text:
    Billie ALLEN v. STATE.
    1 Div. 844.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.
    Rehearing Denied Dec. 11, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-303.

      M.A. Marsal and George L. Simons, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Billie Allen was convicted of the murder of Charles Darren Andrews and sentenced to twelve years in the penitentiary. He raises three questions on appeal.

I

First, Allen argues that the State’s evidence was insufficient to convict him of murder because it was his brother-in-law, Albert Stringer, who shot the deceased, and there was no evidence proving that Allen conspired with Stringer to kill Andrews.

The State’s evidence established that, several months prior to the fatal shooting, Andrews (the murder victim) had beaten Allen severely in a barroom brawl. Allen later stated that he would “get even” with Andrews, saying “pay-back’s gonna be hell”, and bragging that he could tell his brother-in-law Stringer to “blow [someone’s] brains out and he’d do it.” Furthermore, the State presented evidence that, on the night of the shooting, Allen, Stringer and Ricky McPherson went out looking for Andrews and on that occasion Allen told McPherson to put a gun in his boot.

The three men went to four different bars in search of Andrews and eventually ended up at the Pink Panther Club in Eight Mile, Alabama, at 1:30 A.M. There a fight erupted between Andrews and Allen, and when it appeared that Andrews was getting the better of Allen, Allen called out to Stringer to “shoot”. Stringer testified that he pulled a gun and told Andrews to stop beating Allen, Andrews broke off the fight with Allen, and Andrews began advancing on Stringer. Stringer said he warned Andrews three times to stop before he finally shot and killed Andrews. Other eyewitnesses testified, however, that Stringer shot Andrews when Allen told him to “shoot”.

Allen claims that Stringer’s firing was an independent act done in self-defense and, even assuming a conspiracy existed between the two men to kill Andrews if necessary to protect Allen, all hostilities between Allen and Andrews had ceased by the time Stringer shot Andrews. Thus, Allen insists the supposed conspiracy had ended and he was not responsible for Stringer’s act done apart from the conspiracy.

Allen cites Hollingsworth v. State, 366 So.2d 326 (Ala.Cr.App.1978), cert. denied, 366 So.2d 333 (Ala.1979), and Howell v. State, 339 So.2d 138 (Ala.Cr.App.1976), for the proposition that an accomplice is criminally responsible only for those acts committed as a result of the conspiracy, but is not liable for the independent acts of a co-conspirator separate and apart from the conspiracy.

Initially, we note that the evidence of when Stringer shot Andrews was in dispute. Some eyewitnesses said the shot followed immediately upon Allen’s command to Stringer to “shoot”, while Stringer claimed to have given Andrews three warnings before firing in self-defense. When we view the evidence in the light most favorable to the State, as we are required to do, see Snider v. State, 406 So.2d 1008, 1012 (Ala.Cr.App.), cert. denied, 406 So.2d 1015 (Ala.1981), the State’s case was more than sufficient to prove that Allen and Stringer set out to find and kill Andrews on the night in question, and that Andrews was in fact shot by Stringer following Allen’s instruction.

Moreover, even if we accept the defendant’s theory of the case, that Stringer shot Andrews not to protect Allen but to protect himself, we do not believe that Hollings-worth and Howell support defendant’s contention that he is not liable for Stringer’s conduct.

The accomplice is criminally responsible for acts which are the direct, proximate, natural result of the conspiracy or are a foreseeable consequence of the conspiracy.

“Every person engaging in a joint enterprise is not automatically and equally guilty of a crime committed independently by another participant in the venture. A conspiracy necessary to fix guilt on all participants must be one in which all have a meeting of the minds (though only for an instant) to commit the crime charged. A different crime independently committed and not a foreseeable consequence of the conspiracy can hardly be charged to one who neither participated in its commission, nor aided therein, although all originally started out on some other illegal venture.” Howell, 339 So.2d at 139 (emphasis added).

See also Hollingsworth, 366 So.2d at 332-33.

The facts that the defendant wanted to get even with Andrews, boasted that he could get Stringer to kill for him, went looking for Andrews, and told a companion to conceal a weapon the very night of the shooting make it entirely plausible that the killing of Andrews by Stringer was a “foreseeable consequence” of a plan to shoot Andrews in defense of Allen.

Finally, while the trial court gave a comprehensive charge on self-defense, the jury simply did not accept that testimony, and, upon review, we find abundant evidence to warrant their verdict. “Even though there was evidence to show self-defense, the jury was justified in concluding that some of the elements of self-defense were lacking.” Burnett v. State, 380 So.2d 1021, 1022 (Ala.Cr.App.1980). Not only was the victim unarmed when he was shot, but Stringer could have retreated to a place of safety before resorting to deadly force.

II

Allen contends that the trial court erred in refusing the following written requested charge:

“The Court charges the jury that the burden of proof is not on the Defendant to establish self-defense by a preponderance of the evidence; but if all the evidence raises in the minds of the jury a reasonable doubt as to whether or not the Defendant acted in self-defense, you must find him not guilty.”

There was no error in the refusal of the charge. The matter was “substantially and fairly given to the jury in the court’s general charge or in charges given at the request of parties”, Alabama Code § 12-16-13 (1975), as follows:

“There is also a defense in this case of self-defense. Now I’ll say this to you before I tell you what self-defense is and what it means under the laws of our State. Self-defense or the burden does not shift to the Defendant by reason of this defense. The burden is and always remains with the State to prove the guilt of the Defendant beyond a reasonable doubt. And self-defense is a complete defense. If you find that the Defendant, or in this case Stringer who actually pulled the trigger, acted in self-defense either in defense of himself or in defense of another person it would be a complete defense to either murder or manslaughter and your verdict would be not guilty.”
“The Court charges the jury that the Defendant is never required to prove his innocence and the burden stays with the prosecution to prove his guilt beyond all reasonable doubt.
“The Court charges the jury that at no time during the trial is the Defendant called upon to produce any evidence as to his innocence and that the State has the continuous burden of proving that he is guilty beyond all reasonable doubt.”

Ill

Allen claims that his motion for mistrial should have been granted after the following remarks in closing argument by the State:

“MR. COPELAND [Assistant District Attorney]: You’ve heard the expression that anything less than a hundred percent justice is injustice. Another saying is that we ask you that to have justice it’s got to be a full cup of justice. Well right now we’ve only got half a cup: Albert Stringer convicted of murder. And that jury back then didn’t buy that garbage about stop three times self-defense either and neither do you.
“MR. MARSAL [Defense Counsel]: Wait just a minute. Wait. I want to object to that. It’s highly improper.
“THE COURT: I think so. Ladies and gentlemen, you’re not to concern yourselves with what happened in the other trial. They were different issues and that’s not what you’re here to decide. Go ahead, Mr. Copeland.
“MR. COPELAND: You all can write the last chapter on the Billie Allen/Albert Stringer murder adventure that night. And you can give us a full cup of justice because I submit to you it’s not only injustice, it’s throwing the other half of the cup of justice on the floor if you let the trigger man go and the architect of it walk. It’s just that simple.
“I ask you on behalf of your State and County to do your job, to return a verdict that speaks justice, a full cup of justice in this case, and I have every confidence that you will do so. Thank you very much.
“MR. MARSAL: I have a motion to make outside the presence of the jury.
“THE COURT: Just step up here then.
“(Out of the hearing of the jury but on the record, the following occurred at the bench:)
“MR. MARSAL: I move for a mistrial on the grounds of the impropriety of the Prosecutor’s argument. First I made an objection when he commented about the jury having found Stringer guilty and that this man should not go free. The Court admonished him. And then he came back and said the same thing only using different words that the trigger man can go and then the architect of the crime go free. I submit to the Court it’s improper and there’s no instruction to the jury that the Court could give that would cure it.
“THE COURT: Motion denied.
“MR. MARSAL: We except.”

While the prosecutor’s statement, “And that jury [in Stringer’s trial] back then didn’t buy that garbage about stop three times self-defense either and neither do you”, was improper, its prejudicial effect was cured by the trial court’s prompt instruction to the jury to disregard it. “Where the trial court immediately charges the jury to disregard the prosecutor’s improper remarks, there is a prima facie presumption against error.” Nix v. State, 370 So.2d 1115, 1117 (Ala.Cr.App.), cert. denied, 370 So.2d 1119 (Ala.1979).

Allen concedes that the trial court’s curative charge removed the prejudicial effect of the State’s first remark, but argues that the comments made by the prosecutor after the judge’s instructions were equally prejudicial and were ineradicable. In our judgment, the State’s succeeding comments were within the range of permissible argument because they did not contain the suggestion that the Allen jury should disbelieve the self-defense evidence just because the Stringer jury had been unconvinced by the testimony. The prosecutor’s later remarks merely pointed out Stringer’s guilt and urged the jury to find Allen guilty as his partner in crime. We find no impropriety in the State’s exhortation not to “let ... the architect of [the murder] walk.” This comment was nothing more than an appeal for law enforcement, see Fletcher v. State, 52 Ala.App. 303, 307, 291 So.2d 757, 760 (1973). The prosecutor’s reference to “a full cup of justice”, while an obvious allusion to Stringer’s conviction, was not improper because Stringer’s conviction for murder was a matter of evidence in the defendant’s trial. Although it is usually impermissible for the State to refer to the conviction of-a co-defendant for the same crime, see Stokes v. State, 462 So.2d 964 (Ala.Cr.App.1984), the impropriety results from the attempt to argue a fact not in evidence, see Annot., 48 A.L.R.2d 1016, 1018 (1956). Where, as here, the fact of the co-defendant’s conviction is admitted at defendant’s trial, it is a proper subject for comment by the prosecutor in closing argument.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Ricky HOLMAN v. STATE.
    5 Div. 894.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.
    Rehearing Denied Jan. 8, 1985.

