author: PATTERSON, Judge. PATTERSON, Judge. PATTERSON, Judge.

text:
    Danny Lamar PACK v. STATE.
    6 Div. 117.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    On Return to Remand and Denial of Rehearing Nov. 27, 1984.

      Gary L. Smith, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   PATTERSON, Judge.

Appellant, Danny Lamar Pack, was indicted for unlawful breaking and entering a vehicle, pursuant to § 13A-8-ll(b), Code of Alabama 1975. Appellant was subsequently convicted of the crime charged in this indictment and sentenced to a term of fifteen years’ imprisonment in accordance with the Alabama Habitual Felony Offender Act, § 13A-5-9(c)(l), Code of Alabama 1975, after a finding that appellant had at least three prior felony convictions.

Appellant advances the following arguments: (1) The trial court erred in admitting evidence of appellant’s commission of another criminal act just prior to the act for which he was indicted; (2) the trial court erred in allowing the State to impeach defense witnesses by questioning, in regard to criminal convictions, beyond the name of the crime, time and place of conviction, and the punishment; (3) the trial court erred in refusing to give the appellant’s written jury charge concerning criminal tampering in the second degree; and (4) the trial court erred in its interpretation of the breaking and entering requirements of § 13A-8-ll(b), Code of Alabama 1975, and consequently in denying appellant’s motion for judgment of acquittal. We reverse and remand with instructions.

Appellant was arrested on October 17, 1981, at the 31 Package Store, located on Highway 31 in Gardendale, Alabama. On that date, appellant was in the company of his younger brother, Malcom Pack, and a friend, Woodson, a black male.

The State presented evidence through Ms. Martha Watson that between 2:00 and 2:30 on the afternoon of October 17, 1981, she was parking her Toyota Corolla in an area near Main Street and Highway 31 when a pickup truck stopped behind her ear, blocking any further ingress or egress from the space. According to Ms. Watson, a black male approached her car and told her to leave the keys in the car because they were going to take it. After the black male opened the car door, Ms. Watson got out and observed a white male standing at the rear driver’s side of her car. Ms. Watson later identified appellant as the person standing at the rear of her car. Ms. Watson then called to another person in the parking lot to call the police. The black man looked at appellant and the appellant said, “Let’s go.” Ms. Watson testified that the two men then ran back to a bronze and beige pickup truck and left at a high rate of speed, almost running into another automobile.

The police arrived shortly thereafter and Ms. Watson gave them a description of her assailants and their get away truck. According to Officer Mosier, he had been informed at approximately 3:05 p.m. to be on the lookout for a “beige and bronze .... pickup truck, late model,” occupied by two white males and one black male. Shortly after this alert, Officer Mosier observed such a truck occupied by three individuals at the 31 Package Store. The truck was parked beside a red Toyota Corona, which belonged to the store attendant, Anthony Meeks. Upon further investigation the officer saw two white males sitting in the truck and a black male outside the truck “with a tire tool prying on the door of the red Toyota”. All three men, including appellant, were then placed under arrest.

State’s witness Anthony Meeks testified that the car window had been chipped and scratched but not broken, chrome stripping on the side of the vehicle had been damaged, and the door was bent where it had been pried by the tire tool. The doors were still locked, and apparently no entry had been made into the interior of the vehicle, the trunk, or the engine compartment.

Appellant testified in his own defense and appellant’s younger brother, Malcom Pack, testified on behalf of appellant. The two brothers related the same version of facts. The defense testimony indicated that Malcom and appellant delivered a refrigerator that afternoon and then purchased a bottle of rum. After purchasing the rum, they met the black man, Woodson, and were to give him a ride to Warrior, Alabama. Malcom owned the beige and bronze pickup truck in which they were traveling that afternoon. Both admitted being in the same parking lot as Ms. Watson; however, they did not recall seeing her or, at any time, stopping the truck behind her car. Their testimony indicated that Malcom parked some distance away from where Ms. Watson- had parked and that appellant entered a Winn-Dixie store to purchase a bottle of 7-Up to mix with the rum. Woodson got out of the truck and when appellant returned, he observed Woodson in the parking lot some distance from the truck. Appellant called to Wood-son, who returned to the truck, and they departed in a normal manner, admitting that they “may” have left quickly. Appellant denied ever standing at the rear of Ms. Watson’s ear.

Appellant and his brother further stated that, within a matter of seconds after parking at the 31 Package Store, police arrived and arrested all three just as Woodson was departing from the truck. According to the two of them neither appellant nor his brother observed Woodson doing anything to the car parked next to them nor did they observe Woodson with a tire tool before or after the arrest.

Woodson did not testify at appellant’s trial. Malcom testified on cross-examination, over appellant’s objection, that he had pleaded guilty to breaking and entering a vehicle and had received eighteen months’ probation. This guilty plea arose out of the same transaction for which appellant was being tried.

I

[1] Appellant’s first assignment of error regards the testimony of Ms. Watson describing the events which occurred in the Winn-Dixie parking lot just prior to appellant’s arrest at the 31 Package Store. The trial judge allowed this testimony to go before the jury, over appellant’s objection, with instructions that this testimony was to be considered by them only for the purpose of determining appellant’s intent. Intent was clearly in issue at trial; appellant contended that at no time did he participate in any criminal activity.

Appellant correctly points out that, as a general rule, evidence of other acts which themselves constitute distinct and independent offenses are not admissible, if its only purpose is to show bad character, inclination, or propensity of an accused to commit the type of crime charged or to act in conformance with such bad character, inclination, or propensity. Brewer v. State, 440 So.2d 1155 (Ala.Crim.App.1983); Lucy v. State, 340 So.2d 840 (Ala.Crim.App.), cert. denied, 340 So.2d 847 (Ala.1976); C. Gamble, McElroy’s Alabama Evidence, § 69.01 (3d ed. 1977). This general rule is not without several well established exceptions. See Lucy v. State, supra; McElroy’s, at § 69.01. This court has recently stated:

“Under exceptions to the general rule excluding evidence which tends to show the commission of a crime other than that for which the defendant is on trial, evidence may be admitted to show motive, intent or scienter.... Under this exception, evidence of other offenses is admissible to show whether the defendant’s intent was unlawful or whether it was good and lawful ...; whether the accused acted intentionally or accidentally.... or to show the purpose with which the act was committed.... For a comprehensive statement of the principles involved see Allen v. State, 380 So.2d 313 (Ala.Crim.App.1979), cert. denied, 380 So.2d 341 (Ala.1980).”

Carlton v. State, 415 So.2d 1241, 1243 (Ala.Crim.App.1982) (citations omitted).

Thus, one of the established exceptions to the general rule is that the other crime may be used to show the element of criminal intent in the now-charged crime. Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973). The court in Whiddon, 299 So.2d at 331, quoting McElroy, Law of Evidence, at 168 (2d ed.), stated:

“Because the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question, the greater the likelihood that the act in question was not done inadvertently. Therefore, in certain crimes the state may prove accused’s doing of similar acts as tending to show that in doing of a now charged act, he had that intent that is an element of the now charged crime.”

See also Pope v. State, 365 So.2d 369 (Ala.Crim.App.1978).

We find that intent was clearly in issue and thus it was not error to admit the testimony of Ms. Watson; the testimony was not introduced solely for the purpose of showing appellant’s bad character, inclination, or propensity to commit the type of crime charged. The testimony was clearly relevant to establish that appellant and his cohorts intended to break and enter a vehi-ele without the consent of the owner. “If an accused is charged with a crime that requires a prerequisite intent, as in the case sub judiee, then prior or subsequent criminal acts are admissible to establish that he had the necessary intent when he committed the instant crime.” Jones v. State, 439 So.2d 1308, 1310 (Ala.Crim.App.1983), and cases cited therein.

II

During the State’s cross-examination of Malcom Pack, questions concerning Malcom’s conviction for breaking and entering a vehicle, arising out of the same transaction for which appellant was on trial, were allowed by the trial court. Appellant contends that this was improper cross-examination and that the State should have been limited merely to questions concerning the name of the crime, time and place of conviction, and punishment. The trial court permitted this testimony on the theory that the State was allowed to show the witness’s bias and so instructed the jury of this narrow purpose. We find appellant’s argument to be without merit.

