author: HARRIS, Judge.

text:
    James Daniel WATTS v. STATE.
    1 Div. 440.
    Court of Criminal Appeals of Alabama.
    March 1, 1983.
    Rehearing Denied March 29, 1983.
    Willis W. Holloway, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant was indicted by the Mobile County Grand Jury under a two count indictment for the offenses of trafficking in marijuana and unlawful possession of Methaqualone. Immediately prior to trial, the State orally moved to nolle prósse the original indictment and requested permission to serve a new indictment upon appellant. The State represented, without objection from appellant, that appellant would consent to be tried that day under the new indictment. The court orally ordered that the new indictment be served on the appellant, and the case proceeded to trial without appellant having been arraigned under the new indictment. The jury returned a verdict of guilty as to the count charging appellant with trafficking in marijuana, and the court sentenced appellant to fifteen years’ imprisonment. Appellant does not question the sufficiency of the evidence on appeal.

Mobile Police Officer Larry Mote testified that a deal was made with Willie Watts, appellant’s brother, to set up a drug purchase between appellant and the police undercover agents. The deal was arranged in exchange for the police refraining from prosecuting Willie on certain drug charges. Officer Mote’s duty was to set up surveillance at the pre-arranged location prior to the time the undercover agent was to meet appellant.

On January 1, 1981, Officer Mote, who lay in hiding, observed appellant and his brother drive up to the Texaco Service Station on Moffat Road. The automobile, driven by appellant, was a white Nova with a Mississippi license plate. After filling the vehicle with gasoline, one of the occupants of the vehicle backed it up to the door of the service station office. At that point, a van driven by undercover agent Thomas Calhoun arrived at the service station. Agent Calhoun got out of his vehicle, walked over to the appellant and Willie Watts, and engaged in conversation with them. The appellant then unlocked the trunk of the Nova and Agent Calhoun reached into the trunk as if to examine something. Appellant reclosed the vehicle’s trunk and the three men started to walk into the office. Agent Calhoun then pulled his weapon, the other two men raised their hands, and Officer Mote and other officers on the scene ran to assist Agent Calhoun.

Officer Mote obtained the Nova keys, opened the trunk, examined the contents, and drove the vehicle to his office. There he turned the trunk contents over to the lab technician, Ms. Alilee Pillman.

Ms. Alilee Pillman testified she was a toxicologist and the director of the Mobile Police Department Crime Laboratory. She indicated she received twenty five plastic bags of plant material from Officer Mote on January 1, 1981 at 8:55 p.m. Her analysis of the contents of the twenty-five bags revealed they contained marijuana containing tetrahydrocannabinol, with a total weight of 24.9 pounds. An examination of random samples of 3000 pills also received from Officer Mote indicated they were counterfeit quaalude tablets which, however, did contain the controlled substance, Methaqualone, found in quaalude tablets.

Officer Thomas Calhoun testified he met the appellant at the Texaco Service Station on Moffat Road in Mobile County on January 1, 1981 at 8:00 p.m. pursuant to a pre-arranged drug sale.

When he arrived at the station, Officer Calhoun observed a white Chevrolet Nova backed up to the front door of the station. Appellant unlocked the trunk of the Nova and Officer Calhoun observed a large brown bag which he tore open to reveal numerous ziplock plastic bags of what appeared to be marijuana. He asked appellant where the “ludes,” or quaaludes, were and appellant reached under the left-hand side of the trunk and obtained a paper bag. Officer Calhoun opened that bag and observed ziplock plastic bags filled with white tablets. As Officer Calhoun opened one bag appellant stated, “That one only has 100 in it.”

After examining one of the pills, Calhoun asked appellant if he could get some more, and appellant told him he could get as many as he wanted within twenty-four hours. The pre-arranged drug sale having called for 3000 quaaludes and twenty-six pounds of marijuana, Calhoun asked appellant if those amounts were present and appellant nodded his head in confirmation. Calhoun then stated “Let’s settle up,” and as appellant and Willie Watts walked toward the office, Calhoun pulled his revolver and identified himself.

Appellant testified in his own behalf and stated he was unaware of any pre-arranged drug deal. His purpose in being with his brother the night he was arrested was to assist Willie with an outboard motor which his brother was supposed to be attempting to sell to raise money for his sick baby. He stated he never pulled anything out of the trunk, and never spoke to the officer before -he was placed under arrest. He further stated he was not aware of the presence of the drugs in the Nova, and that he had never seen that vehicle before that day.

Appellant asserts that because he was not arraigned and did not formally plead under the substituted indictment, there should have been no trial on the merits and his conviction must be reversed.

The record reflects the following occurred immediately prior to trial:

“THE COURT: Any motions now?
“MR. HARRISON: Your Honor, we would move to nolle prosse the old indictment. The defendant has been reindict-ed, and we ask for service of a new indictment, and we understand the defendant will consent to be tried under that today.
“THE COURT: Now, the old indictment number is what, now?
“MR. HARRISON: I think it is 81-584.
“THE COURT: Now, wait a minute, I think it is another number.
“MR. HARRISON: 564.
“THE COURT: Yes, it is 81-564, and that’s the one that you move to nolle prosse?
“MR. HARRISON: Yes, sir.
“THE COURT: And at this time you move the Court to allow the service on the defendant of what number?
“MR. HARRISON: Judge, it has not been assigned a number, and won’t be assigned a number until he is served.
“MR. HOLLOWAY: There is a Grand Jury number.
“THE COURT: What is the Grand Jury number?
“MR. HARRISON: Grand Jury No. 159 of June, 1981.
“THE COURT: And you say the charge set out in that new indictment is the same as the charge set out in 81-564?
“MR. HARRISON: Yes, sir.
“THE COURT: Okay, serve that, Mr. Tanner, on the defendant. Now, the number of the case will be CC 82-2257.”

The case proceeded to trial with neither expressed objection nor consent by appellant. Only after the jury had returned its verdict did the appellant question the absence of an arraignment, and point out his failure to plead under the substituted indictment, as follows:

“MR. HOLLOWAY: Judge, you know, this is a case that the new indictment was rushed down here, and we went to trial on it.
“THE COURT: But the charge was the same as in the old indictment, there was just some ...
“MR. HARRISON: Judge, he had been served back in May and made a bond on that. There is nothing surprising to this defendant about this case.
“MR. HOLLOWAY: It is not a surprise in the case, Judge, he’s just never been arraigned on this indictment.
“THE COURT: Well, that indictment was ... I mean, the arraignment was waived by the defense.
“MR. HOLLOWAY: No, sir, Judge. You can’t waive an arraignment. A man has to plead.
“THE COURT: Isn’t there some question to the Court as to whether or not there was necessary, even a new arraignment by virtue of the fact this was a substitute indictment, because the Code does provide where there is a demurrer there need not be a new arraignment. So I think it is very questionable that he need to be arraigned. But the point being, nevertheless, the Court deems it reasonable to make the bond $20,000 to be provided by a good and sufficient surety, pending the Court’s determination as to what sentencing should be imposed after evaluation of this defendant’s record as to whether or not he has got prior convictions or what. Now, I am going to do this: I am going to rush the Probation Department to give me that report, and set it for sentencing for next Wednesday morning. So the defendant will be before the Court next Wednesday morning at 8:30 in the event he makes the bond imposed by the Court.
“MR. HOLLOWAY: But judge, I would like to make this statement on the record at this time. This defendant has never, and I think the record will bear me out, waived arraignment in this case. In fact, there was all this confusion about which indictment was coming in. He never, at any time, waived arraignment in this case, and he has never been called upon to plead to this indictment.
“THE COURT: Do you concede that?
“MR. HARRISON: No, sir. He plead not guilty.
“THE COURT: I think the record will have to stand for that, Mr. Holloway.
“MR. HOLLOWAY: Well, the transcript, Judge, I know the Clerk’s office will automatically put a note on the docket sheet, but I am talking about the transcript and all of our proceedings throughout this case have been on the transcript. I think the Court will agree to that.
“THE COURT: We shall cross that bridge at the appropriate time. Suffice it to be for this time, the Court would impose the additional bond on the defendant, and the sentencing where the motion by the defense to delay sentencing until a presentence report is obtained will be granted, and the report will be returned to this court 8:30 next Wednesday morning.”

We have carefully searched the record on appeal and find no evidence of any arraignment, under either indictment, is present for our review. While the trial judge and prosecutor indicated there may have been a prior arraignment under the original indictment, it is not present in the record. Neither does the record reveal the nature of nor the necessity for the change in the original indictment.

The record, as it appears before us, indicates that appellant was not arraigned under this indictment, did not himself or by counsel enter a plea, and that appellant did not have a plea entered for him by the trial court upon his failure or neglect to plea.

As in Kerr v. State, 416 So.2d 781 (Ala.Cr.App.1982), the court reporter’s case action summary indicates no arraignment date nor date of plea under either indictment. While the verdict, judgment, and sentence are properly reflected, there is no reference to either an arraignment or a plea by, or on behalf of the appellant.

“Because of the absence of any evidence of an ‘arraignment and plea’ or a showing of a satisfactory substitute therefor [see cases cited in Town of Gulf Shores v. Jones, 412 So.2d 1259, 1261 (Ala.Cr.App.1982)], the judgment and sentence of the trial court below must be reversed and this cause must be remanded to the trial court for a new trial_” (Citations omitted). Kerr v. State, 416 So.2d 781, 782 (Ala.Cr.App.1982).

Because reversal is required for the reasons stated above, we pretermit discussion of the other issues raised by appellant. However, we do wish to point out the mandatory nature of the fine required by § 20-2-80, Code of Alabama 1975. Smith v. State, 436 So.2d 1 (Ala.Crim.App.1982).

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte State of Alabama. (Re: James Daniel WATTS v. STATE of Alabama).
    82-676.
    Supreme Court of Alabama.
    Dec. 9, 1983.
    Rehearing Denied May 11, 1984.

      Charles A. Graddick, Atty. Gen., and Gerrilyn Y. Grant, Asst. Atty. Gen., for petitioner.
    Willis W. Holloway, Jr., Mobile, for respondent.
   FAULKNER, Justice.

