author: HARRIS, Judge.

text:
    Kenneth Ray GRAY v. STATE.
    6 Div. 115.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1114.

      William J. Wynn, Hueytown, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael Bownes, Asst. Atty. Gen., for appel-lee.
   HARRIS, Judge.

On March 5, 1982, the Jefferson County Grand Jury indicted appellant, Kenneth Ray Gray, on a charge of robbery in the first degree. He was found guilty as charged in the indictment and sentenced to life imprisonment without parole pursuant to the Habitual Felony Offender Statute.

On November 18, 1981, at about 5:30 p.m., Tony McCarthy, an attendant at a downtown parking lot in Birmingham, was robbed of $13.80 by a man carrying a gun. After taking the money the man said to him, “You know this is a sawed off shotgun,” and fled.

McCarthy provided the police with a description of the robber, and three days later Sergeant Tommy McDonald of the Birmingham Police Department, showed him a group of six photographs from which McCarthy identified appellant as the robber. McCarthy also made a positive identification of appellant as the robber at trial.

Sergeant McDonald included appellant’s picture in the photographic lineup because appellant fit the description given him by McCarthy, as well as the description of the perpetrator of another robbery in the same vicinity. He matched the remaining photographs to appellant’s physical appearance as depicted in the photograph.

Appellant alleges that during the State’s closing argument the prosecutor made a remark that was so prejudicial to him that it amounted to a denial of his right to a fair trial. The alleged comment was, “The police already had photographs of the defendant.” Appellant contends that this remark was a subtle way of apprising the jury of his prior criminal record. There was, however, no objection to any portion of the prosecutor’s argument and hence, no record preserved for review.

As a general rule, matters not objected to at trial will not be considered on appeal. Wood v. State, 416 So.2d 794 (Ala.Cr.App.1982); Moore v. State, 415 So.2d 1210 (Ala.Cr.App.1982). More specifically, in Yates v. State, 390 So.2d 32, 35 (Ala.Cr.App.1980), this court reiterated that: “... improper argument of counsel is not a ground for a new trial or subject to review on appeal unless there is due objection by counsel or a motion to exclude, an adverse ruling thereon by the court, or a refusal of the trial court to make a ruling.” (Citation omitted.)

An exception to the general rule was noted in Anderson v. State, 209 Ala. 36, 95 So. 171 (1922), wherein the court held that where an argument is so grossly improper and highly prejudicial that neither retraction nor instruction by the trial court could destroy its damaging effect that no objection is required to preserve the issue.

In the case before us testimony at trial revealed that appellant had been arrested for shoplifting, so that the jury was aware of appellant’s prior contact with the police before closing arguments. For this reason, and because the remark was both subtle and indirect, we find that the alleged comment of the prosecutor was not incurable, and without an objection was not preserved for our review.

Appellant contends that in sustaining the prosecutor’s objection to defense counsel’s closing argument the jury was misled and confused as to the legal standard of proof they were to apply to the case.

The following occurred during defense counsel's closing argument:

“DEFENSE COUNSEL: If you don’t find he is guilty, if you are not absolutely sure beyond a reasonable doubt he is guilty, you must return a verdict of not guilty.
“PROSECUTOR: Your Honor, I object to that statement by counsel. It’s an incorrect statement of the law. Request the Court to so instruct this jury.
“THE COURT: Ladies and gentlemen, I will charge you as to what the actual law is at the proper time, and let me caution you this, the statement of these lawyers, either one of them is not evidence and you are not to consider it as evidence. And as to the law, I will charge, I will charge you as to the proper law.”

The trial judge stated the following in his oral charge to the jury: “.... the burden is on the State of Alabama to convince you from the evidence beyond a reasonable doubt and to a moral certainty that the defendant is guilty as charged in this indictment before you can convict him.”

We find that the State’s objection was well founded and the trial court’s instruction to the jury was proper. There is no requirement of “absolute” proof of guilty of an accused. Whatley v. State, 91 Ala. 108, 9 So. 236 (1891). The standard enunciated by the court in Snoddy v. State, 20 Ala.App. 168, 175, 101 So. 303, 309 (1924), was the following: “The only burden resting on the state in this regard [degree of proof] is that the evidence should be so strong as to convince the jury of the guilt of defendant beyond a reasonable doubt.”

Finally, appellant argues that since the robbery victim stated that he did not know the difference between a shotgun and a rifle that the jury based its verdict upon an erroneous indictment charging that appellant was armed with a shotgun.

The indictment against appellant stated the following:

“KENNETH RAY GRAY, whose name is to the Grand Jury otherwise unknown, did, in the course of committing a theft of Thirteen Dollars and Eighty Cents of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, the property of Tony McCarthy, threaten the imminent use of force against the person of Tony McCarthy, with the intent to compel acquiescence to the taking of or escaping with the property, while the said KENNETH RAY GRAY was armed with a deadly weapon, a sawed off shotgun, in violation of § 13A-8-41 of the Alabama Criminal Code.”

This indictment was proper in form and substance and was sufficient to acquaint appellant with the crime charged, as well as to apprise him of what he must be prepared to defend against. Hardy v. State, 409 So.2d 996 (Ala.Cr.App.1982); Andrews v. State, 344 So.2d 533 (Ala.Cr.App.), cert. denied, 344 So.2d 538 (1977). The allegation essential to a charge of robbery in the first degree was that appellant was armed with a deadly weapon, not whether that weapon was a shotgun or a rifle. The clause in the indictment describing the weapon as a shotgun was thus surfeit. Aside from the victim’s lack of knowledge about the differences between a shotgun and a rifle there was no evidence adduced at trial contradicting the victim’s testimony that the weapon was a sawed-off shotgun. In addition, in Stringer v. State, 372 So.2d 378, 380 (Ala.Cr.App.), cert. denied, 372 So.2d 384 (Ala.1979), we held the following:

“Ordinarily one waives any irregularities in the indictment by appearing and pleading in the trial court, and a plea to the merits is considered as an admission of a valid indictment. Johnson v. State, 49 Ala.App. 389, 272 So.2d 597 (1973); Elliott v. State, 39 Ala.App. 314, 98 So.2d 618 (1957)....”

In a pro se brief filed in addition to counsel’s brief appellant alleges that his attorney failed to provide him with adequate representation at trial and that the Habitual Felony Offender Statute was applied to his case in a discriminatory manner.

Appellant contends that his attorney failed to provide him with effective representation in the following ways: (1) he failed to contact and subpoena alibi witnesses; (2) he failed to interview prosecution witnesses and otherwise conduct a proper investigation of the case; (3) he failed to adequately interview appellant; (4) he failed to prevent pretrial and in-court identification testimony from being placed in evidence; instead relying upon cross-examination to attack the reliability of the testimony; (5) he made a tactical error in keeping defendant from testifying on his own behalf; (6) he tendered an inaccurate statement of the law to which the State objected, and (7) Officer McDonald committed perjury when he stated that he never interviewed appellant, as he had in fact interviewed him.

It is well established that every person accused of a crime is entitled to effective assistance of counsel in defending himself. Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The court, in Harris v. State, 367 So.2d 524, 530, cert. denied, 367 So.2d 534 (Ala.1979) proffered the following standard for determining whether counsel was effective: “[T]he duty of counsel, retained or appointed, is to prevent the trial from being or appearing to be a farce or mockery of justice.” We find, in accordance with this standard, as did the court in Allen v. State, 380 So.2d 313, 323 (Ala.Cr.App.1979) cert. denied, 380 So.2d 341 (Ala.1980), that, “It was not shown that counsel’s assistance was so grossly inept as to shock the conscience of the court and to make the proceedings a farce and a mockery of justice.” (Citations omitted.)