The State may properly cross-examine the defense witness concerning the conviction of the same offense, arising out of the same transaction, for which appellant was being tried. This line of questioning was relevant and material for the limited purpose of showing bias against or interest toward the state. Houston v. State, 203 Ala. 261, 82 So. 503 (1919); Stinson v. State, 41 Ala.App. 575, 142 So.2d 897, cert. stricken, 273 Ala. 479, 142 So.2d 899 (1962); Sexton v. State, 22 Ala.App. 16, 111 So. 897, cert. denied, 215 Ala. 533, 111 So. 898 (1927); White v. State, 12 Ala.App. 160, 68 So. 521 (1915).

It should also be pointed out that this line of questioning was obviously proper for another reason. As a general proposition of law it has been stated that “the cross-examining party has the absolute right on cross-examination, not only to inquire as to matters relevant to the issues under the pleading, but also to inquire into the conduct and circumstances of the witness which have measurable bearing upon his credibility”. C. Gamble, McElroy’s Alabama Evidence, § 136.01 (3d ed. 1977). Malcom’s testimony offers an excellent example of circumstances which have a measurable bearing upon credibility. He is before the jury testifying that he and his brother played no part in any criminal activity, yet he has already pleaded guilty to the charged offense and has been sentenced to eighteen months’ probation. The evidence elicited by the State was clearly admissible as going to the credibility of the witness.

Ill

Appellant next contends that the trial court committed reversible error by refusing to give his requested jury charge for the offense of criminal tampering in the second degree, defined in § 13A-7-26, Code of Alabama 1975. He argues that criminal tampering is a lesser included offense of the crime charged, which appellant asserts had a rational basis in the evidence presented. We need not determine if criminal tampering in the second degree is a lesser included offense of unlawful breaking and entering a vehicle. Our disposal of this issue in no way should be construed as reflecting our view of the merits of this proposition, for even if criminal tampering was a lesser offense, we find that the evidence warranted no such instruction. Based on our review of the record, we find that no reversible error was committed by the trial court in refusing the proffered instruction.

Appellant relies on Burns v. State, 229 Ala. 68, 69, 155 So. 561 (1934), for the proposition that “every prisoner at the bar is entitled to have charges given, which without being misleading, correctly stated the law of his case, and are supported by any evidence, however weak, insufficient, or doubtful in credibility.” See also Ex parte Traweek, 380 So.2d 958 (Ala.1979); Chavers v. State, 361 So.2d 1106 (Ala.1978).

This court has held that the defendant is “entitled to have the jury charged on a lesser included offense only where there is a reasonable theory from the evidence to support such a position.” Cooper v. State, 364 So.2d 382, 387 (Ala.Crim.App.1978), citing Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973). See also Thomas v. State, 418 So.2d 921 (Ala.Crim.App.1982); Bowman v. State, 44 Ala.App. 331, 208 So.2d 241 (1968). In the recent case of Pruitt v. State, 457 So.2d 456 (Ala.1984), the Alabama Supreme Court stated “The accused is entitled to have the trial court charge on lesser included offenses where there is a reasonable theory from the evidence supporting defendant’s position, regardless of whether the State or defendant offers the evidence,” 457 So.2d at 457 (citing Chavers v. State, supra.) Further support for this standard of review is found in § 13A-l-9(b), Code of Alabama 1975, wherein it is stated:

“The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.”

We find, after considering all the evidence introduced at the trial, that there was no reasonable theory or rational basis to support such an instruction. After a careful review of the record and applicable case law, we are convinced that the trial judge properly denied appellant’s requested charge.

IV

Appellant’s fourth and final contention is that the State failed to prove a prima facie case of unlawful breaking and entering a vehicle. While appellant concedes that the State did show a breaking, he claims that the evidence presented at trial failed to show there was an entering of the automobile, as required by the statute, § 13A-8-ll(b), Code of Alabama 1975.

Section 13A-8-11 reads, in pertinent part, as follows:

“(b) A person commits the crime of unlawful breaking and entering a vehicle if, without the consent of the owner, he breaks into and enters a vehicle or any part of the vehicle with the intent to commit any felony or theft. For purposes of this section, ‘enters’ means to intrude:
“(1) Any part of the body; or
“(2) Any physical object connected with the body; or
“(3) Unlawful breaking aiid entering a vehicle is a Class C felony.”

The State argues that, under the wording of the statute, intrusion of a tire tool into the car door was sufficient to show entry. The trial judge specifically relied upon the wording of this statute in overruling appellant’s motion for judgment of acquittal at the close of the State’s evidence. The judge stated:

“.... I’m going to hold that jamming the crowbar or the tire tool between the door jamb or in the door jamb area there and prying on the door there and the lock area and messing up the weather stripping and so forth, that that is an intrusion into a part of the car.”

In his instruction to the jury, the trial judge defined entry to the jury as follows:

“Now, enter in this statute does have a special meaning. Enter means this: To intrude any part of the body. We are talking about a person’s body, any part of the body, a hand, a foot or whatever, a finger into the vehicle. That would be to enter the vehicle. Or intrude any physical object connected with the body into any part of the vehicle....”

Upon inquiry by a juror as to the meaning of ‘enter,’ the trial judge stated:

“.... It means to intrude any part of the body into a part of the vehicle or to intrude some object into a part of the vehicle or into the vehicle itself.”

These instructions were not entirely correct, although a straightforward reading of the statute without considering the case law and legislative history of the statute could give the reader the impression that such an interpretation was correct.

In order to determine the meaning of “enter,” we must look to prior case law and the legislative history of the statute.

The commentary to § 13A-8-ll(b), Code of Alabama 1975, states that this code section essentially “reinstates the former offense of burglary of motor vehicle, former Section 13-2-42”. The commentary also points out the difference between burglary of a building and breaking and entering a vehicle by stating the following:

“Burglary no longer requires proof of a breaking — only an entry. Hence, while a related crime, the conduct here proscribed is not a lesser included offense of any degree of burglary.”

Comments, Ala.Code § 13A-8-ll(b) (1975) (emphasis added).

Thus, while burglary of a building no longer requires the showing of both a breaking and an entering, the proof of both elements is required to show an unlawful breaking and entering a vehicle under our present statute. Since the Legislature was careful to maintain both the element of breaking and the element of entering into the wording of the statute, it is necessary to explore what the common law distinction was between these two elements. In the case at bar, we are only dealing with the ‘entry’ element of the statute. Appellant has not contested the breaking element, and we conclude that sufficient proof was presented at trial to constitute a breaking. The law governing the use of an instrument to effect entry is in contest here, and has been explained as follows:

“A .... distinction, however, has been made between the entrance of some part of the body and the introduction of a tool or other instrument, with reference to the purpose with which it was put into the building. Where it is a part of the body itself, its insertion into the building is an entry within the rules of burglary, whether the purpose was to complete the felonious design or merely to effect a breaking. Thus if the miscreant should open a window too small to admit his body, and should insert his hand through this opening merely for the purpose of unlocking a door, through which he intends to gain entrance to the building, he has already made an ‘entry’ even if he should get no farther. But where a tool or instrument is intruded, without any part of the person being within the house, it is an entry if the insertion was for the purpose of completing the felony but not if it was merely to accomplish a breaking. If the instrument is inserted in such a manner that it is calculated not only to make a breach but also to accomplish the completion of the felonious design this constitutes both a breach and an entry. Hence, if a shot is fired merely to break a lock, there would be no entry even if the bullet landed inside the building, whereas if the weapon had been discharged for the purpose of killing an inmate of the house the entrance of the ball into the dwelling would be sufficient for an entry as the word is used within the rules of burglary.”

R. Perkins, Perkins on Criminal Law, (2d ed. 1969) (emphasis added). These principles are firmly established in the body of Alabama jurisprudence. See Walker v. State, 63 Ala. 49 (1879) (“the inquiry is, whether the tool or instrument was employed solely for the purpose of breaking, and thereby effecting an entry; or whether it was employed not only to break and enter, but also to aid in the consummation of the criminal intent, and its capacity to aid in such consummation,” 63 Ala. at 51); Perry v. State, 407 So.2d 183 (Ala.Crim.App.1981) (to constitute entry, an instrument must be inserted for the purpose of perpetrating a felony therein); Robinson v. State, 45 Ala.App. 74, 224 So.2d 675 (1969) (“the act of prying open a door with an iron bar does not constitute an entry, as it is not used for the purpose of committing a felony therein, but merely of breaking,” 45 Ala.App. at 78, 224 So.2d at 679).

