text:
    Palmer Lee FEARS, Jr., alias v. STATE of Alabama.
    5 Div. 788.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-693.

      Margaret A.Y. Brown, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Palmer Lee Fears, Jr. was charged with the murder of one Nancy Lee Morgan, by beating her with a chair, in violation of § 13A-6-2, Code of Alabama 1975 as amended. The jury found the appellant “guilty of murder as charged” and following a sentencing hearing, the trial court fixed punishment at 50 years’ imprisonment.

Bessie Springer testified that she had been a neighbor for several years of one Nancy Morgan or Nancy Fears, as she was known, and lived approximately one block from her in Auburn, Alabama, on January 16-17, 1983. She stated that on January 16, 1983, she observed a fight between appellant and Nancy and that she saw the appellant strike Nancy with a brick, and that she was lying in the yard outside. She stated that the appellant struck Nancy on the forehead and that she could not move. Later, Bessie observed the appellant drag Nancy back into the house where she lived. The following day she went by and noticed that Nancy could not move and that she was “cold” and that she then called the police.

Grady Jones, an Auburn Policeman, stated that on January 17, 1983, he answered a telephone call from one Bessie Springer. He went to 543 White Street and found the body of a black female, lying on a bed in a bedroom. He stated that Officers Selman and Smith had arrived about the same time and that they entered the premises together. He stated that later Police Detective Kolander came and that they turned the body over to Detective Kolander. Auburn Police Detective Keith Kolander testified that he answered a call on the night of January 17, 1983, on White Street. He observed the body of a black female lying in a bed in the “second bedroom”. He called the Coroner’s office, had photographs made and determined the victim was one Nancy Morgan or Nancy Fears. He noticed cut or swollen marks above the eye and some bruises on the body of the victim, a broken mirror and a broken chair lying on the floor.

Lee County Coroner Jon Williams testified that he observed the body of one Nancy Ruth Morgan or Nancy Fears at 543 White Street in Auburn on the evening of January 17, 1983. He checked her vital signs and pronounced her dead, then called the emergency ambulance service where Ricky Don Holt carried the body to the Department of Forensic Sciences where the same was received by Vann Pruitt, Jr., on January 18, 1983. Mr. Pruitt delivered the body that same day to Dr. Thomas Gilchrist in Montgomery for examination.

Dr. Thomas Gilchrist testified that he examined the body of Nancy Ruth Morgan, also known as Nancy Ruth Fears, on January 18, 1983. He noticed external and internal injuries to the body with a deep bruise of the head. There was a contusion on the breast bone and a number of abrasions on the back and buttocks. He stated that the body had four broken ribs. He noticed internal injuries to the pancreas and to the right kidney and that the right kidney “had died”. He stated that the injury to the forehead above the left eye would be “consistent with being struck with a brick” and that the injury to the back and lower body would be consistent with being struck with some blunt force or “blunt object such as a chair”. (R. 110). Dr. Gilchrist stated that in his opinion these blunt injuries to the abdomen and back were the cause of death.

The appellant was arrested on January 18, 1983 by Auburn Detective Kolander. He was taken to Police Headquarters and there given a Miranda warning. The appellant executed a Miranda waiver indicating that he did not desire counsel. Detective Kolander testified that there were no threats, coercion, intimidation or hopes of reward offered in order to obtain a statement. Appellant also gave a similar statement after being likewise warned a week later on January 25, 1983. He again executed a Miranda type waiver. In both of these statements (R. 89 and R. 93), the appellant admitted striking the victim with a wooden chair and that he hit her more than once across the back. He stated that he picked her up and put her in the bed and had gone over to his father’s house to cut some wood. He further indicated that Bessie Springer had come over and found the victim and called the police. He admitted being arrested and interrogated twice.

The appellant made a motion to exclude and a motion for a directed verdict following completion of the State’s evidence.

The appellant then presented the testimony of Mary Louise Evans and Willie James Swanson, both of whom testified that they had come hy the Fears’ residence and knocked on the door and spoken to Nancy on Monday, January 17, 1983.

I

The appellant first asserts that the evidence was insufficient to support the jury’s verdict of murder as there was no specific intent to kill established from the evidence.

' This argument, however, ignores the testimony of Bessie Springer, who testified that she observed the appellant strike the victim with a brick on the forehead and “knocked her out cold”. Moreover, the appellant’s own statement clearly established that he struck the victim with a chair across the back. Dr. Gilchrist’s testimony established that her injuries to her back and lower intestines were consistent with being struck with a chair across the back. We are therefore clear to the conclusion that the necessary “positive intent” was fully established through the nature of the assault on the victim by the appellant. Swann v. State, 412 So.2d 1253 (Ala.Cr.App.1982); Tucker v. State, 383 So.2d 579 (Ala.Cr.App.1980), cert. denied, 383 So.2d 586 (Ala.1980).

As noted in these cases, “An intent to cause the death of the deceased may be inferred from the character of the assault, the use of a deadly weapon and all other attending circumstances surrounding the death of the deceased.”

II

The appellant contends that his first statement given to Auburn Detective Ko-lander on the morning of January 18, 1983, was not voluntary because the appellant had been drinking. Detective Kolander did testify that in his experience as a police officer, the appellant was in control of his mental processes and understood what was being said and made proper responses. While it is true that Detective Kolander testified he noted the odor of alcohol on the appellant’s breath, he also testified that, in his opinion, the appellant was sober.

The trial court determined from the testimony that the appellant had received a proper warning of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court also determined that there had been no threats, coercion, offers of reward, or other improper inducement to obtain appellant’s statement. In this first statement, his testimony was very similar to a statement given approximately a week later on January 25, 1983, also at Auburn Police Headquarters, at approximately 1:45 in the afternoon. Again, appellant’s constitutional rights were read to him and he executed a waiver form. Again, the testimony indicates that the appellant was not threatened, intimated or otherwise induced to give his statement. The testimony of Detective Kolander also indicates that the appellant fully understood the questioning and understood what was going on. There was, therefore, a proper basis for the trial court to determine that the appellant’s statement was purely voluntary. We likewise, from our examination of this record, find that the appellant’s statement was here voluntary and there was no improper threat or inducement made or given to obtain this statement. Sheppard v. State, 49 Ala.App. 674, 275 So.2d 353 (1973).

Ill

Finally, the appellant argues that the trial court should have charged the jury on the question of criminally negligent homicide and that the failure to do so constituted reversible error.

We have carefully reviewed the trial court’s oral charge and note that in two instances on record 167 and again on record 170-171, after extensions, that appellant’s counsel announced “satisfied” on both occasions. Moreover, counsel did not submit any written charge or charges on this issue.

The law is clear that a request for charges to the trial court must be submitted in writing and prior to the jury's retirement. Evans v. State, 338 So.2d 1033 (Ala.Cr.App.1976).

Moreover, counsel must tender such written charges in writing as there is no longer an automatic exception to written charges unless such is made by counsel by stating such charge to the trial court and making exception to the court’s refusal to give such charge. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed, 414 So.2d 993 (Ala.1982). The failure, therefore, to tender such charges and preserve same for review by appropriate exception precludes this court’s review. Allen, supra, and Hill v. State, 409 So.2d 943 (Ala.Cr.App.1982).

