author: TYSON, Judge.

text:
    George DANIEL v. STATE of Alabama.
    4 Div. 987.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied May 18, 1982.

      Larry W. Roney, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Appellant was convicted under § 13A-5-31(a)(5) Code of Alabama 1975, for the murder of a police officer because of some official act or performance by such officer: to-wit, effecting the lawful arrest of the appellant. After a separate hearing on aggravating and mitigating circumstances, the jury returned a verdict fixing appellant’s punishment at death. Subsequently, the trial court weighed the aggravating and mitigating circumstances pursuant to § 13A-5-33 Code of Alabama 1975, and sentenced appellant to death. The court issued both written and oral findings of fact from the trial and sentence hearing which enumerated the aggravating circumstances the court found sufficient to support the sentence of death. This appeal followed.

Eddie Upshaw, a resident of Hurtsboro, Alabama, testified he went to police headquarters on January 27, 1981, to obtain help in removing a man from the B. Lindsay residence. Upshaw then returned to the Lindsay home where several people had gathered. He observed the victim, Officer George L. Claypool, bring the appellant from around the back of the house to the police vehicle. The two men were talking, and then suddenly they were on the ground.

L.A. Davis testified he observed Officer Claypool and man tussling in the ditch in front of Willie B. Lindsay’s home on January 27, 1981. He heard a gun shoot three or four times, and then saw the unidentified man run around the corner.

Mary Wesley Jenkins stated she was staying at the Lindsay residence on January 27,1981, because her home had burned. She saw the appellant that day at approximately 4:00 p.m. Later that evening, appellant came to the Lindsay home. He entered the house and Ms. Jenkins begged him to leave. Mr. Lindsay left at that point to obtain help. When Officer Claypool arrived, he called the appellant, and the appellant accompanied him to his vehicle. She saw the two men begin to fight, and they fell into a ditch out of her sight. She then heard five gunshots fired. Officer Claypool then got up, and she heard him pleading, “Somebody please help me.” Ms. Jenkins testified that appellant was the only one in the area with the victim at the time the shots were fired.

Willie B. Lindsay recalled that on January 27, 1981, he returned home and was told by his lady friend that there was a man in the back yard. He went to the door and the man, appellant, told him he wanted a place to stay. Mr. Lindsay told appellant he could not stay at his home. He went back inside, and when he checked later and saw the appellant was still there, he went to a neighbor’s home to call the police. When he returned he saw the policeman trying to get appellant into the automobile. Appellant refused, and the victim hit him on the leg. The appellant grabbed the officer and they fell into a ditch. At that point, Mr. Lindsay went to call for more help. He heard five shots, then looked out of a neighbor’s window and saw appellant running with a gun down by his side.

Vincent Alexander stated that Mr. Lindsay came to his residence on the night of January 27, 1981, to call the police. The police arrived at the same time, and Alexander saw Officer Claypool attempt to get appellant to enter the vehicle. The two men fought, and Alexander saw appellant take Officer Claypool’s gun and fire four or five shots as Claypool lay on the ground. Appellant then started up the street and the witness ran into his house.

Marshall Dent, a resident of the neighborhood where the crime occurred, testified that appellant came into his home on the night Officer Claypool was murdered and asked to stay there. He told appellant he could not stay and he made him leave. Mr. Dent thought appellant left, so he left to go to the scene of the murder. When he returned his wife told him she heard a noise. Mr. Dent opened the door and saw appellant going into his kitchen. He then went and got the police who came and took him away.

Mayor Don Williams, Councilman B.W. Vann, Jr., Police Chief Pate and Police Dispatcher Mary Lamb all testified Officer Claypool was on duty as a policeman for the town of Hurtsboro the night he was killed.

Officer Tom Woodward of the Bussell County Sheriff’s Department stated he arrested appellant at the Dent residence on January 27, 1981, with the assistance of Deputies George Smith and Willie Ross.

Jack Kennedy, of the State Game and Fish Commission, testified he found the pistol, later identified as Officer Claypool’s, under the back porch of the Dent house on January 27, 1981.

Officer Herbert Parker of the Russell County Police Department stated he personally opened the police vehicle door and informed appellant he was a murder suspect and read his Miranda rights before appellant was taken from the area of the crime. He was also present an hour later - at the Russell County Jail where appellant took part in a lineup conducted by Officers Newell, Payne, Boswell, and Battle. Appellant did not have an attorney present at that time, nor was he readvised of his rights in Officer Parker’s presence.

Officer Tommy Boswell was present at the lineup in which appellant participated. He testified that Mr. Lindsay identified appellant as the man he had seen in his house earlier that night. Officer Boswell also testified that he searched for a prior criminal record for appellant and could find none.

Sergeant Harold Newell of the Alabama Bureau of Investigation testified he took a statement from appellant at the Russell County Jail on January 27, 1981, after reading him his rights. No threat, promise, or hope of reward was made to appellant in order to obtain his statement. Appellant’s statement, elicited on cross-examination by defense counsel, appears in the record as follows:

“I left Houston, Texas on Sunday, January 25, 1981 by bus and went to Montgomery, Ala. I asked the bus driver how much further could I go. The bus driver took me to the Police Station in Union Springs on Sunday, night time. I had been laid off from my job at Pier I Imports in Houston, Texas, where I was a fork lift driver. I came to Alabama to look for some of my folks that live in Montgomery, Ala. My mother’s name is Lillie Daniel. The Police in Union Springs let me spend the night there. I left the Union Springs Police Dept., Monday morning or Tuesday morning. I went to a cafe up the street and got some breakfast. I left there and walked up the street where I knocked on a window at a place of business and was looking at a woman. I must have knocked too hard on the window because it broke. Someone must have called the police, they came and picked me up and took me to jail. They let me out sometime after dinner. One of the Police Officer’s took me somewhere to look for a job. I don’t know where he let me out. I remember sitting on the railroad tracks throwing rocks and some white dude asked me what I was doing. It was getting close to dark and he told me I couldn’t hand (sic) around there. I started asking some people at a house about a place to stay. I remember talking to a man and woman there, they told me there was a Hotel down the road. I walked down the road but couldn’t find the Hotel. I went back to the house and asked them again if they knew a place where I could stay. I don’t remember any police officer trying to put me in the police car. I remember going under a house and then I was standing in the kitchen of the house. I don’t remember how I got there. I don’t remember a gun shooting. I blacked out, like lights blinking. I have never blacked out before. I remember alot of Police coming in the house to get me. I don’t remember fighting with a Police Officer.” (R. 529)

Carol Curlee of the Latent Print Unit of the Alabama Bureau of Investigation testified that appellant’s left thumb print matched a latent fingerprint lifted from the cylinder of Officer Claypool’s pistol.

Both Leslie Vance, the Russell County Coroner, and Dr. Thomas Gilchrist, a forensic pathology physician for the State, testified Officer Claypool died as a result of the gunshot wound he received. Dr. Gilchrist testified the bullet entered the left hip and traveled to the victim’s abdomen.

Lonnie Harden, a firearms coordinator for the State, testified the bullet which was identified as the one taken from Officer Claypool’s body was fired by the pistol identified as belonging to Officer Claypool.

William Landrum, a forensic serologist with the state, testified his examination of a brown coat belonging to appellant revealed the presence of Group A human blood, which was the blood type of Officer Claypool.

The state rested at the close of Coroner Vance’s testimony. Appellant’s motion to exclude based upon the insufficiency of the evidence and the inadequacy of the Miranda warnings and waiver, before the lineup, was denied. The defense rested without presenting any evidence.

Appellant’s sole contention on appeal is that the conduct of the appellant’s court appointed counsel reduced appellant’s trial to a farce, sham or mockery of justice and thereby denied appellant of effective representation by counsel. The problem of inadequate legal representation was compounded by the appellant or his family repeatedly retaining and then dismissing counsel on their own part. The trial judge did everything in his power to insure that appellant was represented by competent counsel at all times, even refusing to allow retained counsel who had been dismissed by appellant’s family at a late date, to withdraw from representing appellant at trial. Thus, at trial, appellant was provided with two attorneys; one, the original counsel appointed by the trial court, and two, the retained counsel who sought to withdraw, but who was himself then appointed by the court to represent appellant in conjunction with the first appointed counsel.