We are, of course, aware that these cases are applying the entry standard to burglary of buildings. It is clear, however, that the Legislature intended the theory of these cases to apply in the present situation. We are further aided in this result by Texas statutory law. In the committee comments to § 13A-8-11, Code of Alabama 1975, we are directed to Proposed Revision, Texas Penal Code, § 31.06, for insight into subdivision (a)(1) through (a)(4) of § 13A-8-11. Although the comments do not direct us to support for § 13A-8-ll(b), Texas has adopted a burglary of vehicles statute, Tex.Penal Code Ann. § 30.04 (Vernon 1974), that is identical to the Alabama unlawful breaking and entering a vehicle statute, § 13A-8-ll(b), Code of Alabama 1975. The commentary to the Texas statute states: “The definition of ‘entry’, Subsection (b), is also identical to that of burglary, Section 30.02(b). The punishment, however, is less severe_” Practice Commentary, Tex.Penal Code Ann. § 30.04 (Vernon 1974).

We therefore hold that the language of § 13A-8-ll(b), Code of Alabama 1975, indicates a legislative intent to adopt the definitions of entry as defined by Alabama decisional law regarding burglary.

Applying the rules stated above to the fact situation before us, it seems clear that the use of the tire tool, while resulting in a breaking, did not rise to the level of an entry. We interpret the acts of the appellant and his accomplices as an attempt to break into the car rather than a completed act. To rule otherwise would require that we draw no distinction between individuals attempting to break into a vehicle with an instrument and individuals who do actually effect entry into the passenger compartment, engine compartment, trunk, or other part of the vehicle.

V

Although the State’s evidence did not show an entry, the State clearly proved each and every element of an attempt to unlawfully break and enter a vehicle. An attempt is defined at § 13A-4-2(a):

“A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act toward the commission of such offense.”

An attempt is a lesser included offense of the crime charged. Ala.Code 1975, § 13A-l-9(a)(2).

This court and the Alabama Supreme Court have recently approved authority whereby a case such as this need not be reversed and returned to the lower court for retrial. This court has stated:

“.... since the jury returned a verdict on the higher degree, it found the existence of every element of the lesser included offense.... [SJtate and federal appellate courts have inherent authority to reverse a conviction while at the same time ordering an entry of judgment on a lesser included offense.

Edwards v. State, 452 So.2d 506, 507 (Ala.Crim.App.1983), aff'd, 452 So.2d 508 (Ala.1984) (referring to Dickenson v. Israel, 644 F.2d 308 (7th Cir.1981)). The Alabama Supreme Court, in affirming this court’s judgment quoted Dickenson, 644 F.2d at 509, with approval, as follows:

“The usual situation in which this occurs is when there is insufficient evidence to support one of the elements of an offense. A court may be reluctant to overturn an entire conviction when there is ample evidence to support a lesser-included charge which does not contain the insufficiently proven element. The authority to order the entry of judgment on the lesser-included offense is both statutory, see, e.g., 28 U.S.C. § 2016, and based on the common law. The constitutionality of the practice has never been seriously questioned.”

Edwards at 509 (citations omitted). The case at bar presents a clear fact situation to which the Edwards doctrine may be applied. *

For the foregoing reasons, we reverse and render, in part, the judgment of the trial court, and remand this case with instructions that the trial court enter a judgment of guilty on the charge of attempted breaking and entering a vehicle and sentence appellant accordingly.

REVERSED AND RENDERED, IN PART; REMANDED FOR PROPER SENTENCING.

All Judges concur.

On Return to Remand

PATTERSON, Judge.

Appellant Danny Lamar Pack was con-yicted of the crime of unlawfully breaking and entering a vehicle pursuant to § 13A-8-11(b), Code of Alabama 1975, and sentenced to fifteen years’ imprisonment as a habitual offender. On appeal this court held that the State’s evidence failed to prove the essential element of entry into the vehicle. We also held that, although the State’s evidence did not show an entry, its evidence clearly proved each and every element of an attempt to unlawfully break and enter a vehicle, and that an attempt was a lesser included offense of the crime charged. Following the procedure approved in Edwards v. State, 452 So.2d 506 (Ala.Crim.App.1983), aff’d, 452 So.2d 508 (Ala.1984), we reversed and rendered the case as to that part of the judgment finding appellant guilty of breaking and entering a vehicle, and remanded the case with instructions that the trial court enter a judgment of guilty on the charge of attempted breaking and entering a vehicle and sentence him accordingly. On October 14, 1984, the trial court, in accordance with the instructions of this court, adjudged the appellant guilty of an attempt to commit the unlawful breaking and entering of a vehicle, and sentenced him to one year at hard labor. The trial court immediately suspended the sentence, stating that “defendant is serving a fifteen year prison sentence in a companion case.”

The return to remand has been filed and the record reflects that the trial court has fully complied with the instructions of this court. It follows that the judgment of the trial court finding the appellant guilty of an attempt to commit the unlawful breaking and entering of a vehicle and sentencing him to hard labor for one year and suspending same, is due to be, and the same is hereby, affirmed.

AFFIRMED.

All Judges concur.

On Rehearing

PATTERSON, Judge.

On authority of Pack v. State, 461 So.2d 910 (Ala.Crim.App.1984), the State’s application for rehearing in this cause is overruled.

APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Andrew Louis WILSON, alias v. STATE of Alabama.
    5 Div. 931.
    Court of Criminal Appeals of Alabama.
    Nov. 27, 1984.

      Joseph L. Dean, Jr. of Walker, Hill, Adams, Umbach, Herndon & Dean, Opelika, for appellant.
    Charles A. Graddick, Atty. Gen. and Phillip Luke Hughes, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Andrew Louis Wilson was indicted for sale of marijuana in violation of § 20-2-70, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and he was sentenced to 15 years’ imprisonment in the penitentiary.

Jammy Thomas, an officer with the Alabama Bureau of Investigation assigned to the narcotics unit, testified he was involved in the undercover investigation of drug sales in the Opelika area in February of 1984. He stated he worked as an undercover officer along with a confidential informant on approximately ten cases during this time period. Detective Robert Brock, of the Opelika Police Department, was his supervisor in the undercover operation and Brock showed him several photographs of known drug dealers in the area, including a photograph of the appellant.

At approximately 4:55 p.m. on the night of February 25, 1984, Thomas stated that he and a confidential informant named Yang drove to the corner of Hardaway Avenue and Toomer Street in Opelika. Once they arrived at the corner, Yang told Thomas to pull over to the curb. There were approximately four or five black males standing on the corner approximately 20 yards from their car. Yang pointed out the appellant as being the guy wearing a gray sweatshirt and blue jeans. Even though it was getting dark, Thomas stated that he could see the appellant’s features.

At some point, a male named Erskin White received a manilla envelope from the appellant and brought it to Thomas. Thomas took the envelope and gave White $20.00. White then took the $20.00 to the appellant and White brought $15.00 back to Thomas. Thomas then took the manilla envelope to Detective Brock.

Erskin White testified that he had known the appellant, his brother Edward Wilson, and Yang all of his life. He stated Yang’s real name is Darryle Collier.

White stated that he has been with the appellant on the corner of Hardaway and Toomer on occasions, but claimed he was not there on the night of February 25, 1984. He denied being involved in the events of the night in question and stated he had never seen Thomas until that day in court. He testified that he was not afraid of the appellant or his brother. White admitted that he had been involuntarily committed to the Veterans Administration Hospital in Tuskegee because he was mentally ill.

Darryle Collier stated in court that his nickname is Yang and that he had known the appellant and his brother for many years. He denied being a confidential informant for the Opelika Police Department, but stated he knew Thomas because he was with him on the night of February 25,1984.

Collier testified that on that night he and Thomas went to the corner of Hardaway and Toomer. When they arrived, he saw a group of about 14 black males standing in a group. He denied pointing out the appellant to Thomas and stated he was not sure if the appellant was there that night but that he might have been. Collier testified that he remembered White coming up to the car but he did not see anything passed between White and Thomas.

At this point, Collier was asked if he was scared of the appellant. He stated that he was not afraid of the appellant or anybody else. Collier did say that, since his name had come up in connection with the undercover operation, he and his family had received threats and he had been attacked by a group of people.

