author: HARRIS, Judge.

text:
    George Michael BIGGS v. STATE.
    1 Div. 325.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Dec. 16, 1983 Alabama Supreme Court 82-979.

      James E. Atchison of Hess, Atchison & Horne, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

The appellant was convicted of murder and sentenced to twenty-five years’ imprisonment for the killing of his wife. The State’s evidence established that on August 21, 1980, Patricia Lynn Biggs died of three .38 caliber gunshot wounds inflicted by her husband.

Appellant testified that he and the deceased were married in 1965, divorced in the summer of 1969, and remarried to each other in the fall of 1969. Since then, they had separated and reconciled on many occasions. Each separation was at his wife’s insistence. In April 1980, appellant’s wife informed him that she wanted a divorce and asked him to move out. Appellant left, but shortly thereafter the parties reconciled when appellant’s wife asked him to come home.

On August 18, 1980, the deceased once more told her husband that she had decided on a divorce, but the parties did not discuss the matter. Appellant testified that he searched for his wife for two days in an attempt to talk with her about their marital difficulties, but he was unable to find her. Then, on the afternoon of August 21, after Mrs. Biggs had come home from work, appellant walked into the bedroom where his wife was lying face down on the bed. He began to caress her by playing with her earrings and rubbing her legs. She turned over and asked him if he had thought any more about leaving. As she flipped over, her earring caught on appellant’s finger. She then threw the other earring at her husband, told him she had made a mistake in asking him to come home and stated that she did not love him and admitted that she had had an affair with another man and had lied about other affairs in the past.

Appellant said that his wife began to kick, scratch, and swing her fists at him. He attempted to hold her away but she kept moving toward him. In the scuffle, a pistol kept in the chest of drawers toppled onto a pile of clothes. Appellant testified that the next thing he remembered was firing three shots in rapid succession at his wife. He then called the police department.

The trial judge charged the jury on the elements of self-defense, and on the lesser-included offense of manslaughter, defined in § 13A-6-3, Code of Alabama 1975, as follows:

“(a) A person commits the crime of manslaughter if:
(1) He recklessly causes the death of another person, or
(2) He causes the death of another person under the circumstances that would constitute murder under section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.”

Appellant excepted to those portions of the court’s oral charge explaining “provocation recognized by law.” He claims that his wife’s confession of adultery, taken together with her statements that she no longer loved him and wanted him to move out, were sufficient to engender in him a sudden heat of passion which reduced the killing from murder to manslaughter.

Appellant contends that the following parts of the court’s charge erroneously instructed the jury that they could not consider the content of the deceased’s statements to her husband just prior to the shooting in order to determine whether appellant was provoked to a heat of passion killing:

“A killing in sudden passion excited by sufficient lawful provocation is manslaughter. Not because the law supposes this passion made the Defendant unconscious of what he was about to do and stripped the act of killing of an intent to commit the killing, but it is because that the passion disturbed the sway of reason. “The Court instructs you, however, that mere words, no matter how insulting, never reduces murder to manslaughter. Such provocation can in no case be less than an assault either actually committed or menaced under such circumstances as reasonably to convince the mind that the accused had cause for believing and did believe that he would be presently assaulted and that he struck, not in consequence of a previously formed design, general or specific, but he struck in consequence of passion suddenly aroused by the blow given or apparently about to be given.
“The Court will further instruct you that in order to amount to legal provocation, the provoking act must have been of a nature calculated to influence the passions of the ordinary, reasonable man or woman. Whether such act as proved constitutes legal provocation is for the Jury to decide, but mere abusive or scurrilous words or insulting gestures are not sufficient provocation nor are minor or technical assaults or batteries not causing considerable pain or injury....” (Emphasis added.)

After the jury had deliberated nearly two hours, they knocked and, in open court with all parties present, the foreman asked the following question:

“FOREMAN: Judge, Your Honor, the question is — I just don’t know how to phrase it. Concerning manslaughter that needs to be cleared up for us.”

The trial court then re-instructed the jury, in substantially the same words it used during the main charge, on the elements of manslaughter. Appellant again excepted to the court’s explanation of legal provocation.

This case presents us with the question, never squarely answered in this state, whether a wife’s confession of unfaithfulness (as opposed to her husband’s actually finding her in the act of adultery) constitutes legally adequate provocation so as to reduce her killing by the husband from murder to manslaughter.

Although it is firmly established in Alabama that if one party finds his or her spouse in the act of adultery, the subsequent killing of either the offending spouse or the paramour is deemed, as a matter of law, to be caused by sufficient provocation. Hooks v. State, 99 Ala. 166, 13 So. 767 (1893). No reported Alabama case has been decided on the basis that a spouse’s admission of infidelity may also constitute adequate provocation for a “heat of passion” killing. See Farr v. State, 54 Ala.App. 80, 304 So.2d 898, McNeill v. State, 102 Ala. 121, 15 So. 352.

To constitute adequate legal provocation, it must be of a nature calculated to influence the passions of the ordinary, reasonable man. Other than discovered adultery, courts have reached different conclusions as to what factual situations are embraced within this doctrine. See Commentary, § 13A-6-3, Code of Alabama 1975. See also Annot., 93 A.L.R.3d 920 (1979).

The well established rule in Alabama is that mere words, no matter how insulting or abusive, cannot reduce a killing to manslaughter. Watson v. State, 82 Ala. 10, 2 So. 455 (1886). Appellant argues, however, that his wife’s admission of past adulterous affairs, along with other degrading statements, constituted sufficient provocation to support a manslaughter verdict. Some other jurisdictions which follow the traditional rule that offensive statements are insufficient as a matter of law to support a finding of manslaughter do recognize that words conveying information may be sufficient provocation. People v. Rice, 351 Ill. 604,184 N.E. 894 (1933); People v. Ahlberg, 13 Ill.App.3d 1038, 1041-1042, 301 N.E.2d 608 (1973); People v. Poole, 159 Mich. 350, 353, 123 N.W. 1093 (1909); Haley v. State, 123 Miss. 87, 85 So. 129 (1920); State v. Grugin, 147 Mo. 39, 48-62, 47 S.W. 1058 (1898); State v. Martin, 216 S.C. 129, 140, 57 S.E.2d 55 (1949).

However, in Commonwealth v. Bermudez, 370 Mass. 438, 348 N.E.2d 802, 805 (1976), the Supreme Judicial Court of Massachusetts was confronted with a situation similar to the case at bar. In Bermudez the defendant was convicted of second degree murder for the killing of his wife. The defendant told the police that he had been separated from his wife for approximately three weeks; he went to see her; while there he went upstairs to see their baby; and, when he came downstairs, his wife, using an obscenity, told him, “I don’t need you around here, I have got another man.” After once more using an obscenity, she told him to get out. He then pulled a gun and shot her. The Massachusetts court held that the wife’s intimation that she had committed adultery did not constitute sufficient provocation to support a manslaughter verdict. Citing Palmore v. State, 283 Ala. 501, 508, 218 So.2d 830 (Ala.1969), that court stated:

“Past adultery lacks the peculiarly immediate and intense offense to a spouse’s sensitivities which has led courts to recognize present adultery as adequate provocation, and many courts have refused to recognize discovery of past adultery as sufficient provocation.” 348 N.E.2d at 802.

In the case at bar, no adulterous affair was discovered at the time of the shooting nor was there any mention by deceased of any past specific act of adultery. Mere suspicion, belief or knowledge of past adulterous affairs will not change the character of a homicide from murder to manslaughter. State v. Ward, 286 N.C. 304, 210 S.E.2d 407 (1974). Because an admission of past adulterous affairs alone is insufficient to constitute adequate legal provocation, the oral charge given by the trial judge was without error.

It is further contended that the trial court erred by requiring appellant to present evidence warranting a finding of self-defense before statements made by deceased to appellant immediately prior to the shooting could be allowed into evidence. Appellant contends that said statements should have been allowed into evidence without a showing of self-defense and bases this contention on C. Gamble, McElroy’s Alabama Evidence, § 61.01(10) (3d ed. 1977), which provides as follows:

“Matters perceived by and communications to the subject person:
“Matters observed by the subject person prior to the time in issue, including communications to him, which are calculated to cause him shock or mental disturbance are admissible as tending to show mental incapacity. The only qualification upon the admission of such evidence is that the matter of communication must be shown to have been perceived or heard by the subject person and must be shown relevant to have naturally and reasonably affected his mental poise to an extent as to have rendered him legally irresponsible while acting under its influence.” McEl-roy at 121.

The record reflects that before appellant was allowed to testify to any statements made to him by the deceased, a predicate of self-defense had to be introduced. The trial court based this ruling on C. Gamble, McEl-' roy’s Alabama Evidence § 262.01(9), which provides:

“Design of victim in homicide or assault:
“In a criminal charge of homicide or assault, in which the evidence warrants a finding that the accused acted in self-defense, he may prove, under the present exception to the hearsay rule, that prior to the alleged offense the victim threatened to injure him. Such is offered as being relevant to show that the victim was the aggressor.... ”

Appellant argues that by being required to lay a predicate revealing a rational response to actual threatened aggression, he was frustrated in his attempt to show provocation giving rise to “sudden passion.”

