author: HARRIS, Judge. BOWEN, Presiding Judge,

text:
    James Galen ANDERSON v. STATE.
    6 Div. 52.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-420.
    Gary L. Smith, Birmingham, for appellant..
    Charles A. Graddick, Atty. Gen., and Ronald C. Forehand, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant, James Galen Anderson, was indicted by the September, 1981 Jefferson County Grand Jury for Trafficking in Cannabis in violation of § 20-2-80, Code of Alabama 1975, and unlawfully possessing a controlled substance in violation of § 20-2-70 Code of Alabama 1975. At the conclusion of a trial by jury, appellant was found guilty on both counts. On November 5, 1982, appellant was adjudged guilty by the trial court and was sentenced to imprisonment in the state penitentiary for three years and fined $25,000.00.

Sergeant Mancil N. Sharp, of the Forest-dale Police Department, obtained information from a confidential and reliable person that appellant was holding and selling drugs at a house located at 3009 York Drive, Fultondale, Alabama. Based on this information, Sergeant Sharp prepared a search warrant and affidavit and presented them to Judge Stewart, District Judge for Jefferson County, to be signed. Judge Stewart executed both the search warrant and the affidavit made by Sergeant Sharp. Sergeant Sharp did not sign the affidavit.

Subsequently, Sergeant Sharp was accompanied to 3009 York Drive by Deputy J.C. Bolus, of the Jefferson County Sheriff’s Department, Officer Kevin Howell, of the Fultondale Police Department, and Sergeant Cole of the Fultondale Police Department. Deputy Bolus served the search warrant on appellant and a search of the premises was conducted by the Fultondale police officers. Several separate amounts of a green vegetable substance and a container of pills were found and confiscated by the law enforcement officials. These substances were later identified by a drug chemist at the State Department of Forensic Sciences as 1272.6 grams of marijuana, which according to testimony is in excess of 2.7 or 2.8 pounds, and thirty tablets containing methaqualone and three tablets containing diazepan, each of which is a controlled substance.

At trial, appellant testified that he was holding the marijuana found in his home for a friend, and that he had secured the tablets from a friend for a sleeping problem. Appellant admitted knowing that the possession of these substances was illegal, but said that he had agreed to hold them in order to make money to support his family.

The only issue raised on appeal is whether an otherwise valid search warrant was rendered invalid when the issuing magistrate failed to require the signature of the affiant in compliance with § 15-5-4, Alabama Code 1975. § 15-5-4 reads as follows:

“Before issuing a search warrant, a judge, or magistrate authorized by law to issue search warrants, must examine on oath the complainant and any witness he may produce, take their depositions in writing and cause them to be subscribed by the persons making them. Such depositions must set forth facts tending to establish the grounds of the application or probable cause for believing that they exist.” (Emphasis added.)

In Accident Indemnity Insurance Company v. Feely, 181 So.2d 889 (Ala.1966), the court defined depositions as follows:

“The word ‘deposition’ in legal terminology is the testimony of a witness, taken in writing, under oath or affirmation, before some judicial officer, in answer to questions or interrogatories, and being a generic term, embracing all evidence verified by oath, it thus includes affidavits.” (citations omitted)

In Brandies v. State, 44 Ala.App. 648, 219 So.2d 404, cert. denied, 283 Ala. 712, 219 So.2d 409 (Ala.1969), the court held that the word “deposition” was intended by the legislature to be synonymous with “affidavit, i.e., a sworn statement in writing, under oath.” In concluding a discussion of the subject, the court in Brandies, supra, quoted the following statements from State v. McMann, 3 Ariz.App. 111, 412 P.2d 286 (1966):

“It can hardly be imagined that our legislature intended that a court reporter be summoned to record and transcribe in deposition form the witnesses’ testimony. The manifest intent is that the testimony be taken under oath and reduced to writing, and that the written statement be signed by the party making it.”

It is clear, both from § 15-5-4 Alabama Code 1975, and from the opinion in Brandies, supra, that for a search warrant to be valid it must be accompanied by a written affidavit of supporting evidence which is signed or subscribed by the complainant, or the party making the statement. It is also clear from the record in this case that the supporting affidavit, accompanying the search warrant issued to Sergeant Mancil Sharp on February 20, 1981, was not signed by the affiant, Sergeant Sharp. The search warrant based on this affidavit is, therefore, invalid and the rule of exclusion from the Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), decision should be applied to all evidence seized under the warrant.

The judgment below is reversed and the cause is remanded for new trial.

REVERSED AND REMANDED.

TYSON and SAM W. TAYLOR, JJ., concur.

■ BOWEN, P.J., dissents with opinion.

HUBERT TAYLOR, J., dissents, also.

BOWEN, Presiding Judge,

dissenting.

I respectfully but strongly dissent from the majority’s holding that an otherwise valid search is rendered invalid when the issuing magistrate failed to require the signature of the affiant on the affidavit in support of the search warrant in compliance with Alabama Code Section 15-5-4 (1975). Granted, the affidavit did not comply with the' formal requirements of the statute. However, the fact that the affidavit was not signed does not violate any constitutional right of the appellant. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), holds that evidence seized in violation of a defendant’s fourth amendment rights must be excluded from a state criminal trial.

The real issue in this case is whether the information contained in the unsigned affidavit is true and whether the affidavit would have supported a finding of probable cause if it had been signed. If both these questions are answered in the affirmative then the search warrant was based on a finding of probable cause and the appellant’s rights have not been violated.

The majority opinion does nothing to further the two distinct purposes of the exclusionary rule for it neither preserves the integrity of the judicial fact finding process nor will it deter official misconduct by the police. Mapp, supra; Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Here, the deputy shouldered his fourth amendment responsibility seriously and in fact obtained a search warrant. Of what constitutional significance is it that the officer merely forgot to sign the affidavit? If the facts existed as stated in the affidavit, and if those facts do provide probable cause, this appellant’s conviction should not be reversed because someone forgot to sign on the dotted line. I would remand for a hearing to determine the answers to these questions.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Lewis Arthur GRACE v. STATE.
    7 Div. 105.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-464.

      Gary E. Davis, Centre, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty on a trial under an indictment that charged, inter alia, that he “did unlawfully sell, furnish or give away phencyclidine, a controlled substance.” Code of Alabama 1975, § 20-2-27(a)(2)g lists phencyclidine as a Schedule III controlled substance. The trial court adjudged him guilty and sentenced him to imprisonment for six years. A motion for new trial was timely filed, which motion was overruled by the trial court.

No contention was made on the trial, and no contention is made on appeal, that the substance allegedly sold was not phencycli-dine, which fact was established by chemical analysis, according to the testimony of an expert.

An undercover agent testified that the sale was made to her by the defendant in defendant’s home and while the defendant’s wife and defendant’s daughter were present. Defendant’s wife and daughter, as well as the defendant himself, testified that they were present on the occasion that the undercover agent testified the sale was made. All three testified to the effect that the undercover agent was accompanied by a female informant at the time. The female informant did not testify in the case.

Two issues are presented by appellant, which we will now discuss.

I.

In the motion for new trial, the defendant alleges that the “verdict was against the great weight of the evidence” and that the “trial court was in error in denying appellant’s motion for a new trial.” He argues in his brief:

“The facts in the Grace case are a stand off, evenly balanced. On the one hand you have the State presenting Diane Et-terle testifying to a drug buy and on the other hand Appellant and two witnesses denying such a transaction. If such a transaction had taken place and the investigator was as close as testified to by him (no more than 10-13 minutes away) (R. 51) why didn’t they get a search warrant and go back immediately and arrest appellant and catch him ‘red handed?’ As noted in Lester, infra, in a standoff of evenly balanced evidence, the State loses.”

The quoted argument in the brief constitutes what we think would be good argument to the trier of facts, the jury, and perhaps it was made on the trial of the case and on the motion for new trial. However, we have no reason to believe that the jury was not convinced beyond a reasonable doubt that defendant was guilty as charged or that the trial court was not convinced that the verdict was not against the weight of the evidence. Certainly the trial judge was in a better position, having viewed the witnesses as they testified, than any other judge to determine which of the witnesses, whether one or three, had testified truthfully. Lester v. State, 270 Ala. 631, 121 So.2d 110 (1960), the only case relied upon by appellant as to this point, does not support appellant as to appellant’s conclusion, although it does hold, as appellant states, that if the evidence is evenly balanced, the party on whom the burden of proof rests (which was the State in this case) must lose. Nevertheless, Lester does not hold expressly or impliedly that the weight of testimony is to be determined by the number of witnesses testifying. Although the number of witnesses can and should be taken into consideration at times, it is not a controlling factor. A more reasonable and persuasive factor, among several others, is the reasonableness of the particular testimony and any interest of the witness or witnesses whose testimony is being weighed.