Detective Brock testified that he showed Thomas a photograph of the appellant in connection with the undercover drug investigation being conducted in Opelika. Brock stated that Collier was a confidential informant for the Opelika Police Department and he had worked on about five cases, several of those with Thomas. Brock sent Thomas and Collier out on the night of February 24, 1984 to Toomer and Harda-way to purchase drugs. When Thomas and Collier returned, they told him White and the appellant had sold them marijuana. Thomas gave Brock a manilla envelope which Brock in turn gave to Taylor Noggle with the Department of Forensic Sciences. Noggle testified that the subject matter contained in the manilla envelope was marijuana. At this time, the State rested.

The sole witness for the defense was the appellant. The appellant stated that he was not present on the night of February 25,1984 when the alleged sale of marijuana took place and he was not in any way involved. He further testified that he had never sold marijuana and had never seen Thomas until the time he testified in court.

I

Following the conclusion of the State’s and defense counsel’s examinations of State’s witness, Collier, in which he explicitly denied being afraid of the appellant, the following dialogue took place.

“THE COURT: Are you telling me that you are not scared?
“THE WITNESS: I’m not scared for me, Mr. Wright. This is really affecting my mother more than it’s affecting me, you know. As far as I'm concerned, you know, I’m going to take care of myself whether ya’ll have to put me back in prison, or put me in jail, or imprison me, you know, I’m going to protect me the best way I know how. I don’t go around pickin’ on peoples, you know. I mind my business, I work hard every day. I take care of my kids, and I go home and rest. I don’t mess with nobody, and I pray to God that nobody messes with me. I got God on my side.
“THE COURT: You were scared two weeks ago, weren’t you?
“THE WITNESS: Yes, sir.
“THE COURT: When you talked to me?
“THE WITNESS: When I first heard it in the papers, you know I had to be.
“THE COURT: That’s all.” (R. 52-53).

The appellant contends that the trial judge’s questioning of Collier was improper and prejudicial to the appellant and, therefore, a reversal is mandated.

The State asserts that since trial counsel failed to make a timely objection to the trial judge’s questions, nothing is preserved for our review. However, the following rule of law should be considered:

“The ineradicable error rule in this jurisdiction provides an exception to the general rule that improper argument of counsel is not a ground for a new trial or even the subject for review upon appeal unless there has been a timely objection by counsel or a motion to exclude, a ruling thereon by the Court, or a refusal of the Court to make a ruling. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Washington v. State, 259 Ala. 104, 65 So.2d 704 (1953); Anderson v. State, 209 Ala. 36, 95 So. 171 (1922).
“This Court in Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958), stated the ineradicable error rule in the following manner:
‘An exception to this general rule, requiring appropriate objection or action invoking corrective instruction or action by the trial court, is where the remark or argument of counsel (or court) is so grossly improper and highly prejudicial to the opposing party as that neither retraction nor rebuke by the trial court would have destroyed its sinister influence. Anderson v. State, 209 Ala. 36, 95 So. 171. Id., 267 Ala. at 221, 100 So.2d at 753.”

Christian v. State, 351 So.2d 623, 626 (Ala.1977). (Emphasis added).

Thus, when a trial judge propounds questions to a witness which are improper and extremely prejudicial to the accused, an objection is not necessary if instructions by the trial court could not erase the prejudicial impact of his questions from the jury’s mind. This is such a case in which the trial judge could not have given any instructions which Would eradicate the improper implications of his questions.

“In Sprinkle v. State, Ala.Cr.App., 368 So.2d 554, this court held:
‘The trial judge is more than a mere moderator and it is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of witnesses. Thus he may ask any question which would be proper for the prosecutor or defense counsel to ask so long as he did not depart from a standard of fairness and impartiality.’ ”

Richardson v. State, 403 So.2d 293, 295 (Ala.Crim.App.) affirmed, 403 So.2d 297 (Ala.1981).

In the case at bar, the trial judge’s questions were unnecessary to clarify the testimony of Collier. Collier had repeatedly stated he was not afraid of the appellant or his brothers. He never waivered from this point.

Furthermore, the questions asked by the trial judge were not ones which would have been proper for the State to ask. A somewhat similar fact situation to the one at bar can be found in Holmes v. State, 22 Ala.App. 373, 115 So. 849 (1928). In that case, the defendant was charged with the illegal sale of liquor and his conviction rested solely on the testimony of one witness.

“When first placed upon the stand, this witness testified:
‘He [defendant] did not sell me a bit of liquor that night.’
“The court thereupon propounded the following question to the witness:
‘Did you get any whisky that night — the night of the fiddlers’ contest? A. I don’t remember whether I did or not.
‘The Court: You don’t remember? A. No, sir.
‘The Court: You have been before the grand jury? A. Yes, sir.
‘The Court: Did you state before the— how old are you, young man? The witness answered, that he is 19 years old.
‘The Court: Do you know what an oath is?’ To which the witness replied, that he does.
‘The Court: Do you know, when you were taking an oath, you were to tell the truth?’ To which the witness replied that he does.
‘The court thereupon propounded the following question: ‘You know, where a man perjures himself, it is one of the worst crimes?’ The witness answered that he does.
‘The Court: You were sworn to tell the truth, understand that?’ The witness replied that he did.
‘The Court: Now, when he (indicating the solicitor) asks you a question, you answer the question, and answer truthfully.’
“Objections were interposed and exceptions reserved, and to this last question or admonition by the court the defendant objected to the instructions of the court and to the questions relative to the witness understanding what perjury is. The court replied, ‘yes,’ to which the defendant reserved an exception. The court thereupon inquired of the witness if he got any whisky that night, to which the witness replied that he thought he drank a little whisky, but he did not remember who gave it to him. The solicitor then asked him: ‘Did you tell me in that room (indicating) when you went out there Roy (defendant) brought you a bottle of whis-ky?’ Witness replied he thought so. Whereupon the court stated to witness: ‘Why don’t you tell it?’ and said, T didn’t mean to say so much to you a while ago, but you must tell 'the truth while you are on the stand.’ After the above occurrences, which are copied from the record, the witness finally stated that ‘Roy Holmes delivered to him a bottle of whis-ky, but that he didn’t know the size of the bottle.’ ”

Holmes, supra, 115 So. at 849-850.

In Holmes, supra, the court reasoned that although “the [trial] court felt impelled to resort to drastic measures in order that justice might not be perverted,” he had prejudiced the substantial rights of the defendant and denied him a fair and impartial trial. Holmes, supra, 115 So. at 850. The court went on to say that while “a party may ask his own witness whether he has not previously made statements inconsistent” with his testimony, “there is no rule of evidence which allows a party [or the court] to impeach his own witness; nor is there any rule of evidence which allows the introduction in evidence of a conversation had between the solicitor [or court] and a State witness in the absence, and not in the hearing of the defendant.” Holmes, supra, 115 So. at 850.

In the instant case, the implication of the trial judge’s questions was that Collier was not telling the truth on the stand and had told the trial judge a different story two weeks earlier in a private conversation.

“The weight to be given to evidence is wholly within the province of the jury, and any invasion of this province by the court in its orders is error; and any statement by the court, however unintentional, made in the presence of the jury, calculated to control the jury in its consideration of the weight to be given to testimony, will work a reversal, unless it be clearly shown that such remarks have been explained and excluded from them.”

Griffin v. State, 90 Ala. 596, 8 So. 670, 673 (1890); Richardson, supra, at 295.

In this case, it was not the trial judge’s place to discredit Collier’s testimony. His questions of Collier introduced facts which were not in evidence and, thereby, he invaded the province of the jury as to the weight of the evidence. The trial judge’s improper questions were a severe departure from the fair and impartial standard to which all judges are held and certainly prejudiced the substantial rights of this appellant.

The able trial judge in this cause has a long record of distinguished legal service. His questioning here, however, went beyond the bounds of fair play.

Therefore, this case is due to be reversed and remanded for a new trial.

In light of our reversal in this case, we pretermit a discussion of the second issue raised by the appellant since it is unlikely it will reoccur in retrial of this case.

REVERSED AND REMANDED.

All the Judges concur.


author: HARRIS, Judge.

text:
    STATE of Alabama v. Michael BUTLER.
    3 Div. 55.
    Court of Criminal Appeals of Alabama.
    Dec. 11, 1984.

