text:
    Rex Paul BEAVER v. STATE.
    1 Div. 448.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 31, 1984.

      Stephen K. Orso, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Beaver was indicted and convicted for theft of property in the first degree in violation of § 13A-8-3, Code of Alabama 1975. Sentence was twenty years’ imprisonment. Six issues are raised on appeal.

I

Beaver claims he was denied his Sixth Amendment right to a speedy trial. The pertinent events are set out below:

February 27, 1981 Arrest.
August 18,1981 Indictment.
September 10,1981 Pro se motion for discharge based on denial of speedy trial.
September 25,1981 Pro se motion denied; oral motion for speedy trial made by counsel and granted by trial court.
April 28,1982 Written motion for speedy trial filed.
May 14, 1982 Motion granted.
May 31,1982 Two defense motions filed: motion to dismiss for denial of speedy trial and motion for extension of time to research, investigate, and file pretrial motions.
June 11,1982 Motion to dismiss denied; motion for extension granted.
June 16-17,1982 Trial.

Applying the four-part test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we conclude that Beaver was not denied his constitutional right to a speedy trial.

Length of the Delay—The nearly sixteen-month delay between Beaver’s arrest, see Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975), and trial may be considered “presumptively prejudicial”, Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192, so as to “trigger” an inquiry into the remaining factors. United States v. Jenkins, 701 F.2d 850, 856 (10th Cir.1983).

Reasons for the Delay—The record in this case gives us no hint of the cause for the delay. With the exception of a six-month lapse between arrest and indictment, the delays appear to have been minimal.

Defendant’s Assertion of Rights—Although there were two speedy trial demands and two motions to dismiss for the alleged denial of a speedy trial filed by Beaver or his attorney, none of the motions included a request for an evidentiary hearing, compare Lewis and Blake v. State [Ms. 2 Div. 391, March 20, 1984] (Ala.Cr.App.1984) and the arguments of counsel, if any, on these motions are not reported. Furthermore, we note that Beaver’s last pretrial pleading, a motion for extension of time to prepare for trial, was at odds with his speedy trial demand filed the same day. One of the grounds of this request was that “[t]he defendant’s attorney has not had time to adequately research all factual materials concerning the indictment filed.” Following the Barker court’s suggestion that we “weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection”, 407 U.S. at 529, 92 S.Ct. at 2191, we find that Beaver’s pleadings directed to the speedy trial issue were primarily perfunctory objections unaccompanied by any showing of prejudice.

Prejudice to the Defendant—The record contains absolutely no evidence of any prejudice to Beaver, and apart from the obvious detriments suffered by any defendant incarcerated prior to trial, see Barker v. Wingo, 407 U.S. at 532-33, 92 S.Ct. at 2193, we cannot assume that he was harmed from the delay here. Under these circumstances and inasmuch as the request for extension of time was granted, we find that Beaver was not prejudiced by the delay of his trial and was not denied a speedy trial.

II

Beaver contends that there was a fatal variance between the indictment charging a theft of property from John Henry Dickson and proof showing ownership in John Perry Dickson. A variance in the victim’s middle name, however, is immaterial. James v. State, 246 Ala. 617, 21 So.2d 847 (1945); Turner v. State, 406 So.2d 1066 (Ala.Cr.App.), cert. denied, 406 So.2d 1069 (Ala.1981).

III

Beaver argues that the State failed to prove a prima facie case of theft because it did not establish venue in Mobile County and because its evidence was “purely circumstantial”. However, the record shows that the State proved venue when the trial court allowed it to reopen its case for this very purpose after it had rested. There was no error here. See Harris v. State, 283 Ala. 148, 214 So.2d 843 (1968); Alabama Code § 15-14-4 (1975).

The State’s evidence established that on February 23, 1981, Mr. John Dickson’s 1971 Dodge pickup truck, with a Charter Arms .38 caliber revolver in the glove compartment, was stolen. The evidence pointing to Beaver’s guilt included the fact that, on February 27, 1981, after he was apprehended following a high speed chase by the Mobile police on suspicion of another offense, he dropped a set of keys into a trash can. When the police questioned him about the keys and whether the vehicle to which they belonged was stolen, Beaver answered, “Well, you know me; if I see one I’m going to take it.” Beaver then stated that the keys matched a 1971 Dodge truck which was parked near the Haystack Apartments off Airport Boulevard in Mobile. At the time of his arrest, Beaver also had in his possession a pawn ticket for a Charter Arms .38 caliber revolver. When questioned about the gun, Beaver told the police it “came out of the truck that he had taken.” Mobile authorities recovered the truck and determined that it was Mr. Dickson’s. From the foregoing facts, it is clear that the State presented a prima facie case of theft of property in the first degree. Alabama Code § 13A-8-3(b) (1975).

IV

Prior to trial, Beaver filed a motion to suppress certain statements made to the Mobile police and he requested the trial court to empanel a special jury to determine the following issues: (1) whether the defendant knowingly waived his right to counsel before making a statement; and (2) whether the statement was induced by physical violence, threats, or promise.

The trial judge denied the request to empanel a special jury and heard testimony on the motion to suppress, out of the presence of the trial jury, during a recess at the appropriate point in the trial.

Initially, we note that Beaver had no right to have a special jury empaneled to determine the voluntariness of his statement to the Mobile police. “The issue of voluntariness is a question of law to be resolved by the trial judge in the first instance outside the hearing of the jury.” Snider v. State, 422 So.2d 807, 809 (Ala.Cr. App.1982); Balentine v. State, 339 So.2d 1063, 1070 (Ala.Cr.App.), cert. denied, 339 So.2d 1070 (Ala.1976). Once the trial judge rules a confession admissible, the jurors may then accord it whatever weight and credibility they deem proper, taking into account the circumstances under which it was made. Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965).

In the case before us, the State established that Beaver was informed of his Miranda rights, was neither forced, threatened, promised nor induced to make a confession, and thereafter willingly made a statement to Mobile police officers. To contradict this, Beaver testified that after he was apprehended one of the officers grabbed him, threw him to the ground and then beat his head against the truck he was driving. He also said that he asked for a lawyer before being questioned but was never given the opportunity to contact one. As this Court stated in Snider v. State, supra,

“It is not unusual for conflicting testimony to be presented during a voluntariness hearing. When this conflict arises, great weight will be given to the trial court’s judgment if he determines the confession to be voluntary. The trial judge’s decision will be upheld unless his conclusion is palpably contrary to the great weight of the evidence and manifestly wrong.”
422 So.2d at 809.

Here, the court’s ruling was supported by substantial evidence, Morgan v. State, 363 So.2d 1013, 1016 (Ala.Cr.App.1978), and will not be disturbed on appeal.

V

Beaver maintains that the introduction of evidence of his high speed flight from the Mobile police in another stolen vehicle was reversible error because it constitutes evidence of a crime not charged in the indictment. Our examination of the record convinces us, however, that this issue was not preserved for review.

Prior to trial, Beaver argued two issues to the trial court: the involuntariness of his statements to the police and the inadmissibility of the collateral crimes evidence. He did not style his request as a “motion in limine” or expressly move the court to prohibit the State from referring to the allegedly objectionable evidence. He stated the following:

“I also am going to object to the State getting into incidents that took place before he was in the Police Department making these statements.... We have got four cases. I’m sure you are aware of that. We are just trying one today. We’re trying the theft of a 1971 Dodge truck. The statements were made after he was picked up on other charges, and that should be all the State should be allowed to get into. Anything further than that is attempting, I think, to purposely prejudice this case.”

The trial court did not rule on Beaver’s pretrial objection to the introduction of other crimes in evidence. During the trial itself, Beaver did not object to the testimony relating to his collateral misconduct. In the absence of pretrial ruling by the trial court, or a defense objection to the court’s failure to rule, see Whorton v. State, 422 So.2d 812, 813 (Ala.Cr.App.1982), or a timely objection at trial, see Hammes v. State, 417 So.2d 594, 596 (Ala.Cr.App.1982), we have nothing before us for review.

Moreover, we find no error in the admission of this evidence even if Beaver had obtained an adverse ruling on a proper objection.

“In a criminal prosecution the state may prove that the accused engaged in flight to avoid prosecution_as tending to show the accused’s consciousness of guilt. * * * The state is generally given wide latitude or freedom in proving things that occurred during the accused’s flight.” C. Gamble, McElroy’s Alabama Evidence § 190.01(1) (3rd ed. 1977). “Evidence of flight is admissible even though it is weak or inconclusive or if several days have passed since the commission of the crime.” Tate v. State, 346 So.2d 515, 520 (Ala.Cr. App.1977). Evidence of flight is admissible even though that evidence involves the commission of other crimes by the accused. See Tate, supra; Neal v. State, 372 So.2d 1331, 1344-45 (Ala.Cr.App.1979). For the same reason, evidence that the accused resisted or attempted to avoid arrest is admissible. Crenshaw v. State, 225 Ala. 346, 348, 142 So. 669 (1932). Additionally, the evidence that the accused was observed at the police station throwing keys in a trash can was admissible. Any act proving or tending to prove the accused’s effort or desire to obliterate, destroy, or suppress evidence of a crime is relevant and admissible even if it involves evidence of a separate offense. Watwood v. State, 389 So.2d 549, 551 (Ala.Cr.App.), cert. denied, Ex parte Watwood, 389 So.2d 552 (Ala.1980).