Appellant’s counsel, while not affirmatively presenting evidence at trial, acted with diligence and propriety at all phases of the trial process. Both appointed counsel were notified by the trial court of its intent for them to represent appellant no later than October 22, 1981. The originally appointed counsel became involved in the case at appellant’s arraignment on February 12, 1981. The secondary counsel became involved on April 29, 1981. Trial was held on November 2, 1981. The record clearly indicates that appellant was not prejudiced by the possibility of his counsel having inadequate time to prepare his defense. Allen v. State, 380 So.2d 313 (Ala. Cr.App.1979), cert. denied, 380 So.2d 341 (Ala.1980), cert. denied, 449 U.S. 842, 101 S.Ct. 121, 66 L.Ed.2d 49 (1981). Further, the record does not show that appellant’s counsel was so inept, ineffective, or negligent so as to shock the conscience of the court and render the proceedings at trial a farce, sham, or mockery of justice. Allen, supra; White v. State, 403 So.2d 287 (Ala. Cr.App.), cert. denied, 403 So.2d 292 (Ala. 1981); Robinson v. State, 361 So.2d 1172 (Ala.Cr.App.1978). The fact that appellant was convicted does not prove a lack of skill or dedication on the part of appellant’s trial counsel. Robinson, supra. The record indicates that appellant’s counsel filed numerous pretrial motions, vigorously cross-examined the state witnesses, raised and argued appropriate motions and objections introduced evidence, requested the affirmative charge, filed a motion to exclude .the state’s evidence, and called witnesses in the appellant’s favor at the sentencing hearing, as well as presenting evidence of mitigating circumstances. Whether to advise the appellant to take the stand and subject himself to cross-examination by the state is a decision for the trial counsel. Matters of trial strategy are left to the judgment of trial counsel, and absent a clear showing of inadequate representation, such decisions are not grounds for reversal. Robinson, supra.

The “mockery of justice” rule cited supra, has been described as a minimum standard of competence and efficacy. Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973), cert. denied, 416 U.S. 945, 94 S.Ct. 1955, 40 L.Ed.2d 298 (1974). Other relevant inquiries include the fairness of the trial as a whole, the reasonableness of counsel’s assistance, counsel’s loyalty and good faith, and the nature and extent of pretrial preparation and opportunity for conference. Taylor, supra. The standard adopted by the former United States Court of Appeals for the Fifth Circuit requires counsel “reasonably likely to render and rendering reasonably effective assistance.” MacKenna v. Ellis, 280 F.2d 592, 5th Cir.; See Annot., 26 A.L.R.Fed. 218, 229 (1976). The record indicates that the appellant’s representation was not deficient under any of the above formulations or inquiries. McKinnis v. State, 392 So.2d 1266 (Ala.Cr. App.1980), cert. denied, 392 So.2d 1270 (Ala. 1981).

“[T]he inadequacy of counsel is not established by his failure to claim every possible legal advantage for his client. While counsel is expected to contest every step of the case, he may make concessions warranted by the facts. Counsel is not obligated to advance points or arguments that are specious or frivolous, or to submit evidence which he believes is inadmissible or immaterial; nor is he called on.to manufacture evidence.”
23 C.J.S. Criminal Law, § 982(8) (1961). McKinnis v. State, supra at 1269.

The Supreme Court of Alabama in Beck v. State, 396 So.2d 645 (Ala.1981) has indicated standards and procedures to be followed by this court in reviewing capital murder cases governed by the Beck decision. We have reviewed this case in light of those standards, and find that the crime was properly punishable by death and that the sentence was appropriate in both its relation to the crime and to the appellant. There were no accomplices with which to compare appellant’s sentence. We have also searched the record for any other error and have found none. This case is therefore, affirmed,

AFFIRMED.

All the Judges concur.

APPENDIX A

) IN THE CIRCUIT COURT OF ) RUSSELL COUNTY, ALABAMA ) CASE NO. CC 81-53 ) STATE OF ALABAMA VS. GEORGE DANIEL, Defendant.

DETERMINATION OF SENTENCE BY COURT

The defendant herein, with assistance of counsel at all proceedings from arraignment through a trial by jury, was found guilty as charged in the indictment. Thereupon, the trial jury, in a separate proceeding, received evidence related to mitigating and aggravating circumstances, together with oral argument by the State and defense counsel, and after a deliberation in which they weighed the aggravating and mitigating circumstances, the jury returned with a verdict fixing the defendant’s punishment at death.

Subsequently, the Court held a hearing to determine whether or not the Court would sentence the defendant to death or to life imprisonment without parole, and at such hearing, the State offered no further evidence other than that produced during both trials by jury. The defendant offered no further evidence to the Court other than that presented during both trials by jury except to make a statement to the Court himself and by counsel.

The Court finds from all the evidence presented to the jury in the trial of the guilt phase of this case, at the sentence phase of this case, and at the separate hearing conducted by the Court that the defendant was guilty and is guilty of the murder of a police officer while such officer was on duty and engaged in a job related act at the time of the murder.

The Court finds that the mitigating circumstances were not sufficient to outweigh the aggravating circumstances, as shown by the trials before the jury and the hearing before the Court.

The Court is of the opinion that the jury verdict fixing punishment at death should be accepted by the Court and such entry of judgment was so entered by the Court.

A summary of the evidence and findings of fact are hereinafter set forth.

FINDINGS OF FACT FROM THE GUILT PHASE, SENTENCE PHASE AND HEARING BY THE COURT.

The defendant, George Daniel, left his home in Texas to go to Montgomery, Alabama traveling by bus. He went to sleep on the bus and woke up after passing through Montgomery, Alabama. After spending the night in Union Springs, Alabama, apparently voluntarily in the jail, a police vehicle took him to the outskirts of Hurtsboro, Alabama on January 27, 1981.

The defendant was seen at approximately 4:00 o’clock P.M. on January 27, 1981 on Railroad Street in Hurtsboro, Alabama and was observed by several witnesses in the neighborhood where the crime was committed during the hours prior to the crime.

The defendant, at a short time prior to the murder, went into the home of Willie B. Lindsay and said he was looking for a place to stay. Lindsay attempted to get the defendant to leave and Mary Jenkins, a resident in the Lindsay home, begged the defendant to leave. Lindsay went to the house of Vincent Alexander, where a phone was located, to call the police for assist-anee. Eddie Upshaw, in the same time frame, went to the Hurtsboro Police Department where assistance was requested of Mary Lamb who was the radio dispatcher on duty from 4:00 o’clock P.M. to midnight.

Ms. Lamb placed a call to Officer Clay-pool who was then on duty to meet a complainant at the home of Willie B. Lindsay.

Officer George L. Claypool drove his police car to the scene of the Lindsay home on Sussex Street; left the lights on in his vehicle, and went to the Lindsay home where he found the defendant, George Daniel, who then left with the officer toward the police car.

Officer Claypool and the defendant were alone near the police car when a struggle between them ensued causing them to go into a ditch. The officer’s .357 magnum pistol was taken by force from its holster and several shots were then fired after which the defendant fled the scene. He was observed with a pistol in his hand. The defendant entered the home of Marshall Dent where he was told to leave. Dent thought the defendant had gone so he left his home to go to where he had heard some shooting. When he returned to his home, he saw the defendant going into the kitchen and he left to get the police.

The defendant was arrested in the Dent home by Lt. Tom Woodard, Russell County Sheriff’s Office.

The deceased died as a result of bullet wounds received in his abdomen. A bullet removed from the victim was a .357 magnum, the same as the type bullet fired from Officer Claypool’s pistol. A fingerprint on this pistol was identified as being the fingerprint of the defendant. At the time of his death, Officer Claypool was a police on official duty with the City of Hurtsboro, Alabama attempting to make a lawful arrest.

The Court further finds that the defendant, George Daniel, murdered Officer Clay-pool who was on duty and engaged in a job related act.

The following aggravating circumstances ' are found by the Court to support the imposition of the death sentence:

1. That the murder of Officer Claypool was committed at a time when he was a police officer for the City of Hurtsboro on duty and engaged in a job related act.

2. That the capital felony was committed for the purpose of avoiding or preventing a lawful arrest.

The following mitigating circumstances were considered by the Court:

1. The defendant has no significant history of prior criminal activity.

2. That capital felony was committed while the defendant was alleged to be under some mental or emotional disturbance.

The Court did not find that the victim was a participant in the defendant’s conduct or consented to it. The defendant was the sole participant and his participation was not minor. The Court found no indication that the defendant acted under extreme duress or under the domination of any person.

The Court further had the opportunity to observe this defendant on several occasions prior to, during, and after the trial, and was familiar with the defendant’s plea of insanity which was not made an issue at the trial. The Court upon request of counsel had in fact had the defendant examined at Bryce Institute, and upon consideration of these matters, the Court is of the opinion that the defendant had the capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of law and that this capacity was not impaired.

The age of the defendant was not a mitigating circumstance.

Upon considering and weighing the aggravating circumstances with the mitigating circumstances, the Court is of the opinion that the aggravating circumstances outweigh the mitigating circumstances.

It is, therefore,

Ordered and adjudged by the Court that no reason can be found to refuse to accept the death penalty and that such death penalty shall, therefore, be imposed upon the jury verdicts rendered.

DONE this the 4th day of December, 1981.

