author: HUBERT TAYLOR, Judge.

text:
    Rickey Barry ATTEBERRY, alias v. STATE.
    2 Div. 383.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied April 6, 1984 Alabama Supreme Court 83-429.

      . William D. 0wings, Centreville, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant pleaded guilty to the theft of property in the second degree and was sentenced to ten years in the penitentiary. This appeal involves the sufficiency of that guilty plea.

To facilitate the discussion of the issues raised on appeal, the entire colloquy between the trial judge and Atteberry, as well as the judgment entry, will be set forth:

Colloquy between Court and Defendant
“THE COURT: Mr. Atteberry, you understand that you are here to enter a plea of guilty to the charge of Theft of Property in the 2nd Degree in accordance with the terms of the agreement between the District Attorney and your attorney?
“MR. ATTEBERRY: Yes, your Honor. “THE COURT: All right. I have to make a finding that you are knowingly and voluntarily entering your plea. Do you have any problems with that?
“MR. ATTEBERRY: No, sir.
“THE COURT: Has anyone made any threats, given you any inducements or offered you any hopes of reward in order to get you to enter this plea or are you doing this of your own free will?
“MR. ATTEBERRY: No, sir. I want to say that I deserve the ten years to run concurrently with Iowa sentence.
“THE COURT: All right. Then I’ll make a finding that you are knowingly and voluntarily entering your plea of guilt to the charge of Theft of Property in the 2nd Degree, you are accordingly adjudged to be guilty and as punishment for this offense, you are sentenced to the penitentiary of Alabama for 10 years; this sentence to run concurrently with the sentence presently being served in the State of Iowa and it is ordered that you be transferred to the authorities in Cherokee County for disposition of the pending charges.
“(Whereupon the proceedings concluded this date.)”
Judgment Entry
“On this the 16th day of May, 1983, comes the State of Alabama by its District Attorney, Honorable Michael L. Murphy, also comes the defendant, Donald Lee Silver alias Rickey B. Atteberry, in his own person and with his attorney, Honorable L. Scott Atkins, and the defendant being advised of his constitutional rights and being duly arraigned upon an indictment charging the offense of Theft of Property, 2nd Degree, for his plea thereto says he is guilty.
“The Court, therefore, adjudges the defendant, Donald Lee Silver, alias Rickey B. Atteberry, guilty of Theft of Property 2nd Degree as charged in the indictment. The defendant being present in open Court with his attorney, Honorable L. Scott Atkins, and being asked by the Court if he has anything to say why the judgment and sentence of the law should not be pronounced upon him, says nothing.
“It is, therefore, considered by the Court, and it is the judgment and sentence of the Court that the defendant Donald Lee Silver, alias Rickey B. Atte-berry, be sentenced to the Penitentiary of Alabama for ten years, concurrent with sentence presently being served in the State of Iowa.
“/s/ Edgar P. Russell, Jr. Circuit Judge

Atteberry first argues that the record discloses no factual basis for the plea as required by Clark v. State, 294 Ala. 485, 318 So.2d 805 (1974). The finding of a factual basis must be grounded upon some indication in the record that the accused actually committed acts that would justify a conviction based upon his guilty plea. Clark, 318 So.2d at 808.

It is clear that the accused does not personally have to state facts which would show that he committed the offense if other information is before the trial judge from which he can make that determination. Young v. State, 408 So.2d 199 (Ala. Cr.App.1981). That “other information” may include facts contained in a pre-sen-tence investigation report {Young, supra), confessions (Sanders v. State, 414 So.2d 482 (Ala.Cr.App.1982)), and the D.A.’s assertions of what he expects the evidence to show (Yamada v. State, 426 So.2d 906 (Ala.1982)). In fact, when the offense is simple and specific, the rule requiring the determination of a factual basis may be satisfied by a reading of the charge. Morris v. State, 424 So.2d 1380 (Ala.Cr.App. 1982); Young, supra.

There does, however, have to be some factual basis developed on the record. Yamada, supra. In the instant case, there is no finding of a factual basis during the colloquy between judge and defendant, no confession, no pre-sentence report, and no assertions by the district attorney. Additionally, there is no indication that the indictment was read to Atteberry. Although the judgment entry states that Atteberry was “duly arraigned” upon an indictment, that alone does not establish a factual basis for the plea.

