text:
    Ex parte Debra BRACEWELL. (Re Debra BRACEWELL, alias v. STATE of Alabama).
    82-994.
    Supreme Court of Alabama.
    Feb. 24, 1984.

      J. Fletcher Jones, Andalusia, and Donald Colquett, Opp, for petitioner.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
   PER CURIAM.

We granted certiorari in this case to examine the question of whether the oral and written confessions of the defendant Brace-well were obtained in violation of the Fourth Amendment to the United States Constitution. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), Ex parte Meeks, 434 So.2d 844 (Ala.1983).

Bracewell was originally convicted of the capital murder of Rex Carnley by shooting him with a pistol during the commission of a robbery. Her original conviction and sentence of death were eventually overturned on the authority of Beck v. State, 396 So.2d 645 (Ala.1980). See, Bracewell v. State; 401 So.2d 119 (Ala.Cr.App.1978), rev’d, 401 So.2d 123 (Ala.1979), on remand, 401 So.2d 124 (Ala.Cr.App.1980), cert. denied, 401 So.2d 130 (Ala.1980), vacated, 449 U.S. 915, 101 S.Ct. 312, 66 L.Ed.2d 143 (1980), after remandment, 401 So.2d 130 (Ala.Cr.App.1981), cert. denied, 401 So.2d 130 (Ala.1981).

On her second trial for the offense, Bracewell was found guilty as charged and was sentenced to life imprisonment without parole.

In her petition for certiorari, Bracewell contends that the Court of Criminal Appeals erroneously affirmed the trial court’s failure to properly apply the “totality of circumstances” doctrine by not considering all of the important facts and circumstances, such as her age, education, low mentality, and economic background in determining whether the confession was the product of a rational intellect, knowingly and intelligently made by voluntarily waiving her privilege against self-incrimination and her right to have appointed counsel. Alternatively, she claims that the confessions were obtained while she was being illegally detained and should have been suppressed as the fruits of an illegal arrest. The Court of Criminal Appeals, in a lengthy opinion, discussed the evidence which was presented on the question of the voluntariness of Bracewell’s confession, and concluded that there was ample evidence presented, including Bracewell’s own testimony, for the trial court to make a voluntariness determination.

The Court of Criminal Appeals did not reach the merits of Brace well’s contention that her oral and written confessions were inadmissible as evidence because they were the fruits of an illegal arrest, because, as that court said, “the appellant did not object, at trial, to the admissibility of her confessions on the ‘fruit of an illegal arrest’ ground, and she did not state this as a ground in her motions to suppress or her motion for a new trial.”

Bracewell, in her brief filed in this Court, claims that the opinion of the Court of Criminal Appeals incorrectly states certain facts which either did not appear in the trial transcript or which were stated so as to create a prejudicial misapprehension of the true facts. Bracewell’s contention with regard to the facts contained in the transcript of this case comes too late. She did not take advantage of the provisions of Rule 39(k), Ala.R.App.P. If she was not satisfied with the statement of facts contained in the opinion, she should have, on application for rehearing in the Court of Criminal Appeals, presented any additional or corrected statement of facts to that court and requested that court to add or correct those facts in its opinion on rehearing. We will not notice any plain error in the proceeding as we would have done if the death penalty had been imposed. Rule 45B, Ala.R.App.P. We have examined the opinion of the Court of Criminal Appeals, the principles of law cited in that opinion, and the briefs filed by the parties in this case, and we are of the opinion that the judgment of the Court of Criminal Appeals is due to be, and the same is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Marvin HOLLEY v. STATE of Alabama.
    7 Div. 124.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Quashed Feb. 24, 1984 Alabama Supreme Court 83-203.
    Rehearing Denied in Supreme Court March 23, 1984.

      W.M. Beck, Sr. of Beck & Beck, Port Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James P. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Marvin Holley was charged with unlawfully selling, delivering or having in his possession, contrary to law, a quantity of marijuana in excess of 2.2 pounds. The jury found the appellant “guilty as charged in the indictment” and the trial court, following a sentencing hearing, set sentence at imprisonment in the penitentiary for 10 years and fixed a fine of $25,000.

The appellant filed a motion for new trial challenging the weight and sufficiency of the evidence, particularly challenging the appellant’s knowledge that such marijuana was on his premises. This was duly overruled following a hearing thereon.

Jim Mays testified that on October 5, 1981, he was Deputy Sheriff for DeKalb County, Alabama, and accompanied by a search warrant and several fellow officers, he went to the home of the appellant and presented him with the search warrant. The officers who accompanied him were Chief Deputy Cecil Reed, County Investigators Eddie Wright and Noel Hicks, Dale Orr, Assistant Chief Deputy and Donnie Wagner, also a deputy. He stated that the appellant lived on the premises with his step-daughter, Lisa Holley, and a small child. Deputy Mays then described the premises and a chain length fence which went around the premises and indicated that the original home had been burned which had been a trailer type home. There was an out building which had been fixed up as living quarters and appellant and his step-daughter were living there. He then described a field approximately 40 to 50 feet behind the out building in which he found some 32 bales of marijuana wrapped in burlap and which, after weighing same, came to over 640 pounds. He also described finding a cellophane zip top bag which contained marijuana residue in a trash can in the kitchen and a set of scales and several other zip top bags outside of the residence in the back door of the trailer. Together with his fellow officers, they loaded the material and took it into the sheriff’s office where it was placed in the evidence room. He stated that some of the marijuana was still wet from moisture or rain.

Sheriff’s Investigator Eddie Wright testified that he had gone to the residence of Marvin Holley with Deputy Mays and other deputies and assisted in bringing the marijuana to the sheriff’s office. A few days thereafter he went into the evidence room and, in the presence of Chuck Nelson, took some of the green plant material from several of the burlap bags and placed it in plastic bags and then sealed it and initialed it. He stated that the green plant material had been wrapped in burlap sacks similar to potato sacks and estimated its value at approximately $300 a pound or about $150,-000.00.

Chuck Nelson testified that he received a clear plastic bag containing green plant material from Sheriff’s Investigator Eddie Wright which was marked while in the evidence room and then taken directly to Martha Odom at the Huntsville Grime Lab, all in October, 1981.

Ms. Martha Odom testified she received a large, clear plastic bag containing green plant material from DeKalb County Sheriff Chuck Nelson, on October 15, 1981. After performing some three different tests, she determined that the material was all marijuana, or cannabis setiva L and that this weighed 8.7 pounds. She stated that after performing the tests, the remainder of the material was picked up from her office by DeKalb Deputy Vernon Coots on November 4, 1981.

DeKalb Deputy Vernon Coots testified he picked up the plastic bag on November 4, 1981 from Ms. Odom and returned it to the evidence room at the DeKalb Sheriffs Office and turned it over to Deputy Don Wagner, who was in charge of the evidence room. Deputy Don Wagner testified that he received the bag from Deputy Coots in November, 1981, and brought this to court, marked State’s Exhibit 3, and that it had been in his care and custody since delivery to him by Deputy Coots.

The appellant’s motion to exclude the State’s evidence was overruled.

Appellant then presented testimony of Mrs. Dale Ray Dobbins and Mr. Joe Bethune, both neighbors, who testified that appellant's reputation was good.

The appellant also presented the testimony of Miss Carolyn Holley, his step-daughter, who testified that she lived with her step-father and was not aware of there being any marijuana on the premises, nor had she ever seen her step-father sell any.

Miss Lisa Holley, another step-daughter, testified that she was not present at her step-father’s home on October 5, 1981, but that her sister Carolyn was there. She testified that their approximately 12 acre tract was all entirely under fence and she had never known of her step-father using marijuana or selling marijuana, nor had she ever seen any marijuana at her step-father’s home.

Mr. Clarence Tinker, a neighbor across the road, testified that Mr. Holley’s reputation was good and that he had never heard of Holley selling marijuana or using marijuana.

Mr. John West, another neighbor, gave similar testimony.

The appellant himself took the stand and admitted that he was present with his stepdaughter when sheriff’s deputies came on October 5, 1981, and presented him with a search warrant. He stated that his farm was sixteen and one-half acres and that at least ten or twelve acres was under fence. He said that it was about 100 yards from his old chicken house out into the field where the burlap bags were found which contained the marijuana. He stated that he was unaware that the marijuana was on the premises and that he did not use it, had not sold marijuana, and did not know of its presence. He was a chicken farmer and the scales found on his premises were used to weigh chicken feed. He stated that he “hardly had enough money to buy groceries, but that he did receive Social Security and sold chickens.”

Mr. Holley denied selling marijuana and stated that he had two adopted children who lived with him and had been reared by him as his own since his wife’s death.

At the close of defendant’s evidence, the appellant again moved to exclude and discharge the appellant because the State had not met the burden of proof and asked for a directed verdict because it had not been established that the appellant knew of the marijuana’s presence on the premises which constituted the appellant’s residence.

This motion was overruled.

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

I

Appellant strenuously argues that he did not know of the presence of the marijuana on his premises which he maintained was found about 200 feet from his chicken house in a field and that his business was raising chickens and he was unaware that this quantity of marijuana or any marijuana was on the premises which constituted his residence.

The set of scales and clear plastic bags found at the house trailer on the premises were properly admitted by the trial judge to show “the complete story concerning the items found within the residence area.” Brantley v. State, 294 Ala. 344, 317 So.2d. 345 (1975) and Green v. State, 384 So.2d 1215 (Ala.Cr.App.1980) and Fields v. State, 333 So.2d 861 (Ala.Cr. App.1976).

The appellant contends that his motion to exclude at the close of the State’s case and that his motion for a directed verdict at the close of all evidence were due to be granted because the State did not prove beyond a reasonable doubt that the appellant had knowledge of the presence of the controlled substance at his home.

In Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 (1973), this court stated:

“In a prosecution for unlawful possession of narcotics it is not necessary to prove manucaption but constructive possession may be shown, and where such possession is relied upon the State must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520; Spruce v. State, 43 Ala.App. 487, 192 So.2d 747. See cases in 16 Alabama Digest, Poisons, Keynote 9.
“Such guilty knowledge may be established by circumstantial evidence and guilt does not necessarily depend upon ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761.”

See also Green v. State, 384 So.2d 1215 (Ala.Cr.App.1980) and Coleman v. State, 394 So.2d 82 (Ala.Cr.App.1981). Thus, the appellant’s motions were properly overruled.

In the case at bar, the appellant, at the hearing on the motion for new trial, presented the testimony of his adopted son, Stoney Holley, who testified that he lived in Jasper, Tennessee, and was afraid to come to DeKalb County at the time of the trial, because one “Red Daniels would kill me,” but that he had seen Red Daniels dump the large bags of marijuana in the rear of his father’s home on October 4, 1981.

The appellant testified he only found out about this from his daughter, Lisa Holley, after trial.

After hearing the evidence, the trial judge ruled that the matter of “knowledge” had been properly submitted before the jury at trial, based upon the issue of appellant’s knowledge of the presence of the marijuana, and overruled the motion for new trial.

This court is of the opinion that the trial judge properly overruled the motion for new trial as this testimony was cumulative of other evidence presented at trial. The issue of appellant’s knowledge of the presence of marijuana on the premises was a matter which was properly submitted to the jury. Henderson v. State, 347 So.2d 540 (Ala.Cr.App.1977), cert. quashed, 347 So.2d 543 (Ala.1977), and authorities therein cited; McHellen v. State, 351 So.2d 689 (Ala.Cr.App.1977); Coleman v. State, 394 So.2d 82 (Ala.Cr.App.1981); Dickerson v. State, 414 So.2d 998 (Ala.Cr.App.1982) and Luster v. State, 433 So.2d 481 (Ala.Cr.App.1983) and authorities cited therein.

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

AFFIRMED.

All the Judges concur.


author: RANDALL L. COLE, Circuit Judge.

text:
    Michael S. FINLEY v. STATE.
    5 Div. 698.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Jan. 31, 1984.
    Certiorari Denied March 23, 1984 Alabama Supreme Court 83-522.

      John Ben Jones, Lanett, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   RANDALL L. COLE, Circuit Judge.

The appellant was tried before a jury and convicted of intentionally burning grasslands in violation of Section 9-13-11, Code of Alabama 1975. The trial judge imposed a sentence of three years, with three months of the sentence to be served in the county jail and the remainder on probation. We affirm the conviction.

I

There was evidence at trial that the appellant intentionally started seven grass fires along Fob James Drive in a rural portion of Chambers County on October 4, 1981. The sufficiency of this evidence is not challenged by the appellant; however, he does challenge as insufficient the evidence offered by the state to prove that the land upon which the fires were set was not owned, leased, controlled or in the lawful possession of the appellant.

The. state sought to establish this element of the offense by proof that the land on which the fires were set was a part of the right-of-way of Fob James Drive. It is undisputed that all the fires were located either on the curb of the highway or within a few feet of the curb. The county engineer testified that the highway right-of-way map maintained by his office showed that the right-of-way for Fob James Drive was 170 feet wide and that the paved portion of the road located within the boundaries of the right-of-way was 42 feet wide, leaving unpaved right-of-way of 128 feet. The engineer testified that he had no personal knowledge of how far beyond the edge of the paved road the right-of-way extended at any given point, but that normally the paved portion of a roadway is constructed with substantially equal width of right-of-way on each side.

While the engineer’s testimony was not absolute proof that the land on which the fires were located was highway right-of-way, his testimony, taken together with evidence that the fires were burning on the curb or within a few feet of the curb, supplied sufficient evidence from which the jury could conclude that the fires were located on the highway right-of-way. Additionally, the jury had for its consideration the record of condemnation proceedings conducted in the Probate Court for acquisition of the highway right-of-way.

II

Next, the appellant contends that during closing argument the district attorney made an improper reference to the appellant’s failure to testify. The appellant moved for a mistrial as a result of the comment but the motion was denied by the trial court. The district attorney’s comment was as follows:

“I agree, at one time he said that, and on another occasion he said something else. He didn’t know what happened. I take that back, he does know what happened, he’s just not telling it.”

The closing argument of the district attorney in its entirety is a part of the transcript before the court, and upon a reading of the entire argument, it is clear that the above remark did not refer to the defendant, but to a defense witness, Steve Andrews. There was nothing in the district attorney’s closing argument which reasonably could have been construed by the jury to be a comment on appellant’s failure to testify.

The court has considered the appellant’s claims of error and finds them to be without merit. Accordingly, IT IS ADJUDGED that the conviction should be, and it is hereby, affirmed.

The foregoing opinion was prepared by the Honorable RANDALL L. COLE, Circuit Judge, temporarily on duty on the court pursuant to Section 12-2-30(b)(6), Code of Alabama 1975; his opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: SAM TAYLOR, Judge.

text:
    Robert Lee ROYAL v. STATE.
    6 Div. 18.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Quashed March 23, 1984 Alabama Supreme Court 83-304.

      George A. Nassaney, Jr., Asst. Public Defender, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Jan A. Wade, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

The appellant was found guilty of rape in the first degree and sentenced to life imprisonment without parole.

The victim in this case, a graduate teaching assistant at the University of Alabama, testified that on February 17, 1982, she was living in the 1500 block of 7th Street in Tuscaloosa. That night she went to bed around midnight with her apartment door locked and the key to it hung on a shoestring by the door. At approximately 5:30 a.m., the victim was awakened by the sound of breaking glass. She assumed her cat had broken something and arose to investigate. When she turned on the bedroom light a black man grabbed her by the neck. He held a silver-colored knife in her face, which appeared to be a kitchen knife or paring knife, and asked her several times, “See this?” He then turned his face away from her and said, “Don’t look at me now and turn off the light.” He forced her to the bed and told her, “You know what I want.” She grabbed at her assailant’s knife and discovered it was not very sharp. The appellant put the knife down and the prosecutrix attempted to run but was only able to move about two feet from him before he threw her back on the bed. He again threatened her with the knife and then performed oral sex on her; he next forced her to perform oral sex on him and finally he raped her.

The victim testified that once the sun began to rise she was able to observe her attacker’s face and she identified the appellant as the man who had raped her. She testified that upon his departure that morning, she went immediately to her landlady’s apartment and asked her to call the police.

Susanne Therry, who lived in the same general neighborhood as the victim, testified that at some time around 3 a.m. the same night, she awoke to see a black man standing in her bedroom about four or five feet from her, staring at her. There was light on in the room and she was able to identify the appellant as the intruder. A friend of Miss Therry’s was in bed with her asleep and the appellant left.

Witness Darlene Jones then testified that she had discovered that a small silver-colored stainless steel knife that was not very sharp and which was about six inches long had been stolen from her burglarized house the night before the prosecutrix was raped.

State witness Alphonzo Huggins was awakened by the appellant knocking on his door about 6:30 a.m. Appellant requested a ride back to Northport and Huggins drove him there.

Willie Marie Hinton of Northport said that the appellant, who had been a foster child in her home for many years, got out of a car in front of her house on the morning of February 18. She let him in the house and he told her he had had a good time.

Sergeant Alan Fondren of the Tuscaloosa Police Department testified on voir dire that the appellant admitted committing several crimes, including burglarizing the apartments of Susanne Therry and Darlene Jones. Officer Fondren’s testimony before the jury included reading portions of an inculpatory statement made by the appellant. Appellant admitted breaking into the victim’s apartment. Also read to the jury was appellant’s denial of raping the prose-cutrix since he claimed she gave her consent to have sexual intercourse with him after he broke in.

I

Appellant first contends that the trial court erred in allowing testimony concerning the Therry and Jones burglaries into evidence. It is true that when a defendant is on trial for one crime, evidence that he committed another is not admissible if that evidence is being proffered solely to show the defendant’s bad character and propensity to commit illegal acts. C. Gamble, McElroy’s Alabama Evidence § 69.-01(1) (3d ed. 1977).

There are, however, several well-established exceptions to this general exclusionary rule. One of these allows the admission of evidence of another crime where the evidence of the other crime, coupled with the evidence of the present crime, tends to show that the two crimes were committed under the same plan, scheme or design. Mayberry v. State, 419 So.2d 262 (Ala.Cr.App.1982), C. Gamble, McElroy’s Alabama Evidence, § 69.01(6) (3d ed. 1977).

In order for evidence of the two crimes to fall within the “plan, scheme or design” exception, there must be proof

“... of a working plan, operating towards the future with such force as to render probable both the act and the accompanying state of mind.” 2 Wig-more, Evidence § 300 (Chadbourn rev. 1979)

In addition, the crimes, to fall within this exception, should contain

“... such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” 2 Wigmore, Evidence § 304 (Chadbourn rev.1979)

The prior crimes committed by appellant were burglaries, although the crime for which he was being tried was rape in the first degree. However, “It is not necessary that the criminal acts in question be the same. Crimes entirely dissimilar ... may in fact be sufficiently connected ... to warrant their admissibility.” 1 Wharton’s Criminal Evidence § 248 (C. Torcia 13th ed. 1972).

A consideration of the evidence surrounding appellant’s break-in at the Therry apartment and his subsequent break-in of the prosecutrix’s apartment can only lead to the conclusion that the crimes were part of the same plan, scheme or design. The crimes were committed within hours of one another in the same neighborhood. In each instance the appellant broke into the apartment of a single woman and invaded her bedroom. It is true that Ms. Therry was not subjected to the sexual assault suffered by the victim in the instant case. Ms. Therry had company when the appellant broke into her apartment; the victim in the case now before us was alone.

