author: PATTERSON, Judge.

text:
    Maurice MITCHELL v. STATE.
    8 Div. 21.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-114.

      J. Witty Allen of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for ap-pellee.
   PATTERSON, Judge.

Appellant Maurice Mitchell pleaded guilty to burglary in the third degree. He was sentenced to ten years’ imprisonment, with the first twelve months to be served and the balance suspended.

Appellant was released from custody on July 15, 1983. On August 19, 1983, a Supervisor’s Report on Delinquent Probationer was filed in which it was stated that Mitchell had been arrested and charged with the offense of burglary. The report also stated that appellant had given a statement to police authorities admitting his guilt.

On October 11, 1983, a probation revocation hearing was held at the conclusion of which appellant’s probation was revoked. Since we have decided to reverse this case based on the third issue raised by appellant, we will discuss only that issue in depth.

Appellant contends there was insufficient evidence “to reasonably satisfy the court of the violation of the conditions of probation”. Mitchell further states that the use of hearsay evidence denied him his right to confront and cross-examine adverse witnesses.

Two witnesses testified for the State at the hearing. The first was Billy Cockes, Mitchell’s probation officer. He testified about information he received from the Decatur Police Department concerning a burglary charge made against the appellant. The witness’s written report concerning that charge was introduced into evidence at the hearing. Officer Cockes testified that his report stated that a vehicle belonging to Byron Yann was entered by a black male, and a briefcase was stolen. A witness observed the incident and called the police, who responded within fifteen minutes. The appellant was taken into custody and, according to the witness, Mitchell “reportedly admitted his guilt to arresting officers”. The witness testified that he had no personal knowledge of the incidents recorded in the report.

The State’s next witness, Gregory J. Sexton, testified that he was a patrolman with the Decatur Police Department. He stated that on July 27, 1983, he responded to a complaint. When Officer Sexton arrived on the scene, he was told by a man named Byron Vann that the two black males who had broken into the vehicle were walking up Sixth Avenue. The officer testified that another individual, named Mary Cannon, pointed out two black males walking south, and the two men were arrested. One of the arrestees was appellant Mitchell. The officer testified that Mitchell was not questioned on the scene. The witness further stated that he was not present when Mitchell made a statement.

Neither the victim, Byron Yann, nor the witness, Mary Cannon, testified at the hearing.

The law is clear that a probation officer’s report standing alone, and with no primary evidence to support it, cannot form the sole evidentiary basis for the revocation of probation. To rely on such evidence alone denies the probationer the right to confront and cross-examine witnesses. Jenkins v. State, 368 So.2d 329 (Ala.Crim.App.1979); Hill v. State, 350 So.2d 716 (Ala.Crim.App.1977).

The question for us in the instant case is, therefore, whether the testimony of Officer Sexton, when added to the evidence revealed by the probation officer’s testimony and report, provided sufficient evidence to support Mitchell’s probation revocation. It is not necessary in a probation revocation hearing to provide proof beyond a reasonable doubt or by a preponderance of the evidence. Rather, the lower court need only be “reasonably satisfied from the evidence that the probationer has violated the conditions of his probation”. Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

This court has held that “probation cannot be revoked solely upon hearsay evidence”. Moore v. State, 432 So.2d 552 (Ala.Crim.App.1983); Watkins v. State, 455 So.2d 160 (Ala.Crim.App.1984). The only evidence presented against Mitchell in this hearing was hearsay. Neither the victim, nor any other witness who could have identified the appellant as the perpetrator of the crime, testified. Although Probation Officer Cockes said that his report indicated Mitchell had made an inculpatory statement to police, no other evidence was offered to support this allegation. Officer Sexton was not present when the crime was committed, and he arrested Mitchell solely upon the information given to him by others.

While it is not necessary that a probationer be convicted of the charged offense before his probation is revoked, it is nevertheless true that the filing of charges or an arrest, standing alone, is insufficient ground for probation revocation. Nicholson v. State, 440 So.2d 1205 (Ala.Crim.App.1983); Free v. State, 392 So.2d 857 (Ala.Crim.App.1980), writ denied, Ex parte Free, 392 So.2d 859, cert. denied, 451 U.S. 990, 101 S.Ct. 2329, 68 L.Ed.2d 850 rehearing denied, 452 U.S. 973, 101 S.Ct. 3129, 69 L.Ed.2d 985 (1981).

As this court has said:

“If merely being arrested is sufficient for revocation, then revocation would lie within the discretion of police officers, rather than judicial officers. In such a case, judges would only perform the ministerial duty of determining if an arrest had been made and then signing the revocation order. The decision to revoke probation is a judicial function and should be based upon the appellant’s conduct and not upon an accusation only. The State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.” Hill, supra.

After carefully examining the evidence presented at appellant’s hearing, we must conclude that it was insufficient to support the decision to revoke his probation.

Although we find it unnecessary to rule on the other two issues raised by appellant, we note for the benefit of the lower court that the Supreme Court of Alabama in Armstrong v. State, supra, ruled that a probationer is entitled to “written notice .... of the claimed violation of probation”, as one of the minimal due process requirements that must be met before probation can be revoked. In the same case the court also mandated that probation cannot be revoked without “a written statement by the judge as to the evidence relied on and reasons for revoking probation”. See Joiner v. State, 454 So.2d 1048 (Ala.Crim.App.1984).

For the reasons cited, we conclude that the decision of the lower court must be reversed and the cause remanded for another hearing.

REVERSED AND REMANDED.

All Judges concur.


source: Caselaw Access Project

author: TYSON, Judge. BOWEN, Presiding Judge,

license: Public Domain

text:
    Michael Wayne CLARK v. STATE of Alabama.
    6 Div. 409.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-109.
    George W. Andrews III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas K. Brantley, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Michael Wayne Clark is charged in five separate indictments with committing the following offenses on the night of February 11, 1983. First degree rape, contrary to § 13A-6-61, Code of Alabama 1975 as amended; first degree sodomy, contrary to § 13A-6-63, Code of Alabama 1975; first degree kidnapping, contrary to § 13A-6-43, Code of Alabama 1975; first degree robbery, contrary to § 13A-8-41, Code of Alabama 1975 and first degree burglary, contrary to § 13A-7-5, Code of Alabama 1975. The jury found the appellant guilty of each of the above five offenses finding, however, that the appellant was “guilty of ‘kidnapping in the second degree’ but of the first degree charged as to the other four offenses.” Following a sentencing hearing at which the appellant was determined to be a habitual offender, the trial court sentenced the appellant to life imprisonment in each of the five offenses and directed that such sentences be served concurrently.

Janice A., the prosecutrix, testified that she lived with her husband at 3431 Exeter Avenue in Bessemer on the night of February 11, 1983. Her husband had left with two men shortly before 10 o’clock.that evening. About thirty minutes later there was a knock on the door and her six year old daughter answered same. She stated that she recognized immediately the appellant as he had been by her home twice during that same week and talked to her husband. She also stated that she had known the appellant for approximately 16 years before the night in question. She made a positive in-court identification of the appellant.

Succinctly stated, the following occurred. The appellant forced his way into her apartment home at pistol point and demanded of her “Bitch, where’s the money? ” She stated that he then went rambling through the drawers in her chest of drawers; that her three little girls, all of whom were under the age of six, were crying and that the appellant had a woman’s stocking over his face. The appellant stated to her, “Bitch, I don’t give a damn, I kill you and your children both.” He then finally dragged her from the apartment at pistol point, by the arm, and took from her $4.00 which was in her bra and a gold quartz watch. She stated that she was only dressed with red pants and a beige shirt in addition to underclothes and house shoes. Appellant then took her to an old house which was being rebuilt about a block and a half from her home. At pistol point, he then forced her to strip and perform oral sex. She stated she gagged and threw up, but that he required that she do this three times.

The appellant then required her to remove all of her clothing, which he forced her to do at pistol point, and had sexual intercourse with her three times. He then kept the watch and money before turning her loose and letting her return to her home. She came in crying, with part of her pants torn, and made complaints to her husband who returned shortly after she did. Her husband then left to see the appellant.

The prosecutrix testified that it was only after her husband returned to the house that they then telephoned the police and that she was taken to the hospital for examination. She testified that she had not had sex with her husband for some several days prior to the night of the incident. She stated she gave the police a detailed report of the incident and that it was necessary for her to return to the hospital about a week later to be treated for injuries to her vagina.

The appellant’s husband testified that he had left the home to go to a card game with two friends around ten o’clock that evening. His wife was home with three daughters when he left. He stated that he returned about an hour and a half later and that, when he came in, she was crying and her clothes were torn. He stated that after talking with her he went to his mother’s home and grabbed a rifle and then went looking for appellant. He stated that he did not find the appellant at first but that later he went to the appellant’s house and told him that he wanted him to come with him to find out if what his wife said was true. He said the appellant refused to leave his own home. The husband then returned to his home and called the police and took his wife to the hospital for treatment.