The courts of this state have held that the reading of an indictment will suffice when the charge is simple and specific. The phrase “duly arraigned” does not indicate whether the indictment was read or the reading waived. Moreover, it is the better practice that, even when a mere reading of the indictment is sufficient, the reading should occur at the time of the guilty plea proceeding. See Cashin v. State, 428 So.2d 179, 182 (Ala.Cr.App.1982), wherein the court said, “In a plea of guilty proceeding the judge should undertake a factual inquiry to determine if the plea is voluntarily made ... and that there is a factual basis for the plea.” [Emphasis added.] The case of Rogers v. State, 332 So.2d 165 (Ala.Cr.App.1976), is more to the point. There the court said, “[T]he indictment was never read to defendant at the time of the plea, nor does it appear that defendant was informed of the contents of the indictment _ [The] trial judge ... fails ... the mandates of Boykin for ... the Court did not read or cause the indictment to be read to defendant_” 332 So.2d at 166, 167. [Emphasis added.]

In the ease of Walcott v. State, 48 Ala. App. 754, 263 So.2d 177 (1971), the judgment of conviction recited that the defendant had been “duly arraigned” but, as here, there was no affirmative showing that the plea was knowingly and intelligently made. A mere showing that an accused has been “duly arraigned” will not supply the factual basis for a plea which, in turn, is an indicator of whether a plea is knowingly and intelligently made. If it were otherwise, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), would not have been necessary. In that case, as here, the accused had been arraigned but the court said, “It was error ... to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary_ Presuming waiver [of constitutional rights] from a silent record is impermissible.” Boykin, 395 U.S. at 242, 89 S.Ct. at 1711. [Emphasis added.]

For the foregoing reasons, the cause must be reversed and remanded.

Atteberry also complains that he was not informed of the nature of the offense charged against him. Although we have remanded, it seems appropriate that we comment on this argument.

The case of Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983), relying on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), held that ordinarily it can be assumed that defense counsel has explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. The court then applied the Henderson standard to the facts of the case before it. The relevant facts were as follows:

(a) There was a colloquy that was arguably sufficient in and of itself to apprise the defendant of the nature of the charge;

(b) There was a stipulation during the colloquy by defense counsel that the indictment was sufficient both in law and fact to sustain the charges contained therein; and

(e) There was a conviction statement which recited that the defendant had been duly advised of the consequences of pleading guilty. The court held that the application of Henderson to these facts led to the conclusion that the plea was voluntary.

In the case of Russell v. State, 428 So.2d 131 (Ala.1982), the court said the defendant must be fully informed of all the elements of the offense. The court went on to say:

“We are of the opinion that he was aware of the elements_ Although defendant waived a reading of the indictment, he is nonetheless charged with knowledge of its contents. Further, the defendant executed an ‘Ireland’ form which indicated, ‘my lawyer has explained to me the elements of this crime and the punishment therefor and I understand them.’ Finally the judgment specifically states that the trial court had ascertained that the defendant was aware of the nature of the crime charged in the indictment. Thus, we cannot say that defendant was unaware of the elements of the offense_” 428 So.2d at 135.

Additionally, in Russell, there was also a colloquy that arguably informed defendant of the nature of the offense.

In the case sub judice, the colloquy is inadequate for any purpose; there is no stipulation by the defense attorney; the “Ireland” form contained no reference to the elements or nature of the offense; and the judgment entry likewise contains no reference to the nature of the offense or to Atteberry understanding his constitutional rights. Under these circumstances we hold that this case falls outside the scope of Marshall, supra, and Russell, supra.

As was the case when establishing a factual basis, we do not feel that either the United States Supreme Court or the Alabama Supreme Court ever intended for their opinions to indicate that a mere arraignment would satisfy the requirements of Boykin. It should be kept in mind that in Henderson, supra, the case on which the State ultimately grounds its argument, the Supreme Court reversed a conviction based on a guilty plea even though there had been a reading of the indictment in open court and an extensive colloquy. The failure to inform the accused of the nature of the charge against him becomes, then, a second ground for reversal.