Moreover, charges on criminally negligent homicide would have been inappropriate under the evidence here as established at trial. See Quates v. State, 439 So.2d 199 (Ala.Cr.App.1983) and authorities cited.

We have carefully examined this record and find no error. The judgment is therefore affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Larry Bernard JONES v. STATE.
    6 Div. 121.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-681.
    Chris S. Christ, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty under an indictment charging that he did “knowingly enter or remain unlawfully in a building of Cleve Smith, with intent to commit a crime therein, to-wit: theft, in violation of Section 13A-7-7 of the Alabama Criminal Code,” which denominates such crime as burglary in the third degree and classifies it as a Class C felony. After a duly conducted sentence hearing, the court sentenced defendant to imprisonment for eight years, a sentence within the limits prescribed for a Class C felony by § 13A-5-6(a)(3) of “not more than 10 years or less than 1 year and 1 day.”

According to the testimony of Mr. Cleve Smith, a garage owned by him at 1200 Vanderbilt Road North in Birmingham was broken into on the evening of February 7, 1982, and some valuable power tools and other tools were taken therefrom by someone without the owner’s consent. A “fellow by the name of Raymond Harris” called him “somewhere near 10:00 by telephone and informed” him as to the incident. He left promptly to go to the garage and “found the glass had been broken out the door” and several of the tools were missing from the tool box. He further testified:

“A. I called the police before I left home for them to meet me there.
“Q. This was after you had this conversation with Mr. Harris?
“A. Yes, ma’am. When I hung up from talking to him I called the police, and got them to meet me at my shop. But I beat them there. So I left my wife at the shop so she could tell the policemen where I had went. I went to the Handy Pack, which was about three blocks from my shop. I think it’s a Jr. Foods Store or something like that back up on 31st and 12th Avenue, because I learned that’s the way they had went with my tools so I was trying to catch them.”
“Q. Did you catch them?
“A. I caught one.
“Q. And did you get any of your tools back?
“A. No, ma’am.
“Q. The person that you caught, is that person in the courtroom today?
“A. No, ma’am.
“Q. Now, after you caught this one, what did you do?
“A. Well, after I caught him, he was at the store, he was a juvenile, so I held him there until the police came on up. My wife told them where I was. They came on up to the store. And then the policeman got him.”

Mr. Raymond Harris, a witness for the State, testified he lived across the street from the garage, that he had just come home from National Guard drill on the evening of February 7, 1982, when he observed, inter alia, the following:

“Q. You say you observed black males outside this garage?
“A. Right.
“Q. Would you tell the jury what you observed them doing?
“A. Well, I seen two guys over to the shop, one was standing in front of my door and the other two was over there getting some tools out of this garage.
“Q, What did you do then?
“A. Well, I went over there and I pulled my car halfway in the middle of the street and got out. And I said, hey, what y’all doing. And they was breaking in the man’s shop. I said, hey, put the man’s tools back or I’ll call him and tell him somebody has broke off in his shop. By that time they started giving me, you know, they was giving me some words and said they wasn’t going to do nothing.
“Q. Well, what did they say to you, Mr. Harris?
“A. Well, they was using profane language.
“Q. Now, you say, ‘they.’ Was all three of them, one of them—
“A. No, it was two.
“Q. Two of them. Okay. Could you describe those two people that were giving you this profane language?
“A. He was one of them (indicating).
“Q. Do you know this person over here?
“A. All I know is his name’s Sleepy.
“Q. Sleepy? Have you ever seen him before the evening of February 7th, 1982?
“A. I have seen him a couple of times.
“Q. Would you describe how he’s dressed today in the courtroom?
“A. He have on bluejeans, beige sweater, black and gray shirt.
“Q. And is this one of the men that was carrying the tools out of the Cleve Smith’s shop?
“A. Yes, it was.
“MS. BARCLAY [Assistant District Attorney]: Would the record please indicate that the witness indicated the defendant, Larry Bernard Jones.
“Q. And you had a conversation with Larry Bernard Jones, didn’t you?
“A. Yes, I did.
“Q. And was he one of the ones that gave you back the profane language?
“A. Yes, he was.
“Q. And was he one of the ones that you tried to get to put the tools back in Cleve Smith’s shop?
“A. Yes.
“Q. How many tools did you actually see Sleepy with?
“A. A handful.
“Q. Handful. Now, after you left Smith’s Garage and after you had this conversation with the defendant and tried to get him to put the property back, what did you do?
“A. Well, I went home and went in the house and I called Smith. And he came over to his garage. And I had told him, I said, well, a couple of guys broke in the shop. And I said I know the little boy, we can go up there and get him, he could tell you where your tools at.
“Q. And what did y’all do after that?
“A. Okay. By that time the police came up, and me and Smith got in his car and we followed the police up to the Handy Pack, what they call the U-Tote-M Store. And this is where the little guy was. And the police asked him and he went to telling the police he knew Sleepy and the other guy. And he told them their names.”

The defendant took the stand in the case and testified definitely that he was not one of the three persons at Smith’s garage apparently participating in a burglary, that he was at his cousin’s residence at the time and that he had no knowledge of or connection with the alleged burglary. He said he was known by the nicknames of Sleepy, California Slim, and Sleepy Hollow but that there were “two more dudes over in Nor-wood they call Sleepy, too.” He gave his age as 21 years. He manifested a splendid acquaintance with the neighborhood and seemingly was more accurate as to locating the home of Raymond Harris relative to the location of the garage than was Mr. Harris, in that he finally made it clear that Mr. Harris’s house, though across the street from the garage, was not directly so, but that there were two other houses more nearly directly across the street from the garage than was the home of Mr. Harris. Defendant’s cousin corroborated defendant’s testimony as to an alibi.

Appellant’s attorney makes an impressive argument in support of one of the three contentions for reversal, to the effect that the trial court was in error in denying defendant’s motion for an acquittal on the ground that there was no substantial evidence that defendant was guilty of the alleged burglary. However, notwithstanding the lack of absolute certainty by the evidence that defendant was guilty, we are convinced that a jury question as to his guilt was presented and that the trial court was not in error in denying defendant’s motion for an acquittal.

Another issue presented by appellant is as to whether the trial court erred in overruling a motion of defendant “to sequester the jury.” The motion was made soon after the jury was selected and sworn on December 6, 1982. By Act No. 82-566, effective upon its approval by the Governor on May 4, 1982, the Alabama Legislature wrought a change in the pre-existing law as to the sequestration of a jury in a criminal case in the following paragraph of said Act:

“(d) In the prosecution of any non-capital felony the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, provided that the court may at any time, on its initiative or on motion of any party, require that the jury be sequestered under the charge of a proper officer when they leave the jury box or the court may allow them to separate .... ”

The trial court was not in error in denying defendant’s motion that the jury be sequestered.