We cannot agree. The record reflects that, immediately prior to the shooting, the victim became enraged at appellant after he accidentally pulled an earring from her ear. She thereupon threw the other earring at appellant and began “kicking, scratching and swinging her fists” at appellant. It is evident that said actions were necessary to lay the necessary predicate of self-defense, but said actions by deceased were also relevant as to whether sufficient provocation existed to reduce the homicide from murder to manslaughter. As held previously, admission of past adulterous affairs by itself is insufficient provocation. The record reflects that after said actions by deceased were testified to by appellant, her statements that she made a mistake in asking him to come back, did not love him, and had engaged in past adulterous affairs were admitted into evidence.

While the statements of deceased should arguably have been admitted into evidence without a showing of self-defense by appellant, we hold that error, if any, was harmless in that said actions were relevant as to whether adequate provocation existed. A.R.A.P. 45. If there was any error in sustaining the original objections, which we do not concede, it was corrected by subsequently admitting the evidence by further questions to appellant. Tate v. State, 337 So.2d 13 (Ala.Cr.App.1976).

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SAM W. TAYLOR, Judge.

license: Public Domain

text:
    James Ira PEARSON v. STATE of Alabama.
    3 Div. 569.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 82-1020.

      Edwin L. Yates, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Gregory J. Robinson, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Appellant was convicted of receiving sto- • len property in the first degree in violation of § 13A-8-17, Code of Alabama, 1975. His sentence of 3 years’ imprisonment was suspended.

The indictment handed down in this case by the Montgomery County Grand Jury described the property stolen on December 1 or 2, 1981 from' the Edward Bell High School as follows:

“1 typewriter, a better description of which is unknown to the Grand Jury, of the value of $750.00; 2 calculators, a better description of which is unknown to the Grand Jury, of the aggregate value of $293.00, 1 film strip projector, a better description of which is unknown to the Grand Jury, of the value of $125.00; all of the aggregate value of $1168.00,.... ”

At trial, the principal of Edward Bell High School, George Rufus Irving, testified as to the value of the equipment listed in the indictment. He stated he had identified the stolen property at the Montgomery Police Department following the burglary, and that his identification had been possible through the use of his school system’s inventory record form. He said further that he had also used the inventory record form to determine the property’s value. The aggregate value of the property as described by this witness was $1168.

Mr. Irving stated that the inventory from which the record form in question was derived was last performed on May 12, 1981 by Homer Milner, an employee of the Board of Education. He said that he believed that Mr. Milner based the value of the items listed on the inventory through the use of the market price found on purchase order forms. The witness further testified that the stolen items, including a typewriter, 2 calculators and a projector, were purchased prior to his becoming principal of the school in 1978.

Appellant’s sole issue on appeal is whether the State failed to make a prima facie case for receiving stolen property in the first degree.

Appellant argues that the State failed to prove that the stolen property had a value greater than $1000. Such an evaluation is necessary to sustain a first degree conviction in this case.

§ 13A-8-l(14), Code of Alabama, 1975, defines value as “The market value of the property at the time and place of the criminal act.”

However, as this court has stated,
“Testimony as to market value is in the nature of opinion evidence... Such opinion evidence is not conclusive, and it therefore remains with the jury as the trier of fact to be considered like all other evidence.”

Lankford v. State, 396 So.2d 1099, 1103 (Ala.Cr.App.1981).

This court has ruled that “testimony as to what the property cost at the time it was purchased by its owner” can form part of the basis for a jury’s determination that the requisite statutory value has been proven. Johnson v. State, 374 So.2d 417, 420 (Ala.Cr.App.1979); Lasley v. State, 418 So.2d 193, 194-5, (Ala.Cr.App.1982).

We cannot conclude that the jury’s determination of the value of the stolen property was without support from the testimony given by Mr. Irving.

The judgment of the circuit court is, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Joseph T. WRIGHT v. STATE.
    1 Div. 532.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 82-1228.
    Robert F. Ware, Jr., Millry, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. • CLARK, Retired Circuit Judge.

A jury found appellant guilty of theft in the second degree. After due notice that he would be proceeded against under the Habitual Felony Offenders Act, the court fixed his punishment at imprisonment for fifteen years, which was the minimum that could have been imposed upon him by reason of his two previous felony convictions.

The only issue presented on appeal pertains to the asserted denial by the trial court of the effort of defendant’s counsel to have the jury informed, either by argument of defendant’s counsel or requested written charges, of the difference between the punishment for the felony of theft in the second degree and the punishment for the included offense of theft in the third degree, a misdemeanor. That defendant preserved the issue for appeal is disputed by appellee, but in the light of the clear law as to whether defendant’s counsel should have been allowed to make known to the jury the difference between the nature and extent of the punishment prescribed for the felony and the punishment prescribed for the misdemeanor and to expound upon the consequences thereof, we will proceed to apply such law here and forego discussion of the question whether the issue presented by appellant was sufficiently presented in the trial court, which is not so clear.

The trial court allowed defendant’s attorney to make known to the jury that theft of property in the second degree is a felony and that theft of property in the third degree is a misdemeanor, and it was clearly made known to the jury in the court’s oral charge, as well as elsewhere, that if the property involved exceeded $100.00 in value, the theft of it would constitute theft in the second degree (Ala.Criminal Code § 13A-8-4) and if it did not exceed $100.00 it would constitute theft of property in the third degree (§ ISA-8-5).

Of the numerous legislative changes of the criminal law of Alabama since it became a state in 1819, by far the greatest number that have been made in one year were wrought by Alabama Criminal Code, effective January 1, 1980, and one of the greatest changes made by said Code is that as to practically all crimes except capital crimes the trial judge fixes the punishment within the limits prescribed by the Legislature. The jury has been largely shorn of its authority and duty as to the proper punishment, which, with some exceptions, it previously had. For this reason, perhaps, we do not have many appellate court opinions directly on the point. However, in the comparatively few cases prior to the effective date of Alabama Criminal Code in which the determination of the extent of the punishment was exclusively within the province of the trial judge, it was not proper for the jury to be informed as to what punishment would or could be imposed upon a finding that defendant was guilty. Porter v. State, 21 Ala.App. 79,105 So. 425, 426 (1925). The 1923 Criminal Code was in effect when Porter v. State was decided. Chapter 167 thereof dealt with the subject of Intoxicating and Prohibited Liquors, and Article 3 thereof (Sections 4656-4661) was captioned “Manufacturing, Selling, Giving Away, or Having in Possession Stills or Appliances for Manufacturing Liquor.” Section 4658 provided:

“Any person, firm, or corporation, who shall violate any provisions of sections 4656, 4657 of this article, shall be guilty of a felony and upon conviction thereof shall be punished by confinement at hard labor in the penitentiary for not less than one year, nor longer than five years, to be fixed within these limits by the court or judge trying the case.”

In Porter v. State, supra, it was held:

“The court properly charged the jury that they had nothing to do with the punishment, that their duty ended when they had determined the guilt or innocence of defendant, and that the court had the duty of fixing the punishment.”

It is to be observed that jurors sometimes have knowledge of their own as to the probable punishment that will be imposed upon a convicted defendant, but it is also to be noted that any injection of such knowledge into the case as information to go to the jury would tend to appeal either to the prejudice of the jury or to its sympathy, rather than to its duty under the law and the facts of the case. Furthermore, it is to be observed that injection of the matter into the case by either party for either purpose can often be effectively answered by the other party for the opposite purpose. This is to be noted in the relatively recent case of Smith v. State, 146 Ga.App. 428, 246 S.E.2d 442 (1978), in which, when it was first commented upon by defendant’s attorney, the prosecuting attorney objected, stating “it is clearly improper to argue punishment at this stage of the proceeding,” the trial court then said, “All right, don’t argue punishment,” and the prosecuting attorney then said: “The court may put him on probation or something.” A motion for a mistrial by defendant followed immediately. The court on appeal, in holding that there was no error on the part of the trial .court in denying the motion for a mistrial, said:

“The trial court thereafter instructed the prosecutor not to argue punishment and explicitly cautioned the jury not to consider either punishment or probation, with the final instruction that ‘sentencing of the defendant is a job for the Court. You are only concerned with the guilt or innocence of the defendant.... You are not to give that any consideration whatsoever, the question of sentence.’ ”

Whatever advantage one party in a criminal case may have as to the jury’s being informed as to the permissible or likely punishment that the defendant will receive if convicted is offset by the advantage the other party will receive.

The only issue presented by appellant is without merit. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


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

text:
    Slobodan NIKOLIC and Jovan Nikolic v. CITY OF MONTGOMERY.
    3 Div. 430.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 83-103.

      J. Paul Lowery, Montgomery, for appellants.
    James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., and A1 Scott, City Atty., Montgomery, for the City of Montgomery.
   LEIGH M. CLARK, Retired Circuit Judge.

These are consolidated appeals from judgments in cases wherein appellants had appealed from judgments rendered against them separately by the Municipal Court of Montgomery. That court had adjudged Slobodan Nikolic guilty of disorderly conduct, assault, and interfering with an officer and had adjudged Jovan Nikolic guilty of disorderly conduct, interfering with an officer and menacing.

The cases were consolidated in the Montgomery County Circuit Court on motions of said Nikolics and Donald Hughey. Hughey had also been convicted on charges growing out of the same alleged occürrence but was acquitted in the circuit court upon the return of a verdict finding him not guilty.