VI

At the sentencing hearing, the State introduced certified copies of Beaver’s two previous Arkansas convictions for theft by receiving and for theft of property. The Arkansas judgment entry, dated September 17, 1980, recited the following:

“It is, therefore, considered, ordered and adjudged by the court that the Defendant, Rex Paul Beaver, is guilty as charged, and that he be and hereby is sentenced to confinement with the State Department of Correction for 5 years, 3 years of which is suspended on the following conditions:
“1. Defendant shall not commit an offense punishable by imprisonment.
2. Defendant shall work faithfully at suitable employment.
3. Defendant shall comply with all other conditions specified in his written probation agreement.
4. Defendant is sentenced under Act 378 of 1975, sec. 4(c)(ii), and is given credit for 101 days confinement awaiting trial.”

Arkansas Act of 1975, No. 378, was entitled the “Youthful Offender Alternative Service Act of 1975” and is codified at §§ 43-2339 et seq., Ark.Stat.Ann. (1977).

Beaver argues that his sentencing as an Alabama habitual offender was erroneous because under the Arkansas convictions he was treated as a youthful offender, and, in Alabama, youthful offender adjudications are not “convictions” for purposes of the Habitual Felony Offender Act. See Ex parte Thomas, 435 So.2d 1324, 1326 (Ala. 1982); Alabama Code § 15-19-7(a) (1975).

In order to determine whether Beaver’s Arkansas convictions were properly used to enhance his punishment as an Alabama recidivist, we must turn to Arkansas law in an effort to find the purpose and effect of the Arkansas Youthful Offender Alternative Service Act. Compare Baldwin v. State, 456 So.2d 117 (Ala.Cr.App.1983) (examination of North Carolina Youthful Offender Act).

Initially, we note that, like the North Carolina provisions at issue in Baldwin, but unlike Alabama’s Youthful Offender Act, the Arkansas statute comes into play only after conviction of a felony, see Ark. Stat.Ann. § 43-2342 (1977), and, thus, relates primarily to sentencing. Compare Alabama Code §§ 15-19-1 through -5 (1975) (concerning pre-arraignment and trial proceedings). The Arkansas Act does, however, contain a confidentiality provision similar to § 15-19-7 of the Alabama Code. Section 43-2344, Ark.Stat.Ann., provides that upon completion of his sentence or probation, the youthful offender shall have the record of his conviction expunged, and shall receive a “Certificate of Expungement.” The statute further provides:

“Upon the expungement of such record, as to that conviction, the person whose record was expunged may thereafter state in any application for employment, license, civil right, or privilege, or in any appearance as a witness that he has not been convicted ... and sentenced or placed on probation under the provisions of this Act.”
Ark.Stat.Ann. § 43-2344 (1977).

As can be seen from the foregoing provisions of the Arkansas Act, the statute under which Beaver was sentenced corresponds, in large measure, to the protective-confidential system described by our Supreme Court in Raines v. State, 294 Ala. 360, 317 So.2d 559 (1975):

“The Youthful Offender Act is intended to extricate persons below twenty-one years of age from the harshness of criminal prosecution and conviction. It is designed to provide them with the benefits of an informal, confidential, rehabilitative system. A determination that one is a youthful offender (1) does not disqualify the youth from public office or public employment, (2) does not operate as a forfeiture of any right or privilege, (3) does not make him ineligible to receive any license granted by public authority, and (4) shall not be deemed a conviction of crime, and (5) the record shall not be open to public inspection except upon permission of the court. Title 15, § 266(6), Code of Alabama.”
294 Ala. at 363, 317 So.2d at 561.

The primary difference between the Alabama Youthful Offender Act and the corresponding Arkansas statute is the fact that Alabama segregates and affords confidentiality to the minor defendant from the very initiation of proceedings against him, while Arkansas grants special treatment to the Youthful offender only at sentencing and “wipes clean” his criminal record only upon completion of sentence.

Had Beaver completed his Arkansas sentence and successfully lived up to the terms of his probation in that state, he would, presumedly, have been entitled to a “Certificate of Expungement” for his two Arkansas convictions. Ark.Stat.Ann. § 43-2344, supra. Accordingly, his argument that his Arkansas convictions should not have been considered for habitual offender sentencing purposes in Alabama might have been more persuasive. However, Beaver’s own testimony at trial shows that he had not completed his Arkansas probationary period at the time he was arrested for the instant offense in Alabama, and in fact, that he was well aware he had violated the terms of his suspended sentence. On direct examination he stated, “I was on parole from Arkansas plus I had a three-year suspended sentence and I knew if I got caught with [a stolen truck], wham, that was it, I could go back to the penitentiary.” Further, on cross examination, he conceded the following:

“Q. [By Assistant District Attorney]: You admit, then, that you were in Alabama and in Mobile on February 23, 1981, the day that this 1971 Dodge truck was stolen, is that correct?
“A. Yes, I was.
“Q. Now, I believe you also testified that you weren’t even supposed to be in Alabama, is that correct?
“A. That’s correct.
“Q. You were working for an Oklahoma Company for about two and a half, three months, and say that you had a two to three week vacation, is that right? “A. Yes, sir.
“Q. And you decided to spend that vacation in Alabama where you were not supposed to be, is that correct?
“A. That’s correct.
“Q. Even being in Alabama was a violation of the terms of your parole in Arkansas, is that correct?
“A. That’s correct.
“Q. You knew that?
“A. Yes, sir.
“Q. What are you in parole in Arkansas for, Mr. Beaver?
“A. Theft by receiving and theft of property.
“Q. Theft of property and theft by receiving. Did those involve vehicles, trucks or ears?
“A. Yes, they did.
“Q. Isn’t it a fact that you received a five-year sentence and that you were to serve two years of that sentence and then three years were to be spent on probation or parole, is that correct?
“A. That’s correct.
“Q. So, you served time in Arkansas for stealing cars and trucks?
“A. Yes, I admit that.
“Q. And you admit that you weren’t even supposed to be in Alabama?
“A. Yes, sir.
“Q. That was a violation of your parole and you knew it.”
“Q. [By Assistant District Attorney]: And also, as a matter of fact, not only did you keep the keys to that truck on that occasion, but you took that Charter Arms .38 Special revolver out of the glove compartment, didn’t you?
“A. Yes, sir.
“Q. All right. Wasn’t that a violation of your parole, Mr. Beaver?
“A. Yes, it was.”
“Q. [By Assistant District Attorney]: O.K. You took that gun and on the 25th you say you went to Gulfport, Mississippi, did you take the gun with you then? “A. Yes, I did.
“Q. Did you pawn that gun?
“A. Yes, I did.
“Q. Did you know that gun was not yours at that time?
“A. Yes, I did.”
“Q. O.K. Let me get it straight. When you found out that the truck was hot, you panicked and so that you wouldn’t be in violation of your parole, although you were already in violation of your parole for being in Alabama, and consorting with people stealing — involved in stealing cars and trucks and having a stolen truck from Louisiana in your possession, although you were already in violation of your parole on that, you panicked, suddenly, when you found out that this truck was hot, is that right? “A. At that time, only thing I was in violation of was being in the State of Alabama without permission.”

Because Beaver’s own testimony indicates that he had not successfully completed his Arkansas probated sentences and would not have been entitled to a “Certificate of Expungement” from that jurisdiction, see Ark.Stat.Ann. § 43-2344, we cannot hold that the trial judge was in error by considering the convictions pursuant to Alabama’s habitual offender laws. Finally, we note that it appears, even in Arkansas, Beaver’s youthful offender convictions could have been used against him for sentencing under that State’s repeat offender statute. See Ark.Stat.Ann. § 41-1001 (1977); Reeves v. State, 263 Ark. 227, 564 S.W.2d 503, cert. denied, 439 U.S. 964, 99 S.Ct. 450, 58 L.Ed.2d 422 (1978).

The Arkansas convictions constituted felonies under the Alabama Criminal Code and were properly employed in sentencing Beaver as a habitual offender. Under Rule 6(b)(3)(iv), A.R.Crim.P.Temp., “[a]ny conviction in any jurisdiction, ... shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under” the Alabama Criminal Code. See § 13A-l-2(4) (“FELONY. An offense for which a sentence to a term of imprisonment in excess of one year is authorized by this title.”).

Beaver’s convictions of theft by receiving and theft of property involved “vehicles, cars and trucks.” Under our Criminal Code theft of a motor vehicle, regardless of its value, constitutes theft of property in the first degree and is a Class B felony. § 13A-8-3. The Arkansas felony of theft by receiving involves a conviction that Beaver did “receive, possess and retain certain stolen property, to-wit: 1973 Olds Cutless ..., having a value in excess of $100.” In Alabama, the receiving of stolen property which exceeds $100 in value but does not exceed $1,000 in value constitutes the offense of receiving stolen property in the second degree and is a Class C felony. § 13A-8-18.

The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . The provision has been renamed the "Alternative Service Act” and has undergone several minor amendments not relevant here. See Ark. Stat.Ann. § 43-2339 et seq. (Supp.1983).


source: Caselaw Access Project

author: TAYLOR, Judge.

license: Public Domain

text:
    William LINZY v. STATE.
    3 Div. 765.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1196.

      Raymond Johnson, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Callen Sparrow, Asst. Atty. Gen., for appel-lee.
   TAYLOR, Judge.

William Linzy was convicted of theft in the first degree by a Montgomery County jury. He was sentenced to life imprisonment under the Alabama Habitual Felony Offenders Act, § 13A-5-9, Code of Alabama 1975. Linzy raises three issues on appeal.