Jefferson County Sheriff Sergeant John B. Davis testified that he went to the home of the prosecutrix on the night of February 12, 1983 and arrived there sometime after midnight. He stated that the prosecutrix told him that the appellant had put a gun to her head and threatened to blow her head off and had even pulled the trigger but that the gun did not fire. She stated that in an old vacant house he forced her to perform oral sex three times and then had sexual intercourse with her three times. He stated that he then went to the scene and found a chewing gum wrapper and evidence of human vomit.

He then went to the home of the appellant and recovered a pistol from underneath the mattress in the bedroom where the appellant’s mother stayed and he found that there were two bullets in the gun which had “dented primers”. He stated that these rounds were live, but were old. Some items of clothing were turned over to him which were taken to the Department of Forensic Sciences for examination along with a pistol which he recovered. These items were confirmed by Evidence Sergeant George Knight of the Jefferson County Sheriffs Department.

Sandy Whitsitt testified that he was employed in a store known as “The Pantry” in Bessemer in February, 1983. He stated that he learned of the incident involving the prosecutrix from her husband. Whitsitt testified that he saw the appellant, Michael Clark, in the store between 8:30 and 9:00 o’clock on the evening of February 11, 1983. He stated that the appellant was wearing a skull cap, a black leather jacket, blue jeans and white tennis shoes. He stated that under the skull cap was a stocking cap which had been cut off. He stated that he knew the husband of the prosecu-trix and remembered the clothing worn by the appellant on the night in question. Whitsitt also testified that the District Attorney and the prosecutrix’s husband had come to the store where he was employed on the date of his testimony at trial and that he told them of seeing the appellant in the store on the night of the incident and as to the clothing the appellant was wearing.

The medical records reflecting the treatment on the prosecutrix were then stipulated into evidence.

The appellant’s motion for a judgment of acquittal was then overruled by the trial court.

The appellant presented the testimony of Edwin Mack, Felix Belcher and Earnest Moorer, all of whom testified as to seeing the appellant on the night in question, February 11, 1983, at the Dartmouth Lounge and of talking with him and having a drink with him during the approximate time in which the incident in question allegedly took place.

Belcher testified the appellant was wearing a different type of clothing of that previously testified to by the prosecutrix.

Moorer testified that he left the club around 11:00 o’clock that evening with the appellant and saw him walk out to a car.

The appellant’s brother, Freddie Clark, testified that he was a student at Lawson State College. He testified that he had been at his girl friend’s home and later return to his own home and watched television. He saw the appellant come in about 11:15 p.m. and then go to bed. Freddie testified that sometime around midnight or shortly thereafter, the prosecu-trix’s husband came by and knocked on the door and said he wanted the appellant to come go with him. He stated that the prosecutrix’s husband asked, “Why don’t you come go with me where I can see did my wife say it was you.” He stated that the police arrived in the early hours of the morning and made an arrest.

Ruth Mae Clark, the appellant’s mother, testified that she saw the appellant at home earlier on the evening of February 11, 1983, but that he left shortly before 10:00 o’clock that night. She stated that she had a pistol which she kept under her mattress in her home and that the next morning when the police came by she gave them the pistol. She stated that the appellant did not own a black leather jacket.

After the close of all of the evidence the appellant renewed his motion for a judgment of acquittal which was denied. The appellant also requested the affirmative charge with hypothesis as to each of the five indictments and this was denied.

I

The appellant first contends that the State failed to prove a prima facie case as to each of the indictments against him. The evidence against the appellant with reference to the charge of first degree rape is amply borne out through the testimony of the victim which was properly corroborated through the testimony of the investigating officers and the medical records. Thus, the appellant’s motions and requests for charges were properly denied on this basis. Harris v. State, 333 So.2d 871 (Ala.Crim.App.1976); Dozier v. State, 415 So.2d 3 (Ala.Crim.App.1982).

Similarly, the evidence amply supports the indictment for first degree sodomy. Horn v. State, 49 Ala.App. 489, 273 So.2d 249 (1973) and Rowe v. State, 421 So.2d 1352 (Ala.Crim.App.1982); Jackson v. State, 375 So.2d 558 (Ala.Crim.App.1979); Turbyfill v. State, 356 So.2d 775 (Ala.Crim.App.1978).

We have also examined the record with reference to the testimony concerning the charge of kidnapping. The jury brought in a verdict of “guilty of kidnapping in the second degree”. This charge, likewise, is properly sustained by the evidence in this cause as testified to by the victim and as corroborated by the officers and her husband. See Crews v. State, 374 So.2d 436 (Ala.Crim.App.1979) and Gurley v. State [Ms. June 12, 1984], 4 Div. 266 (Ala.Crim.App.1984).

With reference to the charge of first degree robbery, the evidence showed that the cash on the person of the prosecu-trix, together with her watch, was removed from her at pistol point. This fully sustains the indictment for first degree robbery in this cause. Cheatham v. State, 431 So.2d 1350 (Ala.Crim.App.1983); James v. State [Ms. June 12, 1984], 4 Div. 266 (Ala.Crim.App.1984).

We have also carefully examined this record and find that the evidence produced at trial fully sustains the charge of first degree burglary. Guyton v. State, 435 So.2d 239 (Ala.Crim.App.1983).

II

The appellant next contends that the Alabama Habitual Felony Offender Act is unconstitutional and that it was unconstitutional to apply it to this appellant retroactively.

This court has passed upon these allegations several times in past years. We upheld the constitutionality of this act in Watson v. State, 392 So.2d 1274 (Ala.Crim.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). See also Smith v. State, 392 So.2d 1273 (Ala.Crim.App.1980).

We have rejected the argument that this act is violative of the ex post facto provision of the United States Constitution in the following cases. James v. State, 405 So.2d 71 (Ala.Crim.App.1981); Seritt v. State, 401 So.2d 248 (Ala.Crim.App.1981), cert. denied, 401 So.2d 251 (Ala.1981); Smith v. State, 401 So.2d 251 (Ala.Crim.App.1981), cert. denied, 401 So.2d 257 (Ala.1981); Dozier v. State, 415 So.2d 3 (Ala.Crim.App.1982). Also, Seritt v. Alabama, 731 F.2d 728, 735 (11th Cir.1984).

Ill

Finally, the appellant asserts that the following comment of the District Attorney during closing argument constituted impermissible argument, and on the basis of such, this cause should be reversed.

“If this Sandy Whitsitt was going to lie — and I will say this, I went out there at lunch time and I found him because I found out there was a man who knew something about this man named Sandy and he might could tell me something. And I went out there with Kenneth Andrews looking for him. And I found him.
“MR. TUCKER: I talked to him before I put him on the stand just like I talk with any witness. When I put someone on this witness stand as my witness I vouch for their credibility. Now, anybody can make a mistake on the stand. But, I vouch they are going to be a credible witness.
“MR. ANDREWS: Judge, I’m going to object to that.
“MR. TUCKER: That is the law of this state, Your Honor.
“THE COURT: State your objection.
“MR. ANDREWS: I object to him vouching for the credibility of the witness. He is not personally vouching for the credibility of a witness.
“MR. TUCKER: I think the law says otherwise.
“THE COURT: Overruled.
“MR. ANDREWS: We except.”

The appellant’s counsel argues that Whitsett, the witness, was “an eleventh hour” witness and the District Attorney had “personally vouched for this witness’ credibility”, therefore, this cause should be reversed.

We do not put the same construction on the colloquy above quoted as appellant’s counsel. In Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961), the Supreme Court of Alabama observed the following:

“It is sometimes difficult to draw the line between allowable argument and improper statements in argument. The rule is that an attorney cannot be allowed to state anything as a fact as to which there is no evidence. Olden v. State, 176 Ala. 6, 11, 58 So. 307. But the solicitor may properly comment upon the evil generally of the crime which the law he is seeking to enforce intends to prevent. Dollar v. State, 99 Ala. 236, 13 So. 575. It is only when the statement is of a substantive, outside fact — stated as a fact — and which manifestly bears on a material inquiry before the jury, that the court can interfere and arrest discussion. Cross v. State, 68 Ala. 476, 484; Sanders v. State, 260 Ala. 323, 70 So.2d 802. The remark of the solicitor did not fall within the ban of prejudicial argument but was merely arguendo of his opinion of the case and what the result of the jury verdict should be.”

Similarly, this court, speaking through Judge Harris in Milton v. State, 417 So.2d 620 (Ala.Crim.App.1982) observed:

“Counsel for both the State and appellant are allowed wide latitude in drawing reasonable inferences from the evidence in their closing arguments. A prosecutor as well as defense counsel has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference. Manigan v. State, Ala.Cr.App., 402 So.2d 1063, cert. denied, Ala., 402 So.2d 1072 (1981).”