      James H. Evans, Dist. Atty. and Dennis R. Pierson, Deputy Dist. Atty., for appellant.
    Eugene W. Reese of Reese & Addison, Montgomery, for appellee.
   HARRIS, Judge.

Michael Butler was indicted on four separate cases of robbery, first degree. These cases were consolidated for trial. On April 9, 1984, Butler filed a motion to suppress statements he made to officers of the Montgomery Police Department. A suppression hearing was held in Montgomery Circuit Court on June 5, 1984. The motion was denied on June 11, 1984. On June 13, 1984, Butler filed an amendment to his motion to suppress, alleging that his statements given to officers of the Montgomery Police Department were obtained as the product of an illegal arrest not based on probable cause. Butler, also on that date, filed a motion to re-consider the order denying his motion to suppress.

On July 2, 1984, a hearing was held on Butler’s amended motion. On July 9, 1984, Butler’s motion to suppress was granted. Pursuant to A.R.Crim.P.Temp 17, the State appealed from the pre-trial order suppressing Butler’s confession as a product of an illegal arrest. Investigators Smith and Perdue of the Montgomery Police Department testified at the suppression hearing that a number of robberies had occurred in the Montgomery area involving a small black male wearing a ski mask and armed with a small caliber revolver. Officer Mason of the Millbrook Police Department testified that he received a telephone call on January 22, 1984, from a person identified as Lanette Singleton. This informant stated that she had overheard someone say that he had heard Lacy Butler and Michael Butler had committed a robbery. She stated that Lacy and Michael had bought a red Chevrolet Monte Carlo and were going to leave town for North Carolina. Lanette Singleton was not a police informant. This information was passed along to an Officer Owens, also with the Millbrook police.

Officer Owens admitted that neither he nor any other officer went out and talked with Lanette Singleton, or the individual that had actually overheard the conversation. He was never able to corroborate the statement that was passed along to him. Owens shared this information with the Montgomery and the Prattville Police Departments.

Officer Allen, of the Prattville Police Department, testified that on February 6, 1984, he received information that a robbery had occurred in Montgomery. He also received information that Michael Butler and Lacy Butler were suspects. Allen testified that he stopped a red Pontiac Grand Prix travelling in excess of the speed limit between Prattville and Montgomery on U.S. Highway 31. Butler was driving the car and when Allen asked for his identification, he could not produce any. Butler told Allen his name was Lane Fed-derson. Butler was charged with driving without a license and giving false identification. Allen then turned Butler over to Montgomery Police. Butler was not charged with any of the robberies at that time.

Investigator Smith testified that Michael Butler was considered a suspect based on his physical description and the information from Lanette Singleton in Millbrook. Smith admitted that he had never talked with Lanette Singleton to verify the information that had been passed along to him.

Butler was arrested on a capias warrant on February 20, 1984, due to his failure to pay court costs on an unrelated misdemeanor offense. Butler was released from the Montgomery County jail on February 21, 1984. At 4:15 p.m., after he was completely released from custody, Investigators Smith and Perdue approached Butler at the jail desk and told him that they “needed to question him regarding some robberies that had occurred” in the Montgomery area. Smith testified that Butler said, “Sure, or okay, something to that effect.” Butler was handcuffed before being placed in the police car. In the car, Butler was read his Miranda rights and was only told that the conversation would wait until they got downtown.

Butler remained handcuffed once they reached headquarters and until he was taken upstairs to the Investigative Division, at which time the handcuffs were removed and the investigators began questioning him.

Smith and Perdue both testified that Butler was not under arrest at this time. They again read Butler his Miranda rights at 4:30 before the questioning began. The interrogation in Room 210 continued until after 11:00 p.m., for some six and a half hours. Butler repeatedly said that he had no knowledge or information concerning any of the robberies. Butler was again advised of his rights and finally he confessed at 11:07 p.m. to the robbery on February 6, 1984, after being told by the investigators that none of his alibis checked out. Perdue testified that, when Butler confessed, he was then placed under arrest and removed to the city jail.

On February 24, 1984, Investigator Barnes of the Montgomery Police Department, checked Butler out of the jail to question him further concerning three other robberies. After being advised of his rights, Butler confessed to these robberies too.

In the appeal from the Montgomery Circuit Court’s order suppressing Butler’s confession, the District Attorney submits that Butler voluntarily accompanied the investigators from the county jail and was free to leave at any time. Butler’s handcuffing was “standard police policy,” and a mere procedural requirement for “any individual riding in a police vehicle.”

An arrest is complete when one’s liberty of movement has been restricted. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). An arrest:

“consists in taking, under real or assumed authority, custody of another person for purposes of holding or detaining him to answer a criminal charge or civil demand.”

Glass v. State, 424 So.2d 687, 689 (Ala.Cr.App.1982). An actual arrest is accomplished when an individual’s “freedom of movement” is curtailed. Foy v. State, 387 So.2d 321, 324 (Ala.Cr.App.1980); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

The District Attorney mistakenly relies upon United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), for the assertion that the case at bar is an example of a person voluntarily accompanying a law enforcement officer to another location for questioning, not an arrest. The present facts are clearly distinguishable from those in Mendenhall, supra. Justice Powell, writing for the plurality on this specific point stated:

“Unlike the petitioner in Terry, [v. Ohio, 392 U.S. 1] at 7 [88 S.Ct. 1868, 20 L.Ed.2d 889], the respondent was not physically restrained. The agents did not display weapons. The questioning was brief. In these circumstances, the respondent could not reasonably have felt frightened or isolated from assistance.”

Mendenhall, supra, at 563, 100 S.Ct. at 1882. Justice Powell also noted that the question whether respondent could have thought she was free to “walk away” when approached by the two government agents in the airport was “extremely close.” Id., at 561, 100 S.Ct. at 1880.

In this case, Michael Butler was approached by the two police officers while he was still inside the county jail, at the front desk. The officers told him that they “needed to talk with him about some robberies.” They took him outside, handcuffed him, and placed him in the back of a police vehicle. When Butler inquired about the particulars, the officers read him his Miranda rights and told him they would handle it when they got downtown. Still handcuffed, Butler was taken out of the vehicle and led upstairs to a second floor room. Butler was questioned for almost six and a half hours in that room with the door closed.

It is readily apparent that any person in Butler’s shoes would have reasonably believed that he had been ' arrested. His “freedom of movement” had been effectively curtailed when he was handcuffed and taken to police headquarters. Glass, supra, at 690.

The officers’ testimony that they did not arrest Butler until after he had confessed is “not determinative of whether or not he was actually arrested.” McCants v. State, 459 So.2d 992 (Ala.Cr.App.1984); Berkemer v. McCarty, _ U.S. _, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The issue of whether an arrest occurred is not based on the police officer’s “unarticulated plan,” but rather “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer, supra, 104 S.Ct. at 3152; McCants, supra.

The District Attorney’s contention that there was no arrest of Michael Butler is not substantiated by the facts of this case. Having determined that there was an arrest, we must now determine whether there was probable cause to effectuate that arrest.

The District Attorney asserts that the information Officer Mason received from Lanette Singleton was sufficient to give the Montgomery Police probable cause to arrest Michael Butler. Lanette Singleton’s statement, that she had heard from someone else that he heard another party talking about a robbery that Michael Butler was supposed to have committed, was at least triple hearsay when it reached the Millbrook Police. The record shows that this statement was never verified by any police officer and no conversation took place with Lanette Singleton beyond the initial telephone conversation with the police dispatcher. The record indicates that Michael Butler was not a suspect in any of the robberies in the Montgomery area until the Millbrook Police received the telephone call from Lanette Singleton.

Two recent cases with almost identical facts, Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982), and Ex parte Meeks, 434 So.2d 844 (Ala.1983), present striking illustrations to consider. In Taylor, following a number of robberies in the Montgomery area, an inmate incarcerated on an unrelated charge told a police officer that Omar Taylor was involved in one of the robberies. The informant had never given information to police previously and did not provide any details of the robbery or his basis of knowledge.

Omar Taylor was picked up by police, advised of his rights and questioned in connection with the robbery investigation. After six hours of interrogation, Omar Taylor confessed. The United States Supreme Court held that the informant’s tip was insufficient to give police probable cause to obtain a warrant or arrest Omar Taylor. His confession was tainted following his illegal arrest. Taylor, supra, at 691.

