHIRLEY: And we would move to exclude the previous testimony.
“THE COURT: Overruled.
“A. She said that her and some of her friends were walking home from a basketball game and they were going to Kennedy Estates. She said there was a trail along through the woods going to Kennedy Estates and they were walking up that trail. She said that while they were walking she saw a blue car ride up and down the street several times but she didn’t think anything about it. She said at one place on the trail there was a big mud puddle and she stepped in it and went on through it. And she said her shoe and her sock had mud all over them. She took one shoe and one sock off. She said that they kept walking and when they got up behind the house over there in Kennedy Estates that she looked down and she noticed that one of her socks was missing. The sock she had pulled off and stuck in her shoe was missing. So, she asked a friend if she would go back with her to hunt it. And she told her no she was going on. So, she turned around and started back down the same trail that they had just come up hunting her sock. She said she passed by a blue car parked beside the street. She stated then that a black male got out of the car, started walking up to her asking her if she knew somebody or knew where somebody lived, that she couldn’t understand what he was saying. She said once he got close enough to her he grabbed her around the throat. She said he told her then not to scream or he would hurt her and kill her and told her to take her pants off. So she said she started taking her pants off. Then she acted like she had stepped on a piece of glass, so he kind of eased his hold. Then she broke away and started to run. He caught her and started choking her again. She said at that time he threw her on the ground and she scratched him in the face. She said then he just started squeezing her neck real tight. The next thing she could remember was when she woke up and the person was on top of her. She said at that time she asked him where her clothes were. And the person told her that he would go get her clothes and not to scream. At that time the person got up, the black male, and ran and jumped in his car and left. So, she got up and found her clothes, put her clothes on and about this time her mother came driving by so she went and got in the car with her mother and they came to the Police Department.
“Q. Randy, I believe she told you her assailant had gotten out of a vehicle and she was giving you a description of that vehicle, is that right?
“A. Yes, sir.
“Q. I believe you testified that’s— “MR. SHIRLEY: Excuse me, Your Hon- or, I object. It’s repetitious, it’s leading and he’s—
“THE COURT: Yes. Sustained.
“Q. She described the vehicle?
“A. Yes.”

We agree with the position taken by appellant to the effect that the principle that a prompt complaint by the victim of rape or other sex offense, consistent with her testimony, is admissible in evidence, is not broad enough to include testimony as to the details thereof.

“It is a well established rule in Alabama that testimony concerning the prosecu-trix’ complaint must be confined to the fact of the complaint. Details of the occurrence such as showing the identity of the person accused, the injuries claimed to have been sustained, or other minute circumstances of the offense are not admissible [authorities cited].” Lawson v. State, Ala.Cr.App., 377 So.2d 1115, 1118 (1979), cert. denied, Ala., 377 So.2d 1121.

The principle just stated has exceptions. One exception is found in the permissible introduction of evidence as to the details of the victim’s complaint for the purpose of corroborating the victim’s testimony on direct examination as to the details of the crime, as to which the victim has been subjected to cross-examination calculated to reflect upon her credibility as a witness. During the cross-examination of the victim, covering more than twenty pages of the court reporter’s transcript, she was questioned intensively and extensively as to almost all of the details of what occurred for several minutes before, during, and several minutes after, the commission of the crime, in an obvious effort to discredit her testimony on direct examination that she had been raped by defendant. The following is applicable, as stated in another rape case:

“Counsel for the appellant by attempting to discredit the prosecutrix’ story, and by going into her mental and physical state on cross-examination, opened the door for the State, for purposes of corroboration, to prove the details of the complaint and to show the appearance of the prose-cutrix at the time complaint was made. Cox, supra, [Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967) ]; Barnett v. State, 83 Ala. 40, 3 So. 612 (1887).” Fisher v. State, 57 Ala.App. 310, 328 So.2d 311, 317 (1976), cert. denied, 295 Ala. 401, 328 So.2d 321.

Details of the complaint made by the victim to the investigating officer, when considered as a whole, were properly admitted in evidence. Defendant sought no ruling as to any specific portion of the details.

IV.

The fourth issue presented in appellant’s brief is as follows:

“The State failed to predicate Prosecu-trix’ identification of Defendant in court on evidence the identification was based upon factors other than the pre-trial viewing of Defendant; and the State, failing to lay the proper predicate that the photographic line-up and physical lineup involving the Defendant were not suggestive, before permitting testimony of same and identification of the Defendant was error, prejudicially injurious to the Defendant.”

We have considerable difficulty in analyzing discretely the contentions that are brought together in appellant’s fourth issue, but we endeavor to do so.

In the first paragraph of appellant’s argument in support of his fourth contention for a reversal, it is stated:

“The trial court committed reversible error when the court permitted the Prose-cutrix to identify the Defendant in court without the State of Alabama proving the pre-trial identification did not influence, prejudice or bias the witness’ judgment making the in court identification. The Appellant objected to the identification because no evidence was presented at the trial to show the in court identification was not tainted by the pre-trial identifications of the Defendant.”

Appellant is correct in further asserting in his brief that during a colloquy, out of the presence of the jury, the State “admitted there had been a pre-trial photographic identification and a pre-trial physical lineup,” at which the victim had identified the defendant. The photographic identification was within the next day, and the lineup identification was approximately a month after the alleged crime and several months before an indictment was returned against defendant.

The crux of appellant’s contention in support of his fourth issue seems to be stated in the following, the third paragraph of his argument as to the issue:

“... Appellant submits the burden was placed upon the State to demonstrate constitutional fairness on each of these pre-trial identifications and lay the predicate that the identification process at these pre-trial identifications by the Pros-ecutrix had not tainted her then in court identification. The Court overruled Appellant’s request. Thereafter, a motion to exclude the evidence was restated after the evidence was introduced.”

Although appellant cites a number of authorities pertaining to the ofttimes necessity and importance of a careful scrutiny of an in-court identification of the accused as the person who committed the alleged crime involved, beginning with United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and concluding with Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), he cites no case or other authority in support of his quoted contention, with which we do not agree. This is not to say that there could not conceivably be cases in which there is an odor of taint caused by extrajudicial identification that should be removed as the responsible source of an in-court identification before evidence of an in-court identification is admitted, but there is no occasion for believing that there was any such scent in the instant case. In addition to what we have termed the crux of appellant’s fourth issue, appellant argues that the court should not have admitted in evidence, over defendant’s objections, either of the pre-trial identifications. We consider such question as addressed to the identification of the exhibition of photographs and at the lineup.