This case came before us on the State’s petition for writ of certiorari to the Court of Criminal Appeals. We granted the petition.

The facts of this case are set out extensively in the lower court’s opinion, Watts v. State, 460 So.2d 201 (Ala.Cr.App.1983). We, therefore, will give only a summary description of the case here.

Watts was originally indicted and arraigned under a two-count indictment for (1) trafficking in marijuana and (2) unlawful possession of methaqualone. In a pretrial conference on the date of trial, this indictment was nol-prossed with Watts’s consent. A substituted indictment was served on Watts, apparently in the courtroom, but no formal arraignment was had and no plea was entered.

Both sides announced “Ready” and the case proceeded to trial. The jury returned a guilty verdict against Watts for the offense of trafficking in marijuana. He was sentenced to fifteen years’ imprisonment.

Watts appealed to the Court of Criminal Appeals, arguing that his conviction should be reversed because he was never formally arraigned on the substituted indictment. The Court of Criminal Appeals reversed Watts’s conviction on that basis.

The State is now before us seeking to overturn the reversal of Watts’s conviction. The issue to be decided is whether arraignment and plea can be waived by a defendant by failing to object to a lack thereof until after the jury has returned a verdict. We are of the opinion that arraignment and plea can be waived under the circumstances presented by this case.

We have found only one case in Alabama which squarely addresses the issue presented here. The case of Fernandez and White v. State, 7 Ala. 511 (1845), while not recent authority, has not been reversed, overruled, or modified by an Alabama decision to date and, thus, stands as good authority. The facts of Fernandez and White, virtually identical to those of the case at bar, are summarized as follows:

“When the case was called, the solicitor announced, the State was ready for trial, when the prisoners’ counsel answered, that they were also ready; and no objection being made to the jury by either party, the solicitor read to them the indictment in his opening address, and then proceeded with the examination of witnesses, to the termination of the trial, without objection by the prisoners. Upon these facts, the prisoners’ counsel moved to strike from the entry all that part of it, which affirmed, that they had been arraigned and pleaded; but the motion was overruled, and' thereupon the prisoners excepted. Judgment having been pronounced upon the verdict of guilty, a writ of error was prayed and awarded by this Court.”

Id. at 511. On appeal, the defendants asked this court to strike that portion of the judgment entry reciting the arraignment and plea. This court refused, Chief Justice Collier stating:

“It is not indispensable to the regularity of the conviction, that the accused should be formally arraigned. If he is advised of the offense with which he is charged, and is prepared, without hearing the indictment read, to answer it, he may plead. Here, it seems, that the prisoners were in Court, and when the solicitor announced the State ready to proceed with the case, their counsel answered, that they were also ready for trial. This amounts to a recognition, that they were the persons charged in the indictment in the case called, and were prepared to defend themselves against it. This was equivalent to, and in law, a sufficient substitute for an arraignment in due form.”

Id. at 512-13.

Our research indicates that the holding in Fernandez and White is in accord with principles of due process enunciated by the United States Supreme Court.

That Court, in Garland v. Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772 (1914), was faced with a situation, similar to ours, in which the defendant was indicted, was arraigned, pleaded, was convicted, appealed, and won a new trial. He was indicted on identical charges in the second trial, but was not arraigned and did not plead. The United States Supreme Court held that the want of formal arraignment did not deprive the accused of any substantial right, and that “technical enforcement of formal rights in criminal procedure ... is no longer required in the prosecution of offenses under present systems of law.” 232 U.S. at 646-47, 34 S.Ct. at 457, 58 L.Ed. at 775. That Court stated:

“Due process'of law ... does not require the State to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution. Rogers v. Peek, 199 U.S. 425, 435 [26 S.Ct. 87, 89, 50 L.Ed. 256] and previous cases in this court there cited.”

232 U.S. at 645, 34 S.Ct. at 457, 58 L.Ed. at 775. Alabama authority is in accord with the view that the common law formalities attendant on arraignment and plea are no longer required. See Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973); Boyd v. State, 41 Ala.App. 507,138 So.2d 60 (1962).

Overruling Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 50 L.Ed. 1097 (1896), and quoting from the dissenting opinion in that case, the Garland Court further stated:

“A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, saying nothing as to such an objection, and then for the first time urge it in this court.”

Garland v. Washington, 232 U.S. at 646, 34 S.Ct. at 457, 58 L.Ed. at 775.

Also, in a case with facts almost identical to Garland, the Fifth Circuit Court of Appeals held that where there is no objection made due to lack of arraignment and plea until the record is brought for review, the waiver of formal arraignment is conclusively implied, particularly where there was never an allegation of a desire to change the plea prior to commencement of trial. Thomas v. United States, 455 F.2d 469 (5th Cir.1972).

In the instant case, it is apparent to this court that Watts’s due process rights were not compromised. Watts had notice of the charges against him. The parties tried the case as if Watts had been duly arraigned and had entered a plea of not guilty. Watts was found guilty and has not questioned the sufficiency of the evidence against him. He had every opportunity during the course of trial to object to the fact that there was no formal arraignment.

Based on the above authority, this court finds that Watts’s silence at trial constitutes a waiver of arraignment. Consequently, the decision of the Court of Criminal Appeals is due to be, and it hereby is, reversed, and the cause is remanded to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and ALMON, J., not sitting.


text:
    James Daniel WATTS v. STATE.
    1 Div. 440.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.
   AFTER REMANDMENT

HARRIS, Judge.

The judgment of the Circuit Court of Mobile County is affirmed on authority of Watts v. State, 460 So.2d 204 (Ala.1983).

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Wallace Norrell THOMAS v. STATE.
    1 Div. 442.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.

      Albert C. Hultquist, Homewood, for appellant.
    Charles A. Graddick, Atty. Gen. and John Gibbs and Edward E. Carnes, Asst. Attys. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Robbery or attempts thereof when the victim is intentionally killed; sentence, death by electrocution.

Appellant was indicted for the intentional killing during the course of a robbery of Quenette Shehane. Ala.Code § 13 — 11— 2(a)(2) (1975). On appellant’s motion, venue was transferred to the Mobile Circuit Court. On November 3, 1977, appellant was convicted and subsequently sentenced to death. On the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980), appellant’s conviction was reversed and remanded for a new trial. Thomas v. State, 400 So.2d 435 (Ala.Cr.App.), cert. denied, 400 So.2d 435 (Ala.1981). On May 19, 1981, appellant was again found guilty. The jury, after receiving evidence of aggravating and mitigating circumstances, recommended a sentence of death. Subsequently, the trial court concurred in the jury’s finding and sentenced appellant to death. From that conviction appellant now appeals.

Curtis Eiland, the victim’s uncle, identified her body at Cooper Green Hospital in Birmingham on December 21, 1976.

On December 21, 1976, Jefferson County Deputy Coroner Jack Parker was called to the 3800 block of Fourth Place West in Birmingham. Parker observed the victim lying about nine feet off the roadway in an area used for dumping garbage. There were numerous bruises and scrapes on the body, as well as what appeared to be a gunshot wound to the chest.

Coroner Jay Glass performed the autopsy. Four bullets were removed from the victim, three from the buttocks area, and one from the chest area. Parker received the projectiles from Glass and turned them over to evidence technician David Higgins.

Glass’s external examination revealed six gunshot wounds to the victim. In addition to those noted by Parker, two other wounds were found in the area of the victim’s left elbow.

The victim’s fiance, Ramsey Lane, testified that he last saw his fiancee around 6:30 p.m. on December 20, 1976, at his fraternity house where they were to have dinner. The victim left the fraternity house to go buy some salad dressing and never returned. She drove her automobile, which contained all of her possessions, including a Sears portable black and white television. Lane identified the television and testified that he was with the victim when she bought the set from a local Sears store.

John Andrew Mays, a roommate of Jerry Lee Jones, testified that on December 20, 1976, he overheard Jones, appellant, and Edward Bernard Neal say they were “going out and pick up some young ladies.” Mays remained at the apartment longer than the others and then left to go to his sister’s house. He walked to Graymont Avenue in the direction of Legion Field. As Mays passed a “U-Tote-M” store, he saw a man push a young woman into an automobile. He could not identify the race of either person. However, he did identify the automobile as belonging to Jones.

Edward Lynn; a student at Daniel Payne College and fraternity brother of appellant and Neal, testified that around 9:30 p.m. on December 20, 1976, he received a call from appellant requesting that he pick him up at a convenience store located on the corner of Cherry Avenue and Highway 78 in Birmingham. Lynn drove to the store and saw appellant, Jones, and Neal. He noticed the clothes of Jones and Neal had spots of blood in the chest portion. Appellant’s clothes were not rumpled and had no blood on them. Appellant told Lynn that Jones and Neal had gotten into a fight. Lynn drove the trio to Jones’s apartment.

Hoover police evidence technician L.E. Strickland testified that on December 21, 1976, he was called to a location about three-quarters of a mile from the intersection of Cherry Avenue and Highway 78 to examine the victim’s automobile. He photographed the scene and had the car towed to the city shop where he processed it for evidence. Strickland recovered from the car: (1) two spent .22 caliber shells found near the left front door; (2) one spent .22 caliber shell found on the right front floorboard; (3) one lead bullet recovered from the “hat rack” area of the rear seat; (4) a reddish colored stain removed from the right rear quarter panel; (5) a blue skirt which was found lying partially on the right front floorboard; (6) a piece of seat cover removed from the upper right front seat area; and (7) eleven latent fingerprints. The shells and projectile were turned over to Higgins. The clothes were placed in the trunk of Strickland’s car and removed by evidence technician Leonard Robbins the following day; they were then turned over to the Department of Forensic Sciences. The fingerprints were sealed, identified, and placed in the locked depository at the police identification bureau.

On February 10, 1977, Strickland received a Sears portable twelve-inch black and white television, model number 564.-50100501, serial number 40204630 from Birmingham police officer Bino Barefield.