Appellant’s only other contention for a reversal pertains to the action of the trial court in admitting in evidence eight photographs exhibited by police officers to the witness Raymond Harris, which included one photograph identified by Mr. Harris as the defendant and another identified by him as the other man at the garage on the evening of February 7, 1982, just before the witness phoned Mr. Smith. Appellant takes the position that the photographs were “mug shot” or “rogue’s gallery” photographs that did not meet the “three-prong test” of Holsclaw v. State, Ala.Cr. App., 364 So.2d 378, cert. denied, 364 So.2d 382 (1978). In anticipation of the question as to the admissibility of the photographs, the jury was excused from the courtroom and a lengthy voir dire interrogation was conducted by attorneys for the respective parties of Sergeant Gerald R. Hill of the Birmingham Police Department, who was the next witness called by the State after Raymond Harris. Before the jury was allowed to return to the courtroom, Raymond Harris was recalled as a witness, for the purpose of voir dire interrogation out of the presence of the jury as to the question of the admissibility of the photographs. During the interrogation by defendant’s counsel, Mr. Harris said as to the photographs:

“Q. All right. And when he gave them to you did he give you any instructions?
“A. No. He just asked me to look through the pictures and see which guy that I think that broke off in Smith’s Garage.
“Q. All right. Did he tell you to look at the back?
“A. No, he didn’t. I didn’t look at the back.
“Q. What did he tell you, just look at the front and see if you could identify the parties?
“A. Right.
“Q. All right. And if he gave you these pictures like this and went through these pictures, do you recall which ones you identified?
“A. Yes, I would. I went through the pictures and looked. That’s one right there (indicating).
“Q. Is that Exhibit 7?
“A. And this one right here (indicating).
“Q. At the time did you notice if there was any writing on the back?
“THE COURT: He said this and that?
“MR. CHRIST [Defendant’s Attorney]: Exhibit 7 and 8 he picked out, Judge.
“Q. At that time was there any writing on the back?
“A. I didn’t look at the back.
“Q. You didn’t look at the back?
“A. No I didn’t.
“Q. All right. Did you know the name, Larry Bernard Jones, or did you know this investigation [sic] as Sleepy?
“A. I just know his name as Sleepy.
“Q. Okay.”

At the conclusion of the voir dire interrogation of the witness Harris, the following occurred:

“MS. BARCLAY: Offer this for the purpose of the motion, State’s Exhibit 8.
“THE COURT: All right. Mark them in. Both of them are in for purposes of identification for purposes of the voir dire.
“(State’s Exhibits 7 and 8, Voir Dire, were received in evidence.)
“Q. And State’s Exhibit 7 who is that picture?
“A. That’s the guy called Slim, I never knowed his name.
“Q. Okay. Was he there?
“A. Yes, ma’am, he was.
“Q. And was he involved in the burglary?
“A. Yes.
“MS. BARCLAY: Offer this, too, for purposes of the motion.
“THE COURT: It’s in already. Anything further from anybody?
“MR. CHRIST: No, sir, Your Honor.
“THE COURT: Okay. I think the identification is in issue. And I think this is admissible, and I’ll overrule the motion to suppress. And we will now take a .ten-minute recess.
“MR. CHRIST: Well, for the purpose of the record I will make an exception.
“THE COURT: Sure. I understand. Put this on the record, too: I’m going to cover up the identification, put little whites of paper over that Birmingham Police Department identification number.
“(Recess).
“(Jury present).”

At the time State’s Exhibits 1 through 8 were introduced and received in evidence, which was during the testimony of Raymond Harris upon his being recalled as a witness for the State, defendant’s attorney again interposed an objection, as shown by the following portion of the transcript:

“MS. BARCLAY: We offer State’s Exhibit 8, Your Honor.
“THE COURT: All right. Are you going to offer them all?
“MS. BARCLAY: Yes, sir, I am.
“THE COURT: All right. Mark them all in.
“MR. CHRIST: Your Honor, for the record, I’m going to object.
“THE COURT: Right, all right. I’ll overrule it.
“(State’s Exhibits 1 through 8 were received in evidence.)”

In our opinion, the action of the court in overruling defendant’s objections to State’s Exhibits 1 through 8 was not in conflict with anything said or held in Holsclaw v. State, swpra, or any of the authorities cited therein. There is no disagreement between the parties as to the correctness and soundness of the three-prong test set forth in Holsclaw, which appellant paraphrases as follows:

“(1.) The state must have a demonstrable need to introduce the photographs (no need if the accused can or has otherwise been identified); and
“(2.) The photographs themselves, if shown to the jury, must not imply that the Defendant has a prior criminal record; and
“(3.) The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs.”

Our conclusions as to appellant’s analysis of the “three-prong test” are as follows:

1.There was a demonstrable need for the State to introduce the photographs. We do not agree with appellant’s parenthesized argument that there is “no need if the accused can or has otherwise been identified.” There would be no such need, in our opinion, in a case in which the accused has been conclusively and undisputably identified as a party guilty of the alleged crime. In the instant case, however, both before and after the defendant and his cousin took the stand to testify that he was not one of the persons participating in the burglary, the identity of defendant was a live and intensely controverted issue, as indicated by the trial court’s statement, “I think the identification is in issue.” It appears to us that it was the only contested issue of fact in the case.
2. Although the testimony during the voir dire interrogations out of the presence of the jury disclosed that the photographs were photographs taken while the persons photographed were in the City Jail, they did not necessarily imply that the defendant had a prior criminal record. There was no contention that he had a prior criminal record. Furthermore, there is nothing in the transcript to indicate that the jury was informed in any way that the photographs were taken of persons while such persons were in the City Jail.
3. The manner of introduction at the trial did not, in our opinion, “draw particular attention to the source or implications of the photographs.” The trial judge did as much as a trial judge could have reasonably and prudently done to prevent any “particular attention to the source or implications of the photographs” by assiduously placing white paper over markings or numbers on the photographs so as to leave nothing thereon of any significance other than the photography of the persons photographed.

The foregoing leads us to the conclusion that no contention of appellant for a reversal is well taken and that the transcript discloses no obvious error prejudicial to defendant.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Robert P. DARROW v. STATE of Alabama.
    8 Div. 926.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-691.

      John Mark McDaniel and P. Marc Sand-lin, of McDaniel & McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Robert P. Darrow was indicted for the offense of rape in the first degree in violation of § 13A-6-61, Code of Alabama 1975, and for the offense of sodomy in the first degree in violation of § 13A-6-63, Code of Alabama 1975. The jury found him guilty on both counts of the indictment, and the trial judge sentenced him to two life terms in the penitentiary, these sentences to run consecutively.

The chief witness for the State was the victim, who is the appellant’s eleven-year-old daughter. She testified the appellant forced her to engage in sexual intercourse and various other sexual activities with him on June 14, 1982.

The next witness for the State was Sheila Gail Collins, a nurse employed by the Huntsville Hospital. She examined the victim on June 14, 1982, and noticed an abrased area on the labia minora of the vagina.

Roger Morrison, a criminalist with the Department of Forensic Sciences, testified seminal fluid of the same type as the appellant’s was found on the victim’s shorts.

Dr. John Diplacido, a practicing physician in Huntsville, Alabama, examined the victim on June 14, 1982. He testified that the victim’s vagina had the appearance of someone who is married, or who had sexual intercourse regularly. The hymen was not present and the vagina was dilated. He observed abrasions to the vagina and found that two identifiable sperm were present in the vagina. In his opinion, intercourse had occurred 48 to 72 hours before the examination.

1(a)

The appellant sought to present evidence which tended to show that the victim had previously engaged in sexual intercourse with her uncles. The trial judge refused to allow the appellant to interject this matter into evidence.