The evidence as to the photographic identification and the identification at the lineup is in the testimony of Officer Paul, on direct examination, in pertinent and material part as follows:

“Q. Randy, I want to back you up a little bit. Did you have an occasion to see [the named alleged victim] on the day of the 20th?
“A. Yes, sir.
“Q. Where was it that you saw her? “A. At her home.
“Q. And did you at that time — did you display or make what we call a photographic display for her?
“A. Yes, sir.
“Q. And what was the purpose of doing that?
“A. For identification.
“Q. And can you tell us the approximate time difference between the incident which was reported as having occurred and the time that you showed her this photographic display?
“A. The incident occurred approximately between 9:00 and 10:00 o’clock p.m. on the 19th. We showed her the photographs at approximately 9:00 o’clock the next morning.
“Q. Now, was the only one present that viewed that display?
“A. Her and her mother.
“Q. And can you tell us what the display consisted of?
“A. Yes, sir. Eight pictures.
“Q. Of what?
“A. Of black males.
“Q. What instructions if any did you give her with regards to that display? “A. I told Miss [surname of the witness] to take her time and look at the pictures. If she saw the person that raped her to tell me and if she didn’t see him to tell me she didn’t see him.
“Q. All right. How were the photographs shown to her?
“A. I laid them on the coffee table in two rows of four.
“Q. So, they were all placed in front of her at one time?
“A. Yes, sir.
“Q. Did she select a photograph?
“A. Yes, sir.
“Q. And whose photograph did she select?
“MR. SHIRLEY: We object to that, Your Honor.
“THE COURT: Overruled.
“MR. SHIRLEY: We except. We would like to state that there has been no predicate laid, no showing to the Court or the jury of the photographs, and that this is hearsay from this witness as to the selection what photograph.
“MR. HEAD: He is testifying to a physical thing she did, Judge.
“THE COURT: Overruled.
“Q. Did she select a photograph?
“A. Yes.
“Q. Whose?
“A. Mr. Cady.
“Q. Now, Randy, did you have occasion to get with Miss [surname of alleged victim] on another occasion concerning a line-up identification?
“A. Yes.
“Q. Can you tell us when and where that was?
“A. February 17th, 1982, at the Coving-ton County Jail.
“Q. What was the nature of that particular line-up if you will tell us?
“A. Six people, including Mr. Cady, were lined up in a room. Miss _ came to the door and saw me and I told her the same thing again, to look at everyone of them and if she saw the person that had raped her to point him out to me and if she didn’t to tell me she didn’t see him.
“Q. Did she point anybody out?
“A. Yes, sir.
“MR. SHIRLEY: We would object, again, Your Honor. It’s hearsay. It’s irrelevant and immaterial.
“THE COURT: Overruled.
“Q. Could you tell us who she pointed out?
“A. Mr. Cady.
“MR. SHIRLEY: Your Honor, we need to approach the bench to make a statement.
“(Thereupon, the following occurred at Judge’s Bench out of the hearing of the jury):
“MR. SHIRLEY: We move to exclude the testimony of where the line-up took place on the grounds that it infers that the defendant was incarcerated, guilty of an offense for which at this time the State has no right nor privilege to introduce and it infers that the defendant is guilty of some other criminal offense when such testimony at this time during the trial is not permissible to be introduced. Also, we would move to exclude the testimony on the grounds that the State has not proven that the line-up that was conducted was fair, reasonable, and consistent with person or persons that appear like the defendant. There has been no evidence introduced in the trial for the benefit of the jury or the Court to decide whether or not the line-up was Constitutionally fair nor has there been any evidence that the photographs were in any way related to — similar or different or any evidence as to the photographs and we will move to exclude both the photographic line-up and the line-up itself. It is a violation of his Constitutional rights, both the 5th and the 6th Amendments of the Constitution.
“THE COURT: Overruled.”

On cross-examination of Officer Paul, he testified:

“Q. Okay. Now, on the occasion that you were at this line-up, did you talk to Mr. Cady?
“A. Yes, sir.
“Q. Did you advise him of his rights? “A. No, sir. I didn’t.
“Q. Do you remember how many people were there, other people were there? “A. Five and Mr. Cady.
“Q. So, there were six?
“A. Yes, sir.
“Q. And the first one in line was Mr. Cady, wasn’t it?
“A. No, sir.
“Q. Where was he?
“A. I don’t remember exactly what his position was in there.
“Q. You don’t remember exactly?
“A. No, sir, it’s on the report.
“Q. Uh-uh. Well, how many of them were black?
“A. All of them.
“Q. How many of them were his height within two inches?
“A. All of them should have been.
“Q. Should have been? You are not telling us that they were, are you?
“A. They should have been within two or three inches.
“Q. I know they should have been, but you are not telling me they are, are you? “A. I’m not — it’s on that report. How tall they were and all.
“Q. Well, you remember going over there, don’t you?
“A. I sure do.
“Q. And you can’t tell them without looking at the report, is that what you are saying?
“A. I don’t remember all of them’s names and exactly how tall they were. “Q. You don’t remember how tall they were?
“A. No, sir. Not exactly.
“Q. So, you can’t tell this jury how many of them were within two inches of his height?
“A. I don’t remember six people’s different height and all that.
“Q. You don’t know how many of them were his weight?
“A. All of them were close.
“Q. Okay. And how about their hair? “A. It was about the same.
“Q. What do you mean about the same? “A. About the same length.
“Q. About the same length? Did all of them have their hair braided?
“A. Some of them did. I don’t remember exactly how many.
“Q. How many?
“A. I don’t remember exactly how many.
“Q. Well, is that on that report that you’ve got?
“A. I’m not sure.
“Q. That’s right. It wasn’t in there, was it?
“A. I don’t know about that.
“Q. That’s right. And that’s what you were over there to do, wasn’t it, Officer Paul?
“A. I don’t know what you mean.
“Q. Huh?
“A. I don’t know what you mean.
“Q. You weren’t over there to know what was going on in the investigation? “A. Yes, sir.
“MR. HEAD: Judge, we object. This is argumentative.
“THE COURT: Sustained.
“Q. So, you don’t know how many of them had braided hair?
“A. No, sir.
“Q. You remember that Mr. Cady had his hair braided that day, do you not? “A. Yes, sir.
“Q. Well, was he the second one when you walked in there?
“A. No, sir.
“Q. Were you by yourself on that occasion?
“A. No, sir.
“Q. How long were you all there looking at this line-up, do you remember? “A. Just a couple of minutes.
“Q. A couple of minutes?
“A. Yes, sir.
“Q. Two minutes?
“A. Two or three minutes.
“Q. Two or three minutes. I guess you had the lights on then?
“A. Yes, sir. The lights were on.
“Q. Do you have any independent recollection on that occasion that there was anybody as tall as Mr. Cady or taller than Mr. Cady in that line-up?
“A. Yes, sir. There was at least one taller and at least one shorter that I can remember.
“Q. And how much taller and how much shorter?
“A. About — one was about three inches taller and one was about one or two inches shorter.
“Q. Where were they in relation to Mr. Cady?
“A. The best as I can remember he was standing, as you are facing the line-up, he was either the next to the last or the last one.
“Q. And these people that were taller were over on the opposite end?
“A. No, sir.
“Q. You don’t remember?
“A. I don’t remember exactly.
“Q. So, you can’t tell the jury that the tall person was beside him, is that right? “A. No, sir.
“MR. SHIRLEY: That is all I have right now. I will reserve the right to further cross-examination.”

There was no further testimony by Officer Paul. Our review of the transcript convinces us that there was no suggestiveness or other improper conduct on the part of the officers preceding, or during the time of, the photographic identification or the lineup identification by the alleged victim of the defendant as the person who had raped her.

In our opinion, there was no error prejudicial to defendant in any of the rulings of the trial court pertaining to the admission in evidence of the victim’s in-court identification, the photographic identification, or the line-up identification of the defendant by the alleged victim.

V.

Appellant states the fifth and final issue presented in his brief as follows:

“The trial court erroneously permitted witness Paul to testify to a conclusion unsupported by personal knowledge and unsupported by the fact.”