Evidence technician Leonard Robbins testified that on December 21, 1976, he went to the location where the victim’s body was found and collected seven .22 caliber shells, six spent and one live. He turned them over to Higgins. Robbins collected three pieces of pavement on which reddish stains were found and turned them over to the Department of Forensic Sciences.

Birmingham police officers Jerry McEl-roy and Myran Bradley testified that on January 28, 1977, they saw appellant in possession of a pistol. They arrested appellant and gave the pistol to evidence technician James Rhodes.

David Higgins, Birmingham police senior evidence technician, testified that on January 29, 1977, he received the .22 caliber pistol previously in the custody of evidence technician Rhodes. Higgins test fired the .22 caliber pistol taken from appellant and compared the projectiles and spent shells with those collected by Strickland, Robbins, and himself. He determined that the six casings found by Robbins at the site of the victim’s body and the three casings found by Strickland at the site of the victim’s automobile had all been struck by the same firing pin. He also determined that one of the casings found by Robbins had probably been fired from the gun taken from appellant.

Higgins’s comparisons of the four projectiles removed from the victim’s body revealed that they had been fired from appellant’s pistol. He also determined that the projectile found by Strickland in the victim’s car was fired from the same gun.

Sandra Triplett, a senior fingerprint technician, determined that the right palm print found on the door glass of the victim’s car was appellant’s.

In December 1976, Eugene Maddox was a student at Daniel Payne College and was a fraternity brother of appellant. He was living at home. During the Christmas holidays, appellant visited Maddox at his home and brought a television with him. Maddox identified the victim’s television as being similar to the one brought by appellant. Appellant left the television with Maddox.

When school reconvened, the television was put in a dormitory room that Maddox and appellant shared. After appellant was arrested, he telephoned Maddox and told him to destroy the television. Maddox told Sammy Mulkey, a resident of the same dormitory, about appellant’s telephone call, and Mulkey volunteered to dispose of the television. Maddox left his dormitory room and upon his return, the television was gone. He did not see it again until appellant’s trial. Maddox also identified the gun taken from appellant by Bradley as belonging to appellant.

Sammy Mulkey testified that he took the television from Maddox’s room. He identified the television recovered by Barefield as the set which he had received from Maddox. Mulkey took the television to his parents’ home in Clanton where he kept it for three or four days until contacted by Clanton police officer William Petty. Petty testified that he recovered the television from Mulkey. He subsequently gave the television to Birmingham police officer Barefield.

Frank Speigner, manager of the home entertainment department of the Century Plaza Sears store in Birmingham, testified that on August 30, 1976, the victim had purchased a Sears portable television bearing the same model and serial numbers as previously testified to by Strickland. The set used by appellant and Maddox and recovered from Mulkey by Petty and Bare-field bore the identical numbers.

Lawden Yates, criminologist with the Department of Forensic Sciences, examined evidence submitted to him by Robbins, Strickland, and Higgins. Yates determined that the reddish stains found on the pavement taken from the site of the victim’s body were human blood. He determined that a stain on the piece of seat cover submitted by Strickland was human semen. Yates found the reddish stain removed from the right rear quarter panel of the victim’s car to be blood. He test fired appellant’s pistol and compared the projectiles with those removed from the victim. Yates concluded that the bullets removed from the victim had been fired from the pistol taken from appellant. Examination of the victim’s skirt revealed no defects or unusual features of any type. Other articles of clothing belonging to the victim were found to have blood stains on them.

Yates’s testimony concluded presentation of the State’s case. Appellant moved to exclude the State’s evidence on the basis of its failure to prove a prima facie case. The motion was denied. Appellant then rested his case without presenting any evidence.

I

The Alabama Death Penalty Act is constitutional. Raines v. State, 429 So.2d 1111 (Ala.1982); Beck v. State, supra.

II

Appellant contends that the State failed to prove the element of robbery as required under § 13-ll-2(a)(2). He submits that “no evidence was offered as to how or when the T.V. set came into [his] possession....” Appellant argues that “the murder and underlying robbery must have been committed contemporaneously in that a defendant in the course o/the robbery must have committed the offense of murder.” Thus, he asserts that “it is left to speculation as to how the T.V. set came to be in [his] possession....”

The facts clearly establish that the television was in the victim’s car on December 20 when she left her fiance’s fraternity house to go to the store. It was reasonable for the jury to infer from the facts that the television was not in her car when it was initially found and later examined by Strickland on the morning of December 21. The victim’s body and automobile were found in close proximity to Daniel Payne College. Mays overheard plans being made by appellant, Jones, and Neal to pick up some ladies. He later saw a man forcing a woman into a ear parked at a convenience store located a short distance from the Birmingham-Southern College campus. Mays observed the car leave the store parking lot followed by Jones’s car. A few hours later, the trio was picked up a short distance from the victim’s car and Daniel Payne College by Lynn. Lynn noticed the bloody and rumpled condition of Jones’s and Neal’s clothes. A few days later, appellant left the television with Maddox. Upon returning to school, appellant and Maddox used the television in their dormitory room. Sometime after his arrest, appellant called Maddox and told him to dispose of the television. Appellant’s palm print was found on the victim’s car. When arrested, appellant had in his possession the pistol that was identified at trial as being the murder weapon.

In Clements v. State, 370 So.2d 708, 713 (Ala.Cr.App.1978), rev’d on other grounds, 370 So.2d 723 (Ala.1979), we addressed the same issue adversely to appellant. We stated:

“First, the appellant asserts that there was no evidence presented by the State which established that anything was taken from Mrs. Ford before she died. In Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), the Alabama Supreme Court held that the fact that the victim was dead at the time the property was taken would not militate the crime of robbery if the intervening time between the murder and the taking formed a continuous chain of events. See also Barker v. State, Ala.Cr.App., 344 So.2d 547 (1977). In the instant case the intervening time, if any there be, formed a continuous chain of events.”

See also Beverly v. State, 439 So.2d 758 (Ala.Cr.App.1983).

“While the violence or intimidation must precede or be concomitant with the taking, it is immaterial that the victim is dead when the theft occurs. For purposes of the common-law definition [of robbery], a corpse is a ‘person’ if ‘the taking occurs minutes after the victim is killed.’ ” Whitley v. Commonwealth, 223 Va. 66, 286 S.E.2d 162, 166 (1982). See also O’Pry v. State, 642 S.W.2d 748 (Tex.Cr.App.1981).

Between 6:30 p.m. and 9:30 p.m. on December 20, 1976, appellant and his cohorts robbed and intentionally killed Quenette Shehane. The intervening time, if any, between the killing and robbery was a part of a continuous chain of events. To sustain appellant’s position would be tantamount to granting to would-be robbers a license to kill their victims prior to robbing them in the hope of avoiding prosecution under the capital felony statute.

After a careful review of the State’s evidence, Dolvin v. State, 391 So.2d 133 (Ala.1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), we find it sufficient to establish a prima facie case of robbery when the victim is intentionally killed. It amply supports the' verdict of the jury finding appellant guilty.

Ill

Appellant contends that the trial court erred during the jury sentencing phase by allowing the jury to continue its punishment deliberations when, after about two hours of deliberation, it had not unanimously reached a decision.

Immediately after receiving the jury’s verdict as to appellant’s guilt, the trial court proceeded into the jury sentencing phase of the trial. Upon agreement of both parties, a lunch recess was had with the jury reassembling at 2 p.m. At that point, arguments by the State and counsel for appellant were received. The trial court gave a lengthy instruction to the jury and then sent it to deliberate. Later that afternoon, apparently near the time for the evening recess, the following occurred:

“THE COURT: Ms. Cunningham, does the jury have a report they would like to make to me? Do not tell me how you are split if there is a numerical division in your number.
“MS. CUNNINGHAM: Yes, it is.
“THE COURT: Okay. We have spent the better part of two days trying this case. Witnesses have been brought in and told everything there is to be told about this case. The lawyers have done a fine job in presenting both sides of the case to you. Under the circumstances I’m going to recess you until 8:30 in the morning. Let’s make it 9:00 in the morning. I have a docket to call. And let y’all come back in fresh and try your deliberation again. I feel two hours is too short a time deliberation to call a hung jury.
“THE COURT: Do y’all have any exceptions?
“MR. HULTQUIST: No exceptions.
“MR. BARBER: No exceptions.”

The following morning, appellant moved “that the jury not be allowed to continue with their deliberations” and that he be sentenced under Beck v. State, to life imprisonment without parole. In support thereof, appellant argued that the previous afternoon the jury had stated to the trial court that it could not reach a decision as to a sentence recommendation and, thus, his request was proper under the guidelines of Beck v. State.

The trial court denied appellant’s motion, stating:

“What I intend to do though, is to call the jury in and ask them and instruct them what the law is that if they cannot unanimously agree upon a penalty of death by electrocution, then out of necessity under Beck, the proper verdict for them to return would be life imprisonment without parole.”

The above additional instruction was in accord with a request by appellant. The jury was reassembled with the following transpiring:

“THE COURT: Ladies and gentlemen of the jury, I hope y’all had a pleasant evening and are rested. When I told you I wanted you to deliberate further, I am not trying to force you to get a verdict. There’s one thing I feel like that y’all might not have understood from my previous charge to you and I want to make this clear to you.
“If the jury cannot agree on a unanimous sentence of death as the punishment, the alternative form of, we, the jury, find the punishment life imprisonment without parole would be what you would return. Did y’all understand that previously?
“JUROR: No, sir.
“THE COURT: So, you have two possible forms you may return. One, is the death verdict form I have given you. If you cannot agree on that unanimously, then your verdict would be the life imprisonment without parole.
“Do you have any questions or anything further I might be able to assist you in, in your deliberations at this time? “(Indicating no.)
“THE COURT: Thank you.
“(Jury out for further deliberation.)”

There was nothing coercive in the trial court’s action in having the jury continue its deliberations.

“It is quite clear that under Alabama law a trial judge may urge a jury to resume deliberations and cultivate a spirit of harmony so as to reach a verdict, as long as the court does not suggest which way the verdict should be returned and no duress or coercion is used.” (Citations omitted.) Showers v. State, 407 So.2d 169, 171 (Ala.1981).

