author: HARRIS, Judge.

text:
    Patricia Anne Thomas JACKSON, alias v. STATE.
    6 Div. 794.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Ralph C. Burroughs and Joel L. Sogol of Sogol & Chandler, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Patricia Anne Thomas Jackson was indicted and tried for the capital murder of Bonnie Walker, whom she stabbed once through the heart. Ms. Jackson, the appellant herein, was indicted, pursuant to § 13A-5-31(a)(13), Code of Alabama 1975, for “murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime.” The trial was conducted in compliance with the standards and procedures outlined in Beck v. State, 396 So.2d 645 (Ala.1980). The jury returned a verdict of “guilty as charged in the indictment,” and, after a separate sentencing-phase hearing, fixed appellant’s punishment at death. The trial court, after its separate sentencing-phase hearing and in accordance with the jury’s verdict, sentenced the appellant to death by electrocution.

It is undisputed that on February 28, 1981, shortly after 1:00 p.m., the appellant stabbed Bonnie Walker once through the heart and that Ms. Walker died as a result of this wound. The facts and circumstances surrounding the stabbing incident, however, were, somewhat, in dispute.

Charlotte Archibald testified that she was visiting the victim, Bonnie Walker, on the day of the stabbing and witnessed an argument between the appellant and the victim. Ms. Archibald originally heard the appellant talking loudly and cursing in front of Sallie B. Hollifield’s house, next door to the duplex in which the victim lived. Ms. Archibald went to the victim’s screen door to look outside to see what was “going on” next door. The appellant walked over in front of the victim’s residence and began hollering inside to the victim. The appellant and the victim then engaged in a heated argument through the victim’s screen door. Ms. Archibald prevented any physical contact at that time by holding the screen door, thereby preventing entry by the appellant and preventing the victim from going outside at appellant’s request. The appellant then, apparently, left the premises.

After the appellant had disappeared Ms. Archibald left the victim’s duplex, entered her van, which was parked in the victim’s front yard, and prepared to leave. She was unable to leave because other automobiles had her “blocked in.” As she sat in her van she witnessed a second confrontation between the victim and the appellant. They were on the victim’s porch arguing with each other and calling each other names. The appellant dared the victim to insult appellant’s mother, and, after the victim refused to do so, the appellant hit the victim in the chest with a closed fist. Ms. Archibald did not realize at that time that the appellant had stabbed the victim. She saw the appellant run away and saw the victim disappear inside her residence. The victim quickly reappeared with a knife in her hand. Ms. Archibald then saw the blood all over the victim’s blouse and ran to assist her. The victim exclaimed, “That bitch has cut me.”

On cross-examination Ms. Archibald admitted that she could not say for certain when the victim was stabbed, but did see the appellant “whop” the victim in the chest with a closed fist. Ms. Archibald further stated that the victim did not have a knife Until after the appellant had disappeared, that the victim did not have a knife when the appellant stabbed her.

Pelma Smith lived in the adjoining residence in the same duplex as the victim. He arrived home during the middle of the argument between the appellant and the victim. He testified that the appellant was the aggressor in the argument while the victim was trying to stop it. He witnessed the appellant reach in her purse as she approached the victim. He saw her “cup” a knife in her hand with the blade concealed on the underside of her arm. When the victim, at appellant’s insistence, would not insult appellant’s mother, the appellant stepped forward and stabbed her in the chest.

According to Smith, the victim was unarmed when the appellant stabbed her. Immediately after the stabbing, the appellant ran off the porch and stated “I told you I’ll [sic] kill you.” The victim went inside. Smith heard the victim in the kitchen and saw her return to her porch with a butcher knife. He also heard her say that the appellant had stabbed her.

On cross-examination Smith stated that he did not warn the victim about appellant’s knife because he was afraid the appellant might have attacked him, too.

Jimmy Little saw the appellant at Sallie B. Hollifield’s house before her argument with the victim. The appellant was upset and mad before she left Hollifield’s house. Little saw the appellant walk over to the victim’s home and start “bamming” on the door. He heard the appellant “cussing” the victim for being too slow in coming to the door. He witnessed part of the argument, and at one point pulled the appellant off the victim’s porch in an attempt to stop it. When his efforts to stop the argument failed, he went back over to, and went inside, Hollifield’s house. Little did not witness the stabbing, but he did hear the victim exclaim that the appellant had stabbed her.

Appellant’s defense at trial was self-defense. She testified that she went to the victim’s residence to purchase some whiskey from the victim. The victim invited her inside, where the victim agreed, initially, to sell her some whiskey. According to the appellant, the victim suddenly changed her mind, began cussing, and told the appellant to leave her home. Before the appellant could leave, Ms. Archibald drew a pistol and began cursing, also. The appellant then told Ms. Archibald that she, the appellant, could “cut” Ms. Archibald before Ms. Archibald could shoot the appellant. At this point, according to the appellant, “Bonnie [the victim] went to go up with her knife ... And that’s when I came down with mine.” The appellant explained, however, that the knife with which she stabbed the victim was a “steak knife” that she, the appellant, picked up off the victim’s night table when Ms. Archibald drew her pistol.

The appellant further explained that, after she stabbed the victim, the victim threatened to kill her, the appellant. Other insulting words were exchanged and the appellant left. The appellant testified that she did not know she had inflicted a fatal wound at that time and did not know that the victim had died until the next afternoon. She stated that when she heard about the victim’s death, and that the police were looking for her, she voluntarily went to the police station and “turned herself in.”

On cross-examination the state asked the appellant about an incident which occurred prior to trial at a preliminary hearing. The appellant denied that she told Calvin Winn that the victim, Ms. Walker, was the second person she had killed and that she was going to kill Ms. Archibald when she, the appellant, got out of jail.

Calvin Winn, a rebuttal witness for the state and Ms. Archibald’s brother-in-law, testified that the appellant did tell him, on the day of her preliminary hearing, that the victim was the second person she had killed and that she intended to kill Ms. Archibald. The appellant then presented, as witnesses, those matrons in charge of the appellant on the day of her preliminary hearing. They testified that, although the appellant was at the courthouse on the day described by Winn, they did not see Winn and did not let the appellant out of their sight. These witnesses doubted that the alleged conversation between Winn and the appellant ever took place.

In support of the capital murder charged, the state presented proof that the appellant had been previously convicted in 1966 of second-degree murder. The state introduced a certified copy of a judgment entry of the conviction and presented testimony of the prior victim’s sister, who identified the appellant as the person convicted in 1966 for the murder of her brother, An.drew Hughes.

The appellant objected at trial and argues on appeal that her 1966 conviction was not a valid conviction because she was not informed, at that time, by counsel or the trial court, that she had a right to appeal the conviction. This issue has been decided against the appellant in a recent proceeding on her petition for writ of error coram nobis seeking relief from the 1966 conviction, and has been affirmed by us on appeal. See, Jackson v. State, 446 So.2d 691 (Ala.Cr.App.1983). The trial court’s findings at the hearing of the petition for writ of error coram nobis are set out in detail in Jackson v. State, supra. As explained, therein, faced in 1966 with a capital charge of first-degree murder and in order to avoid a possible death sentence, the appellant made an agreement to accept a sentence of twelve years’ imprisonment in exchange for what was, in effect, a plea of guilty to second-degree murder. The trial court concluded that all parties, including the appellant, herself, agreed to the negotiated “settlement” reached in the 1966 case. The trial court found that appellant’s testimony at the coram nobis hearing, that she did not agree with the “settlement” in 1966 and that no one informed her of her right to appeal, was not credible in light of other evidence. The trial court further concluded that the appellant was adequately represented by counsel in the 1966 case, that her best interests were properly considered.

The validity of the 1966 conviction was, therefore, upheld by the “coram no-bis” trial court. On appeal we affirmed the trial court’s conclusion that the 1966 conviction was valid. See, Jackson v. State, supra. The appellant has presented nothing further on this appeal, and we have found no evidence in the record, to convince us otherwise. The prior conviction was properly proven at the trial below, and, in fact, was admitted by the appellant on cross-examination.

The state’s evidence, proof of the 1966 murder conviction and the testimony from the three eyewitnesses to the incident, was sufficient to support the jury’s verdict convicting this appellant of capital murder. Her conviction is, therefore, affirmed.

The appellant contends, for the record, that the Alabama Supreme Court’s “rewrite” of the Alabama death penalty statute in Beck v. State, 396 So.2d 645 (Ala. 1980), was an unconstitutional usurpation of the legislature’s power. However, she concedes, and we agree, that this issue has been decided against her by Clisby v. State, 456 So.2d 86 (Ala.Cr.App.1982), affirmed in part, reversed in part and remanded on other grounds, 456 So.2d 95 (Ala.1983), and its progeny. See, Giles v. State, 445 So.2d 876 (Ala.Cr.App.1984).

The appellant further contends that the death penalty is excessive punishment in her case. She points out that there was only one aggravating circumstance, the § 13A-5-35(2), Code of Alabama 1975, circumstance that “[t]he defendant was previously convicted of another ... felony involving the use or threat of violence to the person,” which happened to be the same aggravation alleged in the indictment. She acknowledges that the trial court found no mitigating circumstances but argues that it should have found, pursuant to § 13A-5-36(1), Code of Alabama 1975, that she had “no significant history of prior criminal activity.” She concludes that-such a finding would have mandated a sentence of life imprisonment without parole instead of death.