The trial court submitted to the jury the issue as to each of the appellants’ guilt as to each of the three charges and complaints against him. The jury found each appellant guilty of disorderly conduct but not guilty as to each of the other two charges.

At the conclusion of the evidence presented by the City, the court overruled a motion by each of the appellants herein to exclude the evidence. At the conclusion of all the evidence, charges were requested in writing on behalf of each appellant to the effect that the jury “must acquit” the particular defendant of each of the charges against him.

I.

In their first contention for a reversal, appellants insist that they were not guilty of disorderly conduct. They argue that they, as designated employees of “The Embers Lounge,” where the altercation in question occurred, did, as a matter of law, lawfully use physical force in an attempt to apprehend lawless patrons at “The Embers Lounge” and that they “lawfully conducted themselves to that end in the presence of, patrons, employees and law officers.” They rely largely upon Alabama Criminal Code, § 13A-3-25(a) as follows:

“A person in lawful possession or control of premises, as defined in section 13A-3-20, or a person who is licensed or privileged to be thereon, may use physical force upon another person when and to the extent that he reasonably believes it necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon such premises.”

In charging the jury in the instant case, the court quoted substantially Alabama Criminal Code, § 13A-11-7, which provides:

“(a) A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
“(1) Engages in fighting or in violent tumultuous or threatening behavior; or “(2) Makes unreasonable noise; or
“(3) In a public place uses abusive or obscene language or makes an obscene gesture; or
“(4) Without lawful authority, disturbs any lawful assembly or meeting of persons; or
“(5) Obstructs vehicular or pedestrian traffic, or a transportation facility; or
“(6) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse.
“(b) Disorderly conduct is a Class C misdemeanor.”

Between midnight and daylight on the night of April 4-5, 1981, a disturbance, including a fight, erupted at The Embers Lounge, a licensed night club at which defendants were employed and on duty and whose duties were, inter alia, to preserve order and protect patrons against abuse. The disturbance became so intense that police officers while on duty were attracted to the scene and converged on it.

We do not discount appellants’ claim that they had the right and the duty to protect customers of the night club and to use reasonable force or show of force, if necessary, in order to do so. The jury was evidently impressed with this contention by their finding that neither was guilty of an assault as charged. However, in order to be guilty of disorderly conduct, it is not necessary that one be guilty of an assault or the like, as disclosed by some of the methods by which disorderly conduct is committed as stated in the statutory definition thereof quoted above. Officer T.C. Newman of the Montgomery Police Department testified:

“I was on routine patrol that morning and I was driving off Turner Place, and I was a passenger and my partner was driving. And I observed Jovan Nikolic chasing James Nix down the Atlanta Highway. Up behind him at The Embers were several more people standing outside. And I told my partner to intervene on this, because it looked like it was a fight. And I called for a backup unit. And we went over to the Big Ten Tires, and I jumped out of the car and told James he better come here, and I stopped the altercation. I told Jovan to go back up to the Club, and we would handle the situation. And I do not know what had happened inside the Club. And Jovan went back up to the Club. We had a discussion there, some words, but nothing serious and I started to escort Mr. Nix back up to the Club. And on the way, I also met up with Paul Henderson and he also walked with me. And my partner drove our vehicle back up to the parking lot of Nik’s Embers.
“We got up to the wall there, and Mr. Nix went on over to his van, and so did Paul Henderson, and they got in it.
“Q. Paul Henderson is the gentleman that just testified earlier; is that right?
“A. Yes, sir.
“Q. All right. Go ahead.
“A. And at this time, another unit came up to the scene. There were four officers there then. Jovan, Bo Bo [a nickname for Slobodan], and Hughey and several other people came out of the Club on the — at the east end of the building, and we got into a little discussion there. We were hollering back and forth to each other. Jovan told us we had better get these people off their premises right now. Bo Bo said, ‘You had better get them out of here, or somebody is going to get hurt.’ And Jovan said, ‘You damn police ain’t doing no damn good.’ And I told them again to go back inside, as did Officer Higgins.
“At this time, Donald Hughey went over to the — ran over to the driver’s door of the van, and attempted to grab the driver out, James Nix. Officer Higgins, Officer Childrey, Officer Demus, went over and took custody of Mr. Hughey. I do not think they arrested him at this time, but they got him off of Nix. And I believe Jovan and Bo Bo at this time went over to the other side and — ran over to the other side of the van and grabbed Paul Henderson and jerked him out. And I did not personally see any blows. I just know that they did grab him, grabbed him out of the van, out of the sliding door.
“At this time, Mr. Nix, the driver of the van, evidently panicked, and he backed up and then went forward toward the Atlanta Highway on the — the east end of the lot, and he struck Jovan and Bo Bo and another person, Danian something- or-other, I can’t pronounce his last name, and all three of them went to the ground. And at this point, I grabbed a police car that was struck by the van — it was not disabled — I got in it, and I went in pursuit of the vehicle, because it had completely left the scene. And I pulled him over approximately two and a half blocks away at the Southern Pantry, on the Atlanta Highway. I took the driver into custody at that time for hit and run, and that is about the end of my testimony.
“Q. Officer, during the time after you got to Nik’s Embers, and prior to the time these Defendants pulled out Paul Henderson from the van, did you see him do anything to provoke them in any way?
“A. No, sir.
“Q. Were there any words exchanged prior to that, that you recall, between them?
“A. The only fighting words came from Jovan.
“Q. Can you tell me anything about how Mr. Bo Bo Nikolic was acting in regards to your activities that day?
“A. Well, he was extremely upset, and he was hollering, yes, sir.
“Q. Can you tell the Ladies and Gentlemen whether or not he used any profanity in your presence?
“A. I believe so, sir. I think he said ‘You better get them out of here.’ ”

It is not our responsibility to determine whether the jury should have rendered a guilty verdict on the disorderly conduct charge as some of the evidence points in one direction and some in the other. In quoting from some of the evidence for the City, we do not ignore the evidence for the defendants, which as a whole is more favorable to them than the evidence for the City. Nevertheless, the trial court was justified in denying defendants’ motion to exclude the evidence and their request for the general affirmative charge in their favor, if there was substantial evidence that they were guilty of disorderly conduct, as specifically alleged in the respective complaints against them. This is true even though their disorderly conduct occurred while they were otherwise lawfully attempting to apprehend “lawless patrons at the Embers Lounge,” as they contend. We conclude that appellants’ first contention for a reversal is not well taken.

II.

Appellants’ second issue is thus stated in their brief:

“Acquittal of one charge was acquittal of all charges since the City failed to elect which Count was to be submitted to the jury. Sly v. State, 387 So.2d 917, 1980; Murry v. State, 48 Ala.App. 89, 261 So.2d 922, 1972; Baldwin v. The State, 47 Ala. App. 136, 251 So.2d 633, 1971.”

The cases cited and relied upon by appellants stand for the proposition that a single offense cannot be so split up or divided into two or more offenses as to bring about non-concurrent sentences. We are not faced with such a situation here, as neither defendant was convicted under any complaint other than the one charging disorderly conduct. There is nothing in any of the cases cited by appellant that required an election by the City as to which count was to be submitted to the jury. We disagree with appellants’ contention that the acquittal of the other charges constituted an “acquittal of all charges.”

III.

The third issue presented by appellant is as to whether the trial court committed reversible error in its ruling during the cross-examination of Paul Henderson, a witness for the City, as follows:

“Q. Now, have you ever been convicted of anything besides minor traffic offense?
“A. Yes, sir.
“MR. HAMPTON [Attorney for the City]: Object to that.
“THE COURT: I sustain it.
“MR. LOWREY [Attorney for defendants]: All right.
“THE COURT: I will let you ask him
“MR. LOWREY: Sir?
“THE COURT: If you are going to moral turpitude.
“MR. LOWREY: Yes, sir, I am.
“Q. What were you ...
“THE COURT: Wait just a minute.
“Q. You say you have been convicted of something besides minor traffic offense?
“MR. HAMPTON: We objected to that, and that was sustained.
“THE COURT: I will let you ask him if he has been convicted of an offense, if that offense involves moral turpitude.
“Q. Have you ever been convicted of an offense that involved moral character, or moral turpitude?
“A. I really do not understand the word.
“THE COURT: You have to ask him the offense.
“Q. What was the offense that you were charged?
“MR. HAMPTON: Object.
“THE COURT: I sustain it.
“MR. LOWREY: All right. Your witness.”

The only Alabama case cited by appellants in support of Issue III is Fondren v. State, 204 Ala. 451, 86 So. 71 (1920), which, we believe, has been overruled in its holding in effect that the conviction of any felony is the conviction of a crime involving moral turpitude that can be shown in impeachment of a witness, as explained in Gamble, McElroy’s Alabama Evidence, § 145.01(8) (1977):

“... It appears quite clear at this point that these decisions overrule earlier authority in Alabama to the effect that the question of whether the witness served in a penitentiary does involve moral turpitude and should be allowed.5 [Footnote 5 cites Fondren v. State, 204 Ala. 451, 86 So. 71 (1920); Dickey v. State, 32 Ala.App. 413, 26 So.2d 532 (1946) and Moore v. State, 12 Ala.App. 243, 67 So. 789 (1915)].”

The court was not in error in its sustention of the City’s objection to defendants’ questions as to previous convictions of the witness.