      Richard D. Lane, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen. and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment denying this appellant’s petition for writ of error coram nobis. The petition was pro se and was executed and verified by petitioner on December 15, 1983, while confined in an Alabama correctional facility in Jefferson County. It was filed before the end of 1983 in the office of the Clerk of the Circuit Court of Lee County. In accordance with a request of the petitioner, the court appointed qualified counsel to represent him and the petition came on for hearing in said court on April 13,1984, with petitioner and his appointed attorney present.

The gravamen of the petition was to the effect that the guilty plea upon which this appellant was convicted of rape in 1979 in the Circuit Court of Lee County was not voluntarily, intelligently and understandingly interposed by him and for that reason the judgment of conviction and sentence thereon was invalid and should be vacated. The circuit judge who conducted the hearing on the petition was the same judge who had rendered the judgment of conviction in the rape case and had sentenced this appellant to imprisonment, which sentence he continues to serve.

The transcript before us contains a transcript of the hearing in October 1979 showing the defendant’s withdrawal of his previous pleas of not guilty and not guilty by reason of insanity to the charge of rape and sets forth the colloquy among the trial judge, the defendant, and the defendant’s attorney, which presumptively shows that his plea of guilty was voluntarily, intelligently, and understanding^ entered and that all requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were met, and there is no contention to the contrary.

The crucial issue on the hearing of the coram nobis petition was as to whether defendant’s trial counsel in the rape case properly informed petitioner of his rights and fully apprised him of the innocuous status of his prior juvenile court record and his purported confession of the alleged rape. There is no dispute between the parties as to the proposition that as this appellant was a juvenile at the time of the claimed confession, the confession could not have been used against him on the trial of the rape case and further that his unfavorable record as a juvenile offender could not be used against him in enhancement of his punishment in the event of his conviction of the alleged rape. Petitioner’s testimony on the coram nobis hearing was definitely and strongly to the effect that he was not advised by his then-attorney of such provisions of law beneficial to petitioner while he was a defendant in the rape ease and that the failure of his attorney to so advise him was a factor in his decision to plead guilty. His trial attorney was not as certain in his recollection as to the particular points. His testimony on the coram nobis hearing was in pertinent part as follows:

“Q. Okay. Did you discuss with the defendant, Ricky Holman, you know, his prior record and what the effect of that could be in Court, or anything along those lines? He’s raised some questions along that line.
“A. Mr. Holman told me he had a juvenile record, one for burglary one, one for burglary two, and one for assault with a weapon. Very frankly, I don’t recall what I may have said to Mr. Holman about that. But I do have that in my notes that he told me that.
“Q. In regards to the confession that he made, did you tell him that in your opinion, based on the law, that that confession — that he would have legal objections to that confession, based on the fact that he was a minor?
“A. I did. And I filed a motion to suppress with the court.”

Our review of the transcript of the evidence on the hearing of the coram nobis petition convinces us that the trial judge was in a better position than are we to determine the truth of the crucial factual issue in the proceeding and that the judgment of the trial court should be affirmed. We are convinced that the evidence presented by petitioner fails to meet the following standard:

“A petitioner in a coram nobis proceeding has the duty to establish his right to relief by ‘clear, full and satisfactory proof.’ Vincent v. State, 284 Ala. 242, 224 So.2d 601 (1969). The degree of persuasion — clear, full and satisfactory — entails more than that enunciated in the scintilla rule. ‘Clear’ is highly exacting as to proof of facts and always means more than ‘reasonably satisfying.’ Burden v. State, 52 Ala.App. 348, 292 So.2d 463 (1974).” Lewis v. State, Ala.Cr.App., 367 So.2d 542, 545 (1979).

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

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Cornis Steven VINZANT v. STATE.
    6 Div. 227.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.
    Rehearing Denied Dec. 11, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-328.

      Richard E. Sandefer, Pinson, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellant was indicted for possession of burglary tools, in violation of § 13A-7-8 Code of Alabama 1975. The case was tried in Jefferson Circuit Court, and a jury returned a verdict finding appellant guilty. Appellant was sentenced to a term of four years’ imprisonment.

On July 4, 1982, shortly after midnight, Officer Gregory Lee of the Gardendale Police Department received a call about a suspicious vehicle being at a car wash on the Decatur Highway, in Gardendale, Alabama. Officer Lee parked three hundred feet away and observed the car wash with “cat eye” binoculars, which enhance nighttime vision. The car wash was well-lit with large high-intensity lights at the- rear and an incandescent light in each stall.

Officer Lee observed a person identified as appellant in front of the coin operated vacuum machine with a car parked nearby. Appellant had some shiny objects in his hand and his companion was at another coin-operated machine. Both appeared to be tampering with the coin boxes on the machines. Appellant was observed inserting some object into the coin box on the machine.

After observing the scene from a distance, Officer Lee drove into the car wash and got a close look at appellant’s and his companion’s faces. Officer Lee noticed that he did not hear any sounds coming from the vacuum machine as he drove by. After passing through the car wash, Officer Lee drove down the road, then parked near a furniture store so he could continue to observe the activity at the car wash. The vehicle that was near the vacuum machine had been pulled into a car wash stall. About thirty minutes later, the vehicle left the car wash. Officer Lee pulled behind the vehicle and stopped it.

Appellant was taken from the car, placed under arrest and then placed in another patrol car that had arrived to assist at the scene. The other officer, Sergeant Hamilton, searched appellant and removed a key ring with several keys. One master key had been filed down so that there was a point on each end. There was also a circular lock key, which had been filed down. Two more filed-down keys were on the ring. Appellant also had two blank keys which were sanded and filed down on both ends. A handmade device to remove lock cylinders was found under the front passenger seat, where appellant had been sitting in the vehicle.

At trial, Gary K. Jones, of the Bureau of Alcohol, Tobacco and Firearms, was called as an expert in loeksmithing. He testified that certain items taken from appellant appeared to be devices for picking locks, manufacturing keys, and removing locks. These type tools can only be obtained by law enforcement officers or certified locksmiths and those items possessed by appellant appeared to be homemade.

Appellant first raises nine issues, but fails to argue or state any supporting legal authority. Appellant makes no contentions with regard to these nine issues and merely lists the issues and states “raised, not argued.”

According to A.R.A.P. 45B, this court is not obligated to consider questions or issues not presented in briefs on appeal. The appellant’s brief, according to A.R.A.P. 28(a)(3), shall contain a statement of issues presented for review with principal authorities of law supporting each issue presented. Furthermore, A.R.A.P. 28(a)(5) requires that the argument presented in a brief shall contain contentions of appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied upon.

The logic behind these rules is consistent with prior decisions relating to failure of appellant to meet the requirements established by the Alabama Supreme Court for briefs on appeal. Arguments not based on any legal authority have the same effect as if no argument had been made, and the argument will be deemed waived. Jones v. City of Decatur, 53 Ala.App. 470, 301 So.2d 235 (Ala.Cr.App.1974); Terry v. City of Decatur, 49 Ala.App. 652, 275 So.2d 167 (Ala.Cr.App.1973); Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973). The logic and procedural considerations of the decisions of this court prior to the enactment of the Alabama Rules of Appellate Procedure are embodied within the foregoing enumerated rules.

The Alabama Court of Civil Appeals has ruled that under the Alabama Rules of Appellate Procedure no matters will be considered on appeal unless presented and argued in brief. Mullins v. Mullins, 416 So.2d 1063 (Ala.Civ.App.1982). Where no argument was contained in an appellate brief, the issues raised on appeal were waived. Brewer v. Bradley, 431 So.2d 544 (Ala.Civ.App.1983).

In the case at bar, there was nothing more than a list of issues presented, without any argument or legal authority. In this instance the nine issues are deemed waived.

The final three issues raised by appellant are in fact argued in brief. The first allegation is that the trial court erred in failing to allow appellant to amend his motion for a new trial by attaching a copy of an affidavit of a juror. The second allegation is that the trial court erred by failing to grant appellant’s motion for the court to interview the jurors after their verdict was returned. Both of these contentions deal with an attempt to impeach the verdict of the jury, and as such we shall resolve the issues together.

Affidavits of jurors are incompetent when submitted for the purpose of impeaching the jury’s verdict. Storie v. State, 390 So.2d 1179, 1184 (Ala.Cr.App.), cert. denied, 390 So.2d 1184 (Ala.1980). The verdict of a jury may not be impeached by testimony or affidavits of jurors detailing what transpired among them during deliberations. Law v. State, 407 So.2d 572 (Ala.Cr.App.1981). A jury verdict cannot be impeached by affidavits, as public policy forbids disclosure of jury deliberations. Richardson v. State, 439 So.2d 756 (Ala.Cr.App.1983).

The affidavit in this case alleges that the verdict returned by the jury was not a true verdict, but one merely reached by a majority vote among the jurors. The record indicates that when the trial judge asked whether either side wished to have the jury polled, appellant’s counsel responded, “No, sir.” Appellant clearly declined to exercise his statutory right to poll the jury at the time the verdict was rendered. Ala.Code (1975), § 12-16-15. If the request to poll the jury is not made before the jury is discharged, this statutory right has expired. Clements v. State, 52 Ala.App. 294, 291 So.2d 748 (1973).