Appellant also challenges the admissibility of testimony concerning the break-in of the Jones apartment. Ms. Jones, a young single female who lived in the same general neighborhood as Ms. Therry and the victim, testified that she left her residence on February 17, 1982, at 8 p.m. She returned on February 18th at approximately 2:30 p.m. to find that her garage apartment had been burglarized. She discovered that, among other things, a silver-colored knife was missing from her kitchen. The prose-cutrix’s description of the knife with which appellant threatened her matched the description of the knife stolen from Darlene Jones’s apartment.

This testimony is admissible under another exception to the exclusionary rule. All evidence concerning the existence of the knife, and thus by implication all evidence surrounding the Jones burglary, was relevant to the issue of whether appellant committed forcible rape. He claimed the special defense of consent; appellant’s theory of the case being that after he had broken and entered the victim’s apartment, she elected to have intercourse with him at her own free will. The exclusionary rule does not apply where a prior crime or bad act is being offered to rebut a special defense. Bates v. State, 405 So.2d 1334 (Ala.Cr.App.), writ denied, Ex parte Bates, 405 So.2d 1339 (Ala.1981).

A discussion of these two exceptions does not mean that some of the other exceptions listed in Bobo v. State, 56 Ala.App. 622, 324 So.2d 336 (Ala.Cr.App.1975), might not also apply.

We find no merit in this issue.

II

Appellant next claims that the trial court erred in admitting a confession which appellant claims was involuntary.

Sergeant Alan Fondren testified that he talked to appellant, Robert Royal, on March 15, 1982 at the County Jail. The witness stated that before that interview, appellant was read his Miranda rights. Royal indicated to Sergeant Fondren that he understood those rights and then he waived them. The police officer stated under oath that neither he nor anyone he knew coerced the appellant in any way to get his statement; Royal was not offered a reward or hope of reward and he was in no way threatened. The testimony on the issue of voluntariness was in conflict.

Appellant testified that Sergeant Fon-dren had told him or suggested that the blood test, as well as certain fingerprint evidence might implicate him. In addition, Royal claimed that Fondren told him he might also be charged in a two-year-old unresolved rape case. This was contradicted by Fondren.

Extra-judicial confessions are pri-ma facie involuntary. Rogers v. State, 365 So.2d 322 (Ala.Cr.App.), writ denied, Ex Parte Rogers, 365 So.2d 334 (Ala.1978). The trial court has the responsibility and authority to determine whether or not a confession has been made voluntarily. The court’s finding “will not be disturbed unless it appears contrary to the great weight of the evidence or is manifestly wrong.” Carter v. State, 53 Ala.App. 43, 297 So.2d 175 (1974). “Making decisions based on disputed facts is an essential duty of trial judges.” Sales v. State, 432 So.2d 560 (Ala.Cr.App.1983).

The court did not err in the determination of voluntariness.

Ill

The third claim appellant makes is that the trial court erred in that it erroneously admitted portions of the confession which included evidence of other crimes.

Specifically, appellant objects to the admission of the portions of the confession in which appellant admits burglarizing Darlene Jones’s apartment.

The testimony established that the knife used by appellant to threaten the victim closely matched the description of the knife taken in the burglary of the Jones apartment.

We find, therefore, that the portions of appellant’s confession dealing with the Jones break-in were clearly relevant to the issue of consent. Bates, supra.

Since we have previously established that the confession was voluntary, we find no error on the part of the trial court in admitting portions of it relevant to this case.

IV

Appellant next objects to the court’s not allowing him to prove that he made a certain answer to a question in his statement without putting the question into evidence. He also sought to doctor up the question and put that altered question into evidence. Originally, appellant’s objection to introduction of the parts of the confession dealing with other crimes was sustained. The trial court refused to allow any portions of the statement into evidence except those dealing with the Jones burglary and the instant offense. Essentially, appellant was asked how much time elapsed between the earlier burglary and the rape of the prosecutrix.

The appellant replied, “Now, I didn’t rape her.” The two questions preceding appellant’s response were as follows: “Where did you, go in on, and get the boots and these things up there on, next to the power company? How long was this before you went in on [the victim] and raped her?” Appellant argues that the question should be altered to read “You went in on [the victim] and raped her?” so that the questions and their reply would then exclude any references to other crimes.

The trial judge determines whether or not a statement is admissible. Hobbs v. State, 401 So.2d 276 (Ala.Cr.App.1981). The court had sustained appellant's objection to admitting those portions relating to other crimes. The court has the duty to decide whether to refuse to admit less than a question and answer or to permit the alteration of the statement.

Thus, appellant’s fourth issue is without merit.

V

Appellant next contends that he was improperly sentenced because of the way in which his prior felony convictions were used to enhance his punishment. Appellant had pled guilty to seven separate felonies on the same day and some of the sentences were concurrent. He now argues that the prior convictions should be treated as one conviction for sentencing purposes. This is simply not the law. The case of Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), makes it clear that convictions such as these are to be treated separately. See also, Burgess v. State, 412 So.2d 298 (Ala.Cr.App.1982), Chambers v. State, 418 So.2d 948 (Ala.Cr.App.1982).

We find that the court in no way erred when it sentenced the appellant as a habitual felony offender with three prior felony convictions.

For the foregoing reasons, this case is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    James Alvin INZER, alias v. STATE.
    6 Div. 915.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.

      Michael L. Chambers, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and R. David Christy, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

James Alvin Inzer was indicted on June 19, 1981, under a three count indictment charging this appellant with the capital offense of murder, when the killing was done for a pecuniary or other valuable consideration or pursuant to a contract or for hire. Alabama Code § 13-ll-2(a)(7) (1975). After a three day trial, commencing on April 19, 1982, the jury found appellant guilty of the lesser included offense of murder. A sentencing hearing was held, at which time appellant was sentenced to life imprisonment. From that conviction he now appeals.

Around '9:00 p.m. on March 21, 1981, Trussville police officer Louis Johnson received a radio dispatch to proceed to the scene of a one vehicle accident on Interstate 59 about three miles north of Truss-ville. He observed a red colored truck resting against a tree in the median dividing the interstate. Johnson noticed the severe damage to the front of the truck and observed the driver, later identified as James Taylor. The victim had suffered massive head injuries. Johnson checked the victim for signs of life and found none. He secured the scene until the arrival of Alabama State Trooper Eugene Melton, to which he relinquished control.

Hoyt Taylor, brother of the victim, stated that he last saw the victim alive on March 17, 1981. On March 24 he saw his brother reposed at the funeral home. Taylor noted that his brother had been a postman for about ten years and owned a red Toyota pickup truck, a photograph of which he identified. He was married to Susan Taylor and had two children. He identified a photograph of her. Taylor stated that appellant was his and the victim’s cousin. Appellant lived about one-quarter mile from the victim.

Alabama State Trooper Eugene Melton arrived on the scene of the apparent automobile accident around 9:30 p.m. He made a diagram of the scene, noting the distances of glass, debris, and skidmarks from the 138 mile post marker to the resting place of the truck. The diagram was introduced into evidence. Melton observed the appearance of the victim and did not detect the presence of alcohol in or around the truck or the victim.

On March 22, Dr. Charles Alexander performed an autopsy upon the body of the victim. Initially, Dr. Alexander was under the impression that the victim had been involved in an automobile accident. However, after having examined x-rays of the victim’s head wound, the character of his examination changed to that of possible homicide. Dr. Alexander removed fifteen shotgun pellets from the victim’s head injury and turned them over to Jefferson County deputy coroner Charles Robey. Dr. Alexander determined the cause of death to be a shotgun wound to the head.

Deputy Coroner Charles Robey participated in the investigation of the death of the victim and his autopsy. Robey had the victim’s body transported to Cooper Green Hospital where he observed Dr. Alexander perform the autopsy. He received from Dr. Alexander the victim’s clothing, glass fragments removed from the wound, a sample of head hair, and two envelopes containing shotgun pellets. He turned the pellets over to the Department of Forensic Sciences criminalist Lawden Yates.

On March 22, Alabama Bureau of Investigation investigator Marvin Roye became involved in the investigation of the victim’s death. Initially, he inspected the victim’s truck and removed numerous samples of green paint embedded into the damaged left side of the truck. He turned the samples over to Yates. On March 24, Roye returned to the site of the truck, took several more paint samples and turned them over to the Department of Forensic Sciences criminalist Wayne Burrow. Roye noted two indentions on the upper left hand side of the truck near the driver’s seat.

After inspecting the truck, Roye traveled to Interstate 59 where the victim was found and searched the general area for additional evidence. Roye found some shotgun waddings on the side of the Interstate just prior to the area where the victim’s truck had come to rest. They were turned over to Yates. On April 1, Roye returned to the scene and after re-examining the area, found a sawed-off pump shotgun between twenty-five to fifty feet past the point at which the victim’s truck had come to rest. The shotgun was in a “jammed” condition when found. He delivered it on the same day to Yates.

Also on April 1, Roye participated in the arrest of co-conspirator Danny Ray Williams at Williams’ Tarrant City residence. Seized at that time was Williams’ automobile, a green Plymouth Valiant. He turned the vehicle over to Yates. Roye stated that co-conspirator Walter “Red” Hunt was also arrested on April 1. Roye saw both suspects that evening at the state trooper’s headquarters. Roye talked to Hunt and seized an address book from him. Several officers involved in the investigation examined the book, after which Roye turned it over to Trussville police investigator Don Emerson.

Criminalist Lawden Yates testified to his receipt and examination of several items of evidence gathered in the instant case. He did not test any of the paint samples received by him, but rather turned them over to Wayne Burrow. Yates did examine the victim’s truck and Williams’ car and found scratched and abraded areas on the left and right side of each vehicle, respectively. He could not determine, however, whether they were caused by the vehicles’ impact into each other. Nevertheless, Yates noted that the marks on each vehicle were approximately the same distance from the ground.