IV.

During the direct examination of the witness Reba Carolyn Stewart, the following occurred:

“Q. Did Jovan Nikolic resist or attempt to do harm or violence to these police officers?
“A. No, sir.
“Q. At that time, did he appear to be submissive to their authority?
“MR. HAMPTON: Objection.
“THE COURT: I sustain it. Let her testify this morning, and let her testify and the jury can draw their own conclusion.
“MR. LOWREY: Take your chair back. (At this time the Witness returned to the Witness Stand).”

Appellants argue that the testimony elicited by the question to which the City’s objection was sustained constituted “a summary or shorthand rendition of that which he [the witness] observed in the conduct of a [another] witness.” Appellee sees more involved than a shorthand rendition of facts and says the question ran afoul of the principle that a witness cannot testify as to the uncommunicated intent or mental operation of another. The case of Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974), citing Judge McElroy extensively, discontinued the rule that the witness could not testify on direct examination as to his uncommunicated mental operation, but it did not hold that he could do so as to the uncommunicated mental operation of another. Whether Starr v. Starr leads to such a result has given rise to some question, which is fully considered in Gamble, McElroy’s Alabama Evidence, § 102.07(4), which concludes with the following sentence:

“However, the case [Roynica v. State, 54 Ala.App. 436, 309 So.2d 475 (1974)] does leave unclear whether the decision of Starr v. Starr affects the rule that a witness cannot testify to the intent of someone other than himself.”

Any indication that adherence to Starr v. Starr permits the admission in evidence of the uncommunicated mental operation of another, as found in XV of the opinion in Roynica should be corrected, and the correct rule to the effect that it is not admissible, as stated in Armstead v. State, 57 Ala.App. 459, 329 So.2d 150 (1976), should be followed.

As earnest counsel for appellants and earnest counsel for appellee are in disagreement as to whether the question asked the witness as to whether Jovan Nikolic appeared “to be submissive to” the “authority” of the officers would have constituted a shorthand rendition of facts, or, on the other hand, the mental operation of a person other than the witness, emphasis is placed on the importance of our not infringing upon the discretion vested in the trial court. As Judge McElroy demonstrates and states in Gamble, McElroy's Alabama Evidence, § 127.01(4), in instances such as the one involved here, an appellate court should “reverse the decision of the trial court only for an abuse of discretion that prejudices the party against whom the ruling is made.” We conclude that there was not an abuse of discretion that prejudiced either appellant in the sustention of the City’s objection to the question asked defendants’ witness as to whether Jovan Nikolic appeared “to be submissive” to the authority of the officers.

We find no prejudicial error in any of the issues presented by appellants. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

In their brief in support of the application for a rehearing, appellants present two issues as follows:

“The municipal ordinance claiming to proscribe the offense of ‘disorderly conduct’ is unconstitutional, vague, indefinite and uncertain.
“The evidence in the record of this case is constitutionally deficient to establish the offense charged and thereupon fails to afford applicants Nikolic with due process of the law afforded them under the Fourteenth Amendment of the Constitution of the United States.”

Neither issue was raised by either of the appellants on original submission. Neither issue was raised by either party in the trial court.

On original submission, we followed the provision of Rule 45B, Rules of Appellate Procedure:

“In all cases appealed to the court of criminal appeals, except those in which the death penalty has been imposed, the court of criminal appeals shall consider only questions or issues presented in briefs on appeal.”

We now follow precedents found in numerous authorities in Alabama, as well as elsewhere, including the recent cases of Andersen v. State, Ala.Cr.App., 418 So.2d 967, 968 (1982); Owen v. State, Ala.Cr.App., 418 So.2d 214, 219-220 (1982); and Moore v. State, Ala.Cr.App., 415 So.2d 1210, 1217, cert. denied, (1982), in holding that neither of the issues now presented by appellant can be successfully raised for the first time on appeal.

APPLICATION FOR REHEARING Overruled.

All theu Judges concur.

      . It appears that the word “Nik’s” is used as an abbreviation for the possessive of the name “Nikolic.” Mr. and Mrs. Nikolic, the father and mother of the appellants, owned and operated The Embers Lounge. Whether either of the appellants owned any legal interest in the establishment is not clear from the evidence, but it is reasonably clear therefrom that they had more of an interest in the place than they would have had if there were no family relationship between them and the owners and operators.


author: BOWEN, Presiding Judge. BOWEN, Presiding Judge.

text:
    Timothy D. MOORE v. STATE.
    3 Div. 713.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 16, 1983.
    Certiorari Denied Dec. 16, 1983 Alabama Supreme Court 82-1164.
    Larry Waites and J. Wilson Dinsmore of Dinsmore, Waites & Stovall, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted for the possession of cocaine, diazepam, and marijuana. He waived his right to trial by jury and was found guilty by the court upon a stipulation of facts. Sentence was fifteen years’ imprisonment and a $15,000 fine. The only issue raised on'appeal is the sufficiency of the affidavit to support a finding of probable cause for the issuance of the search warrant for the defendant’s residence.

In pertinent part, the affidavit of Montgomery Police Officer Dennis Bodine states:

“And the facts tending to establish the foregoing for issuance of a daytime search warrant are as follows: On two previous occasions, 7/9/82 and 7/15/82, a subject sold cocaine to an undercover Montgomery police officer. On 7/20/82, the undercover officer ordered an additional ounce of cocaine from same subject. At approximately 10:02 A.M. this date, 7/20/82, the subject met with the undercover officer and sold one-half ounce of cocaine. At the time of this sale he was unable to provide the full ounce ordered, and he requested that the undercover officer advance him the money needed to make the additional one-half ounce purchase which was done. At approximately 10:06 A.M., the subject left the company of the undercover officer and began his journey to the residence in Sellers, Alabama. Utilizing helicopter surveillance as well as ground surveillance, the subject was observed going straight to the previously described residence of Timothy D. Moore without stopping. After the subject arrived at this residence constant visual surveillance was maintained. After approximately thirty minutes said subject departed from the residence of Timothy D. Moore and drove non-stop straight back to the location where the undercover officer was waiting. Upon meeting with the undercover officer, said subject gave him an additional quantity of cocaine. At no time was visual contact lost on the subject. The aforegoing is based upon personal knowledge of the affiant and on facts obtained by the Vice and Narcotics Unit, Investigative Division, Montgomery Police Department, Montgomery, Alabama, and is made for the purpose of securing a warrant for the premises of Timothy D. Moore or Jayne Moore, located in Montgomery County, Montgomery County, Alabama, in the daytime only.”

It was stipulated that this was all the information put before the district court to justify the issuance of the search warrant.

“(A)n otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affi-ant when he sought the warrant but not disclosed to the issuing magistrate.” Whiteley v. Warden, 401 U.S. 560, 565, n. 8, 91 S.Ct. 1031, 1035, n. 8, 28 L.Ed.2d 306 (1971). Here, there is no contention that the affidavit was supplemented by oral statements to the magistrate. Thus, the only issue is whether the affidavit is facially sufficient. In other words, do the facts contained in the affidavit constitute probable cause?

In support of his argument that there was no probable cause for the issuance of the search warrant, the defendant relies on State v. McManus, 243 N.W.2d 575 (Iowa, 1976). In that case the drug dealer told the undercover police officer that he was unable to make his contact for the marijuana’ and would try again in approximately forty-five minutes and would return in two hours. The dealer was kept under surveillance. After leaving the undercover agent, the dealer went to the defendant’s farmhouse. He shortly returned to his rendezvous with the undercover agent and sold him twenty pounds of marijuana. The court found that the dealer’s stop at the farmhouse, without more, was insufficient to support a finding of probable cause that the defendant had committed any offense.

“The sworn affidavit and abstract of oral testimony showed only that Goodrich (dealer) stopped at defendant’s farmhouse between the time he met with Deputy Warner (undercover agent) and the time he delivered the marijuana to the deputy. We do not hesitate to say the visit by Goodrich to the farmhouse, along with his earlier mention of a ‘contact’, cast upon defendant a certain aura of suspicion. Probable cause, however, requires more than mere suspicion. State v. Birkestrand, supra, 239 N.W.2d [353] at 357; State v. Shea, 218 N.W.2d 610, 614 (Iowa 1974).
“Our problem with the facts of this case is that there was nothing beyond the mere coincidence of timing of the visit of Goodrich to the McManus farmhouse to connect defendant with any wrongdoing. There was no indication from the affidavit for the search warrant or the abstract of the oral testimony that Goodrich’s auto did not already contain the marijuana before his visit to the farmhouse, that Goodrich took anything from the farmhouse to his car while there or that he even opened the trunk of the vehicle at any time he was at the farm. There was no indication of any independent information linking defendant to wrongdoing, of which the events of November 1 might have been corroborative. There was no indication that Goodrich or anyone else provided information tending to incriminate defendant. Defendant himself was apparently not observed on November 1; the information for the search warrant indicated the affiant did not know who occupied the house near Lone Tree. There was no indication of any other suspicious visits to defendant’s home.”
“In the instant case, Goodrich’s stop at the farmhouse, even with its hint of suspicion due to the timing of the visit, was insufficient, without more, to support a finding of probable cause that defendant had committed or was committing an offense. Such a visit was sufficiently consistent with innocent behavior and activity that more was needed for the issuance of the warrant. We have said that innocent-appearing activity cannot be used to bolster an otherwise inadequate warrant application.” McManus, 243 N.W.2d at 578-79.