The appellant contends this evidence should have been allowed for two reasons. First, he should have been allowed to prove the victim had previously complained about sexual activities with her uncles to counter the effects of the testimony of Dr. Diplaci-do, who stated the victim had the vagina of “someone who regularly engaged in sexual intercourse.”

Section 12-21-203(b)(c), Code of Alabama 1975 provides:

“(b) In any prosecution for criminal sexual conduct or for assault with intent to commit, attempt to commit or conspiracy to commit criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness, as defined in subsection (a) of this section, shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or of other witnesses, except as otherwise provided in this section.
“(c) In any prosecution for criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness shall be introduced if the court, following the procedure described in subsection (d) of this section, finds that such past sexual behavior directly involved the participation of the accused.”
“Only evidence relating to the past sexual behavior of the complaining witness to that directly involving the participation of the defendant is admissible. Evidence of sexual activity between the complaining witness and third persons is immaterial and irrelevant. See Hollis v. State, 380 So.2d 409 (Ala.Cr.App.1980)”

Smiley v. State, 435 So.2d 202 (Ala.Cr.App.1983).

Under the above cited authorities, the appellant’s contention that the evidence pertaining to the victim’s prior sexual activities should have been admitted was properly rejected.

Furthermore, as the State points out in its brief, Dr. Diplacido’s testimony concerning the victim’s very developed vagina, would probably have been excluded, had there been an objection to such testimony. However, since there was no objection by the appellant, we see no reason why the appellant should have been allowed to explain the reasons why the victim’s vagina was so developed.

The second reason the appellant contends the excluded evidence should have been admitted in spite of § 12-21-203, Code of Alabama 1975, is to show that the presence of semen found in the victim’s vagina could have been the result of sexual intercourse with someone other than the appellant.

The appellant cites Gamble, McElroy’s Alabama Evidence, § 32.01 (3d Ed.1977) as authority. The pertinent part of that section reads as follows:

“The general rule is that the accused is not allowed to introduce evidence of specific acts of unchastity by the prosecutrix with third persons. Such evidence has been held inadmissible upon the ground that it does not tend to prove her bad character for chastity. However, this rule of exclusion is inapplicable if the prosecution introduces evidence of traces of the alleged intercourse such as pregnancy, veneral disease, injuries to the body of the female and the presence of semen in her vagina. The accused is entitled to explain away such traces by showing that they are the product of intercourse with a third person at such a time as that such intercourse with such third person could have caused such traces. This is not using the fact of ■intercourse with the third person to prove the prosecutrix’s bad character for chastity but is using such fact to show that traces, introduced by the prosecution, were created by a person other than the accused.” (Footnotes omitted).

We do not agree with the appellant’s argument. As we previously stated, the only evidence concerning the victim’s past sexual activities, which is admissible, is that directly involving the participation of this defendant. Therefore, this evidence was properly excluded by the trial judge for this reason.

Furthermore, in order for this evidence to have been admitted, the evidence would have to relate to sexual intercourse with other persons during the 72 hour time frame which Dr. Diplacido testified the semen could have been present in the victim’s vagina. The appellant testified he had complete custody of the victim during that specific period of time. He offered no evidence that someone else did, or could have had intercourse with the victim during that period.

(b)

Lastly, we must point out that the appellant was indicted and convicted under § 13A-6-61(a)(3), Code of Alabama 1975 which states:

“(a) A male commits the crime of rape in the first degree if:
“(3) He, being 16 years or older, engages in sexual intercourse with a female who is less than 12 years old.”

Any evidence relating to the victim’s past sexual activity is completely irrelevant and immaterial under the above cited statute.

Therefore, the evidence relating to the victim’s past sexual activities with her uncles was properly excluded at trial.

II

The appellant asserts reversible error occurred due to the “improper remarks” made by the prosecutor during closing argument. The allegedly prejudicial remark is set out below.

“MR. McDANIEL: Judge, we’re going to object to that. That’s improper argument, comparing this man to John Paul Dejnoska or Gaey. That’s improper argument. It’s made for the sole reason to inflame and prejudice the jury.
“MR. HOOPER: Judge, it goes to the weight of the character evidence.” (R. 232).

Immediately, the trial judge stated:

“THE COURT: Well, I think that Mr. Hooper is allowed a reasonable leeway to discuss the impact of character evidence, but I will instruct the ladies and gentlemen of the jury that you should draw no direct comparisons between such people and the defendant in this case. You must make your own independent assessment of the credibility and the weight of the evidence that has been presented to you.” (R. 232).

Due to the trial judge’s prompt instructions to the jury, we find the alleged harm, if any, to the appellant because of these remarks, was cured. Lippold v. State, 365 So.2d 1015 (Ala.Cr.App.1978); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Retowsky v. State, 333 So.2d 193 (Ala.Cr.App.1976); Kuczenska v. State, 378 So.2d 1182 (Ala.Cr.App.1979), cert. denied, 378 So.2d 1186 (Ala.1979); Kendricks v. State, 378 So.2d 1203 (Ala.Cr.App.1979).

III

The appellant alleges that Alabama’s Rape Shield Statute (§ 12-21-203, Code of Alabama 1975) is unconstitutional because it denies him his right to due process of law, his right to equal protection of the law, his right to confront and cross-examine witnesses and, therefore, his right to a fair and impartial trial.

We have reviewed the appellant’s contentions concerning this issue and find no merit therein. (Por a general discussion of the constitutionality of “rape shield” statutes which restrict the use of evidence of the victim’s prior sexual experience, see generally 1 A.L.R. 4th 283. See also Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981-82)) and authorities therein cited.

IV

Ms. Collins, the nurse who examined the victim, was allowed to testify about a statement the victim made to her about the rape. The appellant claims this was error since the testimony constituted hearsay. We do not agree with this contention.

“While the prosecution may not ordinarily take the initiative to prove the details of a complaint, there are circumstances under which the prosecution may so prove the details. Where the testimony of the prosecutrix is impeached by proof of self-contradictory statements, for example, the prosecution may prove her complaints in detail.” (Footnote omitted).

Gamble, McElroy’s Alabama Evidence, § 178.01 (3d Ed.1977).

Th.e issue in the case at bar was similarly raised in Murray v. State, 355 So.2d 1153 (Ala.Cr.App.1978). In that case, this court stated:

“After ... the complaining witness had testified as to the crime by defendant and after she had been allowed to be impeached by defendant as showing a contradictory statement by her, the State was allowed to prove prior consistent statements by her, that is, statements consisting of complaints that defendant had had carnal knowledge with her.”

The identical situation occurred in this ease. Therefore, the trial judge properly allowed into evidence Ms. Collins’ testimony concerning the victim’s statement made to her about the rape by her father. This testimony was used to rehabilitate the victim, not to prove the truth of the matter asserted.

V

The appellant contends that the State failed to prove a prima facie case and therefore his motion for a judgment of acquittal was improperly denied.

From our review of this record, it is clear to this court that the State presented sufficient evidence from which the jury could conclude that the appellant was guilty of the offenses charged in the indictment, beyond a reasonable doubt. Harris v. State, 333 So.2d 871 (Ala.Cr.App.1976); Jackson v. State, 414 So.2d 1014 (Ala.Cr. App.1982); Jennings v. State, 439 So.2d 771 (Ala.Cr. App.1983).

For the reasons stated above, the judgment of the trial court is due to be and is hereby affirmed.