See also Galloway v. State, 416 So.2d 1103 (Ala.Cr.App.1982), and Hankins v. State, 25 Ala.App. 504, 150 So. 708, cert. denied, 227 Ala. 454, 150 So. 709 (1933) (where the jury deliberation had continued for over one day before the trial court urged it to reach a verdict).

We find nothing coercive or intimidating about the trial court’s additional instruction to the jury. It was fully within its discretion to have the jury continue its deliberations, especially since the jury had deliberated for only a short period of time prior to the evening recess. To have the jury resume its discussions the next morning in no way forced the jury to recommend death as appellant’s punishment. Contrary to appellant’s assertion at trial, the record does not reflect any statement by the jury that it could not reach a decision as to his punishment. Consequently, we find no merit in appellant’s contention.

IV

Appellant asserts that the trial court improperly considered non-statutory aggravating circumstances in its sentencing hearing. In essence, appellant argues that the findings of fact by the trial court negating the mitigating circumstance enumerated in § 13-11-7(4), Code of Alabama 1975, amounts to an impermissible consideration of a non-statutory aggravating circumstance. Appellant’s contention is factually without merit.

A review of the attached order of the trial court reveals that it carefully considered each aggravating and mitigating circumstance enumerated in §§ 13-11-6, -7. It properly found to exist two aggravating circumstances, that the capital felony was committed while the defendant was engaged in the commission of a robbery, and that the capital felony was especially heinous, atrocious or cruel. § 13-11-6(4), (8). See generally Kyzer v. State, 399 So.2d 330 (Ala.1981); Dunkins v. State, 437 So.2d 1349 (Ala.Cr.App.1983). The trial court found the § 13-11-7(1) mitigating circumstance to exist. In particular, it made specific findings of fact in order to provide for proper appellate review, § 13-11-4, disproving any existence of the § 13-11-7(4) mitigating circumstance. We do not find that the trial court included the facts negating § 13-11-7(4), or relied upon them as a non-statutory aggravating circumstance. See e.g., Whisenhant v. State, [Ms. 1 Div. 333, Nov. 23, 1982] (Ala.Cr.App.1982). The trial court adhered to the safe practice of following the statute in negating the mitigating circumstances and further, under § 13-11-4, listed specific facts to support the negation of § 13-11-7(4). This procedure does no injustice to the substantial rights of appellant and does not constitute error.

y

In accordance with the guidelines of Beck, 396 So.2d 645, 664, we find that appellant’s death sentence: (1) was not imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) the evidence fully supported the trial court’s finding of the statutory aggravating circumstances listed in its written order; and (3) the sentence was not excessive or disproportionate in relation to the penalty imposed in similar cases, considering both the crime and the defendant.

In particular, the instant offense was properly punishable by death. § 13-11-2(a)(2), Code of Alabama 1975. Similar crimes are being punished by death. See Raines, supra; Luke v. State, 444 So.2d 393 (Ala.Cr.App.1983); Womack v. State, 435 So.2d 754 (Ala.Cr.App.1983); Coulter, supra; Bush v. State, 431 So.2d 555 (Ala.Cr.App.1982).

We have compared the sentences received by Neal, Jones, and appellant, and find appellant’s sentence of death appropriate under the facts and circumstances of the instant cause. The facts lead to the reasonable conclusion that appellant was the triggerman of the instant killing. This can be drawn from the facts that: (1) appellant was president of his fraternity of which Neal was a member and Jones had previously been a pledge; (2) appellant’s clothing showed no trace of blood or recent struggle when picked up by Lynn; (3) when arrested, he had the murder weapon in his possession; and (4) the victim’s television was clearly traced to him.

In Williams v. State, 461 So.2d 834 (Ala.Cr.App.1983), this court, in addressing the identical issue, stated:

“While Beck, 396 So.2d at 644, obligates this Court to consider the punishment received by alleged accomplices, it does not require or direct that every defendant implicated in a crime receive the same punishment....
“The one fact that the defendant was the ‘triggerman’ is sufficient to distinguish him from the others for purposes of the death penalty. [State v.] Shaw, [273 S.C. 194], 255 S.E.2d [799] at 804. See also Justus [v. State, 247 Ga. 276], 276 S.E.2d [242] at 245; McClesky [v. State, 245 Ga. 108], 263 S.E.2d [146] at 151....”

In the instant case, the aggravating circumstances “remarkably and exceedingly outweigh the mitigating circumstanc-es_” Dunkins, supra. We therefore concur in and affirm the findings of the jury and the trial court that death is the appropriate sentence. “Indeed, applying the laws of this state and nation to the particular facts of this case, we do not see how any other penalty is justified.” Id.

We have searched the record for error prejudicial to the substantial rights of appellant and have found none. A.R.A.P. 45A. The judgment of the circuit court is hereby affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

STATE OF ALABAMA v. WALLACE NORRELL THOMAS

CASE NO. CC-77-1503

ORDER

The Court, having conducted a hearing pursuant to Title 13-11-6 of the Code of

Alabama to determine whether or not the Court will sentence Wallace Norrell Thomas to death or to life imprisonment without parole, and the Court having considered the evidence presented at the trial and at said sentencing hearing, the Court makes the following findings of fact:

The Court first considers the aggravating circumstances as outlined and described in Title 13-11-6.

(1) The Court finds that the capital offense was committed by Wallace Norrell Thomas while he was committing a robbery wherein the victim was intentionally killed by the Defendant. However, the Defendant, Wallace Norrell Thomas, was not under a sentence of imprisonment at the time;

(2) The Court finds no evidence that Mr. Thomas was previously convicted of another capital offense or another felony involving the use or threat of violence to the person;

(3) The Court finds that there is no evidence that the Defendant did knowingly create a great risk of death to many persons;

(4) The Court finds the capital offense was committed while the Defendant was engaged in the commission of a robbery;

(5) The Court finds the capital offense was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;

(6) The Court finds that the capital offense was not committed for pecuniary gain;

(7) The Court finds the capital offense was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws;

(8) The Court finds the facts to be that the nude body of the victim, Quenette She-hane, was found in a wooded area during an extremely cold period. Her body bore the signs of trauma in that there were numerous abrasions, bruises, scratches and gunshot wounds. It was determined that the victim had been shot with a .22 caliber pistol one time in the chest, three times in the buttocks, and two times in the left elbow. The above mentioned abrasions being found on her chest, abdomen and lower extremities. The victim’s clothes did not have bullet holes in them, indicating that she was nude at the time she was shot. The Court finds that the killing of Quenette Shehane was outrageous and extremely wicked, vile and shockingly evil. The Court finds from the evidence that the victim was abused and tortured prior to her death. It is, therefore, the opinion of this Court that the Capital offense was especially heinous, atrocious or cruel compared to other capital offenses.

The Court finds beyond a reasonable doubt and to a moral certainty that the aggravating circumstances described in Title 13-11-6 and set out hereinabove in sub-paragraphs (4) and (8) apply to the Defendant, Wallace Norrell Thomas, in this case.

The Court now considers the mitigating circumstances as described and set out in Title 13-11-7, Code of Alabama.

(1) The Court finds that Mr. Thomas has no significant history of prior criminal activity;

(2) The Court finds that the capital offense itself was not committed while Mr. Thomas was under the influence of extreme mental or emotional disturbance;

(3) The Court finds that the victim was not a participant in Mr. Thomas’ conduct and did not consent to the act.

(4) The Court finds that the Defendant was a leader as evidenced by his having been President of his college fraternity at the time the capital offense was committed. The Court finds that on January 28, 1977 when Mr. Thomas was arrested while committing another robbery that he had in his possession a .22 caliber pistol, which was determined at a later date to be the pistol from which the bullets removed from the victim’s body had been fired. In addition, the Court further finds that the television which was the item taken during the robbery of the victim was in the actual or constructive possession of the Defendant. Therefore, the Court does not find that the Defendant was an accomplice in the capital offense committed by another person or that his particular participation was relatively minor. In fact, the Court finds the Defendant committed the robbery and the intentional killing;

(5) The Court finds that Mr. Thomas did not act under extreme duress or under the substantial domination of another person;

(6) The Court finds that the capacity of Mr. Thomas to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was not substantially impaired;

(7) The Court finds that Mr. Thomas was twenty-two years of age at the time this capital offense was committed, but the Court finds his age is not a mitigating circumstance.

The Court having considered the statutory mitigating circumstances and, in addition, having listened to and having considered all the non-statutory mitigating circumstances, presented by the Defendant’s attorney, the Court is convinced beyond a reasonable doubt and to a moral certainty and it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances outlined here-inabove by itself and even when considered independently is sufficient to outweigh the mitigating circumstances beyond a reasonable doubt and to a moral certainty to justify fixing the punishment at death. Therefore, it is the judgment of this Court that the death penalty as fixed by the jury should be and is hereby accepted.

It is therefore considered and adjudged by the Court that Wallace Norrell Thomas is guilty of the capital offense charged in the indictment and specifically of intentionally killing Quenette Shehane during the course of a robbery of said Quenette She-hane, deceased.

It is therefore ORDERED, ADJUDGED AND DECREED that you, Wallace Norrell Thomas, suffer death by electrocution at any time before the hour of sunrise on the 7th day of October, 1982, inside the walls of the William C. Holman Unit of the Prison System at Atmore, Alabama, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution.

It is therefore further ORDERED, ADJUDGED AND DECREED by the Court that the Warden of William C. Holman Unit of the Prison System at Atmore, or in the case of his death, disability or absence, his Deputy, or in the event of the death, disability or absence of both the Warden and his Deputy, then the person designated as Administrator by law for such purpose, at any time before the hour of sunrise shall on the 7th day of October, 1982, inside the walls of the William C. Holman Unit of the Prison System at Atmore, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution, cause to pass through the body of the said Wallace Norrell Thomas, a current of electricity of sufficient intensity to cause his death, and the continual application of such current through the body of the said Wallace Norrell Thomas until the said Wallace Norrell Thomas be dead, and may Almighty God have mercy on Your Soul.

ORDERED this 9th day of July, 1982.

s/ Robert L. Byrd, Jr. Robert L. Byrd, Jr.