I

Appellant claims error in the trial court’s refusal to give a requested jury instruction regarding reasonable doubt arising from lack of evidence. Linzy’s requested charge number three states, “I charge you that reasonable doubt can arise from a lack of evidence as well as conflicting evidence.”

Alabama follows the general rule that a trial court’s refusal to give requested jury instructions does not constitute reversible error when the principle covered by the requested charge was substantially and fairly covered in the trial court’s instructions to the jury. King v. State, 356 So.2d 1220 (Ala.1978); Shields v. State, 397 So.2d 184 (Ala.Crim.App.), writ denied, Ex parte Shields, 397 So.2d 189 (Ala.1981). Ala.Digest Key No. 829(18).

The trial court substantially and fairly instructed the jury as to reasonable doubt. For this reason, failure to give the requested charge is not reversible error.

II

Linzy further contends that the trial court erred in failing to give his requested jury instructions regarding his failure to testify at trial. Appellant’s requested instructions nine and ten, stated:

“I charge you that the defendant did not testify in this case but this is his absolute right and privilege. You may not speculate on his reasons for failing to testify and you are not to draw any inference against him because he did not take the witness stand.”
“The court instructs the jury that the fact that the defendant did not take the witness stand cannot be considered by you for any purpose and no inference whatsoever can be drawn against the defendant by reason of his failure to take the stand. The law gives every person charged with a crime the absolute and unqualified privilege of not testifying and the law further requires that no inference can be drawn by reason of such failure. The burden of proving a defendant guilty beyond a reasonable doubt is solely upon the State.”

The record on appeal reveals a colloquy between the trial court and defense counsel out of the presence of the jury following the oral charge in which express reference to the omission was made, but no objection was made and no error preserved.

“THE COURT: I will charge as to one thing I did not. I did not charge them about his failure to testify. Do you want me to charge them as to that?
“MR. JOHNSON: I have got it in there.
“THE COURT: So you withdraw nine and ten?
“MR. JOHNSON: The first three or four on there I believe are correct statements. I believe it is number three about the reasonable doubt that arises from a lack of evidence. I think in this case there was a lack of evidence.
“THE COURT: Any others?
“MR. JOHNSON: No, sir.
“THE COURT: I feel like I have covered it. I am going to deny that.”
(emphasis supplied)

Nothing further regarding the instructions was said. This exchange reveals ample opportunity for appellant’s counsel to lodge any objections he had regarding the trial court’s refusal to instruct the jury on Linzy’s failure to testify. This court may consider only those issues preserved in the record. “In the absence of a ruling, a request for a ruling or an objection to the court’s failure to rule, there is nothing preserved for appellate review.” Stewart v. State, 398 So.2d 369, 374 (Ala.Crim.App.), writ denied, Ex parte Stewart, 398 So.2d 376 (Ala.1981). Appellant’s failure to object removes the subject from our consideration.

Ill

Appellant Linzy asserts finally that the trial court erred in allowing the case to go to the jury. He contends that the circumstantial nature of the state’s case was insufficient to present a jury question and that the court erred in denying his motions for acquittal at the end of the state’s case and following the verdict of the jury.

The argument that circumstantial evidence is inferior to direct evidence has been laid to rest. Graham v. State, 374 So.2d 929 (Ala.Crim.App.), writ quashed, 374 So.2d 942 (Ala.1979). The mere fact that evidence is of a circumstantial nature does not make it deficient. “Circumstantial evidence is entitled to the same weight that direct evidence is entitled to provided that it points to the guilt of the accused.” Mains v. State, 375 So.2d 1299 (Ala.Crim.App.1979); Cummings v. State, 356 So.2d 779 (Ala.Crim.App.1978); McCay v. State, 343 So.2d 577 (Ala.Crim.App.1977).

The standard of review in determining sufficiency of evidence is whether evidence existed at the time appellant’s motion for acquittal was made, from which the jury could by fair inference find the accused guilty. Stewart v. State, 350 So.2d 764 (Ala.Crim.App.1977); Hayes v. State, 395 So.2d 127 (Ala.Crim.App.), writ denied, Ex parte Hayes, 395 So.2d 150 (Ala.1981). Stated differently, the test is “whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis, but whether a jury might reasonably so conclude.” Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.1978), cert. denied, 368 So.2d 877 (Ala.1979); United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971). In deciding this issue, we are required to view the evidence presented in the light most favorable to the state. Hayes, supra; Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975).

“Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court.” Cumbo, supra; Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919). Our function is not to be factfind-ers, however tempting that may sometimes be. We must not substitute ourselves for jurors, nor play their role in the criminal process. Jury verdicts should not be disturbed unless they are not based upon evidence sufficient to meet the test set out above.

Upon review of the record, we find that sufficient evidence existed from which the jury might have reasonably excluded every reasonable hypothesis other than that of the defendant’s guilt. The judgment is due to be, and it hereby is, affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Howard TATE v. STATE.
    6 Div. 410.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 31, 1984.
    R. Shan Paden of Paden, Green, Paden & Bivona, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Callen Sparrow, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

Howard Tate appeals from the summary dismissal of his pro se petition for writ of habeas corpus. The petition alleged that “all disciplinary actions taken against him does not satisfy the due process requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), where disciplinary committee findings and reasons for actions taken are not reasonably specific.” The petition does not contain any factual details to support this allegation other than to state “[t]he committee findings and reasons for actions taken herein, i.e., [G]uilty due to evidence presented in court is not sufficient to support the findings of guilt where summary of the evidence relied upon do not indicate which of the two reports was relied on or why one witness was more believable than other.”

In a “Traverse” to the State’s Motion to Dismiss, Tate attached as an exhibit a handwritten sheet which is not identified, but which appellate counsel states is “a list of disciplinary actions and their dates.” Listed are twenty-six disciplinaries from 1977 to 1983. Tate failed, however, to provide factual details or the final disposition of any of these actions.

The decisions of the disciplinary board may be challenged by habeas corpus. Williams v. Davis, 386 So.2d 415 (Ala. 1980); Washington v. State, 405 So.2d 62 (Ala.Cr.App.1981). However, “[m]ere conclusory statements do not raise a constitutional issue in a habeas case.” Schlang v. Heard, 691 F.2d 796, 799 (5th Cir.1982), appeal dismissed, — U.S. —, 103 S.Ct. 2419, 77 L.Ed.2d 1310 (1983); Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.1983). “Where a petition for habeas corpus fails to state sufficient facts to allow the court to dispose of the claims on the merits, the petition will be dismissed.” Almeida v. Jeffes, 566 F.Supp. 852, 856 (E.D.Pa.1983). Here, there has been no “serious attempt by [Tate] to substantiate [his claims]” and therefore his petition was properly dismissed. Baldwin v. Blackburn, 524 F.Supp. 332, 343 (W.D.La.), affirmed on other grounds, 653 F.2d 942 (5th Cir.1981), cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982). Cf. Mayberry v. Davis, 608 F.2d 1070, 1072 (5th Cir.1979) (“Petitioner’s conclusory statement, unsupported by factual allegations or proof to demonstrate prejudice, is insufficient to support a due process claim”).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Judge.

text:
    Andrew A. ALSTON v. STATE.
    8 Div. 952.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Thomas F. Hayes, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Andrew A. Alston pleaded guilty to, and was adjudged guilty of, four counts of third-degree burglary. The trial court, after a thorough sentencing hearing, sentenced the appellant to six years’ imprisonment for each crime, but ordered that those identified as cases CC 82-1134FL and CC 82-1136FL be served concurrently with each other, and that those identified as cases CC 83-201FL and CC 83-202FL be served concurrently with each other but consecutive to the other two sentences. The result was a total consecutive term of twelve years’ imprisonment. The trial court further noted that it hoped the appellant could be assigned to the Frank Lee Youth Center. The trial court also ordered the appellant to pay restitution and court costs.

Contrary to appellant’s assertions, this cause is not due to be reversed due to the failure of the trial court to warn him, before accepting his guilty pleas, of the possibility that his sentences might be ordered to run consecutively. The trial court’s failure to inform a defendant of the possibility of consecutive sentences does not vitiate the voluntariness of his guilty pleas. Sheehan v. State, 411 So.2d 824 (Ala.Crim.App.1981); Hopper v. State, 420 So.2d 853 (Ala.Crim.App.1982). Moreover, because the appellant bargained for a recommendation by the state of concurrent sentences, it is apparent that he was aware of the possibility of consecutive sentences.

Nevertheless, this cause must be reversed for another reason. As one of the inducements for appellant’s four guilty pleas, the State agreed to recommend, and did recommend, six year sentences to be served concurrently. The trial court did not follow this recommendation. Instead, the trial court sentenced the appellant to a combination of concurrent and consecutive six year sentences which resulted in a total consecutive term of twelve years, rather than the six years recommended by the State. Afterwards, the trial court would not permit the appellant to withdraw his guilty pleas. On the authority of Griswold v. City of Enterprise, 384 So.2d 1219 (Ala. Crim.App.1980); Clark v. State, 408 So.2d 168 (Ala.Crim.App.1981), cert. denied, 408 So.2d 168 (Ala.1982); and Arnold v. State, 409 So.2d 947 (Ala.Crim.App.1981), this refusal to permit the appellant to withdraw his guilty pleas after the trial court had refused to follow the bargained for sentencing recommendations by the State constitutes reversible error. See, English v. State, 56 Ala.App. 704, 325 So.2d 211, cert. denied, 295 Ala. 401, 325 So.2d 216 (1976), and cases therein cited.