Appellant contends that the affidavit, which the trial judge would not allow to be included in the motion for a new trial, goes to show an irregularity in the proceedings and as such should have been allowed. A decision on a motion for a new trial rests largely within the sound discretion of the trial court, and in reviewing that decision this court will indulge every presumption in favor of the correctness thereof. Parks v. State, 333 So.2d 906, 911 (Ala.Cr.App.), cert. denied, 333 So.2d 912 (Ala.1976).

This court finds no irregularity in the trial court’s actions in not allowing the affidavit to be admitted or in refusing to interview the jurors after the verdict had been rendered.

Appellant’s final argument is that the trial court failed to exclude certain items seized as evidence. Specifically, appellant contends that the arrest of appellant was illegal because he was not informed of the cause of his arrest. Ala.Code (1975), § 15-10-4. Further, appellant alleges that this evidence was obtained as a result of an arrest made without probable cause.

A review of the record shows that appellant objected to each of the exhibits as being irrelevant and immaterial. Appellant made no mention of an illegal arrest or any lack of probable cause for the arrest during trial.

An issue raised for the first time on appeal is raised too late for review. Review by this court is limited to matters properly raised in the trial court. Dailey v. State, 374 So.2d 414 (Ala.Cr.App.1979); Law v. State, 342 So.2d 412 (Ala.Cr.App.), cert. denied, 342 So.2d 413 (Ala.1977); Harris v. State, 347 So.2d 1363 (Ala.Cr.App.), cert. denied, 347 So.2d 1368 (Ala.1977). A defendant is bound on appeal by the grounds stated at trial and specified grounds of an objection to evidence waives all other grounds. Snider v. State, 406 So.2d 1008,1014 (Ala.Cr.App.), cert. denied, 406 So.2d 1015 (Ala.1981). Based on the foregoing, this court finds no error in the trial court’s failure to exclude those items seized.

An examination of appellant’s contentions, and the record, reveals no errors prejudicial to appellant’s substantive rights. This cause is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Milton Dale FALKNER v. STATE.
    6 Div. 490.
    Court of Criminal Appeals of Alabama.
    Dec. 11, 1984.
    Rehearing Denied Jan. 22, 1985.

      Ronda H. Lacey, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

In 1981, Milton Dale Falkner was indicted and convicted for rape in the first degree. He was sentenced as a habitual offender to life imprisonment without parole. This appeal is from the denial of a petition for writ of error coram nobis.

I

On appeal, Falkner, through counsel, admits that there was no testimony or evidence to show that the State knowingly used false testimony. That ground of the petition was properly denied. Summers v. State, 366 So.2d 336, 342 (Ala.Cr.App.1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala.1979).

II

Falkner alleges that trial “counsel was ineffective for his failure to call certain witnesses that Appellant wanted to testify on his behalf.” These two witnesses had prior felony records and trial counsel had made a tactical decision not to call them to testify because they would not be “good” for his client’s case. Trial counsel testified at the coram nobis hearing that he thought these witnesses would be “harmful” and that Falkner agreed at that time with his decision.

On this appeal, Falkner contends that in a criminal case the rights of an accused include the right to call witnesses against the advice of counsel. Falkner argues that “an accused’s decision to call or not to call certain witnesses should outweigh that of trial counsel.” Appellant’s Brief, p. 8.

Although an “accused has the ultimate authority to make certain fundamental decisions regarding the case”, Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983), an accused does not have a constitutional right to direct matters of strategy. See generally W. LaFave and J. Israel, 2 Criminal Procedure § 11.6 (1984). Whether to call a certain witness is generally a matter of trial strategy.

“The decision not to call a particular witness is usually a tactical decision not constituting ineffective assistance of counsel. Goodman v. State, 387 So.2d 862 (Ala.Cr.App.), cert. denied, Ex parte Goodman, 387 So.2d 864 (Ala.1980). ‘Defense counsel’s failure to call certain witnesses is not sufficient grounds for a Sixth Amendment claim.’ United States v. Hughes, 635 F.2d 449, 453 (5th Cir.1981). ‘This Court will not second-guess tactical decisions of counsel in deciding whether to call certain witnesses.’ United States v. Long, 674 F.2d 848, 855 (11th Cir.1982).” Oliver v. State, 435 So.2d 207, 208-09 (Ala.Cr.App.1983).

Where appointed counsel refuses to accede to an accused’s desire to call certain witnesses, the accused has no automatic right to the appointment of another attorney. People v. Williams, 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008, 1015-16 (1970), cert. denied, Williams v. California, 401 U.S. 919, 91 S.Ct. 903, 27 L.Ed.2d 821 (1971). Here, there is no indication in the record that the defendant, upon learning that his appointed counsel was not going to call certain witnesses, made any motion to have that counsel dismissed and new counsel appointed. “The defendant cannot simultaneously assert his right to court appointed counsel and conduct his own defense.” State v. Pratts, 145 N.J.Super. 79, 366 A.2d 1327, 1333 (1975), affirmed, 71 N.J. 399, 365 A.2d 928 (1976). “This Court will not second-guess tactical decisions of counsel in deciding whether to call certain witnesses.” United States v. Long, 674 F.2d 848, 855 (11th Cir.1982).

“[I]f such decisions are to be made by the defendant, he is likely to do himself more harm than good, and ... a contrary rule would seriously impair the constitutional guaranty of the right to counsel.... One of the surest ways for counsel to lose a lawsuit is to permit his client to run the trial. We think that few competent counsel would accept retainers, or appointment ... to defend criminal cases, if they were to have to consult the defendant, and follow his views, on every issue of trial strategy that might, often as a matter of hindsight, involve some claim of constitutional right.” Nelson v. California, 346 F.2d 73, 81 (9th Cir.), cert. denied, 382 U.S. 964, 86 S.Ct. 452, 15 L.Ed.2d 367 (1965).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge. BOWEN, Presiding Judge,

text:
    Billy R. CREEL v. STATE of Alabama.
    7 Div. 322.
    Court of Criminal Appeals of Alabama.
    Dec. 11, 1984.
    As Corrected on Denial of Rehearing Jan. 22, 1985.

      Luther S. Gartrell, III, Ashville, for appellant.
    Charles A. Graddick, Atty. Gen., and M. Beth Slate, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Billy R. Creel filed a petition for writ of error coram nobis in the St. Clair Circuit Court. A hearing was held on the petition at which the petitioner was represented by counsel. Following the hearing the trial judge denied the petition and the petitioner now appeals from that decision to this court.

The petitioner was indicted for three counts of sodomy in the first degree (in violation of § 13A-6-63, Code of Alabama 1975) one count of sexual abuse in the first degree (in violation of § 13A-6-66, Code of Alabama 1975) and one count of rape in the first degree (in violation of § 13A-6-61, Code of Alabama 1975). Counsel was appointed for the petitioner and the petitioner pled not guilty and not guilty by reason of insanity to the charges in the indictment. A sanity hearing was held after appropriate petition was filed and the petitioner was sent to the Taylor Hardin Medical Facility for an evaluation. Following this evaluation, it was determined that the petitioner understood the nature and gravity of the charges against him and was competent to stand trial and to assist his attorney. It was also determined that the offenses allegedly committed by the petitioner were not the product of a mental disease or defect.

On the day the petitioner’s trial was to begin the petitioner asked to plead guilty after the jury had been empaneled. The petitioner then withdrew his not guilty pleas and then pled guilty to the three counts of sodomy and was sentenced to three concurrent 20 year sentences. The other two charges were dismissed by agreement.

I

The petitioner attacks the voluntariness of his guilty pleas based on the premise that a valid plea bargain agreement between himself and the State was not honored. The petitioner alleges that the plea bargain was that he would be sentenced under the former good time law instead of the good time law in effect at the time of his sentence (which would make him ineligible for parole for ten years) in exchange for his guilty plea.

We find no merit to this allegation. First of all, the petitioner’s trial counsel, the district attorney and the sheriff testified that no such plea bargain agreement existed in this case. Only the petitioner testified that this agreement existed. It seems that once the petitioner realized that the good time law had been changed to his detriment he sought to challenge the validity of his guilty pleas based on this fact.

Secondly, it is clear that the petitioner’s guilty pleas were made voluntarily, intelligently and understanding^. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

The petitioner’s mental evaluation found him to be competent to stand trial and concluded that he understood the nature of the charges against him. The petitioner was the one who decided to withdraw his not guilty pleas and to plead guilty, and it is clear from the record that he pled guilty fully aware of his rights and the consequences of his action and that his guilty plea was in full compliance with Boykin v. Alabama, supra. Roberson v. State, 441 So.2d 1067 (Ala.Crim.App.1983); Browning v. State [Ms. 8 Div. 143, November 27, 1984] (Ala.Crim.App.1984).

II

The petitioner contends the trial judge who accepted his guilty pleas should have recused himself because of a pre-con-ceived bias against the petitioner. In support of this allegation, the petitioner states that some months before he pled guilty, the trial judge granted a divorce between Creel and his wife and in the divorce decree, the trial judge stated “that the question of child support is reserved by this court pending the termination of the jail sentence of the Defendant, Billy Creel.” (R. 11-12). The petitioner claims that the trial judge’s statement indicates he believed the petitioner was guilty of the charges against him even though he had not been convicted or pled guilty to the charges at the time of the trial judge’s statement.