Affirmed.

All the Judges concur.


text:
    James Ron McCULLOUGH v. STATE of Alabama.
    1 Div. 636.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.
    Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and James E. Hasser, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

James Ron McCullough was charged by indictment with the first degree robbery of Complete Package Food Stores, Inc., by use of force through presenting a pistol to the person of one Janice M. Barrett and removing some $271.27 from her possession while so armed, contrary to § 13A-8-41, Code of Alabama 1975. The jury found the appellant guilty of robbery in the first degree as charged and at a sentencing hearing, the trial judge set sentence at 20 years’ imprisonment pursuant to the provisions of § 13A-5-6(a)(4), Code of Alabama 1975 as amended.

On November 20, 1981, Mrs. Janice Barrett was employed at the Compac Food Store on Three Notch Road and Gunn Road, Mobile, Alabama, working the eleven to seven shift in the evening. Another employee named Roberta Gird was also on duty in the store with her. That night the appellant, James Ron McCullough, entered the store accompanied by another young white male, walked up to the cash register and pointed a pistol in Mrs. Barrett’s face. She was directed to place the proceeds of the cash register in a paper bag, the appellant stating to her, “I’m serious. This is a robbery.” He further stated, “Do as you are told and no one will be hurt.”

The proceeds were turned over to the appellant and after the two young men left the store a call was made to police headquarters and a description of the vehicle and the two young white males given to the officers.

Mobile Police Detective Harold Donald was driving with his companion, Officer Baker, when they received the call to go to the store in question. While driving toward the store they encountered a vehicle, being a white Chevrolet, matching the description of the vehicle used in the robbery and occupied by three white males. The officers gave chase and stopped the vehicle which the appellant was driving. A small handgun which contained three live rounds and one blank was found, together with some $271.27 which had just been removed and was in a paper bag. A metal change box was also recovered.

At trial the two women working in the store positively identified the appellant in court as being the party who had the weapon and who robbed them on the night in question.

I

The sole issue raised on appeal is with reference the punishment herein imposed pursuant to the provisions of § 13A-5-6(a)(4), Code of Alabama 1975 as amended. The trial judge indicated that it was mandatory for him to impose a'20 year sentence under this statute.

At the sentencing hearing, counsel for the appellant specifically objected and excepted to the trial court’s action in proceeding under this enhancement statute and imposing a 20 year sentence in the case at bar. Record 137-141.

On appeal, the appellant’s counsel urges this court to reverse the action of the trial court by stating that to invoke the enhancement provisions of the Alabama Statute herein referred to is to impose two punishments for thé same crime, thus violating the double jeopardy provisions of the United States Constitution.

This issue has not been spoken to directly by the appellate courts of Alabama. In reviewing the constitutionality of a statute in Alabama, we find the following language by Mr. Justice Bloodworth in Hamilton v. Autauga County, 289 Ala. 419, 268 So.2d 30 (1972), to be helpful:

“It is well established in our law that, ‘In the interpretation of statutes, the legislative will is the all important or controlling factor, and it has been frequently stated, in effect, that the intent of the legislature , constitutes the law_’ Weill v. State, ex rel. Gaillard, 250 Ala. 328, 333, 34 So.2d 132, 136 (1948). 18 Ala. Digest, Statutes, Key 181(1).
“And, this court has also held that, ‘... We can only learn what the Legislature intended by what it has said and have no right ‘to stray into the mazes of conjecture or search for an imaginary purpose.’ Holt v. Long, 234 Ala. 369, 372, 174 So. 759, 761 (1937).”

In construing this same statute with reference to an assault conviction, Judge Bowen, speaking for this court in Norwood v. State, 424 So.2d 1351 (Ala.Cr.App.1982) indicated:

“This Court ‘cannot assume a meaning not expressed by sentence.’ Jarnigan v. State, 222 Ala. 143, 132 So. 50 (1930). ‘On appeal the judgment of the primary court is presumed to be correct.’ Hopkins v. State, 51 Ala.App. 510, 514, 286 So.2d 920 (1973). In reviewing sentences on convictions this Court will indulge all reasonable presumptions in favor of the trial court. Howard v. State, 36 Ala. App. 191, 192, 54 So.2d 87 (1951). ‘(O)n appeal we presume that the trial court in imposing such sentence acted wholly within the law.’ Yates v. State, 31 Ala. App. 362, 363, 17 So.2d 776, cert. denied, 245 Ala. 490, 17 So.2d 777 (1944).”

The applicable provisions of § 13A-5-6(a)(4), Code of Alabama 1975, read as follows:

“(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations:
“(4) For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 20 years.”

This court on at least two occasions has approved the imposition of the enhancement provisions under the above statute. See Wright v. State, 423 So.2d 345 (Ala.Cr.App.1982) and Russell v. State, 428 So.2d 126 (Ala.Cr.App.1982).

The precise issue herein raised has been answered by the Supreme Court of the United States in reviewing the pertinent Missouri statute in the case of Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

Mr. Chief Justice Burger in rejecting the double jeopardy argument stated the following:

“Where, as here, a legislature specifically authorizes cumulative punishment under'-two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, [Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ] a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.”

In relying on the foregoing opinions, we note that there is a clearly expressed legislative intention that an enhanced punishment is authorized for the specific conduct herein at issue. There is no error and no infringement of any constitutional right of the appellant.

This record is free of error and this case is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte James Ron McCULLOUGH. (In Re: James Ron McCullough v. State).
    83-670.
    Supreme Court of Alabama.
    May 25, 1984.
    Paul D. Brown, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   PER CURIAM.

Petition for writ of certiorari is denied. Ala.Cr.App., 451 So.2d 398 In denying the writ, we are not to be understood as agreeing that the presumption of correctness rule stated in Norwood v. State, 424 So.2d 1351 (Ala.Cr.App.1982), or the rule of statutory interpretation stated in Hamilton v. Autauga County, 289 Ala. 419, 268 So.2d 30 (1972), has any application in the instant context of a constitutional challenge. Nevertheless, we deny the writ on the authority of Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

WRIT DENIED.

TORBERT, C.J., and MADD.OX, JONES, SHORES and BEATTY, JJ., concur.


author: SAM TAYLOR, Judge.

text:
    James Wayne THOMASON v. STATE.
    3 Div. 853.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, ,1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-616.
    Charles M. Law, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen.; and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Appellant Thomason was convicted of manslaughter as a result of an automobile collision and was sentenced to ten years’ imprisonment. On appeal he asserts that the state failed to prove a prima facie case of homicide.

I

As appellant’s first attack on the prima facie case, he contends that it was never proven that the victims were dead. We cannot agree. Proof of death of the victims of the collision was made by the testimony of a fire-medic. He testified about tests he ran at the scene, including an EKG strip which showed no electrical heart activity. He found the victims had no pulse or blood pressure, and their pupils were already dilated and fixed. We further find that the court correctly accepted the fire-medic as an expert witness within the range of matters testified to by him. Paramedics are the most highly trained medical personnel available at the location of many injuries, and they qualify as experts under our evidentiary rules. Furthermore, even a non-expert witness at the scene could have testified that the victims were, in fact, dead. Dismukes v. State, 346 So.2d 1170 (Ala.Cr.App.1977).

II '

Appellant next attacks the establishment of a prima face case by asserting that there was a failure to prove the cause of death.