We repeat and apply to the instant case what was said in Allen v. State, per Judge Harris as P.J., Ala.Cr.App., 382 So.2d 11, 24, cert. denied, Ala., 382 So.2d 25 (1980):

“Where there is legal evidence from which the jury can by fair inference find the defendant guilty, the Court of Criminal Appeals has no right to disturb the verdict; whether there is such evidence is a question of law, its weight and probative value are for the jury. Ala.Dig., Criminal Law, Key No. 1159.2(a).
“Appellant filed a motion for a new trial and extensive hearings were held. At the conclusion of the hearings the trial court overruled and denied the motion. Decision on motion for a new trial rests largely within the sound discretion of the trial court and, in reviewing that decision, the Court of Criminal Appeals will indulge every presumption in favor of the correctness thereof. Ala.Dig., Criminal Law, Key No. 911.”

II.

The second issue presented by appellant is thus stated in appellant’s brief:

“Did the trial court err in refusing and denying Appellant’s Motion for New Trial (R. 164-175) on ground three as stated in Appellant’s said motion?
“Paul v. State, [48 Ala.App. 396], 265 So.2d 180 (1972); § 34-3-1 and through § 34-1-6, Code of Alabama, 1975.”

Ground 3 of defendant’s motion for a new trial alleges:

“3. The Defendant failed to have adequate representation in the ease at bar. The attorney for Defendant at trial, unbeknown to Defendant until now is not licensed to practice law in the State of Alabama and is unfamiliar with local court rules and procedures and for said reason Defendant was unable to have adequate assistance of counsel at the trial stage. Said attorney wholly failed to associate with any Alabama licensed attorney for purposes of trial against [sic] law and to the severe prejudice of Defendant.”

Code of Alabama 1975, §§ 34-3-1 through 34-3-6, cited by appellant as shown above, proscribes the unlawful practice of law by “any person” who has not “become duly licensed to practice, or whose license to practice shall have expired ...,” and provides that such conduct constitutes “a misdemeanor.” Other provisions of said sections make it clear that the representation of the defendant on the trial of the case under consideration constitutes practicing law. The record and transcript show, conclusively and without dispute, that the attorney who represented defendant from the time of his arraignment until the time of his conviction and sentence, including specifically the trial in its entirety and the sentence hearing in its entirety, was Mr. Ronald Patton, attorney at law, of Rome, Georgia and that he was defendant’s retained attorney. Neither his fidelity nor his dedication to his client is questioned. The transcript of the sentence hearing demonstrates that the attorney made a strong plea for leniency and probation. The transcript shows the following at the conclusion of the sentence hearing:

“THE COURT: All right, sir. Does the state have anything with regard to the application for probation?
“MR. IGOU: [District Attorney]: Nothing, Your Honor, in or addition to the report.
“THE COURT: Mr. Grace, your application for probation is denied. I believe that concludes it at this time.
“MR. PATTON: Your Honor, would the Court withhold imposition of the sentence for thirty days?
“THE COURT: No, sir.
“MR. PATTON: Would you allow him to remain free on his bail pending appeal, sir?
“THE COURT: No, sir. Oh, pending appeal?
“MR. PATTON: Yes, sir.
“THE COURT: I’ll set an appeal bond, a new bond. Are you giving notice of appeal at this time?
“MR. PATTON: Yes, sir.
“THE COURT: All right. The record will reflect, then, that there has been oral notice of appeal given and the defendant’s appeal bond is set at $20,-000.00.
“MR. PATTON: Thank you, sir.
“THE COURT: Is there anything further?
“MR. PATTON: That’s all, sir.
“THE COURT: Anything from the state?
“MR. IGOU: No, sir.
“THE COURT: That concludes it.
“(The proceedings were concluded).”

The above quoted remarks of Mr. Patton appear to have been the last words spoken by him as an attorney for the defendant. Within the time required, a motion for a new trial was filed by another attorney, who continues to represent appellant as his retained attorney.

The hearing of the motion for a new trial commenced as follows:

“THE COURT: All right. This case is State vs. Lewis Arthur Grace, which is set on a Motion for a New Trial. Case is number CC-82-148. The record should reflect that I have conferred with the attorneys, that is, the Assistant District Attorney, Mr. Latham, and the defense attorney — present defense attorney — Mr. Gary Davis, prior to convening the hearing on this motion and it is my understanding that the case can be submitted on stipulation; is that correct, now? Is that the way—
“MR. LATHAM: Yes, sir.
“MR. DAVIS: Yes, sir.”

There then intervened a colloquy among the court and the attorneys for the respective parties as to the contents of the stipulation, which was not conclusive, and then the following occurred:

“MR. DAVIS: Off the record just a minute.
“(Off the record discussion held.)
“THE COURT: All right. It is stipulated that Mr. Patton is a licensed practicing attorney in the state of Georgia and was so licensed at the time of the trial of this case. It’s further stipulated that Mr. Patton was not at that time a licensed practicing attorney in the state of Alabama. It is further stipulated that at the time of the trial Mr. Patton had not obtained a certification and consent of the Bar Commissioner of the Ninth Judicial Circuit to practice before this Court in this ease. The District Attorney has checked the record of the Circuit Court of Cherokee County and has determined that Mr. Patton has represented seven defendants in criminal cases in this Court from 1978 until the present.
“MR. LATHAM: Through the day of the trial of this case.
“THE COURT: All right, through the date of the trial of this ease he had represented seven criminal defendants since 1978. Let me ask by way of clarification, at the time this case was tried on that week of court, Mr. Patton had three cases, two of which he had obtained the certification on from our Bar Commissioner; that is, the [name of a particular case] case and the [name of another particular case] case. Are those two cases included in the number seven that you have?
“MR. LATHAM: Yes they are, Your Honor.”

There was then some reference to a fourth ground of the motion for a new trial, which was withdrawn by the attorney for the defendant-movant, and there was an understanding among the court and the attorneys for the parties shown by the record that the motion for a new trial be continued to May 4, 1982, and parties would file briefs with the trial court.

On May 3, 1983, the trial court executed a four-page order, which, when considered with the four accompanying exhibits, discloses the formal application by Mr. C. Donald Patton to Honorable W.D. Scruggs, Jr., Commissioner of the 9th Judicial Circuit of Alabama, which includes Cherokee County Alabama, that Mr. Patton be permitted to represent each of the other named defendants in cases on the docket for trial the same week of the trial in the instant case, that Commissioner Scruggs had approved said application and that permission was “granted and given on behalf of the Alabama State Bar for the appearance of C. Ronald Patton to represent the Defendant in each of the other two cases.” The permission granted in each of said cases was thus qualified, “and for that case only, and in no other proceeding whatsoever.”

In the written opinion of the trial court in overruling defendant’s motion for a new trial, the trial court made it clear that the permission to represent the defendant in each of the other two cases then on the docket for trial that was granted Mr. Patton, as a licensed attorney in Rome, Georgia, but not as a licensed attorney in Alabama, was pro hac vice, i.e., for such case only, as recommended after due consideration by the Bar Commissioner of the Ninth Judicial Circuit and did not constitute permission or authorization for Mr. Patton to defend the defendant in the instant case. However, the trial court termed the permitted representation of this defendant by Mr. Patton an “oversight.” The trial court further stated in its written opinion the following:

“This administrative oversight occurred as a result of the Court’s assumption that appropriate authorization had been extended to Mr. Patton in each of the cases in which he appeared of record. “The best interest of litigants and the public requires that those appearing as attorneys of record in litigation in this State, be admitted only upon proper determination being made that the applicant meets the minimum standards to practice law.
“The Bar Commissioner of the Ninth Ju- ■ dicial Circuit, certified to this Court that Mr. Patton met the minimum requirements to practice law before this Court in the [name of a particular case and name of another particular case] cases. Each of those cases involved charges of the same general nature as the instant case. Accordingly, this Court may properly infer and find that Mr. Patton likewise met the minimum qualifications to represent Mr. Grace, whose case was set for trial during the same week the [name of a particular case and name of another particular case] cases were set.
“At the trial of the instant case, Mr. Patton adequately represented his client and the Defendant was not deprived of effective representation as a result of Mr. Patton’s mere non-residency.
“The Defendant failing to allege or prove any prejudice to him as a result of Mr. Patton’s failure to be certified by the Bar Commissioner, coupled with the public’s best interest being served by the Commissioner having determined that Mr. Patton generally meets minimum standards required to practice before this Court, it does not appear that the Defendant’s Motion for a New Trial should be granted.”

The trial court extended its opinion in denying defendant’s motion for a new trial by emphasizing defendant’s constitutional right to counsel under the Sixth Amendment to the United States Constitution and the importance of avoiding an infringement of such right by not respecting the defendant’s choice of counsel whom he retains, provided his chosen attorney meets all legal requirements to represent defendant in the particular case. The trial court made it clear also that it recognized the importance of meeting all legal requirements, which were not met in the instant case. We agree with the trial court that defendant had no just ground for complaint by reason of the “oversight” that occurred, that defendant was not injured ■ by the “oversight,” and that defendant was not entitled to a new trial pursuant to ground 3 of his motion.

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: TYSON, Judge.

text:
    Jimmy FORD v. STATE of Alabama.
    3 Div. 821.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-445.