For the reason noted, this cause must be reversed and remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Everlean HARDY v. STATE.
    1 Div. 780.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied Aug. 14, 1984.

      Roosevelt Simmons, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Everlean Hardy was charged by complaint and convicted for resisting arrest, Alabama Code (1975), § 13A-10-41, and for disorderly conduct, § 13A-11-7, in the District Court of Baldwin County. On appeal to the circuit court, she was tried by a jury and found guilty of both offenses. Four issues are raised on this appeal from those convictions.

I

Daphne Police Officer Melvin Johnson arrested Ms. Hardy at the Oak Tree Lounge after she and others attacked and “jumped on” him after refusing a lawful order to go home. Defense counsel was cross examining Officer Johnson about his testimony in a prior proceeding. The trial judge instructed counsel: “If you are going to read from prior testimony, let him look at it.” Defense counsel responded, “I am not questioning him from a prior proceeding at this time.”

At the conclusion of his cross examination, defense counsel requested “to reserve this witness for later on, I am going to call him as my adverse witness when I present my case. At this time, I would like to reserve and ask that he be excluded from the rest of the testimony in the Courtroom.” The trial judge refused to exclude this witness when he discovered that defense counsel “didn’t have him under subpoena.”

“THE COURT: If you have any questions to ask him, ask them now.
“MR. SIMMONS (Defense Counsel): I want to wait until the rest of the testimony is heard, sir.
“THE COURT: If that is so, why didn’t you subpoena him if he was going to be your witness?
“MR. SIMMONS: He was not going to be my witness but his testimony came out contradictory to what I expected it to be and at that rate, I would like to reserve him.”

Defense counsel made no request that an instanter subpoena issue for Officer Johnson.

After the State rested its case in chief, defense counsel called Officer Johnson as his first witness but he was “not outside in the hall.”

We find no abuse of the trial judge’s discretion. “A trial court has discretion to allow or disallow a witness to be recalled for further cross examination.... It is within the court’s discretion to allow the recall of a witness for the purpose of impeachment or to lay a foundation therefor.” Baxter v. State, 360 So.2d 64, 66 (Ala.Cr.App.1978); C. Gamble, McElroy’s Alabama Evidence, § 440.01 (3rd ed. 1977). See also Alabama Code (1975), § 12-21-240 (“Witnesses appearing on a given date may be ordered by the court to attend court on a subsequent day fixed or named by the court” (emphasis added)). Absent surprise or some other valid reason, defense counsel should not be permitted to recall a witness for further cross examination or impeachment. Baxter, 360 So.2d at 66-67; Thomas v. State, 34 Ala.App. 470, 474, 41 So.2d 435 (1949) (For defendant, after completion of State’s case, to recall State’s witnesses to go into the matter of their testimony at former trial of the same case “would have been out of order and would have addressed itself to the discretion of the trial judge”). “A trial court should not allow a state witness to be ‘recalled’ by the defense during its case-in-chief for purposes of further cross-examination and impeachment on matters to which the witness had previously testified.” Walker v. State, 416 So.2d 1083, 1091 (Ala.Cr.App.1982).

Since defense counsel made no specific request that Officer Johnson be subpoenaed, we find no error in the trial judge’s refusal to allow the witness to be recalled for further cross examination or impeachment. Gwin v. State, 425 So.2d 500, 509 (Ala.Cr.App.1982), cert. quashed, Ex parte Gwin, 425 So.2d 510 (Ala.1983).

Although defense counsel stated that Officer Johnson’s testimony was “contradictory” to what he “expected”, we do not accept this as a declaration that defense counsel was genuinely “surprised” and unprepared to impeach the witness after diligent preparation and investigation. Baxter, 360 So.2d at 66.

The statements of the trial judge to defense counsel (“If you are going to read from prior testimony, let him look at it” and “If you are going to question him from a prior proceeding transcript, let him look at a copy of it”) and defense counsel’s response (“I am not questioning him from a prior proceeding at this time, sir” (emphasis added)) indicate that defense counsel was prepared to impeach the witness but “want[ed] to wait until the rest of the testimony is heard” before so doing. The record shows no clear abuse of the trial judge’s discretion in the refusal to allow defense counsel to postpone his cross examination or impeachment of Officer Johnson and we find no error. The record does not support Hardy’s allegation that she was denied her constitutional right of cross examination.

II

On appeal, Hardy alleges that the trial judge’s questioning of her on the witness stand while she was testifying in her own behalf constitutes prejudicial error. This matter was initially raised in the motion for new trial, although there was no objection at trial. This error has not been preserved for review. “The grounds urged for a new trial must ordinarily have been preserved at the trial by timely and sufficient objections.” Fuller v. State, 365 So.2d 1010, 1012 (Ala.Cr.App.1978), cert. denied, Ex parte Fuller, 365 So.2d 1013 (Ala.1979).

Even if properly preserved, the judge’s brief interrogation of the witness was proper. “In the interest of justice, a trial judge is given the authority to pose questions to a witness for the purpose of clarifying the issues for the jury’s consideration and to aid in the orderly conduct of the trial process. This is a long-observed rule.” Richardson v. State, 403 So.2d 297 (Ala.1981). Here, the trial judge asked his questions only after both the defense counsel and the prosecutor had completed their examination of Ms. Hardy. His questions did not assume her guilt or divulge his opinion of the evidence. Johnson v. City of Birmingham, 338 So.2d 7 (Ala.Cr.App.1976). In his oral instructions, the judge charged the jury that he had “no opinion as to the facts” and that he did not want the jury “to think that from any rulings ... [he had] made or motions that have been ruled on that ... [he had] any regard to the facts of the case."

Ill

In the District Court, Ms. Hardy was sentenced to seven days in jail, suspended for one year, and fined $100 in each case. She appealed to the Circuit Court for a trial de novo and was convicted by a jury. The trial judge sentenced her to three months in jail and a $500 fine in the disorderly conduct case and six months in jail and a $1,000 fine in the resisting arrest ease. Ms. Hardy argues that the fact that the circuit court sentence was greater than the district court sentence unconstitutionally “hampered” her right of appeal.

Due process forbids the imposition of a harsher sentence in retaliation for the defendant’s exercise of his right to appeal. North Carolina v. Pearce, 395 U.S. 711, 723-24, 89 S.Ct. 2072, 2079-80, 23 L.Ed.2d 656 (1969). However, Pearce does not apply to a sentence after an appeal and a trial de novo in a two-tier system for adjudicating criminal offenses. Colten v. Kentucky, 407 U.S. 104, 112-120, 92 S.Ct. 1953, 1958-1962, 32 L.Ed.2d 584 (1972).

The trial judge agreed with defense counsel that his sentence was severe: “Now I agree the sentence is severe but I think it’s a severe crime anytime you hustle with police officers and attempt to take a loaded firearm from them. I believe that’s severe and from the facts that were presented at trial, higher charges could have been brought but they weren’t.” We find no impropriety in this regard.

IV

The State presented a prima facie case that Ms. Hardy was guilty of both disorderly conduct and resisting arrest. The State’s evidence shows that sometime after 8:00 on the night of April 15, 1983, there was a shooting inside the Oak Tree Lounge. Daphne Police Officer Melvin Johnson was dispatched. Later that night, Officer Johnson was again dispatched to the Oak Tree Lounge. As he arrived, he saw Ms. Hardy’s sister, Marietta Lawson, standing in the parking lot with a shotgun in her hand. There were eight or ten other people there also, including Ms. Hardy, “all standing together.” Johnson testified that “(t)heir behavior was they were loud, cussing and all this excited.” Immediately upon his arrival, Ms. Lawson placed the shotgun in a car. Officer Johnson retrieved the weapon and began “trying to talk to them and tell them to quiet down and go home. That we had had enough trouble out there that night and we didn’t want any more trouble out there, to just go on home.”

The crowd came “running into” Officer Johnson telling him that he “didn’t have a right to get the shotgun out of the car.” In a “loud and boisterous” manner, Ms. Hardy said, “You are wrong, you can’t get this gun out of this car.” Johnson testified that he informed the crowd that they were under arrest “(a)t the point where they all started crowding around me trying to take the shotgun from me.”

At least four people, including Ms. Hardy, were trying physically to take the shotgun from Officer Johnson. The “end result” of the situation was that Michael Lawson, Ms. Hardy’s brother, “got real loud” and “grabbed hold” of Johnson and “tussled with him” so Johnson “placed him under arrest first.” When another officer started putting Lawson in a patrol car “all of them jumped” Johnson and “jumped on” him. Johnson testified that there were at least “four but there was probably more than that” that jumped him: “It was a whole family of them around me.”

When specifically asked what Ms. Hardy did to resist arrest, Johnson testified: “They was pulling my clothes. Like I said, I was tussling with four or five of them. One was pulling on one side and one was pulling on the other side trying to take the gun away from me and I was scuffling trying to keep them from getting it”, and Ms. Hardy was in that group. Johnson stated that Ms. Hardy “just attacked me with the crowd” by “(p)ulling on my arm, pulling on the gun.”