Pursuant to the mandate in Beck, supra, we have carefully reviewed the trial court’s thorough “Findings of Fact from the Trial and the Sentence Hearings, and Sentence Order,” and have determined that the evidence fully supports its findings, in particular, those findings concerning aggravating and mitigating circumstances. The only aggravating circumstance was the § 13A-5-35(2) circumstance mentioned above. Contrary to appellant’s assertions, there was no convincing evidence of any mitigating circumstances. The appellant did have a “significant history of prior criminal activity.” In addition to the prior second-degree murder conviction from 1966, the appellant had “one conviction of Assaulting a Police Officer, one conviction of Resisting Arrest, seven convictions for disorderly conduct, one conviction of malicious destruction of property, one conviction of leaving the scene of an accident, and several traffic infractions.” See, Appendix “A”. Although the appellant argued, at trial, that the §§ 13A-5-36(2) and (6), Code of Alabama 1975, circumstances existed, the trial court did not err in concluding that the evidence failed to support these mitigating circumstances. There was, likewise, no error in the trial court’s conclusion that there were no other mitigating circumstances, statutory or otherwise.

Upon further review, we have found no errors adversely affecting appellant’s substantial rights, and have determined that this death sentence was not imposed arbitrarily or capriciously. Appellant’s crime was properly punishable by death, and we cannot say that her death sentence is not in line with punishment imposed in other eases, considering both the nature and circumstances of the offense, and the character and record of the appellant. Appellant’s conviction and death sentence are due to be and are, hereby, affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

IN THE CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA

STATE OF ALABAMA,

VS.

PATRICIA ANN THOMS, alias PATRICIA JACKSON, alias PATRICIA ANNE THOMAS JACKSON, DEFENDANT.

CASE NO. CC-81-865.

FINDINGS OF FACT FROM THE TRIAL AND THE SENTENCE HEARINGS, AND SENTENCE ORDER, AS REQUIRED PURSUANT TO ALA.CODE § 13A-5-33 (SUPP.1978)

The Defendant, Patricia Ann Thomas, alias, was indicted, tried, and convicted of Murder in the First Degree committed by a Defendant who has been convicted of Murder in the Second Degree in the 20 years preceding the crime, a capital offense. Ala. Code § 13A-5-31(a)(13) (Supp.1978). The trial was held pursuant to the procedures required by the Alabama Code and Beck v. State, 396 So.2d 645 (Ala.1981) [opinion on remand, after rehearing]. After the first stage, guilt-innocence portion of the trial, the jury found the Defendant guilty as charged in the indictment. After the second stage, sentence portion of the trial, the jury fixed the punishment at death. Thereupon, the Court ordered a presentence investigation and report, and set the third stage, non-jury sentencing hearing for December 23, 1981, at 9:00 A.M. Prior to said hearing the Court, the State, and the Defense, were each supplied with a copy of the presentence report. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Although both the State and the Defense were offered the opportunity to present evidence in the second and third stage sentence hearings, the case was submitted on the evidence heard in the first stage, and the sentence hearings consisted entirely of arguments of counsel, and the presentence report.

The jury having returned a verdict fixing punishment at death, and the Court having held the third stage hearing mandated by Beck v. State, supra, the Court must weigh the aggravating and mitigating circumstances to determine whether to refuse to accept the death penalty as fixed by the jury or to sentence the Defendant to death. Ala. Code § 13A-5-33 (Supp.1978). See also Kyzer v. State, 399 So.2d 330, 338 (Ala.1981):

“The whole purpose of [the procedure for a sentence hearing before the judge] is to allow for judicial review of a sentence of death fixed by the jury. By providing for a sentencing hearing and by requiring the trial judge to find at least one aggravating circumstance, the legislature obviously intended to give the trial judge authority to review the finding of the jury and the fixation of punishment at death by the jury to check any arbitrary or capricious exercise of the power of the jury in fixing the penalty.” [emphasis in original].

After weighing the aggravating and mitigating circumstances, the Court is unable to find sufficient reason to refuse to accept the death penalty as fixed by the jury, and accordingly accepts the jury verdict and sentences the Defendant Patricia Ann Thomas, alias, to death. Ala. Code § 13A-5-33 (Supp.1978).

The Court finds beyond a reasonable doubt from the evidence presented that the Defendant Patricia Ann Thomas, alias, did in fact commit the offense of Murder in the First Degree by unlawfully and with malice aforethought killing Bonnie Walker by stabbing her with a knife, and further that within the 20 years preceding the crime, to-wit, November 9, 1966, the Defendant had been convicted of Murder in the Second Degree, as charged in the indictment. The Court further finds beyond a reasonable doubt that at the time of the crime of Murder in the First Degree charged in the indictment, the Defendant previously had been convicted of a felony involving the use or threat of violence to the person, namely Murder in the Second Degree on, to-wit: November 9, 1966. Ala. Code § 13A-5-35(2) (Supp.1978).

The evidence is sufficiently clear to lead to a well-guarded and dispassionate judgment beyond a reasonable doubt that the Defendant Patricia Ann Thomas, alias, committed the murder charged by stabbing the deceased, Bonnie Walker, with a knife at a time when the deceased was unarmed.

The Court has undertaken a review of the aggravating and mitigating circumstances, and finds as follows:

Aggravating Circumstances: The State did not attempt to raise any of the statutory aggravating circumstances set forth in Ala. Code § 13A-5-35(l)-(8) (Supp.1978), except for number (2): “The Defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person.” That aggravating circumstance, as previously mentioned, was proven beyond a reasonable doubt before both the jury and the trial judge. The Court finds that aggravating circumstance exists and, as did the jury, further finds it sufficient to support the sentence of death.

Mitigating Circumstances: The Court will discuss each mitigating circumstance defined by law, proffered by the defense, or supported by the evidence.

Statutory mitigating circumstances are set forth in Ala. Code § 13A-5-36(l)-(7) (Supp.1978). They are:

1. “The defendant has no significant history of prior criminal activity.” This defendant does have a history of prior criminal activity, and it is significant. The defendant was convicted of Murder in the Second Degree in Case No. 9760-A on November 9, 1966, and sentenced to twelve years imprisonment. The defendant has one conviction of Assaulting a Police Officer, one conviction of Resisting Arrest, seven convictions for disorderly conduct, one conviction of malicious destruction of property, one conviction of leaving the scene of an accident, and several traffic infractions. The Court finds that this mitigating circumstance is not present in this case.

2. “The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.” The defense argued this mitigating circumstance was present because under their view of the evidence there were three people arguing, drinking, insulting language being used, and weapons present. The evidence, however, fails to support a finding that the Defendant acted under the influence of extreme mental or emotional disturbance. The victim was unarmed, and the Defendant acted unlawfully and with malice aforethought. The Court finds that this mitigating circumstance is not present in this case.

3-5. “The victim was a participant in the defendant’s conduct or consented to the act;” and “The Defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor;” and “The defendant acted under extreme duress or under the substantial domination of another person.” The defense did not argue the presence of any of these three mitigating circumstances, and the evidence fails to support any of the three. The Court finds that none of these three mitigating circumstances is present in this case.

6. “The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” The defense argued that the defendant was an alcoholic, thus potentially raising the issue of this mitigating circumstance. The evidence fails to show that the defendant was impaired in any way. The Court finds that this mitigating circumstance is not present in this case.

7. “The age of the defendant at the time of the crime.” The defendant was 33 years of age at the time of the murder charged, and her age does not mitigate against the penalty. The Court finds that this mitigating circumstance is not a factor in this case.

Additionally, the jury was instructed that they could consider any aspect of the defendant’s background or record and any of the circumstances of the capital offense, and any other mitigating circumstance offered or presented by the evidence which mitigates against the death penalty. The Court has searched the record for such circumstances.

The Defendant is a 33-year-old female with a poor reputation for drinking and fighting. There is nothing in her background or record, nor in the circumstances of the murder itself, nor any other mitigating circumstance offered or presented which mitigates against the death penalty set by the jury.

Therefore, the Court finds that the aggravating circumstance that the defendant was previously convicted of a felony involving the use of violence to the person, [§ 13A-5-35(2) ], Murder in the Second Degree exists in this ease and the Court finds it sufficient to support the sentence of death. Ala.Code § 13A-5-33(l) (Supp. 1978). The Court finds no mitigating circumstances present. Ala.Code § 13A-5-33(2) (Supp.1978). Therefore, the Court finds no reason to refuse to accept the death penalty as fixed by the jury. Ala. Code § 13A-5-33 (Supp.1978). The Court finds no arbitrary or capricious exercise of the power of the jury in fixing the penalty. Kyzer v. State, 399 So.2d 330, 338 (Ala.1981). The defense in their closing remarks implied an issue of disparity in sentencing existed, an issue normally addressed to the appellate court’s proportionality review. See Beck v. State, supra, at 664. In deference to counsel argument, the Court merely cites Hubbard v. State, 382 So.2d 577 (Ala.Cr.App.1979), aff’d, 382 So.2d 597 (Ala.1980), the only other case brought in this county pursuant to Ala. Code § 13A-5-31(a)(13) (Supp.1978), which resulted in the death penalty being imposed.

This the 28th day of December, 1981.

s/Joseph A. Colquitt

Joseph A. Colquitt

Circuit Judge

      . The 1966 conviction resulted from another stabbing incident, in which Andrew Hughes was killed.