The court noted also:

“Furthermore, the credibility of a witness is a legitimate subject of criticism and discussion. Flint v. State, Ala.Cr.App., 370 So.2d 332; Smith v. State, Ala.Cr.App. 344 So.2d 1239, cert. denied, 344 So.2d 1243 (Ala.1977).”

The U.S. Fifth Circuit in Powell v. Wiman, 287 F.2d 275 (1961) stated:

“In Alabama, ‘when a party places a witness on the stand, he thereby vouches for his credibility.’ ” (Citations omitted).

In the case at bar, the prosecutor was not personally vouching for the witness who had been called, but rather was arguing to the jury as to the effect of that witness’ testimony. That is, that the witness gave an accurate account of the description of the clothing being worn by the appellant on the night in question. We see no error.

We have carefully examined this record, including all arguments advanced by counsel for appellant. This record is free of error. The judgment of the trial court is therefore due to be and the same is hereby affirmed.

AFFIRMED.

HARRIS and PATTERSON, JJ., concur.

BOWEN, P.J., concurs in result with opinion.,

TAYLOR, J., joins in BOWEN opinion.

BOWEN, Presiding Judge,

concurring in result.

I concur only in the result of the majority opinion. The prosecutor’s comments go beyond the realm of reasonable forensic debate. The majority opinion is somewhat similar to the dissenting opinion of Judge Johnson in McGhee v. State, 41 Ala.App. 669, 671-73, 149 So.2d 1 (1962), which was rejected in McGhee v. State, 274 Ala. 373, 149 So.2d 5 (1963).

The objectionable portion of the prosecutor’s arguments is:

“MR. TUCKER: I talked to him before I put him on the stand just like I talk with any witness. When I put someone on this witness stand as my witness I vouch for their credibility. Now, anybody can make a mistake on the stand. But, I vouch they are going to be a credible witness.”

This is a flagrant violation of the rule.

“Generally, the authorities indicate that impropriety and prejudice may result just as readily from crediting one’s own witness with truthfulness as from charging an opposition witness with faults. While counsel may properly argue as to the weight and sufficiency of the evidence and the credibility of witnesses from the evidence if he neither says nor insinuates that the statement is based on his own personal knowledge or anything else besides the witnesses’ testimony at the trial, it is not proper for him to take the position of an unsworn witness as to credibility. Thus, statements by counsel arguing the witness’ credibility from his official position or occupation; or counsel’s personal acquaintance with the witness, usually for some stated duration of time, are quite regularly construed as reversible error, usually on the ground that such comment constitutes unsworn testimony by counsel.” 75 Am.Jur.2d, Trial § 306 (1974).

Here, the prosecutor was arguing the witness’s credibility based upon his own personal knowledge — not upon the witness’s testimony at trial and the evidence before the jury.

While the prosecutor’s infraction of the rule is obvious, I do not think it warrants a reversal of the conviction. Considering the weight of the evidence against this appellant, it is unlikely that the possible prejudice was instrumental in the jury’s finding.


author: BOWEN, Presiding Judge.

text:
    Edward Charles TATE v. STATE.
    1 Div. 846.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-101.

      Raymond A. Pierson, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   ON REHEARING

BOWEN, Presiding Judge.

We withdraw our opinion on original submission and the opinion which follows addresses both issues raised on appeal and becomes the opinion of the Court.

Edward Charles Tate was indicted and convicted for the attempted murder of Pearl Marie Dixon in violation of Alabama Code 1975, § 13A-4-2. Sentence was life imprisonment. Two issues are raised on appeal.

The State presented a prima facie case of attempted murder. That evidence authorizes the inference that the defendant lit and threw a Molotov cocktail at Ms. Dixon’s car with the intent to kill her. However, if the jury believed the defendant’s testimony, they could find that the defendant threw a coke bottle at Ms. Dixon’s car out of anger or frustration, that he did not know the bottle contained gasoline, and that he did not intend to kill anyone.

I

The defendant argues that the trial court erred in refusing his requested jury instructions on assault in the second and third degrees as lesser included offenses of attempted murder.

The requested charge on second degree assault is as follows:

“I charge you, members of the jury, that embraced within the offense of attempted murder, as charged in the indictment, is the lesser included offense of assault second degree. If after your consideration of the evidence or the lack of evidence you are not satisfied beyond a reasonable doubt that the defendant is guilty of attempted murder, you can not find him guilty of attempted murder and can consider if the defendant is guilty of the lesser included offense of assault second degree.”

The requested charge on third degree assault was identical except that “assault third degree” replaces the words “assault second degree”.

Both requested charges were properly refused.

“Ordinarily, a charge that an indictment includes a lesser offense, when there is added to it the further instruction that the jury has authority to find the defendant guilty of the lesser offense, should be refused unless (1) the charge defines the offense, (2) is based on a consideration of all the evidence, and (3) sets out the degree of proof necessary to establish the offenses.” Lami v. State, 43 Ala.App. 108, 180 So.2d 279, cert. denied, 278 Ala. 710, 180 So.2d 282 (1965).

We distinguish the charges requested in this case from “a simple charge which states that lesser offenses are included in an indictment.” Chavers v. State, 361 So.2d 1106, 1108 (Ala.1978). Here, there was not even additional requested charges defining the offenses of second and third degree assault.

As the defendant’s appellate counsel recognizes, the requested instruction on assault in the third degree was properly refused because the severity of Ms. Dixon’s injuries precludes this offense. Assault in the third degree, by statutory definition, involves the intentional, reckless, or negligent infliction of physical injury, Alabama Code 1975, § 13A-6-22, which is defined as the “[impairment of physical condition or substantial pain.” § 13A-l-2(8). It cannot be disputed that this case involves serious physical injury, that is “[pjhysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” § 13A-l-2(9). There was undisputed testimony that Ms. Dixon suffered second to third degree burns over 50% to 60% of her body. A physician testified that she “had a very significant chance of dying from these injuries” and that “[ejven with treatment there was a great chance she may have died.” Consequently, the requested charge on third degree assault would have been properly denied even had a correct charge been submitted.

II

In an unsolicited response, Ms. Dixon testified that she caught Tate with a marijuana cigarette in explaining why she told him to leave her house on the afternoon of the incident. This answer was admissible on the question of intent and malice even though it constituted evidence of an offense not charged in the indictment.

Ms. Dixon and Tate had been living together. That afternoon they had a “misunderstanding” and she asked Tate to leave her house. When he refused, she ran into the bathroom. Tate followed, kicked down the door and started “beating up” on her. Ms. Dixon’s nephew arrived and Tate left. The police were called and she had a conversation with them.

After that, Ms. Dixon decided to leave her house. As she was walking to her car, Tate appeared and asked her, “Do you mean what you say?” Ms. Dixon did not answer and got in her car. Then Tate threw the gasoline-filled bottle.

Evidence of the prior difficulties between the victim and her assailant was admissible for the reasons stated in Smith v. State, 447 So.2d 1327, 1330 (Ala.Cr.App.1983), affirmed, 447 So.2d 1334 (Ala.1984):

“In a prosecution for unlawful homicide it is ‘permissible to show all that transpired at the time of the difficulty and everything leading up to and explanatory of the tragedy.’ Moulton v. State, 19 Ala.App. 446, 450, 98 So. 709, cert. denied, 210 Ala. 656, 98 So. 715 (1923). Testimony is admissible if it ‘tend(s) to prove the surrounding facts and circumstances leading up to and relating to the homicide.’ Hill v. State, 25 Ala.App. 264, 265, 144 So. 582 (1932). ‘(E)vidence of connected acts leading up to and explanatory of killing, throwing light on action, animus, or intent of accused, is admissible, though not res gestae.’ Smallwood v. State, 26 Ala.App. 360, 361, 159 So. 699 (1935). See also Palmer v. State, 401 So.2d 266, 269-70 (Ala.Cr.App.), cert. denied, Ex parte Palmer, 401 So.2d 270 (Ala.1981).”

Those principles apply with equal validity in a prosecution for attempted murder.

The judgment of the circuit court is affirmed.

ORIGINAL OPINION WITHDRAWN; APPLICATION .FOR REHEARING OVERRULED; JUDGMENT AFFIRMED.

All Judges concur.


author: TAYLOR, Judge.

text:
    James WHITE v. STATE.
    1 Div. 823.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-220.

      Christopher Knight, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Appellant James White, convicted of robbery and sentenced as a recidivist to life imprisonment without parole, prosecutes this appeal.

I

He contends first that the evidence was insufficient to sustain a jury verdict of guilty of robbery in the first degree. Specifically, he argues that the force employed by him was not employed to effectuate the taking of the stolen property. As a companion issue, he contends that the state failed to prove a prima facie case of robbery in the first degree, since, he contends, the violence or putting in fear was, under the common law, required to precede or to be contemporaneous with the taking of the property.