Officer Johnson began “tussling” with Archie Lawson, another brother of Ms. Hardy. When the officer “was down in the mud on the ground” with Archie, Ms. Hardy “had left and was heading down the driveway walking.” However, while Officer Johnson and Archie were “tussling”, Michael Lawson, whom another officer was trying to place in a patrol car, “called somebody that was up in the crowd and told them, ... ‘Come help me, I can’t get a-loose from him.’ ” Michael also “hollered, ‘Get the gun, get the gun, shoot the mf in the back, shoot the mf in the back.’ ”

Jewell Lawson, whose family owned the Oak Tree Lounge, was visiting her mother who lived near the lounge. She testified that she and her husband “were frightened and we called the police to come back because they had guns and one started back into the lounge.... there was just a scrummage with a lot of noise and obsenities being yelled.” Maxine Jackson was with Mrs. Lawson and testified that “it was shooting and arguing going on outside.”

The State’s evidence was sufficient to prove a prima facie case that Ms. Hardy “did intentionally engage in disorderly conduct with intent to cause public inconvenience, annoyance, or alarm, or recklessly created a risk thereof by engaging in fighting or in violent, tumultuous, or threatening behavior” as charged in violation of Alabama Code (1975), § 13A-ll-7(a)(l). This statute is “designed to protect the public from being annoyed, inconvenienced or alarmed.” § 13A-11-7 Commentary. The subsection under which Ms. Hardy was charged and convicted “covers the sort of public activity that is traditionally within the common law concept of breach of the peace.” § 13A-11-7 Commentary.

Officer Johnson’s testimony also shows that Ms. Hardy resisted arrest by intentionally preventing or attempting to prevent a peace officer from effecting a lawful arrest of herself or another person under Alabama Code (1975), § 13A-10-41(a). Submission to arrest after it has been resisted does not atone for the prior unlawful conduct. King v. State, 89 Ala. 43, 8 So. 120 (1890).

Here, there was legal evidence from which the jury could infer Ms. Hardy’s guilt. Toles v. State, 170 Ala. 99, 54 So. 511 (1911); Autry v. State, 34 Ala.App. 225, 38 So.2d 348 (1949).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: PATTERSON, Judge.

text:
    John Michael TAYLOR v. STATE.
    5 Div. 847.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied Aug. 14, 1984.
    Charles R. Gaddy, Millbrook, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Taylor appeals the summary dismissal of his pro se petition for writ of habeas corpus, challenging the legal right of the State to confine him in prison. He is serving a life sentence. He is represented on appeal by appointed counsel. He contends that the conditions under which he is confined constitute cruel and unusual punishment in violation of his rights guaranteed by the U.S. Const, amend. VIII and XIV and Ala. Const. Art. I, § 15. The allegations of the petition in this regard are that the petitioner is being improperly held in dangerous, crowded, and unsanitary conditions. He claims that the State has failed to take proper actions to alleviate the conditions complained of, which actions were required by federal court orders.

Appellant’s petition alleges essentially the same issues concerning prison conditions raised by the petitioners in Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), affd in part sub nom. Newman v. State, 559 F.2d 283 (5th Cir.1977), affd in part sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). Pugh v. Locke is a pending and ongoing action, and appellant is a member of the plaintiff class in that suit.

The confinement in the penitentiary per se is not the basic issue of Taylor’s petition. The basic issue is the alleged cruel and unusual punishment being inflicted upon him in the Alabama prison system. He claims he is entitled to be released because of the treatment being accorded him by the prison officials. He does not question the validity of his original sentence.

The relief he seeks from alleged cruel and unusual treatment in the prison system is not cognizable under a writ of habeas corpus, and the appropriate remedy in this case for the claim of illegal conditions of confinement, if proved, would not be release from custody. Phillips v. State, 41 Ala.App. 393, 133 So.2d 512 (1961); Cook v. Hanberry, 596 F.2d 658 (5th Cir. 1979), revising 592 F.2d 248 (5th Cir.1979), cert. denied, 442 U.S. 932, 99 S.Ct. 2866, 61 L.Ed.2d 301 (1979); Maddux v. Rose, 483 F.Supp. 661 (E.D.Tenn.1980); Walker v. Graham, 438 So.2d 946 (Fla.1983); Amek Bin Rilla v. Israel, 113 Wis.2d 514, 335 N.W.2d 384 (1983). The court stated in Cook v. Hanberry, supra:

“Assuming arguendo that his allegations of mistreatment demonstrate cruel and unusual punishment, the petitioner is still not entitled to release from prison. Ha-beas corpus is not available to prisoners complaining only of mistreatment during their legal incarceration. Granville v. Hunt, 5 Cir.1969, 411 F.2d 9, 12-13; see also Williams v. Steele, 8 Cir.1952, 194 F.2d 917, cert. denied, 344 U.S. 822, 73 S.Ct. 20, 97 L.Ed. 640. The relief from such unconstitutional practices, if proved, is in the form of equitably-imposed restraint, not freedom from otherwise lawful incarceration. See Konigsberg v. Ciccone, W.D.Mo.1968, 285 F.Supp. 585, 589, affd, 8 Cir.1969, 417 F.2d 161, cert. denied, 397 U.S. 963, 90 S.Ct. 996, 25 L.Ed.2d 255 (1970). This is because the sole function of habeas corpus is to provide relief from unlawful imprisonment or custody, and it cannot be used for any other purpose. See Rheuark v. Shaw, 5 Cir.1977, 547 F.2d 1257, 1259; Hill v. Johnson, 5 Cir.1976, 539 F.2d 439, 440; Pierre v. U.S., 5 Cir.1976, 525 F.2d 933, 935-36.”

While allegations of cruel and unusual punishment in the prison system may be subject to judicial review within a court of proper jurisdiction, the complaints regarding the conditions of confinement in this case do not relate to the legality of the appellant’s confinement, nor do they relate to the legal sufficiency of the criminal proceedings which resulted in the incarceration of the appellant. Accordingly, habeas corpus is not available to appellant in complaining of mistreatment during an otherwise legal incarceration.

Appellant further contends that the abolishment of the Board of Corrections of the State of Alabama and the placing of the prison system under the authority of the Governor somehow rendered his confinement illegal. The Alabama Legislature abolished the State Board of Corrections effective October 1, 1979, and placed the Alabama prison system under the authority and control of the Governor. 1979 Ala. Acts 667, No. 426 (July 19, 1979). The Legislature was fully authorized to enact such legislation. We do not see how this could affect the legality of Taylor’s sentence in any way, and we find that this contention is without merit.

We must conclude that it is very clear from the petition in this case that appellant was not entitled to a writ of habeas corpus and that the judgment of the trial court dismissing the petition on motion of the State should be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Kent IRBY v. STATE.
    1 Div. 737, 1 Div. 737A.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.

      Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Appellant Kent Irby pleaded guilty to two charges of attempted unlawful breaking and entering of a motor vehicle in violation of § 13A-8-ll(b), Code of Alabama 1975. He was sentenced to twelve months in jail. The sentence was suspended and he was placed on two years’ probation on September 30, 1982. In May 1983, the appellant was the driver of a car which struck a girl, killing her. She was knocked 20 feet in the air, run over and dragged 60 feet by appellant’s vehicle. The appellant was charged with a violation of § 32-5A-192, Code of Alabama 1975, homicide by vehicle. Responding to the motion to revoke probation, counsel for appellant filed a motion to compel the production of documents from the University of South Alabama Medical Center regarding the death of the victim of the alleged vehicular homicide. This motion was twice denied by the court. After his probation was revoked, the appellant raised two issues on appeal: Whether the court erred to reversal in denying his motion and whether the due process guarantees of Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), were violated.

I

The requested material was never introduced by the state as evidence in the revocation hearing. The motion of counsel for the appellant amounts to nothing more than an attempt to obtain discovery. We have held in Deloach v. State, 356 So.2d 222 (Ala.Crim.App.1977), cert. denied, Ex parte Deloach, 356 So.2d 230 (Ala.1978), that there is no constitutional right to discovery in a criminal case. The defendant in a probation revocation proceeding does not have rights greater than those of a defendant in a criminal prosecution. This motion was properly denied.

II

Appellant contends that the court erred in that there was no testimony by the probation officer as to what conditions of probation were imposed on the appellant and as to what conditions were alleged to have been violated. The appellant was in jail, charged with the new offense of vehicular homicide, when the probation revocation papers were served on him. He was aware that commission of another felony violated a condition of probation. The court record states:

“This day in open court came the State of Alabama by its Assistant District Attorney, Jim Kimbrough, and the defendant in his own proper person, and with his Attorney Paul Brown and state’s motion filed on the 10th day of May, 1983, to set aside the order suspending execution of the sentence in this case, coming on to be heard and the Court after hearing the evidence orders and adjudges that State’s said motion to set aside the order suspending execution of the sentence in this case be and the same is hereby granted as follows:
1. Driving under the influence of alcohol at a high rate of speed.
2. Causing car to run off road and caused the death of a child.
It is further ordered and adjudged by the Court that the sentence of one year in the Mobile County Jail suspended for two years on Probation, imposed upon the defendant on the 30th day of September, 1982 be and same is hereby ordered to commence as of the 18th day of October, 1983. (To be given credit for 2 days served in jail from 8/31/83 thru 9/1/83) Court costs imposed on 9/30/82 Remitted.
Witness my hand this 18th day of October, 1983.
/S/ JAMES D. SULLIVAN
Judge of the District Court of Alabama of Mobile County.”

It is not the fact that appellant was charged with committing the felony of vehicular homicide, but rather the commission of the felony itself for which his probation was revoked. We disbelieve that he was ignorant of his violation of a condition of probation.

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

AFFIRMED.