/s/ Paul J. Miller, Jr. Judge, 26th Judicial Circuit

STATE OF ALABAMA VS. GEORGE DANIEL 5 IN THE CIRCUIT COURT OF jj RUSSELL COUNTY, ALABAMA 5 CASE NO. CC-81-53

JUDGMENT

This cause coming on to be heard, on this the 2nd day of November, 1981, comes the State by its District Attorney and comes also the defendant in his own proper person and attended by his counsel, Honorable J. Curtiss Bernard and Honorable Ruben K. King, and the defendant having been duly arraigned upon the indictment in this cause, and having entered his plea of not guilty, there came a jury of twelve good and lawful persons, to-wit: Thomas E. Phillips and eleven others, who having been first duly sworn and empaneled according to law, before whom the trial of this case was entered upon and continued from day to day and time to time, said defendant being in open Court at each and every stage and during all the proceedings in this cause. This the 3rd day of November, 1981, said jurors upon their oath do say, “We, the jury, find the defendant guilty as charged in the indictment. Dated November 3, 1981. Thomas E. Phillips, Foreman.” Thereupon the issue was then represented to the trial jury for a sentence hearing at which time the jury was to consider and weigh the aggravating and mitigating circumstances. Now comes the jury with its verdict as follows: “We, the jury, after weighing the aggravating and mitigating circumstances in this case, fix the punishment of the defendant at death. Dated November 4, 1981. Thomas E. Phillips, Foreman.” It is therefore considered by the Court, and it is the judgment of the Court that said defendant is guilty of Capital Murder of Law Enforcement Officer on Duty as charged in the indictment, in accordance with the verdict of the jury in this cause, and the sentencing is hereby continued to December 4, 1981 at 2:00 P.M., at which time, the Court will conduct a hearing to weigh the aggravating and mitigating circumstances prior to such sentencing.

/s/ Paul J. Miller, Jr. Circuit Judge

STATE OF ALABAMA VS. GEORGE DANIEL $ IN THE CIRCUIT COURT OF 5 RUSSELL COUNTY, ALABAMA } CASE NO. CC-81-53

SENTENCING

December 4, 1981. This cause coming on to be heard, comes the State by its District Attorney and comes also the defendant in his own proper person and attended by his counsel, Honorable J. Curtiss Bernard and Honorable Ruben K. King, for the purpose of offering evidence to the Court on the issues of aggravation and mitigation. Thereupon the District Attorney offering State’s evidence and the defendant, George Daniel, being asked by the Court if he had anything to say why the sentence of the Court should not be pronounced upon him, says nothing in bar or preclusion thereof. Upon consideration of the aggravating and mitigating circumstances offered and the totality of the evidence, it is therefore, ordered by the Court that the defendant, George Daniel, suffer death by electrocution on the 3rd day of February, 1982, and the Sheriff of Russell County, Alabama, is directed to deliver the said George Daniel to the custody of the Director of the Department of Corrections and Institutions at Montgomery, Alabama, and the designated executioner shall, at the proper place for the execution of one sentenced to suffer death by electrocution, cause a current of electricity of sufficient intensity to cause death and the application and continuance of such current to pass through the body of said George Daniel, until said George Daniel is dead.

It is further ordered by the Court that the Clerk of this Court shall issue a warrant under the seal of the Court for the execution of the sentence of death, which warrant shall recite' the fact of conviction, setting forth specifically the offense, the judgment of the Court and the time fixed for his execution and which shall be directed to the Director of the Department of Corrections at Montgomery, Alabama, commanding him to proceed, at the time and place names in the sentence, to carry George Daniel into execution. The Clerk of the Court shall deliver said warrant to the Sheriff of Russell County to be by him delivered to the said Director, together with the defendant, George Daniel.

Thereupon in open Court on this day, Notice of Appeal is entered and suspension of said sentence is ordered by the Court pending appeal.

It is further ordered by the Court that the defendant, George Daniel, be transported to the custody of the Director of the Department of Corrections at Montgomery, pending said appeal.

/s/ Paul J. Miller, Jr. Circuit Judge

APPENDIX B

STATE OP ALABAMA DEPARTMENT OF MENTAL HEALTH BRYCE HOSPITAL TUSCALOOSA, ALABAMA 35403 PHONE (205) 752-7411

JAIME E. CONDOM, M.D. ASSOCIATE COMMISSIONER AND SUPERINTENDENT FOBJAMES GOVERNOR

CHARLES A. FETNER DIRECTOR GLENN IRELAND, II COMMISSIONER OF MENTAL HEALTH

September 8,1981

The Honorable Paul J. Miller, Jr. Circuit Court Judge Russell County Courthouse Phenix City, Alabama 36867

Re: Daniel, George

Bryce File: 04 03 77

Your File: CC-81-53

Dear Judge Miller:

George Daniel was admitted to Bryce State Hospital’s Forensic Unit on August 7,1981, under your commitment order with information that Mr. Daniel is currently charged in the Circuit Court of Russell County, Alabama with Murder. The purpose of the commitment was for psychiatric examination regarding Mr. Daniel’s present competence to stand trial and his criminal responsibility at the time of the offense charged and Mr. Daniel was to remain at Bryce State Hospital until said examination was completed and a report made to your court. The post-admission examination, including mental status examination, psychological assessment, social history study, physical examination, and psychiatric evaluation is completed and we are submitting the following report of our findings.

The mental status examinations revealed diagnoses of Axis I, Malingering, V65.20; Axis II, No Diagnosis, V71.09; and Axis III, None.

The psychological assessment revealed that George Daniel made no real effort toward completing any of the psychological testing instruments. Mr. Daniel attempted to mislead the examiner on IQ measures and on Sentence Completions. In the examiner’s opinion, Mr. Daniel was malingering at the time of the psychological testing.

Since Mr. Daniel’s admission to Bryce State Hospital, he has been under the close observation, evaluation and review of qualified medical, psychiatric, psychological, and other evaluation and treatment staff. The most recent review was on Tuesday, September 1,1981, and at that time, the Forensic Evaluation and Treatment Board was of the following opinions:

(1) George Daniel is presently competent to stand trial and to assist his attorney in preparing his defense. Mr. Daniel does understand the nature of the charge against him.

(2) George Daniel’s alleged criminal conduct is not viewed as the product of mental illness. Therefore, George Daniel was not suffering from such a mental disease, defect, or derangement at the time of the particular act charged which prevented him from possessing the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

(3) George Daniel was not suffering from a mental illness at the time of the particular act charged which prevented him from distinguishing right from wrong or prevented him from adhering to the right.

Our evaluation being completed, we are requesting that the appropriate order be issued remanding George Daniel to the custody of the Russell County Circuit Court for court proceedings to be resumed. Details of Mr. Daniel’s evaluation are filed in his medical record and will be furnished to the court upon a receipt of an appropriate court order by the custodian of medical records at Bryce State Hospital.

Sincerely,

/s/Larry L. Ingram Larry L. Ingram Unit Coordinator Forensic Program

/s/C. Duane Burgess, M.D. Clinical Director for Thomas L. Smith, Jr., M.D. Psychiatrist

LLI/TLM/mrb

cc: Clerk of Circuit Court

Russell County Courthouse Phenix City, Alabama 36867

Mr. William J. Benton District Attorney Russell County Courthouse Phenix City, Alabama 36867

Mr. Ruben King Defense Attorney 459 South McDonough Street Montgomery, Alabama 36104

4/1-2 8110

      . The trial court’s determination of sentence, dated December 4, 1981, is hereto attached as Appendix A. (Volume 3, R. 493-500)

      . At the sentencing hearing, before the jury, appellant’s mother, brother, sister and two psychiatrists testified. The report from Bryce Hospital, Alabama Department of Mental Health, dated September 9, 1981 is hereto attached as Appendix B. (Vol. Ill, R. 480-481 was also introduced.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte George DANIEL. (In re George Daniel v. State of Alabama).
    81-732.
    Supreme Court of Alabama.
    Nov. 5, 1982.

      Larry W. Roney, Phenix City, for petitioner.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
    Vanetta Penn Durant, amicus curiae for Lillie Daniel.
   PER CURIAM.

This is a death penalty case. We granted certiorari as a matter of right to review the Court of Criminal Appeals’ affirmance of the Defendant’s conviction and sentence. On appeal, appointed counsel and amicus curiae, appearing by leave of court, argue but a simple issue: whether the Court of Criminal Appeals, 459 So.2d 933, erred in not granting the Defendant a new trial on the ground of incompetency of trial counsel, or, in the alternative, an evidentiary hearing for findings of fact as to the competency vel non determination.

Because of the seriousness of the Defendant’s allegations challenging trial counsel’s competency, along with a statement of record by one of Defendant’s appointed co-trial counsel to the effect that a conflict between co-counsel had worked to the prejudice of the Defendant in the defense of his case, we remand this cause to the Court of Criminal Appeals with the following instructions:

1) To remand this cause to the trial court for an evidentiary hearing on the single issue of the Defendant’s challenge to the competency of his appointed trial counsel;

2) To direct the trial court to make findings of fact relating to such issue; and

3) Upon receipt of the trial court’s findings of fact, to conduct an independent review thereof and make a final determination of the competency of counsel vel non issue.