The state’s evidence tended to show that Mr. Greg Richardson, the security manager at the Gayfers store in Springdale Mall, Mobile, observed a man in the store picking up merchandise at random and not really looking at it. When the man, later determined to be the appellant James White, made a purchase of a pair of shoes, the security staff checked the credit card he was using, and the name on the card did not fit the person. When he again attempted to purchase merchandise using the card, the guards called the credit authorization center and learned that the credit card had been reported stolen. Earlier that day, the business manager of the Brown, Hudgens and Richardson law firm in Mobile, had found the appellant in his offices. Appellant stated that he was looking for a job. Mrs. Janet Perez Spencer, a legal secretary with the firm, discovered that day that her Gayfers credit card and a .38 caliber revolver were missing from her purse and reported the theft. The Gayfers security personnel, acting upon this information, escorted the appellant to an upstairs office in the store, where they called the card owner. Appellant White then admitted to them that the card was not his. Appellant put down some of the merchandise while he was in the security office. When the guards asked to search him, however, he pulled a gun and cocked it. He told them to back up or he would blow their heads off, then grabbed one Mr. Rick Hinton and used him as a hostage to get out of the store. Upon reaching the parking lot, the appellant, still with his hostage, whom he held in a choke hold, sought to take a car parked outside the store. There was some confusion regarding getting the right keys to a car in which he could make an escape. The hostage, Mr. Hinton, then pretended to pass out. Appellant thereupon took a new person hostage to drive the stolen car, and they drove away. Eventually, several police cars cornered the appellant’s car at the Radney Funeral Home and blocked him in. After about 10 minutes’ negotiation with the officers, appellant agreed to surrender himself without a shoot-out. A great deal of corroborative testimony was received. At the scene of the arrest, Sgt. Farmer recovered a box containing shoes from the passenger side of the stolen car and also recovered a wristwatch from the appellant’s right front pocket. These items were the same as the items appellant had attempted to purchase with the stolen credit card.

Section 13A-8-43, Code of Alabama 1975, defines “third degree robbery”:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

The elements of the use of a dangerous instrument or deadly weapon or serious physical injury to another must also be proved, to constitute robbery in the first degree. The words “in the course of committing a theft” are defined to include “acts which occur in an attempt to commit or the commission of theft, or in the immediate flight after the attempt or commission.” Ala.Code 1975, § 13A-8-40. Appellant’s contention that the force employed by him was separate and distinct from the taking of the property was the subject of disputed testimony during the trial itself. The commentary of § 13A-8-41, Code of Alabama 1975, states in this respect:

“The Criminal Code adds two new methods of committing robbery. The first, use of threat of violence in an attempted theft, simply combines into robbery the present separate offense of assault with intent to rob....
“The second, use or threat of force in escaping, broadens the scope of robbery. There should be no distinction between cases in which force is used to gain possession of another’s property and cases in which possession is gained and then force is used to retain possession.... The expansion, of course, is limited to threats and assaults to effect an immediate escape.”

We find that the jury was justified in relying on the testimony regarding the stolen articles being recovered from the person of the appellant or from the get away car, in making out the elements of the offense of robbery in the first degree. Even without this evidence, however, the evidence before them was clear to the effect that the appellant did use force and a deadly weapon to effectuate his immediate escape. This, too, constitutes first degree robbery.

II

Appellant contends that the court erred in refusing his written requested charge on the offense of theft of property in the second degree. The evidence of the robbery, the kidnapping, the taking of the get away car was all uncontradicted. Either the jury believed that this robbery took place or they did not. The jury did choose to believe the robbery occurred. The initial fraudulent use of the credit card to obtain the property was not the gravamen of the robbery in this case. It was the use of the deadly weapon to effect an escape or in the alternative, a taking of the property after his theft was suspected. The court did not err in refusing to charge on second degree theft.

III

Appellant next contends that he did not receive a fair trial because the prosecutor used his peremptory challenges to systematically exclude black people from the trial jury. In this case, there was no proof of a systematic exclusion of blacks by the prosecutor. Absent such proof, the case is not subject to reversal on that ground. See Carpenter v. State, 404 So.2d 89 (Ala.Crim.App.1980), writ quashed, 404 So.2d 100 (Ala.1981).

IV

Appellant next contends that application of the Habitual Felony Offenders Act in his case violated the cruel and unusual punishment provision and the equal protection of the law provision of the United States Constitution. These issues have been decided adversely to the position of the appellant in a large number of cases, which we will not cite here. We further find that the sentence is not disproportionate under the guidelines of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

V

Appellant next contends the court erred in denying his motion for mistrial based on remarks made by the prosecution. The prosecutor referred to other indictments against the appellant. The court promptly gave a curative instruction. We find that the court did not abuse its discretion in denying the motion for mistrial. See Kelley v. State, 405 So.2d 728 (Ala.Crim.App.), cert. denied, 405 So.2d 731 (Ala.1981).

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Arthur THOMPSON v. STATE of Alabama.
    3 Div. 918.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-223.

      Billy L. Carter, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Arthur Thompson was indicted for assault in the first degree in violation of § 13A-6-20, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and the trial judge set sentence at 15 years’ imprisonment in the penitentiary, pursuant to the Habitual Felony Offender Act.

On March 10, 1982, Joe Riggins was at his home on Scott Street in Montgomery. His cousin, the appellant, was also at Rig-gins’ home. The appellant had been living with Riggins for approximately one month prior to this incident, following his release from Bryce Hospital.

At some point, while Riggins was watching television, the appellant accused Rig-gins of drinking his gin and hit Riggins with the gin bottle. Riggins pushed the appellant and ran next door into his neighbor’s house and the paramedics and police were called. Riggins received stitches on his head and chin as a result of this incident and remained hospitalized for several days.

I

The sole issue the appellant raises on appeal concerns the sanity of appellant at the time of the offense charged. He asserts the evidence of his insanity was so overwhelming that the jury’s verdict was contrary to the evidence.

Therefore, his motion for judgment notwithstanding the verdict or in the alternative, his motion for new trial should have been granted.

“ ‘A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.’ Alabama Code 1975, Section 13A-3-l(a). The legal principles governing the burden and sufficiency of proof of insanity were collected in Christian v. State, 351 So.2d 623 (Ala.1977).
“ ‘Those principles may be summarized as follows:
“ ‘1. By statute, there is a presumption of sanity extending to all persons over the age of 14.
“ ‘2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.
“ ‘3. The burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence and to the reasonable satisfaction of the jury.
“ ‘4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.
“ ‘5. In making its determination, the jury may reject all expert testimony though it is without conflict.
“ ‘6. However, opinion testimony, even of experts must be weighed by the jury and may not be arbitrarily ignored.
“ ‘Authority for each of these principles may be found in Christian, supra, at 351 So.2d 624.
“ ‘The one exception to these rules is found in those cases where the proof of insanity is overwhelming and uncontra-dicted.
“ ‘Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.’ Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 (1934).
“Herbert v. State, 357 So.2d 683, 688-89 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978). Generally, see Anno. 17 A.L. R.3d 146 (1968).”

Cunningham v. State, 426 So.2d 484 (Ala.Crim.App.1982), cert. denied, (Ala., February 11, 1983), and cases cited therein.

The evidence in this case showed that the appellant had been in and out of mental hospitals for twenty years and had been released from Bryce only a month prior to this incident. During the month following his release, Riggins and the appellant’s mother had tried to get the appellant readmitted at Bryce, but Bryce Hospital refused. Shortly after the incident Alan Stewart, the Associate Clinical Director for the Montgomery Area Mental Health Authority, who was familiar with the appellant’s mental problems, examined the appellant. Stewart recommended the appellant be sent to Bryce for further examination. The evaluation done by Bryce Hospital determined that the appellant had a “Schizophrenic Disorder, Paranoid, Chronic with Acute Exacerbation.” (R. 69). The appellant was found to be in the borderline range of intellectual activities.

In conclusion, the evaluation stated that the appellant was competent to stand trial but in the opinion of the staff, the appellant was suffering from a mental disease at the time of the offense charged, and therefore, “lacked the substantial capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law” at the time of the offense. (R. 70).

The appellant contends this evidence was so overwhelming that it overcame the presumption of sanity. We do not agree.

“Even though evidence of an accused’s insanity is overwhelming, it must also be undisputed for this court to find that the jury’s verdict was contrary to the evidence presented at trial. Cunningham, supra.Mastin v. State, 455 So.2d 244 (Ala.Crim.App.1984). While we believe there was ample evidence of the appellant’s insanity, we do not believe it was undisputed.

First of all, Riggins testified that the appellant had not had any problems in the last month and that the appellant was fine when he was on his medication. There was no evidence presented at trial which would lead the jury to believe the appellant was not taking his medicine.