Yates examined the wadding found near the scene and determined it to be consistent with that found in twelve gauge shotgun shells. The sawed-off shotgun was a twelve gauge shotgun containing two twelve gauge double 00 buckshot shells. It had an amount of green paint on the fores-tock which Yates removed and turned over to Burrow. Yates examined the wadding of one of the shells and found its wadding consistent with that found at the scene. The pellets removed from the victim were judged to be size single 0 gunshot or larger and could have been fired from the shotgun. Yates stated that the indentions located on the upper left hand side of the truck near the driver’s seat were consistent with being produced by wadding material common to a twelve gauge shotgun shell.

Trace evidence analyst Wayne Burrow testified that he examined the several paint samples submitted with paint he had removed from Williams’ car. He determined that the green paint found on the victim’s truck and on the shotgun was the same as that on Williams’ car.

Shortly after 8:00 p.m. on March 21, 1981, Jefferson County Deputy Sheriff Tommy Stewart was on patrol in the general vicinity of the instant killing when he received a radio dispatch to proceed to the scene of an unrelated automobile accident. The order was subsequently cancelled, but Stewart had proceeded to a convenience store on Swinney Hollow Road, located about two miles from Interstate 59 and three quarters of a mile from the victim’s home. There he observed a green Plymouth Valiant which he mistook as belonging to a former college roommate. He pulled into the parking lot and parked alongside the driver’s side of the car. There he observed two males whom he identified as Williams and Hunt. Stewart stated that Hunt was apparently the driver of the car and Williams was seated in the front passenger’s seat. Upon discovering the mistake, Stewart left. About forty-five minutes to one hour later, Stewart heard a radio dispatch concerning the victim’s apparent accident.

Joseph Bagwell testified that he and appellant had known each other for eight years and were both employed at Connor's Steel Company. Prom the first week of January, 1981, to the first week of February, 1981, Bagwell lived with appellant at his Pinson residence. During the previous months of October, November, and December, appellant had inquired of Bagwell as to whether he knew anyone “that would take a contract on somebody to have somebody killed.” (R. 288) Bagwell replied that he "... really didn’t know. You know, at the time I thought I knew somebody. It never did materialize.” (R. 288) Appellant never mentioned the name of the person he wanted “to get rid of.” (R. 289)

Approximately one month later, appellant asked Bagwell “if [he] had found anybody for him.” (R. 289) Later, while living at appellant’s home, appellant informed Bagwell that “he [had] found somebody to do the job for him.” (R. 290) Appellant told Bagwell that he was going with his cousin’s wife, Sue, whom Bagwell later met and determined to be the victim’s wife, Susan Taylor, and that “he wanted to get rid of this guy, this girl’s husband.” (R. 290) Appellant stated that the Taylors lived a couple of blocks from his home.

During the middle of January, 1981, Mrs. Taylor came to appellant’s house to see him. Bagwell answered the door and invited her in. Mrs. Taylor introduced herself and then proceeded to appellant’s bedroom, where he was asleep. Mrs. Taylor awakened appellant and remained in the bed-, room for a few minutes then, after kissing appellant, left. Bagwell stated that appellant and Mrs. Taylor “had an arrangement where she came over there every morning. She hadn’t been coming while I was staying there.” (R. 292)

On cross-examination, Bagwell admitted having a prior conviction for violating the Controlled Substances Act. Appellant attempted to illustrate inconsistencies in Bag-well’s testimony and his previous statements made to the police.

Trussville police investigator Don Emerson testified that on April 1, he was present when Williams was arrested and later saw Williams and Hunt at the state trooper headquarters. Emerson received from Roye the address book taken from Hunt.

On voir dire examination outside the presence of the jury, Emerson testified that around 10:30 p.m. on April 1, he saw appellant at the Alabama Bureau of Investigation (ABI) office. Emerson interviewed appellant in the presence of ABI Captain Davis. Emerson stated that he read appellant his Miranda warnings and asked if he understood them, to which appellant, after reading them himself, affirmatively replied. His testimony established the proper volun-tariness predicate. Emerson asked appellant to sign a waiver of rights form, to which appellant replied that “he understood the rights but ... refused to sign ... on the advise (sic) of his attorney.” (R. 315) Nevertheless, upon asking appellant whether he wished to make a statement, appellant stated although “his lawyer [had] advised him not to sign any papers,” that “Yeah, I’ll talk to you about it.” (R. 319) Appellant made no request to call anyone.

Emerson then asked appellant if he knew Williams to which he negatively replied. He inquired of his relationship with Hunt, to which appellant stated that “he knew of Red Hunt” (R. 316) and had talked to him once about some carpet work, but had not talked to or seen him in over a year. Emerson also asked appellant to tell of his involvement in the murder of the victim. Appellant replied that “he wouldn’t make any statement until he talked to his attorney.” (R. 316) At that point Emerson ceased his interrogation.

Emerson stated that he had also interviewed appellant'on March 23 or 24 at a time when there were no known suspects to the killing. During the course of the interview appellant told Emerson that he, Mrs. Taylor, and their children had gone to Florida during the AEA school vacation.

The trial court ruled that the above statements were admissible except for the part concerning appellant’s involvement in the victim’s death. Upon resumption of the trial, Emerson reiterated the substance of the above testimony to the jury.

Kim McCain testified that around November, 1980, he was employed by Hunt as a carpet layer. He also knew Williams. During November, Hunt approached McCain at the carpet shop and told him that a woman and her boyfriend wanted to kill her husband, whom Hunt identified as the victim. Hunt asked McCain if he would do it, to which he agreed. Hunt told McCain that he would supply him with a photograph of the victim and information about him which Hunt would receive from Mrs. Taylor. The next day Hunt delivered the information to McCain and told him to go to a bowling alley in Pinson to observe the victim. McCain followed Hunt’s instructions. Subsequent thereto, Hunt informed McCain that he would be paid, by the wife and boyfriend, $1,500 for killing the victim and if such was done by Christmas 1980, he would receive a $200 bonus. McCain never took any action which prompted Hunt to inquire of him several times as to where he was going to kill the victim and why it was taking so long. Hunt informed McCain that if he did not “do the job” (R. 338) then the boyfriend would get two former Vietnam war comrades to do it. Hunt also told him that he had returned the $1,500 to the boyfriend, but had it in his possession once again as the plans to hire the two war comrades did not materialize. In December, after being informed of the above, McCain declined to carry out the killing.

About one or two months later, Hunt told McCain that the woman who wanted her husband killed was Susan Taylor and her boyfriend was appellant, the victim’s cousin. •

Shortly before Christmas, 1980, McCain introduced Hunt to Williams. In January or February, 1981, he had a conversation with Williams wherein Williams informed him that Mrs. Taylor wanted Hunt and him to follow her husband to Tuscaloosa, where he was going fishing, and kill him. Around the time of the AEA school vacation Williams told McCain that Mrs. Taylor had told him that she would be in Florida during the school vacation and that she would leave the back door to her house unlocked so that Williams could gain access, pose as a burglar, and kill her husband. During this period of time McCain saw Williams in possession of the sawed off shotgun found in the area where the victim was killed and the green Plymouth Valiant. Williams told him that Hunt had bought both items for him. While examining the shotgun, McCain asked Williams to put it up, to which Williams replied, “I want to do it bigtime.” (R. 341)

The morning after the victim’s death, McCain saw Williams at Johnny Pennington’s house. At that time Williams took from his pocket fourteen $100 bills and five $20 bills.

On cross-examination, McCain admitted that the state had made an agreement concerning a pending burglary charge against him in exchange for his testimony.

The state recalled Trussville police investigator Don Emerson who identified the address book taken from Hunt by Roye. Contained inside the book was the name and address of Williams and the name, address, and telephone number of appellant. The book was admitted into evidence.

Emerson testified that upon the arrest of Williams on April 1, he seized an address book from him. Contained therein was Hunt’s name and several telephone numbers, one being 833-8018. This book was also admitted into evidence.

After having talked to appellant and within forty-eight hours of Hunt’s arrest, Emerson executed a search warrant at Hunt’s carpet shop in Woodlawn. Emerson seized several documents and papers found “in the vicinity of the desk where the telephone was located toward the rear of the building.” (R. 353) Emerson identified the documents seized.

Jeanette House testified that during the period of October through December 1980, she was employed by Hunt at his carpet shop as a salesperson. She also took telephone messages for Hunt when he was away from the shop. House stated that during the above period of time, she took several messages from appellant to Hunt. House stated that she dated a message pad sheet daily and then wrote any messages received for Hunt on that day on the corresponding dated sheet of the pad. On October 4 and December 22, 1980, House took messages from appellant to Hunt. The October 4 message was simply, “that Inzer called,” (R. 363) while the December 22 message stated, “James Inzer, 854-3805. Call him, Red.” (R. 362) Both message sheets were part of those previously seized by Emerson. The message sheets were admitted into evidence.

Christy Pennington, wife of John Pennington, stated that about one week prior to the victim’s death, Williams was introduced to her by McCain. Immediately pri- or to the March 21 killing, Pennington was privy to a conversation at her house between Williams and her husband. Williams told the Penningtons that a woman and her boyfriend wanted her husband killed in order to collect the proceeds of his insurance policy. Williams stated that the boyfriend was the husband’s cousin. Williams was to be paid $1,500 and had been supplied with a car and a shotgun by Hunt. Pennington observed the car, a dark green Plymouth Valiant.

On the morning of the fatal incident, Hunt visited Williams at the Pennington residence as Williams had spent the night there. The two had a conversation on the front porch to which Pennington was not privy. Sometime prior to Williams leaving, the Penningtons had another conversation with Williams during which they implored him to disassociate himself with the plan to kill the victim. Between 7:00 and 8:00 p.m. on March 21, Williams left the Pennington residence in the Valiant.