REMANDED WITH INSTRUCTIONS.

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

MADDOX and EMBRY, JJ., not sitting.

On remand, Ala.Cr.App., 459 So.2d 943, appeal after remand, Ala.Cr.App., 459 So.2d 944, judgment affirmed, Ala., 459 So.2d 948.


text:
    George DANIEL v. STATE.
    4 Div. 987.
    Alabama Court of Criminal Appeals.
    Nov. 23, 1982.
   PER CURIAM.

Remanded with directions to Circuit Court to conduct hearing in accordance with Ex parte Daniel, (Ala.1982), 459 So.2d 942.

All the Judges concur.

Appeal after remand, Ala.Cr.App., 459 So.2d 944, judgment affirmed, Ala., 459 So.2d 948.


text:
    George DANIEL v. STATE of Alabama.
    4 Div. 987.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
   On Return, to Remand

TYSON, Judge.

This cause was remanded to the Circuit Court of Russell County, Alabama, pursuant to the opinion of the Supreme Court of Alabama in Daniel v. State, 459 So.2d 942 directing that a hearing be held in the Circuit Court on the ground of incompetency of trial counsel or in the alternative, that an evidentiary hearing be held, with findings of fact to be made as to the competency vel non of counsel.

The Circuit Court of Russell County has filed a return in this court after a full hearing on the merits of the appellant’s contentions.

At the hearing, competent counsel was appointed to represent the appellant and testimony taken from both of the attorneys who had been at first retained, and then subsequently appointed by the Circuit Court to represent the appellant at his trial, the Honorable Ruben King and the Honorable James Curtis Bernard, as well as the mother and sister of the appellant. The trial court then entered its order making specific findings of fact and conclusions of law as directed by the orders of the Alabama Appellate Courts as aforesaid.

I

The order and judgment of the Circuit Court is found in the remand and sets forth the following findings: (R. 83-86).

“The defendant was originally represented by Hon. Marcel E. Carroll, Attorney at Law, Montgomery, Alabama, and a preliminary hearing scheduled in the District Court of Russell County, Alabama on February 12, 1981. Since an indictment had been returned against the defendant prior to that date, the defendant was arraigned in the Circuit Court of Russell County, Alabama on the same date, February 12, 1981. Since Mr. Carroll was not present either in the District Court or Circuit Court, the Hon. J. Curtis Bernard was appointed by the Court at that time to assist hired counsel, Marcel E. Carroll.
“On February 12, 1981 Hon. Marcel E. Carroll mailed to this Court a notice of representation which limited his representation of the defendant after the arraignment phase of the case. This notice was received by the Court February 13, 1981 at 11:19 A.M.
“Subsequently the Hon. Ruben E. King, Attorney at Law, Montgomery, Alabama gave formal notice to the Court that he was retained as counsel and became attorney of record for the defendant.
“Subsequently, with the consent of retained counsel, Ruben E. King, Mr. Bernard remained .as appointed counsel to assist in preparing the case for trial on a local level.
“On or about October 19, 1981, after the defendant hád been examined locally by Dr. Robert A. Rose, Licensed Psychologist, and by Bryce Hospital, and returned, the Court was advised that Mr. King would be withdrawing from the case and that the family of defendant had contacted another attorney in Montgomery, Alabama. At that time, Mr. King was also appointed to represent defendant in addition to J. Curtis Bernard. Subsequently, Hon. Ruben King advised the Court that his services were terminated by the defendant’s mother, Lillie Daniel, and that Hon. Charles Price, Montgomery, Alabama had been retained. Mr. Price was never in contact with the Court, nor retained to the knowledge of this Court.
“Trial was held subsequently and upon a review of the original record and the subsequent hearing on the competency of counsel, the Court finds as follows:
“1. That both attorneys had the opportunity and availed themselves of this, to review the entire file of the District Attorney of Russell County regarding the evidence available to the State whether culpatory or exculpatory.
“2. That the attorneys visited the scene of the crime making inquiries and interviews seeking other possible witnesses who might be of assistance to them. Mr. Bernard made several trips to Hurtsboro and the vicinity of the crime scene to determine whether any evidence was available in the defense of this cause.
“3. That counsel for the defendant, iii preparation for the possible defense of insanity, petitioned the Court for examinations of the defendant by both the East Alabama Mental Health Clinic and Bryce Hospital. The findings of both facilities were reviewed by counsel, and after such review, determined that they could not prevail with such defense. Further, the Court finds that defense counsel contacted members of the defendant’s family regarding their appearance for trial to give testimony as to the mental condition of the defendant but that the family members did not respond.
“4. That both counsel, at one time or another, during the pendency of this case were employed by the defendant or his family, and were also appointed at some juncture of the trial in order that this case could proceed in an orderly process, the appointment of Mr. King occurring only when it was brought to the attention of the Court that the family of the defendant was attempting to employ a third and different Montgomery attorney who would seek still another continuance.
“5. That during the course of the original trial, which was presided over by the undersigned Judge, only one overt event occurred that indicated any dissension between counsel as to the course of the trial. This occurred in the testimony of the witness, Ed Segar, P.H.D. (P 374 transcript) when Mr. Bernard wished to stipulate to the qualifications of the witness and Mr. King did not Wish to do so. The Court was of the opinion then, and so finds now, that this occurred simply because it had not been discussed by counsel earlier, and the stipulation, whether made or not, was not material and had no bearing on the outcome of the case.
“During the sentence phase of the trial Mr. Bernard stated (R-426) that there was a conflict in the desired methods to be used in the defense of the accused and he felt this worked to the defendant’s detriment. The Court knew then and so finds now that Mr. King was the lead counsel in this case and that there was no apparent conflict reflected to the Court in any of its proceedings hereunder which affected the outcome of this trial.
“After the trial of this cause, a claim for attorneys fee to be paid by the State was made by Mr. Bernard and approved by the Court. Upon determining, after the trial, that there was some question of a fee possibly coming to Mr. Bernard through Mr. King, the parties were advised that the State would be subrogated as to the rights of this fee up to the amount paid by the State. There was no award of attorneys fees to Mr. King by the Court or State.
“The Court finds that there was never any indication in the conduct of the attorneys which reflected dissension in counsel and their actions in court were in keeping with competent counsel.
“6. That decisions of counsel to use a witness or not, or to allow a defendant to testify or not depend on many factors and that decision would vary from lawyer to lawyer and the Court cannot find fault in this regard.
“The Court found the defendant to be responsive to the Court in its general questioning on at least two occasions.
“That counsel for the defendant during preparation for and during the trial of this cause had to make many decisions of an infinite variety, and the trial strategy of counsel from commencement of the trial to its conclusion did not indicate inadequate or incompetent representation.
“The Court finds that counsel for the defendant were competent.
“Respectfully submitted. s/Paul J. Miller, Jr.
Presiding Circuit Judge 26th Judicial Circuit”

II

This Court has thoroughly reviewed the original trial record as well as the hearing included in the return to the remand and the various statements of the parties and testimony offered.

The two attorneys had agreed prior to trial that the Honorable Ruben King would act as lead counsel in the case. Mr. King made the following statement: (R. 5, 7 and 8).

“I think now as I did before trial that the defendant was innocent. I don’t believe that George Daniel did the killing today and I don’t believe he did it at the time of the trial because the evidence of the State that we have been able to gather by motions on discovery showed that there had been no powder residue. This was a chamber-type pistol and there were no powder residues on his hands or on his sweater. Also, he was supposed to have been in a fight with the deceased and was supposed to have shot six times and yet the fight took place in a ditch and there were no bullets whatsoever that have been found.
“So as a result, after the State had put on their evidence, Mr. Bernard and I discussed whether or not to put Mrs. Daniel on the stand and George’s sister and of course they had not seen the defendant in several months and they were really not in a position to testify as to his mental condition at the time of the commission of the crime.
“The only thing that they connected George Daniel with the pistol to begin with was a left print on the right side of the chamber and George Daniel is right-handed and if he was shooting the pistol the fingerprint would have been- different and which we brought it out in the trial was that there was no question that there was a scuffle. But if the man was shooting the pistol, of course, you would have seen the right thumbprint somewhere on that pistol.
“Now, we were faced with this type of evidence and as a result everything that we could have put on the stand in defense of George Daniel was what the State had already proved or attempted to prove. All those documents from the Department of Forensic Science and all of the other evidence had been put on by the State.
“We argued on a motion to exclude the evidence, which was denied by the Judge, and that is where we stood at that time. Like I say, I don’t think that George Daniel did the killing, but I was not the one to decide.”