McManus was a five to four decision of the Iowa Supreme Court. The four dissenting justices found that “(t)he timing of Goodrich’s visit to the farmhouse, which the court calls ‘mere coincidence’, is highly probative” of illegal activity in the context in which it occurred. They found that “a reasonably cautious person could reasonably conclude from these facts and circumstances that marijuana would be found in the farmhouse, and that probable cause therefore existed to issue the search warrant.” McManus,

Some courts have been reluctant to find a sufficient nexus or connection between the criminal activity, the things to be seized and the place to be searched to support a finding of probable cause where the place to be searched is not the defendant’s own residence or under his control. W. LaFave, 1 Search and Seizure Section 3.7, n. 110 (1978). However, other courts have not shown such hesitation. United States v. Valenzuela, 596 F.2d 824 (9th Cir.1979), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (narcotics sellers seen leaving his house before going to where sale occurred); State v. Witwer, 642 P.2d 828 (Alaska App.1982) (before each of two drug purchases, seller went first to same premises); State v. Mena, 399 So.2d 149 (La.1981) (before sale, dealer told agent he had to get drugs from his connection, went to premises, returned with defendant and, after arrest, told agent he had obtained drugs from defendant); State v. Yaritz, 287 N.W.2d 13 (Minn.1979) (two sales elsewhere, each time defendant observed going straight from his house to the place of the sale).

Judged by the standards set out in United States v. Chester, 537 F.2d 173, 175 (5th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1120, 51 L.Ed.2d 548 (1977), the district court’s finding of probable cause should be sustained.

“A probable cause issue can rarely, if ever, be resolved with the exact logic of a Euclidean theorem. Each case must turn on its facts. Some guideposts, however, are available to a reviewing court. Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584 [590] 21 L.Ed.2d 637 (1969). The issuing magistrate is not to be confined by niggardly limitations or by restrictions on the use of his common sense. Id. See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). And the magistrate’s determination of probable cause should be paid great deference on appeal. Spinelli v. United States, supra, [393 U.S. 410] at 419, 89 S.Ct. 584 [at 590]; Jones v. United States, 362 U.S. 257, 270-71, 80 S.Ct. 725 [735-36] 4 L.Ed.2d 697 (1960).”

Although the court in McManus found the dealer’s visit to the defendant’s residence only a “mere coincidence of timing”, under the facts of this case, we find the dealer’s visit to the defendant’s home extremely significant in finding the existence of probable cause. State v. Hadd, 127 Ariz. 270, 619 P.2d 1047, 1053 (1980) (Fact that suspected marijuana dealer was observed visiting defendant’s home immediately after he arranged to sell marijuana to undercover agents, and fact that marijuana was found in suspected marijuana dealer’s vehicle immediately after he left defendant’s home, supported conclusion of probable cause that marijuana was located in defendant’s home, for purpose of issuing warrant to search the home); State v. Watson, 113 Ariz. 218, 550 P.2d 89 (1976) (“We find that the fact that the seller left appellant’s home immediately prior to the controlled sale as strong evidence to establish probable cause in this context”). See also State v. Urrutia, 24 Ariz.App. 439, 539 P.2d 913 (1975); State v. Muffeo, 642 P.2d 404 (Wash.App.1982); United States v. Kunkler, 679 F.2d 187 (9th Cir.1982). Part of this significance lies in the fact that in this case, unlike McManus, the dealer went to the defendant’s house immediately after he had consummated one drug sale and before he made a second sale to the same party. Since the dealer had already “incriminated” himself, there is no reason to suspect that he went to the defendant’s for any reason other than to secure more cocaine.

The two-pronged probable test standard of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), does not apply in this case because the facts establishing probable cause come from the observations of law enforcement officers and not from either a confidential informant or a person connected with the crime involved or known to associate with criminals. United States v. LaFond, 482 F.Supp. 1379,1384 (E.D.Wis.1980). Since the officers were acting in their “normal capacity” as law enforcement officials, their veracity may be assumed and need not be independently demonstrated. LaFond; Kunkler, 679 F.2d at 190.

As previously discussed, the facts and circumstances related by Officer Bo-dine indicate there was probable cause to believe that cocaine was located in the defendant’s residence. No doubt, the cocaine could have been located in the dealer’s automobile or even on his person. However, this possibility does not negate the probability, as found by the district court, that cocaine would be found at the defendant’s residence. Any “alternative hypothesis ... misconceives the nature of the probable cause inquiry.” Chester, 537 F.2d at 176.

This Court finds that, based upon a common sense reading of the affidavit, the district court could have reasonably concluded that the cocaine was probably located in the defendant’s house. This finding of probable cause is supported by the affidavit. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

ON REHEARING

BOWEN, Presiding Judge.

Our finding of probable cause to search is strengthened by the application of the totality of the circumstances test of determining probable cause reaffirmed in Illinois v. Gates, (1983) - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and the abandonment of the two-pronged test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

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

Our review of the affidavit makes it apparent that the judge issuing the warrant had a substantial basis for concluding that probable cause existed to search the defendant’s residence.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


text:
    Shane BLEVINS v. STATE.
    7 Div. 91.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    On Return to Order of Remandment and Rehearing Denied Oct. 4, 1983.
    Rehearing Denied Nov. 29, 1983.
    John Baker, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On July 26, 1982, this appellant, while confined in the Dekalb County Jail, filed a pro se petition for writ of error coram no-bis, which in some respects is unintelligible but from which we understand he challenges the validity of judgments of conviction and sentence for eight separate and several felonies on grounds including a ground that he had not received effective assistance of counsel. On August 6, 1982, the trial court appointed an attorney to represent petitioner, set October 19, 1982, for the hearing of it, at which time a lengthy hearing was conducted, with petitioner and his appointed attorney present, and the testimony of petitioner and his two attorneys who represented him on the trial was taken. The trial court took the proceeding under advisement and on October 22, 1982, rendered a judgment denying the petition. A timely appeal was taken by counsel who represented him by appointment on the hearing of the petition, and the case was submitted on appeal on briefs of counsel for the parties on April 1, 1983.

Appellant’s brief presents two issues. In the first issue, he contends that defendant’s guilty pleas were not voluntarily, intelligently and understandingly entered. By the second issue, he contends that he did not receive effective assistance of counsel.

In the only appeal in any of the Circuit Court cases involved, the appeal was “from the court’s order denying his Writ of Error Coram Nobis Petition.” There is no appeal from the judgments of conviction and sentence, and the time is long past for such appeal. This precludes us from-passing on the merits of the judgments of conviction and sentence, other than as they may be affected by a resolution of the issue raised in the coram nobis petition as to effective representation of counsel vel non, the pivotal issue for us to decide, and we limit our determination herein to such issue. In doing so, however, we utilize the information contained in the court reporter’s transcript now before us by which the court reporter reports the hearing on the pleas of guilty and recites in full what was said and done by the trial judge, the defendant, and the attorneys on said hearing, which would be controlling as to whether the acceptance by the court of the defendant’s pleas of guilty in the several cases met the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and related authorities.

Between the time of the judgments of conviction and sentence and the time of the hearing of the coram nobis petition, there was another hearing conducted. That hearing was on January 15, 1982, and is captioned in the transcript as “Probation Hearing of Shane Blevins” and was commenced by a statement of the court as follows:

“Let the record reflect that before the Court is Mr. Shane Blevins with his attorneys, [the names of the attorneys who represented appellant on the trial]. Mr. Blevins was previously sentenced in cases [the numbers of the circuit court cases]. Sentences in those cases were all to run concurrently. The longest sentence being that imposed in CC-81-174. It was a sentence of confinement for a period of fifteen years. Sentences in those cases were imposed on September 11,1981. On October the 16th of 1981 Judge Cole’s office received a written communication from the defendant requesting that he be allowed to apply for probation. That correspondence was forwarded to me and on October 20th I replied to Mr. Blevins’ letter and asked [the attorneys by name who represented defendant in the trial court] to confer with the defendant about this matter. As a result of that, I have a petition filed on November the 25th of 1981 requesting the court to entertain a petition for probation on behalf of the defendant in these cases. Now, does that correctly make the history of this matter?”

To the above question, one of the attorneys for the defendant made this response:

“It correctly states the history. Our motion, actually, is sort of a two-prong thing. First is for the Court to change the sentencing in this case to reduce the sentence in the longest case to ten years so he could be considered for probation. It’s come to our attention since, we applied for probation that we could not be eligible to be considered according to the probation officer if he has a sentence longer than ten years. So, I think that’s the first hurdle we’d have to overcome.”

Thereupon, one of defendant’s trial attorneys, the defendant himself, and an uncle of defendant testified on behalf of the defendant. At the conclusion of the hearing, the court said:

“Okay. I’ll let you know something about this. I need to talk to the two lawyers about it and I need to do some research on the actual authority that I have gotten after having sentenced him. I really don’t know. But, we’ll try to make a decision about it in the next few days. And I’d like to talk to y’all maybe at pretrial sometimes when we have time, maybe talk to y’all about it. Thank you.”