Since there were no living eye-witnesses to this collision except the appellant, the state’s case was necessarily based upon circumstantial evidence. The state’s case tended to prove that the appellant was driving on the wrong side of the road and crashed head-on into another vehicle occupied by two women, both of whom were killed instantly. Twenty minutes after the officers arrived at the scene of the collision, appellant was taken to the hospital. Because he became belligerent when an attempt was made to take a blood sample from him, the sample had to be drawn after handcuffing him to the bed. Appellant’s blood alcohol at that time was .30.

Appellant had been arrested for drunk driving offenses on previous occasions. The question whether the state presented sufficient circumstantial evidence to warrant submission of the case to the jury is due to be answered in the affirmative. In a similar case, Jolly v. State, 395 So.2d 1135, 1138 (Ala.Cr.App.1981), this court, speaking through Judge Bowen, stated:

“In reviewing the sufficiency of circumstantial evidence 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.’ [Citations omitted.] Dolvin v. State, 391 So.2d 133, 137 (Ala.1980); Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). On review, this Court is required to consider the evidence in the light most favorable to the prosecution. McCord v. State, 373 So.2d 1242 (Ala.Cr.App.1979); Coleman v. State, 37 Ala. App. 406, 69 So.2d 481 (1954). This Court must take the evidence favorable to the prosecution as true, and accord to the State all legitimate inferences therefrom. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. quashed, Ex Parte Johnson, 378 So.2d 1173 (Ala.1979).”

Applying these principles to this case, we conclude that the court properly sent the case to the jury. Palmer v. State, 401 So.2d 266 (Ala.Cr.App.), cert. denied, 401 So.2d 270 (Ala.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). Accordingly, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Joe STEPHENS v. STATE.
    4 Div. 204.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-682.

      Larry Grissett of Prestwood, Prestwood & Grissett, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., and Michael Bownes, Montgomery, for appellee.
   SAM TAYLOR, Judge.

Appellant Joe Stephens was convicted by a Covington County jury of stealing a lowboy trailer, the property of Larkin Broom. He was sentenced to eight years’ imprisonment, from which he appeals, alleging numerous grounds for reversal.

I

Appellant contends that a twelve-year-old witness was incompetent to give testimony in this case. The court, in accordance with § 12-21-165, Code of Alabama 1975, examined the witness, Bobbi Jo Compton, asking her various questions to determine her intelligence and knowledge. In answer to the question, “Did you understand what the oath meant?” the witness answered, “No.” But then in the course of questioning by the court, it became clear that she did understand that she was obliged to tell the truth and understood what that meant as evidenced by the following exchange:

“THE COURT: And you know what happens to folks if they don’t tell the truth?
“MISS COMPTON: Yeah.
“THE COURT: Do you go to church and Sunday School?
“MISS COMPTON: Uh-huh.
“THE COURT: And you are twelve and you will be in the seventh grade? So you moved along regularly in school?
“MISS COMPTON: Yes.
“THE COURT: And you know what the meaning of telling the truth is?
“MISS COMPTON: Uh-huh.
“THE COURT: You know when you swore to tell the truth, what did that mean to you?
“MISS COMPTON: Tell what you know. “THE COURT: How was that?
“MISS COMPTON: Tell what you know.
“THE COURT: Tell what you know and don’t tell it if you don’t know it.
“MISS COMPTON: Yes, sir.”

We can find no error on the part of the trial judge. As this court has said “... the determination of a child’s qualifications to take a witness’s oath is necessarily vested in the sound discretion of the trial judge, who has the opportunity of observing the manner and appearance of the child while being examined, unlike the appellate courts, which are not afforded such an opportunity.” Coleman v. State, 443 So.2d 1355 (Ala.Cr.App.1983). See also annotations to § 12-21-165, Code of Alabama 1975.

II

During direct examination, a witness volunteered a statement to which appellant objected on the grounds that it was nonresponsive; then appellant moved to exclude the statement. The court did not rule on this objection. Since an adverse ruling is a prerequisite to preservation of error for appellate review in this instance, we have nothing to review. Walker v. State, 416 So.2d 1083 (Ala.Cr.App.1982).

III

Appellant contends that the court erred in overruling his motion for a judgment of acquittal; he contends that his motion should have been granted because he was convicted on the testimony of an accomplice without corroboration. Applying the test of eliminating the testimony of the accomplice and determining whether the remaining incriminating evidence sufficiently tended to connect the defendant with the crime, we find that it did. See Ware v. State, 409 So.2d 886 (Ala.Cr.App.1981), writ quashed, 409 So.2d 893 (Ala.1982).

The appellant made incriminating statements to Officer Tommy Adams of the Covington County Sheriff’s Department. There was further testimony of the appellant’s attempt to get together with another party to resist or combat the evidence of one Jim Paul, a prosecution witness. Both of these instances show some probability that the defendant was linked to the criminal occurrence. There was further testimony from one Evans Compton, that the appellant gave him the following message for his (the witness’s) son Jimmy: “You tell him to lay low because after February me and him both walk away from this thing free.” The appellant also stated to the witness that, “If Jimmy comes back, we’re gonna be in trouble. If Jimmy stays away, we’re gonna get out of this thing.”

There was further evidence implicating the appellant in his statements to one Patty Dozier. Miss Dozier testified that the appellant told her that his lawyer found out Dan Dozier was going to be a witness for the state against him. She quoted him saying “He wanted to know what in the shit was going on. And whether or not I need to load my damn gun.”

We find the remainder of the evidence powerfully connects the defendant with the commission of the offense and no error was committed in denying the motion for judgment of acquittal on this ground.

IV

Appellant contends the court erred in charging the jury on aiding and abetting. Appellant made a statement to Officer Adams that he (the appellant) “had let Jimmy borrow his diesel truck knowing that Jimmy was going to steal the trailer. He met Jimmy on Highway 55 South. He said (sic) on 55 South in his personal car and followed him to Tampa, Florida, with the trailer.” From this we find that the charge on aiding and abetting in the commission of an offense was supported by facts in the record, and properly given.

V

Appellant next contends that the court erred in overruling a motion for a new trial on grounds that the state introduced into evidence a writing made by appellant. Appellant claims this introduction was made after the state responded to appellant’s discovery motion by indicating that the prosecution did not have any writing made by the defendant. During the hearing on the motion for new trial, prosecution counsel, Mr. Lanier, testified that he “was not aware of any note until the day of the trial when Jimmy Compton’s sister brought this note up and showed to me.” Mr. Porter Harris of the district attorney’s office, who was responsible for preparing information and documents to be provided defense lawyers, testified that he had never seen the note and that the note was not part of the state’s file.

Since the state did not receive the writing until the day of trial, it would have been impossible to produce this evidence at the time appellant’s first attorney filed his request for production.

Furthermore, the general rule is that “the accused in a criminal case has no inherent right to the inspection or disclosure of evidence in the possession of the prosecution.” C. Gamble, McElroy’s Alabama Evidence § 290.05(1) (3rd ed. 1977).

This rule is not applicable in cases where evidence exculpatory to the accused has been suppressed by the prosecution. McElroy’s, supra § 290.05(3). However, this evidence was highly inculpatory to the defendant and thus not covered by this exception. Thus, we find no error in the trial court’s denial of appellant’s motion for new trial.