      . The trial court’s written findings of facts are hereby attached to this opinion as Appendix A.

      . See also Clements v. State, 390 So.2d 1131 (Ala.Cr.App.), cert. denied, 390 So.2d 1136 (Ala.1980).

      .The trial court excluded evidence of felony convictions of appellant obtained after commission of the capital offense. At its sentencing hearing, the trial court could have considered such and, thus, found the aggravating circumstance listed in § 13-11-6(2) to have existed. Coulter v. State, 438 So.2d 336 (Ala.Cr.App.1982).

      . Neal received a sentence of life imprisonment without parole, Neal v. State, 372 So.2d 1331 (Ala.Cr.App.), cert. denied, 372 So.2d 1348 (Ala.1979), and Jones received a sentence of life imprisonment, Jones v. State, CC 77-625 [6 Div. 849, notice of appeal filed, Mar. 4, 1982].

      . See generally, Jones’s confession reported in Neal, 372 So.2d at 1346.


author: EMBRY, Justice.

text:
    Ex parte Wallace Norrell THOMAS. (Re Wallace Norrell Thomas v. State of Alabama).
    83-183.
    Supreme Court of Alabama.
    Aug. 24, 1984.
    Rehearing Denied Nov. 9, 1984.

      Albert C. Hultquist, Homewood, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ed Carnes and John Gibbs, Asst. Attys. Gen., for respondent.
   EMBRY, Justice.

Careful review of the entire record in this case shows that the Court of Criminal Appeals, 460 So.2d 317 (1983), accurately and precisely recited the evidence in its opinion. For that reason, we will only refer to those portions of the evidence necessary to a discussion of the issues for review. Reference to the opinion of the appellate court will provide any details which we need not discuss.

Thomas states the issues for review to be:

“1. Whether the prosecution failed to prove that the underlying offense of robbery was the motive for the murder of the deceased.
“2. Whether the court’s charge to the jury as set out in the record (R 361), in light of the Beck decision, coerced the jury to reach a decision inconsistent with the guidelines set out in Beck.
“3. Whether the due process clause of the United States Constitution was violated in that the Alabama Supreme Court judicially legislated a new offense by its reinstatement of the Beck decision.
“4. Whether aggravating circumstances considered by the judge were not set out by the Code and whether consideration of these aggravating factors violates the Eighth and Fourteenth Amendments to the Constitution of the United States. Henry v. Wainwright, 661 F.2d 56 (58-59) (Fifth Circuit, 1981).
“5. Whether robbery, the aggravating component, was not proved to have occurred by the State’s evidence.
“6. Whether the offense was proved to have been ‘especially heinous, atrocious and cruel’ as an aggravating circumstance.
“7. Whether appellant’s sentence is proportionate when viewed in light of appellant’s two co-defendants’ sentences, i.e. life and life without parole.”

Thomas contends the State failed to prove he robbed Quenette Shehane of a television set. He also argues that to the extent there was evidence of a robbery, the robbery was not sufficiently connected to the killing of Miss Shehane to warrant a capital conviction. Careful review of the entire record demonstrates there was a preponderance of evidence from which the jury could find that Thomas had intentionally killed Miss Shehane in the process of robbing her of a television set.

The evidence shows Miss Shehane left the presence of her fiance, one Ramsey Lane, to go to a store on the evening of 20 December 1976. When she left in her automobile there was a Sears portable television set in the car in her possession. While in a parking lot adjacent to the store she visited, she was forced into her car by Thomas and two accomplices, Jerry Lee Jones and Eddie Barnard, and was driven away. Those two followed in Jones’s car and, later that evening, appellant called a friend to a store near the site where Miss Shehane’s body and car were found and that same friend gave the appellant and his accomplices a ride. Jones’s and Neal’s appearance indicated they had been in a fight and were bloodstained. Appellant did not appear to have been and he was not bloodstained.

Miss Shehane’s body was discovered early the next morning. She had been shot at least six times. When her car was found, the television set was not in it. A few days after the night she was robbed and killed, appellant gave his soon-to-be roommate Miss Shehane’s television set to keep until school reopened. After appellant was arrested, he instructed that same roommate to dispose of the television set. There are two additional facts of importance: appellant had the pistol used to kill Quenette Shehane in his possession when he was arrested; and appellant left a partial palm print on Miss Shehane’s car on the night he robbed and killed her. From all the evidence, but more particularly that stated above, it is clear that Thomas, through force or fear of force, took the victim’s property from her possession with felonious intent. No citation of authority is needed to support the conclusion that the State proved every element of the capital offense as charged in the indictment: robbery when the victim is intentionally killed.

Regarding Thomas’s contention that the trial court’s charge to the jury, in light of Beck v. Alabama, 396 So.2d 645 (Ala.1980) (on remand from the Supreme Court of the United States), coerced the jury to reach a decision inconsistent with the guidelines set out in Beck, supra, we will set out sufficient of that charge and proceedings inci- ' dent to it which demonstrate this contention is without merit:

“(Jury present.)
“THE COURT: Ms. Cunningham, does the jury have a report they would like to make to me? Do not tell me how you are split if there is a numerical division in your number.
“MS. CUNNINGHAM: Yes, it is.
“THE COURT: Okay. We have spent the better part of two days trying this case. Witnesses have been brought in and told everything there is to be told about this case. The lawyers have done a fine job in presenting both sides of the case to you. Under the circumstances I’m going to recess you until 8:30 in the morning. Let’s make it 9:00 in the morning. I have a docket to call. And let y’all come back in fresh and try your deliberation again. I feel two hours is too short a time deliberation to call a hung jury.
“THE COURT: Do y’all have any exceptions?
“MR. HULTQUIST: No exceptions.
“MR. BARBER: No exceptions
“(Recess for evening.)”

Following day:

“(_Jury not present.)
“MR. HULTQUIST: Judge, there is a motion that I would like to make for the record. Based on our discussions yesterday as to what the law provided as to a verdict, I move that the jury not be allowed to continue with their deliberations. And as grounds for that, and I would also move that the defendant be sentenced under the Beck decision to a sentence of life without parole, and as grounds therefor, I would state the following: The Beck decision which set up the guidelines for this proceeding at this point indicates that if the jury states to the Court that they cannot reach a decision, the only alternative left for the Court to do is to sentence the defendant to a term of life without parole.
“In this particular instance, if my recollection serves and the record will reflect that the jury has sent to the Court word, and has come out to the courtroom and has stated that they could not reach a verdict in this case. Under the Beck guidelines, it is my opinion, contention, that at the time the jury has in effect returned its verdict and therefore, the Court has no alternative but to sentence the defendant to a term of life without parole.
“And further for the record, I’d like for it to be noted that the actual deliberations on the guilt determination took the jury approximately an hour and half, and the jury deliberated for a period of two hours, more or less a few minutes, yesterday afternoon before sending word that they could not reach a verdict. Therefore, I would state to the Court that if the jury is allowed to continue or ordered to continue to deliberate at this time, any verdict which they return would be an illegal verdict.
“THE COURT: For the record, I am going to deny your motion. What I intend to do though, is to call the jury in and ask them and instruct them what the law is that if they cannot unanimously agree upon a penalty of death by electrocution, then out of necessity under Beck, the proper verdict for them to return would be life imprisonment without parole.
“MR. HULTQUIST: I think, Your Honor, that further it was made clear by the Court yesterday in its instructions to the jury that if they could not reach a verdict that the Court would have no alternative but to sentence the defendant to a term of life without parole, and under those circumstances, what in effect the Court is saying is we reject your verdict. The jury — we don’t know what goes on in the jury’s mind, and perhaps that is—
“THE COURT: Are you making a motion or—
“MR. HULTQUIST: Well, I’m just continuing my motion. I don’t mean to argue with the Court, but I’m continuing my motion and state further grounds therefore, and we would therefore except to the Court’s ruling.
“THE COURT: I’m going to instruct them if they have gotten to a stage where they cannot agree on the sentence of death by electrocution, then the sentence they should return should be life imprisonment without parole.
“MR. HULTQUIST: Will the Court further instruct them additionally, as it did yesterday, that if they cannot reach a verdict, then the Court will — then the verdict would be one of life without parole imposed by the Court.
“THE COURT: Yes. May I hear from the State on this?
“MR. BARBER: Your Honor, it’s our position that the jury has been instructed as to what they should do and that their indication — or what they should try to do in reaching a verdict — and their indication after an hour and fifty minutes of deliberation yesterday that they had not or could not reach a verdict does not necessitate any further instruction from this Court other than the decision of the Court either to let “them to continue to deliberate or not to continue to deliberate. And if the Court lets them continue to deliberate, then that does not necessitate any further instruction, and if after a period of time passes that the Court feels that the jury is not able to reach a verdict of not guilty — I mean, a verdict of life without parole. It’s simply the duty of the Court to discharge them and the Court to sentence him to a punishment of life without parole.
“THE COURT: Bring them in.
“(Jury present.)
“THE COURT: Ladies and gentlement of the jury, I hope y’all had a pleasant evening and are rested. When I told you I wanted you to deliberate further, I am not trying to force you to get a verdict. There’s one thing I feel like y’all might not have understood from my previous charge to you and I want to make this clear to you.
“If the jury cannot agree on a unanimous sentence of death as the punishment, the alternative form of, we, the jury, find the punishment life imprisonment without parole would be what you would return. Did y’all understand that previously?
“JUROR: No, sir.
“THE COURT: So, you have two possible forms you may return. One, is the death verdict form I have given you. If you cannot agree on that unanimously, then your verdict would be the life imprisonment without parole.
“Do you have any questions or anything further I might be able to assist you in, in your deliberations at this time?
“(Indicating no.)
“THE COURT: Thank you.
“(Jury out for further deliberation.)
“THE COURT: Ms. Cunningham, has the jury reached a verdict?
“MS. CUNNINGHAM: Yes, sir, Your Honor.
“THE COURT: Would you hand the verdict to my deputy.
“THE COURT: Would you read the verdict.
“THE CLERK: We, the Jury, fix the punishment of the defendant, Wallace Norrell Thomas at death. Gloria J. Cunningham, Forewoman.
“THE COURT: Do you wish the jury polled?
“MR. HULTQUIST: Yes, sir.”