There is no further indication in the record of bias against this petitioner on the part of the trial judge. His statement in the divorce decree was inappropriate but was obviously unintentional. The trial judge meant that he would reserve a decision on the custody issue, pending the disposition of the charges against this petitioner, Creel.

Furthermore, it was the petitioner who decided to plead guilty and there is no evidence that the trial judge coerced or threatened Creel or showed any bias against the petitioner when he pled guilty in this cause. See Marsh v. State, 418 So.2d 191 (Ala.Crim.App.1982) and authorities therein cited.

This court will not reverse a trial judge’s decision refusing to recuse himself unless there is clear evidence of bias. Slinker v. State, 344 So.2d 1264 (Ala.Crim.App.1977). There was no such showing of bias here.

Ill

The petitioner alleges that he did not receive effective representation by his trial counsel due to a conflict of interest. These charges stem from the fact that the petitioner’s trial counsel, Honorable Ken Gilchrist, was representing the petitioner at the same time he was representing the complaint witness, Geneva Barker, on another matter. Mrs. Barker is the petitioner’s half-sister and the mother of two of the children the petitioner sodomized.

Gilchrist testified that the petitioner knew that he was also representing Mrs. Barker on another matter. The petitioner asked Gilchrist to use his influence to encourage Mrs. Barker to drop the charges against him. In fact, a meeting was held between the three parties to see if something could be worked out. Gilchrist stated that the petitioner never complained of this alleged conflict of interest even though he was fully aware of it.

It seems clear that the petitioner knew about this situation and believed it was to his advantage at the time of trial. He cannot now claim he was prejudiced thereby in order to seek or gain profit. Sullivan v. State, 394 So.2d 76 (Ala.Crim.App. 1981).

The petitioner has failed to meet this burden of proof that he received inadequate or ineffective counsel in a legal sense. Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Duncan v. State, 461 So.2d 906 (Ala.Crim.App.1984); Daniel v. State, [Ms. 83-731, August 31, 1984], (Ala.1984); Browning v. State, [Ms. 8 Div. 143, November 27,1984] (Ala.Crim.App.1984).

The petitioner has failed to allege that he was innocent of or had a valid defense to the crimes charged. Moreover, his failure is fatal to the granting of a petition for writ of error coram nobis. Mayola v. State, 344 So.2d 818 (Ala.Crim.App.), cert. denied, 344 So.2d 822 (Ala.1977).

Therefore, for the reasons shown, the petition for writ of error coram nobis was properly denied. This cause is hereby affirmed.

AFFIRMED.

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

BOWEN, Presiding Judge,

concurring in result only.

I concur in the result on the authority of Deerman v. State [Ms. 8 Div. 968, October 23,1984] (Ala.Cr.App.1984).


author: TYSON, Judge.

text:
    Samuel Louis BLACKMON, alias v. STATE.
    4 Div. 367.
    Court of Criminal Appeals of Alabama.
    Jan. 8, 1985.
    Barry Bledsoe of Conaway, Hall, Carter & Bledsoe, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Samuel Louis Blackmon was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment.” The appellant was sentenced to life imprisonment, as an habitual offender, by the trial judge.

I

The sole issue before this court concerns the sufficiency of the evidence. The facts of this case are not in dispute and will be stated briefly.

On February 1, 1984, at approximately 9:18 a.m., a black male, with a mask over his face and carrying a sawed off shotgun, entered the City National Bank in Dothan. He proceeded to a teller window and stated to the teller, Mary Ellen Lee, “Boom, boom. This is a stick-up. Everybody down on the floor.” (R. 8) Lee was then instructed to give the man the money out of her drawer and she complied. At some point, Lee pulled the “bait strap” in her drawer which automatically alerts the police and triggers the bank’s cameras.

The man then placed a cardboard box which was wrapped in black tape on her teller window. He told Lee that the box contained a bomb and it would go off if she touched it.

The man then left the bank and the police arrived shortly thereafter. Explosive experts from Fort Rucker were called to the scene and they detonated the box. No explosives were contained in the box.

The evidence is clear and undisputed that this appellant was not the man who actually committed the robbery. In fact, the trial judge instructed the jury that the appellant could be found guilty only if the evidence proved the appellant aided and abetted the person who actually committed the robbery.

The only piece of evidence which connects this appellant to the robbery is a sole fingerprint found on the cardboard box used by the robber.

The issue this court must resolve is whether the evidence of the appellant’s fingerprint on the cardboard box used in the robbery, is sufficient to prove, beyond a reasonable doubt, that the appellant aided and abetted the actual perpetrator of this robbery.

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied 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 guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).”

Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 879 (Ala.1979).

“Circumstantial evidence is sufficient to support a conviction only if the evidence is consistent with the hypothesis that the accused is guilty and inconsistent with any reasonable hypothesis that he or she is innocent. Thomas v. State, supra; Johnston v. State, 387 So.2d 891 (Ala.Cr.App.1980).”

Weathers v. State, 439 So.2d 1311, 1316 (Ala.Cr.App.), cert. denied, 439 So.2d 1311 (Ala.1983).

“In Thomas v. State, supra, Judge Bowen stated:
‘While a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the accused is guilty of the offense charged does not authorize a conviction. Smith v. State, 345 So.2d 325 (Ala.Cr.App.), cert. quashed, 345 So.2d 329 (Ala.1976); Colley v. State, 41 Ala.App. [273] 275, 128 So.2d 525 (1961).”

Weathers, supra at 1316.

As we have stated before, the sole connection between this appellant and the robbery is a fingerprint on the cardboard box left in the bank. It was established at trial that the entire box, including the portion on which the appellant’s fingerprint was found, was covered by tape. Therefore, it logically follows that the appellant’s fingerprint was on the box before it was wrapped with tape. The State did not offer any evidence of how and when the appellant’s fingerprint got on the box and did not show any relationship between the appellant and the robber. Clearly, the mere presence of the appellant’s fingerprint on the box does not necessarily lead to the conclusion that the appellant “aided and abetted” in this robbery. Cardboard boxes are very common and frequently handled by many persons, including shipping, for various purposes. It is certainly reasonable to assume that the cardboard box was innocently handled by the appellant some time before it came into the robber’s actual possession.

The appellant, in his brief, cites us to a similar case, United States v. Garside, 426 F.2d 939 (6th Cir.1970). In that case, the defendant was also charged with robbery. The only evidence connecting the defendant to the robbery was his fingerprints on a map found inside the getaway car. Incidentally, the location of the robbery was marked on this map. The court in Garside, supra, held that the defendant’s motion for verdict of acquittal should have been granted because "... the fingerprint proof against him in this case was not sufficient evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt.” Garside, supra, at 942.

We hold that the case at bar requires similar conclusion. Even when viewing the evidence in the light most favorable to the State, it appears likely that a reasonable mind would entertain some doubt as to this appellant’s guilt. It also appears to this court that the jury’s verdict in this cause was based on mere speculation and suspicion that the appellant committed this offense. There are numerous reasonable theories on which they could have found the appellant innocent.

Therefore, we hold that there was not sufficient evidence presented at trial, from which the jury could conclude, by fair inference that this appellant was guilty of this offense beyond a reasonable doubt.

The appellant’s motion to exclude the evidence should have been granted. The judgment of the trial court must be and is hereby reversed and rendered.

REVERSED AND RENDERED.

All the Judges concur, HARRIS, J., in result only.


author: PATTERSON, Judge.

text:
    Anthony G. COX v. STATE.
    7 Div. 314.
    Court of Criminal Appeals of Alabama.
    Jan. 8, 1985.

      Hubert H. Wright, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   PATTERSON, Judge.

This is an appeal from a judgment of conviction and sentence to life imprisonment without parole on a plea of guilty to an indictment that charged the capital offense of murder during the course of a robbery, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. The record reveals that the body of Naomi Keith was discovered in her home in East Gadsden, Alabama. She had been killed by multiple blows to the head by a blunt instrument, which fractured her skull. Subsequently the appellant, Anthony G. Cox, was interviewed by police officers investigating the murder. The deceased, Naomi Keith, was appellant’s great aunt. After being advised of his Miranda rights, and signing a written waiver of same, appellant confessed to killing Mrs. Keith. The confession was reduced to writing and signed. Cox stated that he went to Naomi Keith’s home on the night of April 3, 1984, and carried an iron bar with him. After some discussion with her in reference to money, he hit her two or three times in the back of the head with the iron bar, causing her to fall to the floor. He took her purse and left. Her purse contained about $150. He removed the money and hid the purse and iron bar in the woods. After getting home that night he washed his clothing and shoes to remove blood stains which were noticeable. After his confession he directed the officers to the spot where he had hidden the purse and iron bar, and they were recovered. At the time the officers interviewed Cox and took his confession, which was on April 9, 1984, Cox was in confinement at the West Jefferson Correctional Facility, a branch of the State Department of Corrections. The record does not disclose the reason for his confinement, but it appears that it was due to matters unrelated to the murder of Mrs. Keith.

Cox was indicted on May 9, 1984, and an arrest warrant was served on him at the West Jefferson Correctional Facility on May 16, 1984. Counsel was appointed to represent him on May 22, 1984, and a motion for a preliminary hearing was filed on the following day. Along with the motion for a preliminary hearing, appellant filed motions for discovery, for polygraph results, to exclude, for change of venue, and to dismiss and quash the indictment. A hearing was held on the motion for a preliminary hearing on May 25,1984, and upon conclusion of the hearing the trial judge denied the motion. On the same date, May 25, 1984, Cox was arraigned and entered a plea of not guilty. Trial was set for the week of June 25, 1984.