      . See Appendix "A".


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex parte Patricia Ann Thomas JACKSON. (In re: Patricia Ann Thomas Jackson v. State of Alabama).
    83-655.
    Supreme Court of Alabama.
    Sept. 7, 1984.
    Rehearing Denied Nov. 9, 1984.

      Joel L. Sogol and Ralph C. Burroughs, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., and Edward Carnes, Asst. Atty. Gen., for respondent.
   JONES, Justice.

Having considered the record, together with the briefs and arguments of counsel, this Court has concluded that the judgment of the Court of Criminal Appeals' must be affirmed. It is so ordered.

AFFIRMED.

All the Justices concur.


author: TAYLOR, Judge.

text:
    Cameron LEONARD v. STATE.
    7 Div. 193.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Quashed Nov. 21, 1984 Alabama Supreme Court 83-312.

      David Cromwell Johnson and Daniel J. Burnick of Tipler, Johnson, Roden, Hayes & Cory, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Appellant, 17-year-old Cameron Leonard, was tried as a youthful offender for a violation of the Youthful Offender Act. The underlying offense was conspiracy to commit robbery in the first degree. She was found guilty and sentenced to 3 years in the custody of the Alabama Department of Corrections. Her motion for new trial having been denied, she brings this appeal.

Cameron Leonard, the state’s evidence tended to indicate, conspired with two boys, Bobby Hubbard and Eddie Shropshire, to rob her father, Judge Kyser Leonard, at his home.

I

The appellant first contends that there was insufficient corroboration independent of a statement of a co-conspirator to convict her under the evidentiary rule of § 12-21-222, Code of Alabama 1975, which states that:

“A conviction of a felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

The means for analyzing the evidence to determine if there is sufficient evidence to corroborate testimony of an accomplice is to set aside the accomplice’s testimony and determine whether or not the remaining evidence tends to connect the defendant with the commission of the offense. Peoples v. State, 418 So.2d 935 (Ala.Cr.App.1982); Bates v. State, 461 So.2d 1 (Ala.Cr.App.1983).

In this case, Mrs. Mazie Jenkins, Bobby Hubbard’s grandmother, testified that the appellant telephoned to her house at approximately 6:00 a.m. the Tuesday before Thanksgiving, which was the morning of the robbery. She said that Miss Leonard came to her house about 6:30 that morning. She said that appellant and Bobby Hubbard called Eddie Shropshire from her house and that Shropshire came there. Then the three of them left together. The robbery occurred about 8:00 a.m. that morning, as Judge Kyser Leonard had returned to and was entering his residence. After the robbery, Mrs. Carolyn Hill observed 74-year-old Judge Kyser Leonard staggering down his driveway, his face and head covered with blood, waving his arms. She stopped, attempted to help him and then called the police department.

The police officers went to the Talladega Academy, a private school, to tell Miss Leonard what had happened to her father and also to get her to check the house to see what was missing. They wanted to find out from her if she knew anything that would shed any light on what had happened. After they talked with her, she was taken back to her school and then she proceeded to the hospital where her father was in the intensive care unit as a result of his injuries sustained in the robbery. The officers testified that Miss Leonard, the appellant, was at no time in custody nor was she a suspect in the case. She told the police officers the following:

“I got home from school about 3:00. Daddy was there. I left, went shopping for a little while, and went back home. Daddy had left while I was gone. About 4:30 or 5:00 Bobby and Eddie came over. We sat around the house for a while and left. I guess around 5:30. We went to Wal-Mart, left there and went riding around and went to Debra’s. Didn’t stay long there. We left Debra’s and took Eddie and Bobby home. Then I went home. There was no one at the house when I got there or when I left this morning. I left this morning about 7:00, went to Hardee’s and got a coke, and then went on to school. I don’t know who brought them there, maybe Debra.”

The appellant signed this statement.

This evidence shows the appellant was at the scene of the robbery, her home. She slept there the preceding night; she was with the robbers on the same day as the robbery and within an hour and a half of the occurrence. Appellant’s statement shows her to have been in their company the night before. It shows her to have attempted to conceal being with the robbers on the morning of the robbery and being at the home of one of them, calling the other one of them and having him join them, and leaving in a car with them. The statement also includes a sentence that was made apropos of nothing: “I don’t know who brought them there, maybe Debra.”

There were numerous items of evidence independent of the statements of the co-conspirators tending to connect the appellant with the commission of the crime.

II

Appellant next contends that the statement of witness Mazie Jenkins that her grandson told her Cameron Leonard was the person who called him at 6:00 a.m. on the morning of the robbery, was inadmissible hearsay. However, as this court has stated, “any act or statement by an accused’s co-conspirator in the commission of the crime, done or made before the commission of the crime, during the existence of the conspiracy, and in furtherance of a plan or design, is admissible against the accused.” Nance v. State, 424 So.2d 1358 (Ala.Cr.App.1982), cert. denied [Ms. 82-126] (Ala.1983).

The court, sitting without a jury, admitted this evidence, stating: “I’m going to let the testimony in subject to a proper tie-up during this proceeding.” A “proper tie-up” was indeed made later in the trial. No error was committed by this procedure.

Ill

Appellant next asserts that the statement given by her while she was in police custody occurred during a custodial interrogation and was made in violation of her constitutional rights as enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

We do not see that the focus of the investigation had centered on the appellant at this time; this is a key factor in determining whether the Miranda rules must be applied. See Kelley v. State, 366 So.2d 1145 (Ala.Cr.App.1979), Harris v. State, 376 So.2d 773 (Ala.Cr.App.), cert. denied, 376 So.2d 778 (Ala.1979).

The law enforcement authorities had no responsibility at this stage in the investigation to advise appellant of her constitutional rights.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: PATTERSON, Judge.

text:
    Darrel Ray ARTHERS v. STATE.
    1 Div. 665.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    As Corrected on Denial of Rehearing Aug. 14, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1341.

      M.A. Marsal and George L. Simons, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

A Mobile County Circuit Court jury found the appellant, Darrel Ray Arthers, guilty of the murder of his ex-wife. He was sentenced to life imprisonment.

Arthers contends that reversible error was committed when the trial court admitted certain hospital records into evidence as State’s Exhibit 25. Those records concerned events that occurred the night before the murder when both the deceased and appellant apparently attempted to commit suicide by drug overdose. The specific portion of those records to which appellant objects is a handwritten notation on an emergency room record concerning appellant that reads as follows: “despondant [sic] — stated that he would kill his wife if she didn’t take the pills.”

Appellant claims that that emergency room notation was inadmissible hearsay, since the person who made the notation was not available in court for confrontation and cross-examination.

After careful consideration, we find that the portion of the hospital record in question was indeed inadmissible under the particular circumstances of this case.

Section 12-21-5, Code of Alabama 1975, provides for the admissibility of certain hospital records. That statute reads as follows:

“When the original would be admissible in any case or proceeding in a court in the state, a certified copy of the hospital records of any hospital organized or operated under or pursuant to the laws of Alabama, including records of admission, medical, hospital, occupational, disease, injury and disability histories, temperature and other charts, X rays and written interpretations thereof, pictures, photographs, files, written orders, directions, findings and reports and interpretations of physicians, doctors, surgeons, pathologists, radiologists, specialists, dentists, technicians and nurses, as well as of all employees of such hospital, forming a part of such hospital records as to the health, condition, state, injuries, sickness, disease, mental, physical and nervous disorders, duration and character of disabilities, diagnosis, prognosis, progress, wounds, cuts, contusions, lacerations, breaks, loss of blood, incisions, operations, injuries, examinations, tests, transfusions, hospitalization and duration thereof, medication, medicines, supplies, treatment and care and the cost, expenses, fees and charges therefor and thereof, a part of, or shown on or in, said hospital records of any patient in said hospital, when certified and affirmed by the custodian of said hospital records as provided in section 12-21-7, shall be admissible in evidence, without further proof in any court in the state where admissible, if and when said hospital records were made and kept in the usual and regular course of business of said hospital and it was in the regular course of business of said hospital to make and keep said records and that said records were made at the time of such acts, transactions, occurrences or events therein referred to occurred or arose or were made, or within a reasonable time thereafter.” (Acts 1965, 2nd Ex.Sess., No. 77, p. 102, § 1.)

The purpose of this provision is merely to provide a procedure by which properly certified records may be introduced into evidence without the necessity for the presence of the custodian of the record and without production of the original record. See Section 12-21-5, Code of Alabama 1975, and annotations thereto.

This section does not authorize the admission of all hospital records without exception. Whetstone v. State, 407 So.2d 854 (Ala.Crim.App.1981). The rules of evidence apply to the contents of any record qualified under this statute and the accused may object to any portion of records admitted under this code section. Whetstone, supra. (For a related discussion see the annotation at 69 A.L.R.3d 22 (1976). It is true that “a statement by the accused, before the time of the alleged criminal act, asserting a design or emotion in him which points to his guilt is admissible against him as an admission.” C. Gamble, McElroy’s Alabama Evidence, § 264.-01 (3d ed. 1977). However, as this court has previously pointed out, an exceptional circumstance may exist where the contents of a hospital record are used to prove a material element in a criminal prosecution; in such case there arises a “strong probability” that a defendant may be denied his constitutional right to cross-examine and confront a witness. Lowery v. State, 55 Ala.App. 514, 317 So.2d 365, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975).