From the transcript as a whole, we are convinced that at the time of the entry and acceptance of defendant’s guilty pleas in these cases the defendant was unaware of, and his attorneys were either unaware of or overlooked, the second sentence of Section 15-22-50 of Code of Alabama 1975 as follows: “The court shall have no power to suspend the execution of sentence imposed upon any person who has been found guilty and whose punishment is fixed at death or imprisonment in the penitentiary for more than 10 years.” We are reasonably satisfied, even though we are not absolutely convinced, that if defendant’s attention had been brought to the fact that the trial court would have been without power to grant him probation, he would not have pleaded guilty in the cases with the understanding that did exist between the parties that in one of such cases he would receive a sentence of fifteen years’ imprisonment, even though it should be noted in this connection that apparently there was some advantage to him in his receiving a fifteen-year sentence in one of the eight cases, specifically that he probably would “be eligible for parole sooner” than if he did not. It was understood between the parties by the plea bargaining arrangement between them, that, if the court approved, “Mr. Blevins would be sentenced to fifteen years ... and that he could divide that fifteen years as we [defendant and his attorneys] saw fit.”

We are reasonably convinced from what the trial court said at the hearing of the motion as to whether it could or should grant probation that it possibly would have done so, but we cannot say with reasonable certainty that it would have done so. If it would have done so, we are convinced that appellant has been prejudiced and that he has been done an injustice as a result of his attorneys’ not bringing to his attention the fact that a fifteen-year sentence would disqualify him for probation. Ordinarily, we think that such a mistake would entitle him to favorable action on his coram nobis petition and that a reversal of the judgment of the trial court would be in order; which reversal would require the setting aside of the judgments of conviction and sentence. We think, however, that instead of reversing the judgment at this time, we should remand the case to the trial court with instructions that it clarify, if it can, the question as to whether consideration by it of appellant’s request for probation would be a futile gesture and set forth its conclusion in a return to the order of remandment. We leave it to the trial court to determine whether there should be a hearing. If so, unless the parties agree otherwise, a court reporter’s transcript of the hearing shall be included in the return to the order of remandment. The trial court shall make return to the order of remand in due course with copies thereof to the attorneys for the respective parties. Either party aggrieved by the return will have fifteen days within which to file a brief in this court, and the opposing party will thereafter have fifteen days within which to file a reply brief.

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

REMANDED WITH DIRECTIONS.

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

ON RETURN TO ORDER OF REMANDMENT AND ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

The trial court is to be commended for its extraordinarily prompt “RETURN TO THE ORDER OF REMANDMENT,” which was filed on July 27, 1983, eight days from the date of the order of this Court remanding the case with directions. Appellee’s application for rehearing was filed on August 2, 1983, well within the time required therefor.

In appellee’s brief in support of its application for rehearing, it sets forth a motion pursuant to Rule 39(k) of the Alabama Rules of Appellate Procedure, in which it “respectfully moves this Court to adopt the following facts and statements as a part of its opinion on rehearing” in this cause:

“The Appellant at the time of his original pleas of guilt (8) was fully advised of his Constitutional rights to a trial by jury, attorney, cross-examination, service of process, etc., which are necessary in order to receive a Constitutionally valid guilty plea. Also the Appellant made his plea voluntarily and of his own free will, and without any allegation of threat or coercion. Also, the Appellant entered the pleas because he was in fact guilty of these offenses.”

In our opinion, the statement indented and quoted above does not constitute an “additional or corrected statement of facts,” and for that reason is not within the coverage of Rule 39(k). However, we are in entire agreement with the conclusions set forth in each of the three sentences of said indented and quoted statement. We should have made it clear to all concerned, although the writer evidently did not do so, that of the only two issues presented by appellant, the second issue, the one claiming ineffective assistance of counsel, was the only issue upon which a disturbance of the judgment of the trial court would be justified.

We had some hope, faint though it may have been, that a return to our order remanding the case with directions, would show with reasonable certainty whether appellant’s failure to obtain probation was the result of his attorneys’ not bringing to his attention the fact that a fifteen-year sentence would disqualify him for probation.

In the well prepared “RETURN TO THE ORDER OF REMANDMENT” is the following:

“The Appellant takes the position that he did not know that his fifteen (15) year sentence rendered him ineligible for probation. However, even if the Appellant’s sentence had been for ten (10) years or less, since he failed to request probation prior to the commencement of the execution of the sentence, he would thereby be ineligible for probation. This Court therefore determines that the Appellant’s subsequent request for probation ‘would be a futile gesture’ for that reason.”

The statement to the effect that a failure to request probation prior to the commencement of the execution of a sentence bars probation is correct, as was held in Dailey v. State, Ala.Cr.App. 402 So.2d 1117, 1118 (1981), which is cited and relied upon in the return to the order of remandment. Nevertheless, we are not absolutely certain that the principle is applicable here as to the question of the timeliness of the application or request for probation. Dailey v. State, was expressly predicated upon Ex parte Smith, 252 Ala. 415,41 So.2d 570 (1949), and Ex parte Robinson, 44 Ala.App. 469, 213 So.2d 409 (1968). In Ex parte Robinson, at 213 So.2d 409, 410, we find:

“In Ex parte Smith, 252 Ala. 415, 41 So.2d 570, it was brought out that this power to suspend sentence is a continuing one until the execution of the sentence actually begins, i.e., up to the very moment of delivery of a convict by the sheriff to the penitentiary agent.”

Whether the defendant in the instant case had actually commenced service of the sentence remains somewhat vague, except for the positive declaration of the trial court. Of course, if the execution of the sentence had commenced before the request for probation was made, the trial court’s statement is correct that it “... therefore determines that the Appellant’s subsequent request for probation ‘would be a futile gesture’ for that reason.” Even so, there is the possibility that the failure of his counsel to initiate a timely request for probation would suggest an additional basis for coram nobis relief on the ground that appellant had not received effective assistance of his counsel. Such a suggestion, however, is not to be found in the petition for writ of error cor-am nobis, or in the transcript of the proceedings as to the judgments of conviction and sentence; it is to be found in the transcript of the coram nobis hearing and in the briefs of parties in this Court. We find, therefore, that we should not conclude that appellant’s contention as to ineffective representation by counsel does not encompass a claim to the effect that defendant’s failure to obtain probation was a result of defendant’s counsel’s failure to file within the time legally required a request or petition for probation.

In the “RETURN TO THE ORDER OF REMANDMENT," it is stated that “To make a current determination of whether Appellant should be granted probation, this Court [the trial court] would need to consider those fáctors which were not presented at the hearing on January 28, 1982.” According to the return, one such factor is “that the Appellant entered a guilty plea on February 14, 1983, in the Circuit Court of Dekalb County, Alabama, to the charge of escape in the second degree and was sentenced to fifteen (15) years in the State penitentiary to run concurrently with the sentence imposed here on appeal.” We have no further information as to when that crime occurred or as to the circumstances thereof.

We now acknowledge that the return to the order of remandment demonstrates that our effort to resolve by such remandment the question whether appellant has been injured by the failure of his counsel to know and advise him that he would not be eligible for probation if he received a sentence of more than ten years has been a “futile gesture” on the part of the writer. We now turn to the question whether their failure to so advise him constitutes a violation of his Constitutional right to effective representation of counsel.

We are informed by the record proper or the transcript of the proceedings that one attorney represented defendant in four of the cases and another attorney represented him in the other four. During the testimony on the coram nobis hearing of one of the attorneys appointed by the court to represent the defendant in four of the cases, he testified:

“... The way I remember that came about, we [he and the defendant’s attorney in the other four cases] weren’t sure exactly how to break it up and we talked with Mr. Igou [District Attorney] to see what would be most beneficial to Mr. Blevins as far as getting out. And at that point in time I don’t even think I was even considering probation mainly primarily due to the fact that there were eight felony cases. I didn’t think there was a chance for it. That’s my memory, but as a practical matter we called the probation officer and asked his suggestion on it and it was his suggestion that if you give him the one fifteen-year sentence and run the rest concurrent with it, that he’d be eligible for parole sooner, and, frankly, I didn’t know if that was true or not, but I’d be always had . ..
“Q. One aspect of probation is the split sentence. Split sentence is also possible where probation is possible.
“A. That’s correct.
“Q. Was it your and Mrs. Bush’s [the other attorney] opinion that with a fifteen-year sentence he might have been entitled to probation at that time?
“A. No, it was our opinion that based on what the probation officer had told us that he would be eligible for parole sooner if he had a fifteen-year sentence.
“Q. I believe you testified you don’t have any independent recollection yourself of any discussion with Shane Blevins about probation?
“A. No.
“Q. But I believe you said you suspected there was some discussion because you always have that discussion in plea bargaining situations with your client?
“A. That’s true.
“Q. If Mr. Blevins said that he did have discussions with you and Mrs. Bush at the time — do you recall a discussion you had with Shane Blevins when the District Attorney had proposed seventeen years?
“A. No. There again, I’m not saying it didn’t happen. I just don’t recall it.
“Q. If Mr. Blevins said that he did ask about probation and he was told by you or Mrs. Bush or both of you that he could apply for probation, would that have been consistent, possible at that time?
“A. It’s possible. If I had said it, it was poor judgment on my part because, you know, if you have more than a ten-year sentence you aren’t eligible for probation.
“Q. Okay.
“A. I think what you are basically asking me is did I know at the time that he couldn’t apply for probation if he got more than ten years, and to answer that honestly, I’m not sure. The only thing I’m sure about on probation, and I’m not sure if I communicated this to him or not, but in my own mind I was satisfied that eight felony convictions, I felt like he had very little chance of probation.”