Appellant’s first three allegations regarding prejudice to him as a result of his attorney’s conduct and handling of his case are unsupported by the record before us. In regard to appellant’s fourth allegation, failure to file pretrial motions, such as a motion to suppress, does not constitute inadequate representation unless the failure to act reduces the trial to a “farce, sham, or mockery of justice.” Bass v. State, 417 So.2d 582, 585 (Ala.Cr.App.), cert. denied, 417 So.2d 588 (Ala.1982). As to appellant’s fifth allegation, it is well settled that matters of trial strategy should be left to the judgment of counsel, unless there is a clear showing that representation was inadequate. Bass, supra; Bridges v. State, 391 So.2d 1086 (Ala.Cr.App.1980). Appellant’s sixth allegation is based upon an error by counsel during the trial. It has been recognized that effective assistance does not mean that counsel must be without error. Taylor v. State, supra. Appellant’s final allegation concerns the truthfulness or falsity of a witness’s testimony which was not within the control of appellant’s attorney.

Appellant’s second contention in his pro se brief, that the Habitual Felony Offender Statute was discriminatorily applied against him solely because he asserted his right to a jury trial, is without merit. It has been held that the word “must” in § 13A-5-9, Code of Alabama (1975), leaves no discretion with the trial court as to whether a repeat offender should be punished under the statute. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). Furthermore, the prosecutor has no discretion as to whether or not to produce evidence of prior convictions and must do so if he is aware of the accused’s record. Miliner v. State, 414 So.2d 133 (Ala.Cr.App.1981).

We have addressed each of appellant’s allegations, both as presented through brief of counsel and as presented in his pro se brief, and have found no reversible error. In addition, we have carefully searched the record for errors prejudicial to the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    James Edward DEWHART v. STATE.
    3 Div. 770.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1128.

      Alfred W. Goldthwaite, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

The Montgomery County Grand Jury indicted appellant, James Edward Dewhart, on October 8, 1982, in a four-count indictment, for the capital offense of murder committed during the course of a robbery. Appellant was found guilty as charged and was sentenced to life imprisonment without parole in accordance with the jury’s recommendation.

Testimony at trial revealed that at approximately 12:30 a.m. on the morning of August 8, 1982, appellant robbed employees of a Shoney’s Restaurant at gunpoint. Afterwards he fled, but a customer in the restaurant followed appellant’s car in what escalated into a high speed chase. Appellant’s pursuer alerted a police officer in an unmarked car and the officer joined the chase. While traveling on an interstate highway at speeds in excess of one hundred miles per hour appellant discharged his gun, shattering his rear windshield and damaging the police car. Finally, appellant took an exit off the highway, stopped and abandoned the car. Appellant and the police officer exchanged gunfire. Later, backup patrol cars arrived on the scene and several volleys of gunfire ensued. During this time, appellant kept up a steady stream of threats and obscenities directed toward the police officers. Finally, he was wounded and captured. Investigating officers found a handgun, a sawed-off shotgun and a bandolier on the scene.

Later, after the car used in the robbery and flight had been impounded, one of the investigating officers noted a substance leaking from the rear of the car and a fetid smell emanating from the trunk. The trunk was opened and the decomposing body of Curtis Daniel Scott was discovered there. His head was covered with a plastic apron attached at the neck with a terry cloth strip.

An autopsy on the body revealed that Scott died of a gunshot wound to the back of his head, which was later shown to have been inflicted by the handgun in appellant’s possession.

Appellant admitted that the guns used in the robbery and shoot-out with the police were his, that his gun caused Scott’s death and that the car used by him in the robbery at Shoney’s belonged to Scott. He denied that he stole Scott’s car in order to rob Shoney’s, intentionally killing Scott in the process. Instead, appellant maintained that Scott shot himself during a game of Russian Roulette and that afterwards he was frightened and did not know what to do with Scott. He put the plastic apron over his head so that the blood wouldn’t get on him and put him in the trunk of the car, planning to take him back to where he lived, but instead he proceeded to Shoney’s Restaurant and robbed the establishment.

Appellant contends that the trial court erred in permitting the State to present testimony concerning appellant’s robbery of Shoney’s Restaurant and the subsequent shootout with the police.

Appellant’s argument in this regard is two-pronged. First, he maintains that the State should not have proceeded to trial on the indictment for capital murder only, when the evidence in support of the indictments against him for robbery of Shoney’s Restaurant and for attempted murder of two policemen was stronger than the circumstantial evidence of the capital murder charge of which he was convicted. Appellant admits that he is not aware of any law permitting a defendant to choose which charge he wishes to go to trial on, and we are similarly unaware of any legal basis for such a choice by a defendant.

Second, appellant asserts that testimony concerning the robbery of Shoney’s Restaurant, the subsequent flight, and the shootout with the police was introduced solely to prejudice the jury against him and thus should not have been admitted into evidence.

It is clear that evidence of a defendant’s commission of collateral crimes is generally inadmissible as substantive evidence offered to establish guilt of a particular crime. E.g., Miller v. State, 405 So.2d 41 (Ala.Cr.App.1981); C. Gamble, McElroy’s Alabama Evidence § 69.01 (3d ed. 1977). There are, however, several well-established exceptions to this general exclusionary rule. E.g., Goodman v. State, 401 So.2d 208 (Ala.Cr.App.), cert. denied, 401 So.2d 213 (Ala.1981); Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980) cert. denied, 398 So.2d 332 (Ala.1981), cert. denied 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955 (1981); Hayes v. State, 384 So.2d 623 (Ala.Cr.App.1979), cert. denied, 384 So.2d 627 (Ala.1980); McElroy, supra.

Clearly, in the case sub judice the robbery-murder of Curtis Scott, the robbery of Shoney’s Restaurant and the subsequent shoot-out with the police, were inseparable crimes, part of one continuous criminal transaction. Testimony concerning the robbery of Shoney’s, the capture of appellant, the discovery of Scott’s body in the vehicle used by appellant in the robbery, and the discovery of the murder weapon was thus admissible as tending to prove that appellant robbed and murdered Curtis Scott. Terry v. State, 397 So.2d 217 (Ala.Cr.App.), cert. denied, 397 So.2d 223, (Ala. 1981); Love v. State, 372 So.2d 414 (Ala.Cr. App.1979); Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948).

Appellant next alleges that he was denied a fair trial because no black persons were on the jury which convicted him. He points out that although Montgomery County’s population is forty percent black, the jury venire consisted of less than thirty percent blacks, that he is black and that he was convicted by an all-white jury. Appellant thus implies that blacks were systematically excluded from the jury.

Such implication by appellant is insufficient to establish a denial of the constitutional right to a fair trial. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Supreme Court recognized that a defendant’s constitutional rights might be violated if there existed a pattern of deliberate and continued exclusion of blacks from juries by the State. However, the court also observed that a defendant bears a heavy burden in attempting to demonstrate systematic discrimination of constitutionally significant magnitude. In the case before us appellant made no attempt to prove systematic exclusion of blacks from juries in Montgomery County, and hence his allegation fails. Cf. State v. Brown, 371 So.2d 751 (La.1979). (Defendant presented several witnesses who testified, making out a prima facie case, unre-butted by the State, that there had been systematic exclusion of blacks from the particular petit jury and from prior petit juries.)

Lastly, appellant argues that the indictment charging appellant with intentionally causing the death of Curtis Daniel Scott during the course of a theft accomplished by the use of force and with a deadly weapon was defective because it did not use the word “robbery” as does § 13A-5-40(a)(2), Code of Alabama (1975), in defining capital offenses. That section provides the following: “(a) The following are capital offenses: _ (2) Murder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant;” Robbery in the first degree is defined in § 13A-8-41, Code of Alabama (1975), as follows:

“(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
“(2) Causes serious physical injury to another.”

Section 13A-8-43, Code of Alabama (1975), defines robbery in the third degree as follows:

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

We find that the crime described in the four-count indictment was robbery within the meaning of §§ 13A-5-40(a)(2), 13A-8-41 and 13A-8-43. The indictment was, therefore, not defective.

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

AFFIRMED.