A defense theory of the case is that appellant accidentally shot his ex-wife when he stepped up on a chair to remove a gun from a rack and the chair broke.

Certainly a statement made by Arthers that he would kill his wife if she did not take pills would be impossible for the jury to ignore; the statement was extremely relevant to prove intent, a material element under our murder statute. See Ala.Code Section 13A-6-2(a)(l) (1975).

In the case of Gregory v. State, 40 Md. App. 297, 391 A.2d 437 (Md.Ct.Spec.App.1978), the court made the following statement:

“The mere fact that a document is part of a hospital record made in the ordinary course of the hospital’s business, and may therefore be admissible under the hearsay rule, does not ipso facto make its admission comply with the confrontation requirement.”

That court went further and listed a number of questions that might be considered in resolving the question of admissibility of a hospital record in light of the confrontation clause. Those questions included the following:

“What evidence is contained in it? For what purpose is it offered? Does the statement in it relate directly and critically to the defendant’s guilt or innocence, or does it pertain to collateral issues? Is the document primarily testimonial or is it merely the recordation of a fact and easily and reliably proved by the document itself as by live testimony? If testimonial in nature, why is the author of the statements contained in it not in court? Is the information contained in it of a type that one may reasonably suppose its mere recordation in the ordinary course of business lends a sufficient reliability to be acceptable as trustworthy evidence?”

In the instant case, there was no accounting made for the absence of the recorder of the statement, whoever he may have been. The statement was being offered to prove a vital portion of the State’s case and while we realize that other circumstantial evidence presented at trial could have been used to prove intent, the contents of the notation were too damaging to the defense theory of accident to be categorized as harmless. The notation was testimonial in nature, rather than mere recordation of fact, and we must agree with appellant that using such a method to prove intent does not afford him the opportunity to test the contents of the statement or the circumstances under which it was made by questioning the individual who made the notation.

The notation was, of course, multiple hearsay and as such it is “even more vulnerable to all the objections which attach to simply hearsay.” C. Cleary, McCormick on Evidence, § 246 (2d ed. 1972).

In the case of an opinion offered by hospital record,

“no cross-examination is possible. Consequently, there is a tendency somewhat to limit those opinions which can be introduced by this method. The admissibility of ordinary diagnostic findings customarily based on objective data and not usually presenting more than average difficulty of interpretation is usually conceded. On the other end of the continuum, diagnostic opinions which on their face are speculative are reasonably excluded. In the absence of the availability of the declarant for explanation and cross-examination, the probative value of this evidence is outweighed by the danger that it will be abused or mislead the jury .... [I]t would not be unreasonable in borderline cases to permit introduction of the record only if the declarant were produced for cross-examination.” (Emphasis added.) McCormick, supra, § 313.

Certainly an even more stringent standard must be applied where, as in the instant case, a statement is recorded in a hospital record that does not qualify in any way as a diagnostic opinion.

We must conclude that the admission of the hospital record, State’s Exhibit 25, over the objections of the defendant, constituted reversible error, and therefore, the judgment of the lower court is due to be reversed and the cause remanded.

We do not deem it necessary to address the other issue presented by appellant in his brief, as it is unlikely it will arise in a new trial; however, we point out that there is no privilege covering communications between a physician and his patient in this state. Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973); C. Gamble, McElroy’s Alabama Evidence, § 413.01 (3d ed. 1977).

REVERSED AND REMANDED.


author: BOWEN, Presiding Judge.

text:
    Coleman PENNINGTON v. STATE.
    5 Div. 855.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1211.
    Robert S. Milner, Wetumpka, for appellant.
    , Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Pennington was convicted of theft in the first degree and sentenced, under the Habitual Felony Offenders Act, to life imprisonment. This Court affirmed the conviction in Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982).

On January 9, 1984, Pennington petitioned the Elmore Circuit Court for a writ of habeas corpus on the following grounds: denial of effective assistance of counsel; defective indictment; failure to qualify the jury properly; prejudicial pretrial publicity; admission of prejudicial photographs; unconstitutional search and seizure of evidence; insufficiency of evidence. The petition was not verified on oath as required by § 15-21-4, Code of Alabama 1975. Instead, the petition concluded with the following:

“ /s/ Coleman Pennington

Respectfully submitted

“Subscribed and sworn to before me this 1-9-84 January 1984.

“Notary public _”

Pennington then alleged that he had “tried for 8 days to get his writ of complaint notorized. But till this date he still is unable to get it notorized.... There is not but one notary public working for Station Annex.”

The State filed a motion to dismiss the habeas petition, claiming that “[a]n allegation of errors and irregularities in the conduct of a trial or prior to a trial cannot be considered in a Writ of Habeas Corpus.... [and] [a] Writ of Habeas Corpus does not lie to test adequacy of counsel.” The State did not raise the lack of notarized verification, or jurat, as a ground for dismissal of the petition. The trial court granted the State’s motion to dismiss on January 30, 1984.

Although the record does not contain another motion by the petitioner, he undoubtedly filed a “Motion to Reconsider” since the record includes a pleading entitled “[State’s] Motion to Dismiss Motion to Reconsider.” The trial court granted the latter motion February 15, 1984. Then on March 29,1984, Pennington filed a properly verified and notarized affidavit with the circuit court stating:

“I tried numerous times to get my petition notarized before I sent it to the Clerk of the Circuit Court for filing, but I was unable to find a notary. I now solemnly swear that the allegations of said petition are true and correct to the best of my knowledge, information and belief.”

Pennington claims that the failure to have his petition notarized was not fatal to his case since the State’s motion to dismiss did not raise this objection. In O’Such v. State, 423 So.2d 317 (Ala.Cr.App.1982), the petitioner declared “under penalty of perjury” that the allegations of his petition were true, but the jurat and signature of the notary were, similarly, absent. 423 So.2d at 318. One of the State’s grounds for dismissal in O’Such, however, was that the petition was not verified by oath as required in § 15-21-4, Code of Alabama 1975.

Although this Court has affirmed the dismissal of other unverified petitions, see Voudrie v. State, 449 So.2d 1217 (Ala.Cr.App.1984); Barnhill v. State, 439 So.2d 822 (Ala.Cr.App.1983); Barker v. State, 437 So.2d 1375 (Ala.Cr.App.1983); Moore v. State, 417 So.2d 610 (Ala.Cr.App.1982), these opinions have not indicated whether the lack of verification was cited by the State as a basis for dismissal. But see Martin v. State, 449 So.2d 801 (Ala.Cr.App.1984) (where dismissal of petition was warranted because the petition was not properly verified even though “the State’s motion to dismiss failed to allege any grounds which would support the dismissal”). Although we note that the verification requirement for a habeas petition may be waived if not raised by the opposing party, see 39A C.J.S. Habeas Corpus § 168(c) (1976), we need not decide whether the requirement was waived here or whether Pennington’s eventual verification cured the earlier defect, since the petition before us was properly dismissed on grounds other than lack of verification.

Five of the six allegations stated in Pennington’s petition are not cognizable under the writ of habeas corpus. Neither the alleged ineffectiveness of counsel, see Hobson v. State, 425 So.2d 511, 513 (Ala. Cr.App.1982), nor the assertion of trial errors and irregularities, see Fields v. State, 407 So.2d 186 (Ala.Cr.App.1981), which could have been brought up on direct appeal, see LaBryer v. State, 45 Ala.App. 33, 222 So.2d 361, cert. denied, 284 Ala. 732, 222 So.2d 366 (1969), are proper grounds for habeas corpus.

The only assertion which would arguably qualify Pennington for the issuance of the writ is his allegation that the indictment was so defective that it did not charge an offense and, thus, was void. See Barbee v. State, 417 So.2d 611 (Ala.Cr.App.1982). Count I of the indictment reads as follows:

“Coleman Pennington, whose name is unknown to the Grand Jury other than as stated, did knowingly obtain or exert unauthorized control over, to-wit: one Sears calculator, Serial # 547130 and one Hester battery, the property of Houston S. James, and 2 Homelite XL-12 chain saws, one David Winter level, and one air impact wrench, the property of Delta Contractors, Inc., a corporation, a further description of same being unknown to the Grand Jury, of the combined value of, to-wit: $1,200.00, with the intent to deprive the said Houston S. James and Delta Contractors, Inc. of said property, in violation of Section 13A-8-3 of the Code of Alabama.” (Emphasis added.)

Pennington argues that the indictment here, like the indictment in Barbee, was fatally defective because it did not properly charge the criminal intent to deprive the owner of his property. He claims that the italicized portion of the indictment quoted above leads to the conclusion that all the property stolen was the joint property of Houston S. James and Delta Contractors, Inc. when, in fact, only certain items belonged to James and others belonged to Delta.

The conclusion argued for by Pennington, however, is directly refuted by the clear wording of the indictment that the calculator and battery were the property of Houston S. James, while the chain saws, level and wrench belonged to Delta Contractors, Inc. Here, the indictment “allege[d] the ownership of each article, and not just generally that the articles belonged to the several owners.” Melia v. State, 5 Md.App. 354, 247 A.2d 554, 559 (Md.Ct.Spec.App.1968). Thus, Pennington could not have been misled regarding the ownership of the property. See Summers v. State, 348 So.2d 1126, 1132 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978).