The clerk then read the verdict to the jury and asked each juror, by name, if the verdict was his or hers. To that question, each gave an affirmative answer.

The Court of Criminal Appeals correctly found:

“The following morning, appellant moved ‘that the jury not be allowed to continue with their deliberations’ and that he be sentenced under Beck v. State, to life imprisonment without parole. In support thereof, appellant argued that the previous afternoon the jury had stated to the trial court that it could not reach a decision as to a sentence recommendation and, thus, his request was proper under the guidelines of Beck v. State.”

That court also correctly found:

“Contrary to appellant’s assertion at trial, the record does not reflect any statement by the jury that it could not reach a decision as to his [Thomas’s] punish-ment_”

As can be seen, when the trial was resumed the day following jury deliberations of from one to two hours the previous afternoon, the trial court further instructed the jury regarding the verdict to be returned failing unanimous agreement for the death penalty. After resuming deliberations, the jury did, in fact, unanimously agree to fix punishment at death. See above for the proceedings relating to this matter.

There was no occasion, at the time the jury reported an inability to agree after only, at best, two hours’ deliberation, for the trial court to declare a mistrial. As the record reflects, the jury never reported it could not agree on a sentence of death; only that it was initially divided. It would be indeed unusual that twelve individuals brought together and called upon to decide whether Thomas should be executed or spared and confined for life without parole should do so after so short a period of time. It appears more logical to assume that after only two hours of deliberation the inability to return a unanimous verdict condemning Thomas to death reflects how seriously those individuals were performing the sworn duty to weigh the factors to be considered in determining whether Thomas should live or die. Certainly the record reflects no coercion upon the jury to reach the verdict it did; to the contrary, the able and learned trial judge exhibited a completely detached attitude and stated: “When I told you I wanted you to deliberate further, I am not trying to force you to get a verdict.” The record is abundantly clear there was no pressure on the jury with regard to its reaching a unanimous verdict. We, as did the Court of Criminal Appeals, find no merit in Thomas’s contentions in this respect. For a remarkably similar case where the Supreme Court of the United States denied certiorari, see Jones v. State, 381 So.2d 983 (Miss.1980), cert. denied, 449 U.S. 1003, 101 S.Ct. 543, 66 L.Ed.2d 300 (1980). It should be noted that Mississippi also has the rule that upon failure of the jury to unanimously agree to the sentence of death, a sentence of punishment short of death must be imposed. Cf. Jackson v. State, 337 So.2d 1242 (Miss.1976), and Beck v. State, 396 So.2d 645 (Ala.1980) (on remand from the Supreme Court of the United States). Finally, as to the issue relating to the additional instructions given the jury, those instructions were given pursuant to a request by appellant. We also note that fact, as did the Court of Criminal Appeals. If it was error (we opine it was not), then it was invited error concerning which Thomas is barred from asserting. E.g., Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965), Ex parte Winston, 52 Ala. 419 (1875).

Thomas says this court’s decision in Beck v. State, 396 So.2d 645 (Ala.1980), is in violation of the United States Constitution; therefore his retrial under the guidelines in that decision was not constitutionally permissible. These contentions are without merit, as evidenced by decisions of this court exemplified by the cases of Raines v. State, 429 So.2d 1111 (Ala.1982), cert denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983); and Potts v. State, 426 So.2d 896 (Ala.1983).

Issue four for review, as contended by Thomas, is whether consideration of non-statutory aggravating circumstances by the trial court, in determining aggravation and mitigation, violates the Eighth and Fourteenth Amendments to the Constitution of the United States.

After sentencing hearing, the trial court entered the following order:

“The Court, having conducted a hearing pursuant to Title 13-11-6 of the Code of Alabama to determine whether or not the Court will sentence Wallace Norrell Thomas to death or to life imprisonment without parole, and the Court having considered the evidence presented at the trial and at said sentencing hearing, the Court makes the following findings of fact:
“The Court first considers the aggravating circumstances as outlined and described in Title 13-11-6.
“(1) The court finds that the capital offense was committed by Wallace Nor-rell Thomas while he was committing a robbery wherein the victim was intentionally killed by the Defendant. However, the Defendant, Wallace Norrell Thomas, was not under a sentence of imprisonment at the time;
“(2) The Court finds no evidence that Mr. Thomas was previously convicted of another capital offense or another felony involving the use or threat of violence to the person;
“(3) The Court finds that there is no evidence that the Defendant did knowingly create a great risk of death to many persons;
“(4) The court finds the capital offense was committed while the Defendant was engaged in the commission of a robbery;
“(5) The court finds the capital offense was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
“(6) The Court finds that the capital offense was not committed for pecuniary gain;
“(7) The Court finds the capital offense was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws;
“(8) The Court finds the facts to be that the nude body of the victim, Quen-ette Shehane, was found in a wooded area during an extremely cold period. Her body bore the signs of trauma in that there were numerous abrasions, bruises, scratches and gunshot wounds. It was determined that the victim had been shot with a .22 caliber pistol one time in the chest, three times in the buttocks, and two times in the left elbow. The above mentioned abrasions being found on her chest, abdomen and lower extremities. The victim’s clothes did not have bullet holes in them, indicating that she was nude at the time she was shot. The Court finds that the killing of Quen-ette Shehane was outrageous and extremely wicked, vile and shockingly evil. The Court finds from the evidence that the victim was abused and tortured prior to her death. It is, therefore, the opinion of this Court that the Capital offense was especially heinous, atrocious or cruel compared to other capital offenses.
“The Court finds beyond a reasonable doubt and to a moral certainty that the aggravating circumstances described in Title 13-11-6 and set out hereinabove in subparagraphs (4) and (8) apply to the Defendant, Wallace Norrell Thomas, in this case.
“The Court now considers the mitigating circumstances as described and set out in Title 13-11-7, Code of Alabama.
“(1) The Court finds that Mr. Thomas has no significant history of prior criminal activity;
“(2) The Court finds that the capital offense itself was not committed while Mr. Thomas was under the influence of extreme mental or emotional disturbance;
“(3) The Court finds that the victim was not a participant in Mr. Thomas’s conduct and did not consent to the act.
“(4) The Court finds that the Defendant was a leader as evidenced by his having been President of his college fraternity at the time the capital offense was committed. The Court finds that on January 28, 1977 when Mr. Thomas was arrested while committing another robbery that he had in his possession a .22 caliber pistol, which was determined at a later date to be the pistol from which the bullets removed from the victim’s body had been fired. In addition, the Court further finds that the television which was the item taken during the robbery of the victim was in the actual or constructive possession of the Defendant. Therefore, the Court does not find that the Defendant was an accomplice in the capital offense committed by another person or that his particular participation was relatively minor. In fact, the Court finds the Defendant committed the robbery and the intentional killing;
“(5) The Court finds that Mr. Thomas did not act under extreme duress or under the substantial domination of another person;
“(6) The Court finds that the capacity of Mr. Thomas to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was not substantially impaired;
“(7) The Court finds that Mr. Thomas was twenty-two years of age at the time this capital offense was committed, but the Court finds his age is not a mitigating circumstance.
“The Court having considered the statutory mitigating circumstances and, in addition, having listened to and having considered all the non-statutory mitigating circumstances, presented by the Defendant’s attorney, the Court is convinced beyond a reasonable doubt and to a moral certainty and it is the judgment of the Court that the aggravating' circumstances far outweigh the mitigating circumstances outlined herein above by itself and even when considered independently is sufficient to outweigh the mitigating circumstances beyond a reasonable doubt and to a moral certainty to justify fixing the punishment at death. Therefore, it is the judgment of this Court that the death penalty as fixed by the jury should be and is hereby accepted.
“It is therefore considered and adjudged by the Court that Wallace Norrell Thomas is guilty of the capital offense charged in the indictment and specifically of intentionally killing Quenette Shehane during the course of a robbery of said Quenette Shehane, deceased.
“It is therefore ORDERED, ADJUDGED AND DECREED that you, Wallace Norrell Thomas, suffer death by electrocution at any time before the hour of sunrise on the 7th day of October, 1982, inside the walls of the William C. Holman Unit of the Prison System at Atmore, Alabama, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution.
“It is therefore ORDERED, ADJUDGED, AND DECREED by the Court that the Warden of William C. Holman Unit of the Prison system at Atmore, or in the case of his death, disability or absence, his Deputy, or in the event of the death, disability or absence of both the Warden and his Deputy, then the person designated as Administrator by law for such purpose, at any time before the hour of sunrise shall on the 7th day of October, 1982, inside the walls of the William C. Holman Unit of the Prison System at Atmore, in a room arranged for the purpose of electrocuting convicts sentenced by [sic] death by electrocution, cause to pass through the body of the said Wallace Norrell Thomas, a current of electricity of sufficient intensity to cause his death, and the continual application of such current through the body of the said Wallace Norrell Thomas until the said Wallace Norrell Thomas be dead, and may Almighty God have mercy on Your Soul.”

After careful review of the entire record we are in complete accord with the Court of Criminal Appeals in its conclusion regarding this matter:

“Appellant asserts that the trial court improperly considered non-statutory aggravating circumstances in its sentencing hearing. In essence, appellant argues that the findings of the fact by the trial court negating the mitigating circumstance enumerated in § 13-11-7(4), Code of Alabama 1975, amounts to an impermissible consideration of a non-statutory aggravating circumstance. Appellant’s contention is factually without merit.
“A review of the attached order of the trial court reveals that it carefully considered each aggravating and mitigating circumstance enumerated in §§ 13-11-6, -7. It properly found to exist two aggravating circumstances, that the capital felony was committed while the defendant was engaged in the commission of a robbery, and that the capital felony was especially heinous, atrocious or cruel. § 13-11-6(4), (8). See generally Kyzer v. State, 399 So.2d 330 (Ala.1981); Dunkins v. State, 437 So.2d 1349 (Ala.Crim.App.1983). The trial court found the § 13-11-7(1) mitigating circumstance to exist. In particular, it made specific findings of fact in order to provide for proper appellate review, § 13-11-4, disproving any existence of the § 13-11-7(4) mitigating circumstance. We do not find that the trial court included the facts negating § 13-11-7(4), or relied upon them as a non-statutory aggravating circumstance. See e.g., Whisenhant v. State, [Ms. 1 Div. 333, Nov. 23, 1982] (AIa.Crim.App.1982). The trial court adhered to the safe practice of following the statute in negating the mitigating circumstances and further, under § 13-11-4, listed specific facts to support the negation of § 13-11-7(4). This procedure does no injustice to the substantial rights of appellant and does not constitute error.”