All the Judges concur.


author: TAYLOR, Judge.

text:
    David Dwayne HAMILTON v. STATE.
    1 Div. 750
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied May 22, 1984.
    Certiorari Denied July 20, 1984 Alabama Supreme Court 83-974.

      David L. Ratcliffe, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Appellant David Dwayne Hamilton was indicted for robbery in the first degree and for attempted murder. He was found guilty by a Mobile County jury and sentenced to two concurrent sentences of life imprisonment.

Appellant, David Dwayne Hamilton, and two companions, while driving on Interstate 10 near Mobile, picked up a hitchhiker, Thomas Wesley Edwards. They exited the Interstate and went to a secluded sand pit where they pulled Edwards out of the truck and searched his belongings, finding only twelve cents. During the robbery, Edwards was severely beaten. Appellant and his friends kicked him in the head with steel pointed cowboy boots, shot him in the back with a pistol, and ran over him twice with their pick-up truck. Edwards somehow survived and returned to the Interstate, where he received help.

I

Appellant asserts that there was a fatal variance between the indictment and the trial court’s charge to the jury. The indictment stated that the appellant:

“[D]id in the course of committing a theft of lawful currency of the United States of America, of approximate aggregate value of twelve cents ($.12), or men’s clothing, the property of Thomas Wesley Edwards, Jr., use force against the person of Thomas Wesley Edwards, Jr., with intent to overcome his physical resistance or physical power of resistance, while the said DAVID DWAYNE HAMILTON, or another participant in this theft, was armed with a deadly weapon, to-wit; a gun, in violation of 13A-8-41 of the Code of Alabama 1975.”

The trial judge charged that:

“[A] person commits the crime of robbery in the first degree if in the course of committing a theft he uses or threatens the eminent use of force against the person of the owner of the property or any person present with intent to overcome his physical resistance or physical power of resistance and either causes serious personal injury to another or is armed with a deadly weapon or dangerous instrument. Robbery in the first degree may be sustained if the state-proves to you beyond a reasonable doubt and to a moral certainty the following elements of this offense: First, that the defendant committed or attempted to commit a theft of money in this case. I believe the indictment charges twelve cents. Secondly, that in the course of committing or attempting to commit the theft or in the immediate flight after the attempt or commission the defendant either used force or threatened the eminent use of force against the person of the victim, in this case Edwards, with the intent to overcome Edwards’ physical resistance or physical power to resist or to compel acquiescence to the taking of or escaping with the property. And, thirdly, that serious personal injury was caused to the victim or he was armed with a dangerous weapon or instrument.”

The indictment included the language of § 13A-8-41(a)(l) while the jury charge included language from § 13A-8-41(a)(l) and § 13A-8-41(a)(2).

The fatal variance rule was established to assure that the accused had sufficient notice to enable him to defend himself at trial. House v. State, 380 So.2d 940 (Ala.1979). In order to reverse a conviction because of a variance in the indictment and the court’s charge to the jury, the variance must be material. Ex parte Collins, 385 So.2d 1005 (Ala.1980). The United States Supreme Court, citing Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 531, 17 S.Ct. 661, 665, 41 L.Ed. 1101 (1897), held that

“ ‘no variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.’ This was said in a civil case, it is true, but it applies equally to a criminal ease if there be added the further requisite that the variance be not such as to deprive the accused of his right to be protected against another prosecution for the same offense.” Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 631, 79 L.Ed. 1314, 1318 (1935).

In Ex parte Hightower, 443 So.2d 1272 (Ala.1983), the indictment charged the appellant did engage in sexual intercourse with a female without her consent. The proof at trial was that appellant obtained her consent by artifice. The Alabama Supreme Court held that the variance was fatal because the indictment did not provide adequate notice to the appellant of the crime for which he was charged to enable him to defend himself at trial. In Ex parte Washington, 448 So.2d 404 (Ala.1984), the Alabama Supreme Court found a material variance between the indictment charging intentional murder and the trial court’s jury instructions charging intentional murder and reckless murder. They found that the two alternative charges of murder constitute separate crimes with different elements of proof and different lesser included offenses. As an example, the state must prove intent for intentional murder, while intent is not an element of reckless murder.

In applying the principles set out above, we interpret Ex parte Hightower, supra, and Ex parte Washington, supra, to address a situation where a statute contains two alternative methods of committing an offense and these methods are contradictory or contain separate and distinct elements of proof. In such a case, a material variance will exist if the indictment charges an offense committed by one means and the trial court’s jury charge addresses a separate and contradictory means. An accused person, if he has not been properly apprised of the charges against him, cannot be said to have been able to defend himself.

The appellant in this case was charged with robbery in the first degree. Section 13A-8-41(a), Alabama Code 1975, states:

“(a) A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or “(2) Causes serious physical injury to another.”

Section 13A-8-43, Code of Alabama 1975, incorporated by reference into Section 13A-8-41(a), states:

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

Robbery in the third degree is a Class C felony; robbery in the first degree is a Class A felony, distinguished by the additional elements. Sections 13A-8-41(a)(l) and 13A-8-41(a)(2) are aggravating circumstances which serve to increase the level of punishment for robbery. W. Lafave & A. Scott, Criminal Law (1972) at 702.

This case differs from Ex parte High-tower, supra, in that case the statute consisted of two alternatives that could not exist at the same time; the rape was either without consent or with consent obtained by artifice. It could not be both.

Robbery includes the lesser included offenses of “assault with intent to rob, for larceny, for attempt to rob, for assault, or for an assault and battery.” Robertson v. State, 24 Ala.App. 237, 237, 133 So. 742, 742 (1931), Rickard v. State, 44 Ala.App. 281, 207 So.2d 422 (1968). The lesser included offenses are the same for robbery under § 13A-8-41(a)(l) and under § 13A-8-41(a)(2). Unlike the indictment in Ex parte Washington, the indictment in this case may be deemed to have informed appellant of all the charges, including lesser included offenses against which he could be called upon to defend himself at trial.

The indictment for robbery provided sufficient notice to appellant to permit the state to prove, and the court to charge on either the use of a deadly weapon or the infliction of serious personal injury. We find that the appellant was not thereby hindered in defending himself. Farley v. State, 437 So.2d 639 (Ala.Cr.App.1983).

II

Appellant argues that the trial court erred in refusing his jury charge number 16 on the basis that the court failed to state the elements of attempted murder. “The trial court has a mandatory duty of instructing the jury orally as to the different and distinguishing elements of the offense charged.” Davidson v. State, 360 So.2d 728, 730 (Ala.Cr.App.), cert, denied, 360 So.2d 731 (Ala.1978). The trial judge told the jury that “[a] person is guilty of an attempt to commit a crime, if with the intent to commit a specific offense, he does an overt act towards the commission of such offense.” He then went on to explain the elements of the crime of murder. We find that these instructions are adequate to fairly apprise the jury “of the charges against the accused.” Wiggins v. State, 347 So.2d 543, 545 (Ala.Cr.App.), cert.denied, 347 So.2d 546 (Ala.1977).

III

Appellant also argues that the trial court erred in allowing the victim’s doctor to read into evidence the victim’s hospital record, which contained the victim’s account of what happened to him. He contends that it denied him his right to confrontation. Appellant’s argument is based upon Lowery v. State, 55 Ala.App. 514, 317 So.2d 365, cert.denied, 294 Ala. 763, 317 So.2d 372 (1975). In that case, the court held that a certified copy of a death certificate could not be used as the sole evidence in a criminal prosecution for murder to prove the cause of death where live witnesses were available. The Lowery court held that by such a procedure the defendant may be denied his right to be confronted by witnesses and his right to cross-examine. Unlike the defendant in Lowery, the appellant in this case had the opportunity at trial to confront and to cross-examine not only the victim, but also the doctor. His right to confrontation has not been violated.