David House, former husband of Jeanette House, testified that during the months of October through December, 1980, he was employed by Hunt as a carpet layer. During the above period of time, Hunt told him about the situation involving appellant and Mrs. Taylor and the plan to kill her husband for the proceeds of his insurance policy. Hunt used the names of appellant and Mrs. Taylor and asked House if he knew of anyone that would kill the victim. From October, 1980 to February, 1981, Hunt asked House ten to twenty times about such.

Around Christmas, 1980, House saw appellant at the carpet shop. House stated that appellant drove up in a four-wheel drive truck and Hunt told him, “That’s Inzer. I need to talk to him.” (R. 381) Appellant entered the shop, and he and Hunt went to the other side of it and talked.

Ralph Hammett, business office manager of the Village East branch of South Central Bell Telephone Company verified from his records that in March, 1981, the telephone number 833-8018 was registered to Hunt.

Donald Stewart, a fellow employee of appellant’s at Connor’s Steel, stated that during the months of October through December 1980, he and appellant had several conversations about appellant’s girlfriend, whom appellant said was married. Stewart stated that appellant did not mention any names.

Jimmy Walker, a neighbor of the victim who lived a couple of houses down from him, testified that he knew the victim, his wife, and appellant. Walker stated that during the victim’s working hours he saw, on several occasions, appellant visit Mrs. Taylor. Walker observed the visits over a period of months with such occurring three to four times a week. On many occasions, appellant would stay at the Taylor residence until around 1:30 p.m.

Clinton Whittaker, a fellow employee of appellant, stated that several times during October 1980 through January 1981, he and appellant hunted several times at a hunting club they belonged to. During the above time frame, appellant told Whittaker that he was in love with Mrs. Taylor, wanted to marry her, and did not know why she and the victim did not get a divorce. Whittaker testified that sometime after January, 1981, appellant was involved in an automobile accident and during his recovery he visited him at Mrs. Taylor’s house.

About one week after the victim’s death, appellant told Whittaker about his trip to Florida with Mrs. Taylor during the AEA school vacation. He told Whittaker that during the trip, he and Mrs. Taylor slept together. Due to the many rumors circulating, Whittaker asked appellant if he had called Hunt from Florida. Appellant replied that “he had called him [Hunt] about some carpet.” (R. 401)

Harrison Wilson, first cousin of appellant and owner of a used car lot, stated that on March 7, 1981, he sold Williams a 1970 green Plymouth Valiant. Wilson had recently painted the ear a darker shade of green than that which it had previously been. Wilson stated that two men had come to buy the car, but Williams was the purchaser.

Mary Dawdy, employee and custodian of records of the Haines City, Florida, Holiday Inn, testified that her records indicated that on March 9, 1981, through March 12, 1981, appellant was registered in room 440 of the motel. Her billing records indicated that at 10:25 p.m. eastern time on March 10 appellant placed a call to Hunt at 833-8018. Dawdy retrieved the billing information concerning the long distance call from a record originated by a telephone company printer located at the motel front desk. The printer supplied the room number from which the call was made, the date, the area code, telephone number, and the total charge. Dawdy stated that the information was printed “almost immediately” (R. 421) after the call was made. Dawdy stated that the printout was maintained by her in the ordinary course of business.

Shortly after appellant’s stay at the motel, Alabama law enforcement investigators viewed the original printout. Attempts to photocopy the document failed because the printout was too light for reproduction. Subsequent thereto, Florida law enforcement investigators viewed the original printout. At this time, one of the Florida investigators typed the information contained on the printout onto a sheet of stationery. Dawdy confirmed the accuracy of the information contained therein and had it notorized. Prior to her traveling to Alabama to testify, Dawdy diligently searched for the original, but could not locate it. She opined that due to its being retrieved several times in the past, the document was probably misfiled. She did not feel that the original was lost, but after a careful search was unable to locate it prior to trial. The trial court admitted the typed copy into evidence.

Dawdy’s testimony concluded presentation of the state’s case. The trial court struck counts one and three of the indictment and denied appellant’s motion for judgment of acquittal for failure to prove a prima facie case as to count two.

I

The constitutionality of Section 13-11-1, et seq. Code of Alabama 1975, has been determined in Beck v. State, 396 So.2d 645 (Ala.1980). Thus, denial of appellant’s demurrer to and motion to quash the indictment on this ground was without error.

II

Appellant contends that the trial court abused its discretion in denying his motion for a change of venue. He asserts that extensive pre-trial publicity prevented him from impanelling “a fair and impartial jury.” (R. 538)

Appellant focuses our attention on the large number of veniremen who responded to voir dire questions concerning their prior knowledge of the instant case.

Extensive voir dire examination was conducted for those veniremen who had read or heard about the instant incident. Both of the parties, as well as the trial court, carefully and thoroughly questioned each venireman individually about their prior knowledge of the facts of appellant’s, Hunt’s, and Williams’ cases. The trial court granted three of appellant’s nine challenges for cause. Having reviewed the testimony of those excused, we find their dismissal proper.

The record reflects that each venireman questioned had read or heard, in varying degrees, about the murder of the victim. Their knowledge was based on news reports or rumors remote in point of time to the trial. Their collective knowledge contained a paucity of detail as to the events surrounding the fatal shooting. All of the veniremen, even those excused for cause, unequivocally stated that regardless of their knowledge of the case, they could follow the instructions given to them by the trial court as well as render a fair and impartial verdict based solely upon the evidence presented at trial. No venireman expressed a fixed opinion or bias against appellant and stated that they could disregard anything that they had read or heard about appellant’s case.

The rules concerning change of venue were recently stated in Nelson v. State, 440 So.2d 1130 (Ala.Cr.App.1983); Duncan v. State, 436 So.2d 883 (Ala.Cr.App.1983); Hopkins v. State, 429 So.2d 1146 (Ala.Cr.App.1983); Moulds v. State, 426 So.2d 942 (Ala.Cr.App.1982), and Lopez v. State, 415 So.2d 1204 (Ala.Cr.App.1982). See also Williams v. State, [Ms. 6 Div. 761, May 31, 1983] (Ala.Cr.App.1983). We have applied those standards to the instant facts and find no violation thereof as they do not establish that a fair and impartial trial could not be had and an unbiased verdict could not be reasonably expected in Jefferson County. We further find that the newspaper articles are not inherently prejudicial and the community not so saturated with prejudicial pre-trial publicity as to have a probable impact upon the prospective jurors. The voir dire examination clearly established the non-adverse effect of the pre-trial publicity upon the community in general and appellant’s ve-nire in particular. Further, there was no showing of a connection between the publicity generated by the media coverage and the existence of actual jury prejudice. See Johnson v. State, 433 So.2d 473 (Ala.Cr.App.1982), aff'd, 433 So.2d 479 (Ala.1983).

We have reviewed the supplemental record submitted by appellant on this issue and find nothing therein which would affect the above findings.

Based upon the foregoing authorities, we find no abuse of the trial court’s discretion in denying appellant’s motion for change of venue.

Ill

The admission of appellant’s extrajudicial statements made to Emerson was not error.

Appellant’s statements to Emerson on March 23 or 24 were not the product of a custodial interrogation. At the time Emerson interviewed appellant, he was in the process of investigating the death of the victim and had not focused his inquiry upon appellant. Furthermore, appellant was not a suspect, in custody, or under arrest at the time of the interview. Consequently, admission of appellant’s statements was not error. Jackson v. State, 412 So.2d 302 (Ala.Cr.App.1982); Manigan v. State, 402 So.2d 1063 (Ala.Cr.App.), cert. denied, 402 So.2d 1072 (Ala.1981); Stewart v. State, 398 So.2d 369 (Ala.Cr.App.), cert. denied, 398 So.2d 376 (Ala.1981).

Mere failure of an accused to sign a waiver of rights form does not vitiate an otherwise voluntary custodial statement. We find the facts of the instant case strikingly similar to those in Harris v. State, 420 So.2d 812 (Ala.Cr.App.1982); Proctor v. State, 391 So.2d 1092 (Ala.Cr.App.1980); Waters v. State, 360 So.2d 358 (Ala.Cr. App.), affd, 360 So.2d 367 (Ala.1978); and Houston v. State, 56 Ala.App. 295, 321 So.2d 261 (1975), wherein, upon review of the record, this court found the proper Miranda rights given, voluntariness predicate established, and, ultimately, a knowing, intelligent, and voluntary waiver thereof regardless of the accused’s refusal to sign a waiver of rights form.

The instant facts fully support the findings of the trial court that appellant was fully apprised of his Miranda rights and knowingly and voluntarily waived them. Based upon the preceding authorities, we find no error in the admission of appellant’s custodial statements.

IV

Admission of the type-written copy of the motel printout evidencing appellant’s telephone call to Hunt was proper as not violative of the best evidence rule or the hearsay rule.

“The best evidence rule requires a party who wishes to prove the terms or contents of a writing to introduce the original into evidence if available_ Furthermore, as prerequisites to the introduction of secondary evidence it must be shown to the reasonable satisfaction of the trial judge that: (1) the original is lost, has been destroyed, or is otherwise unavailable and, (2) that every reasonable effort to procure the original has been made.... Only after satisfying the above conditions may a party offer a copy of the original or oral testimony concerning its contents. The purposes of the rule are to prevent fraud and to insure the reliability of the oral testimony concerning^.fhe writing....” (Citations omitted.) Howton v. State, 391 So.2d 147, 150 (Ala.Cr.App.1980).

The state’s evidence fully and thoroughly established the above requisites. Submission of the typed copy rather than a photocopy is immaterial here, as the testimony unequivocally established the poor photocopy reproduction qualities of the original.

The document qualified under the business records exception to the hearsay rule. Ala.Code § 12-21-43, -44 (1975). As stated in Gamble, McElroy’s Alabama Evidence § 254.01(3) (3rd ed. 1977):

“Testimony by any witness, frequently the custodian of the record, that the document now exhibited to him is a record of the business; that he knows the method (i.e., the standard operating procedure) used in the business of making records of the kind now exhibited to him; and that it was the regular practice of the business to make records of such kind and to make them at the time of the event recorded or within such specified period thereafter as could be found by the trier of fact to be reasonable, is a sufficient authentication of the record to require its admittance in evidence. (Footnote omitted.)