VI

Appellant assigns as error several occurrences during trial which are not before us because they were not properly preserved. It has long been the law that a general objection is not sufficient to per-serve an issue for review, LeCroy v. Wiggins, 31 Ala. 13 (1857), unless the evidence objected to is patently inadmissible. Hughes v. State, 412 So.2d 296 (Ala.Cr. App.1982); Potter v. State, 416 So.2d 773 (Ala.Cr.App.1982). A specific objection to an objectionable question, which sets out the wrong grounds, waives all other grounds of objection. Alabama Casket Co. v. Castleberry, 47 Ala.App. 117, 251 So.2d 372 (1971); C. Gamble, McElroy’s Alabama Evidence § 426.01(11) (3rd ed. 1977).

Accordingly, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Winford Ray HARRIS, alias v. STATE.
    6 Div. 999.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-657.
    John A. Bivens, England & Bivens, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty of robbery in the first degree under the first count of an indictment, as follows:

“The Grand Jury of said County charges that before the finding of this Indictment WINFORD RAY HARRIS, ALIAS BILLY RAY HARRIS, ALIAS WINFRED RAY HARRIS, ALIAS WINFRED HARRIS, ALIAS ‘BO’, whose name is otherwise unknown to the Grand Jury, did in the course of committing a theft of one (1) J.C. Penney brand automobile type stereo cassette player, a better description of which is otherwise unknown to the Grand Jury, the property of J.C..Penney Co., Inc., a corporation, threatened the imminent use of force against the person of Larry Pate, a person present, with the intent to compel acquiescence to the taking of or the escaping with the property, while the said WINFORD RAY HARRIS, ALIAS BILLY RAY HARRIS, ALIAS WINFRED RAY HARRIS, ALIAS WINFRED HARRIS, was armed with a deadly weapon, to-wit: a knife, inviolation of Section 13A-8-41 of the Code of Alabama.”

A sentence hearing was duly conducted at which the State invoked the provisions of the Habitual Felony Offenders Act, after having given due notice thereof to the defendant, and established by the evidence that he had been previously convicted of three felonies. The trial court fixed his punishment at imprisonment for life without parole pursuant to Alabama Criminal Code § 13A-5-9(c)(3).

The defendant, an indigent prisoner, was represented in the trial court by an attorney of the Tuscaloosa County Public Defender’s Office. Within, but barely within, the time for filing a motion for a new trial, a pro se handwritten motion, captioned “Motion For a New Trial, Or Motion To Reduce Sentence and Motion For Appointment of Counsel ” was filed by defendant. Except for that aspect of the motion asking for the appointment of counsel, the motion was overruled by the court. In accordance with the aspect of the motion asking for the appointment of counsel asserting that defendant had been denied effective assistance of counsel and a request by defendant’s trial counsel “that our office be withdrawn as attorney of record in this case and that other counsel be appointed for the appeal of the conviction,” the trial court appointed another experienced attorney of the Tuscaloosa Bar to represent appellant, who has ably presented two contentions for a reversal, which we now consider.

The first issue presented by appellant is thus captioned in appellant’s brief:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO GIVE THE DEFENDANT’S REQUESTED CHARGES WHEN THE COURT FAILED TO SUBSTANTIALLY COVER THE INFORMATION COVERED IN THE REFUSED CHARGES.”

Defendant’s requested written charges, No. 5, 6, 7, and 8 are charges pertinent to lesser included offenses of robbery in the first degree. Although we are not persuaded that appellant is correct in his contention that it was reversible error for the trial court to have refused any of such charges, such charges pertained also to a vital question as to whether there was sufficient evidence to warrant a conviction of defendant of robbery in the first degree, which we will hereinafter consider.

Appellant captions the second issue presented by him as follows:

“THE TRIAL COURT COMMITTED GROSS PREJUDICIAL ERROR WHEN IT DENIED DEFENDANT’S REQUEST FOR A CONTINUANCE WHICH DENIED DEFENDANT AN OPPORTUNITY TO ADEQUATELY PREPARE A DEFENSE.”

Before the commencement of the trial of this case, there was a lengthy in camera hearing conducted, in which defendant’s counsel stated that he had represented defendant in a previous robbery case that was tried about three weeks before and was presided over by a judge of the Tuscaloosa Circuit Court other than the trial judge in the instant case and that at such time said attorney had “worked on both cases.” The attorney stated further:

“... He was returned to the State [State Prison as distinguished from the County Jail] and was subsequently returned to the Tuscaloosa County Jail this past Thursday. I attempted to see Mr. Harris on Friday. I could not do so because he remained in a cell and would not go to the interview room. On Sunday — yesterday—I sat and talked with Mr. Harris at the jail and it was at that time that he informed me that he was not prepared to go to court on the case that we’re in court on today, that he feels that there is a lot that is happening to him. He has some animosity toward the Public Defender’s office as being his attorney as well as the judicial system. He indicated that he was planning legal maneuvers concerning his conviction of the case on March the 2nd, 1982. As I indicated also I informed the District Attorney’s office about Mr. Harris’ attitude about this case and we’re here before the Court and, in addition, I would say that I have talked with him about the facts of the case, I’ve worked on the case as much as he’s asked me to do in preparation of the case. It’s at this point that I’ll allow Mr. Harris to say to Your Hon- or whatever he feels is appropriate concerning the case.
“MR. HARRIS: Your Honor, I feel that they are rushing me. I feel that I ain’t ready and they’re rushing the case which I just left the Court a week and a half ago and I ain’t had time ’nuff to do the things I need and get the witnesses and things together, and the things that I need in this case. I can’t see nothing but they just bringing me over here just to— (interrupted).
“THE COURT: What’s the date of the Indictment in this case?
“MS. BLUME [Assistant District Attorney]: I'll have to go look it up, Your Honor. I believe it’s in October of 1981. In fact, this — October 16th, 1981.
“MR. HARRIS: They took this case over and come before the other one. They took that one and tried that one, you know, so, you know, they put me on pre-trial investigation on the other case which I, you know, I don’t know what they trying to do. I weren’t up, and they come with this case right behind that case, you know. Try this one before that one had even been tried. I don’t know what they trying to do, but I ain’t ready for this trial. They just rushing me.”

The colloquy among the trial judge, the Assistant District Attorney and the defendant continued, as shown by approximately two more pages of the court reporter’s transcript, to the following conclusion of the trial court:

"... The Court has considered the statements of the Defendant and also considered the statements of the State’s attorney and the Defense attorney in this case and, therefore, the Defendant’s pro se motion for a continuance is denied. The jury has been sent to this Court for the trial of this case and the trial will proceed.”

Thereupon, the available jurors were called, questioned, qualified for the panel from which the jury that tried the case was selected, and the trial proceeded.