Further in his statement found in evidence, Mr. King indicated that he had conferred with the appellant’s relatives and friends in Texas and found that these people, who had seen him several months prior to the offense, in Houston, could not offer any evidence bearing on the killing of the police officer in Hurtsboro as none of them were present or had information as to his condition at that time. Mr. King and his co-counsel then agreed, in light of the fact that the appellant had been sent to Bryce’s in Tuscaloosa and had been found competent at the time he committed the offense and also competent to cooperate with his attorneys and stand trial, that the best defense was one of not guilty.

Both attorneys had gone to Hurtsboro and interrogated a number of witnesses and been to the crime scene, and in light of their preparation for trial, felt that the defense of simply “not guilty” was the proper one and sought to handle the guilt phase of the case based upon this.

Further, both attorneys felt that they would use, and did use, the appellant’s mother and sister at the punishment phase, since their views as to his condition prior to the time of the offense in question was one which would bear upon the punishment to be determined by the jury in the case.

It is true that Mr. Bernard stated for the Court that in his view Mr. Daniel was not competent to stand trial, and that he would like to have had a different party examine him. Nevertheless, in light of the findings submitted to the trial court from Bryce Hospital in Tuscaloosa, Alabama, he did agree that the defense of not guilty was the proper one in this case.

The trial court found that there was only one slight disagreement which was very minor, and occurred on record page 374 of the transcript. This is noted in the trial court’s findings.

From our review we affirm the findings of the trial court, as contrary to the contention of counsel on appeal, that the record does not sustain or support a determination that there was a conflict of interest between the two attorneys who represented the appellant during the original trial itself. Further, the record of the trial itself and of the hearing in the Circuit Court of Russell County, and on which a return has been herein filed, likewise does not sustain such an allegation.

Moreover, we have carefully examined both of these records and agree with the determination by the trial court that the appellant in this cause was thoroughly, competently and adequately represented in a proper legal sense, and that the evidence fails to establish that the appellant was denied the “reasonably effective” assistance of counsel as required by law. See Trammell v. State, 420 So.2d 855 (Ala.Cr. App.1982) and authorities therein cited. See also Clency v. State, 442 So.2d 148 (Ala.Cr .App.1983).

We have carefully examined this record and find that the trial court’s determinations were entirely proper. We find no error and affirm the determination that the trial attorneys did render effective and proper legal assistance to the appellant at his trial and this case is therefore due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte George DANIEL. (Re George Daniel v. State).
    83-721.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    Rehearing Denied Nov. 9, 1984.
    James R. McKoon, Jr. of Ferrell & McKoon, Phenix City, for petitioner.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

This Court granted certiorari in this case under Rule 39(c), A.R.A.P., to determine whether or not the Court of Criminal Appeals was correct in its conclusion that petitioner was not denied competent counsel in his trial on a charge of capital homicide, § 13A-5-31(5), Code 1975, which trial occurred in November 1981. We affirm.

As the opinion of the Court of Criminal Appeals discloses, this Court had in an earlier decision granted certiorari, remanding this case to the Court of Criminal Appeals with directions to remand the case to the trial court for an evidentiary hearing on the issue of the defendant’s challenge to the competency of his trial counsel and to direct the trial court to make findings of fact relating to that issue. The Court of Criminal Appeals was also directed to conduct an independent review of the trial court’s findings and to make a final determination of the competency-of-counsel issue. Ex parte Daniel, 459 So.2d 942 (Ala. 1982). Pursuant to that mandate, the Court of Criminal Appeals, 459 So.2d 943-, remanded the cause to the trial court, and the trial court conducted the prescribed evidentiary hearing and made findings in accord therewith, holding that counsel for the defendant were competent. Those proceedings were reviewed by the Court of Criminal Appeals, which then issued an opinion upholding the trial court’s judgment. Daniel v. State, 459 So.2d 944 (Ala. Crim.App.1984). Following that decision, this Court again granted certiorari.

The sole issue presented by counsel to this Court on this petition is:

“Whether or not the failure to move for an independent psychiatric examination where defendant’s mental competency is in question in a death penalty case constitutes ineffective assistance of counsel to such an extent that a new trial should be held.”

The opinion of the Court of Criminal Appeals sets out the findings of the trial court. These were made after a hearing conducted by that court attended by Thomas Estes, chief deputy district attorney; Larry Roney, attorney for the defendant; Ruben K. King and Curtis Bernard, counsel for the defendant at his November 1981 trial; and witnesses Lillie Daniel and Hazel Bampoe. In addition to those findings, the opinion of the Court of Criminal Appeals contains a review of the evidence adduced in the trial court, together with its conclusion based thereon,

“that the appellant in this cause was thoroughly, competently and adequately represented in a proper legal sense, and that the evidence fails to establish that the appellant was denied the ‘reasonably effective’ assistance of counsel as required by law.”

In making this determination, the Court of Criminal Appeals applied the “farce, sham or mockery” test and also the “reasonably effective assistance of counsel” test of Harris v. Oliver, 645 F.2d 327 (5th Cir.1981).

Subsequent to the decision of the Court of Criminal Appeals on January 10, 1984, the United States Supreme Court in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established guidelines for the review of claims of deficient or ineffective counsel:

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”

Ibid, at 104 S.Ct. 2064. That Court added, at 2065-66:

“When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representations fell below an objective standard of reasonableness.
“More specific guidelines are not appropriate. The Sixth Amendment refers simply to ‘counsel,’ not specifying particular requirements of effective assistance. It relies instead on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. See Michel v. New York, 350 U.S. 91, 101-102, 76 S.Ct. 158, 163-164, 100 L.Ed. 83 (1955). The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.
“... Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v. New York, supra, 350 U.S., at 101, 76 S.Ct., at 164. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation omitted.]
“Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”

As made clear by the United States Supreme Court, an ineffective assistance claim requires not only an unreasonable error but also prejudice to the defense:

“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365, 101 S.Ct. 665, 667-668, 66 L.Ed.2d 564 (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”

Id. at 2067. The defendant’s burden was explained at 2068:

“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

This burden was amplified at 2069:

“The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel’s errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant chai-lenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer— including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”

Involving as it does the fundamental right of counsel at trial, this case properly should be reviewed under the standards adopted in Strickland, supra, even though the conduct complained of occurred prior to the date of that opinion. Accordingly, this Court has reviewed the record and briefs under those standards.

The first question to be addressed is whether or not the petitioner’s counsel, in light of all the circumstances of this case, committed an act or omission “outside the wide range of professionally competent assistance” by failing to “move for [or procure] an independent psychiatric examination.”

This specific allegation of ineffectiveness must be viewed with the actual efforts of counsel to procure a mental examination before trial. The record affirmatively discloses that on April 30, 1981, Mr. Bernard, co-counsel for the defendant, filed a “Petition for Psychiatric Examination,” which in part stated the following:

“1. The defendant is indigent and has not the funds to pay the expenses of his defense, wherefore the above-named attorney has been appointed by this Court to represent him.
“2. The attorney further believes that the client may be incapable of intelligently pleading to the merits of his case.
“3. The defendant’s attorney has reason to believe that his client is suffering from some mental disease, injury or congenital deficiency possibly rendering the client incapable of assisting and preparing a defense and standing trial.
“WHEREFORE, counsel moves the Court for an order appointing, authorizing and directing a qualified psychiatrist at county or state expense to examine the mental condition of said defendant. Further, counsel prays that a report of such examination be submitted to the Court, attorney for defendant, and the District Attorney. Said examination needs to include but not be limited in scope to the following areas of inquiry, to-wit:
“(a) Whether or not the defendant is capable of understanding the nature of the charges against him;
“(b) Whether or not the defendant understands the object of the proceedings going on against him;
“(c) Whether or hot the defendant rightly comprehends his own condition in reference to such proceedings;
“(d) Whether the said defendant, at the time he allegedly committed the crime with which he is charged, was of sufficient mental capacity to distinguish between right and wrong in comprehending the nature and quality of said act;
“(e) Whether or not the defendant is in such condition of mind and memory as to be able to recall the evidence connected with the offense with which he is charged so as to enable him to advise counsel in a rational manner and to testify at the trial of this case if called upon to do so.
“Defendant further prays a psychiatrist be required to determine in a report his opinion as to the defendant’s condition at the time of the alleged crime with respect to the following principles of law:
“1. Mental capacity; insanity. — A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
“2. Delusional compulsion. — A person shall not be found guilty of a crime when at the time of the act, omission, or negligence constituting the crime, such person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.
“3. Intoxication. — A person shall not be found guilty of a crime when at the time of the act, omission, or negligence constituting the crime, such person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong in relation to such act. Involuntary intoxication means intoxication caused (a) by consumption of a substance through inexcusable [sic] ignorance and (b) by coercion, fraud, artifice or contrivance of another person. Voluntary intoxication shall not be an excuse for any criminal act or omission.”
“4. Mistake of fact. — A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by misapprehension of fact, which, if true, would have justified the act or omission.”