See Coleman v. State, 423 So.2d 276 (Ala.Cr.App.1982); See also Anno., 7 A.L.R. 4th 8 (1981).

Dawdy’s testimony clearly proved that she was knowledgeable in the procedure by which the printout was produced; that such was a regular practice of the motel to make and maintain the record with such maintenance occurring at the time of the event (telephone call) or within a reasonable time thereafter; and that the admitted document was a verified and notarized type-written copy of an otherwise unavailable original.

Consequently, the state’s evidence established compliance with both rules of evidence and, therefore, was properly admitted. Gamble, McElroy’s § 254.01(5), supra.

V

Appellant contends that insufficient independent evidence of a conspiracy existed at the time the trial court admitted evidence of his confederate’s hearsay acts and statements.

Under § 13A-2-23 Code of Alabama 1975:
“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“(1) He procures, induces or causes such other person to commit the offense; or
(2) He aids or abets such other person in committing the offense; or
(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally require to make.”

“The initial existence of a conspiracy may not be proved by the statements of the co-conspirator.” Ingle v. State, 415 So.2d 1225, 1228-29 (Ala.Cr.App.1982). “Before the statements of one eo-conspirator may be admitted against another co-conspirator, only prima facie evidence of the existence of the conspiracy is necessary.” Lewis v. State, 414 So.2d 135, 140 (Ala.Cr.App.), cert. denied, 414 So.2d 140 (Ala.1982). “An unlawful conspiracy need not be proved by positive evidence, but may be proved from the conduct of the parties, circumstances surrounding the act and from the conduct of the accused subsequent to the act.” Eldridge v. State, 418 So.2d 203, 205 (Ala.Cr.App.1982); Lewis, supra; Williams v. State, 383 So.2d 547 (Ala.Cr.App.1979); aff'd, 383 So.2d 564 (Ala.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980). While it is preferable that the testimony of a co-conspirator or hearsay testimony concerning the acts and statements of a co-conspirator be received into evidence after a prima facie showing of the existence of a conspiracy, such order of proof is not mandatory. “The order of proof requirement is for the purpose of expediting the trial and saving the valuable time of the trial court, rather than protecting or securing any supposed right a defendant might have.” Nance v. State, 424 So.2d 1358, 1365 (Ala.Cr.App.1982); Snoddy v. State, 20 Ala.App. 168, 101 So. 303 (1924); Smith v. State, 8 Ala. App. 187, 62 So. 575 (1913). The determination of whether vel non there is prima facie evidence that a conspiracy exists is initially for the trial court. Once it so determines the existence of such, the question then becomes one for the jury. Williams, supra. Once proof of a conspiracy exists, “any act or statement by an accused’s co-conspirator in the commission of the crime, done or made before the commission of the crime, during the existence of a conspiracy and in furtherance of a plan or design, is admissible against the accused.” Nance, 424 So.2d at 1364-65; Bynum v. State, 348 So.2d 804 (Ala.Cr.App.1976), cert. quashed, 348 So.2d 828 (Ala.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 766, 54 L.Ed.2d 781 (1978).

The state’s evidence established that: (1) In the fall of 1980, appellant was looking for a person who would kill another for a price; (2) The victim was his girlfriend’s husband, whose residence was only a short distance from appellant’s home; (3) Appellant was romantically involved with the victim’s wife; (4) In January of 1981, appellant informed his roommate, Bagwell, that he had found someone to kill the victim; (5) During the AEA school vacation, appellant, Mrs. Taylor, and their children went to Florida; (6) On March 10, 1981, while in Florida with Mrs. Taylor, appellant called Hunt; (7) On March 21, 1981, the victim was murdered; (8) About forty-five minutes to one hour prior to the victim’s death, Hunt and Williams were observed together about three-quarters of a mile from the victim’s home in a green Plymouth Valiant, the paint of which was later found embedded in the victim’s truck; (9) in his statement to Emerson, appellant admitted “he knew of Red Hunt” and had talked to him once about some carpet work, but had not talked to or seen him in over a year; and (10) Dawdy and Whittaker verified appellant’s telephone call to Hunt from Florida on March 10.

We find the above facts sufficient to establish a prima facie showing of a conspiracy among appellant, Hunt, and Williams. Consequently, the trial court properly admitted the acts and statements of Hunt and Williams made to third persons during the existence of the conspiracy. Bynum, supra.

VI

A

The testimony of McCain in which he stated that on the morning of March 22, Williams displayed to him $1500 was properly admitted as, “[t]he State may prove, against the accused, the existence after the crime of a physical fact which tends to show the guilt of his co-conspirator.” (Emphasis added.) Stinson v. State, 401 So.2d 257, 260 (Ala.Cr.App.), cert. denied, 401 So.2d 262 (Ala.1981); and cases cited therein.

B

The admission into evidence of the address books seized from Hunt and Williams on the day of their arrest, and the testimony of Emerson concerning the names, addresses, and telephone numbers of appellant, Hunt, and Williams contained therein was merely cumulative evidence of that which the remainder of the state’s evidence properly established, namely, that the confederates knew each other and were more than mere “acquaintances,” and had recently communicated with each other.

“The admission of improper evidence to establish an undisputed fact is harmless error_ Likewise the appellant’s admission to Lieutenant Watkins that she had the rifle and would go get it was not error in view of the fact that she had already and very recently admitted her possession of the weapon to Investigator Culpepper.... Before Watkins testified the rifle had been described and identified as being the weapon stolen and the one found in the possession of the appellant. The statements the appellant made to Lieutenant Watkins were cumulative in that her possession of the rifle had already been proven by statements she made to Culpepper which not only showed possession but also guilty knowledge. Under these circumstances the appellant’s statement that she had the rifle, even if improperly admitted because of the lack of the Miranda warnings, only constituted harmless error....
“The admission of incompetent evidence is harmless where the facts thereby disclosed are otherwise established by competent evidence.... A judgment will not be reversed because of the admission of incompetent evidence, where the other evidence, which was uncontradicted, would require the same verdict.... The admission of evidence which is merely cumulative of an admitted fact is error without injury to the defendant....” (Citations omitted.) Cassidy v. State, 369 So.2d 310, 312 (Ala.Cr.App.1979).

See Holm v. State, 416 So.2d 782 (Ala.Cr.App.1982); Gullatt v. State, 409 So.2d 466 (Ala.Cr.App.1981); Chambers v. State, 400 So.2d 436 (Ala.Cr.App.1981); see generally Wyatt v. State, 419 So.2d 277 (Ala.Cr.App.1982).

VII

Having carefully reviewed the evidence presented by the state, we find the jury’s determination that appellant, Hunt, and Williams conspired to and did in fact kill the victim amply supported thereby. See Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982). Consequently, the trial court properly denied appellant’s motions for judgment of acquittal and for a new trial. Dolvin v. State, 391 So.2d 133 (Ala. 1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978); cert. denied, 368 So.2d 877 (Ala.1979); see generally Heath v. State, [Ms. 4 Div. 134, July 5, 1983] (Ala.Cr.App.1983).

We have reviewed appellant’s contentions raised on appeal and find no error. Thus, this cause is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . See Williams v. State, [Ms. 6 Div. 761, May 31, 1983] (Ala.Cr.App.1983).


author: EMBRY, Justice.

text:
    Ex parte James Alvin INZER, alias. (Re: James Alvin INZER, alias v. STATE).
    83-301.
    Supreme Court of Alabama.
    March 2, 1984.
    Michael L. Chambers, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and R. David Christy, Asst. Atty. Gen., for respondent.
   EMBRY, Justice.

The conclusions of the Court of Criminal Appeals are not in conflict with those reached in Ingle v. State, 415 So.2d 1225 (Ala.Cr.App.1982); we therefore deny the writ. In doing so, however, we do not intend to endorse the reasoning or dicta included within Inzer v. State, 447 So.2d 838 (Ala.Cr.App.1982).

WRIT DENIED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


text:
    Stephen Jerome FIKE v. STATE of Alabama.
    6 Div. 71.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied March 23, 1984 Alabama Supreme Court 83-418.

      Gordon L. Ladner, Bessemer and George W. Andrews, III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Stephen Jerome Fike was indicted for the intentional killing of one, Patricia Ann Culp, in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant “guilty of murder as charged in the indictment.” Following a habitual offender hearing, the trial judge sentenced the appellant to life imprisonment in the penitentiary.

On February 2, 1982, the body of Patricia Ann Culp was found lying in a culvert, in approximately six inches of water, alongside Interstate 59 in Tuscaloosa County. The body seemed to have sustained some type of injury to the head and a cut on the left wrist.

Dr. Henry Santina performed the autopsy on the body of the deceased. In his opinion, the cause of death was due to a fracture on the right side of the skull, which most likely resulted from a blunt instrument.

According to the appellant’s statement, he went to Sammy’s Go-Go Lounge in Birmingham around midnight on January 29, 1982. One of the dancers he knew introduced him to the deceased who was also a dancer. The appellant and the deceased then made arrangements for a date after she got off work.

Sometime around 2:00 a.m., January 30, 1982, the two drove in the deceased’s red Mustang to the Highway Host Motel in Bessemer and registered as Mr. and Mrs. Stephen Culp. The two then had sex, he paid her $50 and they left. The last time the appellant saw the deceased was when she dropped him off at Banks Lounge at approximately 6:00 a.m. At 2:10 p.m. the appellant caught a plane to Atlanta.