      Edward W. Drinkard, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   On Rehearing

TYSON, Judge.

On November 29, 1983, this court unanimously affirmed this case without opinion. 443 So.2d 67.

Because counsel has filed a request for statement pursuant to Rule 39(k) and Rule 40, A.R.A.P., this court sets forth the following as its opinion.

On the afternoon of March 3, 1982, Birmingham Police Officer Wayne Ellis stated that he had been working undercover in the Montgomery-Autauga County area, helping to make purchases in drug cases. Officer Ellis was on loan to the Prattville Police Department when he went to the home of the appellant, just off Highway 14, near Prattville. There he purchased approximately one-quarter pound of marijuana and paid the appellant $125.00. Ellis made a positive in-court identification of appellant, gave his physical description, hair style and mustache, and stated that shortly after leaving appellant’s home he met Officer R.C. Martin and turned over the marijuana to him.

Officer Martin corroborated this testimony and stated that he had remained in the area and showed Officer Ellis where appellant’s home was and had shown Officer Ellis a photograph of appellant prior to his making the purchase in question.

Officer Martin then stated that he turned over the marijuana to the toxicologist’s office, where Allen Adair examined same, and testified that such was, in fact, marijuana.

A motion to exclude the State’s evidence was overruled.

On cross-examination of Officer Ellis, appellant’s counsel brought out the fact that Officer Ellis had been to appellant’s home on two occasions, and on the second occasion, made a second purchase of marijuana.

The appellant’s defense was that of alibi; namely, that he was living at the home of his current wife who was at the time his girlfriend on the date of the sale, March 3, 1982. He then presented the testimony of two brothers, a cousin and a neighbor, all of whom corroborated his story that he had a brother who looked just like him and it was his brother who was at home on that date, and if any sale was made, that the brother made it. The appellant did admit on cross-examination that he owned a green Lincoln automobile matching the description given by Officer Ellis during his testimony on direct for the State.

There was no exception to the oral charge of the court.

I

Appellant’s counsel raises four points on appeal. The first deals with the cross-examination of the defendant with reference to certain facts relating to a subsequent sale of marijuana to undercover agent Wayne Ellis. This matter had been opened up, however, by Mr. Drinkard on cross-examination in the State’s case in chief, attempting to establish that the in-court identification was faulty as being based on only observing appellant once when Officer Ellis testified he observed appellant on three occasions and had seen a photograph. The trial court’s ruling was here correct as showing the entire transaction, part of which was brought out by the appellant. Hemby v. State, 26 Ala.App. 273, 160 So. 119, cert. denied, 231 Ala. 7, 160 So. 120 (1934).

II

The appellant secondly argues that his motion for new trial was improperly denied because Officer Ellis’ testimony was “perjured”. This, too, is a misreading of Officer Ellis’ testimony and the trial court found that appellant’s counsel had opened the door in his cross-examination of Ellis, thus there was no perjury and the officer was simply pointing out that he had been to the home on another occasion and made a second buy. Thus, counsel should not be allowed to take advantage of a situation which he created in his own cross-examination. See Murrell v. State, 377 So.2d 1102 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979).

III

The appellant next argues that the trial court committed reversible error by allowing unfair and prejudicial comment by the District Attorney in closing argument. The trial record reflects no comment by either the District Attorney or his assistant which was not based upon some testimony which was given during either the State’s or Defendant’s case. The appellant’s own grandmother did, in fact, state: (R. 51)

“Q. Do you know where your grandson works?
“A. Well, I don’t know. He’s been out of a job. He had a bad hand.
“Q. All right. Do you know where he works — where he worked on March the 3rd, 1982 — where he was working, if you know?
“A. Well, I wouldn’t know. He picked up little jobs, but he didn’t have a standard job.”

This statement, along with testimony from Officer Wayne Ellis that he had made two buys from Jimmy Ford at times when Ford claimed to be at work, and that he saw Ford in his car also at a time when he claimed to be at work, supported an inference during the State’s closing argument that, “the only regular job he had was dealing in dope.” Ford himself testified that his brother was in jail for possession of marijuana, that he had a prior felony conviction for possession of marijuana, that he was arrested at his mother’s house when the police executed a search warrant there and marijuana was supposedly found, and Officer Ellis stated he purchased marijuana from Ford on two different occasions. Obviously, no error occurred from the State’s closing remarks because the basis for such an inference came mainly from the appellant’s own witnesses. Chambers v. State, 382 So.2d 632 (Ala.Cr.App.), writ denied, 382 So.2d 636 (Ala.1980).

IV

Appellant finally asserts as error that the trial court should not have allowed the jury to see the indictment when they requested it during their deliberations. This indictment contained no matter which was not already known to the jury. The trial judge had indicated that such was merely the State’s means of setting forth its charge against the appellant. No error is shown. Thomas v. State, 399 So.2d 915 (Ala.Cr.App.1981).

We have carefully examined this record and find no error. This judgment is due to be and the same is hereby affirmed.

APPLICATION FOR REHEARING OVERRULED; AFFIRMED.

All the Judges concur.


text:
    Willie Dee PRITCHETT, alias v. STATE.
    6 Div. 53.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    C. Burton Dunn, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Willie D. Pritchett was indicted for the first degree robbery of one Larry James Walton, by taking from the person of Larry James Walton two twenty-dollar bills, threatening the imminent use of force to effectuate the taking of or escaping with the property, while armed with a deadly weapon, a pistol, contrary to § 13A-8-41, Code of Alabama 1975. The jury found the appellant “guilty of robbery in the first degree” and the trial court fixed punishment at life imprisonment without benefit of parole pursuant to the Alabama Habitual Offender Act.

Larry James Walton stated that he was a security guard on duty at the front gate of the Sunnyland Refinery in Birmingham, Alabama on November 22, 1981. Around four (4) o’clock that afternoon the appellant drove up to the gate in a green Cadillac. At the time the appellant drove up to the gate, Mr. Lewis Johnson was present in the security station along with Mr. Walton. Mr. Johnson was employed by Sunnyland as a truck driver. Mr. Walton stated that the vehicle in which the appellant arrived was occupied by the appellant and another black male. The appellant got out of the vehicle and approached the guard station. At this point Walton made an in court identification of appellant as the man who got out of the vehicle. Mr. Walton stated that the appellant asked him whether another security officer, whom he was looking for, was on duty. After informing the appellant the officer was not on duty, Mr. Walton was asked if he would call the other officer on the telephone. He stated that he was unable to reach the officer. The appellant then asked Mr. Johnson if he was interested in buying a gun. Mr. Walton then testified that he noticed what appeared to be a pistol in the appellant’s pocket. The appellant then asked Mr. Walton to continue to try to reach the other officer and he would check back later. The appellant then walked back to his vehicle, got in and drove away. About five (5) or six (6) minutes later Mr. Johnson left.

Mr. Walton stated that a few minutes after Mr. Johnson departed the vehicle which appellant was driving returned to the gate. He testified that the appellant got out of the vehicle, came into the security station, asked him whether he had been able to reach the other officer, and then requested he try another number. When Mr. Walton began to place the telephone call the appellant pointed a pistol at him and demanded $200. Mr. Walton stated that he told appellant he did not have $200 and that appellant then demanded his wallet. He stated that at this time he refused to give appellant his wallet and the appellant then put the pistol to Walton’s face and told him he would blow his brains out. Mr. Walton then opened his wallet, removed two twenty-dollar bills and showed the appellant he did not have any more money. The appellant picked the money up, backed out of the station and ran to the vehicle. He stated that at this time the other occupant of the vehicle moved to the driver’s seat and appellant entered the vehicle on the passenger side. Before the vehicle was out of sight, Mr. Walton was able to take down the tag number. After this he called the Birmingham police. Mr. Walton stated that prior to this day he had never seen the appellant.

On cross-examination he testified that he was not supposed to be the purchaser of the pistol the appellant had, nor was he ever a party to such transaction.

On re-direct examination, Mr. Walton testified that a few days after the incident a detective came out to the refinery and showed him a set of photographs. He was shown six (6) photographs which he stated were the same ones shown to him on that occasion. He also testified that he picked one of those photographs, marked State’s Exhibit 1, as the photograph of the man who robbed him, and that this photograph was in fact one of the appellant, Willie D. Pritchett.

John Barefield testified that he was a Birmingham policeman on November 22, 1981. He stated that he was in charge of the investigation of the robbery of Larry James Walton. He stated that he showed Mr. Walton two sets of photographs, one on November 24 at approximately 11:30 a.m. and another set on the same day at 2:30 p.m. Mr. Walton was unable to identify anyone in the first group of photographs, which did not contain a photograph of the appellant. However, he was able to identify a photograph of the appellant, which was included in the second group, as that of the man who had robbed him. He further testified that his reports contained a tag number which had been provided by Mr. Walton and that the tag was registered to a Leanid Pritchett, 2218 Avenue J in Ensley, Alabama. He went to this address and found it to be the address of either the mother or father of the appellant.