Mrs. Terry Bush, defendant’s other appointed attorney at the time of the entry of the judgments of conviction and sentence, also testified on the hearing of the coram nobis petition. On cross-examination by the appointed attorney for the petitioner (now the appellant), she said:

“Q. Mrs. Bush, did you, however, tell him that he had the right to file an application for probation?
“A. I think at one point we talked about that he could apply for probation, but he generally wanted to know what his chances were and I told him, frankly, they were not very good with the number of cases he had and that he didn’t have any employment, and we were not having a whole lot of luck getting any help out of any of his family members at that time.
“Q. I believe from your testimony at the previous — at the probation — hearing you testified, as I understand, and I believe at that time that you did not learn until some timé after that, though, that he would be barred from probation by ten years or more?
“A. That’s correct.
“Q. And he was not informed that a ten-year sentence would bar him from being qualified for probation?
“A. I didn’t. I don’t know what Gillis
“Q. Now, is it not common and doesn’t it, in fact, happen many times that on application for probation that the Judge grants sometimes a split sentencing?
“A. I explained to him that the Judge would have the right to do whatever and that I would not speak for the Judge but that, frankly, there would not be that much of a chance of probation and he never indicated to me that he wanted to ' apply for probation.”

The return to the order of remandment contains the following statement by the trial judge:

“This Court’s Order of January 27, 1982, expressed a favorable impression of the rehabilitative potential in the home of the Appellant’s uncle.”

The testimony of appellant’s uncle was given on January 15, 1982, a few days more than three months from the date of the judgments of conviction and sentence. The testimony of appellant’s uncle manifested an extraordinarily kind and loving sympathy for appellant and a willingness on the part of the uncle to do all that he could in an effort to justify probation, notwithstanding the undisputed evidence otherwise, particularly as to repetitive crimes by him, to the effect that he would not be granted probation. There is no indication that defendant or either of his attorneys had been informed prior to the judgments of conviction and sentence of the attitude of defendant’s uncle that furnished the only consideration of a request for probation. This strengthens the conclusions we reach as hereinafter stated.

The failure of defendant’s attorneys to know that defendant would have been precluded from favorable action on a petition or request for probation by reason of a sentence to imprisonment for more than ten years is not to the credit of experienced attorneys handling criminal cases. However, it is to the credit of defendant’s attorneys that under the undisputed facts they manifested extraordinary ability and painstaking effort and loyal devotion to their client’s cause and achieved for him the result for which they can be proud and he should be everlastingly grateful. We are persuaded that they should not be unduly blamed and that he should -not be unjustly rewarded for their failure to check as to the ineligibility of defendant for probation in the event of a sentence to imprisonment for more than ten years, a matter which to them at the time was apparently of little, if any, importance. In addition, it is to be noted that the advantage defendant received as to future parole by reason of the sentence of fifteen years in one of the cases and that all concerned, including defendant, were conscious of that advantage emphasizes the fact that the thoughts of defendant and his attorneys chiefly centered, in the best interest of the defendant, upon a sentence that was not to be suspended in part or in full by probation.

In our opinion, the failure of defendant’s attorneys to advise him prior to the judgments of conviction and sentence that he would be ineligible for probation if he received a sentence of more than ten years did not constitute a violation of his Constitutional right to effective representation by counsel. The judgments of conviction and sentence, the thorough and painstaking consideration of the belated effort to obtain probation, and the judgment denying coram nobis petition were all by the same judge. This gave such judge an extraordinarily good opportunity to arrive at a correct judgment as to the petition for writ of error coram nobis. Whether such judgment was correct is the pivotal question for us to decide. In our opinion, it was correct.

Although the coram nobis petition was a pro se petition and is to some extent unintelligible, as noted in the first paragraph of our opinion on original submission, this does not prevent us from our giving thorough consideration to the issue presented by the petition and by appellant’s able counsel on this appeal. Even so, regardless of what appellant may now think, he failed on the hearing of the coram nobis proceeding to meet the burden that was upon him to show by clear and convincing evidence that he did not receive effective representation of counsel in the cases in which he was convicted and sentenced, which burden has been expressly recognized in a number of cases, including Woodard v. State, Ala.Cr.App. 433 So.2d 1198, 1201 (1983), Lewis v. State, Ala.Cr.App., 367 So.2d 542, writ denied, 367 So.2d 547, and Robinson v. State, Ala.Cr.App., 361 So.2d 1172.

The judgment of the trial court should be affirmed. Such.action would render moot appellee’s application for a rehearing.

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

AFFIRMED.

All the Judges concur, except BOWEN, P.J., who concurs in the result only.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Hosea MOORE v. STATE.
    2 Div. 367.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Dec. 16, 1983 Alabama Supreme Court 83-42.

      Blanchard L. McLeod, Jr., Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and, Jean Williams Brown, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from the following judgment of the trial court:

“This cause comes on to be heard before this Court on the Petition for Writ of Error Coram Nobis filed in this Court on January 11,1983, by the Defendant without the benefit of counsel. The record in this cause affirmatively shows that there have been several petitions heretofore filed; that an Order denying it was entered on the first petition on January 25, 1975; that there was another Order on the eleventh day of June denying the second or third writ and there was a third Order on the 25th of February 1982, denying the third or fourth writ and the Court has read and examined at length the Petition filed in this cause on January 11, 1983, and finds no new matters alleged that have not been previously taken all the way to the Supreme Court of Alabama. This Court once again reiterates that this Petition for Writ of Error Coram Nobis is denied without a hearing and he is ordered to be returned to the penal system of Alabama this day.

Done this 17th day of March, 1983.”

The pro se petition shows on its face that it was executed on January 7, 1983, while petitioner was a prisoner in the West Jefferson Correctional Facility. On March 28, 1983, the District Attorney of Dallas County, Alabama, filed a motion to strike the petition, which motion sets forth the following grounds:

“1. That this petitioner has filed two other petitions for Writ of Error Coram Nobis, one in 1975 and one in 1981; both of which have been heard and ruled on, the petition in 1981 being appealed to the Alabama Court of Appeals, and being heard before this Court on February, 1982. That the petition filed in 1983 does not allege any reason or grounds which were not known to the petitioner in either of the two prior hearings.
“2. That the petition fails to allege any grounds or explanation as to why any of the grounds alleged have not been previously presented.
“3. That the petition filed in here herein is nothing more than an attempt by this Defendant to rehash matters already filed and already heard, and is an attempt by the Defendant to simply unduly take the Court’s time.
“4. That the matters alleged herein have been previously alleged in two prior petitions and have been heard and ruled on.”

The record shows that petitioner was given due notice of the denial of his petition, and he promptly appealed. The trial court appointed an attorney to represent him on appeal, and said attorney has filed a brief in appellant’s behalf, in which he urges that “this case should be reversed and remanded for a full consideration as to whether the issues raised by the petitioner are the same as any prior issues and if not, then a full hearing should be held on the issues raised by the petitioner.” In his argument in his brief, counsel for appellant states:

“The petitioner may or may not have filed prior writs of error coram nobis. No record of any prior writs is shown in the transcript. The petitioner may or may not have raised the same issues in prior hearings. The record is silent regarding any prior issues raised by the petitioner/appellant, if any. No proof of any prior writ(s) and the consent(s), if any, was offered before summarily denying this writ without a hearing. No determination as to any prior issue(s) and the raising of the same in this writ has been shown to have been determined by the Court as required by Sanders v. U.S., 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed. 148 (1963) [which should be 10 L.Ed.2d 148].”

In appellee’s brief, it is urged that “successive petitions for writs of error coram nobis containing the same allegations are properly denied without a hearing.” Cited are: Waldon v. State, 284 Ala. 608, 227 So.2d 122 (1965); Andrews v. State, 278 Ala. 434, 178 So.2d 827 (1965) and Isbell v. State, 277 Ala. 256, 169 So.2d 20 (1964).

We have no doubt as to the soundness of the proposition advanced by appellee. However, we think also that there is some merit in appellant’s position as to the unsatisfactory state of the record to show that previous petitions have been presented by appellant based on the same allegations as are found in the petition denied by the trial court upon which the appeal in the instant case is based.

We are prevented from determining the issue presently pending between the parties, not only by the inadequacy of the order of the trial court and the inadequacy of the motion of the State for a dismissal without a hearing of the coram nobis petition, but also by the inadequacy of the petition itself to set forth allegations of fact that, if true, would entitle him to the relief sought by his petition.

The nine-page coram nobis petition, handwritten by pen and ink but clearly legible by reason of the separation of the letters of the words therein, contains a rambling argument, with the citation of a large number of authorities that purport to support petitioner’s effort as stated in his petition “to set aside his plea of guilty of the 12th day of Nov., 1973.” He fails to state anything whatever as to the crime of which he was charged, as to the judgment against him or as to the sentence that was pronounced against him.