The final phrase of the indictment (“with the intent to deprive the said Houston S. James and Delta Contractors, Inc. of said property”) does not describe the owners of the property but specifies the criminal intent with which the goods were taken. This phrase distinguishes the charge from the indictment in Barbee v. State, supra, in which there was no allegation of criminal intent.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Jimmy Howard SELF v. STATE.
    6 Div. 257.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1331 and 83-1343.
    R.B. Jones, Birmingham, and Fred Blan-ton, Fultondale, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   PATTERSON, Judge.

Appellant Jimmy Howard Self was found guilty of trafficking in cocaine, in violation of the Alabama Controlled Substances Act. He was sentenced to fifteen years’ imprisonment without parole and fined $250,000.

The relevant facts show that an informant implicated appellant in the sale of a large quantity of cocaine. When confronted by law enforcement authorities, appellant confessed. The record reveals in detail that a complete and proper Miranda predicate was laid before appellant made his statement. Self indicated that he understood his rights before he waived them, and the testimony is clear that he was in no way induced to make the statement. His waiver and his confession were reduced to writing, and he signed them in the presence of witnesses.

Sergeant Howard Brooks of the United Narcotics Detail Operation, who was present at the time Self made his confession, indicated that he read appellant a copy of the trafficking statutes. Sections 20-2-80 and 20-2-81, Code of Alabama 1975, read as follows:

§ 20-2-80:

“Except as authorized in chapter 2, Title 20:
(1)Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis is guilty of a felony, which felony shall be known as ‘trafficking in cannabis.’ If the quantity of cannabis involved:
a. Is in excess of one kilo or 2.2 pounds, but less than 2,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $25,000.00.
b. Is 2,000 pounds or more, but less than 10,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of five calendar years and to pay a fine of $50,000.00.
c. Is 10,000 pounds or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and to pay a fine of $200,000.00.
(2) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine, described in section 20-2-25(1), is guilty of a felony, which felony shall be known as ‘trafficking in cocain.’ If the quantity involved:
a. Is 28 grams or more, but less than 200 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $50,-000.00.
b. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of five calendar years and to pay a fine of $100,000.00.
c. Is 400 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and to pay a fine of $250,000.00.
(3) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, four grams or more of any morphine, opium, or any salt, isomer, or salt of an isomer thereof, including heroin, as described in section 20-2-23(2) or section 20-2-25-(l)a, or four grams or more of any mixture containing any such substance, is guilty of a felony, which felony shall be known as ‘trafficking in illegal drugs.’ If the quantity involved:
a. Is four grams or more, but less than 14 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $50,-000.00.
b. Is 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 10 calendar years and to pay a fine of $100,000.00.
c. Is 28 grams ore more, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and to pay a fine of $500,000.00.”

§ 20-2-81:

“(a) Notwithstanding the provisions of chapter 22, Title 15, with respect to any person who is found to have violated this article, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed by this article.
(b) The prosecuting attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this article and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance. (Acts 1980, No. 80-587, p. 926.)”

The only issue raised by this appeal is whether the trial court erred when it refused to allow appellant to read the trafficking statutes to the jury during trial. Self claims that this denial abrogated his constitutional right of cross-examination by limiting his inquiry concerning the circumstances surrounding his confession.

We cannot agree. The record is unclear exactly when Sergeant Brooks read appellant the trafficking statutes. However, Brooks’s testimony implies that the statutes were read after the confession was made, as evidenced by this portion of the record:

“Q. The he [appellant] was promised some help if he would cooperate?
“A. After the statement was made.”

Brooks repeatedly testified that no inducement was made to appellant to secure his confession. Since the record lays a proper voluntariness predicate for the admission of Selfs confession, we can find no relevant purpose in reading the Code section in question to the jury. Clearly the references to sentencing contained within the statutes are improper jury considerations, since sentencing lies within the exclusive realm of the trial court. See § 13A-5-1, Code of Alabama 1975.

We must conclude, therefore, that no error was committed by the trial judge, and the judgment of the lower court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Franklin Delano ACOFF v. STATE of Alabama.
    2 Div. 438.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1325.

      Blanchard L. McLeod, Jr., Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Franklin Delano Acoff perfects an appeal from the denial of two petitions by the Circuit Court of Dallas County, Alabama. The petition for writ of error coram nobis, which was denied without a hearing thereon, sought to establish that the petitioner was denied the effective assistance of counsel by his retained attorney at the time of his original trial when he failed to challenge an unlawful search and seizure.

The second petition was one for writ of habeas corpus which sought to raise the issue that the court had imposed an unconstitutional sentence upon him because the law in Alabama at the time of the appellant’s original trial required the jury to fix punishment in capital cases. Based upon this allegation, the trial court denied the habeas corpus petition, but granted the appellant the right to appeal.

The habeas corpus petition was denied after a hearing.

I

With reference to the denial of the petition for writ of error coram nobis which sought to challenge the original conviction based on the alleged statement that appellant’s trial counsel was inadequate because he failed to challenge the search and seizure at the time of appellant’s original trial, one only has to read the original opinion of this court to see the spurious nature of the allegation here made. See Acoff v. State, 50 Ala.App. 206, 278 So.2d 210 (1973). The opinion quotes at length the affidavit and warrant showing the basis of the search and the items seized. This issue was, of course, raised and disposed of on original appeal, based upon the trial counsel’s challenging same at the time of the initial trial. See Acoff, supra.

Inmates filing post-conviction petitions should be careful that such speak the truth. The trial court is not required to conduct a hearing on the basis of mere naked allegations that a constitutional right has been violated when such is not supported by affidavits and other evidence at the time of filing same. Stephens v. State, 420 So.2d 826 (Ala.Crim.App.1982).

II

With reference to the habeas corpus petition which was denied by the circuit court after a héaring thereon, it is clear that the appellant’s contention that the jury should have been allowed to fix punishment was again a matter which was properly handled. The jury had meted out the death penalty in this case. The issue of punishment was raised on appeal by the appellant’s original counsel pursuant to the opinion of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Pursuant to the opinion in Furman v. Georgia, supra, and the Supreme Court of Alabama’s opinion in Hubbard v. State, 290 Ala. 118, 274 So.2d 298 (1973), this court on authority of those opinions vacated the initial judgment and sentence and set punishment at life imprisonment in the penitentiary of the State of Alabama, pursuant to the aforesaid opinions. This court initially reviewed the entire record in this cause, which consisted of six volumes containing 1,077 pages, as was its duty, pursuant to Tit. 15, Sec. 389, Code of Alabama 1940.

It is clear from reviewing the record in this cause that punishment was properly set on the appeal of the appellant’s original conviction.

This appellant, like so many others who routinely aver after conviction and unsuccessful appeal, that trial counsel was “ineffective and inadequate” must remember the words of our Supreme Court in Mills v. State, 275 Ala. 217, 153 So.2d 650 (1963) as follows:

“Conviction of a client does not prove either lack of zeal or skill on the part of counsel.”

See also Williams v. State, 448 So.2d 964 (Ala.Crim.App.1984) and authorities therein cited.

We have carefully examined this record containing the denial of both post-conviction petitions and find that the appellant was provided the effective assistance of counsel at his initial trial and that the trial court in the instant cause properly denied both post-conviction petitions as herein-above stated.

These appeals are due to be and the same are hereby affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge. TYSON, Judge,

text:
    Ned William JOHNSON v. STATE.
    5 Div. 825.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Nov. 21, 1984 Alabama Supreme Court 83-1326.

      J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

On a trial on an indictment charging this appellant with murder, a jury found him guilty of manslaughter, and the court sentenced him to imprisonment for ten years.

In appellee’s brief, there is an acknowledgment that “The Statement of the Pacts as set forth in Appellant’s brief is substantially correct and is adopted herein by reference.” We deem it appropriate to quote the following first two paragraphs of appellant’s brief:

“On December 10, 1982, Ms. Fannie Hoffman was living in Macon County, Alabama, in a trailer. Mr. Bennie Cole, the deceased, came by Fannie’s trailer first when he got off work, then left to go hide his car because he didn’t want anybody to see it, and then returned to the trailer around 10:30 p.m. The couple then began making love. Shortly afterward, the defendant, Ned Johnson, arrived at the trailer. Ned came into the trailer and knocked at the bedroom door. Fannie said she would be a few minutes and Bennie Cole hid in the closet. Fannie took her baby to her Mother’s house which was near the trailer. Fannie heard a shot and then Ned appeared at her Mother’s door and said he had shot Bennie and to call for help. Several people arrived to help Bennie.
“Fannie had been going with Ned for about two (2) years and in response to the State’s question, testified that she ‘had never heard him (Ned) accuse me of going with him (Bennie)’. She testified that when she returned to the trailer Bennie was dead and on the floor. Fannie, the deceased, and the defendant, all grew up in the same neighborhood and were friends. Fannie and Ned had talked about getting married. Ned had left clothes and a jacket at her trailer earlier.”

There was considerable testimony that defendant was disabled, was smaller than the alleged victim, that defendant had a bad leg and a bad back and commenced using crutches a short time before the alleged homicide. Another paragraph of the brief of counsel for appellant states:

“The Defendant, Ned Johnson, testified that he was injured by an automobile and stayed in the hospital three (3) years and did not walk for five (5) years. He drew Social Security for about eleven (11) years. Ned and Cole grew up together, lived within 100 feet of each other, and were best of friends. Ned and Fannie Hoffman were dating and talking about getting married.”