All the Judges concur.


text:
    Jesse James BENDER v. STATE.
    2 Div. 419.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.

      Blanchard L. McLeod, Jr., Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

The appellant, Jesse James Bender, pled guilty to the charge of kidnapping on December 15, 1982 and was sentenced to 15 years in the state penitentiary. A petition for writ of error coram nobis was then filed with the trial court on August 19, 1983. Subsequently, the court below denied the writ of error coram nobis and this action is an appeal from said denial.

Appellant raises two issues on appeal, substantially the same two issues he raised on the writ of error coram nobis. Those issues are (1) whether or not an entry of a guilty plea is constitutional when made by one taking medication and his defense counsel is aware of the medication consumption prior to the entry of the guilty plea, and (2) whether the appellant in the present action was denied effective assistance of counsel since the appellant’s court-appointed attorney allowed the entry of a guilty plea knowing that the appellant was taking medication.

It is an undisputed axiom that for a guilty plea to be held constitutional it must be made voluntarily and understandingly. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1968) developed the premise that before a guilty plea may be accepted by the trial court, the record must affirmatively reflect that the accused has a full understanding of what the plea implies and of its consequences. This procedure may be accomplished by an oral examination of the accused conducted by the trial judge. The trial judge is the medium in the best position to determine whether the accused possesses the requisite mental capacity to enter a guilty plea.

Compliance with the Boykin, supra, decision in the case at bar is reflected in the following excerpt from the record:

“THE COURT: All right, Mr. Bender, you understand now that before I can accept a plea of guilty from you, I must make a finding that you are knowingly and voluntarily entering your plea in this case. Have you discussed your various options with your attorney?
“MR. BENDER: Yes, sir.
“THE COURT: And you understand the offer by the District Attorney’s office is the minimum sentence that can be imposed by law for this particular offense? “MR. BENDER: Yes, sir.
“THE COURT: Has anyone made any threats or offered you any hopes of reward or given you any inducements or promises in order to get you to enter this plea or are you doing this of your own free will?
“MR. BENDER: I’m doing it of my own free will.
“THE COURT: You understand the range of punishment is from 15 years to life for this offense?
“MR. BENDER: Yes, sir.
“THE COURT: You have gone over this form with your lawyer and you understand what rights you give up by entering a plea of guilty?
“MR. BENDER: Yes, sir.
“THE COURT: All right. Now I’m going to make a finding that you are knowingly and voluntarily entering your plea and on your plea of guilty, you are accordingly adjudged to be guilty and as punishment for this offense of kidnapping, you are sentenced to the penitentiary of Alabama for 15 years. You’ll be given credit for all time you have spent incarcerated awaiting trial so that will be counted onto your total sentence time.”

Appellant’s trial counsel admits that he was knowledgeable of appellant’s medication, specifically Thorazine, prior to the guilty plea. Trial counsel for the appellant testified at the coram nobis hearing in regard to the appellant’s Thorazine medication that he “had not detected any difference in Mr. Bender’s [appellant’s] conduct.”

Addiction to narcotics does not per se render one incompetent to enter a plea of guilty. Jackson v. U.S., 512 F.2d 772, 773 (5th Cir.1975), US. v. Robinson, 530 F.2d 677 (5th Cir.1976). A narcotic, as defined by Stedman’s Medical Dictionary, 5th Unabridged Lawyer’s Edition (1982), is:

“Any substance producing stupor associated with analgesia; specifically a drug derived from opium or opium-like compounds, with potent analgesic effects associated with significant alteration of mood and behavior, and with the potential for dependence and tolerance following repeated administration.” (emphasis added)

We must consider however the effect of the drug Thorazine on an individual and that individual’s possible impairment of physical and mental faculties. As to whether the voluntariness and understanding of an accused are impaired by dosages of Thorazine, we adhere to the decision of North Carolina’s Court of Criminal Appeals. State v. Ellis, 13 N.C.App. 163, 185 S.E.2d 40 (1971) held:

“Thorazine is the trade name for the preparation of chlorpromazine hydrochloride and is used as a tranquilizer. Tranquilizer, as commonly defined, is a medicinal substance which calms the emotions of a patient without affecting the clarity of consciousness. See Dorland, Illustrated Medical Dictionary 294, 1577, 1603 (24th Ed.1965); Schmidt, Attorney’s Dictionary of Medicine 177, 900 (1969).” (emphasis added)

Relying on our sister state’s decision regarding Thorazine and its effects and the fact that our own Federal Circuit has ruled that narcotic addiction does not necessarily render one incompetent to enter a guilty plea, we should embrace the supposition that the taking of the drug Thorazine or any other tranquilizer does not per se impair one’s ability to voluntarily and intelligently enter a guilty plea.

Where the trial court is satisfied that the plea procedure shows that the accused is alert, coherent, and with unimpaired faculty to understand and where a colloquy is meticulously followed in accordance with Boykin, supra, then a plea of guilty by one receiving medication, more specifically tranquilizers, is allowable, meets all the constitutional requirements and will not be disturbed on appeal.

It appears that in the case at bar, the trial judge conducted a careful Boykin inquiry of the appellant as to the voluntariness and perception of his guilty plea and the possible consequences of such a plea. The record supports the trial judge’s findings that the appellant freely, understandingly and voluntarily pleaded guilty to the charges of kidnapping.

A petitioner who claims that his guilty plea was involuntary has a heavy burden of proof. Little v. State, 426 So.2d 527 (Ala.Crim.App.1983) and Champion v. State, 44 Ala.App. 660, 219 So.2d 416 (1969). We have carefully considered appellant’s involuntary guilty plea assertion and prudently reviewed the record and have discerned that the necessary burden of proof has not been met to overturn the trial court’s decision. Therefore, the acceptance of the guilty plea and judgment of the lower court must be upheld.

Little, supra, stated that the competency of trial counsel is presumed valid. See also Harris v. State, 367 So.2d 524 (Ala.Crim.App.1978). Consequently, having decided that the guilty plea by our appellant was voluntarily and intelligently made while receiving medication, we hold that the appellant was not denied effective assistance of counsel due to trial counsel allowing the entry of a guilty plea knowing the appellant was receiving medication.

Our careful search of the record for errors injurious to the appellant’s substantial rights, revealed none.

This cause is therefore due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Willie WALKER v. STATE of Alabama.
    2 Div. 424.
    Court of Criminal Appeals of Alabama.
    July 31, 1984.
    Ralph L. Liverman, Eutaw, for appellant.
    Charles A. Graddick, Atty. Gen., and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Willie Walker was charged in two separate indictments with the unlawful sale of marijuana to one Norman Willingham, contrary to the provisions of § 20-2-70, Code of Alabama 1975, as amended. Following a jury trial, appellant was found “guilty as charged” and the trial court set sentence at three years’ imprisonment in the penitentiary for each offense, two sentences to run concurrently.

Norman Willingham testified that he was working as an undercover narcotics officer with the West Alabama Narcotics Squad in the spring and summer of 1982. He stated that he was working in the Greene County, Alabama, area in May, 1982, when he went to the residence of Willie Walker at 408 Front Street, Eutaw, Alabama on two separate .occasions. On May 7, 1982, after having the appellant pointed out to him and engaging the appellant in conversation, he was able to purchase 2.8 grams of marijuana. He stated that two weeks later, on May 21, 1982, he again went to the residence of the appellant, driving a pickup truck, and engaged the appellant in conversation. On this occasion he purchased 6.1 grams of marijuana.

After each purchase, Officer Willingham took the marijuana to State Trooper Earl Walden who marked it with his marker and Trooper Walden then delivered the marijuana to the Department of Forensic Sciences in Tuscaloosa to Mrs. Melinda Long.

Mrs. Melinda Long testified that she received two exhibits, both from Earl Walden, on May 24, 1982. She then identified each as having been analyzed by her and determined that the active ingredient was THC, tetrahydrocannabinol, which in fact, was marijuana in each case.

The appellant’s motion to exclude was overruled.

Daniel Clark testified that he had been a friend of the appellant’s for 35 to 40 years and on May 7, 1982, had taken the appellant to Boligee to go fishing with a woman named Shirley. He testified that he had done the same thing also on May 21, 1982, and that he remembered dropping the appellant off at Shirley’s house on both dates to fish.

Shirley Diane Powell testified that Willie Walker lived with his sister at 408 Front Street in Eutaw, Alabama, and that he frequently came to her home during the spring and summer to do some bream fishing and she remembered that he fished with her on May 7 and May 21, 1982.

Norman Willingham was recalled and testified that he had engaged the appellant in conversation on May 21, 1982 when he bought the marijuana, and that the appellant had told him he had been fishing that morning for catfish.

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

I

The sole issue on appeal concerns whether or not the State of Alabama presented a prima facie case of the sale of marijuana in this cause.

We hold that the State of Alabama did properly present a prima facie case of the sale of the marijuana in question by the appellant, Walker, to the undercover officer, Willingham. Sterling v. State, 421 So.2d 1375 (Ala.Crim.App.1982) and authorities therein cited; Slaughter v. State, 411 So.2d 819 (Ala.Crim.App.1982) and Radney v. State, 342 So.2d 942 (Ala.Crim.App.1977) cert. denied, 342 So.2d 947 (Ala.1977).

We find this record to be free of error. The judgment of the trial court is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Carl HALL v. STATE.
    3 Div. 715.
    Court of Criminal Appeals of Alabama.
    July 31, 1984.
    Carl Hall, Birmingham, pro se.
    No Brief for appellee.
   HARRIS, Judge.