This clearly demonstrates the care given by the trial court to consideration of aggravating and mitigating circumstances evidenced by specificity in finding facts in support of its conclusions that particular mitigating circumstances did not exist. We here note that the trial court instructed the jury that it would be improper for it to consider non-statutory aggravating circumstances in arriving at a recommended sentence. It is presumed that trial courts follow their own instructions. Harris v. Rivera, 454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981).

Issues five, six, and seven, as stated by Thomas, may be summarized, as the State did in its brief, as to whether Thomas’s death sentence is appropriate and should be affirmed.

The Court of Criminal Appeals, following guidelines established by this court in Beck, found:

“In accordance with the guidelines of Beck, 396 So.2d 645, 664, we find that appellant’s death sentence: (1) was not imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) the evidence fully supported the trial court’s finding of the statutory aggravating circumstances listed in its written order; and (3) the sentence was not excessive or disproportionate in relation to the penalty imposed in similar cases, considering both the crime and the defendant.”

We agree.

Regarding the first Beck-mandated inquiry, the crime for which Thomas was convicted is undoubtedly a capital offense under § 13-ll-2(a)(2), Code 1975. As to the second mandated inquiry, similar crimes have been and are being punished capitally. Beck v. State, 396 So.2d at 654 n. 5 (Ala.1980). Two-thirds of death sentences imposed in Alabama are in cases of robbery-murder; see, e.g., Coulter v. State, 438 So.2d 352 (Ala.1983); Bush v. State, 431 So.2d 563 (Ala.1983); Womack v. State, 435 So.2d 766 (Ala.1983).

The only errors in the trial court’s written findings about aggravating and mitigating circumstances were favorable to Thomas. That court found and weighed two aggravating circumstances: the § 13-11-6(4), Code 1975, circumstance that the capital offense involved robbery and the § 13-11-6(8), Code 1975, circumstance that the capital offense was especially heinous, atrocious and cruel.

Moreover, the § 13-11-6(2) aggravating circumstance that Thomas had been previously convicted of a felony involving the use or threat of violence to another person, was not, but should have been, considered by the trial court. It was proved that Thomas had three robbery convictions; however, the trial court refused to consider them because convictions were obtained after the capital offense in this ease was committed. That was error favorable to Thomas. The trial court also excluded one of the three robbery convictions on the additional ground that the particular conviction was still on appeal. That was also erroneous. The collateral and supplemental effects of a conviction are not suspended pending appeal. See e.g., Evers v. Medical Licensure Commission, 421 So.2d 89 (Ala.1982); Ex parte Alabama Bar, 285 Ala. 191, 230 So.2d 519 (1970); Viberg v. State, 138 Ala. 100, 107, 35 So. 53, 55 (1902); Latikos v. State, 17 Ala.App. 655, 656, 88 So. 47, 48 (1921). In Coulter v. State, 438 So.2d 352, 353 (Ala. 1983), this court held that a violent felony conviction obtained after the capital offense was committed should be considered against the defendant in sentencing even if the crime giving rise to that conviction occurred after commission of the capital offense. In affirming Thomas’s sentence, the Court of Criminal Appeals recognized that the trial court should have found and considered the § 13-11-6(2) aggravating circumstance.

The trial court’s erroneous exclusion of the three robbery convictions also led it to improperly find and consider the § 13-11-7(1) mitigating circumstance of “no significant history of prior criminal activity.” Three assault convictions, a conviction on two counts of breaking and entering, and larceny and three robbery convictions certainly amount to a significant history of prior criminal activity.

In spite of the erroneous findings favorable to Thomas, the trial court found the aggravating circumstances “far outweigh[ed]” the mitigating circumstances.

As to the third ftec&-mandated inquiry, the death sentence is singularly appropriate for this particular defendant. See, Neal v. State, 372 So.2d 1331 (Ala.Cr.App.1979) (DeCarlo, J., concurring), id., (Bowen, J., concurring), cert. denied, 372 So.2d 1348 (Ala.1979), in which two judges of the Court of Criminal Appeals criticized a trial judge for not sentencing one of Thomas’s co-defendants to death for the same crime. Thomas has been convicted of numerous other crimes, including three robberies. In addition, the circumstances of the crime dictate that he should suffer death as punishment. In so concluding, the trial court made the following finding:

“The Court finds the facts to be that the nude body of the victim, Quenette Shehane, was found in a wooded area during an extremely cold period. Her body bore the signs of trauma in that there were numerous abrasions, bruises, scratches and gunshot wounds. It was determined that the victim had been shot with a .22 caliber pistol one time in the chest, three times in the buttocks, and two times in the left elbow. The above mentioned abrasions were found on her chest, abdomen and lower extremities. The victim’s clothes did not have bullet holes in them, indicating that she was nude at the time she was shot. The Court finds that the killing of Quenette Shehane was outrageous and extremely wicked, vile and shockingly evil. The Court finds from the evidence that the victim was abused and tortured prior to her death. It is, therefore, the opinion of this Court that the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses.”

The trial court specifically found that it was Thomas who murdered Miss Shehane by repeatedly shooting her. That finding is also firmly supported by the evidence. When affirming that finding, the Court of Criminal Appeals stated:

“The facts lead to the reasonable conclusion that appellant was the triggerman of the instant killing. This can be drawn from the facts that: (1) appellant was president of his fraternity of which Neal [one co-defendant] was a member and Jones [the other co-defendant] had previously been a pledge; (2) appellant’s clothing showed no trace of blood or recent struggle when picked up by Lynn. [The fact that appellant unlike his two co-defendants had no blood on him indicates that he shot the victim while she was being held by his two accomplices.] (3) when arrested, he had the murder weapon in his possession; and (4) the victim’s television was clearly traced to him. [The conclusion that appellant was the triggerman is corroborated by the confession of one of appellant’s co-defendants. See, Neal v. State, 372 So.2d 1331 (Ala.Cr.App.1979), cert. denied, 372 So.2d 1348 (Ala.1979). It was not introduced in this case and accordingly not considered by the trial court.]”

Thomas argues that his sentence should be reduced because one of his co-defendants received a life imprisonment without parol sentence and the other a life sentence (after conviction for non-capital murder). We reject that contention for three reasons: The fact that Thomas was the triggerman is itself sufficient to justify the difference in sentences. E.g., McClesky v. State, 245 Ga. 108, 263 S.E.2d 146, 151, cert. denied, 449 U.S. 891, 101 S.Ct. 253, 66 L.Ed.2d 119 (1980); Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784, 792-796 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980); State v. Shaw, 273 S.C. 194, 255 S.E.2d 799, 804, cert. denied, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1979). (The co-defendant who was convicted of non-capital murder was thereby acquitted of the capital offense. That itself is sufficient to justify the difference between the sentence given him and that imposed upon Thomas.) Additionally, Thomas makes no showing that either of his co-defendants had a prior record similar to his.

Moreover, even assuming that either or both of Thomas’s co-defendants deserved a death sentence, that would not justify reducing Thomas’s deserved death sentence. The sentences received by co-defendants must be considered by this court in determining the appropriateness of a death sentence on appeal, Beck v. State, 396 So.2d at 664, but they are not controlling per se. (Appellant’s contention that the trial court should have expressly considered the sentences received by appellant’s co-defendants is answered in Coulter v. State, 438 So.2d 336 (Ala.Cr.App.1982), aff'd, 438 So.2d 352 (Ala.1983). In that case, we affirmed the Court of Criminal Appeals holding the disproportionality question involving consideration of co-defendant sentences is something to be addressed by the appellate courts instead of at the trial level. Accord, Miller v. Florida, 459 U.S. 1158, 103 S.Ct. 802, 74 L.Ed.2d 1005 (1983) (Marshall, J., dissenting from denial of certiorari). Were they, there would be no need for us to make the other inquiries we mandated in Beck. In Gregg v. Georgia, 428 U.S. 153, 199, 203, 96 S.Ct. 2909, 2937, 2939, 49 L.Ed.2d 859 (1976), the Court held that an isolated decision to afford a capital defendant mercy does not render unconstitutional death sentences imposed on other defendants in similar cases. It is only when sentencing authorities “generally do not impose the death penalty” in a particular type of case that sentence reduction is required. Id., at 206, 96 S.Ct. at 2940. See generally, Bell v. Watkins, 692 F.2d 999, 1005 n. 8 (5th Cir.1982).

In the final substantive paragraph of its opinion, the Court of Criminal Appeals concluded that:

“In the instant case, the aggravating circumstances ‘remarkably and exceedingly outweigh the mitigating circumstances— ’ Dunkins, supra. We therefore concur in and affirm the findings of the jury and the trial court that death is the appropriate sentence. ‘Indeed, applying the laws of this state and nation to the particular facts of this case, we do not see how any other penalty is justified.’ Id.”

We concur in that conclusion.

After careful and thoughtful review of the entire record, we cannot conclude otherwise than to affirm the decision of the Court of Criminal Appeals and the conviction and sentence to death of Wallace Nor-rell Thomas.

AFFIRMED.

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


text:
    Michael E. MILLER v. STATE.
    8 Div. 847.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Jan. 10, 1984.
    Frederick L. Fohrell of Fohrell, Hess & McMurtrie, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., Jack M. Curtis, Asst. Atty. Gen.", for appellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted of sexual abuse in the first degree in violation of § 13A-6-66, Code of Alabama 1975. Sentence was seven years. Two issues are presented for review.