Whatever definite allegations of facts are to be found in the petition, they are so immersed in argument that has no place in a petition for writ of error coram nobis, or any other kind of petition, motion, complaint or pleading in a court of law, that we are at a loss to determine that the petition presents even a colorable cause for relief via writ of error coram nobis. The alleged fact that the target of the petition was apparently a judgment rendered more than nine years before the petition was filed, without any attempt to explain the reason for the delay in filing the petition and without any allegation to the effect that petitioner was not aware until recently of any facts that would support his petition, bespeaks the frailty, if not the insufficiency, of the petition. One of the allegations is that petitioner’s attorney “made no investigation of the victim; the lawyer did not question the character of the victim.” Without knowing what the crime was, we would not know whether the character of the victim was germane to the question of defendant’s guilt. The allegation of the petition that petitioner’s attorney “did not present evidence to the grand jury that would have acquitted the defendant” manifests a misconception of the functions of a defendant’s attorney, as he has no authority to present evidence to a grand jury.

One allegation of the petition states: “We understand that someone has tampered with the records in the courthouse. I don’t know if it was just some kid or what, but we acknowledge that it’s not the court reporter or the court’s fault in any way.” The next sentence following the one just quoted, is “The petitioner does not acknowledge that it’s not the court reporter or the court’s fault in where the record and transcript to this case is silent.”

We recognize that the petition is intelligible to the petitioner. It appears that probably it was also intelligible to the trial judge and to the district attorney, who apparently had some personal knowledge and recollection of the case in which a judgment was rendered against this appellant on his plea of guilty. However, notwithstanding the apparent intelligibility of the petition to all concerned in the case in the trial court, neither the petition nor the defendant’s motion to strike the petition, nor the court’s order denying the petition, is an aid to us in determining whether the petition presents a colorable cause of action for coram nobis relief. As a result, we are now faced with an issue on appeal that is not judicable on this judicial plane. It’s injudicability has its origin in the incognizability of the petition to anyone without first hand knowledge of any of the pertinent facts. In this circumstance, we would not be warranted in reversing the judgment of the trial court, and, therefore, the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Daniel Louis McREYNOLDS v. STATE.
    2 Div. 352.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Dec. 16, 1983 Alabama Supreme Court 83-60.

      J.L. Chestnut, Jr. of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

Appellant was found guilty of possession of marijuana. Sentence was fifteen years and fifteen thousand dollars.

On November 15,1981, Assistant Chief of Police, Joseph McGrue, responded to a call for police assistance at LeHouse Club, a social club across the street from Selma’s City Police Department. Appellant and others were standing outside the club when the Chief arrived. Appellant told the Chief that he had been threatened; the Chief advised him to leave the downtown area. The appellant got into his automobile to leave but was blocked by a city patrol car. When the patrol car moved, appellant drove away. As appellant drove off, the Chief told Officers Weber and Matthews, who had just pulled up, “[T]o go down and check him out to see if he had a driver’s license because I didn’t believe he did.”

Officers Weber and Matthews followed appellant and eventually stopped him. Chief McGrue followed the two officers in his own patrol car and was on the scene for a short time after appellant was stopped. When appellant could not produce a driver’s license, he was placed under arrest and searched. Marijuana was found in appellant’s clothing and car.

The only real issue in this case is whether the initial stop of the car was lawful. If so, the search incident to arrest was lawful and the evidence admissible; if not, the evidence should not have been admitted. The case of Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), is relevant to the issue presented. In that case, the patrolman, prior to stopping the vehicle, observed neither traffic or equipment violations nor any suspicious activity. The court said that the Fourth Amendment imposes a standard of reasonableness upon the exercise of discretion by government officials. This was taken to mean that the facts upon which an intrusion is based must be capable of measurement against an objective standard. The court held “[T]hat except in those situations which there is at least ar-ticulable and reasonable suspicion that a motorist is unlicensed .. ., stopping an automobile and detaining the driver in order to check his driver’s license is unreasonable under the Fourth Amendment.” 440 U.S. at 663, 99 S.Ct. at 1401.

In the case sub judice, all the officers involved, McGrue, Weber, and Matthews, testified that they had not seen the appellant do anything suspicious or violate any traffic laws. The only reason for stopping the car was Chief McGrue’s belief that appellant did not have a driver’s license. The basis for Chief McGrue’s belief was that he had arrested appellant for driving without a license at least a year prior to the night in question.

The State contends that Officers Weber and Matthews made the stop and, at the time, had reasonable suspicion that appellant had no license because of a reliable informer’s tip, namely, Chief McGrue. This argument is without merit. Chief McGrue made the stop; he simply used Officers Weber and Matthews as the agents or tools whereby he effected the stop. He ordered them to stop appellant. He followed them to make certain his order was obeyed. Additionally, the knowledge of one officer is imputed to others working on the same case so that the validity of the stop would still have to rest on whether McGrue had a “reasonable suspicion,” Knight v. State, 346 So.2d 478 (Ala.Cr.App.1977).

This court dealt with the issue of stopping a vehicle with less than probable cause , in the case of Johnson v. State, 406 So.2d 446 (Ala.Cr.App.1981). There, the police officer had several facts before him: (1) a robbery had just been committed, (2) he had observed appellant’s car a short distance from the store only moments after the radio dispatch concerning the robbery had been received, (3) the appellant’s car was the only vehicle on the road, and (4) immediately prior to stopping appellant’s car, he had seen several people near the store pointing in the direction of appellant’s car.

This court found that the officer “had specific and articulable facts before him from which he could have formed a reasonable suspicion that appellant had been involved in the robbery.” 406 So.2d at 448. Other cases in which facts within the stopping officer’s knowledge created an ar-ticulable and reasonable suspicion sufficiently strong to support an identity check include: United States v. Demanett, 629 F.2d 862 (3rd Cir.1980) (Coast Guard officer noticed boat that was rigged for a type of fishing not done in the area, trawl doors were lashed in place on deck, deck was clean, gear appeared not to have been used for a long time, and name of boat was not permanently affixed but printed on placard hung over stern); United States v. Miller, 507 F.Supp. 1347 (D.Md.1981) (officer noticed young black male near bank who closely fit description of bank robber; the male was on a bicycle of the type used in the getaway the day before); United States v. Turner, 474 F.Supp. 444 (E.D.Wis.1979) (officer had received suspicious vehicle call, the car was seen within one mile of the robbery, the slovenly appearance of the driver did not match the appearance of the car, the out-of-state tag was out of place on a small county road used only by local residents, the car was being driven in a very cautious manner; prior to this time the car had been noticed in a deserted area over a considerable length of time).

Cases which have held the stop and seizure to be unreasonable include: United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (Border Patrol officer stopped vehicle near the Mexican border to question its occupants about their citizenship and immigration status when the only ground for suspicion was that occupants appeared to be of Mexican ancestry); Berryhill v. State, 372 So.2d 355 (Ala.Civ.App.1979) (officer decided to check driver of vehicle for license because the vehicle was clean and freshly painted with a Florida tag which led officer to believe it was transporting illegal liquor).

We feel that Chief McGrue had no articu-lable or reasonable suspicion for stopping appellant’s car. The trial reflects a cross examination of Chief McGrue which is pertinent to our finding and reads as follows:

“Q. And you knew that he drove an automobile?
“A. Yes, Sir; I knew.
“Q. Because you had seen him in that automobile many times.
“A. Not this particular automobile.
“Q. But you had seen him driving?
“A. Right.
“Q. Had you ever stopped him?
“A. Yes.
“Q. For no driver’s license?
“A. Yes.
“Q. And arrested him?
“A. Yes.
“Q. And in point of time, Chief, the time you arrested him for no driver’s license, vis-a-vis, November 5th, was it one month before or two months or what have you—
“A. It had been at least a year, if I understand your question.
“Q. At least a year?
“A. Yes.
“Q. So you were speculating the possibility that he may not have one?
“A. That’s right.”

Nowhere in the record is there any evidence that the appellant had his license suspended, cancelled, or revoked. He was, according to the record, merely arrested for driving without a license at least one year prior to the night in question.

The penalty for driving without a license is a fine of not less than $10 nor more than $100, Ala.Code § 32-6-18 (1975). There appears to be no reason why one convicted of driving without a license could not immediately reapply and receive a valid driver’s license. Even assuming, apart from the record, that the Chief had some knowledge that the appellant’s license had been suspended or revoked, that status usually lasts for a year or less. Ala.Code § 32-5A-195 (1975). The Chief did not have a reasonable suspicion but was merely speculating, as he admitted on cross examination.

The lack of reasonable suspicion on the part of the Chief is further supported by the fact appellant had been seen driving prior to the time of the stop. No attempt was made to check appellant’s license. The Chief did not inquire about appellant’s license when the car was blocked. Then, after sending another patrol ear out on a routine task to cheek appellant’s license, the Chief felt that it was necessary to follow in his own car. In addition, the Chief admitted that he was suspicious of appellant’s drug related activities. A traffic officer may not stop an automobile and ask to see the operator’s license as a ruse in an intended search for evidence of some possible crime unrelated to the possession of a driver’s license merely to avoid the requirements of a search warrant. Lipton v. United States, 348 F.2d 591 (9th Cir.1965).

Regardless of the true motive that prompted the stop, we conclude the stop was unlawful. The placing of reasonable restraints on the right of the State to interfere with personal liberty is not an unreasonable burden.

The judgment of the lower court is reversed and this cause remanded.

REVERSED AND REMANDED.

All the Judges concur.