The appellant’s motion to strike the indictment and dismiss the appellant, based on the fact the State had failed to prove a prima facie case, was denied at the close of the State’s case.

Willie. Dee Pritchett testified on his own behalf and stated that on November 22, 1981 he recalled seeing Mr. Walton at the Sunnyland Refinery and that Mr. Walton had given him $40 to purchase a pistol for him, but he did not know anything about a robbery on that date. He stated that he had gone to the security station because the other security guard who worked with Mr. Walton had told him Mr. Walton wanted him to bring a pistol by for him to purchase. He stated that upon arriving at the security station he and a Mr. Freeman went in to see Mr. Walton. He stated that Mr. Walton asked him if he had the pistol and that he told Mr. Walton he would have to pay the $40 first. At this time Mr. Walton gave him $40 and told him to be back within thirty (30) minutes.

Mr. Pritchett testified that he had met Mr. Walton on several prior occasions. He stated that after the money was exchanged he and Mr. Freeman departed. He dropped Mr. Freeman off three or four blocks from the refinery and he then drove home. He further stated that the man who was supposed to obtain the pistol and take it to Mr. Walton never showed up and that Mr. Walton then issued a warrant for Mr. Pritch-ett’s arrest. He then stated that Mr. Walton had given the money to Mr. Freeman and it was Mr. Freeman who was supposed to take the pistol back to Mr. Walton.

On cross-examination Mr. Pritchett stated again that he had met Mr. Walton on several prior occasions and denied ever having the $40 or a pistol.

I

The appellant contends that the trial court committed reversible error and abused its discretion in denying the appellant’s motion for continuance based on the absence of a witness. In deciding whether the trial court should have granted a continuance in order to procure Mr. Freeman’s attendance, it should be noted initially that a motion for continuance in a criminal ease is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed unless clearly abused. Bailey v. State, 398 So.2d 406 (Ala.Cr.App.1981); Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Wilson v. State, 384 So.2d 1243 (Ala.Cr.App.1980). This rule clearly applies to cases where the continuance is based on an absent witness. Bailey v. State, supra; Weaver v. State, 401 So.2d 344 (Ala.Cr.App.1981); Stewart v. State, 398 So.2d 369 (Ala.Cr.App.1981), cert. denied, 398 So.2d 376 (Ala.1981). In Stewart a continuance was held properly denied where appellant did not subpoena a defense witness until the Thursday before his trial on Tuesday. Furthermore, counsel is expected to exercise diligence in preparing his case for trial and for procuring necessary witnesses. Godfrey v. State, 383 So.2d 575 (Ala.Cr.App.1980), cert. denied, 383 So.2d 579 (Ala.1980).

The Court of Appeals has previously stated:

“Before it can be said that the accused has been denied this constitutional right, he must apply to this court for the issuance of an attachment and show to the court that the witness has been served with a subpoena a sufficient length of time before the trial to afford an opportunity to the witness to obey its mandate, that the witness is in the jurisdiction of the court, and that his attendance can be obtained within a reasonable time by the compulsory process_” Thomas v. State, 15 Ala.App. 408, 73 So. 558 (1916).

The refusal to grant a continuance is not error in the absence of a showing that the appellant could probably locate and have the witness served within a reasonable time, Myers v. State, 19 Ala.App. 98, 95 So. 331 (1923); and where there was no effort to secure the presence of the witness until the day of the trial. Reese v. State, 32 Ala.App. 449, 26 So.2d 723 (1946).

Here, the appellant did not show that he had sought the attendance of witness Freeman until the day of the trial, and the witness was still not located on the day of the trial. The appellant never made a showing that the witness had been served with a subpoena. Furthermore, there was no showing that appellant could locate Freeman within the 48 hours requested. While there was a showing by the appellant that Freeman was present at the time and place of the robbery, whether or not he could in fact corroborate the testimony of appellant is an open question. While appellant’s counsel stated to the court that the witness for whom process was desired was a material witness for the appellant, it was not made to appear what the evidence was which counsel deemed material. A motion for a continuance was denied in Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980), when the appellant had some six weeks to prepare and obtain all necessary witnesses. This situation is a similar one since appellant had over eight weeks to prepare and obtain witnesses. The showing in this case was untimely. The constitutional assurance of compulsory process for obtaining witnesses in one’s favor is not to be construed in practice as to permit the accused to secure delay by applying for process at the last moment. Palmer v. State, 165 Ala. 129, 51 So. 358 (1909).

In view of the foregoing principles and applying them to the facts in this case, we can not say that as a matter of law the trial court abused its discretion in denying appellant’s request for a continuance.

The judgment appealed from is therefore due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: SAM TAYLOR, Judge.

text:
    Johnny D. HERTZ v. STATE.
    1 Div. 707.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.

      Christopher Knight, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   SAM TAYLOR, Judge.

The appellant, while attempting to steal meat valued at $516, was apprehended inside the cafeteria of the Booker T. Washington School in Mobile. There were negotiations resulting in the state’s expressing a willingness to recommend probation for the appellant in exchange for his plea of guilty. This agreement failed because the appellant failed to appear in court when due. Thereafter, appellant pleaded guilty to a charge of burglary in the third degree. Through a colloquy with appellant, the trial court ascertained that he did understand his constitutional rights. His guilty plea was accepted and a presentence report requested by the trial court. On the date set for sentencing, it appeared that the presen-tence report listed prior felony convictions which made it mandatory that sentencing proceed under the Habitual Felony Offenders’ Act. During this hearing, the appellant informed the court of his desire to proceed with his guilty plea even though the sentence range would now be 15 years to life because of the application of this statute. Counsel objected to sentencing on the grounds that he had inadequate notice that the Habitual Felony Offenders’ Act would apply. The court then continued the sentencing hearing for a month. At that hearing, the court imposed sentence of fifteen years’ imprisonment, the minimum sentence permissible under law under these circumstances.

I

Appellant first contends that he was not afforded adequate notice of the state’s intention to proceed against him as a Habitual Felony Offender.

It must be stated at the beginning of any discussion of the Habitual Felony Offenders’ Act, that the state has no option in the application of this law. In no case is there a question of whether the state intends to apply the recidivist statute; it must be applied.

Alabama’s Temporary Rules of Criminal Procedure provide that

“At a reasonable time prior to the hearing the defendant shall be given notice of the prior conviction or convictions upon which the state intends to proceed.” A.R.Crim.P.Temp. 6(b)(3)(ii).

Notice given two days before a hearing has been held to be sufficient. See Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981). Less time might be found reasonable under Rule 6(b)(3)(ii). In this instance, the court, to avoid any problem of due process, continued the case for 35 days. There is no merit in appellant’s contention that his rights were violated in this proceeding.

II

Appellant contends that he should have been allowed to withdraw his guilty plea because he expected a lesser sentence. The first agreement as to probation was effectively terminated by the appellant when he failed to appear for sentencing. The fact that he failed to appear had to be considered by the prosecution in determining a proper disposition of the case.

The record further affirmatively shows that the appellant’s guilty plea was not the result of a plea bargaining agreement. To the contrary, at the first hearing, at which the guilty plea was first taken on June 15, 1983, the assistant district attorney stated “It is a blind plea.” At the hearing on July 15, the court began the hearing by inquiring “Was this a blind plea?” Counsel for the appellant answered in the affirmative. In this same proceeding, counsel for the appellant stated, “... I have explained it to my client the consequences of his guilty plea. I have explained it to him that ... I could file a motion on his behalf to withdraw the guilty plea which would be in your discretion to grant or deny. And that he ... wishes to continue with his guilty plea.”

At the August 19 hearing, appellant moved to be allowed to withdraw his guilty plea and the court denied his motion. The court stated:

“But I think I told him, quite sure, that when I was first apprised that I would let him back out of his plea agreement, that the State, in my opinion, had no choice but to proceed under the repeat felony offender [sic] and he didn’t want to do it. So, my position now is that he can’t withdraw the plea. I don’t see any reason for it.”

The guilty plea in this case was freely and voluntarily made. The appellant gambled on whether or not his prior felony convictions would be discovered. He lost.

Accordingly, this case is due to be affirmed.

AFFIRMED.


text:
    James Lavon SHEFFIELD v. STATE.
    4 Div. 233.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.

      Joel Lee Williams, Troy, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Appellant was sentenced to three years’ imprisonment upon his plea of guilty for the offense of receiving stolen property and was granted probation. A probation arrest warrant was issued on July 21, 1983, which stated the reasons for which the appellant’s probation was to be revoked. A hearing was held on August 2, 1983, resulting in revocation of appellant’s probation.

I

Appellant contends that his right to minimal due process was violated because he was not given proper notification of his alleged probation violations due to the variances in the probation arrest warrant, the probation “Supervisor’s Report on Delinquent Probationer,” and the order revoking probation. We disagree.

The reasons given for revocation in the probation arrest warrant were as follows:

(1) Committing the offense of driving while suspended.
(2) Committing the new offense of driving under the influence.
(3) Failure to pay the fine and costs in the DWS case.
(4) Failure to pay the fine and costs in the DUI case.
(5) Failure to pay the costs and restitution in the case for which he was on probation.
(6) A pending charge of robbery in the first degree.
(7) Pending charge of assault in the third degree.