The facts the appellant gave are somewhat different than those the police uncovered. The manager of the Highway Host Motel testified that the deceased and the appellant arrived in the early morning hours of January 30 at the motel in a red ear. They registered and went to Room 330. The next morning the housekeeper discovered that one of the beds in Room 330 had been stripped and all the linens, bedspread, and blanket were missing from the room. Traces of blood were found in various areas of the motel room, including on the mattress.

Several witnesses testified as to seeing the appellant at the Omelette Shop near the Birmingham Airport on January 30 at approximately 10:00 a.m. The appellant was seen driving a red Mustang and asked one of the witnesses to look at it because he stated he had just purchased it. The witness said the car the appellant was driving was similar to the one identified as belonging to the deceased.

Later that morning, the appellant bought some new shoes. He then went to the Ramada Inn near the airport around 1:00 p.m. He was seen changing clothes in the men’s room at this time.

The appellant then gave a bag to the Ramada Inn desk clerk. The bag contained some shoes and keys. Next, the appellant asked the driver of the Ramada Inn van to take him to the Omelette Shop to get some cigarettes, which he did. Then the driver dropped him at the airport.

Later that day, one of the security officers for the Ramada Inn noticed a red Mustang with a broken window. When he looked inside the car, he found a tote bag which contained a sheer nightgown, panties, make-up and a pill bottle with the name Patricia Culp on it.

The police then processed the red Mustang for evidence. Photographs of Patricia Culp were found in the glove compartment. Blood was found in the trunk of the car. A tire tool with hair fibers on it was also recovered in the trunk. The hair fibers on the tire tool could have been from the head of the deceased. Hair fibers found in the car were similar to those of the appellant’s hair.

Authorities in Decatur, Georgia picked up the appellant as being a fugitive from the State of Alabama after learning of the warrant for his arrest. The authorities transferred the appellant back to Birmingham. The shirt the appellant was wearing when he was picked up in Atlanta (Decatur) had blood of the same type as deceased’s on it.

The most damaging testimony at trial was that of appellant’s cousin, Virginia Bryant. She visited the appellant on February 8, 1982 at the Bessemer jail.

The appellant told her that, after he and the deceased had sex, he went to take a shower. When he came out of the bathroom, the deceased was going out the door with his money so he swung her down. She told him not to come any closer or she would slit her wrist, which she did. The appellant began hitting her and he thought he had killed her after he hit her with a board. He wrapped the deceased in a sheet and put her in the trunk of her car. As he was driving, he heard her kicking in the trunk so he stopped, dumped her on the ground and hit her on the head with the tire tool to make sure she was dead. The appellant then drove to Birmingham, washed the car, went to the Omelette Shop and took a flight to Atlanta.

When Bryant stated she did not believe the appellant’s story, he changed it. He stated as he was getting out of the shower, a man came in the room and beat up both of them. The man then put the girl in the trunk and him in the back seat. The appellant lost consciousness and when he awoke, no one was in the car except himself.

I

On the night of February 5, 1982, Sergeants Fred House and Max James of the Jefferson County Sheriff’s Department went to pick up the appellant where he was being held in custody by authorities in De-Kalb County, Georgia. Once they took custody of the appellant, the “Miranda Warnings” and waiver of rights were read to him, which he signed. At this point, the appellant stated that he did not want to make a statement and would only talk to Lieutenant Haynes of the Jefferson County Sheriff’s Department or Nolan Shivers of the Birmingham Police Department. No further questions were asked of the appellant and the officers and the appellant returned to Jefferson County.

When the three arrived at the Sheriff’s Department, early on the morning of February 6, 1982, they were met outside by several members of the news media who attempted to ask the appellant some questions. One of the newsmen asked the appellant, “Will you plea?”, to which he replied, “No comment.” The reporter then asked, “Do you feel you are being held wrongly?” and the appellant stated, “No comment without an attorney first.” (R. 285).

At approximately 1:00 a.m., Lieutenant Haynes and Sergeant James questioned the appellant about the murder of Patricia Ann Culp. The appellant invoked his right to remain silent and he requested an attorney.

However, the interrogation of the appellant did not stop at this point, and a statement was obtained from ’the appellant. The State never attempted to introduce this statement. Had they done so, it would have been inadmissible because the rule set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that once an accused requests counsel, all interrogation must cease, was clearly violated.

The appellant was then transported to the Bessemer jail by Sergeant House. After House had transferred custody of the appellant to the warden, around 3:00 a.m., the appellant asked House to wait because he wanted to talk to him. House told the appellant to get some sleep and to call him that afternoon if he still wanted to talk. The appellant said that he wanted to make an appointment now and House agreed to talk to him that afternoon.

At approximately 2:30 p.m., House went back to the jail to talk to the appellant pursuant to his request. House re-read the appellant his Miranda warnings and the appellant gave him a statement. House testified that at the time he obtained the statement from the appellant, he was not aware that the appellant had told the newsmen that he wanted an attorney or that he had requested one when he was being interrogated by James and Haynes.

After hearing the above facts, the trial judge determined the appellant’s statement had been voluntarily made and allowed its admission into evidence.

I (A)

The appellant claims that the statement should not have been admitted because he invoked his right to counsel and did not thereafter waive that right.

Clearly, the burden is on the State to establish that the appellant knowingly, intelligently and voluntarily waived his right to counsel.

“It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286 (1979); Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977); Fare v. Michael C., 442 U.S. 707, 724-725, 99 S.Ct. 2560, 2571-2572, 61 L.Ed.2d 197 (1979).”

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

In Edwards, the United States Supreme Court stated that:

[A]n accused ... having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the 'police. (Emphasis added).

As stated earlier, House was not aware that the appellant had invoked his right to counsel when he obtained the statement from the appellant. The appellant, himself, admits in his statement that he initiated this meeting with House. He had approximately twelve hours to think about this decision and still wanted to talk with House even after he had been read his Miranda warnings again. The appellant stated that no threats or inducements, or promises or hope of reward were made to him in order to obtain his statement.

From our examination of the facts in the record, it is clear that the appellant voluntarily, intelligently and knowingly waived his right to counsel, having previously invoked that right and therefore his statement was properly admitted into evidence.

(B)

The appellant further contends that the statement was inadmissible because it was the fruit of the clearly inadmissible statement taken by James and Haynes.

“The rationale for excluding any confession made after an involuntary one is that the later confession flows from the same improper influence or inducement as the earlier one. United States v. Bayer, supra; McAdory v. State, 62 Ala. 154 (1878); Levison v. State, 54 Ala. 520 (1875); Cook v. State, 16 Ala.App. 390, 78 So. 806 (1918). By the same token, once it is shown that the improper influence or inducement has been dispelled, there is no reason not to admit the subsequent confession. Cook v. State, supra. In Levison v. State, supra, the court observed:
‘The first confession is regarded as the parent of the succeeding confessions, and that being improperly obtained, vitiates the second, unless it appears the influence extracting the first has been removed, and all connection between the two dissevered.’ [Emphasis added].”

Hollis v. State, 399 So.2d 935 (Ala.Cr.App.1981).

“In the case of United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654, the Supreme Court reaffirmed the proposition that, although it is difficult to visualize a case in which the motivating facts that produced the initial illegal confession are no longer a moving consideration entering into the giving of a subsequent admission, there are such cases.”

Williams v. United States, 328 F.2d 669 (5th Cir.1964). The case at bar is such a case.

The State has the burden of showing to the trial court that the problem which made the first statement illegal no longer existed when the second statement was made. We conclude this was done in this cause.

Our conclusion is supported by the opinion in Edwards, supra. In Edwards, the defendant was arrested on a criminal charge. He was given his Miranda warnings and the police attempted to question him about the charge. The appellant invoked his right to counsel and interrogation ceased. The following day, the police again questioned the appellant after having read him his Miranda warnings again. At this time, the defendant stated he was willing to talk and gave the officers a statement.

The United States Supreme Court held that the second statement obtained from the defendant was inadmissible because the police had initiated the interrogation rather than the defendant.

“In concluding that the fruits of the interrogation initiated by the police on January 20 could not be used against Edwards, we do not hold or imply that Edwards was powerless to countermand his election or that the authorities could in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver.” (Emphasis added).

Edwards v. Arizona, supra.

We hold the appellant in this case, after having invoked his right to counsel, thereafter waived that right. The illegality of the first statement no longer existed since the appellant initiated the conversation with House.

Therefore, based on the totality of the circumstances, we find the appellant’s statement was voluntarily given and was here properly admitted into evidence.

II

The appellant asserts several exhibits were improperly admitted into evidence because the State failed to show a proper chain of custody.

“To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain. Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552 (1953); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109 (1975); Jemison v. State, 40 Ala.App. 581, 120 So.2d 748 (1960).”

Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert. den., 346 So.2d 1180 (Ala.1977).

We do not find it necessary to detail the chain of custody of every item which was admitted into evidence. Suffice it to say, we have examined the record and find that the State sufficiently established a proper chain of custody with regard to each of the exhibits to which the appellant objects. These exhibits were properly admitted into evidence.

III

The appellant contends a mistrial should have been granted in this case because the prosecutor, during his closing argument, made reference to facts not in evidence.

The pertinent portion of the record is as follows:

“MR. TUCKER: But, they brought out that there was a mattress pad found. What did Mr. Ladner bring out to you? Culp’s blood. That mattress pad had the same type and same blood enzyme group as this right here, ABO, O, Ak 2-1, Gc 1-1, and EAP-B. It also matched the blood off the mattress cover, the mattress pad which also matched the mattress in Room 330. I feel with all of my heart those sheets were the sheets from the room. But, I could not get them in evidence. I wasn’t going to try. I wasn’t going to jeopardize my case. I wasn’t trying to hide stuff from you. But, I’m only going to present evidence I think is competent and legal evidence. If you want to talk about that and make a big stink about it I could tell you right now that is what it was. They were found at a trailer park two and a half miles from the motel.” (R. 602).

The prosecutor did refer to several facts which were not in evidence in the above quote. This does not necessitate a mistrial in this case.