On May 28, 1984, Cox withdrew his not guilty plea, and entered a plea of guilty, whereupon the trial judge found him guilty, sentenced him to life imprisonment without parole, and advised him of his right to appeal. This action of the trial judge conflicts with the provisions of § 13A-5-42, Code of Alabama 1975, which requires that, “A defendant who is indicted for a capital offense may plead guilty to it, but the State must in any event prove the defendant’s guilt of the capital offense beyond a reasonable doubt to a jury.” The record reflects that there were plea bargaining negotiations between Cox and the State prior to the guilty plea. Prior to entering the guilty plea, the prosecuting attorney advised the trial judge that the State would not oppose a sentence of life imprisonment without parole.

On June 11, 1984, the court reconvened and another hearing was held, at which time Cox entered his plea of guilty to the capital offense again. A jury was empaneled and the State presented a prima facie case to the jury, which included Cox’s confession. The appellant offered no evidence. The jury returned a verdict of guilty of the capital offense charged in the indictment. Cox waived his right to a sentencing hearing before the jury as provided in § 13A-5-44(c), and the trial judge again sentenced Cox to life imprisonment without parole.

The appellant raises two issues on appeal. They are (1) whether trial court committed reversible error by denying appellant’s motion for a preliminary hearing, and (2) whether the judgment of conviction violates the appellant’s constitutional right not to be put in jeopardy twice for the same offense.

I

A guilty plea, if voluntarily and understanding^ made, waives all nonjuris-dictional defects in the prior proceedings against an accused. Askew v. State of Alabama, 398 F.2d 825 (5th Cir.1968); United States v. McCoy, 477 F.2d 550 (5th Cir.1973); Knowles v. State, 280 Ala. 406, 194 So.2d 562, cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967); Barnes v. State, 354 So.2d 343 (Ala.Crim.App.1978); Browning v. State, 397 So.2d 253 (Ala.Crim.App.), cert. denied, 397 So.2d 256 (1981); Jackson v. State, 452 So.2d 895 (Ala.Crim.App.1984); § 13A-5-42, supra.

A voluntary guilty plea waives the right to a preliminary hearing. Morrow v. State, 426 So.2d 481 (Ala.Crim.App.1982); Browning v. State, supra; Roden v. State, 384 So.2d 1248 (Ala.Crim.App.1980); Harris v. State, 367 So.2d 534 (Ala.1979).

A plea of guilty is an admission of all the elements of the offense. It is a waiver of rights guaranteed by the due process clause of the Fifth Amendment. United States v. O’Donnell, 539 F.2d 1233 (9th Cir.1976), cert. denied, 429 U.S. 960, 97 S.Ct. 386, 50 L.Ed.2d 328 (1976); Hammonds v. State, 354 So.2d 345 (Ala.Crim.App.1978). As a general rule a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to the pre-trial proceedings. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Hammonds v. State, supra.

The appellant does not contend that the guilty plea was involuntarily made or entered without understanding the consequences. However, even though there is no such contention, we have examined the record and find that the appellant was fully informed of his rights as per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), through the court’s questions on each of the two occasions that the guilty pleas were entered. After considering all the circumstances surrounding the appellant’s guilty plea, it is our judgment that the trial court was correct in determining that the plea was voluntarily, knowingly, and intelligently made. Appellant’s guilty plea having been voluntarily and understanding^ made, he waived all nonjurisdictional defects in the prior proceedings, including the right to a preliminary hearing, which would be, if improperly denied, a nonjurisdictional defect.

Furthermore, it has long been held in this jurisdiction that a preliminary hearing is not essential to criminal prosecution after indictment. Elmore v. State, 445 So.2d 943 (Ala.Crim.App.1983); Johnson v. State, 335 So.2d 663 (Ala.Crim.App.), cert. denied, 335 So.2d 678, cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976).

The purpose of a preliminary hearing is to determine probable cause. The indictment satisfies this requirement. A repetitious inquiry to determine probable cause after indictment is not necessary. Elmore v. State, supra; Caifa v. State, 337 So.2d 146 (Ala.Crim.App.1976); Duncan v. State, 369 So.2d 885 (Ala.Crim.App.1979). Thus, the appellant did not have an absolute right to a preliminary hearing, as his motion for such a hearing did not come until after indictment. Elmore v. State, supra. There is no merit to this contention of appellant, and the trial court did not err in denying the motion for a preliminary hearing. Appellant’s counsel suggests in his brief that the failure of the State to arrest appellant prior to his indictment was a device intended to deprive appellant of a preliminary hearing and the discovery that such a hearing would produce. The record does not support this suggestion. There was no necessity to arrest appellant at the time of his confession, since he was already in confinement.

II

The appellant next contends that he was twice placed in jeopardy, in violation of his constitutional rights by the trial judge’s sentencing him twice for the same offense. He raises this issue for the first time on appeal. He cites no authorities to support it. He filed no pleas of former jeopardy during the proceedings below and made no objection to the procedure followed by the trial judge. The minutes of the trial court reflect that the appellant withdrew his earlier plea of guilty, was arraigned again, and reinstated his not guilty plea. The minutes further reflect that he then withdrew that plea, and entered a second guilty plea, whereupon the case was tried before a jury as required by § 13A-5-42, supra.

The United States and Alabama constitutions provide that no person shall be subject for the same offense to be twice put in jeopardy. U.S. Const.Amend. Y; Ala. Const. Art. I, § 9 (1901). In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), it was held that the Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment.

In Alabama a plea of former jeopardy must be in writing, and verified by oath, unless its truth appears by some matter of record, or other written evidence accompanying it. § 15-15-42, Code of Alabama 1975. There is no evidence in the record in the instant case to support a plea of former jeopardy. Further, in the absence of a plea of former jeopardy filed before or at the same time with a plea of not guilty, there is nothing for this court to review. Richmond v. State, 437 So.2d 612 (Ala.Crim.App.1983); Jelks v. State, 411 So.2d 844 (Ala.Crim.App.1981); Hancock v. State, 368 So.2d 581 (Ala.Crim.App.), cert. denied, 368 So.2d 587 (Ala.1979); Williams v. State, 348 So.2d 1113 (La.App.), cert. denied, 348 So.2d 1116 (Ala.1977). The general rule is that the defense of former jeopardy must be raised at or before a plea of not guilty is entered; otherwise it is waived. Hancock v. State, supra; A.R.Crim.P.Temp. 16.3; Ex parte Sales (Ala.1984) 460 So.2d 1252 (Ala.1984). Roberson v. State, 183 Ala. 43, 62 So. 837 (1913); 21 Am.Jur.2d § 461 Criminal Law (1981). An exception to this rule is found in Ex parte Sales, supra, and Baldwin v. State, 47 Ala.App. 136, 251 So.2d 633 (1971), but these cases are to be distinquished from the instant case. The fact that a defendant has been in former jeopardy cannot be raised for the first time on appeal. Moring v. State, 129 Ala. 66, 29 So. 664 (1900). Since the appellant invoked no action in the lower court to raise the defense of former jeopardy, and raises it for the first time in brief on appeal, there is nothing for this court to review.

Even if appellant had timely filed a plea of former jeopardy, it would have been improper for the trial court to grant it. It is essential to constitute jeopardy that the court in which the accused is put upon his trial shall have jurisdiction. If it is without jurisdiction, there can be no valid conviction, and hence there is no jeopardy. McCrosky v. State, 17 Ala.App. 523, 87 So. 219 (1920); Pittman v. State, 18 Ala.App. 477, 93 So. 42 (1922); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); Holmes v. State, 29 Ala.App. 594, 199 So. 736 (1941); See Annot., 75 A.L.R.2d 683 (1958), and cases cited therein; 3 W. LaFave and J. Israel, Criminal Procedure, § 24.1(C) (1984).

Section 13A-5-42, supra, required that appellant’s guilt be proved beyond a reasonable doubt by a jury, even though he had pleaded guilty. This requirement could not be waived. It was jurisdictional. When the trial judge accepted the first guilty plea and found the appellant guilty without empaneling a jury for that purpose, his action lacked jurisdiction and was a nullity. There could be no jeopardy, since the trial judge lacked jurisdiction to try the question of guilt. He was without power to make this determination. Consequently, since the first judgment of the trial court was void, it was no obstacle to the subsequent prosecution by the State and did not constitute prior jeopardy. The action of the trial judge in starting over by allowing the appellant to enter a new guilty plea, and the submission of the question of guilt to a jury which was regularly empaneled was entirely proper.

The appellant does not question the vol-untariness of his confession, nor does he raise the sufficiency of the evidence as an issue on appeal. We have searched the record and find no error. This cause is due to be, and is hereby, affirmed.

AFFIRMED.

All Judges concur.


author: TAYLOR, Judge.

text:
    STATE of Alabama v. Kenneth Wayne O’GUINN.
    8 Div. 164.
    Court of Criminal Appeals of Alabama.
    Jan. 8, 1985.
    James D. Chadbourne, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Kenneth Wayne O’Guinn was indicted for the murder of Linda Muller by the Madison County Grand Jury. Subsequently he filed a motion to suppress statements and confessions he had made to an investigator of the Madison County Sheriff's Department. His motion was ultimately granted and the statements and confessions ordered suppressed by the circuit court in Huntsville. Pursuant to Temporary Rule 17, Alabama Rules of Criminal Procedure, permitting appeals by the State of Alabama from adverse pre-trial orders of the circuit court, this case now reaches us.