In response to this encompassing petition, the trial court ordered that the defendant be examined by the East Alabama Mental Health Center. A Dr. Rose, Ph.D., opined that there were “substantial questions regarding his capacity to stand trial.” His full report, filed shortly thereafter, recommended admission to a state mental hospital for further evaluation, whereupon the trial court ordered the petitioner committed to the Alabama Mental Hospital in Tuscaloosa.

On September 8, 1981, a report of a psychiatric study of the petitioner was sent to the trial court. We quote pertinent portions of that report from the record:

“The mental status examinations revealed diagnoses of Axis I, Malingering, V65.20; Axis II, No Diagnosis, V71.09; and Axis III, None.
“The psychological assessment revealed that George Daniel made no real effort toward completing any of the psychological testing instruments. Mr. Daniel attempted to mislead the examiner on IQ measures and on Sentence Completions. In the examiner’s opinion, Mr. Daniel was malingering at the time of the psychological testing.
“Since Mr. Daniel’s admission to Bryce State Hospital, he has been under the close observation, evaluation and review of qualified medical, psychiatric, psychological, and other evaluation and treatment staff. The most recent review was on Tuesday, September 1, 1981, and at that time, the Forensic Evaluation and Treatment Board was of the following opinions:
“(1) George Daniel is presently competent to stand trial and to assist his attorney in preparing his defense. Mr. Daniel does understand the nature of the charge against him.
“(2) George Daniel’s alleged criminal conduct is not viewed as the product of mental illness. Therefore, George Daniel was not suffering from such a mental disease, defect, or derangement at the time of the particular act charged which prevented him from possessing the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
“(3) George Daniel was not suffering from a mental illness at the time of the particular act charged which prevented him from distinguishing right from wrong or prevented him from adhering to the right.”

Notwithstanding this report, the record on remandment reveals that the petitioner’s attorneys had their own doubts concerning the petitioner’s mental capacity to stand trial. Mr. Bernard himself testified that it was still his opinion that Mr. Daniel was not competent to stand trial. Nevertheless, that record also discloses both an investigation of the facts of the homicide and a consideration of possible defenses. Indeed, the record shows that defense counsel affirmatively considered the possible practical effect before a jury of a plea of not guilty by reason of insanity, and weighed the success of such a plea against the evidence contained in the psychiatric report. Under the circumstances, their decision not to move for another psychiatric evaluation was the exercise of reasonable professional judgment, and not an error which could be viewed as a deficiency in professional performance. Certainly, such conduct cannot be judged as an error “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, supra, at 2064.

Having found no such error, we find it unnecessary to inquire into the prejudice component of the Strickland standards. Strickland, supra, at 2069.

The judgment of the Court of Criminal Appeals must be, and it hereby is, affirmed.

AFFIRMED.

All the Justices concur.

      . Though not important to this question, it cannot go unnoticed that on the first appeal of this case, the petitioner asserted that a conflict of some sort existed between counsel which prevented him from receiving a fair trial. That assertion has been abandoned; the failure to move for the independent sanity hearing is now the basis for the allegation of incompetent counsel.


author: HUBERT TAYLOR, Judge.

text:
    Billy Wayne WALDROP v. STATE.
    7 Div. 133.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.

      Hank Fannin and R.D. Pitts, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HUBERT TAYLOR, Judge.

Appellant, Billy Wayne Waldrop, was convicted of robbery-murder in violation of § 13A-5-40, Code of Alabama 1975, and sentenced to death. This appeal follows.

The first issue is whether the trial court committed reversible error by not granting Waldrop’s motion to be committed to Bryce Hospital for a mental examination. Two witnesses were questioned during the hearing on this motion. Don Weathington, the coordinator for the Cheaha Mental Health Center, testified that he made a one-hour- and fifteen-minute examination of Waldrop. During the examination, he tried to determine if Waldrop was aware of who he was, where he was, why he was there, and what was happening to him. Based on this examination, Weathington concluded that Waldrop was suffering from no mental disorder of any type.

Ray Nelson, a former cellmate, testified that Waldrop was sometimes easy to talk to and sometimes was in his own world. He further testified that Waldrop discussed death and once suggested that both he and Nelson should stab themselves with knives in the stomach. He stated that Waldrop once cut himself with a razor.

Although Nelson’s testimony indicates that Waldrop’s behavior was odd or deviant, it in no way indicates that he was mentally incompetent to stand trial. The judge’s denial of the motion for a mental examination was based on the testimony of a competent mental health expert. The trial judge is obligated to order a mental examination only when there is reasonable or bona fide doubt as to a defendant’s sanity. Ala.Code § 15-16-21 (1975). It is left to the discretion of the trial court as to whether there is a reasonable or bona fide doubt as to sanity and, thus, whether a further examination is required. Livingston v. State, 419 So.2d 270 (Ala.Cr.App.1982). The burden of showing a reasonable doubt rests on the defendant (appellant). Minniefield v. State, 47 Ala.App. 699, 260 So.2d 607 (1972). We find no error with regard to this issue.

Waldrop’s next issue was that of venue. Waldrop produced newsmen from Tallade-ga County who testified that news stories concerning the murder victim and the suspect were broadcast on radio and television at least four times a day for several days. There were also many articles on the subject in the local newspaper. Based on this extensive coverage, Waldrop claimed that he was prejudiced and could not get a fair trial in Talladega County. This motion for change of venue was denied.

Publicity alone, even if inordinate, is not sufficient to warrant a change of venue. Some prejudicial effect of the publicity must be shown. Thompson v. State, 374 So.2d 377 (Ala.Cr.App.1978). In the case sub judice, there was no showing that the publicity would cause prejudice. There was no showing that the publicity was not objective, factual or that it was of the type that would inflame the community. Wal-drop, therefore, failed to carry his burden on this motion. This issue was raised during the jury selection and none of the potential jurors indicated that the publicity would prejudice them toward Waldrop. It was not error to deny the motion.

Next, Waldrop takes issue with the admission of his confession. Officer Dennis Surrett testified that before Waldrop made his statement he was advised of the following:

“You have the right to talk to a lawyer to have him present with you while you are being questioned. If you want a lawyer and cannot afford one, the court will appoint one for you. You have the right to remain silent. Anything you say, can, and will be used against you in a court of law.”

Waldrop argues that this warning was inadequate because he was not told that he could request counsel after questioning began, that he could stop the questioning at anytime, and that he would be provided with counsel after questioning started if he so requested.

Informing a defendant that he has the right to remain silent, that statements he makes will be used against him, and that he has a right to the presence of an attorney, either retained or appointed, will satisfy the Miranda requirements. Mack v. State, 348 So.2d 524 (Ala.Cr.App.1977). No precise language is required in warning a defendant of his constitutional rights. Mack, supra. The warning in this case was adequate.

Waldrop also argues that his confession was obtained by trickery. He testified that the officers who tape recorded his statement told him that the statement was needed to prepare him for a lie detector test and was, therefore, obtained by trickery. The officers involved in taking the statement denied telling Waldrop he was about to undergo lie detector tests.

The trial court is not required to accept the testimony of the accused if there is substantial testimony by others sufficient to constitute a predicate for admission of evidence of a confession. Moore v. State, 415 So.2d 1210 (Ala.Cr.App.1982). Even assuming that the officers did make representations to Waldrop about a lie detector test, we fail to see how that “tricked” Waldrop into confessing. The issue is without merit.

Waldrop’s last issue deals with comments made by the prosecutor during his closing argument. The prosecutor referred to Waldrop as a murderer and a robber, and at one point said, “Billy Wayne Waldrop and his partners in crime had no more regard for human life than you or I would for a fly we swatted.”

In a proper case, the prosecuting attorney may characterize the accused or his conduct in language which, although it consists of invective or opprobrious terms, accords with the evidence of the case .... ” Barbee v. State, 395 So.2d 1128, 1134 (Ala.Cr.App.1981). The evidence in this case supported the inferences drawn by the prosecutor. There was no error.

In accordance with § 13A-15-53, Code of Alabama 1975, we have reviewed the sentence proceedings of this case and found no error. Additionally, the trial court’s findings concerning the aggravating and mitigating circumstances are supported by the evidence. After considering each of the aggravating and mitigating circumstances set out in the statute, the court found that Waldrop and his accomplices entered the victim’s home, robbed him, killed him, and then burned his house and body. The court also found that Waldrop had committed two prior murders. No evidence of any mitigating circumstances was introduced.

This court further finds that the sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor. An independent weighing of the aggravating and mitigating circumstances by this court indicates that death was the proper sentence in this case. Finally, the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases. Beck v. State, 396 So.2d 645 (Ala.1980).

We have searched the record and have found no error prejudicial to the substantial rights of Waldrop. The judgment of the circuit court is affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX “A”

IN THE CIRCUIT COURT OF TALLADEGA COUNTY, ALABAMA

STATE OF ALABAMA,

YS.