Secondly, Riggins testified that the appellant had been drinking the day he assaulted Riggins. The appellant apparently got upset with Riggins because he thought Riggins had drunk his gin. While we do not condone this action nor believe the average person vents his anger in this manner, it is clear that the appellant struck Riggins for a reason. He did have some provocation. The appellant did not strike Riggins without an apparent reason as defense counsel contends.

Thirdly, the appellant had been released from Bryce Hospital and had been refused readmission in the month prior to the incident. The jury could have assumed that Bryce Hospital would not have released the appellant or would have readmitted him if they believed him to be insane.

From our examination of the record, we find there was evidence presented at trial to support the finding that the appellant was, in fact, sane at the time of the commission of the offense.

Therefore, the trial judge properly denied the appellant’s motion for judgment notwithstanding the verdict and motion for a new trial.

The judgment of the trial court is due to be and is hereby affirmed.

Affirmed.

All the Judges concur.


author: TAYLOR, Judge. BOWEN, Presiding Judge,

text:
    Michael Patrick O’CONNOR III v. CITY OF MONTGOMERY.
    3 Div. 967.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Feb. 8, 1985 Alabama Supreme Court 84-230.
    John T. Kirk, Montgomery, for appellant.
    J. Bernard Brannan, Jr., Montgomery, for appellee.
   TAYLOR, Judge.

Appellant Michael Patrick O’Connor III, having waived a jury trial and having been convicted by the court of driving while under the influence of alcohol and fined $250 plus costs, prosecutes this appeal.

Appellant first contends that he had the right under the Fifth Amendment to refuse to take the compulsory chemical intoxication test. The Fifth Amendment protects an accused person from being compelled to give evidence against himself or otherwise to provide the state with evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Other eases have established that an accused person may be required to submit to compulsory fingerprinting, photographing, or gesturing. We find that there is no substantial difference between these things and submitting to a chemical intoxication test. We hold that there is no right to be given a Miranda warning explaining the right to remain silent or to advice from counsel concerning whether or not to submit to a chemical intoxication test. The Alabama Chemical Test for Intoxication Act requires neither. Code of Alabama 1975, § 32-5A-194. None of the underlying reasons for the rule in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), exists in the case of taking chemical intoxication tests. There exists no possibility of changing the evidence by giving the defendant the “third degree,” holding him incommunicado until he talks, beating him until he talks, or otherwise coercing him. This sort of conduct spawned the rule in Miranda v. Arizona. Nor is there any possibility of a false confession. Neither the precedents nor the logic of the matter justifies the position urged by the appellant.

II

Appellant next contends that he has a right under the Sixth Amendment to the presence or advice of counsel before being subjected to a chemical intoxication test. Appellant points out that the implied consent statute, § 32-5A-194(c), Code of Alabama 1975, does permit the driver to refuse the chemical sobriety test, although refusal results in an automatic suspension of his driver’s license for ninety days. Appellant contends that the driver should have access to legal counsel for help in making the decision whether to refuse the test. In Hill v. State, 366 So.2d 296 (Ala.Crim.App.1978), cert. denied, 366 So.2d 318 (Ala.1979), this issue was raised and decided. The court in the Hill case pointed out that evidence acquired by the use of a chemical test for intoxication is considered real or physical evidence and is beyond the scope of Fifth and Fourteenth Amendment rights. This being true, there is no constitutional right to consultation with an attorney or for the assistance of an attorney in determining whether to submit to the intoxication test. No error was committed in this respect.

Neither is the police officer required under the Act to inform the driver of any constitutional rights which the driver has. The officer is not required to notify the accused that he may have an independent blood-alcohol test performed. Parker v. State, 397 So.2d 199 (Ala.Crim.App.), cert. denied, 397 So.2d 203 (Ala.1981).

No error having been committed in this case, the judgment is hereby affirmed.

AFFIRMED.

All the Judges concur except BOWEN, P.J., who concurs specially with opinion.

BOWEN, Presiding Judge,

concurring specially.

The majority of jurisdictions have held that when a defendant is requested by police to submit to a chemical test for intoxication he has no right to counsel at that time and no right to condition his consent upon the ability to consult with counsel. R. Erwin, 3 Defense of Drunk Driving Cases § 33.06(2) (3rd ed. 1982). Since the privilege against self-incrimination does not extend to the withdrawal of a blood or other sample and the use of its analysis in evidence, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), a defendant has no need of the protection or assistance of counsel. See Drunk Driving, supra. See also South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983), holding, that “a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrirnination.”

Generally, Miranda does not apply to the ordinary traffic stop situation. Berkemer v. McCarty, — U.S. -, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). “In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda.” Neville, 103 S.Ct. at 923, n. 15.


text:
    Calvin Bernard BROOKS v. STATE.
    4 Div. 330.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-212.
    Michael Crespi, Headland, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Calvin Bernard Brooks was indicted for burglary in the first degree and convicted of burglary in the third degree. He was sentenced to ten years’ imprisonment.

The State’s evidence established that the residence of one Anthony Gray was broken into on July 11, 1983. A shotgun, a rifle and two pistols were reported missing. Houston County investigators later located the shotgun and the rifle at two Georgia pawnshops. The pawn tickets were dated July 11, 1983, and signed by the defendant.

I

Brooks objected to the court’s alteration of a portion of one of his written requested charges from “all reasonable doubt” to “a reasonable doubt.” The pertinent part of the requested charge reads as follows:

“The test of the sufficiency of circumstantial evidence is whether the circumstances, as proved, produce a moral conviction, to the exclusion of all reasonable doubt, of the guilt of the Defendant....” (Emphasis added).

We find no error in the court’s substitution of the word “a” for “all”, and its giving the charge in altered form. See Chavers v. State, 361 So.2d 1106, 1108-09 (Ala.1978); Craft v. State, 402 So.2d 1078, 1080 (Ala.Cr.App.), cert. denied, 402 So.2d 1080 (Ala.1981).

II

At trial, Brooks objected to the State’s introduction of a photostatic copy of an Albany, Georgia pawn ticket bearing the words “Stolen Property.” He claims that the exhibit violated the best evidence rule and was “highly prejudicial to the Jury.”

Since the pawnshop and its operator were located in the State of Georgia, outside the subpoena power of Alabama, the copy of the pawn ticket was admissible as an exception to the best evidence rule for an “original writing ... in the possession or control of a third person outside of Alabama.” C. Gamble, McElroy’s Alabama Evidence § 217.01(1) (3d ed. 1977).

Because the victim described the stolen guns and stated that they had been returned to him as a result of the investigation in this case, any notation on the pawn ticket characterizing the same property as stolen was merely cumulative of other evidence that the weapons had been taken during the burglary of the victim’s residence. See Gullatt v. State, 409 So.2d 466, 474 (Ala.Cr.App.1981); A.R.A.P. 45. In addition, the defendant had the benefit of the following testimony introduced in explanation of the pawn ticket’s notation:

“Q [By District Attorney]: Now, this is a notation that is on the face of this ticket? Is that correct?
“A Yes.
“Q And, I believe it refers to stolen property. Would you tell the Court and Jury what that has to do with it and when it was placed on this ticket.
“A Okay. After we identified this gun as being stolen and took it into my possession or Detective Monzi’s possession, this was put on there for the pawn shop records, showing where this particular gun went to for their records.
“Q To protect the pawn shop?
“A To protect the pawn shop, according to the Federal laws.
“Q Okay. Had nothing to do with the Defendant in this case?
“A No, sir.”

Ill

On cross-examination of State’s witness Houston County Sheriff’s Sergeant Kenneth Bryan, the following occurred:

“Q [By Defense Counsel]: Did you record Mr. Brooks’ statement to you?
“A On some other cases. Yes, sir.
“MR. CRESPI: Your Honor, I object. And, I ask that be stricken from the Record and that the Jury be instructed to disregard it. That was not responsive.
“MR. SORRELLS: Judge, we submit it was responsive to his question. We don’t mind you instructing the Jury to it.
“MR. CRESPI: Your Honor, he was asked if he took, had this statement recorded. And, he gave a non-responsive and highly prejudicial answer.
“THE COURT: He didn’t say anything about involving the Defendant, but if you want it excluded, I will exclude it. Ladies and Gentlemen, don’t consider that when you come to make up your verdict in this case.
“MR. CRESPI: Your Honor, we ask for a Mistrial based on that statement.
“THE COURT: And, I overrule you.”

Brooks asserts that his motion for mistrial was due to be granted because of the impermissible suggestion that he was implicated in other criminal matters. Reviewing a similar occurrence in Kendrick v. State, 444 So.2d 905 (Ala.Cr.App.1984), this court noted that an indirect reference to the defendant’s involvement in other crimes is not incurably harmful to the accused, and any possible prejudice may be eradicated by the trial judge’s prompt curative instruction to the jury. Citing the principle approved in Borden v. State, 337 So.2d 1388 (Ala.Cr.App.1976), the court observed that “when a trial judge sustained an objection and properly instructed the jury to disregard the matter such action was not erroneous unless the matter was of such a nature that it created ineradicable bias or prejudice.” Kendrick, 444 So.2d at 909.