Carl Hall’s petition to the Escambia Circuit Court for a writ of habeas corpus, challenging the propriety of a state disciplinary board proceeding, was dismissed without a hearing on the ground that a petition for a writ of habeas corpus was not the proper remedy. This ruling was erroneous.

Hall, the appellant herein, sought, by petition for a writ of habeas corpus, to challenge the results of his disciplinary proceeding which deprived him of two years of his “good time” credit and upgraded his custody status. A petition for a writ of habeas corpus was the proper method for making such a challenge. See, Williams v. Davis, 386 So.2d 415 (Ala.1980); see also, Washington v. State, 405 So.2d 62 (Ala. Crim.App.1981); Fielding v. State, 409 So.2d 964 (Ala.Crim.App.1981).

Consequently, this cause is due to be reversed and remanded for further consideration by the trial court, including, if necessary, a hearing to develop the facts essential for properly determining the merits of appellant’s petition. See, Crear v. State, [Ms. 82-417, Nov. 10, 1983] (Ala. 1983); Washington v. State, supra; Fielding v. State, supra; Gibson v. State, 411 So.2d 1297 (Ala.Crim.App. 1982); Wilburn v. State, 432 So.2d 524 (Ala.Crim.App. 1983). The record before us, which essentially contains only appellant’s pro se petition to the trial court, is not sufficient for a proper determination at this writing of the merits of the petition or the propriety of a dismissal on other grounds.

REVERSED AND REMANDED.

All the Judges concur.


text:
    George Herman THOMAS, Jr. v. STATE.
    6 Div. 66.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.

      Sheldon Perhacs, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

George Herman Thomas, Jr. was indicted for the murder of one Lorre Beth Hutchinson by “striking her on or about her face or head with his hands and feet, thereby knocking her prostrate in an inside lane of a heavily traveled public thoroughfare, ... and thereafter leaving her lying in said thoroughfare where she was struck and killed by an automobile..in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant “guilty of murder,” and, after a sentencing hearing, the trial judge sentenced the appellant to life imprisonment.

The appellant does not challenge the weight and sufficiency of the evidence against him, therefore, only a succinct statement of the facts is necessary.

The record reveals that on July 25, 1981, the appellant, Lorre Beth Hutchinson, Maurice Coleman, and Kathy Titton were together, playing cards and drinking. This group had gone to several night clubs where they continued to drink, before returning to the appellant’s apartment. The appellant and Lorre Beth Hutchinson had an argument, after which the appellant left his apartment and began drinking whiskey out of a bottle.

The record further reveals that at approximately 2:00 a.m. on the morning of July 26, 1981, the appellant was observed standing over a woman in the doorway of an apartment, and he was kicking her about the head, face and shoulders. The appellant then dragged this woman into the middle of the street and walked back towards the apartment. The appellant was observed motioning for an automobile to “come on and run over her.” (R.87) Subsequently, a speeding car came down the street and hit the woman lying in the street. The appellant was arrested at the scene shortly thereafter.

I

The appellant contends that the trial court erred in allowing Dr. Bruce Alexander, a pathologist, to express his opinion as to the cause of the injuries of the deceased. The appellant specifically argues that the question asked by the prosecutor was a hypothetical question, based on facts not in evidence, and that the form of the question was not proper.

The record reveals the basis for the appellant’s argument on this point. The following portion of the record places the complained of testimony within its proper context:

“Q Now, based on your examination, do you have an opinion as to the cause of the death of Lorre Beth Hutchinson? “A Yes, sir, I do.
“Q What is that opinion, please sir? “A In my opinion, the deceased died as a result of these massive blunt force injuries which I have described, with result of blood loss and shock.
“Q Is this consistent with a pedestrian-vehicular accident?
“MR. PERHACS: We object to the form of the question, Your Honor. We have not got to the foundation and not proposed the proper hypothetical to this witness in order to receive that kind of statement. I object.
MR. BOUDREAUX: Your Honor, I am simply asking based on his training and experience and from the results of this autopsy whether or not that is consistent.
“MR. PERHACS: And I regret, Your Honor, that is not the proper form for the question. And I object.
“THE COURT: Do you have an answer to that question?
“THE WITNESS: I have an opinion, yes. “THE COURT: Overruled.
“THE WITNESS: In my opinion these massive blunt force trauma injuries are consistent with pedestrian-vehicular accident.
“Q (By Mr. Boudreaux) Now, some of the injuries that you have mentioned, I would like to ask you about some of those. The superficial injuries, I believe that you mentioned on the hand and neck and face, do you have an opinion as to whether or not they were consistent with a pedestrian-vehicular accident?
“MR. PERHACS: Same objection, Your Honor, that is not the proper form. We do not have before the Court the evidence upon which this man is offering the testimony and we object on those grounds.
“THE COURT: Overruled.
“THE WITNESS: Yes, sir, I have an opinion on that.
“A My opinion is based on the presence of a superficial injury, as I have described, in the — around the face and particularly clustered in the neck, not accompanied by any massive internal or blunt force type of injury. That is, I would think with simply collision and then resultant lacerations. Those lesions, though, by definition were blunt lesions, so could possibly be caused by any blunt object. (R.49-50)

Before Dr. Alexander testified as to his opinion of the manner or means by which the deceased’s injuries could have been inflicted, he testified extensively about the nature of such injuries and to the cause of death.

The trial court committed no error in allowing the witness to answer the question. The qualifications of Dr. Alexander as an expert witness were extensive. He was certainly qualified to describe the nature and extent of the injuries found on the deceased’s body and to state his opinion as to the manner or means by which they could have been inflicted. Thomas v. State, 249 Ala. 358, 31 So.2d 71 (1947); White v. State, 294 Ala. 265, 314 So.2d 857 (1975); Tuck v. State, 384 So.2d 1240 (Ala. Crim.App.1980); Bell v. State, 435 So.2d 772 (Ala.Crim.App.1983). Further, such testimony was not reversible error because it concerned an undisputed and uncontested matter — that the victim was run over by an automobile. The admission of evidence is harmless if that evidence concerns an undisputed matter. Rogers v. State, 53 Ala. App. 573, 302 So.2d 547 (1974); Yelton v. State, 294 Ala. 340, 317 So.2d 331 (1974); Johnson v. State, 378 So.2d 1164 (Ala. Crim.App.), writ quashed, 378 So.2d 1173 (Ala.1979).

Finally, opinion testimony, offered by an expert witness, may be based upon facts within his knowledge, or he may give an opinion based upon a hypothetical question, based upon facts already in evidence, or evidence to be subsequently admitted. C. Gamble, McElroy’s Alabama Evidence, § 130.01 (3rd. Ed.1977), and cases cited therein. Such testimony was not erroneously admitted in this case and was not prejudicial to the appellant in light of subsequent testimony revealing that the victim had been run over by an automobile.

II

The appellant contends that the trial court erred by giving additional instructions on the definition of “reckless”, and in giving additional instructions on the definition of “intoxication.” In both instances, these additional instructions were given after requests by the jury. The appellant argues that the trial court should have given its entire oral charge again instead of only giving the definitions requested by the jury. He further argues that the giving of only the requested portions of the charge places undue emphasis on that portion. We do not agree.

This court has opined on many occasions that the jury is entitled at all times to have access to the trial court for such additional instructions as they may require. Tillison v. State, 32 Ala.App. 397, 27 So.2d 41, aff d, 248 Ala. 196, 27 So.2d 46 (1946); Roberts v. State, 26 Ala.App. 331, 159 So. 373 (1935); Sanders v. State, 426 So.2d 497 (Ala.Crim.App.1982). A trial judge is not required to repeat any other part of his oral charge when answering a specific inquiry from the jury. White v. State, 195 Ala. 681, 71 So. 452 (1916); Thomas v. State, 393 So.2d 504 (Ala.Crim. App.1981); Brazell v. State, 423 So.2d 323 (Ala.Crim.App.1982); Davis v. State, 440 So.2d 1191 (Ala.Crim.App.1983), cert. denied, — U.S. —, 104 S.Ct. 1452, 79 L.Ed.2d 770.

This court has further held that, when the jury calls for additional instruction and clearly delineates the area of its request, “it is the recommended practice for the trial court to remain within such area.” East v. State, 339 So.2d 1104 (Ala. Crim.App.1976); Brazell v. State, supra; Davis v. State, supra. Moreover, such a practice does not give added weight or place undue emphasis on that portion of the oral charge. Carter v. State, 356 So.2d 682 (Ala.Crim.App.), cert. denied, 356 So.2d 689 (Ala.1978); Laffity v. State, 423 So.2d 280 (Ala.Crim.App.1982); Sanders v. State, supra.

We have carefully searched the record for errors injurious to the appellant and find none therein. Therefore, the judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Percy Leo DOBARD v. STATE.
    2 Div. 434.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.