In Meeks, supra, the police received information from an informant that led to the arrest and subsequent conviction of James Meeks for the robbery of two Montgomery stores. There was no evidence presented to show the police officer had reason to believe the informant was a credible person or that the information was reliable. Meeks, supra, at 846. The Alabama Supreme Court reversed the conviction, saying that the State failed to show probable cause for the arrest of James Meeks.

Probable cause exists where the facts and circumstances within an officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967); Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925).

To make a determination as to whether probable cause existed to arrest Butler, we must examine the recent decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and gauge its effect upon probable cause analysis. The point most crucial to the determination of our present question was dealt with by Justice Rehnquist’s majority opinion stating that the assertions in an anonymous letter became “far less significant after [police officer] Mader’s independent investigative work occurred. The corroboration of the letter’s predictions ... all indicated, albeit not with certainty, that the informant’s other assertions also were true.” (Emphasis added.) Gates, supra, 462 U.S. at _, 103 S.Ct. at 2335, 76 L.Ed.2d at 552.

“[T]he anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” Gates, 462 U.S. at _, 103 S.Ct. at 2335, 76 L.Ed.2d at 552. Justice Rehnquist detailed that there was a fair probability that the informant got his information from his observation of Gates “[a]nd corroboration of major portions of the letter’s predictions provides just this probability.” (Emphasis added.) Gates, supra, 462 U.S. at _, 103 S.Ct. at 2336, 76 L.Ed.2d at 553.

Clearly, Gates is factually distinguished from the case at bar. The police conducted no “independent investigative work” and made no verification of Lanette Singleton’s information. This point is crucial, as is reflected by numerous decisions citing Gates, where there was corroboration of an informant’s tip by police investigation. See United States v. Porter, 738 F.2d 622 (4th Cir.1984); United States v. Silva, 745 F.2d 840 (4th Cir.1984); United States v. Pajari, 715 F.2d 1378 (8th Cir.1983); United States v. Tocco, 581 F.Supp. 384 (N.D.Ill.1984).

The importance of corroboration of an informant’s tip was stressed by Justice Rehnquist:

“Our decisions applying the totality of circumstances analysis outlined above have consistently recognized the value of corroboration of details of an informant’s tip by independent police work. In Jones v. United States, supra, 362 U.S. [362 U.S. 257] at 269 [80 S.Ct. at 735, 4 L.Ed.2d 697], we held that an affidavit relying on hearsay ‘is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented.’ We went on to say that even in making a warrantless arrest an officer ‘may rely upon information received through an informant, rather than upon his direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.’ ” (Emphasis added.)

Gates, supra, 462 U.S. at _, 103 S.Ct. at 2334, 76 L.Ed.2d at 550. It should be noted that in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the tip was based on an informant’s personal knowledge and was corroborated by other sources. See also United States v. Shipp, 578 F.Supp. 980 (S.D.N.Y.1984). This is further established in United States v. Griffin, 572 F.Supp. 126 (D.D.C.1983), which held that where an officer relied upon second-hand information from an informant there would be no probable cause, “under the tests laid out in Aguilar v. Texas, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723] ... and Spinelli v. United States, 393 U.S. 410 [89 S.Ct. 584, 21 L.Ed.2d 637] ..., even as those decisions are modified by Illinois v. Gates.” Griffin, supra at 128. In Griffin, there was sufficient probable cause in the end, because the police corroborated the tip through independent investigation.

It is important to properly characterize Lanette Singleton’s tip. There is no evidence that she had ever provided information to police in the past and it is obvious that her statement was not based on personal observation. She is clearly distinguishable from an informant who was a crime victim or crime witness who is considered a “reliable informant even though his reliability has not theretofore been proved or tested.” W. LaFave, 1 Search and Seizure § 3.4 (1978). She would also not properly be characterized an “anonymous informant.” Lanette Singleton is also distinguished from the type of “citizen-informant” whose “basis of knowledge” presents no major problem. Crawley v. State, 440 So.2d 1148, 1149 (Ala.Cr.App.1983). The present situation is one where police acted on a tip that they knew was based on hearsay and not personal observation, yet did not verify this information nor corroborate it before picking up Michael Butler at the Montgomery County Jail.

The veracity of an informant is still “highly relevant in determining the value of the informant’s report” and can provide sufficient probable cause “even if the informant’s reliability is unknown,” if the information is corroborated by the police. United States v. Porter, 738 F.2d 622, 625 (4th Cir.1984), citing Illinois v. Gates, supra. In the present case, this necessary corroboration is non-existent.

The “totality of the circumstances” test set forth in Gates does not redeem the police officer’s failure to corroborate:

“Gates adopts a ‘totality of the circumstances’ approach for determining whether an informant’s tip established probable cause, and holds that in some circumstances substantial corroboration of the tip through independent police investigation can justify reliance on the tip even if the basis of the informant’s knowledge is not set forth.” (Emphasis added)

English v. Sava, 571 F.Supp. 1029 (S.D.N.Y.1983). See also United States v. Cortese, 568 F.Supp. 119 (M.D.Pa.1983); United States v. Wilson, 571 F.Supp. 1422 (S.D.N.Y.1983); United States v. Uroquiza, 575 F.Supp. 1538 (S.D.N.Y.1983). In United States v. Bronowski, 575 F.Supp. 668 (W.D.Pa.1983), the relevance is explained:

“In Gates, the Supreme Court acknowledged the probative value of corroboration of details of an informant’s tip by independent police work in applying the totality of the circumstances analysis.”

575 F.Supp., at 672.

This analysis of the application of Gates and the “totality of the circumstances test” is consistent with this court’s decision in Mims v. State, 442 So.2d 133, 135 (Ala.Cr.App.1983), where there was sufficient probable cause because there was evidence that the informant was reliable or credible and also had a sufficient basis of knowledge of the information. Further, a hearsay tip from an unidentified source was found insufficient to establish probable cause in Sawyer v. State, 456 So.2d 114 (Ala.Cr.App.1984), under the “totality of the circumstances test” outlined in Gates. The facts of the case at bar are distinguishable from Houk v. State, 455 So.2d 115, 118 (Ala.Cr.App.1984), where a reliable informant provided highly detailed information in his tip to police. The personal observation of a reliable informant (a reserve police officer) met the “totality of the circumstances test” for probable cause in Archie v. State, 455 So.2d 122, 126 (Ala.Cr.App.1984). This specificity and assured reliability was not present in the case of Lanette Singleton.

Based on a thorough examination of the above authorities and the record, we must disagree with the District Attorney’s argument that the information provided in the tip was corroborated by other facts and circumstances known to the officers. There is no showing that there were other facts known to the police that would corroborate the hearsay relayed to the police. Even under the “totality of the circumstances test,” the warrantless arrest of Michael Butler was made without probable cause. The arrest was, therefore, illegal.

As in Taylor v. Alabama, supra and Ex parte Meeks, supra, the confessions obtained through custodial interrogation after an illegal arrest should be excluded. The Montgomery Circuit Court acted properly in granting Butler’s motion to suppress his confessions.

This cause is due to be, and is, hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Thomas SWINDLE, Jr. v. STATE.
    6 Div. 815.
    Court of Criminal Appeals of Alabama.
    Dec. 11, 1984.
    Robert V. Wooldridge III of Wooldridge, Wooldridge & Malone, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On a trial on an indictment for murder, a jury found Thomas Swindle, Jr., guilty of manslaughter. Prior to the sentence hearing, the State gave defendant notice that it would proceed against him under the Habitual Felony Offenders Act for one previous felony conviction. The previous felony conviction was proved at the sentence hearing, and the court sentenced defendant to imprisonment for twelve years.