In the present case, the reference to defendant’s statements “on some other cases” was not so harmful as to be ineradicable. The trial court's exclusion of the remark and prompt admonition to the jury to disregard it served to cure the possible prejudice to the defendant.

IV

The defendant argues that the trial court erred by allowing Sergeant Bryan to testify to his understanding of pawn shop procedures in Albany, Georgia. Specifically, he objected, on the grounds of hearsay, and the denial of his right to confront adverse witnesses, to Bryan’s statement-that the notation “Stolen Property” on the ticket was “for the benefit of the Federal Government, to show where this gun went to.”

As we have pointed out in Part II of this opinion, Sergeant Bryan’s explanation of the writing on the pawn ticket was, if anything, beneficial to the defendant. A.R. A.P. 45.

Furthermore, the officer who made the notation on the pawn ticket was present and available for cross-examination at trial so that defendant’s right of confrontation was not denied. See Stinson v. State, 401 So.2d 257, 261-62 (Ala.Cr.App.), cert. denied, 401 So.2d 262 (Ala.1981). Defense counsel, in fact, cross-examined the officer later in the trial and elicited from him the same testimony to which he now objects on appeal. From the record:

“CROSS EXAMINATION
“By Mr. Crespi:
“Q I believe you testified, sir, that you were familiar with the pawn procedures in Albany, Georgia?
“A Yes, sir.
“Q Are you thoroughly familiar with those procedures?
“A Yes, I am.
“Q And, are you familiar with the kind of paper work that you fill out every time an object is brought in for pawn?
“A Yes, sir.
“Q Okay. And, is it not customary that at the time the original ticket is made out, there is one or more carbon copies made contemporaneously with that?
“A Yes.
“Q Would that carbon copy be kept at the pawn shop after the object that was pawned or the person that pawned it left?
“A That is correct.
“Q And, that would be done as far as you know in every instance?
“A Yes, sir.”

Defendant’s questions regarding the officer’s familiarity with Georgia pawn procedures rendered any error in the prior admission of such testimony by the State harmless. See Chambliss v. State, 373 So.2d 1185, 1207 (Ala.Cr.App.), cert. de nied, Ex parte Chambliss, 373 So.2d 1211 (Ala.1979).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Billy Fred MURPHY, Jr. v. STATE.
    5 Div. 833.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-215.
    J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Billy Fred Murphy, Jr. was indicted and convicted for robbery in the first degree in violation of Alabama Code 1975, § 13A-8-41. Murphy and Timothy Stephen Dunbar robbed Marilyn’s Trading Post in Auburn, Alabama, and severely beat James D. Wallace who worked there. Murphy was sentenced to life imprisonment and ordered to pay restitution to Wallace for the injuries he sustained. Two issues are raised on appeal.

I

This first issue is governed by the principle that, where the voluntariness inquiry presents conflicting evidence, great weight must be given the trial judge’s finding of the voluntariness of a confession. Moore v. State, 415 So.2d 1210, 1214 (Ala.Cr.App.), cert. denied, Moore v. Alabama, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982). “When the trial court has determined the voluntariness of the alleged confession, such holding is entitled to great weight on appeal and will not be disturbed unless it appears to be contrary to the great weight of evidence and manifestly wrong.” Harris v. State, 280 Ala. 468, 470-71, 195 So.2d 521 (1967).

Although there was Murphy’s own testimony that he was under the influence of drugs at the time he confessed, there was the testimony of a police officer to the effect that Murphy was coherent, rational, understandable, and sober. Although there was evidence that Murphy experienced a “fit” upon his arrest and within hours of his confession, there was also testimony that this bizarre behavior was faked in an effort to resist arrest and attempt an escape. “The mere fact that the defendant had taken drugs sometime before he made a statement does not automatically render a confession involuntary.” Byrd v. State, 421 So.2d 1344, 1348 (Ala.Cr.App.1982).

That Murphy was a nineteen-year-old with a seventh grade education who could write but could not read or spell “too good” are merely factors to be taken into consideration in examining the totality of the circumstances to determine voluntariness. “The age and education of the defendant are merely factors to consider in determining voluntariness.” Moore, 415 So.2d at 1214.

Murphy’s testimony that he did not remember being advised of his constitutional rights or even making a statement should be considered in determining his mental competency to make a statement. However, in making the voluntariness determination, the trial judge is entitled to consider the defendant’s credibility in deciding the weight to be given his testimony. Player v. State, 421 So.2d 1338, 1343 (Ala.Cr.App.1982). “Absent clear error, the ... court’s credibility choices at suppression hearings are binding on this court.” United States v. Aldridge, 719 F.2d 368, 373 (11th Cir.1983). “Mere emotionalism and confusion do not dictate a finding of mental incompetency or insanity.” Sullivan v. Alabama, 666 F.2d 478, 483 (11th Cir.1982).

There was no evidence that Murphy or his father requested an attorney before the statement was taken.

Our review of the record supports the trial judge’s finding that the confession was freely and voluntarily given.

II

The pistol used in the robbery and discovered in Murphy’s room was properly admitted into evidence even though it is clear that the police had no consent to search Murphy’s room.

Murphy was arrested at his father’s house where he lived. Murphy refused to give any consent to search but his father allowed the police to search everywhere except Murphy’s room.

After Murphy was arrested and handcuffed, the police seized the shoes he was wearing after observing blood on them. Before leaving the house, Murphy requested permission to go to his room and get another pair of shoes. Officers followed Murphy into the room and observed the pistol lying in plain view on a crib mattress.

This situation is not unusual.

“If the defendant is placed under arrest at a particular place in the premises, even at the front door, the circumstances may be such that he will be allowed to move about the premises prior to departure for the police station. Although this may occur for other reasons as well, it occurs with greatest frequency when the defendant needs to change his clothes or put on additional clothing before departing. Often the defendant will ask that he be allowed to do this, although on some occasions it appears that the police have been the motivating force in causing the defendant to seek out other clothing. In either event, the courts have had little hesitancy in holding admissible evidence discovered by the police as a consequence.” 2 W. LaFave, Search and Seizure § 6.4(a) (1978).

“The ‘plain view’ exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be.” Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S.Ct. 812, 816, 70 L.Ed.2d 778 (1982). Here, the officer had placed Murphy under lawful arrest and therefore was authorized to accompany him to his room for the purpose of obtaining his shoes. “The officer had a right to remain literally at ... [Murphy’s] elbow at all times; nothing in the Fourth Amendment is to the contrary.” Washington, 455 U.S. at 6, 102 S.Ct. at 816.

“Every arrest must be presumed to present a risk of danger to the arresting officer. Cf. United States v. Robinson, supra [414 U.S. 218] at 234 n. 5, 94 S.Ct. [467] at 476 n. 5 [38 L.Ed.2d 427 (1973) ]. There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of the potential danger. Moreover, the possibility that an arrested person will attempt to escape if not properly supervised is obvious ....
“We hold, therefore, that it is not ‘unreasonable’ under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer’s need to ensure his own safety — as well as the integrity of the arrest — is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested.” Washington, 455 U.S. at 7, 102 S.Ct. at 817.

Murphy received a fair trial. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    George E. WASHINGTON, Jr. v. STATE.
    5 Div. 867.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-224.

      Ernestine S. Sapp of Gray, Langford, Sapp, Davis & McGowan, Tuskegee, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty on a trial on an indictment as follows:

“The Grand Jury of said County charge that before the finding of this indictment George E. Washington, Jr., alias George Washington, the true or Christian name of whom being otherwise unknown to the Grand Jury, did on to-wit: July 30, 1982, while at or near Midway Road, Midway Community, Tuskegee, Alabama, unlawfully possess for trafficking, 4.76 pounds of cannabis (marijuana), a controlled substance, contrary to and in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of Section 20-2-80 of the Code of Alabama; against the peace and dignity of the State of Alabama.”

Subsection 20-2-80(l)a of the Code of Alabama 1975, provides:

“Except as authorized in chapter 2, Title 20:
“(1) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis is guilty of a felony, which felony shall be known as ‘trafficking in cannabis.’ If the quantity of cannabis involved:
“a. Is in excess of one kilo or 2.2 pounds, but less than 2,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $25,000.00.”

After a sentencing hearing, the court fixed defendant’s punishment at imprisonment for three years and assessed a fine of twenty-five thousand ($25,000.00) dollars.

Three issues are presented in appellant’s brief, which we will now consider in the order of their presentation and under their respective captions set forth in appellant’s brief.

I.

“THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE STATE’S EVIDENCE.”

Prior to the commencement of the trial, the court conducted a hearing on defendant’s motion to suppress evidence of what was found by the State growing on land near his trailer home; during the trial of the case, the court conducted a hearing, out of the presence of the jury, of defendant’s motion to suppress evidence as to what was found in the defendant’s trailer. Appellant contends that the rulings of the court in overruling defendant’s motion or motions to suppress constituted error prejudicial to appellant, which we now consider under separate headings, A and B.

A.

On the first hearing of defendant’s motion to suppress, i.e., the motion challenging the evidence as to what was found on the land, two witnesses testified, both on call of the defendant. They were State Trooper David Conrad and Investigator Henry Peavey of the Tuskegee Police Department.

Officer Conrad stated that he had been flying airplanes for the State Troopers’ Office for six or seven years, that on July 30, 1982, he was requested by a narcotics officer of the Alabama Department of Public Safety to check over a “specific geographical area in Macon County, for growing marijuana.” After contacting officers of the Tuskegee Police Department, Officer Conrad proceeded from Dothan, Alabama, to the specific area he was to view and while flying at an altitude in excess of five hundred feet he “spotted some marijuana plants growing.” He testified further:

“Q. Could you describe the area in terms of trees, bushes, houses, that you were flying over?
“A. There was a trailer [identified in other evidence as the trailer in which defendant lived], tall trees in the back of it that was surrounding on the north side and the south in the general area. Then to the northwest of the trailer on the other side of the driveway there were some small bushes that had marijuana growing in it.
“Q. Approximately how large was the clearing that you said this trailer was in?
“A. I couldn’t estimate that.
“Q. Small clearing?
“A. A small clearing for the trailer?
“Q. For the trailer?
“A. No, it wasn’t really that small.
“Q. Were there a lot of trees next to what you spotted and believed to be marijuana?
“A. It was in the bushes next to the tree line.
“Q. And you say you could spot these marijuana plants and these trees and other vegetation that was green from five hundred feet above the surface of the ground?
“A. That’s correct.
“Q. Are there any other people that are employed for the State of Alabama that can so spot marijuana plants growing from five hundred feet?
“A. Not to my knowledge. We are in the process of training some.
“Q. Could you tell me how you train someone to be able to spot green marijuana plants from other green plants?
“MR. JONES [State’s attorney]: I object, Your Honor.
“THE COURT: Overruled.
“A. The only way you can really train them is to find the marijuana and show it to them and on a continual basis recognition.
“Q. Isn’t it a fact though it’s a lot easier to spot marijuana growing in a large field where there are no trees as opposed to a tree-studded area with a lot of growth and vegetation?
“A. Not necessarily.”

Investigator Peavey testified that on July 30,1982, at approximately 2:15 he was in the vicinity of defendant’s home and that the following occurred:

“Q. You were out near his [defendant’s] property on or right adjacent to his property at the time that you received a call from Mr. Conrad that he saw marijuana?
“A. In the vicinity, yes.
“Q. You were adjacent to his property? You were right near his property when Mr. Conrad first heard or told you that there was marijuana growing?
“A. That is correct.
“Q. So you knew where it was prior to Mr. Conrad telling you?
“A. No, I did not.
“Q. You just indicated that you were right near his property?
“A. That’s right. But I didn’t say anything about I knew it was there.
“Q. Why did you go specifically to Mr. Washington’s property then?
“A. Because when Officer Conrad spotted the plants he advised me where they were.
“Q. How far from the main road-no, back up. Could you tell the Court where Mr. Washington’s property is located in Macon County? Just roughly tell the Court.
“A. It’s located in the Midway Community. '
“Q. Off what county highway is that located?
“A. That’s off the old V.A. Road in that area.
“Q. And that is a paved county road?
“A. That’s correct.
“Q. How far off the paved county road is Mr. Washington’s property located?
“A. How far is it? I would say approximately a mile. That’s my guess, I’m not sure.
“Q. So you were on that-you had taken the county road, the paved county road. You had gone down the dirt road and you were right next to Mr. Washington’s property prior to Mr. Conrad telling you that marijuana was spotted?
“A. That’s correct.
“Q. So you had specifically gone directly to Mr. Washington’s property?
“A. No, I had not gone directly to Mr. Washington’s property.
“MR. BULLS [Defendant’s trial attorney]: Your Honor, we don’t have any further questions.
“CROSS-EXAMINATION
“BY MR. JONES:
“Q. Detective Peavey, when you were directed to the location of the marijuana plants that were growing, where specifically in relationship to the trailer was the plants growing?
“A. About seventy-five to a hundred yards to the right of the trailer.
“Q. Did you have occasion to do anything with those plants?
“A. Yes.
“Q. What did you do with those plants?
“A. We pulled them up.
“Q. How many plants were there?
“A. Twenty-seven.
“Q. Twenty-seven?
“A. That s right.
“Q. Was there any obstruction to your view of the plants as you followed the directions of ABI Agent Conrad?
“A. No, they were in plain view.
“MR. JONES: That’s all, Judge.
“REDIRECT EXAMINATION
“BY MR. BULLS:
“Q. You saw those plants prior to Mr. Conrad telling you where they were, didn’t you, Detective Peavey?
“A. Officer Conrad advised me to look to my right. I looked to my right and they were in plain view.
“Q. You say they were seventy-five to a hundred yards from where his trailer was located?
“A. Approximately.
“Q. Were there any other houses around that area?
“A. Not in that particular area. There were some further up the street.
“Q. When you say further up the street you are talking about a hundred yards up the street?
“A. In my judgment, further than that.
“Q. A hundred and fifty yards? About the same distance as they were from Mr. Washington’s trailer?
“A. No, sir.
“MR. BULLS: No further questions.
“RE-CROSS EXAMINATION
“BY MR. JONES:
“Q. Were there any other houses or trailers in the clear area where the plants and defendant’s trailer was located?
“A. Were there any other houses?
“Q. Yes, sir. Or trailers in the cleared area where the defendant’s trailer was located?
“A. No, sir, not to my knowledge.”

Defendant also testified at the hearing of the motion to suppress. He said that he was at his “mobile home about a half a mile off of the Midway Road” on July 30, 1982, that his “little boy” nearly nine years of age was with him and that “approximately 2:30, 2:45 police officers came to his home,” and he was thereafter arrested by them. He said:

“Q. At what point were you placed under arrest?
“A. Well, after they had pulled the plants and put them in the truck and that would have been maybe 45 minutes to an hour after they had been there. First, I was arrested by Detective Kindell.”

The defendant further testified on the hearing of the motion to suppress that he was placed under arrest “approximately fifteen to twenty minutes after they got out there.”

The specific issue now under consideration is whether the evidence as to the possession of marijuana by defendant was obtained in contravention of the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” provided by the Fourth Amendment to the Constitution of the United States. No warrant for the search of defendant’s property or the seizure of the marijuana involved was issued. Attorneys for each of the parties have cited numerous authorities on the subject. They have apparently narrowed the area of disagreement between them to whether the evidence sought to be suppressed was in open view of those who obtained it, which would place it within one of the few well-recognized exceptions to the principle that the evidence would not be admissible if obtained without the issuance of a valid warrant therefor. It was held in Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968):

“... It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623 [1634-1635], 10 L.Ed.2d 726, 743 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).”

In pressing his contention that the evidence under consideration does not come within the “plain view” exception, appellant contends “the police officer must discover incriminating evidence ‘inadvertently’ under the plain view doctrine.” Whatever comfort appellant obtains out of the large number of cases in which it is indicated that the “open view” exception does not apply unless the evidence is observed “inadvertently,” he does not convince us that the evidence was not admissible in the instant case, in which there was no intrusion whatever upon the property of defendant by either of the officers at the time they observed the marijuana in plain view. Officer Conrad, while flying at an altitude in excess of 500 feet over defendant’s property, was not violating any right of defendant, and in going down the dirt road next to defendant’s property, Officer Peavey was not violating any legal duty he owed the defendant. To say, under such circumstances, that evidence of what they found must have been inadvertently found by them would constitute a semantic puzzle but would not constitute a logical conclusion, we think. The trial court was not in error in overruling the phase of defendant's motion to suppress the evidence as to the marijuana found growing upon defendant’s land.

B.