This issue is the least pressed of the five issues presented by appellant, and the least argued by either party. It pertains to the following portion of the testimony of Officer Paul on direct examination:

“Q. Within the two hours preceding the report of this alleged rape, what duties did you perform?
“A. I was patrol officer. I had the north side of town at that time.
“Q. And what did that include? What area of town?
“A. From the Taylor Mill Road north. “Q. All right. . Now, specifically, did you — while you were on that patrol and within some two hours preceding before this complaint, did you see a vehicle consistent in description with that given by [the alleged victim]?
“A. Yes, sir.
“Q. And having seen that, what if anything did you do? Now, and this preceded the report of the rape, is that correct? “A. Yes, sir.
“Q. What did you do when you saw that vehicle?
“A. I turned the car around, the patrol ear around, and took the tag number down.
“Q. And where was that that you saw that vehicle?
“A. On the Taylor Mill Road in front of Rusty Gray’s Grocery.
“Q. Are you familiar with the area where this alleged incident occurred?
“A. Yes, sir.
“Q. And how far was that from where this took place?
“A. Approximately two blocks.
“Q. Two blocks? Did you later determine — you say you got the tag? Did you later determine the owner of the vehicle you saw on January 19th, 1982?
“A. Yes, sir.
“MR. SHIRLEY: Object, Your Honor. He has laid no predicate upon how he can testify to that.
“MR. HEAD: I will lay the predicate, Your Honor.
“MR. SHIRLEY: Well, I object at this time.
“THE COURT: Overruled.
“Q. Yes or no, did you determine that?
“A. Yes, sir.
“Q. How?
“A. Through vehicle tag registration— “MR. SHIRLEY: We object to that, Your Honor.
“THE COURT: Overruled.
“Q. And who did you determine to be the owner of that—
“MR. SHIRLEY: For the record, I would like to move to exclude that testimony because it’s not the best evidence to show the ownership of an automobile. “THE COURT: Overruled.
“Q. Now, who did you determine to be the owner of that vehicle?
“A. Mr. Cady.
“MR. SHIRLEY: We object, Your Hon- or.
“THE COURT: Overruled.
“Q. Mr. Cady?
“A. Yes, sir.”

Although we question the soundness and correctness of the action of the State in its injection into the evidence reference to the ownership of the automobile that Officer Paul had seen in the vicinity of the alleged crime a short time before he commenced his investigation of the crime, an automobile that fit the description by the victim of the automobile she saw her rapist occupy prior to and after the rape, we fail to follow the reasoning of appellant in his contention that the court committed reversible error in any of its rulings, set forth in the above-quoted portion of the transcript, as to the testimony of Officer Paul as to the motor vehicle seen by him. We note, with one exception, that every objection made by defendant’s counsel to any question asked the witness by the State as to the ownership of the automobile was made after the witness had completed his answer. The single exception is found in. an objection made while the witness was in the process of making an answer. A motion to exclude “that testimony” was made while the witness was being asked another question. The specific question and answer as to which appellant now complains, that is, the question that brought forth the answer by the witness that he had determined the defendant owned the automobile, was not objected to until after the question was answered. Immediately thereafter, the question was asked again, but in another form, and the witness repeated his previous answer; thereafter there was neither an objection nor a motion to exclude as to the particular testimony. No error was committed prejudicial to defendant by any of the rulings of the trial court as to the. ownership by defendant of the automobile seen by Officer Paul near the place and about the time the alleged crime occurred.

We find no error prejudicial to appellant in any of the issues presented and are convinced that the evidence was overwhelmingly to the effect that defendant was guilty as charged in the indictment. We should say, however, in fairness to appellant, that, notwithstanding his resting his case without calling any witnesses in his behalf, the State’s evidence disclosed without dispute that defendant unequivocally denied knowledge of the crime, as well as any participation by him.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Tom PARKER v. STATE.
    4 Div. 192.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1140.

      John M. Gruenewald, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

The Houston County Grand Jury, during its February, 1983 term, indicted appellant, Tom Parker, for theft of property in the second degree. On May 24, 1983, he was convicted of the offense and was sentenced to life imprisonment as a habitual felony offender.

Roger Riley, an employee of Mr. Tire Company in Dothan, Alabama, testified that he saw appellant pick up two tires belonging to his employer and walk away with them. He turned a corner with the tires and returned shortly without them. When Riley confronted him, appellant said that he was playing a joke on the bossman.

Larry Smith, another employee, requested that appellant remain at the scene until the police, whom he had summoned, arrived. Appellant said something about giving him a break and proceeded to leave the premises. The two employees alerted Kimberly Smith, the owner of the Mr. Tire Company, and then followed appellant, who threatened his pursuers, thereby managing to elude them before the police arrived.

Riley recovered the two missing tires from a corner of the nearby Snell Service building. Kimberly Smith identified the tires as his property and stated that they were valued at one hundred dollars each. He testified that he knew appellant, since he had once sold him some used tires, but he said that they were not friends and that he did not give him permission to take the tires. He was aware that appellant was the proprietor of A-l Safe and Lock Company down and across the street from his own business.

Appellant contends on appeal that the trial court erred to reversal in denying his request to represent himself at trial.

The record reveals that on February 22, 1983, appellant was arraigned and John W. Gruenewald was appointed by the court to represent him in the case. On May 24, 1983, appellant came to trial. After the jury had been impaneled and the State had presented its opening statement, appellant’s attorney requested that the court entertain a motion outside the presence of the jury. The trial judge complied with this request and heard appellant’s motion to try his own case. From aught that appears in the record, this was the first time appellant sought to assert his right to represent himself.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that a criminal defendant has a Sixth Amendment right to conduct his own defense. The demand to proceed pro se must, however, be timely made. See 98 A.L.R.3d 13 (1980). The defendant in Far-etta made such a motion weeks before coming to trial.

The court in United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965), analyzed the timeliness factor as follows:

"The right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial.
“Once the trial has begun with the defendant represented by counsel, however, his right thereafter to discharge his lawyer and to represent himself is sharply curtailed. There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge’s assessment of this balance.” (citations omitted)

We find that appellant in the case before us failed to make a timely demand and that the trial judge did not abuse his discretion in denying appellant’s request to conduct his own defense.

Appellant next contends that the trial court erred in denial of his motion to exclude the State’s evidence on the ground that the State failed to establish a prima facie case against him.

Section 13A-8-2, Alabama Code (1975), defines theft of property as the following: “A person commits the crime of theft of property if he: (1) knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property.” Section 13A-8-4, Alabama Code (1975), further defines theft of property in the second degree as the following:

“(a) The theft of property which exceeds $100.00 in value but does not exceed $1,000.00 in value, and which is not taken from the person of another, constitutes theft of property in the second degree.”

Appellant does not deny that he knowingly exerted unauthorized control over two tires belonging to Mr. Tire Company worth an aggregate of two hundred dollars. He does argue, however, that he did not intend to deprive Mr. Tire of its property and that he was only playing a joke on the bossman.

Intent is, of course, inherently difficult to prove by direct evidence. It is properly provable, however, by circumstantial evidence and reasonable inferences arising therefrom. Hinds v. State, 423 So.2d 1382 (Ala.Cr.App.1982). Moreover, the question of intent is one for the jury. Craig v. State, 410 So.2d 449 (Ala.Cr.App.1981).

We find that the State presented sufficient evidence for the jury to conclude, by fair inference, that appellant was guilty, beyond a reasonable doubt of the crime charged, and we will not substitute our judgment for that of the jury. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979); Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919).

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Ronnie BURNS v. STATE.
    6 Div. 965.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    On Return to Remand June 26, 1984.
    Rehearing Denied Aug. 14, 1984.

      Albert C. Hultquist, Homewood, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

Ronnie Burns was indicted and convicted for the murder of Dermita Joann Billings-ley. Sentence was twenty-five years’ imprisonment. The only issue argued on appeal concerns the State’s withdrawal from an alleged plea bargain agreement.