The defendant testified at length on the trial. He said that he and Fannie Hoffman had had a telephone conversation in which it was understood between them that he was to come to Fannie Hoffman’s trailer, park his automobile in front of the trailer and the following occurred, according to his testimony:

“Q. And then what did you do?
“A. First I got out of the car. I went up on the first, on the steps first, knocked on the door. Then I left off the front door, went in the back and opened the back door. The back door.
“Q. What did you do then?
“A. Went up the hall, turned the lights on in the living room.
“Q. Were there any lights on in the trailer?
“A. No, there was no light on in the trailer. I turned the lights on.
“Q. All right. Then what happened?
“A. After I turned those lights on, I only turned one light on, that’s the living room, that reflects enough light down the hallway. I went to the hallway, knocked at Fannie’s door and she said who was it and I told her me and she said, ‘just a minute.’ I went back up, sat on the couch, took her so long I went back down, knocked on the door again. She said, ‘I’ll be out in just a minute. I went back up the hallway, stood up in the hallway. Then she came out the door. She shut her door back, came out the door and went up, went in the hallway and went up, out the back door.
“Q. Did she say anything to you after she left the bedroom?
“A. She just said she was going up to her Mother’s. And, that’s what I thought, she was going up to her Mother’s and she’d be right back.
“Q. And, so she left the trailer out on the back door and went up to her Mother’s house?
“A. That’s right.
“Q. O.K. And what happened next?
“A. What happened after that, I turned the hallway light on. I went in her bedroom, there’s enough light reflecting out of that hallway to show into her bedroom. So, after I went in there I opened the closet and Bennie was in the closet. Bennie jumped out choking me.
“Q. Y’all were moving around?
“A. I was still trying to push him off me.
“Q. All right. Did you know who he was at that time?
“A. The only time I knew it was, I didn’t know who it was at the time but after I got away and stand back from him.
“Q. All right. And then what did you do?
“A. After, I got back he came back at me again just like this. He reached back at me again, that’s when I pulled the trigger, not realizing it, I was pulling the trigger.
“Q. All right. When he grabbed you the first time how did it affect you?
“A. Well, it scared me, it, honest, scared me, really, when he grabbed me it scared me because I didn’t know he was in there.
“Q. All right. Were you hurt in any way?
“A. No more than my neck.
“Q. How was your neck hurt?
“A. That’s when he was holding it, you know, he had, you know, the mug on me. We call it the mug when you are choking.
“Q. Tell these ladies and gentlemen what you mean by the ‘mug.’
“A. That means choking, you know, you got both hands and choking. I didn’t know that you know, talking about mug, just put your hands around.
“Q. All right. Was Bennie choking you?
“A. Yeah, he was choking me, definitely choking me.
“Q. O.K. When this happened did it leave any signs on your neck?
“A. Well, just a little swelling on it, you know, wasn’t no splotches, you know, swelling, you know. That was mostly like, if you get your jaw hit and it rise up, something like that.
“A. Well, after I pulled the trigger, not realizing automatic pistol, and there happened to be one in the chamber and mostly when I shot not even knowing that I was shooting, after I shot him he stood up there with me for a while and I said, ‘Why did you do that?’ And ‘Why you grabbed me like that?’ He said, T was scared.’ I said, ‘Why you scared?’ He said, T was scared because I thought you knew I was in that closet and I was actually scared.’ And I said, ‘Let me take you to the hospital.’ That’s when he said, when he put his arms around me and I carried him out of her bedroom to those doors and that’s when he fell. He said, T can’t help you no more.’
“Q. Now, why did you pull that gun?
“A. Why did I pull it? I pulled it because I thought he was going back to choking me again.
“A. After that, at that particular time that’s when the ambulance and Sheriff’s Department come up. So, I was standing up at that side. My ear at that particular time when they pulled up, so I left after they got there I left.
“Q. Did you have any conversation before you left with anybody?
“A. Yeah, when I told Larry, and I told Joyce that was standing up there that I was going on because I had my work clothes on and I knew I was going to jail so I was going home to, I wanted to go to the jail house looking decent and not with work clothes on. So, I went home and pulled my work clothes off and put some decent clothes on to go to jail in.”

I.

By the first issue presented in appellant’s brief, it is contended that the trial court erred in admitting the written statement of Fannie Hoffman, who is characterized in appellant’s brief as the “primary witness” for the State, in an effort to impeach her as a witness. The particular statement is “State Exhibit — 1” which is in the typed form of “VOLUNTARY STATEMENT” and apparently signed by the same person who has hereinabove been referred to as Fannie Hoffman, but who, in her own handwriting apparently wrote and signed the statement as “Finnie Hoffman.” The statement is as follows:

“I, Finnie Hoffman was visiting my cousin Bennie Cole when Ned Johnson came up, I told him to go in the back room, because he had accuse me of going with him. See he came in and asked me was I going down to the house with him and I said yeah that is when I was in the living room and he walk in the back and ... [a short word that is illegible to the writer hereof] Bennie and I was going up to the house and I heard a shot. He said that Bennie was going out for something and that is when I called the police.”

Several pages of the brief of appellant’s attorney and several pages of appel-lee’s brief are devoted to this issue. Many more pages of the court reporter’s transcript of the proceedings were devoted to the same question, that is, whether State’s Exhibit 1 was admissible as evidence for the State in impeachment of Fannie Hoffman, the first witness called by the State. The attorneys for both parties on appeal deal extensively with the ramifications of the law as to various circumstances of an attempted impeachment by one party of his own witness, which we should discuss and determine whether the particular evidence considered was admissible if such a determination were material to a correct determination of this appeal. It probably would be but for the fact that the verdict of the jury and the judgment rendered thereon constitute an acquittal of the defendant as to murder, and State’s Exhibit 1 could have been harmful to defendant only as to whether defendant was guilty of murder. It was harmless, in our opinion, as to the issue of whether defendant was guilty of manslaughter. The admission in evidence of State’s Exhibit 1 did not constitute error prejudicial to defendant.

II.

During the redirect examination of Deputy Sheriff Wadell Pearson, a witness for the State, the following occurred:

“Q. To your knowledge is there anything wrong with the defendant’s mind?
“MR. WILLIAMS [Defendant’s attorney]: We object ...
“THE COURT: .... Sustained.
“MR. WILLIAMS: Judge, could I approach the bench, one second.
“(The following motion was made at the bench out of the hearing of the jury).
“MR. WILLIAMS: Judge we move for a mistrial, that is a defense that has not been entered in this case and it is prejudicial to my client.
“THE COURT: I’m going to deny your motion for a mistrial.
“(The case then continued in the jury’s hearing.)
“THE COURT: Ladies and gentlemen, I have sustained an objection to a question asked by the District Attorney. Any time I sustain an objection to a question not only should you disregard any answer that might have been given but, in addition, you are to disregard any question that might have been asked.
“MR. WILLIAMS: We take an exception.
“THE COURT: You have your exception, yes sir.
“MR. JONES [Prosecuting attorney]:
“Q. Do you know who turned over this gas heater or chair or when it was turned over ?
“A. No, I do not.
“Q. Who was in the room when it was turned over?
“A. No, I do not know.
“MR. JONES: That’s all.
“RE-CROSS EXAMINATION”

In our opinion, the question to which defendant’s objection was made was improper and the court was not in error in sustaining the defendant’s objection and was not in error in overruling defendant’s motion for a mistrial. We do not believe the State gained anything before the jury by the question. The particular question does not come within the area of incidents that justify the granting of a motion for a mistrial.

III.

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

“THE EVIDENCE DID NOT SUSTAIN A CONVICTION OF MANSLAUGHTER AND THE COURT ERRED IN REFUSING DEFENDANT’S. REQUESTED JURY CHARGES 9, 10, 11, 12 AND 13, WHICH DEALT WITH SELF-DEFENSE.”

The issue is multifaceted. Nevertheless, we consider every facet of the issue.

The evidence was undisputed that the alleged victim was killed by a shot from the pistol in the possession of defendant. A jury issue was clearly presented as to whether defendant caused the death under one of the two alternatives of Alabama Criminal Code § 13A-6-3.

Each of defendant’s requested written charges, 9, 10, 11, 12 and 13, constituted good argument in favor of defendant, but its argumentative nature deprived it of the impartiality that instructions by the court to the jury, as well as all other judicial functions, should possess. The five charges involved composed two and a half pages of the transcript. We quote one of medium length, # 12:

“If the defendant had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm, he would be justified in using force in self-defense, even though it may afterwards have turned out that the appearances were false. If these requirements are met he could use deadly force even though there was in fact no purpose on the part of the other person to kill him or to do him serious bodily harm, and even though there was no actual necessity that deadly force be used in self-defense.”

The argumentative nature of each of such written charges justified its refusal. West’s Alabama Digest, Criminal Law, Key No. 807(1). In addition, we should note that the trial court fully covered in its oral charge the subject of the defense of self-defense interposed by defendant, including any and all applicable principles of law pertaining thereto found in any of defendant’s requested written charges refused by the court that were of material significance to the issue as to defendant’s guilt vel non of murder with which he was expressly charged in the indictment; they were of little, if any, material significance on the issue of whether he was guilty of the offense of which he was convicted, manslaughter, as defined by Alabama Criminal Code, § 13A-6-3. The trial court did not commit error prejudicial to defendant by the refusal of any of the specified written charges requested by defendant.