IV

Appellant argues that the trial court erred in admitting his statement without proof as to who transcribed the statement or that the transcription was compared to the tape. In Hawkins v. State, 443 So.2d 1312 (Ala.Cr.App.1983), this court, per Presiding Judge Bowen, stated that “[a] typewritten transcript of a recorded conversation is admissible where the officer who listened to the conversation at the time of the recording testifies that the transcript accurately reflected the conversation.” In this case, an officer, present when the statement was recorded, testified that the typed version accurately reflected the appellant’s statement. We find that the transcript was properly authenticated and duly admitted.

V

Finally, the appellant claims that the trial court erred when it allowed the appellant’s statement containing a reference to a discussion about another robbery to be admitted into evidence. Appellant told the officers that he and his friends had considered robbing a Junior Food Mart in Loxley, Alabama, but they decided not to do it.

Appellant, citing Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947), correctly points out the general rule that in a prosecution for a particular offense, evidence tending to show defendant guilty of another and distinct offense is inadmissible; however, there are many exceptions to this rule. Collateral crimes are admissible to prove intent, to prove identity, to show motive and to rebut special defenses. Johnson v. State, 335 So.2d 663 (Ala.Cr.App.), cert. denied, 335 So.2d 678 (Ala.), cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976). When the crimes are committed in one continuous transaction, they are admissible. Love v. State, 372 So.2d 414 (Ala.Cr.App.1979). Whether evidence of other crimes is admissible depends on “the nature of the charge.” Walker v. State, 358 So.2d 800, 807 (Ala.Cr.App.1978). If the comment had amounted to a statement concerning a separate crime, it would have been admissible to prove intent to commit the crime of robbery. Burkett v. State, 439 So.2d 737 (Ala.Cr.App.1983). The trial court did not commit an error by admitting the appellant’s statement.

For the above stated reasons, this ease is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Jack CHILDRESS, alias v. STATE of Alabama.
    3 Div. 947.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied May 22, 1984.
    Certiorari Denied July 20, 1984. Alabama Supreme Court 83-969.
    Gary A. Atchison of Shinbaum & Atchi-son, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Jack Childress, alias, was indicted for second degree forgery by signing his name as one Billy Goodwyn to a fingerprint card at police headquarters in the City of Montgomery, Alabama.

Prior to trial, the appellant filed a motion to suppress averring that he had been unlawfully arrested by the Montgomery officers.

The trial court later allowed the appellant to preserve his exception to the ruling on the motion to suppress but thereafter the appellant, without waiving the motion to suppress, appeared and entered an intelligent and voluntary plea of guilty. He was sentenced to two years’ imprisonment, which was reduced to probation and the appellant was required to report periodically and to maintain steady and full employment. He was to avoid contact with law violaters, to pay costs within 120 days and not to frequent establishments which sold alcoholic beverages.

I

The sole issue on this appeal concerns the arrest by Montgomery police officers on the night of July 1, 1983, while he was seated in a motor vehicle in the parking lot of an apartment complex just off Cleveland Avenue in Montgomery, Alabama. The appellant strenuously argues that the officers had no probable cause to make this arrest. He further argues that there was no visible criminal activity nor was there any lawful basis for his arrest. Moreover, the appellant asserts as a result of the unlawful arrest, he was thereafter taken to police headquarters and was booked, at which point he signed his name, using an alias, and was thereafter charged with the forgery to which he subsequently pled guilty.

Montgomery Police Officer Tony A. Simmons testified that at about 9:45 on the evening of July 1, 1983, he and his partner answered a police radio dispatch to the 3000 block of Cleveland Avenue, under the name “Code 7”, which is a shooting in progress. Upon arrival at the scene, they noticed a white male subject sitting in a greenish station wagon in the parking lot of the apartment complex where the shooting took place. As a matter of routine investigation, the officers were questioning anyone within the immediate proximity of the apartment complex. The appellant was first asked if he had heard any shots to which he replied that he had not. They asked what he was doing at the scene and he simply replied that he was waiting on a friend to come out of one of the apartments. He was asked what the friend’s name was and was unable to give this, other than a nickname, and was further unable to provide the name or number of the apartment in which his friend was visiting. The appellant was then asked for identification and had no driver’s license, though he was seated on the driver’s side of the vehicle which was parked. He supplied the two officers with a birth certificate.

After the two officers conferred, they called in on the radio dispatch giving the name, age and address on the birth certificate and asked whether or not there was any information on this. At this point, the appellant had not been detained or restrained in any way. The information came back that the party whose name appeared on the birth certificate was wanted for three outstanding traffic violations. At this point, the appellant was then arrested and taken to police headquarters and charged with the three capias warrants for failing to appear for the traffic violations.

This court in Kimbrough v. State, 352 So.2d 512 (Ala.Cr.App.), cert. denied, 352 So.2d 516 (Ala.1977), speaking through Judge Harris noted:

“The United States Supreme Court held in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) that a police officer may in appropriate circumstances and in an appropriate manner approach a person for investigating possible criminal behavior even though there is no probable cause to arrest. Of course the police officer must be able to point out ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’”

Moreover, in Herrin v. State, 349 So.2d 103, cert. denied, 349 So.2d 110 (Ala.1977), Judge DeCarlo, speaking for this court, stated:

“In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the court said that:
‘... The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time..[Citations omitted].

Similarly, Judge Bowen, speaking for this court in Campbell v. State, 354 So.2d 325 (Ala.Cr.App.1978) indicated:

“While mere presence is never a sufficient basis for a finding of probable cause to arrest, presence when coupled with other circumstances may ripen suspicion into a reasonable belief capable of supporting a finding of probable cause.”

The principles set forth in these opinions have now been codified in Title 15-5-30 and 15-5-31, Code of Alabama 1975 as amended. See also, Goodman v. State, 356 So.2d 691 (Ala.Cr.App.), cert. denied, 356 So.2d 698 (Ala.1978) and Wheat v. State, 372 So.2d 400 (Ala.Cr.App.1979).

In the case at bar, Officer Simmons testified that the appellant’s address indicated that he lived in the East Montgomery section at the Carey Drive Apartments, some distance from the apartments where he was found by the officers. He was a white man, seated alone in a parked vehicle in a black neighborhood, located on the West side of Montgomery. This particular area, it was noted, was known for being an area in which drugs were frequently sold. The officers simply ran a routine check based upon the evasive answers and behavior of appellant. They were attempting to obtain information with reference a shooting which had just taken place in the immediate area. We find that there were sufficient articulable facts and circumstances testified to by the officers which gave rise to the probable cause resulting in the appellant’s arrest on the charge at issue. Butler v. State, 380 So.2d 381 (Ala.Cr.App.1980). Kemp v. State, 434 So.2d 298 (Ala.Cr.App.1983).

We have carefully examined this record and find no error therein. The judgment appealed from is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Bryan WALLACE v. STATE.
    1 Div. 733.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1118.

      W. Gregory Hughes and J. Jerry Pilgrim, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Fred F. Bell, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal from a judgment in each of two cases that were consolidated for trial, in which the jury found defendant guilty of attempted murder as charged in one indictment and robbery in the first degree as charged in the other indictment. The court fixed defendant’s punishment at imprisonment for life in each case, with the sentences to run concurrently. The consolidation of the cases for trial was ordered on motion of the State, with no objection on the part of the defendant. The alleged victim in each case was Tommy Wesley Edwards, Jr. He and the defendant were the only eyewitnesses testifying as to the incidents occurring at the time of the alleged crimes.

According to the undisputed evidence, Edwards, a young man on a hitchhiking expedition on December 11, had spent the previous night at the Salvation Army in Mobile and was headed for his mother’s home in Missouri. He had obtained a ride to the intersection of 1-65 and I — 10, and while standing under the bridge he was picked up by three persons in a pickup truck, one of whom was the defendant. Edwards was riding in the back of the truck in which there was a large dog. The truck had been rented by the defendant, but was not being driven by him at the time. After riding a short distance, the driver told defendant they had to pull off the road but would be getting right back on it. They pulled off the road and went to a dirt pit, where the truck stopped. One of the men got out of the truck on the driver’s side with a pistol and ordered Edwards to get out of the truck and onto the ground, which Edwards did.