The majority of courts in the United States that have considered the matter have held that the State may withdraw from a plea bargain agreement at any time before a plea is entered or the defendant undertakes other action in reliance on the agreement. Annot. 16 A.L.R. 4th 1089 (1982). Our Supreme Court, however, has held that once the State enters into a plea bargain agreement it may not “repudiate that agreement with impunity.” Ex parte Yarber, 437 So.2d 1330, 1335 (Ala.1983).

It is undisputed in the present case that the prosecutor and defense counsel entered into plea negotiations after Burns’ first trial resulted in a mistrial when the jury was unable to reach a verdict. The prosecutor ultimately offered “ten years, murder, and for the defendant to serve ten years.” The record contains conflicting evidence as to whether an agreement to these terms was ever entered into. While it is clear that the prosecutor withdrew something, this Court is unable to ascertain from the record whether he withdrew his offer or withdrew from, the agreement.

We, therefore, remand this cause to the Jefferson Circuit Court for a determination of whether the defendant and the prosecutor did, in fact, enter into a plea bargain agreement. If a finding is made that an agreement existed, the Circuit Court is instructed to apply the principles set out in Yarber, supra. The Circuit Court is further instructed to prepare a written finding of facts concerning this matter.

REMANDED WITH INSTRUCTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Presiding Judge.

On remand, the trial court entered written findings of fact and concluded that,

“it is unquestionably clear that an agreement was entered into within the meaning of that term, but, that the offer was withdrawn prior to the actual plea being entered into. This was frequently done prior to the Yarber decision.
“Therefore, this Court makes the finding that an agreement of ten years was entered into and the facts of this case are almost ‘on all fours’ with the facts in Yarber. Therefore, it is the opinion of this Court that the plea bargain should be enforced.”

The judgment of the circuit court ordering the enforcement of the plea bargain is affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.


text:
    Roger Dale HOUK v. STATE.
    7 Div. 157.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied July 20, 1984 Alabama Supreme Court 83-927.

      William D. Hudson and Howard B. Warren of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen. and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

On March 8, 1983, the Etowah County Grand Jury indicted appellant, Roger Dale Houk, for trafficking in cannabis, in violation of § 20-2-80, Code of Alabama 1975. At the conclusion of trial, the court struck count two of the indictment charging appellant with possession of marijuana. The jury returned a verdict of guilty of trafficking in cannabis, and on May 5, 1983, appellant was sentenced to seven years’ imprisonment and fined $25,000.

Before trial, the court held a hearing on appellant’s motion to suppress evidence seized in a search of his motel room. Johnny Grant, an investigator with the Etowah County Sheriff’s Office, testified at the hearing that on March 7, 1983, at 4:00 a.m., he received a phone call at home from an informant. The informant was an individual known to Grant who had furnished reliable information leading to arrests on drug charges in the past. The informant related that Roger Houk was in room number 244 of the Traveler’s 8 Motel and that he had seen a large quantity of marijuana in the room that night. He also reported that he had seen a revolver in the room and that Houk had stated that he would use the gun.

Grant went to the motel and maintained surveillance there until his partner relieved him at approximately 7:30 a.m. Grant then left and met Judge Owen outside the courthouse at about 8:00 a.m. Judge Owen authorized a search warrant based upon Grant’s affidavit, whereupon Grant and four other officers, two of whom were uniformed deputies, immediately executed the warrant.

Grant, with gun drawn, knocked twice at appellant’s door. Appellant said, “Who is it?” and Grant pushed the unlocked door open, announcing as he did so, “Sheriff’s Department.” Appellant, who was lying fully clothed on top of the bed, was ordered to get up and the officers patted him down. Appellant was given the search warrant, allowed to read it and the room was searched.

During the search the officers found an ice chest containing approximately nine pounds of marijuana and a small quantity of cocaine. In addition, they found a .38 caliber Smith and Wesson revolver, which was loaded and in a holster lying on a counter near a sink in the room.

Appellant first contends that the trial court erred in requiring him to strike a jury from a list of twenty-five names, when a larger number of potential jurors would have been available had the court held appellant’s suppression hearing before requiring the parties to strike a jury. He cites § 12-16-100, Alabama Code 1975 (Cum. Supp.1982), regarding the drawing, selection, and empaneling of juries in criminal cases, and quotes the following pertinent part:

“. The number of names appearing on the strike list upon commencement of striking, unless a lesser number is agreed to by the parties, shall not be less than 36 if the offense charged is a capital felony nor less than 24 if the offense charged is a felony not punished capitally

The court supplied a list of twenty-five names from which to strike the jury. This was one name over the minimum prescribed in the statute and thus clearly is in compliance with the statutory requirement. Appellant’s argument to the contrary is untenable.

Appellant asserts that the affidavit was insufficient to support the issuance of the search warrant executed against him. It reads:

“I, Johnny M. Grant, County Investigator of Etowah County Sheriffs Department on this the 7th day of March, 1983, received information by telephone at 4:00 a.m. at my residence from an informant known to me and whose record of reliability is good in that he has provided information in the past that has led to the arrest of persons involved in the illegal sales and possession of marijuana; and such informant said that Dale Houk whose name is otherwise unknown had in his or her possession, either upon his or her person or upon the following premises Room 244 of Travelers Eight Motel located on West Meighan Blvd., Gadsden, in Etowah County, Alabama, the following items: Marijuana. The said informant stated that he acquired said knowledge by being present within past 12 hours and seeing marijuana in Room 244.”

In Avery v. State, 336 So.2d 195 (Ala.Cr.App.1976), Judge Harris, speaking for the court, made it clear that a reviewing court should use a common-sense, rather than a hypertechnical, approach to determining sufficiency of an affidavit to support a search warrant.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), the United States Supreme Court clarified its position on this issue, quoting the following passage from Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960):

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.”

In Gates, supra, the Court expressly abandoned the rigid “two-pronged” test developed from Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in favor of a “totality of circumstances” analysis for determining when an informant’s tip establishes probable cause for issuance of a warrant. The Court observed that probable cause is a fluid concept, unsuited to rigid technical requirements, and that existence of probable cause necessarily turns upon assessment of probabilities in particular fact situations. The Court emphasized that the standard of probable cause is that of probability, not prima facie showing of criminal activity.

In its discussion the Court concluded that the result of subjecting warrants to hyper-technical scrutiny would be inconsistent with the Fourth Amendment’s strong bias for searches conducted pursuant to valid warrants. The Court stated that great deference should be given to a magistrate’s determination, since law enforcement officers, if fearful of breaching enigmatic technical requirements, would tend to resort to warrantless searches in hopes of relying upon some exception to the warrant requirement. The Court opined that a warrant imbues arresting or searching officers with a greater appearance of authority and assures the individual whose property is searched or seized of the lawful authority of the executing officers, their need to search, and the limits of their power to search, and that the individual perceives police procedures against him as less intrusive. Gates, supra, 103 S.Ct. at 2331.

We have carefully considered the affidavit in this case and we find that it meets the totality of the circumstances test as set out in Illinois v. Gates, supra. The informant’s reliability was attested to by the affiant, and there was sufficient detailed information supplied by the informant from which to conclude that there was a substantial basis for the magistrate’s determination that probable cause existed for the issuance of a search warrant.

Appellant contends that the trial court committed reversible error when, at the suppression hearing, it refused to allow defense counsel to question Officer Grant concerning what the informant told him concerning an individual in another room in the same motel.

Where defendant makes an initial showing that there has been a misrepresentation of a material fact, whether intentional or unintentional, in the supporting affidavit, he is entitled to delve below the surface of a facially sufficient affidavit. Satterwhite v. State, 364 So.2d 345 (Ala.Cr.App.), reversed and remanded on other grounds, 364 So.2d 359 (Ala.1978).