      Ralph I. Knowles of Drake, Knowles & Pierce, Tuscaloosa and Barry E. Friedman, Washington, D.C., for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Percy Leo Dobard, while fleeing from a robbery he committed on June 21, 1980, murdered Livingston police officer Wayne Suddeth in cold blood. Dobard was convicted of this crime and sentenced to death under Code of Alabama 1975, § 13A-5-31(a)(5), prohibiting and providing penalties for the murder of a police officer while on duty. In June 1982, this court affirmed his conviction and sentence in Dobard v. State, 435 So.2d 1338. In July of 1983 the Alabama Supreme Court affirmed in Ex Parte Dobard, 435 So.2d 1351 (Ala.1983). On January 9, 1984, the United States Supreme Court denied certiorari in Dobard v. Alabama, — U.S.—, 104 S.Ct. 745, 79 L.Ed.2d 203. On February 6, 1984, the Alabama Supreme Court set Dobard’s execution as March 9, 1984, Ex.parte Dobard, Ms. 81-999 (unpublished order). Dobard moved for a stay of execution or a rescheduling, claiming that he did not know about the scheduled date as soon as he would like to have known. The Supreme Court of Alabama then granted Dobard’s motion and rescheduled his execution for April 6, 1984 (unpublished order). On March 8, Do-bard petitioned for a writ of habeas corpus or in the alternative a writ of error coram nobis to the Circuit Court of Marengo County. An accompanying motion sought a further stay of execution. The state moved to dismiss this petition and the circuit court on March 21, 1984, entered an order dismissing the petition. The circuit court order stated that the petition was dismissed without an evidentiary hearing because the first eight claims “were or could have been raised at trial or on appeal,” and the ninth claim was “without merit and [was] not adequate on its face.”

Dobard then filed notice of appeal and another motion for a stay of execution. The circuit court denied the motion for stay of execution. Dobard then filed a petition in the Court of Criminal Appeals for a stay of execution. The Court of Criminal Appeals transferred that motion to the Alabama Supreme Court and it was orally argued there on March 28, 1984. On that same date the Alabama Supreme Court denied the requested stay. In its accompanying order,, the Alabama Supreme Court stated:

“The petitioner having filed his motion for stay of execution pending the appeal of the denial of his petition for writ of error coram nobis to the Alabama Court of Criminal Appeals, and the same having been briefed, orally argued, submitted and duly examined and understood by the Court, and the Court having considered the original record on appeal, it is the opinion of the Court that the petitioner has stated no ground for relief which he did not raise on his original appeal, or which he could not have raised on his original appeal. Consequently, it is the opinion of the Court that the trial court did not err in denying the petition without holding a hearing.” Ex parte Dobard, 450 So.2d 479. (unpublished order)

The following day, Dobard filed his petition for writ of habeas corpus in the federal court. The United States District Court for the Northern District of Alabama issued an order staying the execution scheduled for April 6, 1984. Percy Leo Dobard v. W.E. Johnson, No. 84-AR-0787-W (N.D.Ala.) (unpublished order). The federal habeas corpus petition is now pending. The state has meanwhile filed a motion for summary affirmance of the circuit court’s order dismissing the petition for writ of habeas corpus or in the alternative for writ of error coram nobis. Dobard has applied for rehearing and modification of the judgment of the Alabama Supreme Court. We have studied the allegations of the petition. We take it that denial of that petition is now before us on appeal from the Circuit Court of Marengo County. We find the petition wholly without merit. The grounds alleged in this petition are matters which were or which could have been raised on appeal. The ninth ground of the petition, relating to how much notice a death row inmate is entitled to have of his execution date and claiming that short notice of his execution date should entitle him to have his death sentence set aside, is without basis in law or logic. If all the allegations of his ninth ground were proved, he would nonetheless not set forth grounds for relief. We hold that the first, third, and part of the seventh claim of the petition were properly dismissed because the issues were decided on direct appeal. The fourth, fifth, and sixth claims were properly dismissed because those issues were raised at trial but not on appeal. The second claim was properly dismissed because it is clear Dobard knew the factual basis for that issue at trial. The eighth claim was properly dismissed along with the other part of the seventh claim because those issues were not preserved by a timely objection at trial and because they could have been raised at trial and on appeal. The eighth issue further fails to fully specify the facts on which it is based. The petition was properly dismissed as to the ninth ground because that ground lacks legal merit on its face and fails to state a valid claim.

The order of the Marengo Circuit Court dismissing the petition for writ of habeas corpus or in the alternative petition for writ of error coram nobis is hereby affirmed.

AFFIRMED.

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


text:
    Anthony PATTERSON v. STATE.
    3 Div. 981.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Curtis C. Reding, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Anthony Patterson was indicted and convicted for rape in the first degree in violation of Alabama Code 1975, § 13A-6-61, and sodomy in the first degree in violation of § 13A-6-63. Patterson was sentenced in each case as an habitual offender to life imprisonment without parole.

On appeal, he contends that the evidence is insufficient to support his convictions. Specifically, Patterson contends that the State’s own evidence points to someone else as being the guilty party.

The nine-year-old victim testified that one morning in early June, after her mother had left for work, her stepfather, this appellant, “licked” her in her vagina. The next day, Patterson had sexual intercourse with her. Patterson was twenty-nine years old. The child testified that this continued over the next nine days. After that the child moved and lived with her grandmother. She did not complain because Patterson threatened to whip her with an extension cord, as he had done in the past. The victim’s testimony alone establishes a prima facie case of sodomy and rape. Jackson v. State, 375 So.2d 558, 560 (Ala.Cr.App.1979); Baxter v. State, 360 So.2d 64, 67 (Ala.Cr.App.1978). The child also testified that no one else other than Patterson had sex with her at any time.

Patterson bases his argument on the testimony of State’s witness Jenny Killough, L.P.N. at the Lister Hill Health Care Center, where the prosecutrix was examined on July 12, 1983. Nurse Killough assisted in the examination and testified that the child’s vagina was “extremely large for her age”, that it was lacerated, that the vaginal area was infected (vaginitis), and that the vagina was “very red”. On July 25th, the prosecutrix returned for a “recheck” and “everything was normal again.”

On cross examination, the nurse testified that the lacerations or tears were caused by trauma to the child’s vagina which was “fresh” and “had not begun to heal at all.” She stated that there would have been no trauma if the child had last had intercourse on June 1st and that normally the trauma would heal within two weeks.

Patterson argues that the State’s own evidence points to someone else being the guilty party because there was fresh trauma to the child’s vagina almost one month after he “had had any opportunity to do any of the things he was accused of doing.”

Where the State presents a prima facie case, the resolution of conflicting testimony on the part of State witnesses is for the jury. Carter v. State, 420 So.2d 292, 294 (Ala.Cr.App.1982); Davenport v. State, 50 Ala.App. 321, 322, 278 So.2d 769 (1973); Fuller v. State, 45 Ala.App. 133, 135, 226 So.2d 677 (1969); Miller v. City of Birmingham, 44 Ala.App. 628, 631, 218 So.2d 281 (1969).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Henry Lewis SWINT v. STATE.
    5 Div. 900.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Donald M. Phillips, Lanett, for appellant.

      Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Henry Lewis Swint was indicted and convicted for rape in the first degree. Alabama Code (1975), § 13A-6-61. He was sentenced as an habitual offender to life imprisonment without parole. Four issues are argued on appeal.

I

The indictment charged that “Swint, and James Curtis Martin, ... did engage in sexual intercourse with ... [the prosecu-trix], a female, by forcible compulsion.” Swint argues that only one rape is charged and two persons cannot be guilty of a single joint rape. Clayton v. State, 244 Ala. 10, 12, 13 So.2d 420 (1942). He also argues that the indictment is duplicitous because it charges two separate offenses.

The evidence shows that both Swint and Martin raped the prosecutrix as part of one plan and as part of a single transaction. The joinder of both defendants was proper under Rule 15.4(a)(ii) and (iii), A.R. Cr.P.Temp., which provides that “(t)wo or more defendants may be charged in the same indictment, ... (ii) when the several offenses are part of a common conspiracy, scheme, or plan; or (iii) when the several offenses are otherwise so closely connected that it would be difficult to separate the proof of one from the proof of the other.”

Moreover, the motion to dismiss and quash the indictment challenging the legal sufficiency of the indictment was filed after arraignment and was late. Rule 16.-3(a)(1), A.R.Cr.P.Temp. This motion was filed more than seven days after arraignment and was therefore untimely under Rule 15.4(f).

II

The trial judge properly admitted Swint’s statement to the police. The rapes occurred on the evening of June 7, 1983. Swint was arrested the next day and advised of his Miranda rights. When asked if he wanted to talk, Swint responded that he “had nothing to say.” He was transported to the police department and again informed of his constitutional rights. Because Swint could neither read nor write, a printed waiver of rights form was read to him three times and he “verbally acknowledged waiver every time.”

When an accused invokes his right to counsel, no further interrogation is permitted until counsel is made available or until the accused “initiates further communication, exchanges or conversation with the police.” Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The present case does not involve the procedures to be followed if the person in custody asks to consult with a lawyer, since Swint made no such request at any time.

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), held that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not “create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.” 423 U.S. at 102-03, 96 S.Ct. at 326. “The admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Mosley, 423 U.S. at 104, 96 S.Ct. at 326.

A review of the circumstances leading to Swint's confession reveals that his “right to cut off questioning” was fully respected and “scrupulously honored.” There is no contention to the contrary.

Ill

The victim testified that Swint “forced” her legs, “got up on top” and “started fooling with” her. The victim’s sister testified that the term “fooled with” meant “sex”. This testimony and other statements by the victim make it unquestionably clear that she and Swint engaged in sexual intercourse. This issue was not disputed at trial.

The nature of the penetration that is essential for a rape conviction need not be proved in any particular form of words. Edmonds v. State, 380 So.2d 396, 398 (Ala.Cr.App.1980); Beckley v. State, 353 So.2d 542, 544 (Ala.Cr.App.1977).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.