While lying on the ground, Edwards was relieved, by force, of his wallet, containing twelve cents, his articles of clothing, a sleeping bag and other items and was shot with a pistol by one of the three other persons in the truck, not this appellant. The three other persons in the truck left without Edwards; Edwards managed to crawl up to the side of the road, where he was seen by passers-by and was taken to a hospital, where a bullet was removed from his spine, and he remained hospitalized ten days.

According to the testimony of appellant, he and a Mr. Hamilton and Mr. LaDieu were riding through Mobile in the truck when they saw Edwards hitchhiking in the cold and rain. Hamilton was driving the truck at the request of appellant because appellant “had been drinking.” They had pulled off the Interstate and had stopped the truck at a dirt pit in order for the appellant to use an improvised rest room. While doing so, he “heard a shot.” He further testified:

“And I looked up and I seen David [Hamilton] standing at the back of the truck and LaDieu was going forward. First thing that flashed in my mind, the man had done shot LaDieu because they had been kind of arguing, you know. Just over knick-knack things ever since we picked him up. I ran around the truck and I ran back there. LaDieu was bending over Mr. Edwards and he was laying on the ground, his arms all spread out and stuff. And David was hollering, get his money, get his money. And I ran over and I grabbed LaDieu and I picked him up and I asked him if he was crazy. Man, what’s he done. And he started hollering, he ain’t got no money; he ain’t got no money.
“Q. Who said that?
“A. LaDieu saying that. He’s the one that got the man’s wallet out. And Hamilton starts hollering, get in the truck; let’s get out of here. Let’s get out of here. And he is waving the gun around and acting like a wild man. I was scared and I panicked. I mean, I don’t know whether if you all ever been in any kind of bad situation but I was scared.
“Q. What did you do next?
“A. I jumped in the truck. LaDieu jumped in behind me on the passenger’s side. David got in behind the driver’s side and he started the truck up forward a little bit and it kind of stuck and started to slide.
“A. Well, we got on the Interstate and he [Hamilton] was driving as fast as that truck would go. I mean he was driving crazy, passing cars off the shoulder and everything else. You know, acting wild.”

A major issue presented on appeal is thus captioned in appellant’s brief: *

“WHETHER THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE JURY WAS PROVIDED WITH A DOCUMENT PURPORTING TO BE THE APPELLANT’S MIRANDA RIGHTS WAIVER, BUT WHICH WAS IN FACT A CO-DEFENDANT’S WAIVER OF RIGHTS AND A COPY OF THE CO-DEFENDANT’S STATEMENT INCRIMINATING THE APPELLANT.”

Our review of the court reporter’s transcript and our consideration of the briefs of parties convince us that the reference is to State’s Exhibit 5, which was identified as “Appellant’s Miranda Rights Waiver Form,” but which was a Miranda rights waiver of David Hamilton and a statement of David Hamilton, which incriminates the appellant. However, neither the record proper nor the transcript of the proceedings shows that State’s Exhibit 5 was ever introduced in evidence or ever shown to, read to, or seen by the jury. How this colossal mistake was made, we are unable to say, but we are convinced that fortunately defendant was not prejudiced by what occurred. It is to be noted that testimony for the State showed that a Miranda rights form had been signed by defendant, and a witness for the State testified there were some inculpatory, as well as exculpatory, statements made by defendant, but there is no indication that the witness was reading from State’s Exhibit 5 while testifying. The unfortunate mistake caused no injury to defendant, in our opinion, and no error prejudicial to appellant is properly chargeable to the trial court.

The only other issue presented by appellant is captioned as follows in his brief:

“WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION FOR A MISTRIAL, AFTER THE PROSECUTOR STATED IN HIS OPENING ARGUMENT, ‘HE PANICKED SO MUCH, THIS DEFENDANT, THAT HE WENT TO MISSISSIPPI WITH THOSE OTHER TWO MEN AND TRIED TO ROB A MINUTE [SIC] MARKET.’”

The motion for a mistrial referred to in the caption of the final issue presented by appellant occurred during the opening statement to the jury by counsel for the State, not in the opening argument of the prosecuting attorney, even though the prosecuting attorney was in effect making an argument to the jury, instead of a statement as to what he expected the evidence to show, which regrettably is a frequent occurrence these days during the opening statements of counsel. However, the statement was a rebuttal statement, made after the opening statement of defendant’s counsel, and it apparently was in rebuttal of a statement by defendant’s counsel to the effect that defendant had “panicked,” instead of deliberately fleeing from the scene of the crime after the alleged victim had been shot by Hamilton. In our opinion, the statement of counsel for the prosecution that gave rise to the motion for a mistrial was objectionable and was subject to exclusion from the consideration of the jury, on motion of defendant. However, no such ruling was invoked by defendant’s counsel. According to the undisputed evidence in the case, the three men in the truck went to Lucedale, Mississippi, and were there arrested for the alleged crime in the instant case by law enforcement authorities from Mobile County, Alabama. There was no evidence presented to the jury as to any attempt to rob a market in Mississippi by the defendant or either of the other two men in the truck. The motion for a mistrial was presented out of the presence of the jury, during which time counsel for the State contended there was an attempt to rob a market, which he referred to as a “Minute Market.” He further contended in his argument to the court out of the presence of the jury:

“Judge, as that case says, Mr. Pilgrim [Defendant’s attorney], told the jury that his client did not have the intent to commit any crime. He told the jury that he panicked. He didn’t have anything to do with the crime. This second robbery happened within an hour or an hour and a half of this occurrence. And only then was he apprehended. And if he is going to deny intent which he just did in front of the jury, that case right there says you can show a subsequent act to show the criminal intent of the defendant on the act that he is charged with.”

The State did not pursue in the presence of the jury any effort to show an attempt to rob anyone in Mississippi. The colloquy out of the presence of the jury relative to defendant’s motion for a mistrial is the last reference in the court reporter’s transcript as to any robbery, attempted robbery, or the like in Mississippi. In our opinion, the reference thereto in the rebuttal statement of State’s counsel to the jury should have been avoided, but the trial court was in a better position than an appellate court to determine the necessity or propriety of a mistrial. We repeat and apply what was recently stated by Judge Tyson in Durden v. State, Ala.Cr.App., 394 So.2d 967, 969 (1980), writ quashed, Ala., 394 So.2d 977:

“... It is, of course, axiomatic that the grant or denial of a motion for mistrial is a matter within the sound discretion of the trial court which will only be disturbed upon a showing of manifest abuse; no such abuse is evident here. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Kennedy v. State, supra, [Ala.Cr.App., 373 So.2d 1274 (1979)]; § 12-16-233, Code of Alabama 1975.” 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.


text:
    Bobby T. PACE v. CITY OF MONTGOMERY.
    3 Div. 888.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    As Corrected on Denial of Rehearing June 26, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1113.

      Wesley Romine and Roger S. Morrow of Whitesell, Morrow & Romine, Montgomery, for appellant.
    J. Bernard Brannan, Jr., Montgomery, for appellee.
   TYSON, Judge.

Bobby T. Pace was convicted in Montgomery Municipal Court on the charge of driving under the influence and appealed this conviction to the Montgomery Circuit Court. The trial jury found the appellant guilty and the Circuit Court sentenced him to a 60 day jail sentence, suspended for one year, and fined him $300.00.

At approximately 10:30 p.m. on November 13, 1982, George Robinson was driving north on Eastern Boulevard, Montgomery, Alabama, when his vehicle was struck from the rear by a vehicle driven by this appellant. Officer Michael Patterson, an accident investigator for the Montgomery Police Department, was immediately at the scene. Upon his arrival at the scene, he saw the appellant back his vehicle into a ditch. The appellant then got out of his vehicle and fell upon the ground. Once he got up, Patterson assisted him out of the ditch.