The first issue presented by appellant is thus stated: “Interjection of the reputation and/or character of appellant by the State was improper and prejudicial.” Appellant’s contention is directed at a part of that which occurred soon after the trial court questioned the prospective jurors as to their qualifications for trying the case and during the time the prosecuting attorney was asking said prospective jurors additional questions calculated to aid the attorney in the exercise of his right to strike a given number of the jurors in the process of the selection of a jury to try the particular case. Soon after the attorney had asked questions pertaining to whether they were acquainted with members of the alleged victim’s family or with any of the attorneys for defendant, the following occurred:

“MR. LEMLEY [Prosecuting Attorney]: Thank you very much. Now, the next question I would like to ask is if any members of the jury venire know by name or reputation the defendant, Thomas Swindle?
“(No audible response).
“MR. LEMLEY: I assume by your silence that nobody does know the defendant by name or reputation.
“Now, the next question I would like to ask is—
“(Bench conference off the record).
“MR. WOOLDRIDGE, JR. [Defendant’s attorney]: Judge, we want to ask for a mistrial. He is injecting by reputation, and he asked him did he know Thomas Swindle by name or reputation. I think that is going around to the side door to inject character into this case, and that it is going to be a very important thing in this case.
“THE COURT: Well, I think that is a proper question, but I am going to explain it to them that by reputation you certainly simply mean that if they know him or know of him.
“MR. WOOLDRIDGE, JR.: Well, I don’t think that will do it. I think that is outright injecting character in a criminal case, and it is just out and out — I mean, do you know him personally or by reputation.
“THE COURT: Well, I am going to deny your motion for a mistrial because I think it is a proper question. I don’t particularly like it. Do you want me to try to explain it or—
“MR. WOOLDRIDGE, JR.: No, sir, I don’t want anything else said about it, and I except to the Court’s ruling.
“(End of Bench Conference).”

In the brief of counsel for appellant-defendant, he makes a strong argument, in which he states, “The written record before this Court is unfortunately incapable of denoting and recording the emphasis, inflection and emotion of the spoken word or the expression of the speaker’s body and facial language,” and in which he says that in asking the particular question the State’s attorney emphasized the word “reputation.” It is further stated in the brief that “In the subjective judgment of counsel, the emphasis and inflection given clearly conveyed and created in the minds of the jury venire an opinion of bad reputation.” It is to be noted that the argument now advanced by appellant on the issue is in addition to that which was advanced by his counsel on the trial and is as to a matter as to which the trial judge was in a better position to judge than are we. Therefore, we are unable to determine that the trial court committed prejudicial error in overruling defendant’s motion for a mistrial. The particular question did not contain a good choice of words, but the trial court did not abuse the discretion vested in it in declining to order a mistrial.

By the only other issue presented by appellant’s brief, appellant states, “THE TRIAL COURT ERRED IN REFUSAL OF REQUESTED WRITTEN CHARGES 10, 11, AND 12.” We consider the three charges separately.

Defendant’s requested Charge No. 10 states:

“If you find that Thomas Swindle inadvertently created, without intent to kill, a substantial risk of death of which he ought to have been aware, and, in fact, caused the death of William Bonner [the alleged victim] as a result of said action, then he has acted with criminal negligence and your verdict should find defendant guilty of criminal negligent homicide.”

The parties are in agreement that manslaughter and criminally negligent homicide are lesser included offenses as to the expressly charged offense of murder and that the evidence justified a submission to the jury of the issue as to whether defendant was guilty as to each of the lesser offenses as well as the expressly charged offense. As to defendant’s requested Charge No. 10, it is to' be noted that by including the phrase, “without intent to kill,” in the hypothesized finding, compliance with the hypothesis would have precluded a verdict finding defendant guilty of murder. However, compliance with the hypothesis would not have precluded a verdict finding defendant guilty of manslaughter. The charge was correctly refused for the reason that the giving of it would have incorrectly and improperly instructed the jury to the effect that under the evidence they could not find defendant guilty of manslaughter.

Defendant’s requested Charge No. 11 states:

“If you find that Thomas Swindle inadvertently created a risk of death of which a reasonable person would not be expected to perceive, then your verdict should be not guilty.”

Appellant argues in his brief as follows:

“It was Uncontroverted that the cause of death in the instant case resulted not from the blow delivered by the appellant to the deceased’s face but by the striking of the deceased’s head on the concrete surface when he fell. Requested charges no. 11 and 12 were further appropriate to aid the jury in consideration of the degree and foreseeability of the risk created.”

We do not fully understand the position taken by appellant, which we have just quoted, but it seems he contends that upon any finding by the jury that defendant was guilty of conduct constituting criminally negligent homicide, the jury should return a verdict of not guilty. This would be contrary to the logical conclusion that guilt of a particular necessarily included offense precludes a verdict finding defendant not guilty either of any offense, another necessarily included offense, or the expressly charged offense. Furthermore, we note that in the court’s oral charge, the court covered substantially and correctly any principle of law that defendant may have intended to cover by Charge No. 11, when the court stated in its oral charge the following:

“The law says a person acts with criminal negligence with respect to a result or a circumstance which is defined by a statute, as an offense, when he fails to perceive a substantial and unjustifiable risk, that the result will occur and that the circumstance exists. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would have observed in the situation.”

The trial court was not in error in its refusal of defendant’s requested Charge No. 11.

Defendant’s requested Charge No. 12 is as follows:

“If you find that Thomas Swindle inadvertently created a risk of death to William Bonner but also find that the risk of such death was not so substantial and unjustifiable that a reasonable person would be expected to perceive it, your verdict should be not guilty.”

For the same reason stated in our discussion of defendant’s requested Charge No. 11, we are of the opinion that the trial court properly refused defendant’s requested Charge No. 12.

No issue has been presented on appeal that discloses any error by the trial court prejudicial to appellant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All Judges concur.


author: PER CURIAM. BOYD, Chief Justice,

text:
    THE FLORIDA BAR, Petitioner, v. Ramiro ARANGO, Respondent.
    No. 62075.
    Supreme Court of Florida.
    Oct. 25, 1984.
    Rehearing Denied Jan. 21, 1985.
    John F. Harkness, Executive Director, John Berry, Staff Counsel, Catherine L. Dickson, UPL Counsel, H. Glenn Boggs, Bar Counsel, Tallahassee, and James P. Hahn, Chairman, Standing Committee on Unauthorized Practice of Law, Lakeland, for petitioner.
    R. Alan Hale, Fort Lauderdale, for respondent.
   PER CURIAM.

This cause is before the Court pursuant to jurisdiction granted in article V, section 15, Florida Constitution and article XVI, Florida Bar Integration Rule. Respondent was charged with the unauthorized practice of law; a referee was appointed to conduct hearings, take evidence and issue findings of fact and conclusions of law. We adopt the referee’s report and set it forth herein.

FINDINGS OF FACT

1. Respondent was not and is not a licensed or certified member of the Florida Bar.

2. Respondent is not a licensed Real Estate Broker or salesman in the State of Florida.

3. Respondent maintained offices in the building at 154 Giralda Avenue, Coral Gables, Florida, which contained a law library and offices of other attorneys. A sign on the door of the building, visible to the public, reads “Law Offices” and listed the names of the other attorneys who had offices in the building. Respondent’s office contained a wall display of diplomas from various Universities, including the University of Havana, Juris Doctor in Diplomatic Law; Paris University, Doctor in Financial Sciences; Sorbonne and Heidelberg University; and the Hague Academy of International Law. There was also on display a diploma from the University of Florida Special Program for Former Cuban Lawyers.

The Respondent presented himself in this capacity to the public clothed in the trappings of an attorney.

4. Although on occasion the Respondent appeared on television and was identified by the words “Doctor Ramiro Ar-ango, Abogado,” there was no proof that Respondent either solicited said identification nor knew at the time that he was being so identified.

5. Respondents appearance on radio talk shows giving advice to callers regarding various subjects, including immigration matters, was not proven by any facts presented during the hearings before the Referee.

6. During the period from March 1977 to March 1978, Respondent managed the law offices at 154 Giralda Avenue, Coral Gables, Florida, and supervised the work of several attorneys, including Blas E. Padrino. During this period the Respondent referred approximately 150 clients to Mr. Padrino for legal services.

There was no proof that Respondent prepared and filed a Complaint in Small Claims Court and affixed Bias Padrino’s name to the document without Padrino’s knowledge or permission.

There was no proof Respondent impersonated attorney Padrino during a telephone call Respondent allegedly conducted with an insurance adjustor.

Mr. Padrino testified that a client told him Respondent advised the client to testify falsely in a civil automobile case, but there was no testimony presented from the client at any hearing conducted by this Court.