IV.

By the final issue presented in appellant’s brief, he contends that the trial court erred in “allowing the coroner to testify to the cause of death.” The first paragraph of appellant’s argument on the issue is as follows:

“Coroner Burton’s [Coroner of Macon County] testimony is found from R-88 to R-99. This testimony continues a policy in Macon County of having the Coroner determine and testify to the cause of death. The Defense objected to the Coroner giving his opinion based on his superficial examination, and the objection was sustained. The witness happened to be a licensed mortician, and he was offered as an expert witness, the Defense objected and this was sustained. The position of coroner requires no license or qualification, only to be elected.”

The last paragraph of the argument of appellant’s counsel on the issue is as follows:

“There have been many cases where coroners have made mistakes as to causes of death. There are many bodies being exhumed to later determine causes of death, due to oversights by coroners and morticians. Thus, the court erred in allowing the coroner to testify as to the cause of death.”

It is difficult for us to understand the basis for the presentation of this particular issue, but it would seem that for us to decide it would involve the decision of an immaterial issue between the parties, one that appears to be an academic issue merely, which we deem it appropriate for us to decline to decide. As there was overwhelming and undisputed evidence from qualified witnesses other than the Macon County Coroner that the cause of the victim’s death was the bullet fired from the pistol in the possession of defendant, the trial court committed no error prejudicial to defendant in permitting the introduction of the testimony of said Macon County Coroner to the effect that his examination of the body of the deceased led him to conclude that he had died from a bullet wound to his chest. The most definite evidence on the point by the particular witness was during his cross-examination by defendant’s attorney, as follows:

“Q. So you don’t know if he died of a heart attack or died of a gunshot wound, do you?
“A. He died from the gunshot wound.
“MR. WILLIAMS: I don’t have any other questions, Your Honor.
“MR. JONES: Nothing further, Your Honor.
“THE COURT: You may step down.”

Appellant’s fourth contention for a reversal is without merit.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

TYSON, J., concurs with an opinion.

TYSON, Judge,

concurring.

I concur with the foregoing opinion of this court as prepared by Judge Leigh Clark.

However, I believe it necessary to point out that the Macon County Coroner falls within the category of persons who may give testimony as to the cause of death in homicide cases provided where, as here, the requisite training and experience are established. Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (Ala.Crim.App.1973), and authorities therein reviewed.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    James Edward CLARK v. STATE.
    6 Div. 354.
    Court of Criminal Appeals of Alabama.
    July 31, 1984.
    Dan J. Willingham, Cullman, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The case upon which this appeal is based was commenced by a verified petition filed on August 5, 1983, in the office of the Clerk of the Juvenile Court of Cullman County. The petitioner alleged that James Edward Clark was “delinquent ...” in that he had committed a crime in violation of a specified section of the Code of Alabama. On September 23, 1983, the Juvenile Court of Cullman County rendered an order as follows:

“This cause coming on to be heard, and the above-named child being present in Court with his parents, Martin and Mae Clark, his appointed attorney, Honorable Dan J. Willingham, Assistant District Attorney, Hon. Len Brooks, and Juvenile Officer, Javon Daniel and the Court having first explained the nature of the proceedings to each of them, and having read in open Court the Petition filed, and having heard evidence in this cause and having duly considered the same, and it appearing to the Court that the said child is a delinquent child under the age of 18 years, to-wit, of the age of 17 years, and in need of the care and protection of the Court as alleged in the Petition filed herein; IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that said child is and is hereby declared a Ward of the State; and it further appearing to the Court that it is to the child’s best interest; IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that said child be and is hereby committed to the temporary care and custody of the Department of Youth Services. It is further ordered ... [omitted are a few words in pen and ink that are not legible with certainty to the writer hereof].” ■

On September 27, 1983, the appointed attorney for James Edward Clark filed with the Clerk of the Juvenile Court of Cullman County, a “NOTICE OF APPEAL FROM DISTRICT COURT, JUVENILE DIVISION, TO CIRCUIT COURT AND MOTION FOR STAY OF JUVENILE COURT FOR JUDGMENT PENDING APPEAL FROM THE JUDGMENT OF SAID JUVENILE COURT.”

On October 13, 1983, the Assistant District Attorney of Cullman County filed in the Circuit Court of Cullman County a “MOTION TO DISMISS THE APPEAL,” alleging:

“That Rule 28 of the Alabama Rules of Juvenile Procedure provides in part as follows:
‘Rule 28(C) in cases arising out of the jurisdiction of the juvenile court over a child, appeal from a final order, judgment or decree shall be:
“ ‘(1) To the Court of Criminal Appeals in proceedings in which a child is alleged to be delinquent and in proceedings involving an order transferring a child to the adult court for criminal prosecution.’
“WHEREFORE, the State of Alabama moves that the Court dismiss this appeal in that the Circuit Court of Cullman County lacks jurisdiction to hear the above cited case and that the appeal from the Juvenile Court of Cullman County should be made to the Alabama Court of Criminal Appeals.”

On October 14, 1983, the Circuit Court of Cullman County rendered the following order:

“WHEREAS, the above-styled cause was appealed from the Juvenile Court of Cull-man County on September 27, 1983, from the Order of said Juvenile Court on September 23, 1983, and
“WHEREAS, the proceeding in the Juvenile Court was one involving the delinquency of a child as defined in Section 12-15-120,
“It appears that this Court does not have jurisdiction over this Appeal and that said Appeal should have been taken directly to the Alabama Court of Criminal Appeals.
“Therefore, due to the confusion that exists regarding Rule 28 of the Rules of Juvenile Procedure in Section 12-15-120, Code of Alabama, 1975, and in view of the fact that there was no record of the proceedings made and kept in compliance with Rule 20 of the Rules of Juvenile Procedure and in view of the fact that this Appeal was timely filed,
It is ORDERED and ADJUDGED that this Appeal be transferred by the Clerk of this Court to the Alabama Court of Criminal Appeals for further proceedings.”

By letter dated October 20, 1983, from the Clerk of the Alabama Court of Criminal Appeals, the Clerk of the Cullman County Circuit Court was advised as follows:

“The Court has instructed that this record be returned to you. The conditions of Rule 28(a) [28(A) ], Rules of Juvenile Procedure, have not been met. As a consequence, Rule 28(b) [28(B) ], Rules of Juvenile Procedure, is the controlling rule and this case must be appealed to the Circuit Court of Cullman County.”

On November 17, 1983, the Circuit Court of Cullman County rendered the following order:

“This cause is before the Court on the Notice of Appeal from the District Court, Juvenile Division, of Cullman County, Alabama, and on the Motion of the State to dismiss the said appeal. This Court previously dismissed the appeal on October 14, 1983, and ordered that the appeal be transferred to the Alabama Court of Criminal Appeals. The Clerk of that Court returned the file to this Court, stating that the conditions of Rule 28(a) [28(A) ], Rules of Juvenile Procedure, had not been met and stated further that Rule 28(b) [28(B)] of said Rule would control.
“The facts are that the Defendant, James Edward Clark, is 17 years of age and was by the said Juvenile Court adjudged to be a delinquent child in need of the care and protection of the Court. The said Court further ordered that the child be committed to the temporary care and custody of the State Department of Youth Services.
“All cases that involve a child, within the meaning of Title 12-15-1 of the Code of Alabama, 1975, are appealable to either the Alabama Court of Criminal Appeals or the Alabama Court of Civil Appeals. Cases that involve minors and adults, as defined in Title 12-15-1 of said Code, may appeal to the Circuit Court and have their cases tried de novo. The Defendant herein is neither a minor or an adult within the meaning of said Code Section and the mere fact that a record of the juvenile proceedings was not made pursuant to Rule 20, Rules of Juvenile Procedure, would not confer jurisdiction of this cause upon this Court. This Defendant has no right to demand a jury trial in the Circuit Court and the appeal of such case to the Circuit Court for a trial de novo was not contemplated by Rule 28, Rules of Juvenile Procedure.
“It is, therefore, ORDERED and ADJUDGED that this Appeal be and the same is hereby dismissed and this Court has no jurisdiction in this matter. The taxing of circuit court costs are waived.”

We need not attempt to discuss all of the details and ramifications of Rule 28, Rules of Juvenile Procedure, to pass upon the apparent difference between the parties as to the proper disposition by this Court of this appeal. In appellant’s brief, he makes the following requests:

“1. That the order of the Cullman County Juvenile Court adjudicating James Edward Clark delinquent be reversed and the charge dismissed.
“2. In the alternative, that the order of the circuit court dismissing the appeal of James Clark be reversed, remanding it to the circuit court for a trial de novo.
“3. In the alternative, that the Court of Criminal Appeals consider this as an appeal from the order of the Cullman County Juvenile Court.”

The following is the concluding paragraph of appellee’s brief:

“This presents this Court with two courses of action: (1) affirm the adjudication of delinquency on the theory that the Appellant has failed to bring to this Court a record showing error; Robinson v. State, [444 So.2d 884] S.C. No. 82-141 (Ms. released September 23, 1983), Tyus v. State, 347 So.2d 1377 (Ala.Cr.App. [1977] 1979), or (2) remand the case to the Juvenile Court ordering a new hearing which would comply with Rule 20.”