As Patterson began to ask the appellant questions, he noticed the odor of alcohol on his breath. The appellant’s speech was slurred and he had trouble standing unassisted. The appellant was cursing and his attitude was combative.

Patterson noticed the windshield of the appellant’s vehicle was cracked so he asked the appellant if he was injured. The appellant replied that his lip was cut and Patterson noticed a bump on his head.

It was Patterson’s opinion that the appellant was intoxicated, so he placed the appellant under arrest for driving under the influence, handcuffed him and put him in the patrol car. After Patterson finished investigating the accident, Patterson took him to the police department. At the station, the appellant failed the usual field tests, i.e., walk a line, touch his nose, etc., and was also offered the opportunity to take the GCI test, which he refused.

The evidence for the defense showed that the appellant went to T.P. Crockmier’s Restaurant around 8:00 p.m. that night. He drank two beers on ice, and then left around 10:30 p.m. The bartender who served the appellant stated the appellant did not appear to be intoxicated when he left. The appellant stated he had not had anything else to drink other than those two beers since 2:00 that same afternoon.

The appellant stated that upon leaving Crockmier’s, he turned north onto the Eastern Boulevard. As he was driving, he dropped a lighted cigarette on the floorboard. As he was reaching down to pick it up, his vehicle ran into Robinson’s vehicle. The appellant testified he doesn’t remember a lot of what happened after this point. The appellant stated he remembered sitting in his vehicle with his mouth bleeding, and someone asking him if he was injured. He remembers sitting in the patrol car and being in the jail. However, he doesn’t remember refusing the GCI test.

John Thomas, a friend of the appellant’s, picked him up at the jail around 1:00 a.m. on November 14, 1982. Thomas stated the appellant was incoherent so he took the appellant to the Baptist Hospital Emergency Room where he was examined. The doctor at Baptist told the appellant he had a bruised elbow and a cut lip and gave him some pills and told him to go home to bed.

The following morning, Thomas and two other friends of the appellant, Ray Andrews and Wheeler Foshee, came to check on the appellant. He complained of a headache and was acting strangely, so Foshee called his physician, Dr. Odom, to examine the appellant. Dr. Odom was not on call so Dr. Crockett, one of the doctors who practices with Dr. Odom, met appellant at the University Medical Center in Montgomery. Dr. Crockett examined the appellant and determined he had a concussion. The appellant remained in the hospital overnight for observation.

Dr. Walker Sorrell, a pathologist, testified that a person would not be under the influence of alcohol after consuming only two beers. He stated that the symptoms of a concussion (dizziness, slurred speech, loss of memory, headaches, unbalanced gait, combative attitude) are similar to the effects of alcohol on an intoxicated person. Dr. Sorrell testified that the diagnosis of a concussion is a clinical observation and a matter of exclusion. “If you don’t find anything, and you find the symptoms of a concussion, you assume it is a mild concussion.” (R. 96).

I

The appellant contends his arrest was unlawful and, therefore, the trial court should have quashed the arrest warrant and suppressed the evidence upon which this arrest was based.

The appellant was charged with the violation of § 32-5A-191, Code of Alabama 1975, which replaced § 32-5-170, Code of Alabama 1975. At the time of the appellant’s arrest, § 32-5-171, Code of Alabama 1975 provided that:

“A uniformed police officer, state trooper, county sheriff or his deputy or member of a municipal police force may arrest, at the scene of a traffic accident, any driver of a vehicle involved in the accident if upon personal investigation, including information from eyewitnesses, the officer has reasonable grounds to believe that the person by violating section 32-5-170 contributed to the accident. He may arrest such a person without a warrant although he did not personally see the violation.”

The appellant argues that because § 32-5-170 was repealed by the Alabama legislature and § 32-5-171 specifically referred to § 32-5-170, the legislature implicitly intended to repeal § 32-5-171, and therefore, this appellant’s arrest was unlawful. However, we do not reach the same conclusion as the appellant.

Section 32-5A-13, Code of Alabama 1975 states:

“The provisions of this chapter are cumulative and shall not be construed to repeal or supersede any laws not inconsistent herewith. Without limitation of the generality of the preceding sentence of this section, this chapter shall not repeal or supersede sections 32-5-8. 32-5-9, 32-5-11 through 32-5-14. 32-5-16, 32-5-31, 32-5-51, 32-5-54, 32-5-64, 32-5-65, 32-5-72, 32-5-74 through 32-5-76, 32-5-93, 32-5-97, 32-5-113, 32-5-152, 32-5-171, 32-5-190 through 32-5-192, 32-5-194, 32-5-210 through 32-5-253, 32-5-310, 32-5-312, 32-5-313 and 32-5-316, but nothing contained in this sentence shall be construed as implying that any law not specifically listed herein is or is not repealed or superseded by this chapter.” (Emphasis supplied).

The language contained in the above quoted statute is plain and unambiguous and its meaning is obvious. We must give effect to the legislature’s manifestation of its intent as there is no room for construction. State v. Dawson, 264 Ala. 647, 89 So.2d 103 (Ala.1956). It is clear to this court that the legislature did not intend to repeal § 32-5-171.

Moreover, on March 1, 1983, the legislature substituted “§ 32-5A-191” for “§ 32-5-170” in § 32-5-171. This act further clarifies the legislature’s intention that § 32-5-171 was not repealed by § 32-5-170.

The facts of this case indicate Officer Patterson had reasonable grounds to believe the appellant had violated § 32-5A-191 even if he had not personally observed the violation of the statute.

However, Officer Patterson did see the violation of § 32-5A-191 by the appellant. Section 15-10-3(1), Code of Alabama provides that:

“An officer may arrest any person without a warrant, on any day and at any time, for:
“Any public offense committed or a breach of the peace threatened in his presence.”

Officer Patterson testified he saw the appellant back his own vehicle into the ditch. He was present during the actual operation of the vehicle by this appellant, and therefore, this offense was at least partly committed in his presence.

We hold the appellant’s arrest was proper under § 32-5-171 and § 15-10-3(1) and, therefore, the trial judge correctly refused to quash this arrest warrant. The evidence gathered at the scene of the accident was properly allowed into evidence as part of the res gestae.

II

The appellant asserts that Officer Patterson lacked probable cause to effectuate his arrest because the State failed to show that Officer Patterson saw the appellant in actual, physical control of his own vehicle, and that he was intoxicated while in control of this vehicle. This contention is without merit.

First, Officer Patterson testified he saw the appellant back his own vehicle into a ditch. Certainly, this was sufficient to prove that the appellant was in actual, physical control of his vehicle.

Secondly, Officer Patterson’s belief that the appellant was intoxicated arose from the actions of the appellant immediately following his backing the vehicle into the ditch. Patterson stated the appellant fell out of his vehicle, was unable to walk or stand without assistance, spoke with slurred speech, smelled of alcohol, had a combative attitude, and failed several field tests.

These facts certainly gave Officer Patterson reasonable cause to believe this appellant was driving while intoxicated. The appellant’s warrantless arrest was justified because Officer Patterson was present during the actual operation of the vehicle even though he did not ascertain that this appellant was intoxicated until he had gotten out of his vehicle.

III

The appellant challenges the constitutionality of § 32-5A-191(a)(2), Code of Alabama 1975 because the words “under the influence” are too vague to establish a standard of guilt. The appellant alleges in his brief that it is only “illegal to drink to a point that it affects one’s ability to drive safely.” We agree with this general statement, and believe it precisely describes the conduct which this statute prohibits.

When a person is under the influence of alcohol, his ability to drive is impaired and he is incapable of driving safely. The person’s degree of intoxication is irrelevant. If a person is intoxicated to any degree, his driving capacity is diminished and he is a danger to others who may travel over the public highways. Evans v. State, 389 So.2d 567 (Ala.Crim.App.1980).