BILLY WALDROP, Defendant.

CASE NO. CC 82-387

FINDING OF FACT BY THE COURT FROM THE EVIDENCE AND TESTIMONY PRESENTED DURING THE TRIAL PHASE OF THE TRIAL SUMMARIZING THE CRIME AND THE DEFENDANT’S PARTICIPATION THEREIN

That sometime prior to June 2, 1982, the defendant, Billy Waldrop, together with Eugene Singleton and Henry Mayes, planned and conspired together to rob, burglarize his house, and murder, if necessary, Thurman Macon Donahoo, a resident of Alpine, a rural area in Talladega County, Alabama. In furtherance of this scheme and conspiracy, the conspirators obtained a pistol to carry out their plan. The defendant and his co-conspirators knew or believed that the victim owned and possessed a large diamond ring, which he wore regularly and which was reputed to be of considerable value. The victim did, in fact, own a diamond ring of approximately five carats, and it was, in fact, very valuable. Pursuant to their scheme, plan, and conspiracy, the defendant, Billy Waldrop, with one or more of his co-conspirators and accomplices, proceeded to the home of the victim on the night of June 2, 1982. When they arrived at his home, the victim was alive and in possession of the ring. When they left, the victim was dead or dying, and the defendant and his accomplices were in possession of the ring, together with other items of value taken from the house of the victim. After committing the robbery, burglary, and murder, and before leaving the scene of the crime, the defendant and his accomplices set fire to the victim’s house, obviously to destroy any and all evidence of their crime. The house was completely destroyed by the fire and the victim’s body was burned almost beyond recognition. The body, or portion remaining, was found partially beneath an overturned refrigerator. The next day the defendant and co-conspirator Mayes were in the State of Tennessee attempting to dispose of the ring and other items that had been stolen from the victim. They were unsuccessful and returned to Alabama, where they ultimately disposed of the ring for the sum of $10,000.00, the defendant receiving most of the money. By intense and excellent police work, the diamond was ultimately recovered and positively identified.

The murder of the victim was of the intentional killing type while the defendant and his accomplices were committing robbery in the first degree and burglary in the first degree. The intent required in the various counts of the indictment are not mutually exclusive, and the defendant and his accomplices possessed all of the requisite intent to sustain a conviction on each count of the indictment; and the jury so found. The jury likewise was instructed that the felony murder doctrine had no application to a capital offense for which the defendant was being tried.

Since the law requires only a summary of the crime, the Court feels that the foregoing finding should suffice, and will not go into the defendant’s flight, capture, and the details of the evidence leading to his conviction. The evidence introduced in a five day trial, both direct evidence and circumstantial evidence, adequately, and in fact overwhelmingly, supported the jury’s verdict. The defendant was a full participant, accomplice, and co-conspirator in this pre-planned brutal murder and intentional killing.

This the 22nd day of March, 1988.

s/William C. Sullivan

WILLIAM C. SULLIVAN

Presiding Judge

FINDINGS OF FACT IN REGARD TO THE PUNISHMENT PHASE OF THE TRIAL

The State proved beyond a reasonable doubt and to a moral certainty that the defendant had two prior convictions for second degree murder; and the Court so finds. The State had proven the defendant guilty of two provisions of the capital punishment offenses as set out in Section 13A-6-40, being murder by the defendant during a robbery in the first degree, or an attempt thereof committed by the defendant, and murder by the defendant during a burglary in the first degree, or an attempt thereof committed by the defendant.

. The defendant offered little or no evidence of mitigating circumstances as provided in Sections 13A-5-51 nor 13A-5-52. At the conclusion of the sentence hearing the jury returned a verdict recommending that the defendant be punished by death. The vote was 12 for death and none for life without parole.

The Court finds that the conduct of the defendant constituted a brutal, aggravated, merciless, and intentional killing of a helpless elderly man, and that the recommendation of the jury as to the punishment to be imposed was fully justified by the facts and circumstances of the case and the lack of any mitigating circumstances.

The Court further finds that the sentence of death was not recommended by the jury under influence of passion, prejudice, or any arbitrary factor. The Court finds that both the defendant and the victim were male Caucasians. The Court further taking judicial knowledge of the proceedings conducted before it finds that the composition of the jury trying the defendant in this case was as follows: five white males, three white females, two black males, two black females.

CONSIDERATION AND FINDINGS OF THE COURT IN DETERMINATION OF SENTENCE

As required by Section 13A-5-47(b), the Court ordered and received a written Pre-sentence Investigation Report consisting of some eleven pages, which is ordered to be included in the record of this case. Copies of the Pre-sentence Report were furnished to both the attorneys for the defendant and the District Attorney. The Court has carefully read, studied, and considered the Pre-sentence Report before arriving at the final decision determining the sentence herein. Nothing contained in the Pre-sentence Report would, in the opinion of the Court, constitute a mitigating circumstance as provided in either Section 13A-5-51 or 13A-5-52.

The Court finds under Section 13A-5-49 as follows:

1. The capital offense was not committed by a person under sentence of imprisonment;
2. The defendant was previously convicted of two other felonies involving use or threats of violence to the person, both said felonies being murder in the second degree;
3. The defendant did not knowingly create a great risk of death to many persons;
4. The capital offense was committed while the defendant was engaged or was an accomplice to the commission of or an attempt to commit or flight after committing or attempting to commit robbery and burglary;
5. The capital offense was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
6. The capital offense was not committed for pecuniary gain;
7. The capital offense was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws;
8. The capital offense was not especially henious, atrocious, or cruel compared to other capital offenses. The Court finds under Section 13A-5-51 as follows:
1. The defendant has a significant history of prior criminal activity;
2. The capital offense was not committed while the defendant was under the influence of extreme mental or emotional disturbance;
3. The victim was not a participant in the defendant’s conduct nor did he consent thereto;
4. The defendant was an accomplice in the capital offense committed with another person and his participation was not relatively minor;
5. The defendant did not act under extreme duress or under the substantial domination of another person;
6. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired;
7. The age of the defendant at the time of the crime was 31 years.

The Court finds that there are no mitigating circumstances as defined in Section 13A-5-51. The Court has made a diligent search under the provisions of Section 13A-5-52 to determine if there is any aspect of the defendant’s character or record or any circumstances of the offense for which he has been convicted that would constitute a mitigating circumstance, and finds none.

In considering the aggravating circumstances, the Court finds that the defendant has twice previously murdered two human beings. Considering these aggravating cir-cumstánces, together with the other aggravating circumstances heretofore enumerated under Section 13A-5-49, the Pre-sen-tence Investigation Report, the absence of mitigating circumstances, the facts of the case at hand, and the jury’s recommendation of a death sentence, there is only one logical conclusion as to the defendant’s punishment, that conclusion being that he should suffer the punishment of death by electrocution as provided by law. This defendant does not possess a single redeeming feature nor attribute and should be executed for the crime he has committed.

So Be It.

This the 22nd day of March, 1983.

s/William C. Sullivan

WILLIAM C. SULLIVAN

Presiding Judge

      . The trial court’s findings of facts, setting forth its findings as to aggravating and mitigating circumstances, are attached as Appendix A.


author: FAULKNER, Justice.

text:
    Ex parte: Billy Wayne WALDROP. (Re Billy Wayne Waldrop v. State of Alabama).
    83-701.
    Supreme Court of Alabama.
    Sept. 28, 1984.
    Rehearing Denied Nov. 9, 1984.
    Dennis N. Balske, Montgomery, for appellant.

      Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   FAULKNER, Justice.

Petitioner Billy Wayne Waldrop was convicted and sentenced to death for robbery-murder in violation of § 13A-5-40, Code of Alabama (1975). The facts are set out in Appendix “A” to the opinion of the Court of Criminal Appeals, Waldrop v. State, 459 So.2d 953 (Ala.Crim.App.1983). Stated briefly, Waldrop, along with two other men, Eugene Singleton and Henry Mayes, conspired to rob and murder, if necessary, the victim, Thurman Macon Donahoo. On the night of June 2, 1982, the three men broke into Donahoo’s home and robbed him of a five-carat diamond ring, along with other items of value. Before leaving the scene of the crime, Waldrop and his accomplices killed the victim and set fire to the victim’s house. The house was completely destroyed by the fire, and Donahoo was burned almost beyond recognition.

Waldrop was convicted of capital murder and sentenced to death. The Court of Criminal Appeals reviewed the conviction, and, after independently determining that the death sentence was appropriate, affirmed Waldrop’s conviction and sentence. We granted the petition for writ of certio-rari pursuant to Rule 39(c), A.R.A.P. After careful review of that opinion, the record, and the briefs of the respective parties, we affirm the decision of the Court of Criminal Appeals.