The evidence tends to show that before each interrogation the appellee was properly given his warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and informed of his right to have a lawyer and to secure legal advice before answering questions. The question presented revolves around what transpired after Deputy Sheriff Duffey administered appellee his rights before the first time he interrogated appellee regard-' ing the Muller murder. Under the United States Constitution, any person has the right to refuse to give evidence against himself. He has the right to the advice of counsel before questioning. If he asks for an attorney, then he is entitled to receive the services of an attorney before being questioned. These rules are so well understood by attorneys that sometimes they are not rehashed in each case. The relevant questions by defense counsel and answers by Deputy Duffey were as follows:

“Q: Did he not express to you, after you had advised him of his rights, or at the time you advised him, that because it was murder he felt he was going to need a lawyer?
“A: He could have, I don’t remember it, but he could have.
“Q: Is that not what you told Mr. O’Guinn on this occasion that yes, they would give him a lawyer when he got to court?
“A: I may have told him that if he went to court that the courts would appoint him one.”

The relevant testimony of appellee, when questioned by his attorney, was as follows:

“Q: Now, you understood him when he read the rights, to say that you could have a lawyer appointed if you could not afford one, to be present when you were questioned?
“A: I understood what he was reading off to me and all but that’s the reason I told him I couldn’t afford a lawyer and I asked him when I could get one, how I could get one, and he said you will get one when you go to court, so I just had it in my mind that the only way I could get a lawyer was to go to court first.
“Q: Did you ever in any subsequent times when you were questioned by him, or other investigators, when you were advised of your rights prior to subsequent questioning, did you ask again for an attorney?
“A: No, sir, because I had the understanding I had to go to court before I could get one.”

The trial court, therefore, was faced with the appellee’s definite statements that he was told that he could not get an attorney until he went to court and those of Deputy Duffey in which he indicated that he did not remember, but that appellee could have asked for a lawyer and that he may have told appellee that the courts would appoint him a lawyer when he went to court.

From all the evidence, the trial court found that O’Guinn had been questioned in violation of his constitutional rights, and granted the motion to suppress his statements. We are bound by the rule of stare decisis to apply the constitutional law as pronounced by the United States Supreme Court.

In Miranda the court stated that “once warnings have been given, the subsequent procedure is clear.” “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.” Id., 384 U.S. at 473, 474, 86 S.Ct. at 1627, 1628.

In Square v. State, 283 Ala. 548, 219 So.2d 377 (1968), the Alabama Supreme Court adopted the position of Lathers v. United States, 396 F.2d 524 (5th Cir.1968), that a “Miranda warning must effectively convey to the accused that he is entitled to a government-furnished counsel here and now” and that “if the words are subject to the construction that such counsel will be available only in the future, Miranda has not been obeyed....” This position was relied on in part by this court in Brown v. State, 396 So.2d 137 (Ala.Crim.App.1981), as well. As noted by the state, the “here and now” requirement of Lathers has been explicitly overruled by United States v. Contreras, 667 F.2d 976 (11th Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982), on the basis of California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). The court stated that “A Miranda warning need not explicitly convey to the accused his right to appointed counsel ‘here and now’ and to the extent that Lathers and other precedents of this court require such explicit warnings, they are overruled.” Contreras, at 979. The Alabama Supreme Court in Square and this court in Brown intended only to incorporate the federal court’s most recent interpretation of the U.S. Constitution with regard to the information an accused must be given concerning his right to counsel.

Absent the “here and now” emphasis, Square and Brown still correctly define this state’s position on what information should be conveyed to the accused regarding the right to counsel under Miranda. The accused must be advised of his right to consult with an attorney, not instantaneously, but certainly before questioning and must be advised that an attorney will be appointed prior to questioning, if he cannot afford one. In no case should the words conveying such rights be subject to the construction that counsel will be available only in the future.

This position is in agreement with the Eleventh Circuit’s finding in Contreras. There the court stated that “Prysock stands for the proposition that a Miranda warning is adequate if it fully informs the accused of his right to consult with an attorney prior to questioning and does not condition the right to appointed counsel or some future event.” Contreras, at 979.

The Miranda warnings given the appellee were proper in every respect. However, as the circuit court found, rights of which the suspect was informed were, in the next breath, denied him when he was told he would only have a lawyer “if he went to court.” His right to appointed counsel thus was conditioned upon a future event, namely, that he must first go to court. This brought about the same effect as that condemned by the Supreme Court in Prysock as violative of Miranda. O’Guinn was denied the right to counsel. Each subsequent administration of rights to him was tainted by the misinformation he was given when he first requested counsel, because the waiver of counsel after each subsequent administration of rights did not “constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege.” Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Appellee was effectively denied the right to counsel at the first and each subsequent interrogation regarding the Muller murder.

Presented with the definite recollection of appellee regarding the events in question and the indefinite recollection of Deputy Duffey, the trial court had no choice but to conclude that appellee was denied counsel and to grant appellee’s motion to suppress his statements and confession. We have no choice but to agree. The decision of the trial court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Harold FAIN v. STATE.
    8 Div. 179.
    Court of Criminal Appeals of Alabama.
    Jan. 8, 1985.

      Macon L. Weaver, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Harold Fain was convicted of sexual abuse in the first degree in violation of § 13A-6-66, Code of Alabama 1975, and sodomy in the first degree in violation of § 13A-6-63, Code of Alabama 1975, upon the person of his stepdaughter. He was sentenced to 10 years’ imprisonment for sexual abuse and life imprisonment for sodomy, with the sentences to run concurrently. On appeal, he raises one issue: Whether the court erred in admitting the testimony of one Judy Isom regarding incriminating statements made by the appellant to her.

The testimony of the victim in this case was that her stepfather had been committing oral sex upon her and requiring her to commit oral sex upon him for a period of three years past. The 13-year-old victim had asked her grandmother whether she could get pregnant from such conduct. From that inquiry a conversation ensued and the grandmother called the police. The complaint was referred by the police department to the Department of Pensions & Security and became the case of a social worker named Judy Isom.

Mrs. Isom interviewed the 13-year-old girl and ascertained what the facts were from her and also that her natural father had committed the same kind of acts with her. Mrs. Isom then requested that the girl’s mother, her natural father, and her stepfather come to her office. The three of them did so and the appellant Fain made a statement to Mrs. Isom that he had performed oral sex upon his stepdaughter and discussed with Mrs. Isom his sexual contact with the child over a holiday weekend. This testimony was admitted into court over objection of counsel. The question is whether the statement should have been excluded on the doctrine that it ran afoul of the principles of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We find that the statement was admissible.

The rationale of Miranda is to preclude admission into evidence of statements forcibly extracted from prisoners. The reading of the Miranda warnings to persons subjected to custodial police interrogation is intended to enable them to refuse to give statements which might be sought to be extracted by force, or by false promises or trickery. It is undisputed in this case that social worker Isom did not read Miranda warnings to either the victim’s mother or the two men. We observe first from the record that appellant Fain was not in custody at the time he made his inculpatory statement to Mrs. Isom. Although he had been requested to come to her office, he did not have an appointment but rather showed up of his own free will. It appears from the record that he was not physically deprived of his freedom of action in any significant way. Neither was he in a position where he could reasonably have believed that his freedom of action was restricted. “The Miranda warning is required only when there has been such a restriction on a person’s freedom as to render him ‘in custody’.” Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

“The test in determining the existence of a custodial interrogation has been defined as whether a reasonable man would feel that he was physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action is restricted by such interrogation. State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977); Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977).” Hall v. State, 399 So.2d 348 (Ala.Cr.App.1981).

Hall, an excellent opinion by Judge Bookout, states that the line of demarcation between a general interrogation and a custodial interrogation must be determined on a case-by-case basis. The ease correctly points out that it is the custody, and not the focus of the investigation, which marks the point at which giving the Miranda warning becomes mandatory, citing Harris v. State, 376 So.2d 773 (Ala.Crim.App.), cert. denied, 376 So.2d 778 (Ala.1979).

In Peevy v. State, 460 So.2d 248 (Ala.Crim.App.1984), this court considered whether an interview between a tax collector and officials of the Office of the Examiners of Public Accounts constituted a custodial interrogation. We found as a matter of fact that the “exit interview” of the auditors was not in any way custodial in nature. In that case we cited as authority Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976):

“The interview with the government agency in a situation such as the one shown by this record simply does not present the elements which the Miranda court found so inherently coercive as to require its holding. Although the ‘focus’ of an investigation may indeed have been on Beckwith at the time of the interview in the sense that it was his tax liability which was under scrutiny, he hardly found himself in the custodial situation described by the Miranda court as the basis for its holding. Miranda specifically defined ‘focus’, for its purposes, as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ 384 U.S. at 444, 16 L.Ed.2d 694, 86 S.Ct. 1602.”

Finding as a matter of fact that no custodial interrogation took place in this case, we conclude that the social worker was not obliged to read the Miranda warnings to Fain before discussing the case with him and the others. We find that the facts were sufficient to overcome the presumption of involuntariness, and that the court did not err in permitting the witness to testify to his confession. Accordingly, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Joe Arthur BLACKMON v. STATE.
    4 Div. 346.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1985.
    Cheryl S. Woodruff of Johnson, Huskey, Hornsby & Etheredge, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Joe Arthur Blackmon was indicted for rape in the first degree involving a victim who was eleven years old. Alabama Code 1975, § 13A-6-61. The twenty-year-old defendant was convicted of sexual abuse in the first degree (§ 13A-6-66) and sentenced as a habitual offender to twenty years’ imprisonment.