In the case before us, counsel’s offer of proof contained no accusation that the informant misrepresented facts concerning appellant, and it was not clear in what way facts were misrepresented concerning the second individual, if they were misrepresented. Appellant, thus, failed to make the initial showing required by Sat-terwhite, supra, and the trial court acted properly in refusing to permit defense counsel to question the affiant regarding information which may have been supplied to him by the informant about an individual not involved in the case before the court.

Appellant next submits that the search warrant was not properly executed in accordance with § 15-5-9, Alabama Code 1975, which states:

“To execute a search warrant, an officer may break open any door or window of a house, any part of a house or anything therein if after notice of his authority and purpose he is refused admittance.”

Appellant argues that the officers were not refused admittance, and that there was no justification for this lack of compliance with the statute.

In Laffitte v. State, 370 So.2d 1108, 1110 (Ala.Cr.App.) cert. denied, 370 So.2d 1111 (Ala.1979), however, the court recognized that the statute is subject to exceptions and set out the following guidelines:

“ ‘Where it appears from facts adduced that an announcement of the officers’ purpose would frustrate a search, increase the personal peril of the executing officers or cause destruction of the evidence sought, there would be no necessity for compliance with the knock and announce rule, for these exceptions constitute “exigent circumstances.” ’ ”

Testimony of Officer Grant regarding the facts and circumstances with which he was faced in making his decision was as follows:

“[The informant] told me there was a large quantity of marijuana in the room, that the Defendant was drunk—had been drunk, and that he had a pistol in the room with him, he had made the statement that he would use it.”

We find that these facts indicate an exigent circumstance justifying lack of compliance with the statute.

Appellant next asserts that the state must prove at trial that evidence admitted was properly seized.

In this case a suppression hearing was held before commencement of the trial and the trial court ruled that the search was lawful. The question of whether a search is lawful is a question of law for the trial court’s determination, based upon evidence heard in camera. Crowden v. State, 55 Ala.App. 325, 315 So.2d 122 (Ala.Cr.App.), cert. denied, 294 Ala. 756, 315 So.2d 128 (1975). Once proof is made before the trial judge that a search was legal it is not necessary to present the same predicate to the jury. Sheffield v. State, 392 So.2d 1233 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1237 (Ala.1981). Hence, appellant’s claim is without merit.

Appellant asserts that the introduction into evidence of the affidavit at trial was error. No objection was made to the admission of the affidavit at trial, and thus the issue is not properly before this court on review. Bridges v. State, 391 So.2d 1086 (Ala.Cr.App.1980).

Lastly, appellant contends that the state’s closing argument was so prejudicial as to warrant a new trial.

During closing argument by defense counsel, the following took place:

“MR. HUDSON: State comes up here with a search warrant that they have introduced into evidence where an unknown informer—they won’t even tell us who it is.
“MR. HART: Objection your Honor, by law we don’t have to tell them who it is.
“MR. HUDSON: We know they don’t have to, Judge, but didn’t or wouldn’t.”

During the prosecutor’s subsequent closing argument, the prosecutor stated:

“MISS JONES: And you heard Mr. Hudson say that the state would not tell him who the informant was. Well, of course, we are not going to tell who informants are. We would be stupid to because then we would be giving those informants just, in effect, the death penalty because—
“MR. HUDSON: Your Honor, I’m going to object to that and move to exclude it and ask for a mistrial.
“THE COURT: Yes, I think it is prejudicial. Let’s proceed.”

Thus, in effect, the trial court sustained the objection but took no further action.

The trial court in a criminal prosecution has broad discretion in controlling closing arguments. Hurst v. State, 397 So.2d 203 (Ala.Cr.App.), cert. denied, 397 So.2d 208 (Ala.1981); Elston v. State, 56 Ala.App. 299, 321 So.2d 264 (1975); Smith v. City of Birmingham, 36 Ala.App. 72, 52 So.2d 394 (1951).

In this case defense counsel interjected the state’s failure to identify the informant into closing arguments. The prosecutor’s remark was a reply in kind, couched in general terms, without reference to the particular informant or particular defendant. The trial judge nevertheless sustained the objection.

After careful consideration of the record before us, we cannot hold that, as a matter of law, the trial court abused its discretion in not offering curative instructions to the jury regarding the prosecutor’s remarks.

We have examined each issue raised by appellant, and we have searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Lonnie Wayne CUSHING, alias v. STATE.
    7 Div. 202.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    On Return to Remand July 31, 1984.

      Kathleen M. Warren, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and T.A. Harding, Asst. Atty. Gen., for appel-lee.
   HUBERT TAYLOR, Judge.

The appellant, Lonnie Wayne Cushing, was indicted and convicted for the offense of criminal mischief in the first degree. Ala.Code § 13A-7-21. The trial court sentenced Cushing as a habitual offender to imprisonment for a term of twenty years.

On June 14, 1983, while Cushing was living in his step-mother’s house in Etowah County, he assaulted his step-sister, Jeanette. Mrs. Cushing and Jeanette went immediately to the Altoona Police Department and Police Chief Nash returned with them to their residence. There, they observed groceries on the ground outside the back door and on the kitchen floor. Cush-ing was in the house alone. At Mrs. Cush-ing’s inquiry, Cushing said, “Well, I just destroyed all the groceries.” The women gathered some clothing and left Cushing alone in the residence. Before they left, Cushing warned them that if they came back, he would kill them.

Approximately two to three hours later, Chief Nash and other law enforcement officers returned to Mrs. Cushing’s residence with a warrant for Cushing’s arrest. With a hammer in his hand, Cushing exited the house. After Cushing was given his Mi randa warnings, he spontaneously told the officers that they could have the house now. Upon entering the home, Chief Nash observed that the contents of the home had been completely demolished. Chief Nash was of the opinion that a hammer and a pick or a mattock had been used in creating such havoc. By Mrs. Cushing’s testimony, the State established that the damage to Mrs. Cushing’s personal property exceeded $1000.

I

The trial court properly overruled Cushing’s motion to exclude the State’s evidence on the ground that the prosecution failed to present a prima facie case. The evidence was circumstantial, but we are of the opinion there was sufficient evidence tending to show Cushing’s guilt to justify the trial court in submitting that question to the jury. See Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).

II

At the conclusion of the first day of Cushing’s trial, defense counsel moved for a mistrial on the ground that Cushing was handcuffed in the jury’s presence immediately prior to his exit from the courtroom. Within the factual context of this case, the trial court properly overruled Cushing’s motion. It is not ground for a mistrial that the accused appeared before the jury in handcuffs when this appearance was only a part of going to and from the courtroom. Moffett v. State, 291 Ala. 382, 281 So.2d 630 (1973), cert. denied, 414 U.S. 1161, 94 S.Ct. 924, 39 L.Ed.2d 114 (1974); Young v. State, 416 So.2d 1109 (Ala.Cr.App.1982). Cushing’s reliance on Clark v. State, 280 Ala. 493, 196 So.2d 786 (1967), is misplaced. See Young, supra; Taylor v. State, 372 So.2d 387, 389 (Ala.Cr.App.1979).

III

The trial court sentenced Cushing according to the Habitual Felony Offender Statute, § 13A-5-9, Code of Alabama 1975, pursuant to its finding that Cushing had been previously convicted of two felonies. Cushing argues that his 1974 Florida conviction for aggravated assault, with a sentence of six months’ to three years’ imprisonment, was improperly used because the State did not prove that this prior offense was a felony. We agree.