A delinquency report was prepared by the probation officer prior to the revocation hearing and given to the appellant. In this report, the following violations were asserted in support of revocation:

(1) Committing the new offense of harassment.
(2) Committing the new offense of disorderly conduct.
(3) Committing the new offense of driving with no driver’s license.
(4) Committing the new offense of driving under the influence.
(5) Committing the new offense of driving while suspended.
(6) Committing the second new offense of driving while suspended.
(7) Committing the second new offense of harassment.
(8) A pending charge of robbery, first degree.
(9) Associating with individuals of bad reputation or harmful character.
(10) Failure to avoid injurious habits.
(11) Failure to avoid places of bad reputation or harmful character.
(12) Failure to pay the costs and restitution in the case for which he was on probation.

After the probation revocation hearing, the court ordered that the appellant’s probation be revoked and his sentence be put into effect. The order cited the following reasons:

(1) Committing the new offense of harassment.
(2) Committing the new offense of disorderly conduct.
(3) Committing the new offense of driving with no license.
(4) Committing the new offense of driving under the influence.
(5) Committing the new offense of driving while suspended.
(6) Committing the second new offense of harassment.
(7) A pending charge of robbery, first degree.
(8) Failure to pay costs and restitution in the case for which he was on probation.
(9) Conduct below the minimum standard.

It is well settled that probation revocation hearings are not criminal prosecutions. Austin v. State, 375 So.2d 1295 (Ala.Cr.App.1979). They are not, however, civil proceedings. Probation “is an act of grace extended to one already convicted of a crime in a trial providing the full protection of due process of law, the rights of an offender in a probation revocation hearing are not those extended by the Constitution of the United States to one on trial in a criminal prosecution.” State v. Baines, 40 N.C.App. 545, 550, 253 S.E.2d 300, 303 (1979). The United States Supreme Court established guidelines for revocation of parole in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and revocation of probation in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Our Supreme Court, following Morrissey and Gagnon in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (Ala.1975), set the requirements and guidelines which must be met for minimum due process in Alabama.

Notice of violations of probation is given the probationer so that he may have adequate time to prepare to refute the charges against him. Spann v. State, 426 So.2d 492 (Ala.Cr.App.1982). The notice should contain the charges in language that an ordinary person could understand. Donaldson v. State, 435 So.2d 223 (Ala.Cr.App.1983). Sheffield had notice of the charges against him here from the probation arrest warrant and from the “Supervisor’s Report on Delinquent Probationer.” From the record it appears that the appellant had sufficient time to prepare his defense against the charges.

The written statement issued by the judge as to the evidence relied on and the reasons for revoking probation “allow[s] the reviewing court to determine whether there was a factual basis for revocation and ... provide[s] a probationer with a record of the proceedings so as to protect him from a second revocation proceeding based on the same conduct.” Kartman v. Parratt, 535 F.2d 450, 458 (8th Cir.1976). If there had been new charges brought against appellant during the hearing, of which there had been no notice, or if the court had failed to state the basis for its action, then the appellant might not have enjoyed minimum due process. See Taylor v. State, 405 So.2d 55 (Ala.Cr.App.1981), and Walker v. State, 358 So.2d 514 (Ala.Cr.App.1978). In summary, we find that the variances between the probation arrest warrant, the “Supervisor’s Report on Delinquent Probationer,” and the order revoking probation are not harmful to the appellant, since he received notice of all the charges relied on by the court in its final determination. Appellant received due process.

II

Appellant also contends that his right to minimal due process was violated by the failure of the court to inform him of his right to counsel and by the failure of the court to appoint counsel to assist him at the revocation hearing. Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620, 623 (1975), holds that “the judge conducting the probation hearing should decide on a ease by case basis whether due process requires that an indigent probationer be represented by counsel.” The case before us is relatively simple and the appellant admitted some of the violations with which he was charged. It may not be as clear as we might like it to be that the court informed the probationer of his right to counsel. The court presumed such a request and denied it on the record. We find that the proceedings comported with due process.

In light of the foregoing, this case is affirmed.

AFFIRMED.


author: BOWEN, Presiding Judge.

text:
    John Edward THOMAS v. STATE.
    6 Div. 202.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.

      John Golden of Golden & Golden, 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.

John Edward Thomas, the appellant, was indicted for theft of property in the first degree. He was sentenced as an habitual offender to life imprisonment. Two issues are raised on appeal.

I

It is argued that Thomas’ motion to exclude the State’s evidence should have been granted because there was no proof that Thomas exerted any unauthorized control over the stolen truck, and that consequently the State failed to prove an element of the offense of theft defined in Alabama Code Section 13A-8-3 (1975).

There was a significant amount of circumstantial evidence connecting Thomas to the theft. Briefly, that evidence is that Thomas was observed by the owner of the truck walking away from the recently stolen truck, which was parked in an alley, and Thomas’ brother, Steve, was seen looking out from under the hood. When Thomas saw the owner he began whistling and looking back towards the truck. When Steve saw the owner, he “broke” and ran. Thomas was arrested at the scene. He was dirty and greasy and had an unusual amount of grease on his hands. Steve was also dirty and greasy.

The truck had been “hot-wired” and the breather had been taken off the carburetor. These facts justify the trial judge in submitting the case to the jury and further justify the jury’s verdict of guilty. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).

II

After Thomas’ brother, Steve, took the witness stand as a defense witness and denied any intent to steal the truck, the trial judge allowed the prosecutor, over the objection of defense counsel, to ask him whether he had pled guilty to “this charge”. Because Steve pled guilty as a youthful offender, Thomas contends that this was error.

Before Steve testified, the trial judge cautioned the prosecutor about “asking this young fellow about his plea of guilty under the youthful offender act.” After the brother testified and denied any criminal wrongdoing, the trial judge changed his ruling and stated that the plea was admissible on the issue of “complicity and design and scheme.”

In his oral instructions to the jury, the trial judge charged:

“(Y)ou have heard some testimony about one witness having pled guilty. Ladies and gentlemen, that has nothing to do about — absolutely nothing to do with the guilt or innocence of the defendant in this ease, it is in because the law says — it is in solely for the purpose to enable you if you desire, you might determine intent, you might determine design or you might determine a scheme or plan on the part of the two together if you are satisfied that they were two together and if you are not satisfied or convinced they were together and convinced beyond a reasonable doubt that they were intending to do anything or steal the car, only on the basis of scheme, plan or design, it has nothing to do other than that, nothing to do with the guilt of the defendant except, that it is for your consideration.”

The general rule is that a witness’s prior record of a juvenile court judgment cannot be used to impeach his credibility. C. Gamble, McElroy’s Alabama Evidence, Section 145.01(4) (3rd ed. 1977). Annot. 63 A.L.R.3d 1112 (1975). Nor may an adjudication as a youthful offender be used to impeach a witness’s credibility. See Word v. State, 424 So.2d 1374 (Ala.Cr.App.1982); Daniels v. State, 375 So.2d 523 (Ala.Cr.App.1979); McElroy, Section 145.-01(4) (Supp.1980).

Although the Youthful Offender Act is separate and distinct from those statutes dealing with juveniles, both contain clear statements that an adjudication under their respective provisions is not to be considered a conviction. Alabama Code Section 15-19-7(a) (1975) (determination of one as a youthful offender “shall not be deemed a conviction of crime”); Section 12-15-72(a) (adjudication as a juvenile “shall not be considered to be a conviction”).

The purpose of the Youthful Offender Act is to protect “those who fall within its ambit from the-stigma and practical consequences of a conviction for a crime.” Raines v. State, 294 Ala. 360, 366, 317 So.2d 559 (1975). It is clear, however, that the Act is not intended to prevent the consideration of the adjudication for every conceivable purpose during the entire lifetime of the youthful offender. Under Section 15-19-7(a), if a youthful offender “is subsequently convicted of crime, the prior adjudication as youthful offender shall be considered.” (Emphasis added.) Similarly, adjudication as a juvenile is admissible in “a disposition hearing in a juvenile court or in sentencing proceedings after conviction of a crime for the purposes of a pre-sentence study and report.” Alabama Code Section 12-15-72(b) (1975).

In this case, Steve pled guilty as a youthful offender the day before he testified for Thomas. By pleading guilty, Steve admitted his participation in and guilt of the identical offense with which Thomas was charged. Ex parte Sankey, 364 So.2d 362 (Ala.1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1513, 59 L.Ed.2d 779 (1979). When testifying for Thomas, however, Steve testified in substance and effect that he had no criminal intent. By doing so, the witness opened the door for the admission of the youthful offender guilty plea. United States v. Canniff, 521 F.2d 565 (2d Cir.1975), cert. denied sub nom. Benigno v. United States, 423 U.S. 1059, 96 S.Ct. 796, 46 L.Ed.2d 650 (1976) (defendant opened door to youthful offender adjudication by testifying that he had never been convicted of a crime); see also Green v. State, 352 So.2d 1149 (Ala.Cr.App.1977); 63 A.L.R.3d 1112 at Section 4(b).