Miller’s first contention is that evidence of past convictions were erroneously admitted into evidence. Miller pled not guilty by reason of insanity. The first witness for the defense, Miller’s mother, testified that her son had been in an accident when a small child and had been mentally unstable since that time. On cross examination, the District Attorney asked the witness if she had heard that her son had been convicted of grand larceny and receiving and concealing stolen goods in 1978. Miller claims the overruling of his objection to that question was error.

Admission of evidence of prior crimes to rebut special defenses is accepted practice in this state. C. Gamble, McElroy’s Alabama Evidence § 61.01(8) (3d ed. 1977). The only requirement is that prior acts must have a tendency to shed light on the accused’s state of mind when the act for which he is being tried was committed.

This has been interpreted to mean that when the accused presents evidence of long term mental illness, the State may introduce evidence of prior crimes occurring during the time the accused claims to have been insane. Watts v. State, 282 Ala. 245, 210 So.2d 805 (1968); Grammer v. State, 239 Ala. 633, 196 So. 268 (1940). The fact pattern of this case fits the requirement.

Appellant’s second issue, that his touching of the prosecutrix was through her clothes and not within the statute, is without merit.

The judgment of the lower court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Michael MILLER. (In re Michael E. MILLER v. STATE).
    83-422.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    Frederick L. Fohrell of Fohrell, Hess & McMurtrie, Huntsville, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for certiorari was granted in this case in order to determine whether the Court of Criminal Appeals was correct in upholding Michael Miller’s conviction for sexual abuse in the first degree. 460 So.2d 227 (Ala.Cr.App.1983).

Defendant, Michael Miller, was indicted for violation of § 13A-6-66, Code of Alabama (1975), sexual abuse in the first degree. He was convicted in the Circuit Court of Madison County and sentenced to seven years’ imprisonment in the state penitentiary.

At trial, the state called Patricia Lynn Reynolds, the victim of the alleged assault, as its first witness. Miss Reynolds testified as to the following.

On the morning of May 7, 1982, Miss Reynolds went to her sister’s house to babysit. Later that morning, the defendant arrived at the house, stating that he was to meet his sister there. She arrived, and the two left shortly thereafter. Approximately fifteen to twenty minutes later, the defendant returned, stating that he was to meet his sister there again.

Miss Reynolds then testified that the defendant sat next to her on the sofa and tried to kiss her. He then told her that she was pretty, and that he wanted her. She asked the defendant to leave, and when he refused, she attempted to telephone her father. The defendant then ripped the phone off the wall, grabbed Miss Reynolds by the neck, pushed her against a counter, and began to feel her breasts through her clothing. Miss Reynolds tried to push the defendant from her, but he grabbed her by the hair and threw her to the floor, where he felt her breasts and between her legs on the outside of her clothing. She again tried to push the defendant away, and he told her that he would get a knife and cut her clothes off if he had to. Interrupted by one of the children in the house, he got up and told Miss Reynolds that he would kill her if she called the law, and she could count on his coming back to get some. Then the defendant left the house.

At trial, the state attempted to elicit testimony concerning a prior conviction of the defendant. The statements concerning this conviction came while the defendant’s mother, Mrs. Betty Golden, was on the stand. On direct examination, Mrs. Golden testified that, in her opinion, her son had had mental problems in the past. The prosecutor’s first question on cross-examination was:

Mrs. Golden, had you heard back on August 28, 1978 that your son over here (INDICATING), Michael Miller, was convicted of grand larceny, buying, receiving and concealing stolen property; were you aware of that?

Defense counsel immediately made an objection and then a motion for a mistrial, both of which were overruled.

The issues presented for our review are:

1. Whether the trial court erred in allowing the state to question a defense witness concerning the accused’s prior conviction before the defendant took the stand.
2. Whether the evidence at trial was sufficient to support a verdict of guilty.

After reviewing the evidence, we find that it was reversible error to allow the state to comment on the defendant’s prior conviction before he testified, and we, therefore, reverse the decision of the Court of Criminal Appeals and remand the case for a new trial. Because of our resolution of the first issue, discussion of the second issue is pretermitted.

Defendant contends that the trial court erred in allowing the state to bring up, before the jury, the defendant’s prior conviction before he took the stand. The conviction was brought out in the state’s cross-examination of the defendant’s mother. The court overruled defense counsel’s objection to the state’s question, along with his motion for a mistrial, because the defendant had pleaded not guilty by reason of insanity, and the defendant’s mother testified that she believed he had a mental problem.

“Where insanity is relied upon as a defense every act of the accused’s life which throws some light on such issue is relevant thereto.”

Nichols v. State, 276 Ala. 209, 211, 160 So.2d 619, 621 (1964). The court, in Nichols, went on to say that any such acts or conduct must have a tendency to shed light on the accused’s mental capacity when the act for which he is being tried was committed. Id.

A period of approximately four years passed between the defendant’s alleged pri- or conviction and the incident which is the basis of this action. The alleged prior conviction was, according to the prosecutor, for grand larceny, or for buying, receiving and concealing stolen property. In Coffey v. State, 244 Ala. 514, 14 So.2d 122 (1943), this court stated:

This appellant was on trial for his life and we are of the opinion that the court below committed reversible error in permitting the state to introduce in evidence the fact that the defendant, at a time far removed from the date of the homicide, assaulted another person, which act could have no possible tendency to prove the sanity of the defendant at the time of the homicide, and which act was in no way admissible under the plea of “not guilty.”

244 Ala. at 521, 14 So.2d at 127. In Coffey, the period of time was longer (9 years); however, in Pilkington v. State, 46 Ala. App. 716, 248 So.2d 755 (Ala.Crim.App.1971), the period of time between the alleged homicide and the prior assault was only two months. The Pilkington case is very similar to the case at bar. In both cases, defense counsel offered proof that insanity was a possibility early in life. The Pilkington court reversed the lower court’s conviction because the evidence of the prior crime was too prejudicial to allow its admission. The Court of Criminal Appeals quoted from an article by Judge McElroy for support:

“... Though it is impossible to avoid the conclusion that, in a broad sense, every act of a person’s life is relevant to the issue of his mental capacity at any time of his life, it is also possible that evidence of the act of a party at a particular time may have but a glimmer of probative value on the issue of his mental capacity at another time, and yet be likely to stimulate excessive emotion or prejudice against him and thus to dominate the mind of the trier of fact and prevent a rational determination of the truth. In a situation of that sort, it would seem that evidence of the act ought to be excluded

McElroy, Relevancy of Evidence in Alabama Upon an Issue of a Person’s Mental Capacity, 4 Ala.Law..384, 394 (1943).

In the present case, as in Pilkington, the state failed to offer any evidence that the defendant’s state of mind was the same at the time of the prior conviction as it was at the time of the commission of the act in question. Without such evidence, the prior conviction is not admissible. The trial court, therefore, should not have allowed the question asked by the State, or, in the alternative, should have granted defense counsel’s motion for a mistrial.

For the above-stated reasons, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded to that court with instructions to remand the case to the circuit court for a new trial.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: PATTERSON, Judge.

text:
    Michael E. MILLER v STATE.
    8 Div. 847.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
   PATTERSON, Judge.

Reversed and Remanded for a new trial on authority of Ex parte Miller, 460 So.2d 228 (Ala.1984).

REVERSED AND REMANDED.

All Judges concur.


author: HUBERT TAYLOR, Judge. PATTERSON, Judge.

text:
    Foster SELLERS v. STATE.
    4 Div. 249.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    On Return to Remand Oct. 23, 1984.
    Foster Sellers, pro se.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   HUBERT TAYLOR, Judge.

Appellant, Foster Sellers, filed a pro se petition for writ of error coram nobis, which was denied without a hearing. The appeal is based on the issue of ineffective counsel.

Sellers was indicted for burglary along with Jerald Carter and Dick Harris. Sellers was convicted of second degree burglary in 1969, but the indictments against Harris and Carter were dismissed in 1971 and 1972 respectively.

Included in Sellers’ petition is a letter written to him by his trial attorney several months after his conviction. It reads in part as follows:

“Jerald Carter told me that he and Dick Harris would testify that they committed the burglary while you were sleeping in a motel. I did not call them for two reasons. First, I did not know of any legal procedure to have them produced for trial since they were incarcerated in Georgia. Second, since I represented Jerald, I could not advise him to testify for you and receive a sure sentence since there was a good possibility the State would never try him or Dick. I got the impression around the Courthouse that State was willing to forgo their trial because of the D.A.’s desire’to convict you, and the possibility that they would enter guilty pleas and testify for you would upset his ease as he had already announced his candidacy for Attorney General.” (Emphasis added.)

The letter affirmatively shows a conflict of interest. When a conflict of interest exists, there is a denial of the right to effective representation even without the showing of specific prejudice.. See Jacques v. State, 409 So.2d 876 (Ala.Cr.App.1981), and authorities cited therein.

The petition properly alleges ineffective assistance of counsel and provides sufficient specific grounds to warrant a hearing on the petition. For that reason, the cause is remanded to the trial court with instructions that a hearing be held on the petition and that the judge’s findings of fact be returned to this court.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

On Return To Remand

PATTERSON, Judge.

Appellant, Poster Sellers, filed a pro se petition for writ of error coram nobis, which was dismissed by the trial court without a hearing. On appeal this court held that the petition properly alleged ineffective assistance of counsel in appellant’s trial for burglary in the second degree in 1969, and that the trial court should have granted appellant a hearing. This court remanded the cause to the trial court with instructions that a hearing be held on the petition for writ of error coram nobis, and that due return be made to this court.

The trial court filed its return to remand September 27, 1984, advising this court that it had entered an order on September 21, 1984, granting appellant’s petition for writ of error coram nobis, and setting aside and dismissing his 1969 conviction of second degree burglary in the Circuit Court of Houston County, Alabama, Case No. 8576, as well as the seven year sentence imposed thereon.

In view of the action of the trial court in granting appellant’s petition and dismissing his burglary conviction, this appeal is due to be, and is hereby, dismissed.

DISMISSED.

All Judges concur.