A.R.Crim.P.Temp. 6(b)(3)(iv) provides the following definition of a “felony” for purposes of sentencing under the Habitual Felony Offender law:

“Any conviction in any jurisdiction, including Alabama, shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under ... (§ 13A-l-2(4), Alabama Criminal Code), or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980.”

Section 13A-l-2(4) provides that an offense is a felony if the sentence authorized by the Alabama Criminal Code is in excess of one year. Thus, in order to determine whether this Florida conviction was properly used to enhance Cushing’s punishment, we look to see whether the conduct constituting the aggravated assault would constitute a felony under § 13A-l-2(4) had the conduct occurred in Alabama on or after January 1, 1980; however, the record is insufficient for us to make this determination. No evidence of the conduct which formed the basis of this conviction was introduced at the sentencing hearing. Thus, we cannot determine if such conduct could also establish a felony violation of present Alabama law. Therefore, this case is remanded for the trial court to determine if this Florida conviction would constitute a felony under our present code and to resen-tence Cushing accordingly. As a final comment, we note that the conviction should not be considered unless it is proven by a certified copy of the minute entry showing the prior conviction.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

ON RETURN TO REMAND

PATTERSON, Judge.

This court held that the trial judge improperly considered a 1974 Florida conviction for aggravated assault because the State did not prove that the prior offense was a felony, in sentencing appellant under the Alabama Habitual Felony Offenders Act. We remanded the case to the trial court with instructions that it determine if the Florida conviction would constitute a felony under our present code and to resen-tence Cushing accordingly.

At a resentencing hearing on May 8, 1984, the trial court found that the Florida conviction did not constitute a felony under Alabama law. The State and appellant agreed that there was one prior Alabama felony conviction of grand larceny. The trial court held that Cushing still fell within the purview of the Alabama Habitual Felony Offenders Act, and with one prior conviction, the proper sentence would be from two to twenty years. The court then sentenced Cushing to ten years in the state penitentiary. The action of the trial judge was proper.

No error harmful to the rights of appellant having been demonstrated, the judgment of the trial court is due to be, and is hereby, affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Cleophus ARCHIE v. STATE.
    1 Div. 583.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1142.

      Daniel L. McCleave, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal from two judgments of conviction and sentence in two separate cases (CC-82-266 and CC-82-267). The indictment in each ease charged that defendant did on a specified day, “unlawfully sell, furnish or give away Marijuana, a controlled substance, to Michael Anthony Cotten, contrary to and in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of § 20-2-70 of the Code of Alabama.” The only difference between the language of one indictment and the language of the other is that in one indictment it was alleged that the alleged crime occurred “on or about, to-wit: October 20, 1981,” while in the other it was charged that it occurred “on or about, to-wit: November 2, 1981.” In a third consolidated case, which charged that on to-wit: November 3, 1981, defendant possessed a specified controlled substance, not marijuana, on which the jury was not able to reach a verdict and, according to the records before us, the charge was subsequently nol-prossed. In one of the two eases in which defendant was convicted, the jury assessed a fine of $2,500.00 and in the other a fine of $6,500.00. The court adjudged the defendant guilty in each ease, in accordance with the verdict of the jury as to defendant’s guilt and the fine assessed, and sentenced him to imprisonment for fifteen years, with the terms of imprisonment to run consecutively to each other and consecutively to a sentence defendant was already serving in the state of Florida.

In due course, a motion for a new trial was filed, which was overruled by the trial court. The trial court also denied a motion of defendant to reconsider the sentence in each case, as well as defendant’s motion that he be declared indigent and for the court to appoint an attorney to represent him on appeal. The attorney who represents him on appeal is not the same attorney who represented him on the trial.

The person who is named in the indictment in each of the two marijuana cases, Michael Cotton, was the principal witness against the defendant as to the precise charge of the indictment. He was employed by Galanos Ship Supply as a truck driver, and he was also a reserve police officer with the city of Mobile, and had been such for three years and a half at the time of the trial on February 3, 1983. He stated that the functions of a reserve police officer included “undercover operations,” that one “is used as a patrolman, as well as a narcotics agent and in a number of things.” He testified that he met with the defendant, who at the time was driving a van, at a service station in Mobile late in October of 1981, and had a conversation with defendant. He said that they chiefly discussed “about his van and needing drugs.” According to his testimony, he reported “to David Wilhelm, investigator from the D.A.’s — District Attorney’s office that he had had the conversation with defendant,” and was sent by the investigator to Officer Rassie Smith. He further testified that on October 20, 1981, the following occurred:

“I remember Officer Rassie Smith and Investigator David Wilhelm from the D.A.’s office where we was planning it out to make a buy, $5.00 buy of marijuana. We left from the D.A.’s office and went to Cleophus Archie’s residence where I was dropped off several blocks from his residence.
“Q. Who took you?
“A. David Wilhelm and Officer Rassie Smith.
“Q. And did you go into the defendant’s house?
“A. Yes.
“Q. Now, while you were in there, was he there?
“A. Yes.
“Q. Was there anyone else there?
“A. Yes.
“Q. Male?
“A. Yes.
“Q. Did you know who they were?
“A. Some people I did.
“Q. Now did one of those black males say anything to that defendant—
“MR. PALUGHI [Defendant’s Attorney]: Wait a minute. I object to the statement black male. I don’t think he said they were black.
“Q. Were they black?
“A. Yes.
“Q. Did one of them say anything to that man in your presence regarding marijuana?
“A. Yes, he did.
“Q. Tell the jury what he said?
“A. The black male got off the phone. He was speaking to someone about a ship that was coming in the weekend of that week that had marijuana on it. “Q. All right, sir. Did you buy anything from that defendant?
“A. Yes, I did.
“Q. What did you buy?
“A. I bought $5.00 worth of marijuana. “Q. And did you give him $5.00?
“A. Yes.
“Q. What did he give you?
“A. Gave me a brown envelope containing marijuana.
“Q. Now after that, did you later go out and try to make another buy from that man?
“A. Yes.
“Q. Would that have been on or about the 2nd of November of 1981?
“A. Yes, it was.
“Q. Tell the jury what happened then? “A. I met with Rassie Smith and David Wilhelm again at the D.A.’s office. It was Saturday afternoon. We left in separate vehicles where I went to Cleophus Archie’s residence and purchased a $20.00 bag of marijuana contained in a plastic sandwich bag.
“Q. And what did you do with that marijuana?
“A. Turned it over to Rassie Smith.
“Q. Where did you actually make the buy of $20.00 of marijuana from him? “A. Inside the van in the front of the house.
“Q. Inside the van?
“A. Yes.
“Q. Tell the jury what all happened inside the van when you made that buy? “A. First he had a large plastic container, a large bag, plastic bag that contained more marijuana. He took marijuana out of the large bag and put it in a smaller sandwich bag.
“Q. That is what he gave to you?
“A. Yes.
“Q. Did ya’ll have any conversation at that time about purchasing any more marijuana?
“A. Yes.
“Q. Tell the jury about that?
“A. I was — we was having a conversation about purchasing two pounds of marijuana and I told him that I was going to meet my partner and see if we could come up with the money to purchase it with.
“Q. All right. And did he make any other statement to you about furnishing more pounds in the future?
“A. Yes.
“Q. What did he say?
“A. He could furnish me with all the pounds that I can move.
“Q. And you gave all of this information to Officer Smith?
“A. Yes.”