Moore v. State, 333 So.2d 165 (Ala.Cr.App.1976), cited by Thomas to support his contention of error, is readily distinguished from the present case in that the prosecutor in Moore was allowed to impeach the accused’s general credibility by use of his prior juvenile record which had no connection with the charged offense.

We firmly adhere to the general rule that a youthful offender adjudication cannot be used for impeachment purposes. We find, however, a significant distinction between using adjudication as a youthful offender to impeach credibility (which is not permitted because an adjudication is not a conviction, Alderson v. State, 370 So.2d 1119, 1122 (Ala.Cr.App.1979)), and using a guilty plea as a youthful offender for an offense to contradict the witness’s testimony that he did not commit that offense.

While the Youthful Offender Act is for the protection of the accused, the act cannot be perverted to allow an accused to enter a guilty plea to an offense and then, in a separate but related proceeding against a co-defendant, deny his participation in that same offense. Cf. United States ex rel. Rohrlich v. Fay, 240 F.Supp. 848 (S.D.N.Y.1965) (where court noted that the New York Youthful Offender Act, which is very similar to the Alabama Youthful Offender Act, would not permit a witness who had been previously adjudged a youthful offender to be “vouched for to a jury as a saint when in fact he is a sinner”). Under the circumstances of this case, we think that the State’s policy interest in protecting the confidentiality of a youthful offender’s record must yield to the public’s right to the integrity of the judicial system.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . A prior adjudication as a youthful offender, however, may not be used to enhance punishment under the Habitual Offender Act. Thomas v. State, 435 So.2d 1324 (Ala.1982).


author: HARRIS, Judge.

text:
    Waymon P. BARNES v. STATE.
    6 Div. 252.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.

      Samuel L. Masdon of Manasco & Mas-don, Haleyville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

On May 26, 1982, the Marion County Grand Jury indicted appellant, Waymon P. Barnes, for the murder of his common-law wife, Lillie Barnes. He was subsequently tried and convicted of manslaughter, and on May 20,1983, he was sentenced to twenty years’ imprisonment pursuant to the habitual felony offender statute.

Robert Mitchell, appellant’s former stepson, testified that on March 26, 1982, he went to the Barnes residence to request appellant’s help in repairing his car. Appellant had a motor repair business located behind his home, and when Mitchell arrived, appellant, Lillie and Dennis Ray were there drinking and talking. Mitchell joined them, and, when the beer ran out, he and Ray went out and bought more. The foursome moved into the house to play poker and continue drinking.

Between nine and ten o’clock that night Ray became too drunk to play any longer, so Mitchell drove him to his girl friend’s house and left him there. Mitchell then returned to the Barnes residence, where he found the aftermath of a fight between appellant and his wife.

Lillie was propped up on a wall, and her appearance suggested a recent beating. Her face was swollen, with knots all over it, her lip was cut and her hair was in disarray. Mitchell observed that she had difficulty walking, and that she and appellant were arguing.

Mitchell used the bathroom at the Barnes residence and then he and appellant left to buy more beer. When the two men returned, about thirty minutes later, Lillie was lying unconscious on the floor. Appellant placed a pillow under her head and a blanket over her. Mitchell left.

James Jones, an emergency medical technician, arrived at the Barnes residence some time after three o’clock the following morning. He found Mrs. Barnes lying unconscious in the living room floor with several bumps and knots on her forehead, and a dilated pupil, indicative of trauma to the brain. He considered her to be in serious condition and elected to transport her to the closest hospital. Appellant was present and reported to Jones that he and his wife had been drinking and fighting.

Dr. John Nofzinger, a neurological surgeon, performed an operation on Mrs. Barnes to relieve pressure on her brain caused by hemorrhaging and a blood clot. He testified that she had sustained severe brain damage due to a blow or blows to the head and that he was unable to save her life.

Dr. Joseph Embry performed an autopsy on Mrs. Barnes. He reported injuries to her chest, abdomen, rib cage, head and arms. He stated that there were a minimum of eight separate and distinct areas of hemorrhage in her brain which, in his judgment, were caused by blunt force trauma. It was his opinion that Mrs. Barnes died as the result of a beating.

Appellant testified that he and Mrs. Barnes had a fight, and that she struck the first blow, hitting him with an iron skillet. He said that they were both drunk and that when he found her unconscious he assumed that she had passed out from drinking too much. It was not until he got up around three o’clock the following morning and was unable to rouse her that he became concerned enough to call for help.

The first issue raised by appellant on review is whether admission of ten photographs of the deceased into evidence was reversible error. The first three photographs depicted the victim’s condition shortly after admission to the hospital for treatment of her injuries. The last seven photographs illustrated Dr. Embry’s testimony concerning his postmortem findings. Appellant claims that these exhibits were both redundant and more prejudicial than probative.

The admissibility of photographs into evidence is within the purview of the trial court and will be reviewed only to determine whether there has been an abuse of discretion. Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.) cert. denied, 400 So.2d 427 (Ala.1981); Hurst v. State, 397 So.2d 203 (Ala.Cr.App.), cert. denied, 397 So.2d 208 (Ala.1981). In addition, the court, in Lawrence v. State, 409 So.2d 987, 990 (Ala.Cr.App.1982), stated: “The eviden-tiary rule in this state favors the admission of photographs and affords the trial court a wide and liberal attitude in the admission of photographs illustrative of a criminal transaction.” (citations omitted) The court in Lawrence, supra, also stated that “[t]he fact that a photograph has very little probative value does not prevent its admission in evidence where the photograph will tend to shed light on, strengthen or illustrate the truth of other testimony ...” (citations omitted)

We do not find that the photographs in question were redundant or more prejudicial than probative. They did have a tendency to shed light on, strengthen, and illustrate the testimony of witnesses regarding the victim’s condition on first receiving medical attention, and regarding the cause of death. The photographs were, thus, properly admitted into evidence.

Appellant next contends that it was error for the trial court to charge the jury on the elements of manslaughter resulting from reckless or unintentional behavior, since his indictment was for an intentional homicide. The rule in Alabama, however, is that the lesser-included offense instruction should be given where the evidence would support any reasonable theory of the position. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973). We find no error, under the facts of this case, in the trial judge’s charging the jury on reckless homicide.

Lastly, appellant contends that evidence at trial was insufficient to support the guilty verdict.

The Court of Criminal Appeals is required to review evidence before it in the light most favorable to the State and not to substitute its judgment for that of the jury when reviewing sufficiency of the evidence to convict. Gullatt v. State, 409 So.2d 466 (Ala.Cr.App.1981); Crumpton v. State, 402 So.2d 1081 (Ala.Cr.App.), cert. denied 402 So.2d 1088 (Ala.1981).

Where there is legal evidence from which the jury could by fair inference find accused guilty, this court will not overturn the verdict. Hughes v. State, 412 So.2d 296 (Ala.Cr.App.1982).

In the case before us the evidence strongly indicates that appellant gave his wife a savage beating which resulted in her death. There was abundant evidence supporting the jury’s determination that appellant was guilty of manslaughter.

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

AFFIRMED.

All the Judges concur.


text:
    Phillip Donald STALLWORTH, alias v. STATE.
    6 Div. 990.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    J. Michael Campbell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Phillip Donald Stallworth was convicted of first-degree robbery and sentenced by the trial court to twelve years’ imprisonment in the penitentiary.

James Little, the victim of the robbery in question, identified Stallworth, the appellant herein, as one of the two men who committed the robbery. In a signed statement to the police, the appellant confessed his participation in the crime. At trial, he claimed that his confession was false and presented an alibi defense.

The sufficiency of the evidence for conviction is not challenged on appeal. Instead the appellant contends that, for several reasons, the trial court erred in not suppressing his alleged confession.

A thorough suppression hearing was conducted by the trial court. The appellant contends that the evidence presented at the suppression hearing was insufficient to establish the validity of his arrest warrant. He argues, therefore, that his confession should have been suppressed as the “fruit” of an illegal arrest. We disagree.

Sergeant Harry Faucett of the Birmingham Police Department investigated the instant robbery. He testified at the suppression hearing that, shortly after the robbery, the victim identified the appellant, from a “photographic line-up,” as one of the two robbers. Faucett related this information to the magistrate and obtained a warrant for appellant’s arrest. The appellant was thereafter arrested.

We need not reach appellant’s arguments concerning the validity of the arrest warrant, because a warrant was not necessary in this instance. Section 15-10-3(3), Code of Alabama 1975, authorizes an arrest without a warrant “[w]hen a felony has been committed and he [the arresting officer] has reasonable cause to believe that the person arrested committed it.” (Emphasis supplied.) Here, the robbery had definitely been committed and the victim’s “photographic line-up” identification of the appellant supplied the “reasonable cause” sufficient to justify an arrest without a warrant. See, Rennow v. State, 47 Ala.App. 419, 255 So.2d 602, cert. denied, 287 Ala. 741, 255 So.2d 604 (1971), cert. denied, 409 U.S. 842, 93 S.Ct. 185, 34 L.Ed.2d 81 (1972); Turk v. State, 53 Ala. App. 106, 298 So.2d 37 (1974).