In this Court, Waldrop raises additional issues not addressed by the Court of Criminal Appeals. Waldrop claims, inter alia, that he was denied a fundamentally fair trial because the prosecutor injected improper and prejudicial comments into the closing argument during both the guilt and the sentencing phases of trial.

In all death penalty cases, this Court pursuant to Rule 39(k), A.R.A.P., “may notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner.” In this case, Waldrop’s failure to raise a claim of error regarding the prosecutor’s arguments at trial, “while weighing against Defendant as to any possible claim of prejudice, serves as no impediment to our scope of review pursuant to the ‘plain error’ mandate in death penalty cases.” Bush v. State, 431 So.2d 563 (Ala.), cert. denied, — U.S. —, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983).

Accordingly, having carefully scrutinized the entire proceeding, both at the guilt and sentencing phases, we conclude that the prosecution did not exceed the permissible bounds of argument, and that none of Wal-drop’s substantive rights were violated.

-A- .

Waldrop initially claims that the prosecutor improperly vouched for the credibility of his law enforcement witnesses by arguing:

“... Two, is the police officers. And I want to tell you this. I am proud. And this community ought to be proud, to be associated with officers like Dennis Sur-rett, Pee Wee Hurst and Jerry Studdard, because they have done one heck of a job. And Mr. Fannin talked to you about it, for just a second, about that the State has got all these people. They have got experts here and experts there. And here they are seated at the table. You know why we have to have them. We have got to run this guy over four states, picking up witnesses here and there. I am going to tell you, they have done as good a job on this as has ever been done. They have done an outstanding job and this community ought to be proud of them.”

This portion of the argument objected to was made during the guilt phase of trial, in reference to the prosecutor’s explanation of the four links in the chain of justice: the witnesses; the police officers; the D.A.’s office; and the jury.

Waldrop claims that again in the sentencing phase the prosecutor improperly encouraged the jury to rely on him, as well as on his trusted police investigators. The prosecutor argued: “Well, I’ll just tell you this. I have done my job, Mr. King [the Assistant District Attorney] has done his job and the police officers have done their jobs....”

Waldrop asserts that these arguments were highly improper in that they bolstered the credibility of the prosecution’s witnesses, and also injected the personal opinion of the District Attorney into the fray.

Contrary to Waldrop’s contentions, however, we do not agree that the State deliberately attempted to bolster the witnesses by vouching for their credibility. In Brown v. State, 393 So.2d 513 (Ala.Crim.App.1981), the Court of Criminal Appeals observed:

“Attorneys should be careful in their arguments to the jury to refrain from an injection of their own personal experience or knowledge in support of their argument, as distinguished from what they deem to be reasonable inferences to be drawn from the evidence.”

In Brown, the prosecutor, commenting on the defendant’s claim that his confession was not voluntary, argued: “[H]e gets up here now when he is on trial for this crime and testifies that he didn’t know what he was doing. That is not anything unusual. I see it all the time.” In comparison, in the instant case the prosecutor was merely commenting on the investigation conducted by the police officers. That they did a good job in their investigation is a reasonable inference which was properly drawn from the evidence presented at trial. Moreover, the prosecutor was not injecting his own knowledge or experience into the argument, nor was he indicating a personal belief in the veracity of the witnesses’ statements. “During closing argument, the prosecutor as well as defense counsel has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference.” Milton v. State, 417 So.2d 620 (Ala.Crim.App.1982).

-B-

Waldrop next claims error in that the prosecutor argued a patriotic pitch directed at motivating the jurors to impose the death penalty in order to protect society. The first statement complained of occurred during the guilt phase of the trial, as follows:

“[B]ut when we talk about the United States, we talk about something we came over here for. And we fought a war for. To be safe in our homes. And that is what we are getting down to now, ladies and gentlemen. A man [the victim] is 72 years old. And we are getting to where we have got to lock our doors to live in our houses, from the Billy Wayne Wal-drops of the world.”

In the same vein, Waldrop.asserts that during the sentencing hearing, the prosecution improperly encouraged the jury to join the war against crime, Hance v. Zant, 696 F.2d 940 (11th Cir.1983), when he argued as follows:

“Well, I’ll just tell you this. I have done my job, Mr. King has done his job and the police officers have done their jobs, and the witnesses have done their job. They and you. It is up to you as to what kind of county we are going to have. It is up to you whether you are going to let a man like that come down here and rob and burglarize and kill the citizens of this county.
“And they talked about capital punishment this, and a meaningful life sentence. You tell these ladies who work out in these convenience stores that it don’t mean any more to rob them than it does if you rob and kill them, where they destroy the witnesses. It is up to you what kind of county you are going to have and I’ll submit this to you.... This case is what capital punishment is all about. That man by his past conduct of two murders and by his conduct down there on June the 3rd and June the 2nd of 1982 has lost his right to live in this society. And I’ll submit this to you. What is fair to him, what is fair to society, capital punishment, everybody on this jury believes that if somebody comes to your house, that you have got the right to kill them to protect your loved ones. Don’t take away society’s right of self-defense because that is what this case is about.
“There is the killer and society should have the right to self defense against people like that.”

In Alabama, the rule is that a district attorney in closing argument may make, a general appeal for law enforcement. Embrey v. State, 283 Ala. 110, 118, 214 So.2d 567 (1968).

This line of argument is “within the latitude allowed prosecutors in their exhortations to the jury to discharge their duties in such a manner as, not only to punish crime, but to 'protect the public from like offenses and as an example to deter others from committing like offenses.” Varner v. State, 418 So.2d 961 (Ala.Crim.App.1982); Cook v. State, 369 So.2d 1243 (Ala.Crim. App.1977), affirmed in part, reversed in part on other grounds, 369 So.2d 1251 (Ala. 1978). The argument complained of in the instant case is similar to that made by the prosecutor in Cook, supra. In Cook, originally brought under the 1975 Alabama Death Penalty Act, the prosecutor made the following comment during closing argument:

“MR. JOHNSON: Don’t you know that right now out there on every corner, in every little store, in every little Quick Mart, in every little 7-11 Store they are out there, the owners, the proprietors, and they are considering the odds. They are wondering which way you’re going to stack them. Don’t you know that the Recardo Cook’s and the would be Recar-do Cook’s of this world are out there and they are considering the odds too. Doh’t you know they are wondering if you’re going to say to them, “We’re going to give you a license. We’re going to give you a license to kill’.”

369 So.2d at 1247.

In discussing the scope of legitimate appeals for law enforcement, this Court noted, quoting Blalock v. State, 8 Ala.App. 349, 63 So. 26 (1913):

“The excerpt from the argument of the solicitor ... cannot be taken to mean more, when construed in connection with the evidence, than that it was the duty of the jury to convict the defendant, if the evidence was sufficient, for the purpose of deterring others from committing similar offenses. This is one of the objects sought to be attained by the enforcement of the criminal laws and punishment of offenders against it. At most it could be deemed no more than an argument, intended to illustrate the evil consequences that might result from a failure of the jury to do their duty in the premises if the evidence was sufficient to authorize a conviction. It does not appear from the isolated excerpt set out that the solicitor was asserting any fact, and it is not error to refuse to exclude the argument of counsel, although not strictly pertinent, when no fact is asserted, but simply an inference is drawn and argument made thereon.”

Cook, supra, 369 So.2d at 1254-55.

As in Cook, the closing argument in the instant case did not imply that the defendant himself would commit illegal acts in the future, nor did the prosecutor seek by inflammatory appeal to arouse in the jurors a personal hostility towards, or fear of, the defendant. Accordingly, the prosecutor’s comments properly argued the necessity of law enforcement as a deterrent to crime and as a protection of society.

-C-

Finally, the defendant argued that the following statement made by the prosecutor during the sentencing hearing was improper:

“Our Legislature, you know we are governed by the laws of God and man. And I’ll submit to you the laws of God, He believed in capital punishment and you will find it many times throughout the Bible.”

Waldrop asserts that the prosecutor’s argument is based upon extrinsic and unproven facts, motivated purely to incite the emotions and passions of the jurors. We, however, do not agree that this comment was improper. If, as the Attorney General states in his brief, “this argument was simply a statement that the jurors should not refuse to impose the death penalty in an appropriate case because of religious feelings,” then the prosecutor’s comments were consistent with the duty imposed upon the jurors. Furthermore, “ ‘counsel’s argument should not be so restricted as to prevent reference, by way of illustration, ... to principles of divine law or biblical teachings.’ ” Poole v. State, 292 Ala. 590, 298 So.2d 89 (1974).

In view of the above discussion, we find that the errors complained of in closing argument had no improper impact or influence upon the jury’s determination. Furthermore, pursuant to § 13A-5-53 Alabama Code (1975), we find no error adversely affecting the rights of the defendant in the conviction or sentencing proceedings. Likewise, upon review, we conclude that death was the proper sentence in this case. Accordingly, we affirm.

AFFIRMED.

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