Defense counsel opened the door to any argument by the prosecutor concerning the sheets because of his own remarks during his closing argument. Those remarks are set out below:

“MR. LADNER: You heard from the blood lady, Elaine Scott. You heard me ask her on cross-examination about sheets she examined. Two different sheets. What did you find on those sheets, Ms. Scott? Blood.
“You examined a pillow and pillow case. What was on the pillow and pillow case? Blood.
“Where are those sheets? Where is the pillow and pillow case? Where did they come from? They didn’t come from the motel room. Where did they come from?
“You heard the lady from the motel testify the sheets were gone. There wasn’t any testimony that these sheets were recovered from the car, from the scene. No evidence.
“Where the heck did they come from? I don’t know. I don’t know.” (p. 2, second supplemental record).

The prosecutor’s argument was merely a reply in kind to defense counsel’s argument and was not improper. See Helton v. State, 433 So.2d 1186 (Ala.Cr.App.1983); Miller v. State, 431 So.2d 586 (Ala.Cr.App.1983).

Furthermore,

“ ... [T]he general rule is that prejudicial statements, even though improper, are considered capable of being eradicated by the trial judge in sustaining objections thereto or by appropriate instructions to the jury or both. Allred v. State, [291 Ala. 34, 277 So.2d 339 (1973) ], supra; Dunn v. State, 277 Ala. 39 at 44, 166 So.2d 878 (1964); Bachelor v. State, 216 Ala. 356, 361, 113 So. 67 (1927); Anderson v. State, 209 Ala. 36, 44, 95 So. 171 (1922).’ (Emphasis added). Meredith v. State, 370 So.2d 1075 (Ala. Cr.App.), writ denied, 370 So.2d 1079 (Ala.1979); Miller v. State, 431 So.2d 586 (Ala.Cr.App.1983).”

Carroll v. State, 440 So.2d 343 (Ala.Cr.App.1983).

The trial judge in this case immediately sustained defense counsel’s objection to the prosecutor’s remarks. He later instructed the jury only to base their verdict on the evidence they heard during the trial and counsels’ arguments are not evidence. Surely the trial judge cured any prejudice to the appellant by the prosecutor’s remark by sustaining the objection and his instruction. Ellenburg v. State, 353 So.2d 810 (Ala.Cr.App.1977).

Lastly, the determination of whether a mistrial should be granted is left to the sound discretion of the trial judge. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Favor v. State, 389 So.2d 556 (Ala.Cr.App.1980).

We do not find the trial judge in this case abused that discretion. Therefore, the trial judge properly refused defense counsel’s motion for a mistrial.

IV

The appellant’s contention that the Circuit Court of Jefferson County, Bessemer Division, did not have jurisdiction in this case is without merit. He asserts there was no evidence that the victim was killed in Jefferson County and, therefore, jurisdiction should lie in Tuscaloosa County, Alabama, where the body was found.

From our examination of the record, we find ample evidence to support the contention that the victim was killed in the Bessemer Division of Jefferson County. Therefore, the trial judge correctly refused defense counsel’s motion to dismiss for lack of jurisdiction.

V

The appellant urges his motion for a change of venue was improperly refused due to the existence of widespread pre-trial publicity surrounding his case.

“Section 15-2-20, Code of Alabama 1975 states that a defendant is entitled to a change of venue to another county if he can show to the reasonable satisfaction of the trial court that a fair and impartial trial cannot be had in the county in which the indictment is found. Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978).”

Nelson v. State, 440 So.2d 1130 (Ala.Cr.App.1983).

We agree that a great deal of pre-trial publicity existed in this case but that, in itself, does not mean that the accused will not receive a fair and impartial trial. Anderson, supra; Nelson, supra; Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), aff’d, 391 So.2d 677 (Ala.1980).

An accused is entitled to a change of venue if he can affirmatively demonstrate to the trial court that the pre-trial publicity “has so saturated the community as to have a probable impact on the prospective jurors” or that there is “a connection between the publicity generated by the news articles, radio and television broadcasts and the existence of actual jury prejudice.” Nelson, supra.

The trial judge in this case reviewed videotapes of local television, broadcasts and articles in local newspapers to determine if this publicity created a “prejudicial atmosphere” against this appellant which could render his trial “inherently suspect.”

After examining the appellant’s exhibits, the trial judge stated he found “nothing intrinsically prejudicial” about this publicity and the appellant had been “insulated by the passage of time from these articles.” (R. 15). Approximately nine months elapsed from the murder until the appellant’s trial. Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983).

In light of the fact the trial judge in this case was in the best position to determine whether the effect of the pre-trial publicity prejudiced the appellant to the extent that he could not receive a fair and impartial trial in Jefferson County, we hold the trial judge correctly denied the appellant's motion for a change of venue. Robinson, supra, and authorities cited therein.

Further, the appellant failed to demonstrate to the trial court the existence of any actual jury prejudice due to the pre-trial publicity. The trial judge allowed extensive voir dire concerning each prospective juror’s knowledge of the case and any bias they had based on their knowledge of the case. Those prospective jurors who felt they would be unable to render an unbiased verdict were dismissed. Moreover, defense counsel told the trial judge he was satisfied with the jury after the same had been struck.

Therefore, we hold that the jury in this case rendered an impartial verdict based solely on the evidence which they heard at trial. The trial judge properly exercised his sound discretion by denying the appellant’s motion for a change of venue. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

VI

At one point during the trial, Penny Dockery was called as a witness for the State. Although the demeanor of a witness cannot be accurately described in a typed record, defense counsel stated she was “on the verge of tears, trembling, and frightened.” (R. 388). The State attempted to elicit from this witness the substance of a phone conversation she supposedly had with the appellant.

Defense counsel objected to this witness testifying about the substance of the conversation and moved for a mistrial because this witness’ demeanor prejudiced the appellant's right to a fair trial. The trial judge sustained defense counsel’s objections but thought it was unnecessary to declare a mistrial. Instead, he instructed the jury to disregard any response by the witness and any questions that had been asked of her.

This court in Poellnitz v. State, 48 Ala. App. 144, 262 So.2d 631 (1972), quoting the Alabama Supreme Court in Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967) stated:

“ ‘... [I]t is well recognized that the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury’s ability to decide the defendant’s fate fairly and justly. And we will not interfere with the trial judge unless there had been a clear abuse of discretion_’”

We believe the trial judge eradicated any prejudice that might have been sustained by the appellant due to this witness’ testimony, by his instructions to the jury. Therefore, we hold the trial judge properly denied defense counsel’s motion for a mistrial. Retowsky v. State, 333 So.2d 193 (1976); Glenn v. State, 395 So.2d 102 (Ala.Cr.App.1980), cert. den., 395 So.2d 110 (Ala.1981); Mitchell v. State, 397 So.2d 169 (Ala.Cr.App.1980) cert. den., 397 So.2d 178 (Ala.1981) and Hatch v. State, 398 So.2d 415 (Ala.Cr.App.1981).

VII

The appellant contends the jury was improperly allowed to separate during the course of the trial.

Section 12—16—9(d), Code of Alabama 1975 provides:

“In the prosecution of any noncapital 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 own initiative or on motion of any party, require that the jury be sequestered under the charge of a proper officer whenever they leave the jury box or the court may allow them to separate. A motion to separate or sequester shall not be made within the hearing of the jury, and the jury shall not be informed which party, if any, requested separation or sequestration. (Acts 1943, No. 384, p. 358; Acts 1982, No. 82-566.)”

“There is a rebuttable presumption that an accused is not prejudiced by allowing the jury to separate. Wright v. State, 57 Ala.App. 401, 328 So.2d 650 (1976).” Willis v. State, 441 So.2d 1030 (Ala.Cr.App.1983).

The trial judge in the instant case repeatedly instructed the jury not to read or listen to anything concerning this case after they were allowed to separate and questioned them each morning before trial as to whether they had been able to follow his instructions. The trial judge believed there was no reason to sequester the jury during the trial and the appellant has not shown that he was prejudiced in any way by any such separation.

Therefore, we find no abuse of discretion in the trial judge’s decision to allow the jury to separate during this appellant’s trial. No injury has been shown.

VIII

The appellant objects to the admission into evidence of certain photographs depicting the deceased’s wounds. The photographs showed the deceased’s exposed skull and depicted the fractures which had been inflicted to the victim’s skull.

While we admit these photographs were most unpleasant,

“[t]he fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury. Richards v. State, Ala.Cr.App., 337 So.2d 171, cert. denied, Ala., 337 So.2d 173 (1976).”

Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.1981); Cheatham v. State, 431 So.2d 1350 (Ala.Cr.App.1983); Brodka v. State, 53 Ala.App. 125, 298 So.2d 55 (1974).

"... As a general rule photographs are admissible in evidence if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (1973).”

Carpenter, supra; Cheatham, supra.

The photographs at issue were used during the testimony of Dr. Henry Santina, who performed the autopsy on the deceased, to corroborate and illustrate his testimony concerning the location and extent of the deceased’s injuries. The photographs were relevant evidence and thus, properly admissible for this purpose. McAdams v. State, 378 So.2d 1197 (Ala.Cr.App.1979).

Furthermore, in the case the appellant cites for authority McKee v. State, 33 Ala.App. 171, 31 So.2d 656 (1947), this court recognized the relevancy of photographs of the internal injuries of a deceased which allegedly caused the death. However, the court cautioned that a jury should not be exposed to such areas of photographs which are unreasonably gruesome and are not relevant to aid the jury in understanding the nature and gravity of the deceased’s injuries.

In the case at bar, the trial judge was particularly careful to limit the photographs to only “those aspects that ... reflect the injuries to the skull.” (R. 181).

Therefore, we find the photographs of the deceased’s skull were properly admitted into evidence. See Annotation 73 ALR 2d 769.

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

AFFIRMED.

All the Judges concur.