Because appellant’s arrest was legal, the motion to suppress his confession as the “fruit” of an illegal arrest was properly denied.

In light of the extensive testimony at the hearing on the motion to suppress appellant’s confession, including testimony from the appellant, himself, the trial court denied appellant’s motion at trial for an additional voir dire hearing on the voluntar-iness of his confession. The appellant cites this ruling as reversible error. We disagree.

The trial court did not err in denying appellant’s motion, because it' already had sufficient evidence, and, for aught that appears in the record and in appellant’s brief, all of the available evidence, necessary for a voluntariness determination.

Appellant’s final argument is that his confession should have been suppressed because the evidence presented at the suppression hearing did not establish that it was given voluntarily.

It has been firmly established, and the appellant concedes, that a determination as to the “voluntariness” of a confession is a matter, which, in the absence of abuse, is properly left to the trial court’s discretion. Tice v. State, 386 So.2d 1180 (Ala.Cr.App.), cert. denied, 386 So.2d 1187 (Ala.1980), and cases therein cited; Williams v. State, [Ms. 6 Div. 761, May 31, 1983], (Ala.Cr.App.1983), and cases therein cited; Bracewell v. State, 447 So.2d 815 (Ala.Cr.App.1983). Nevertheless, the appellant contends that the trial court abused its discretion in this instance, because a determination that his confession was voluntarily given was contrary to the weight of the evidence (i.e., was not supported by a preponderance of the evidence). We disagree.

At the suppression hearing, Sergeant Faucett, the officer who took appellant’s statement, testified that before he was questioned, the appellant was properly and thoroughly advised of his Miranda rights, the appellant said that he understood his rights, the appellant was not abused or threatened, or coerced to make a statement in exchange for a promise of reward or leniency, and the appellant signed the waiver of rights form. The appellant then voluntarily explained the details of the robbery. Faucett stated that appellant’s version of the robbery was “essentially the same” as Mr. Little’s (the victim’s) version. Faucett wrote down appellant’s version of the robbery, which the appellant read, verified, and signed. On cross-examination Faucett explained that before questioning the appellant about the offense, he asked background questions about appellant’s education, and his physical and mental health and had the appellant read a portion of the Miranda form out loud to verify that he could, indeed, read.

The appellant testified that he initially told Faucett that he knew nothing about the robbery, that Faucett told him “it would be better” for him to tell Faucett what happened, that he, the appellant, could neither read nor write anything other than his own name, that he had an eighth-grade education in a “slow learner” class, that he never understood his Miranda rights, and that his confession was false. On cross-examination by the state the appellant explained that he lied to Faucett, in admitting participation in the robbery, because he was scared.

At trial before the jury the trial court admitted appellant’s confession over appellant’s objection that its voluntariness had not been proven.

The standards of review applied when the trial court’s “voluntariness” determination is challenged on appeal are well established and adequately outlined and discussed in Williams v. State, supra. We have carefully applied these principles to the instant case in light of the conflicting evidence presented. We have concluded that, although there was evidence to the contrary (the appellant’s own testimony), there was sufficient evidence to support the conclusion that appellant’s confession was voluntarily and intelligently given. See, Williams v. State, supra; Bracewell v. State, supra. Therefore, the trial court did not err in admitting appellant’s confession into evidence.

For the reasons stated, this cause is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Jessie T. KITCHENS, Jr. v. STATE.
    8 Div. 943.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.

      Sherman B. Powell, Jr., Decatur, for appellant.
    Charles A. Gr'addick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Jessie Kitchens, the appellant, was tried before a judge sitting without a jury and convicted of possessing marijuana in violation of the Alabama Uniform Controlled Substances Act, Section 20-2-70, Code of Alabama (1975). Sentence was three years’ imprisonment and a $3000 fine. Two issues are raised on appeal.

I

Kitchens contends that the marijuana was seized as the result of an illegal search and therefore should have been suppressed.

On the afternoon of May 2, 1982, Larry Montgomery, an off-duty Lawrence County Deputy Sheriff, observed two cars parked partially upon a public gravel road. Kitchens was seated in the driver’s seat of one of the cars. Beside him was seated Teresa Randolph. Ben Yeager was standing beside Kitchens’ car talking with Kitchens and Ms. Randolph. Deputy Montgomery had to “pull around the left-hand side of it (the road) to get around” the two cars.

When Montgomery was beside Kitchens’ car, he asked if they were having car trouble. Yeager said no, they were just talking, or something to that effect. Montgomery continued on around the cars, parked his truck, and walked back to Kitchens’ car. As he approached the car, Montgomery again asked if they had car trouble and Yeager again replied that they did not. When Montgomery got within two or three feet of Kitchens’ car, he could see a plastic bag containing what appeared to be marijuana lying between the bucket seats. The bag was partially covered by a blue and white checked shirt.

Deputy Montgomery identified himself and requested Kitchens to step out of his car. Montgomery then reached in the car and pulled out the bag of marijuana. The deputy asked Kitchens “was this his, and ■Kitchens said ‘yes’.” Montgomery then arrested Kitchens and gave him the Miranda warnings.

A warrant issued upon a showing of probable cause is constitutionally required before a search may be conducted and evidence seized. U.S. Const.Amend. IV; Ala. Const, art. I, Section 5. The plain view exception to this rule, however, “permits a warrantless seizure of evidence if the seizing officer 1) has prior justification for the intrusion, 2) comes upon the evidence inadvertently, and 3) immediately recognizes the objects discovered as evidence of wrongdoing.” Myers v. State, 431 So.2d 1342, 1344 (Ala.Crim.App.1982), cert. quashed; 431 So.2d 1346 (Ala.1983). See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Herrin v. State, 349 So.2d 103 (Ala.Cr.App.), cert. denied, 349 So.2d 110 (Ala.1977). We are satisfied that these requirements were met in this case.

It is clear that Deputy Montgomery was justified in approaching the Kitchens vehicle. Initially, he thought Kitchens and his companions had car trouble. “(O)ne of the functions of a law enforcement officer is to render assistance to motorists.” Myers, 431 So.2d at 1344. Further, Montgomery stated that there had been “a lot of problems on that road with people drinking.” Although he also testified that Kitchens and his friends did not appear to be drinking, he was certainly justified in investigating the situation. Moreover, Kitchens was parked in such a way as to partially block a public road, creating a possible hazard for other motorists. For this reason alone Montgomery was justified in approaching Kitchens’ vehicle.

According to Deputy Montgomery, he was able to see the marijuana protruding from the shirt as he approached the car, which would obviously be an inadvertent discovery. Yeager, who testified on Kitchens’ behalf, stated that the marijuana was completely covered by the shirt and that he thought Montgomery “looked up under the seat first, and then uncovered the shirt.” This conflict in testimony raised a question for the trial judge. Cf. Myers, supra (conflicting testimony given in a suppression hearing raises a question for the trial judge). The weight and credibility to be attached to the testimony of these witnesses was also a question for the trial judge. Cf. Smith v. State, 351 So.2d 668 (Ala.Cr. App.), cert. denied, 351 So.2d 675 (Ala.1977) (the weight and credibility to be attached to the testimony of witnesses at a suppression hearing is a question for the trial judge).

It is not necessary that the seizing officer be convinced beyond a reasonable doubt as to the incriminating nature of the evidence discovered. The evidence needs only to raise the probability that criminal activity is afoot. Myers, supra; Yielding v. State, 371 So.2d 951 (Ala.Cr.App.), cert. denied, 371 So.2d 962 (Ala.1979); Herrin, supra. Montgomery testified that he had viewed marijuana, both growing and in bags, some eight to ten times prior to this occasion and that, in his judgment, the plant material in Kitchens’ car appeared to be marijuana.

We find that the marijuana was in plain view when seized and therefore the motion to suppress was properly denied.

II

Kitchens maintains that his admission of ownership of the marijuana should have been suppressed because he had not been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to making the admission.

“(P)olice officers are not required to administer Miranda Warnings to everyone ... they question.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). Miranda warnings must be given only when the questioning is conducted in a custodial setting, meaning that the suspect “has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; Mathiason, 429 U.S. at 494, 97 S.Ct. at 713. The procedural safeguards outlined in Miranda do not apply to “traditional investigatory functions (such) as general on-the-scene questioning.” Hall v. State, 399 So.2d 348, 351 (Ala.Cr.App.1981). The facts of each ease must be examined in order to determine whether the defendant was questioned merely as part of a general investigation or was subjected to custodial interrogation. See Cork v. State, 433 So.2d 959 (Ala.Cr.App.1983); Hall, supra.