The defendant contends that the prosecutor commented on his constitutional right against self-incrimination.

The defendant did not testify at trial. In direct examination of a defense witness, the following occurred:

“Q. [Defense Counsel]: What had Joe [defendant] told you?
“MR. MAXWELL [Assistant District Attorney]: I object to what Joe told him. It is a way for the defendant to testify without taking the stand, and I object.”

Defense counsel objected and after an off-the-record discussion, the trial court instructed the jury:

“THE COURT: Ladies and gentlemen of the jury, you will disregard the last statement by the District Attorney concerning his reasons for objecting to that last question.
“You won’t consider that in this case. So just erase that from your consideration.”

In his oral instructions to the jury after both parties had rested their case, the trial court charged on the burden of proof and the presumption of innocence. He also gave the defendant’s requested instruction concerning the privilege against self-incrimination.

“The court charges the jury that the fact that the Defendant did not testify in this case cannot be considered in determining the Defendant’s guilt or innocence.
“No inference or conclusion should be drawn by the jury from the fact that the Defendant was not sworn and put on the stand as a witness in his own behalf, nor should this fact have any weight with the jury in reaching a verdict.
“The Defendant has not testified in his own behalf; he doesn’t have to do that; there is no way to force him to testify in his own behalf.”

In ruling on the motion for new trial, the judge found that any error was harmless:

“THE COURT: The Supreme Court has recently held that that cannot be eradicated; but if you look at what happened in this particular case, it is clear that there is no prejudicial error. “He was convicted of a lesser included offense.
“The Court tried to eradicate with the proper instructions to the jury at that time.”
“[B]ut the jury in this case went back into the juryroom and found the defendant guilty of the lesser offense — the least thing they could do in this case. “So that would be conclusive that there was no prejudice.”
* * * * * *
“I believe the Supreme Court, when they reexamine this question, will find an exception where it’s clear on the record that it didn’t prejudice them, because I think it would be completely unreasonable to have any other construction of the law, although they did say it wasn’t.”
sfc * * jfc * *
“[W]here it’s apparent on the record that he was not prejudiced by the comment — I think that the Supreme Court when that is presented to them will say that is not reversible error where the judge instructs the jury to disregard the comment.”

The prosecutor’s comment in this case (“It is a way for the defendant to testify without taking the stand.”) is very similar to the district attorney’s comment in Ex parte Tucker, 454 So.2d 552 (Ala.1984). There, the objectionable comment was: “We object to what she [defendant] stated to him. She’s here, may it please the Court. She can tell what she told him.” In Tucker, our Supreme Court found these comments “to be so prejudicial as to be ineradicable.” Tucker, 454 So.2d at 553.

The principles governing this issue were set out in Ex parte Williams, 461 So.2d 852 (Ala.1984):

“Comments made by a prosecutor on a defendant’s failure to testify are of a highly prejudicial and harmful nature, and this Court must carefully guard against a violation of a defendant’s constitutional right not to testify. Whitt v. State, 370 So.2d 736, 739 (Ala.1979). In a case in which there has been a direct reference to a defendant’s failure to testify and the trial court has not acted promptly to cure that comment, the conviction must be reversed. Whitt, 370 So.2d at 739. In a case in which there has been only an indirect reference to a defendant’s failure to testify, in order for the comment to constitute reversible error there must be a virtual identification of the defendant as the person who did not become a witness. Ex parte Yarber, 375 So.2d 1231, 1234 (Ala.1979).”

In order to cure the comment, the trial court’s instructions must be “sufficient”.

“Thus if there exists the possibility that the prosecutor has commented in such a manner that the jury may understand it as a comment on the defendant’s failure to testify, it is for the trial court to cure this violation of prosecutorial duty by prompt and vigorous instructions to the jury informing them of defendant’s right not to be compelled to testify and that they may draw no presumption from his decision not to testify. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974), and cases cited therein. In this regard we note that some comments can be so prejudicial as to be ineradicable. Stain v. State, 273 Ala. 262, 138 So.2d 703 (1961); McLemore v. International Union, 264 Ala. 538, 88 So.2d 170 (1956) (noncriminal case).” Beecher v. State, 294 Ala. 674, 682-83, 320 So.2d 727 (1975) (emphasis in original).

Additional guidance was given in Whitt v. State, 370 So.2d 736, 739 (Ala.1979):

“We suggest that, at a minimum, the trial judge must sustain the objection, and should then promptly and vigorously give appropriate instructions to the jury. Such instructions should include that such remarks are improper and to disregard them; that statements of counsel are not evidence; that under the law the defendant has the privilege to testify in his own behalf or not; that he cannot be compelled to testify against himself; and, that no presumption of guilt or inference of any kind should be drawn from his failure to testify. With appropriate instructions, we hold that the error of the prosecutor’s remarks will be sufficiently vitiated so that such error is harmless beyond a reasonable doubt.”

See also Coble v. City of Birmingham, 389 So.2d 527, 535 (Ala.Cr.App.), cert. denied, Ex parte Coble, 389 So.2d 535 (Ala.1980). “[T]he admonition to the jury that they disregard such improper remarks must be strong and not merely perfunctory, and ... the trial court may err to reversal by saying too little to eradicate the damage.” Qualls v. State, 371 So.2d 949, 950 (Ala.Cr.App.), cert. denied, 371 So.2d 951 (Ala.1979).

The comments condemned in Tucker are so similar to the prosecutor’s remarks in this case that any disparity is merely a distinction without a difference. Under Tucker, we are compelled to find that at the very least the remarks “raise the possibility that the jury could have understood them to be a reference to the defendant’s failure to testify.” Tucker, 454 So.2d at 553. It is clear from the record that the trial judge considered the prosecutor’s comment objectionable and improper.

Although the error in this case could have been cured by proper action by the trial court, his instructions in this case were neither prompt nor sufficient. The instructions given immediately after the comment were insufficient because they did not inform the jury of the defendant’s right not to be compelled to testify and that no presumption could be drawn from the decision not to testify. Beecher, 294 Ala. at 683, 320 So.2d 727. Although the trial court did charge the jury on these matters in his oral instructions, those instructions did not eradicate the error because they were not prompt and were not given immediately after the prosecutor’s objectionable remarks. Whitt, 370 So.2d at 739.

Additionally, we do not accept the trial court’s finding of harmless error based on the fact that the defendant was only found guilty of the lesser included offense of first degree assault. This verdict shows that apparently the jury rejected the victim’s testimony and accepted the defendant’s version of the account contained in his confession introduced by the State. Had the defendant testified or had the prosecutor not reminded the jury that he could testify, the jury could have acquitted the defendant. Regardless, we cannot say with any degree of confidence or certainty that the prosecutor’s improper remark did not prejudice the defendant.

Our Supreme Court has made it quite clear that it will not tolerate comments by the prosecutor on the accused’s privilege not to testify. The prosecutor who even inadvertently makes reference to the fact that the defendant can testify is inviting reversible error.

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

REVERSED AND REMANDED.

All Judges concur.


text:
    Hosea MOORE v. STATE.
    5 Div. 907.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1985.

      Steven F. Schmitt of Hornsby & Schmitt, Tallahassee, for appellant.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   TAYLOR, Judge.

Hosea Moore had pending before this court an appeal of an earlier petition for writ of habeas corpus when he filed this petition. The first habeas corpus petition alleged that his prison disciplinary hearing, resulting in loss of “good time,” was improperly conducted. Petitioner contends that his requested witnesses were not present at the hearing and that the disciplinary committee’s finding and reasons were inadequately stated. The alleged grounds for the second habeas corpus petition appear to be that in connection with the same disciplinary proceeding, the disciplinary board improperly decided not to restore petitioner’s good time after the petitioner’s work supervisor recommended that such good time be restored. We conclude that the two petitions relate to the same order depriving him of accumulated good time, but that they are based on entirely different grounds.

The state moved to dismiss the second petition for writ of habeas corpus upon the sole ground that an appeal of the first petition was still pending. The circuit court granted the state’s motion and dismissed the petition.

The question presented is whether the pendency of a previous petition for writ of habeas corpus prohibits the court from hearing a subsequent writ of habeas corpus.

Habeas corpus is a civil remedy. Woods v. State, 264 Ala. 315, 87 So.2d 633 (1956); Postconviction Remedies in Alabama, 29 Ala.L.Rev. 617 at 621 (1978). Appeal from the granting or denying of a petition for writ of habeas corpus, however, is to the Court of Criminal Appeals. Code of Alabama 1975, § 12-3-9.

Section 6-5-440, Code of Alabama 1975, provides that “No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case ... the pendency of the former is a good defense to the latter if commenced at different times.” The purpose of this statute is to prevent unnecessary and vexatious litigation. Redstone Land and Development Company v. Boatwright 209 So.2d 221, 44 Ala.App. 363 (1968).