7. Elisa Tamayo went to Respondent’s office in the belief that he was an attorney, for the purpose of helping her with an immigration matter. Miss Ta-mayo based her belief that Respondent was an attorney upon the trappings of the office, the diplomas on the wall, and a card on Respondent’s desk which read “Doctor Ramiro Arango.” Miss Tamayo entered an agreement with Respondent that in return for his services in the immigration matter, Respondent would deduct a fee from funds which were due Miss Tamayo from a previous automobile accident case that Respondent allegedly was handling for a Mr. Rollo Karkeet who was reported to be the attorney for Miss Tamayo and her mother in the automobile case. Respondent never advised Miss Tamayo that he was not an attorney of law, licensed to practice in the State of Florida. There is in evidence a G-28 form which purports to contain the signature of Rollo Kar-keet. Miss Tamayo claims this form was signed in blank by her when she consulted Respondent, and that at no time did Mr. Karkeet sign that document in her presence. Rollow Karkeet testified that he never did any immigration or naturalization legal work for Mr. Jose Tamayo or Miss Elisa Tamayo nor did Mr. Karkeet file a G-28 form for them.

8. Respondent assisted Magdalena Serra in the purchase of a home at 1425 Obispo, Coral Gables, in Dade County and drafted and prepared the Deposit Receipt and Sales Purchase Agreement for the sale of said residence. Respondent signed the document described above as escrow agent Ramiro Arango by Mary L. Dennis Law Office and accepted receipt of a $1,000 deposit and also $500 designated lawyer fees for “closing 1425 Obispo,” said check being made payable to Ramiro Arango.

9. Respondent, on behalf of Camille Castro, prepared and drafted a contract between Moisés Marcel Quizman and Camille Castro for the sale of four shares of Maraca Corporation stock for the price of $166,667. This matter eventually ended in a law suit being filed regarding the shares in question.

10. Respondent prepared the Deposit Receipt and Sales Purchase Agreement for the purchase of real property, the “Sensations Nightclub” between Maraca Corporation and Moisés Quizman. Respondent had dealings with the seller’s attorney Mr. Leslie Schere in a manner consistent with that of an attorney representing the buyer, and in said capacity, discussed price, terms, legal problems, payments of monies, mortgage foreclosure matters, and complaints regarding the leakage of the roof. The contract in question did not provide for a roof guarantee clause. This resulted in damage being suffered by the buyer and eventual foreclosure action in June of 1980.

11. Respondent prepared Articles of Incorporation for Anyway Realty Corp., and received payment of $100 from Miss Daisy Alvarez for the purchase of the corporate seal. The preparation of the Articles of Incorporation caused the corporation to be formed and filed with the Secretary of State in Tallahassee.

12. Documents regarding the sale of the property in the above stated matters were signed by attorney Mary Dennis, although Respondent admits drafting and preparing those documents and meeting and discussing the case with the parties involved.

CONCLUSIONS OF LAW

1. Respondent engaged in the practice of law in that he held himself out to the public as an attorney by taking advantage of the trappings of the office of an attorney in setting labeled “law offices.” Respondent dealt with the public, who sought legal advice, without informing the public that he was not licensed to practice law.

2. Respondent engaged in the practice of law by preparing contracts for Deposit Receipt and Sales Purchase Agreements for the property described in (7), (8) and (9) above in the Referee’s Finding of Fact. Keyes Co. v. Dade County Bar Ass’n, 46 So.2d 605 (Fla.1950).

3. Respondent engaged in the practice of law by advising Miss Tamayo about certain immigration matters and agreed to accept a fee therefore. State of Florida ex rel. The Florida Bar v. Alexander T. Sperry, 140 So.2d 587 (Fla.1962).

4. Respondent engaged in the practice of law by preparing the Articles of Incorporation for Anyway Realty Corporation. The Florida Bar v. Town, 174 So.2d 395 (Fla.1965).

Although Respondent alleges that he acted merely in the capacity of an office manager, managing the law firm for Rollo Karkeet, there is no evidence to support the fact that Rollo Karkeet ever engaged Mr. Arango in said capacity nor authorized him to operate and run a law practice in Mr. Karkeet’s name. It is obvious that in his capacity the Respondent engaged in such practices that would affect the rights of individuals in the formation of corporations and the sale of purchase of property and shares of stock. This activity would require a certain expertise in the field of law.

Respondent attempts to justify his activities with regard to the matters enumerated above by claiming that he merely acted as a conduit for another attorney. He claims that all he did was to initially interview a client, fill in the blanks on the form for which he had already received information and then conferred with the attorney for the final preparation of said forms. Some of these allegations are disputed by the facts and evidence in this case. The evidence, however, indicates that this was not the limit and extent of the services rendered by Respondent. Said services bordered on the giving of advice and assisting a “client” in the preservations of the client’s rights and interests in matters which have been considered legal in nature.

It is settled that a person licensed in the sale and brokerage of real estate may prepare deposit receipts and sales purchase agreements, but in this case Respondent is neither a real estate broker or salesman nor attorney at law and in neither capacity could lawfully engage in such activities.

The manner in which Respondent held himself out to the public by maintaining his offices where he did, and in the manner in which he did, gave leave to the public to expect that he was as he seemed to be, an attorney at law, and therefore engage him in the preservation of their rights and interests. Such activity can in no way be considered, as Respondent would have one believe, the practice of “business consultant” or “office manager.” This case would appear quite similar to the case of the Florida Bar v. Fuentes, 190 So.2d 748 (Fla.1966) in which the Respondent was found in violation of the law in that he engaged in the unlawful practice of law under circumstances similar to the one enumerated above.

The referee recommended that respondent be enjoined from further unauthorized practice of law and, further, that respondent be adjudicated guilty of indirect criminal contempt and punished in accordance with article XVI, III (B)(2) of the Florida Bar Integration Rule, by levying of a fine of $2,500 and confinement for five months. Respondent protests the recommended sentence, claiming to have been prevented from presenting evidence in mitigation. However, the record shows that respondent voluntarily waived the sentencing proceeding in open court to which he was entitled and at which such evidence could have been presented. The choice was the respondent’s and no error has been committed.

We have accepted the referee’s recommendation that respondent be permanently enjoined from the unauthorized practice of law. The order to that effect issued from this Court September 20, 1983. In light of these findings of fact and conclusions of law, and this Court’s handling of similar cases, we sentence respondent to one hundred twenty days in jail and suspend ninety days of that sentence. When this opinion becomes final, the sheriff of Dade County is authorized and directed to take respondent into custody and to confine him for thirty days. If respondent does not violate the terms of our continuing injunction for a period of two years, the suspended term of ninety days shall be deemed satisfied. Costs in the amount of $2,931.79 are assessed against respondent, for all of which let execution issue.

It is so ordered.

ADKINS, OVERTON, ALDERMAN and EHRLICH, JJ., concur.

BOYD, C.J., concurs in part and dissents in part with an opinion.

BOYD, Chief Justice,

concurring in part and dissenting in part.

I concur in the approval of the finding that Mr. Arango has engaged in the unauthorized practice of law. I dissent, however, to the punishment imposed by the Court. It will be recalled that Ms. Furman was given a clear opportunity to mend her ways before this Court finally, in desperation, chose to punish her open contempt of Court with a jail sentence. See The Florida Bar v. Furman, 451 So.2d 808 (Fla.1984); The Florida Bar v. Furman, 376 So.2d 378 (Fla.1979), appeal dismissed, 444 U.S. 1061, 100 S.Ct. 1001, 62 L.Ed.2d 744 (1980). When finally ordered jailed, she had contemptuously and conspicuosly flouted this Court’s cease-and-desist order. I would give Mr. Arango the same opportunity to correct his errors. An injunction and a conditional fine order should be a sufficient sanction to impose upon him. Only upon further violation should Mr. Arango be subject to the same kinds of punishment Ms. Furman received.

ON MOTION FOR REHEARING

Respondent is to receive credit against the sentence imposed by order of this Court dated October 25, 1984 for time served pursuant to the sentence imposed by the Circuit Court for the Eleventh Juci-dial Circuit of Florida in case number 82-19035.

In all other respects the Motion for Rehearing, Clarification, New Trial, Revise and/or Amend its Final Order Dated October 25, 1984, with Incorporated Memorandum of Law is hereby denied.

The Motion for Stay of Execution is granted and the proceedings in this Court are stayed to and including February 20, 1985, to allow respondent to seek review in the Supreme Court of the United States and obtain any further stay from that court.

It is so ordered.