The only testimony in the case was by witnesses called by the State. According to the undisputed evidence, while the defendant was in the course of committing the theft of a cassette player owned by J.C. Penney Co., he was followed out of the store by an official of J.C. Penney Co. who brought him and the player back into the store. Upon their return to the interior of the store, Mr. Larry Pate, an automotive salesman of the store, called the telephone operator to alert the store security and the police. Mr. Pate testified, inter alia, as follows:

“Mr. Harris was stating that he was not trying to steal anything. ‘Do not call the police.’ ‘Please do not call the police.’ I do believe Mr. Littlejohn told him that the police had already been called and the police come to the security room, which is in the office area.
“Q. Okay. Did you then proceed to the office area?
“A. Yes, we did.
“Q. Would you please describe who was standing where?
“A. As I recall, Mr. Lowe was on the right, Mr. Littlejohn was on the left. I was standing behind them. We walked to the office — toward the office area.
“Q. All right. And is that on a different, let’s say, wing of Penney’s — the office area?
“A. Yes, you have — when you leave the automotive you walk down an isle, you take a ninety-degree turn to the left, and then walk about the same distance again.
“Q. What, if anything, happened when you got — when you were almost to the door of the office?
“A. Mr. Harris made a sudden lunge, threw his arm back, and just lunged out the door.
“Q. When he made this sudden movement, what, if anything, happened to you?
“A. I was aware of the fact that I had been cut.
“Q. All right. Could you show the ladies and gentlemen of the jury where you were cut?
“A. I was cut in this area right here (indicating).
“Q. After Mr. Lowe tackled Mr. Win-ford Ray Harris, what happened?
“A. Okay. Like I said, I told him — I hollered that he had a knife. I believe Mr. Littlejohn hollered, ‘Let him go.’ He got off — Mr. Lowe got off of Mr. Harris.
Mr. Harris got up and Mr. Lowe proceeded immediately behind him and I proceeded behind Mr. Lowe. And when I got out the door, Mr. Harris had turned around and was running back at Mr. Lowe.
“Q. All right. You were behind Mr. Lowe?
“A. Correct.
“Q. Did you see the knife?
“A. Yes.
“A. Mr. Lowe turned around and turned around. And — (interrupted).
“Q. Did you go back into the store?
“A. We walked back toward the store, yes.
“Q. Okay. Where was Mr. Harris?
“A. He was approximately in the area where the liquor store is just up from that just a little ways.
“Q. Was he moving?
“A. Yes.
“Q. How was he moving?
“A. Quickly.
“Q. Okay. Was he running?
“A. Yes.
“Q. Was he running away from J.C. Penney?
“A. Yes, he was running in the direction of Pizitz.
“Q. And did you at any time on the night of September 15th have the particular car stereo in your possession?
“A. No.
“Q. Did you see it at any time that night?
“A. Yes.
“Q. Where was it when you saw it?
“A. Okay. I noticed Mr. Harris had it when he was going out the door. Mr. Lowe had it when he returned.

At the conclusion of the evidence and before the attorneys commenced their arguments to the jury, there was a lengthy in camera colloquy among the trial judge and the attorneys as to the applicable law. During that hearing, counsel for the defendant stated:

“All right, sir. Now, also, specifically the Defense would move to exclude the State’s evidence as to Count one charging Robbery in the First Degree and would argue in support of that Motion that the force or threatened use of force necessary to constitute Robbery is the force or threatened use of force in attempting to detain possession of the property or to effect an immediate escaping with the property and that the evidence in this case points to the fact that the property had been recovered and was in the possession of J.C. Penney’s, that some several minutes elapsed before that or any threats or assaults on any person present and we’d argue to the Court that that does not constitute robbery, that it constitutes an assault or a theft and that once a successful theft followed by use of force to resist apprehension it would not constitute robbery and I move to exclude the State’s evidence as to Count one in that the evidence does not support a case of Robbery in the First Degree.”

There was a response by the attorney for the State expressing disagreement with the position taken by the defendant’s attorney. The learned trial judge, whom we recognize as one of the ablest trial judges of Alabama and one who perhaps has no superior in his knowledge and understanding of the relatively new Alabama Criminal Code, made it clear that he disagreed with the position taken by defendant’s attorney in his construction of the language of the Code section under which defendant was indicted, and the related language of Alabama Code § 13A-8-43 as follows:

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

The first issue presented by appellant by which he contends that the court committed error by refusing to give some of defendant’s requested charges does not specifically include the question raised by defendant’s attorney in his motion to exclude the evidence as to the crime expressly charged in the indictment of robbery in the first degree, but there is such a close relation between such issue on appeal and the contention of defendant’s attorney on the trial, which was rejected by the trial court, that we feel that justice requires, and that procedural law and rules do not prohibit, a determination by us at this time of whether a jury question was presented as to whether defendant was guilty of robbery in the first degree. We appreciate, as did the trial court, the importance of a correct construction of the statute, particularly this language thereof, “with the intent to compel acquiescence to the taking or the escaping with the property,” which is also in the indictment. The statutory context of the quoted language is not complete without the inclusion of that part of § 13A-8-41 which states alternatively:

“(a) A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 [defining and proscribing robbery in the third degree] and he: “(1) Is armed with a deadly weapon or dangerous instrument ....”

Under the undisputed evidence in the instant case, the defendant neither used nor threatened the use of force against the person of Larry Pate with “the intent to compel acquiescence to the taking of or escaping with the property” as to which he was in the course of committing a theft. At the only time that he used force or threatened the imminent use of force against Mr. Pate, defendant was obviously attempting to escape or otherwise prevent his detention, arrest, and imprisonment, under circumstances that preclude the possibility of any intent on his part to compel acquiescence to the taking of or escaping with the property. He had failed in his attempted theft of the property. It was not on or about him at the time. He had taken it, but thereafter it had been taken from him, and it was not then within his power to take it again. It is understandable that some legislators or some of the eminent lawyers, judges, law professors, and other highly regarded personnel may have intended that conduct such as the defendant committed on the occasion involved be sufficient to constitute robbery and even that such was the intention of the Alabama Legislature in its enactment and adoption of the Alabama Criminal Code, but the statutory language employed does not permit such a construction. As stated by the Alabama Supreme Court per Justice Embry in Town of Loxley v. Rosinton Water, Sewer & Fire Protection Authority, Inc., Ala., 376 So.2d 705, 708 (1979):

“... In determining what is meant or intended by a statute, the underlying consideration, always, is to ascertain and effectuate the intent of the legislature as expressed in the statutes. ■ While specific language used by the legislature is subject to explanation, such language cannot be detracted from, or added to. May v. Head, 210 Ala. 112, 96 So. 869 (1923). Furthermore, when the language of a statute is clear and unambiguous, there is no room for judicial construction. Employees Retirement System of Alabama v. Head [369 So.2d 1227 (Ala.1979) ], supra. ...”

In reaching the conclusion that there was no substantial evidence that defendant was guilty of the crime expressly charged in the indictment, we do not overlook, but give full weight to § 13A-8-40, which provides:

“(a) The definitions contained in Section 13A-8-1 are applicable to this article unless the context otherwise requires.
“(b) ‘In the course of committing a theft’ embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.”

We do not hold that any of the conduct of the defendant on the occasion involved was not “in the course of committing a theft.” We hold that defendant’s conduct did not constitute robbery for the reason that he neither used nor threatened any force against the alleged victim “with intent to compel acquiescence to the taking of or escaping with the property” that he had stolen or had attempted to steal. We do not hold that under the evidence he was not guilty of some lesser included offense.

The judgment of conviction and sentence should be reversed and the cause remanded to the trial court for a new trial as to some lesser included offense or offenses, exclusive of robbery in the third degree, or for any other appropriate proceedings consistent with this opinion.

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.

REVERSED AND REMANDED.

All the Judges concur.