The right to plead the pendency of another action is not available unless the judgment which would be entered in the prior action would be conclusive between the parties and would operate as a bar to the later action. Herrington v. City of Eufaula, 36 Ala.App. 348, 55 So.2d 758 (1951); H.L. Rabum & Co. v. Massey-Draughon Business College, 388 So.2d 1225 (Ala.Civ.App.1980); Priest v. Chenault, 239 Ala. 209, 194 So. 651 (1940). Granting of a petition for writ of habeas corpus might or might not be conclusive as between the parties. Conceivably, a prisoner might petition for writ of habeas corpus to attack his conviction of the crimes for which he was imprisoned. The result of this petition, if favorable to him, might be his outright and, so, conclusive release. However, he might also use the petition for writ of habeas corpus to challenge the deprivation of accumulated good time resulting from his breaking prison rules. In this instance, the judgment entered logically would not bar the inmate’s challenge of his initial conviction. The actions would not be, in the language of the statute, “for the same cause.”

When a petitioner has pending before any court of this state a petition for writ of habeas corpus or an appeal from a denial of such petition, a subsequently filed petition for writ of habeas corpus for the same cause, may not be entertained and should properly be dismissed pursuant to § 6-5-440, Code of Alabama 1975. Our authorities hold that a judgment in the case of a petition for writ of habeas corpus is not res judicata where a later petition is based on a new ground. Stinson v. State, 43 Ala.App. 27, 179 So.2d 94 (1965); Gurley v. State, 42 Ala.App. 551, 171 So.2d 461 (1975); Magee v. State, 42 Ala.App. 71, 152 So.2d 443 (1963); Allen v. State, 42 Ala.App. 9, 150 So.2d 399, cert. denied, 275 Ala. 691, 152 So.2d 439, cert. denied, 374 U.S. 854, 83 S.Ct. 1922, 10 L.Ed.2d 1074 (1963). Goodwin v. Holman, 361 F.2d 403 (5th Cir.1966). This reasoning is in accordance with the principles set forth in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

This court made a final determination adverse to the petitioner on his first habeas corpus petition, after this current habeas corpus petition was filed. This court’s decision on the first petition has not been taken to the Supreme Court for review. Therefore, this petition may now be filed with the court below, because it is based on a new ground and because petitioner now has no other habeas corpus petition pending before any court.

The trial court was correct and did not err in dismissing this habeas corpus petition, because at the time of its decision the first habeas corpus petition was pending before this court. Accordingly, we affirm the trial court’s dismissal.

AFFIRMED.

All the Judges concur.


text:
    Charles WOODRUFF v. STATE.
    6 Div. 643.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1985.
    Charles Woodruff, pro se.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

The appellant, Charles Woodruff, appeals from the trial court’s summary denial of his “petition for writ of error,” which attacks his 1981 conviction for the offense of robbery in the first degree and his resulting sentence of ninety-nine years’ imprisonment. In his petition, Woodruff specifically alleges that he was denied his right to appeal, because neither the trial court nor his counsel advised him of his right to appeal, and, also, because counsel “did not avail himself to petitioner so that he could file a notice of appeal.”

It is now established that a cognizable ground for a coram nobis petition is the allegation that the petitioner,, through no fault of his own, was denied his right to a direct appeal of his conviction. E.g., Longmire v. State, 443 So.2d 1265 (Ala.1982); Rodgers v. State, 453 So.2d 769 (Ala.Cr.App.1984); Peterson v. State, 428 So.2d 201 (Ala.Cr.App.1983). Hence, Woodruff should have been afforded a hearing on the merits of his petition, since the petition made factual allegations which, if true, would entitled him to relief. See Whitson v. State, 435 So.2d 230 (Ala.Cr.App.1983); Ellison v. State, 406 So.2d 439 (Ala.Cr.App.1981). Accordingly, this cause is remanded, as requested by the Attorney General, with directions that the trial court hold an evidentiary hearing at which Wood-ruff is present and represented by counsel and submit findings of fact on return to this court.

REVERSED AND REMANDED.

All Judges concur.


text:
    Kenneth Edward GILES v. STATE.
    7 Div. 361.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1985.
    Kenneth Edward Giles, pro se.
    Charles A. Graddick, Atty. Gen. and H.P. Nelson, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Giles appeals from the summary dismissal of his pro se petition for writ of habeas corpus challenging the legality of his imprisonment.

Appellant’s pro se petition alleges that he was convicted of robbery in the Circuit Court of Jefferson County in June of 1976 and sentenced to fifteen years’ imprisonment. Subsequently, in November of 1976, appellant was convicted of kidnapping in the same court and sentenced to five years’ imprisonment to run consecutive to the robbery sentence. An appeal was taken from the robbery conviction, which was affirmed without opinion by this court on February 20, 1979.

Appellant maintains that on January 20, 1978, he was released from the state prison system. Appellant remained at liberty until August 1982, at which time he was arrested and returned to the state prison system to serve the fifteen-year sentence. Appellant claims no fault can be attributed to him for his untimely release, although he alleges that “[i]n an attempt to cover the error the Department of Correction[s] contended that Giles had been released on bond/appeal,” and further he contends that no record of such bond exists.

It is appellant’s position that he is “entitled to full credit against any unexpired portion of his sentence for the time during which he was at liberty following his erroneous release.” Green v. Christiansen, 732 F.2d 1397, 1399 (9th Cir.1984). Appellant argues that this period of four years, seven months, and one day, plus accumulated good time credit, entitles appellant to immediate release.

The State’s brief does not respond to the allegations raised in appellant’s petition. The State offers no facts which contradict those set out in the petition. Therefore, the unrefuted facts set out in the petition must be taken as true. Ex parte Floyd, 457 So.2d 961 (Ala.1984); Williams v. State, 461 So.2d 1335 (Ala.Crim.App.1984); Vaughan v. State, 415 So.2d 1231 (Ala.Crim.App.1982). The writ of habeas corpus properly lies where a party is entitled to discharge from a state prison. See Ala.Code (1975), § 15-21-24(2); Canada v. State, 429 So.2d 1127, 1129 (Ala.Crim.App.1982).

In Hartley v. State, 50 Ala.App. 414, 279 So.2d 585, 588 (1973), then-judge Almon quoted with approval the holding of White v. Pearlman, 42 F.2d 788, 789 (10th Cir.1930), wherein it is stated:

“It is our conclusion that where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, that his sentence continues to run while he is at liberty.... As to whether a prisoner, who knows a mistake is being made and says nothing, is at fault, we do not now consider.” (Emphasis added.)

In both Hartley and White, the defendant questioned the propriety of his untimely release and was unquestionably without fault in the granting of his release. Where, however, the defendant has secured his liberty through some illegal or void means, or where he has been instrumental in obtaining the release for his own benefit, the release has been treated as an escape and credit for time at liberty has not been granted. See Hopkins v. North, 151 Md. 553, 135 A. 367, 49 A.L.R. 1303 (1926); Ex parte Philbrook, 121 Neb. 421, 237 N.W. 391 (1931); O’Malley v. Hiatt, 74 P.Supp. 44 (M.D.Pa.1947).

Appellant’s unchallenged petition is meritorious on its face in view of Hart-ley, supra; therefore he is entitled to habe-as corpus relief if the asserted matters are true. The trial court should not have dismissed the petition without a hearing on the merits to ascertain facts sufficient to apply the rule stated in Hartley, supra.

For the foregoing reasons, we conclude that the trial court erred in summarily granting the State’s motion to dismiss the petition.

Therefore, the trial court's judgment dismissing appellant’s petition is hereby set aside and vacated and this cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All Judges concur.


text:
    Billy Ray CLARK v. STATE.
    7 Div. 367.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1985.
    Billy Ray Clark, pro se.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

This is an appeal from the summary denial of a pro se petition for writ of habeas corpus. The petitioner alleges that he was denied due process under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), when he was convicted of violating a prison rule barring the use of alcohol. The petitioner contends that he was “found guilty as charged based on the testimony of the arresting officer that she smelled the odor of alcohol on the Petitioner’s breath.” However, in the very next sentence in his petition, the petitioner admits that “(t)he same evidence was corroborated by and based on the testimony of Officer Ernest Thompson that during the transporting [of] the Petitioner from Huntsville to Decatur he did smell without a doubt the smell of Alcohol on the Petitioner’s Breath.”

Petitioner also challenges the constitutionality of the rule under which he was charged and convicted because it does not include a lesser offense. He further alleges that the evidence was totally insufficient to show that he was “under the influence” because no scientific test was performed to show that the blood-alcohol level was at least .10%. In his petition he sets out prison administrative rule 90, which condemns “the use of unauthorized narcotic substance or other intoxicant ...”

On appeal, the State argues that the petition was properly dismissed because it was not properly verified pursuant to Alabama Code 1975, § 15-21-4. The petition was “sworn to and subscribed before” a notary.

The petition was adequately verified. Rice v. State, 460 So.2d 254 (Ala.Cr.App.1984): “The words ‘sworn to’ at the foot of ... [the] petition must be taken to mean that he declared on oath that the allegations set forth in his petition were true, and we are of the opinion that this satisfied the requirements of verification in § 15-21-4.”

A blood-alcohol test was no more necessary to prove that the petitioner was under the influence than was scientific evidence necessary to prove that vegetable matter was marijuana in Barker v. State, 437 So.2d 1375 (Ala.Cr.App.1983). The testimony of the arresting officer was corroborated by that of another witness. This is more than adequate to satisfy the substantial evidence standard of a prison disciplinary action. Barker, supra; Washington v. State, 405 So.2d 62, 64 (Ala.Cr.App.1981).

We know of no constitutional principle, and have been cited to none, which requires that a charge contain a lesser included offense.

The petition was properly denied because it states no claim upon which relief can be granted.

AFFIRMED.

All Judges concur.