In State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969), an officer observed the defendant at the wheel of a pickup truck which appeared to be stuck in the sand in a ditch on the side of the road. The officer asked for the defendant’s driver’s license and inspected it, then asked the defendant if he had been drinking, to which the defendant responded “yes”. In affirming the defendant’s conviction for driving under the influence of alcohol, the Nebraska Supreme Court found that the officer was conducting an investigation, the defendant was not in custody at the time the question was asked, and, therefore, no Miranda warnings were necessary. See also Sly v. State, 387 So.2d 913 (Ala.Cr.App.), cert. denied, 387 So.2d 917 (Ala.1980); Annot. 25 A.L.R.3d 1076 (1969).

Although here Kitchens had gotten out of his car at Deputy Montgomery’s request, there is nothing to suggest that he was in custody at the time the question was asked. Cf. United States v. Gibson, 392 F.2d 373 (4th Cir.1968) (holding that defendant was not in custody where officers located defendant in a bar, requested him to accompany them outside, and, once outside, questioned him concerning a car in the parking lot); Cork, supra (same); People v. Martin, 78 Mich.App. 518, 260 N.W.2d 869 (1977) (same). Deputy Montgomery did not have his gun drawn and was not even in uniform, although he had identified himself as a deputy sheriff. Only one question was asked and it was asked without “any apparent purpose either to force or to trick the suspect into an admission of guilt.” Gibson, 392 F.2d at 378. Granted, Montgomery's question was directed to Kitchens, which may indicate that his investigation had focused on Kitchens at that time. Focus does not, however, “establish the existence of custodial interrogation.” Cork, 433 So.2d at 961 and cases cited therein.

Taking into consideration all of the facts involved in this case, we find that Kitchens was not in custody or subject to any coercion at the time he admitted owning the marijuana. See also McCrary v. State, 529 S.W.2d 467 (Mo.App.1975) (Miranda warnings not required where defendant stopped for traffic offense reached into his rear pocket; officer handcuffed defendant, searched him, and found condoms containing heroin; and defendant admitted that substance was heroin after officer had asked him what it was).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: SAM W. TAYLOR, Judge.

text:
    Donnie Ray NEELEY v. STATE.
    8 Div. 964.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Dan Moran, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.
   SAM W. TAYLOR, Judge.

Donnie Ray Neeley was charged with burglary and theft in the second degree and was granted youthful offender treatment. He was sentenced to two years, sentence was suspended, and he was placed on two years’ probation. Eight months later he was indicted in another case for theft in the first degree. He was denied youthful offender status; he pleaded guilty and was sentenced to four years’ imprisonment consecutive to any other sentence being served. Immediately after this sentencing, his probation in the first case was revoked. The state has written this court, declining to file a brief and acknowledging that according to Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), the appellant did not receive due process concerning his probation revocation.

In conformity to Armstrong, and the authorities cited therein, we are obliged to reverse and remand.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Julie P. TAYLOR v. STATE.
    8 Div. 989.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    John Mark McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This case hardly deserves an opinion, and the judgment of the trial court could well be affirmed without an opinion. However, we will not treat it thus, in view of appellant’s reliance upon the opinion of the Supreme Court in the relatively recent case of Solem v. Helm, — U.S.-, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), which we are required to follow when applicable, even though there was a strong dissenting opinion by the Chief Justice, in which three Associate Justices joined.

The only issue presented by appellant’s attorney, the same attorney that represented her in the trial court, is thus stated in his brief:

“Whether or not a fifteen year sentence for criminal possession of a forged instrument in the second degree is cruel and unusual punishment against violation of Appellant’s rights under the Eighth Amendment to the United States Constitution.”

Under the caption of “STATEMENT OF THE FACTS” in appellant’s brief is the following:

“Appellant was indicted in an 18 [17] count indictment for criminal possession of a forged instrument in the second degree by the June, 1983 term of the Madison County Grand Jury.
“Appellant pled guilty to count 9 of the indictment and received a fifteen year prison sentence. Count 9 of the indictment involved the possession of a Thirty-Five ($35.00) Dollar check which had been forged (ROA p. 21).
“Appellant was sentenced under the Alabama Habitual Felony Offender Act. Appellant admitted to three prior felonies all of which were criminal possession of a forged instrument in the second degree. (ROA p. 6).”

The court reporter’s transcript of the proceedings shows the following undisputed and unchallenged facts, inter alia, as to what occurred in open court at the time it was made known to the trial judge that defendant, with the approval of her attorney, desired to plead guilty:

“The Court questioned the defendant as follows:
“Q. Is this Julie Pritchet Taylor?
“A. Yes, sir.
“Q. How old are you, Mrs. Taylor? “A. Twenty-three.
“Q. In this case, number 83-734, you were charged under an indictment returned by the Grand Jury and the indictment contained seventeen counts. Do you understand that?
“A. Yes, sir.
“Q. It is my understanding from a conference with your attorney that you desire to enter a plea of guilty to Count Nine, which charges you with the offense of possession of a forged instrument in the second degree?
“A. Yes, sir.
“Q. Do you understand, ma’am, that that is a Class C felony?
“A. Yes, sir.
“Q. And do you understand it is the intent of the State to show to the court that you have been previously convicted of three felonies?
“A. Yes, sir.
“Q. Do you understand, ma’am, that if I accept your plea of guilty the Habitual Offender Felony Statute would be applicable?
“A. Yes, sir.
“Q. And do you understand, ma’am, that if you tell me you are guilty here today to possession of a forged instrument in the second degree, it would be my duty as Judge of this Court to set your punishment?
“A. Yes, sir.
“Q. And do you understand that if you have three prior felony convictions the punishment for this will be up to imprisonment for life or for any term of years, but not more than ninety-nine but not less than fifteen years?
“A. Yes, sir.
“THE COURT: Mrs. Taylor, on your plea of guilty I will adjudge you to be guilty of criminal possession of a forged instrument in the second degree as charged in Count Nine of the indictment. Do you have anything to say why sentence should not be imposed at this time?
“MRS. TAYLOR: No, sir.
“THE COURT: Mr. McDaniel, do you have anything to bring to my attention?
“MR. McD ANIEL: No, sir, Your Honor, other than I understand the State has a recommendation to you.
“THE COURT: What is the recommendation?
“MR. HOOPER: The State recommends a period of fifteen years.
“THE COURT: Is that your agreement?
“MR. McD ANIEL: Yes, Your Honor.
“THE COURT: Is that your agreement, Mrs. Taylor?
“MRS. TAYLOR: Yes, sir.
“THE COURT: Do you understand it?
“MRS. TAYLOR: Yes, sir.
“THE COURT: I’ll sentence you to imprisonment in the State Penitentiary for a period of fifteen years.
“I am required to order that you make restitution to the victim in the case and I understand that there is some seven hundred dollars involved.
“MR. HOOPER: Seven hundred and sixty-nine dollars total.
“THE COURT: Do you understand that, Mrs. Taylor?
“MRS. TAYLOR: Yes, sir.
“THE COURT: Do you understand that, Mr. McDaniel?
“MR. McD ANIEL: Yes, sir, Judge.
“THE COURT: I will order that you make restitution in that amount to the victims in all counts in the indictment.”

Although the photocopying into the record of the front and the back of each page of the indictment containing seventeen counts tends to some uncertainty, it seems reasonably clear therefrom that many, if not all, of the allegedly forged checks, although drawn on the same bank, constituted transactions separate and distinct from one another and that the purported drawer of each check was of the same name as the purported drawer of every other check, a name that was not that of defendant.

Appellant quotes heavily from the opinion in Solem v. Helm, supra, and the authorities cited therein but fails to convince us that Solem v. Helm is apposite to the instant case. A detailed consideration of the distinguishing differences between this case and Solem v. Helm would be merely academic. However, the inapplicability of the case relied upon is strikingly shown by one particular countercontention of appel-lee, as follows:

“THE APPELLANT WAIVED OBJECTION TO THE SENTENCE, AND WHICH APPELLEE SUPPORTS BY ITS ARGUMENT AS FOLLOWS:
“This Appellant raised no objection to her sentence in the trial court. On the contrary, she bargained her plea, obtained the dismissal of over a dozen other charges and the minimum sentence on her single conviction. She entered a plea of guilty with full knowledge of the consequences thereof, including those under the Habitual Offender Provisions. This constituted a waiver of any defects in the statute or the sentence. Brady v. United States, 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463 (1970); Lane v. State, 412 So.2d 292 (S.Ct. Ala., 1982); Graham v. State, 403 So.2d 275 (Cr.App.Ala.1981); cert. quash. 403 So.2d 286 (S.Ct. Ala., 1982); Sankey v. State, 364 So.2d 362 (S.Ct. Ala., 1978).”

Not only was there a voluntary, knowledgeable, and understandingly made waiver of any contention that the punishment was cruel or unusual, but also the record shows with crystal clarity that defendant is estopped from repudiating the agreement she solemnly made, without returning the benefits received by the nolle prosequi of the sixteen remaining counts of the indictment.

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. See also Jackson v. State, 440 So.2d 1181 (Ala.Cr.App.1983).

AFFIRMED.

All the Judges concur.