We are given no explanation for the apparent failure of the juvenile court to comply with Rule 20(A) of the Rules of Juvenile Procedure, which states: “A complete record of all testimony shall be kept by stenographic reporting, by mechanical or electronic device, or by some combination thereof.”

The governing statutory law as to appeals from judgments of the juvenile court is found in Code of Alabama 1975, § 12-15-120, which provides in pertinent part:

“(a) An aggrieved party, including the state or any subdivision of the state, except in criminal cases, delinquency cases and in need of supervision cases, may appeal from a final order, judgment or decree of the juvenile court to the circuit court by filing written notice of appeal within 14 days after the entry of the order, judgment or decree. All appeals under this chapter shall take precedence over all other business of the court to which the appeal is taken.
“(b) Upon appeal, the circuit court shall try the case de novo and shall proceed to render such judgment as is otherwise provided for by law in such cases.
“(e) When a case has been transferred to the circuit court docket in the first instance as provided in section 12-15-3, an appeal shall lie therefrom in conformance with procedures promulgated by the Supreme Court.”

According to Annotations of § 12-15-120 of Code of Alabama 1975 (1983 Cum.Supp.), Section 12-15-120 has been superseded by A.R.J.P., Rule 28. The Annotations state:

“Before March 1, 1982, appeals from juvenile court went to the circuit court and the time for appeal was 14 days from the entry of judgment and the proceedings were de novo ... Juvenile proceedings were not recorded, therefore the trial de novo was necessary so that a record of the evidence should be prepared for an appeal to an appellate forum. The supreme court amended these rules in two instances. The results were A.R.J.P., Rules 20 and 28 which became effective on March 1, 1982. Rule 20 requires each juvenile proceeding to be recorded so that a record of the proceedings can be made for appeal. This makes it necessary to first appeal to the circuit court for a trial de novo as was done. Rule 28 concerns appeals from juvenile courts to the appropriate appellate court. Appeal is taken to the appellate court from cases arising out of the jurisdiction of the juvenile court over a child and notice of appeal must be filed within fourteen days after the entry of the order, judgment or decree.
“The court of civil appeals construed the impact of Rule 28, taken in connection with Rule 20, as completely altering the appellate route of juvenile court adjudications and determined that Rule 28, A.R. J.P., supersedes this section. Rule 28, A.R.J.P. now governs appellate procedure from juvenile court. Wright v. Montgomery County, Dep’t of Pensions and Sec., 423 So.2d 256 (Ala.Civ.App.1982).”

Whatever the appropriate court to which the appeal from the juvenile court should have been taken, an appeal to the Alabama Court of Criminal Appeals would have been valueless in the absence of a transcript of the proceedings in the juvenile court or some agreed upon statement of the facts or an adequate stipulation of the parties. The Court of Criminal Appeals, an appellate court, cannot grant him a trial de novo, which is the prerogative of a trial court only. The case should be remanded to the trial court with directions that said court reinstate the appeal of the case from the juvenile court and proceed, after due notice to all concerned, with a trial de novo of the case.

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

REMANDED WITH DIRECTIONS.

All the Judges concur.


text:
    Robert Thomas McMILLER, alias v. STATE.
    6 Div. 505.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Robert Thomas McMiller, pro se.
    No briefs filed by appellee.
   PATTERSON, Judge.

Robert Thomas McMiller appeals the circuit court’s summary denial of his pro se petition for writ of error coram nobis. The petition contains the allegation, among others, that his counsel was ineffective for misrepresenting the penal consequences of being found guilty by a jury. More specifically, McMiller alleged that he was informed by his attorney that, if tried by a jury and convicted, he would receive a sentence of life without parole, whereas the maximum séntence which he could actually have received was imprisonment for life or for any term of not less than 99 years. For aught that appears in the record, this allegation is unrefuted. Therefore, the petition is meritorious on its face and the petitioner should have been afforded a hearing on the merits. Watson v. State, 451 So.2d 378 (Ala.Crim.App.1984); Ellison v. State, 406 So.2d 439 (Ala.Crim.App.1981).

This cause is remanded with instructions that McMiller be given an evidentiary hearing on the matters set forth in his petition.

REMANDED WITH DIRECTIONS.

All Judges concur.


text:
    Brenda Ann McCANTS v. STATE.
    1 Div. 840.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.

      Karen A. Zokoff of Gudac & Zokoff, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Brenda McCants was charged and convicted for the possession of marijuana for personal use. Alabama Code 1975, § 20-2-70(a). Sentence was one year’s imprisonment in the county jail. The only issue raised on appeal concerns the legality of the search of her purse and the seizure of the marijuana.

On September 22, 1983, Mobile Detective Jack Dove investigated the theft of $300 from Jerry’s Delicatessen in Mobile. The owner reported that he had seen McCants and Deborah Hendrix go up the stairs to his office where he had left $300 on his desk. Immediately after the women returned, the owner discovered that his money was missing. The owner told the Detective that no one else had access to his office and the stairs were the only way to get there.

At this time, Dove knew that both women were prisoners of the Alabama Board of Corrections serving in the Supervised Intensive Restitution Program (S.I.R.). McCants had been transferred from Tutwil-ler Prison to Mobile to participate in the program. She worked at the municipal auditorium during the day and stayed with her mother at night.

After learning that the delicatessen owner wanted to sign warrants for the arrest of McCants and Hendrix, who was also on S.I.R., Detective Dove contacted a director of the S.I.R. program in Mobile to have the two women brought to police headquarters for questioning.

McCants denied any knowledge of the theft. After the interrogation, Dove contacted the Board of Corrections, who requested that McCants be held in the city jail.

Dove “booked” McCants on a hold for the State Penitentiary System. As part of the booking process, he conducted an inventory search of her purse and discovered five partially burned marijuana cigarettes.

Detective Dove testified that he wanted to interview Ms. Hendrix before charging anyone or letting the owner sign a warrant.

Dove stated that he held McCants on “a verbal order from a man in the Penitentiary System to detain her in jail” and booked her on “a hold for the State Penitentiary.”

McCants testified that Detective Dove interrogated her and initially told her that he knew that Hendrix actually took the money but that she knew something about it and if she would tell the truth she would not go back to Tutwiller. When McCants denied having any knowledge of the theft, Dove told her that she was lying and that he was going to place her under arrest. During the interrogation and arrest, the “S.I.R. people” were present and “heard the whole thing.”

McCants argues that this search was illegal as it was without a warrant and that there was no probable cause for her arrest.

In Alabama, a law enforcement officer may arrest any person where the officer has “reasonable cause” to believe that a felony has been committed. Alabama Code 1975, § 15-10-3. “Probable cause for arrest without a warrant is something less than proof needed to convict and something more than a raw unsupported suspicion; it is a suspicion or belief of guilt that is ‘wellgrounded’.” Nance v. State, 424 So.2d 1358, 1362 (Ala.Cr.App.1982). “The facts, information and circumstances within the knowledge of the arresting officers need not amount to evidence which would suffice to convict; but the quantum of information which constitutes probable cause — evidence which would warrant a man of reasonable caution in the belief that a felony had been committed — must be measured by the facts of the particular case.” Yeager v. State, 281 Ala. 651, 653, 207 So.2d 125 (1967).

Although Detective Dove’s probable cause for any arrest must have been based on the hearsay information he received from the owner of the delicatessen, this informant was an average citizen who found himself to be the victim of a theft. “The veracity of the ‘citizen-informant’ is easily established, for ‘the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case.’ ” Crawley v. State, 440 So.2d 1148, 1149 (Ala.Cr.App.1983). Moreover, the rigid two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spi-nelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), was abandoned in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in favor of “the totality of the circumstances analysis that traditionally has informed probable cause determinations.” 462 U.S. -, 103 S.Ct. at 2332.

Detective Dove’s testimony that he did not arrest McCants but only detained her in jail on a hold from State Corrections is not determinative of whether or not McCants was actually arrested. United States v. Seay, 432 F.2d 395 (5th Cir.1970), cert. denied, McGee v. United States, 401 U.S. 942, 91 S.Ct. 949, 28 L.Ed.2d 223 (1971). See also Berkemer v. McCarty, — U.S. —, 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984) (“A policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”). Here, it cannot realistically be disputed that when McCants was being booked, she was in fact under arrest. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). “An arrest consists in taking, under real or assumed authority, custody of another person for the purpose of holding or detaining him to answer a criminal charge or civil demand.” Glass v. State, 424 So.2d 687, 689-90 (Ala.Cr.App.1982).

The Attorney General, relying on Hudson v. Palmer, — U.S. —, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), suggests that since McCants was a prisoner on work release she was afforded no protection under the Fourth Amendment against unreason-ablé searches and seizures. That case held that a prison inmate has no reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches and seizures.

We recognize that there is authority holding that prisoners on work release have a lessened expectation of privacy and lawfully may be subjected to searches which, absent their work release status, would be deemed unlawful because of the absence of probable cause. State v. Nunziato, 178 N.J.Super. 216, 428 A.2d 564 (1981); W. LaFave, 3 Search And Seizure § 10.10 (1978). However, that line of authority presents special problems which have not been addressed by either party in this case. See LaFave, supra. Additionally, this theory was never argued to the trial judge. For those reasons, we make no finding that McCants enjoyed a lesser expectation of privacy because of her status as a inmate participating in a work release type program.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.