Mr. Michael Cotton also testified extensively on cross-examination, and briefly on direct examination, as to his having been charged in February of 1981 “with theft from a place where you [he] was working,” that by reason thereof he was suspended from his work with the police department, but was afterwards reinstated. He said the case against him for alleged theft “was ultimately no billed by the grand jury of Mobile County.” There was an apparent stipulation that the charge “was no billed in June of 1981.” The witness was intensely and comprehensively cross-examined as to the charge of theft and as to his relation with law enforcement authorities, including representatives of the district attorney’s office, during the time the charge was pending against him, after it was “no billed” by the grand jury, and until the trial of the instant case. Much of the evidence as to this inquiry was repetitious of similar evidence introduced on the hearing of defendant’s motion to suppress evidence “seized in the search of the Defendant’s Mother’s home and van in that there was not a sufficient showing of reliability of” Michael Anthony Cotton as the person whose information furnished chiefly the basis for affidavits by a regular officer of the Mobile Police Department in support of the issuance of two search warrants that were duly executed, one for the home of defendant’s mother and one for the van defendant was operating. The overruling of defendant’s motion to suppress testimony as to what was found in the home of defendant’s mother and in the van driven by defendant constitutes the first issue presented in the brief of counsel for appellant, which we now consider.

Among the cases relied upon by appellant’s attorney in support of his contention that the trial court was in error in denying defendant’s motion to suppress testimony pertaining to the fruits of the search of the residence of defendant’s mother and the van defendant was operating, is the relatively recent case of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The majority and minority opinions therein furnish much food for thought on the subject of whether one’s Fourth Amendment right to security against unreasonable searches and seizures has been violated, but they furnish no support for appellant’s contention. Indeed, the five to four majority opinion, with a sixth Justice concurring in the judgment, is more favorable to appellee than appellant. By the majority opinion, the Supreme Court replaced the “two-pronged test” in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, with a standard less favorable to an accused, which is epitomized in part as follows at 462 U.S. —, 103 S.Ct. 2332, 76 L.Ed.2d 548:

“For all these reasons, we conclude that it is wiser to abandon the ‘two-pronged’ test established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determination. See Jones v. United States, supra [362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ] United States v. Ventresca, supra, [380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)]; Brinegar v. United States, supra [338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ]. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime could be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... con-cludpng]’ that probable cause existed. Jones v. United States, supra, 362 U.S., at 271, 4 L.Ed.2d 697, 80 S.Ct. 725 [736] 78 ALR2d 233. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli."

Even without a relaxation by Illinois v. Gates, of the previously applied rule of exclusion, we are convinced that the trial court was not in error in overruling defendant’s motion to suppress testimony as to what was found in the residence and van when they were searched pursuant to the warrants based in pertinent part on the affidavits of Officer Rassie Smith of the Mobile Police Department. In each of the affidavits, Officer Smith said, “I am presently assigned to the Narcotics Section. On November 2, 1981, I received the following information from a reliable informant who has made two (2) drug buys resulting in two (2) drug sale cases, and although no arrests have been made to this date, the cases will be presented to the next Grand Jury.” In the affidavit for the search of the van, Officer Smith stated:

“Within the past forty-eight (48) hours, the informant observed B/M Cleophus Archie place a large plastic bag of green plant material inside a 1981 Dodge Disco Van with purple and blue colors, bearing AL license tag #RUH-753 which was parked at his residence at 954 Wellington Street.
“This substance was represented by Cleophus Archie to be Marijuana. I know that Marijuana is commonly packaged in this manner and has this appearance. I have frequently come into contact with persons using and handling this drug in my duties as a narcotic officer.”

In the affidavit for the search of the residence is the following:

“The informant stated that within the past forty-eight hours, he was at the residence known to informant as 954 Wellington Street, Mobile, Alabama, the residence of a B/M Cleophus Archie and B/M Johnnie Archie. While at the residence at that time the • informant observed a large amount of green plant material in plastic bags. This substance was represented by Cleophus Archie to be Marijuana. I know that Marijuana is commonly packaged in this manner and has this appearance. I have frequently come into contact with persons using and handling this drug in my duties as a narcotic Officer.”

The gist of the defendant’s contention on the trial and the contention of the brief of attorney for appellant is to the effect that there was some impropriety in the affiant’s reference to the person from whom he had obtained his information as a “reliable informant,” that Michael Cotton was not a reliable informant. Perhaps the affiant should have been more candid in his affidavits and perhaps Michael Cotton would have been the appropriate person to make the affidavit for each of the search warrants, but we do not see that any of such criticism is sufficient to vitiate either of the warrants. Nor are we convinced that appellant has shown that Michael Cotton was an unreliable informant. In cases relied upon by appellant antedating Illinois v. Gates, supra, in which the affidavits based on hearsay have been held insufficient, the persons referred to therein as informers or informants were not reserve police officers, as was Cotton. Whatever blemish there is on Cotton’s reputation by reason of his having been once charged with a crime involving moral turpitude, it is not sufficient to support appellant’s contention that he was unreliable.

The trial court was not in error in overruling defendant’s motion to suppress the testimony as to what was found in the execution of either the warrant to search the residence or the warrant to search the van. Although there is undesirable vagueness at times as to the rightful ownership and possession of the residence and the van, it is clear that defendant lived at the residence and at times operated the van. We agree with some of appellant’s criticism of the language of the affidavits, particularly in its lack of clarity and its tendency to confuse or mislead one into the belief that the informant’s information that he had made two drug buys had been established as true in the mind of the affiant, but each affidavit when considered as a whole shows with reasonable certainty that as of the time of the affidavit no action had been taken to establish the truth of such information. This leads to the conclusion that there was no effort made to mislead or deceive. We do not doubt the existence of an imbroglio, but we cannot place the full responsibility therefor upon any representative of either of the parties or upon the trial court. That it was confusing tends to explain the inability of the jury to arrive at a verdict in one of the three eases consolidated for trial by consent of both parties.

The second issue presented in appellant’s brief is as follows:

“The Trial Court erred in denying the Defendant’s Motion to Determine Conflict in that the representation of Archie and his mother, the owner of the van, placed the attorney in a position where he could not simultaneously champion the interest of the Defendant and those of his mother as forfeiture of the van had been part of the prenegotiations.”

On December 12, 1982, defendant’s attorney in the trial court filed a motion captioned, “MOTION TO DETERMINE CONFLICT” and above the caption of the motion is the legend, “CASE NO. CC82-266 Thru CC82-26.” The motion is as follows:

“Comes now Peter J. Palughi, Attorney for the defense and moves this Honorable Court to determine if a conflict of interest exists between the Defendant and his Attorney in that Defendant’s Attorney represents the Defendant and Defendant’s mother, Mary Archie. The Defendant’s Attorney represents Mary Archie in a case in Equity, wherein the State is attempting to confiscate a van automobile. The van automobile has become a part of the plea bargaining between the State and the Defendant in regard to his four criminal charges. The Defendant’s Attorney has examined and questioned the Defendant and personally does not feel there is a conflict; however, the Defendant should be examined by the Court and the question should be determined by the Court and the Defendant so moves.”

We find no reference in the record proper or in the transcript of the proceedings to any action on the motion just quoted. Whether the motion was ever presented to the trial court, we do not know. The record indicates that it was not filed in open court but was filed with the clerk about a month and a half before the case was called for trial, February 9, 1983. There is no court reporter’s transcript as to any of the proceedings prior to February 9, 1983. Appellee’s counsel responds to appellant’s contention in part by stating:

“At the trial of defendant, defense counsel filed a motion to determine conflict in that the attorney [was] representing the defendant while representing the defendant’s Mother in another action wherein the State was seeking to confiscate the van in which the drugs were found. However, the record does not contain any adverse ruling which can be reviewed by this Court. The State would therefore contend that nothing is presented for review by this Court.”