Therefore, we find the language of the statute clearly sets out the standard of guilt. A person is guilty of violating § 32-5A-191(a)(2) if he drives a vehicle under the influence of alcohol, regardless of the degree of that influence.

This statute is not vague because the legislature plainly stated in the statute which conduct is prohibited. We hold that § 32-5A-191(a)(2) is therefore constitutional and is not void for vagueness.

IY

The appellant objects to the admission into evidence of his refusal to take the GCI test for several reasons.

First, he contends he was physically incapable of taking the test. We believe this to be a matter of opinion. The fact of the appellant’s physical ability or inability to take the test goes to the weight of the evidence of his refusal to take the test, not the admissibility of such evidence per se. See Hill v. State, 366 So.2d 296 (Ala.Crim.App.1978), affirmed, 366 So.2d 318 (Ala.1979).

Secondly, the 'appellant believes he has a right to be informed that he has a choice of which test he wishes to take, that he may have his personal physician administer the test, and that he has the right to be given the Miranda warnings before deciding whether or not to take the test. There is no legal authority in this state which gives the appellant these rights as he now claims to possess. Hill v. State, 366 So.2d 318 (Ala.1979), Parker v. State, 397 So.2d 199 (Ala.Crim.App.), cert. denied, 397 So.2d 203 (Ala.1981).

Thirdly, the appellant claims the trial judge improperly excluded the evidence that his license was not revoked, even though he refused to take the GCI test. The decision as to whether this evidence should have been excluded is within the trial judge’s sound discretion. Obviously, he determined this fact was not relevant and decided against its admissibility into evidence. Absent a gross abuse of discretion, which is not present here, this court will not reverse a decision by the trial judge which was left to his discretion.

Fourthly, the appellant asserts that the admission into evidence of his refusal to take the GCI test violated his right against self-incrimination. This issue has been decided adversely to the appellant. Hill v. State, supra; South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

Lastly, the appellant challenges the constitutionality of § 32-5A-191(a)(l), Code of Alabama 1975 concerning the .10 standard. We do not need to consider this matter on appeal because there was no evidence that the appellant had violated § 32-5A-191(a)(l). Furthermore, the appellant failed to raise this issue during the trial below. Andersen v. State, 418 So.2d 967 (Ala.Crim.App.1982).

Section 32-5-192(a), Code of Alabama 1975 provides that:

“Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor.”

By virtue of implied consent, a person’s refusal to submit to a chemical test for intoxication is admissible into evidence. Hill v. State, supra. Therefore, the trial judge properly admitted into evidence the appellant’s refusal to take the GCI test.

V

The appellant alleges that some of his written requested jury instructions were improperly refused.

We have carefully reviewed the appellant’s refused charges and find each was properly refused because either they were substantially and fairly covered by the court’s oral charge, or other given charges, or such were incorrect statements of the applicable law or were abstract or argumentative and hence invasive of the province of the jury. Ala.Code § 12-16-13 (1975); Trahan v. State, 450 So.2d 1102 (Ala.Crim.App.1984); Prince v. State, 50 Ala.App. 368, 279 So.2d 539, cert. denied, 291 Ala. 796, 279 So.2d 549 (1973).

VI

Lastly, the appellant challenges the sufficiency of the evidence presented at this trial. The testimony of Officer Patterson at trial was certainly sufficient to allow the jury to conclude, by fair inference, that this appellant was driving while under the influence of alcohol. The presentation of evidence as to the appellant’s having a concussion did not eradicate Officer Patterson’s testimony as to matters which occurred at the scene. Whether the appellant was suffering from a concussion or was intoxicated was a question for the trial jury to determine, which they properly decided. Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.) cert. denied, 368 So.2d 877 (Ala.1979).

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Billy TALLEY v. STATE.
    5 Div. 838.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    Rehearing Denied June 12, 1984.
    Certiorari Denied July 27, 1984 Alabama Supreme Court 83-1078.

      Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Billy Talley, the appellant, was indicted and convicted for second degree theft. He was sentenced to fifteen years’ imprisonment as an habitual offender. Two issues are raised on appeal.

I

We find no violation of Talley’s constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

On the afternoon of May 21, 1983, Auburn Police Officer Jerry Holder received a dispatch from the Opelika Police Department pertaining to an alleged theft at Howard Brothers in Opelika. The dispatch described a green “older model Oldsmobile Cutlass” with a license tag from Montgomery County, gave the tag number, stated that the car was occupied by two black males, and that they were suspects in the theft of property from Howard Brothers.

Officer Holder stopped an automobile matching this description and asked Talley, who was driving, for identification. Holder asked Talley “where he had just come from” and he said, “shopping in Opelika.” Holder testified that he then asked Talley “exactly which store in Opelika that he had been shopping at” and Talley responded “Howard Brothers”. Although Officer Holder knew that “that’s where the theft had apparently occurred”, he did not ask Talley what he had been involved in. At a hearing outside the jury’s presence, the officer testified:

“A. I didn’t ask him what he had been involved in. I told him that I didn’t even know what had happened but I just wanted to know where he left from. And whenever he specified, ‘Howard Brothers’, I told him that apparently something had happened at Howard Brothers and that they were looking for his car and two black males and that they wanted to talk to them about it. “Q. What did he say?
“A. At that time, he told me that they didn’t — ‘We didn’t do anything.’ He said, ‘A lady with a lawnmower approached us and wanted a ride and we wouldn’t give her a ride and we hadn’t done anything wrong’, and that’s whenever I said, like I said, ‘I don’t know why they want to talk to you, but they want to talk to you about something. And I don’t know what it is and would you mind going up and talking to them?’ “And he said, ‘No, we don’t mind going back.’ So I followed them back.”

Officer Holder stated that he “would have tried to stop them again if they had left.”

There was no pretrial motion to suppress. At trial, before objection was made and a voluntariness hearing held, Officer Holder testified that Talley told him he had been shopping at Howard Brothers.

“The first thing I did was ask them if I could see some identification. Like I said, I just talked to the driver. The driver gave me his driver’s license and I asked him where he had just come from and he said, ‘Shopping in Opelika.’
“And I asked him just exactly where he had come from, which store he had left and he told me that he had just left Howard Brothers. At that time, I explained to him that the Opelika Police Department had given me a description of his car and his tag number; and I told him that I didn’t know what it was in reference to, but that they wanted to talk to him and asked him if he would mind going back to Howard Brothers and talking to those Opelika Police Officers, and he ,said he didn’t mind.
“So, at the time he just got back in his car and I followed them back to Howard Brothers.”

This testimony was admitted without objection. Only later did defense counsel “object to any statements before the proper predicate has” been laid.

At the suppression hearing, the trial judge noted that Holder’s testimony that Talley told him that he had been shopping at Howard Brothers had “already been admitted without objection.” The trial judge told defense counsel he would exclude it, “if you want me to”, but counsel replied that he did not “have any problems with that necessarily” and that he did not “have any objections to that particular statement.”

After the judge ruled admissible a portion of Talley’s statement to Officer Holder, defense counsel “changed his mind, and ... objected) to the statement of ‘Howard Brothers’, also.” The trial judge sustained this objection and asked defense counsel, “Do you want me to instruct the jury not to consider it?” After consulting with his colleague, defense counsel specifically requested the trial judge not to give the jury such instructions.

The trial judge held that Officer Holder “may testify as to what the defendant, Talley, said not pursuant to questions.”

“I think the finger of suspicion had pointed at the defendants at that point and, as such, they were entitled to the Miranda warnings before questions. But they are entitled to volunteer whatever information they want to make without Miranda warnings, and I so find.”
Before the jury, Officer Holder testified: “I told him that the Opelika Police had given us information that a ear having the description that he was driving had been involved in apparently some type theft, I didn’t know exactly what, from Howard Brothers; and then, at that time no questions were asked.
“Mr. Talley advised that he did not do anything wrong. He said that a lady with a lawnmower ‘approached me and wanted a ride and we would not give her a ride, but we did not do anything wrong.’
“And that’s what he said.”