We now consider the ruling of the court overruling defendant’s motion to suppress the evidence as to what was heard, felt, seen, smelled or tasted by the officers in the mobile home of defendant on the afternoon of July 30, 1982. At the hearing as to such proposed evidence, Officer Darrell Persons, of the Tuskegee Police Department, testified that as he went to defendant’s mobile home the following occurred:

“A. Then he came out. And we explained to him why we were out there.
“Q. What did you do to him, if anything?
“A. All right. At that time after we noticed that the plaintiff...
“Q. What, if anything else, was said or done at that point?
“A. He advised that he had to go back to the trailer.
“Q. Then what happened or what was said?
“A. I asked him did he object to me going back in there with him.
“Q. What did he say?
“A. He said no.
“Q. Then what happened?
“A. We went inside. He gave some keys to another gentleman that was inside.
“Q. Did that gentleman leave?
“A. Yes, he did.
“Q. Did the kid leave?
“A. Yes.
“Q. While in the house, what, if anything, did you observe?
“A. I observed-well, I smelled a strong aroma of marijuana.
“Q. What, if anything else, did you observe other than the strong aroma of marijuana?
“A. Plastic bags, rolling paper, other paraphernalia.
“Q. What other paraphernalia specifically did you observe?
“A. Things that you weigh, a weighing tray.
“Q. Scales?
“A. Scales.
“Q. At some point after that did you and the defendant exit the house?
“A. Yes, we did.
“Q. Was the door locked?
“A. I didn’t know at the time whether or not it was locked or not.
“Q. Did you find out later that it had been locked?
“A. Yes.
“Q. By whom?
“A. By the defendant.
“Q. When?
“A. When we exited out. We came out.”

The defendant took the stand on the hearing on the motion to suppress the evidence found in the trailer. He denied that he gave his consent to the entry of the trailer by any of the officers. At the conclusion of the hearing of the phase of the motion to suppress the evidence as to what was observed in the trailer, the court ruled as follows:

“THE COURT: The ruling is that all of the testimony relating to Officer Person’s initial visit inside the trailer is admissible. None of the testimony concerning the subsequent thing after the man had locked the door is admissible.”

We are not persuaded that the trial court was in error in concluding that defendant voluntarily, intelligently and understandingly consented to whatever search was made by the officer of the inside of the mobile home.

II.

“THERE WAS NO EVIDENCE TO CONNECT THE APPELLANT WITH THE GROWING OF MARIJUANA, THEREBY EVIDENCING THAT APPELLANT’S MOTION TO EXCLUDE THE STATE’S EVIDENCE WAS CORRECTLY DENIED.”

The witnesses David Conrad, Henry Peavey and Darrell Persons testified on the trial of the case. Their testimony included testimony that was substantially the same as their testimony on the hearing of the motion to suppress. A repetition thereof would serve no useful purpose. A portion of the testimony of Officer Conrad on the trial of the case was as follows:

“Q. Did you also on that date observe any type of housing facility in or about the area of the plants you observed?
“A. There was a house trailer approximately a hundred feet or so from the plants.
“Q. Now, the marijuana plants that you observed on July 30th, 1982, would you describe their location in regard to the surrounding area?
“A. There was a cleared out area where the trailer was sitting. And just as you’re facing the trailer — I believe it’s facing to the west, to your right there was some — like it had been pulpwood and brush growing up about four or five feet tall. The plants were among the brush.
“Q. The plants were among the brush?
“A. Yes.”

Officer Peavey testified on the trial in part as follows:

“Q. Now, let’s talk about the area that you were in at that time. Describe the road that you were on, Detective Peav-ey?
“A. Okay. It was a dirt road that dead ended at the trailer.
“Q. And do you know who lived in the trailer at that time?
“A. Yes, sir, I do.
“Q. And who is that?
“A. Mr. Washington [whom he identified as the defendant in the case],
“A. At this time, I looked to the left. The trailer was sitting to the left of the plants. Mr. Washington came out of the trailer. He looked to the left. The plane was flying over to the left. He looked to the left. After looking to the left, he looked directly in the area where the plants were which was to the right.
“Q. How large an area is this you are talking about, Detective Peavey? Is it a large clearing or a small clearing?
“A. The plants.
“Q. The entire area there, the clearing?
“A. Medium size area.
“Q. Now, were there any other houses in the cleared area?
“A. No, sir, there weren’t.
“Q. Was there any trailers?
“A. No, sir.
“Q. In your judgment, how many feet away from the dirt road that led into the cleared area were the plants?
“A. From the dirt road?
“A. From the dirt road the plants were probably ten to fifteen feet.
“Q. Now, from the trailer to the plants would be approximately how many feet?
“A. Approximately seventy-five to a hundred feet.”

Officer Persons testified on the trial in part as follows:

“Q. How far is it from the trailer to where the plants were growing?
“A. I would say about 75 to 100 feet.
“Q. Okay. Now, what did you do as you went down to the trailer where the defendant was located?
“A. As we went down and parked the vehicle and got out the defendant came outside and asked—
“Q. Outside of the trailer?
“A. Outside of the trailer.
“Q. Completely outside?
“A. Completely outside and shut the door behind him.
“Q. Then what happened?
“A. Then he said what’s the problem?
“Q. All right. Then what happened?
“A. And then he was placed under arrest.”

The undisputed evidence shows, and there is no contention to the contrary, that the plants taken from that part of the land described were turned over to a chemistry coordinator of the Alabama Department of Forensic Science, who testified:

“My examination revealed that the plant material was marijuana; genus in species cannabis sativa L. And the weight of the material was 2,161.5 grams which is 4.76 pounds.
“Q. Okay. So when we talk about 4.76 pounds, we are only talking about the weight of the leaves and not the weight of the stalks?
“A. Yes, sir, that’s correct.”

Appellant is correct in his contention that upon consideration by the trial court of a motion to exclude the evidence interposed by defendant at the close of the state’s case and before defendant had presented any evidence, the trial court was “limited to consideration of evidence which was before it at the time the motion was made.” Crafts v. State, Ala.Cr.App., 439 So.2d 1323, 1324, cert. denied, (1983), furnishes solid support for the contention. Appellant relies upon Crafts also for his further contention that the trial court was in error in overruling his motion to exclude, for the reason urged by him that there was no substantial evidence at that time that the marijuana seized by the officers and repeatedly referred to in the evidence was in his actual or constructive possession. The similarity between some of the evidence in Crafts and the evidence in the instant ease furnishes a reasonable basis for the contention. In other material respects, the facts in the instant case are distinguishable from those in Crafts. In Crafts, the defendant was not at home at the time of the seizure; in this case, the defendant was at home and manifested concern as to what the officers were doing with or to the marijuana, by leaving the door of his mobile home and asking the officers, “What’s the problem?” In the transcript are photographs in evidence of the growing marijuana, the mobile home and its location relative to some of the growing marijuana, some of the marijuana that had been seized, the height and density of the growth of marijuana and the location in the road where Officer Peavey was standing or walking when he first observed the marijuana, which serve as strong pictorial evidence to the effect that an adult who had been living for some time in the trailer as his own home would have known that it was marijuana. When these facts are taken into consideration in connection with other circumstances shown, including particularly the existence in the mobile home of “a strong aroma of marijuana” of “plastic bags, rolling papers, other paraphernalia,” including a “weighing tray,” we must conclude that the State produced substantial evidence of defendant’s guilt of unlawfully possessing for trafficking 4.76 pounds of marijuana, and that the trial court was not in error in overruling defendant’s motion to exclude the State’s evidence.

hi.

“WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT’S MOTION FOR A NEW TRIAL AS AMENDED?”

Appellant’s argument in support of this issue is tripartite. In the first part, appellant argues that the motion for a new trial “for the most part, was based on matters constituting reversible error discussed in arguments I and II,” which we have already considered and determined adversely to appellant.

In the second part of his brief as to this issue, appellant argues that the judgment of sentence was not in conformity with the verdict of the jury and the judgment of conviction. The verdict of the jury was: “We, the jury find the defendant guilty of unlawfully possessing for trafficking in cannabis (marijuana).” Appellant argues that, in conformity with the verdict and the judgment of conviction, the appellant “could have been sentenced under the Code of Alabama 1975, Section 20-2-70, which doesn’t carry a mandatory fine of $25,000 and he would have been eligible for probation.” We disagree. As noted at the commencement of this opinion, the indictment was for a violation of Section 20-2-80 of the Code and specifically charged that defendant “unlawfully possessed for trafficking 4.76 pounds of cannabis (marijuana).” The crime charged, as it relates to marijuana, is in some respects similar to the crime charged by Section 20-2-70, but it is not the same. We disagree with appellant’s contention in this respect and specifically with his contention that, “the amount of marijuana involved in this case was a fact question that should have been determined by the jury.” The undisputed evidence showed that the marijuana involved was “in excess of 2.2 pounds but less than 2,000 pounds,” for which § 20-2-80(l)a prescribes “a mandatory minimum term of imprisonment of three calendar years” and “a fine of $25,000.00.”

By the third part of appellant’s argument under Issue III, he challenges the constitutionality of Section 20-2-80 by urging that it prescribes cruel and unusual punishment. The same contention was determined adversely to appellant in Wheatt v. State, per Judge Bowen, now Presiding Judge, Ala.Cr.App., 410 So.2d 479, 482-483 (1982).

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.