Appellant’s attorney strongly responds to appellee’s argument as follows:

“Archie's attorney filed a motion with the trial court to determine if he had a conflict of interests in the ease. The trial attorney thus fulfilled the requirements of the American Bar Association Standards for Criminal Justice, Standards Relating to the Defense Function, Section 3.5(a). These instructions were cited with approval by this Honorable Court in Pinkerton v. State, 395 So.2d 1080, at 1090 (Ala.Cr.App.1981). Even though ‘no objection appeared during the trial from any party involved, nor did the trial court pause to inquire as to any possible conflict of interest’ Id. This Honorable Court reversed the Pinkerton case because the defense attorney had formerly represented the informer whose information had led to the arrest of defendant and who testified at trial.
“In the case at bar, the trial court failed to give the defense attorney benefit of its counsel. Trial counsel had no choice but to continue in the matter. As demonstrated earlier, defense counsel violated Canons 5 and 9 of the Code of Professional Responsibility of the Alabama State Bar. (Appellant’s Brief, pgs. 18, 19). Due to this conflict of interest, the Defendant was denied his 6th Amendment right to effective assistance of counsel.”

We are unable to reconcile the statement in the second paragraph of the two-paragraph portion of defendant’s brief, that “Defense counsel violated canons 5 and 9 of the Code of Professional Responsibility of the Alabama State Bar,” with the statement in the first paragraph that he “fulfilled the requirements of the American Bar Association Standards for Criminal Justice.” We are inclined to the view that probably there was no genuine conflict of interest and that the defendant and defendant’s mother so importuned the attorney to represent them both that the motion was never presented to the trial court for a ruling thereon. The transcript shows that defendant’s mother testified voluntarily on call of the defendant and testified forthrightly and profusely in his behalf, but her testimony was confined almost exclusively to the issue presented in the ease for possession of a controlled substance, the case in which the jury was unable to reach a verdict and which was eventually nol-prossed. The case of Pinkerton v. State, supra, in which defendant’s attorney also represented the “informer” as to the criminal transaction, is inapposite. Zuck v. Alabama, 588 F.2d 436 (5 Cir.1979), in which defendant’s attorney represented the prosecuting attorney in Zuck in an unrelated case, and Castillo v. Estelle, 504 F.2d 1243 (5 Cir.1974), in which defendant’s attorney was simultaneously representing the victim of the crime charged against defendant in an unrelated civil matter, are also inappo-site. We mention only the only cases relied upon by appellant. However conflicting the interests of the two may have been as to the condemnation proceeding against the motorized van or' even as to the case for possession of a prohibited substance, there apparently, at least, was no conflict of interest whatever between them as to either of the two cases for the sale of marijuana, and appellant’s contention that he was represented on the trial by counsel who simultaneously represented one with an interest adverse to appellant is not well taken.

Appellant’s third contention for a reversal is thus stated in his brief:

“The Trial Court erred in allowing the State of Alabama to present the evidence of marijuana seized from the person of the Defendant at his arrest and seized from the van that he was driving when he was arrested in that it was evidence of a separate and distinct criminal act from those at bar, and was not relevant to any issue before the court and was extremely prejudicial.”

The transcript of the proceedings relied upon by appellant in his argument as to his third contention is cited in appellant’s brief as “(R-31, 45, 49, 54) ... (R. 33, 45, 48, 50).” All of the cited pages of the transcript dealt with a hearing out of the presence of the jury on defendant’s motion to suppress. There was some evidence presented to the jury on the trial of the case as to marijuana found on the person of defendant and in the van at the time of his arrest, largely during the direct examination of the defendant, but there was no contention made during that time that such evidence was inadmissible. No ruling on the point was invoked by defendant, and no error prejudicial to defendant was committed.

In appellant’s brief, his final contention for a reversal is as follows:

“The Trial Court erred in not allowing the Defendant to argue that the State had offered to recommend that the Defendant be given concurrent sentences with the one he was serving in Florida in exchange for forfeiture of his mother’s van, in that it was relevant to an issue in the trial and was not otherwise incompetent evidence.”

In appellee’s brief, its response is partly, “In concluding the State must note that it can find no indication in the record in this case that the trial court limited the defendant’s closing argument.” In appellant’s reply brief, he makes it clear that his final contention is directed at the opening statement of counsel for defendant, prior to the presentation of any evidence, and quotes therefrom as follows:

“MR. PALUGHI: We expect the evidence to show that this man’s family, his mother, which he drives from time to time, owned and had in her name a van that was worth approximately $15,000 and that the State after hearing the testimony of Michael Cotton led the conviscation [which we construe as “confiscation”] or has the action in law and equity to take that van.
“MR. COPELAND: Now, if the Court please, I hate to interrupt him but he knows that we filed those motions any time that there is a dope deal in a van. I thought Your Honor has instructed him on that. I don’t think it’s relevant and I object to it.
“MR. PALUGHI: But only ... in this case it would not. In this case we have a person who’s very interested in pleasing the District Attorney’s Office.
“THE COURT: Well, we are not going to get into all that, Mr. Palughi. That’s a separate matter. That doesn’t have any bearing on this lawsuit. Go ahead. “MR. PALUGHI: Well I want a chance to be heard on that and put it in the record, Judge.
“THE COURT: You can put it in the record right now. Your objection is overruled and your exception is noted. Go ahead.”

It is to be observed from the quoted portion of the transcript that defendant’s attorney was aiming his grievance chiefly in the direction of the witness Michael Cotton, the alleged purchaser from defendant of the marijuana in each case, and to the statements of the trial court in response to the statement of defendant’s counsel to the effect that Mr. Cotton was “very interested in pleasing the District Attorney’s Office,” as shown by Mr. Cotton’s activity in the proceeding for the condemnation of the motorized van. We agree with the trial court that such was “a separate matter” and that defendant’s counsel should not have been allowed to show, or comment upon the matter, in his opening statement to the jury.

The transcript of the proceedings discloses that the action of the trial court complained of by appellant transpired during the opening statement to the jury by counsel for defendant promptly after the jury had been selected and just before the hearing, out of the presence of the jury, of defendant’s motion to suppress evidence as to what was found in the search of the residence of defendant and his mother and the search of the motorized van. Even though three certainly, and possibly four, criminal cases against this appellant were consolidated for trial by consent of the parties, whatever action there was as to the condemnation of the van was omitted from the consolidation. Perhaps a mistake was made by the parties in agreeing to the consolidation of the two cases for the separate sales of marijuana with any other case against the defendant, but the consolidation furnished no basis for evidence that was incompetent, irrelevant and immaterial to any of the cases consolidated for trial. It was within the province and duty of the court to so regulate the trial thereof as to circumscribe, within the bounds of reasonableness, statements and arguments of counsel, as well as the evidence, so as to prevent an unnecessary consumption of time and a resulting hindrance, rather than assistance, to the administration of justice. As stated in Powell v. Powell, 285 Ala. 230, 234, 231 So.2d 103, 106 (1970), in an opinion by Justice Harwood:

“... The undue and unnecessary consumption of time in the trial of causes, and the avoidance of multiplied and irrelevant issues is committed in the first instance to the wise discretion of the trial judge [followed by citations of jury and nonjury trials of criminal, civil and equity cases].”

The trial court was not in error in its ruling that is made a basis for appellant's fourth and final contention for a reversal.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . Spelled "Cotton” throughout the transcript and elsewhere in this opinion.

      . That four cases against defendant-appellant were consolidated for trial is indicated also in other parts of the record before us, but what happened to the fourth case is not clearly shown.