Since the trial judge ruled inadmissible Talley’s response that he had been shopping at Howard Brothers, we need not determine whether this situation constituted general investigatory police work rather than “custodial interrogation” within the rule of Miranda requiring that a suspect be informed of his federal constitutional rights before questioning. Annot., 31 A.L. R.3d 565, § 9 (1970). See People v. Dunn, 31 Ill.App.3d 854, 334 N.E.2d 866, 871-72 (1975), cert. denied, 426 U.S. 950, 96 S.Ct. 3171, 49 L.Ed.2d 1187 (1976), where the court held, in a remarkably similar factual situation, that “[t]he questions asked were of a general investigatory nature and could not be characterized as a process of investigation which lent itself to eliciting incriminating statements.”

Officer Holder’s statement to Talley that the Opelika police wanted to question him and his companion about a theft was met with Talley’s response that they had not done anything. The question or statement did not constitute “interrogation” as defined in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), because the officer’s words and actions were not “reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 300-01,100 S.Ct. at 1689. See also United States v. Grady, 665 F.2d 831, 833-34 (8th Cir.1981).

We agree with the trial judge that Talley’s remark “We didn’t do anything” was a spontaneous statement volunteered by the accused and was therefore admissible despite the absence of the Miranda warnings. Miranda 384 U.S. at 478, 86 S.Ct. at 1629; United States v. Harrison, 667 F.2d 1158, 1161 (4th Cir.), cert. denied, 457 U.S. 1121, 102 S.Ct. 2937, 73 L.Ed.2d 1335 (1982) (suspect’s spontaneously volunteered remark, “You got me”, made after government agent told him he was suspected of carrying narcotics held admissible). Here, Talley’s response was “so far removed from the subject of the question asked by the police [that] it is clear that the police did not intend to elicit the remark.” 2 W. Ringel, Searches & Seizures, Arrests and Confessions 27-26 (2nd ed. 1983). “Spontaneous or volunteered statements fall outside the mandate of Miranda.” Terry v. State, 397 So.2d 217, 221 (Ala.Cr.App.), cert. denied, Ex parte Terry, 397 So.2d 223 (Ala.1981); Hammons v. State, 371 So.2d 986, 988 (Ala.Cr.App.1979) (defendant’s spontaneous statement upon being advised that he was under arrest for burglary and rape, “I didn’t rape her” was admissible even though no Miranda warnings had been given).

II

We have reviewed Talley’s contention that the evidence is insufficient to support his conviction and find it to be without merit. Additionally, there was neither a motion for a judgment of acquittal, motion for a new trial, nor any motion or objection raising this issue in the trial court.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Charles Austin GRATTON, Jr. v. STATE.
    6 Div. 744.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    Rehearing Denied June 12, 1984.
    Certiorari Denied Aug. 24, 1984. Alabama Supreme Court 83-1051.

      Orson L. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was convicted of first degree burglary, Alabama Code § 13A-7-5(a)(1) (1975), and sentenced as an habitual offender to life imprisonment without parole.

I

The State’s case was based primarily upon circumstantial evidence with the central issue being that of identification. The victim could not positively identify the defendant, but the discovery of his fingerprints on the sill of the window determined to be the point of entry into the victim’s residence, when weighed with the remainder of the State’s evidence, was sufficient for the jury to have reasonably found that the State’s evidence excluded every reasonable hypothesis except that of the defendant’s guilt. Dolvin v. State, 391 So.2d 133 (Ala.1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979). The identity of the accused may be established by the discovery of his fingerprints at the scene. See James v. State, 381 So.2d 672 (Ala.Cr.App.1980); Cox v. State, 373 So.2d 342 (Ala.Cr.App.1979); Cummings v. State, 356 So.2d 779 (Ala.Cr.App.1978).

We find no error in the denial of the defendant’s motion to exclude.

II

The character of the defendant’s mother, called by him as a witness, was not impeached by the State’s cross examination so as to warrant admission of testimony from another witness establishing her good character. A thorough review of the State’s cross examination reveals not the slightest hint of a character “assassination”. Mrs. Gratton, by her relationship to the defendant, was a biased witness and naturally partial to her son. The State’s cross examination merely emphasized and stressed this bias.

“A witness’ good character is not provable to support his credibility unless he has been impeached in a way which authorizes proof of such character. This rule is applicable whether the witness is or is not a party to the action.” “Impeachment of a witness by proof of his bias, not associated with any corrupt conduct by him in the case in hand, does not authorize proof of his good character in support of his credibility.” C. Gamble, McElroy’s Alabama Evidence § 176.-01(2), (6) (3rd ed.1977) (footnotes omitted).

See generally McPhearson v. State, 271 Ala. 533, 125 So.2d 709 (1960); Funderberg v. State, 100 Ala. 36, 14 So. 877 (1894); Clark v. State, 56 Ala.App. 67, 318 So.2d 813 (1974), cert. quashed, 294 Ala. 493, 318 So.2d 822, cert. denied, 423 U.S. 937, 96 S.Ct. 298, 46 L.Ed.2d 270 (1975).

“It is the clear right of the cross-examining party to elicit facts which weaken or qualify the case of the party examining in chief, or support the case of the cross-examining party. One of its chief functions [cross examination] is to test the credibility of the deposing witness.” Madden v. State, 40 Ala.App. 271, 112 So.2d 796, cert. denied, 269 Ala. 697, 112 So.2d 800 (1959). Consequently, we find no error in the trial court’s ruling.

Ill

The defendant raises several issues concerning his having been sentenced as an habitual offender.

A

Written notice given to the defendant two days prior to his sentencing that the State intended to invoke the provisions of the habitual felony offender statute was reasonable in form and time under A.R. Crim.P.Temp. 6(b)(3)(ii). Hollander v. State, 418 So.2d 970 (Ala.Cr.App.1982); Holsclaw v. State, 406 So.2d 1019 (Ala.Cr.App.), cert. denied, Ex parte Holsclaw, 406 So.2d 1020 (Ala.1981); Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, Ex parte Holley, 397 So.2d 217 (Ala.1981).

B

The law is well settled on the issue of ex post facto application of the habitual felony offender statute. Numerous cases from this Court have consistently held that it is not. See e.g., Chambers v. State, 418 So.2d 948 (Ala.Cr.App.1982); Dozier v. State, 415 So.2d 3 (Ala.Cr.App.1982). It is equally as settled that convictions occurring prior to the effective date of the habitual felony offender statute may be used for enhanced punishment purposes. Lidge v. State, 419 So.2d 610 (Ala.Cr.App.), cert. denied, 419 So.2d 616 (Ala.1982).

C

The defendant’s contentions concerning the application of § 15-18-9, Code of Alabama 1975 and Tit. 15, § 331, Code of Alabama 1940 (recompiled 1958), recodified in § 15-18-24, Code of Alabama 1975 (repealed 1977 Ala. Acts 812, No. 607 § 9901 (January 1, 1980), have been answered to his detriment in Turner v. State, 429 So.2d 645 (Ala.Cr.App.1982).

D

The trial court had no discretion in setting the defendant’s sentence. The State properly proved six prior felony convictions with the defendant, at the sentencing hearing, admitting to four of them. The instant offense is a Class A felony. Ala.Code § 13A-7-5(b) (1975). The trial court, pursuant to § 13A-5-9(c)(3) had no discretion or alternative but to set the defendant’s sentence at life imprisonment without parole. Consequently, there was no need to delay the sentencing past the time set by the trial court. George v. State, 423 So.2d 335 (Ala.Cr.App.1982).

We have reviewed the remaining issues raised by the defendant in brief and find them to be without merit. This cause is hereby affirmed.

AFFIRMED.

All Judges concur.