This cause is reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Rufus KIMBLE v. STATE.
    5 Div. 750.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied April 20, 1984 Alabama Supreme Court 83-447.
    Margaret Y. Brown, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn Y. Grant, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Rufus Kimble was indicted for first-degree robbery and convicted of second-degree robbery for his participation on May 5, 1982, in the robbery of George Mac Gordon in rural Lee County, Alabama. Pursuant to Alabama’s Habitual Felony Offender Act, Kimble, the appellant, was sentenced to life imprisonment.

The sole issue on appeal is appellant’s challenge that the evidence was insufficient to connect him with the crime.

At 11:00 a.m. on May 5, 1982, seventy-nine-year-old George Mac Gordon bought groceries at the local Piggly Wiggly supermarket. To pay for the groceries he used his Civil Service paycheck. He received $258 in change and placed the money in a brown envelope, which he placed in his breast pocket.

Mr. Gordon then drove home, a distance of three to four miles from the Piggly Wiggly supermarket, and began unloading his groceries.

As he was returning to his automobile to unload more groceries he noticed, about fifty feet up the street, two black males, who were talking with each other as they walked toward him. As one of the men walked past him, Gordon spoke to him. The man did not reply, but instead nodded a couple of times, as though he were giving a signal to the other man, and kept walking. Before Gordon could turn around the second man stuck the barrel of a pistol against Gordon’s ribs and requested that Gordon accompany him inside Gordon’s home. Instead, because he knew his wife and mother-in-law, both of whom were invalids, were inside his home, Gordon grabbed for his assailant’s gun. Without hesitating, the gunman grabbed the brown envelope from Gordon’s breast pocket, and ran away. The gunman did not attempt to take Gordon’s wallet and he made no effort to search Gordon for other valuables.

Gordon quickly retrieved his shotgun. As he returned to the street the first man, the one who had walked down the street in the opposite direction from the gunman, appeared again. As he approached, Gordon confronted him with his shotgun and requested that he stay with Gordon until the police arrived. The man explained that he was looking for someone named Johnson, but there was no Johnson in that neighborhood. Then, ignoring appellant’s request to stop, the man ran across the street, through Elmer Shehane’s yard, jumped Shehane’s back fence, and disappeared.

Several neighbors, including Shehane and Cleatus Otis Taylor, assisted Gordon in the chase of, and search for, the two robbers. Both men were apprehended within minutes of the robbery.

Gordon identified the appellant as the first man, the apparent decoy or look-out in the robbery. Gordon identified the appellant at the scene and at trial, although his in-court identification was less than positive because of appellant’s change in appearance between the day of the robbery and the day of the trial. Shehane, however, positively identified the appellant, at trial, as the man he saw on the day of the robbery running from Gordon and through his lot. Furthermore, Cleatus Taylor and Deputy Henry Johnson of the Lee County Sheriff’s Department identified the appellant at trial as the man that Gordon positively identified on the day of the robbery.

Deputy Johnson testified that, after he had given the appellant his Miranda warnings, the appellant said “I came to Alabama and screwed up.”

The gunman, the second man in the robbery, was later identified as Ronald Calvin McHarris. McHarris was seen by Sharon Jones just outside the Piggly Wiggly supermarket at about the time Gordon left with his groceries. A few minutes after the robbery McHarris was captured near his automobile, which had been parked on a dirt road about 150 yards from Gordon’s home. A pistol was recovered from McHarris’ automobile.

Gordon recovered his $258 from the police, who had taken the cash from both the appellant and McHarris after the robbery.

McHarris, who had already been convicted for his participation in the robbery, was called as a witness for the prosecution, but he invoked his Fifth Amendment right to remain silent and did not testify.

The appellant testified in his own behalf. He did not contradict Gordon’s version of the robbery. He admitted that he was chased, captured, and arrested in the vicinity of the robbery, but denied that he was the man with McHarris who helped rob Gordon. He explained that he did not know, and had never seen, McHarris before the robbery. He saw McHarris for the first time during the preliminary proceedings connected with his trial. He further explained that on the day of the robbery he was walking on “Highway 12” from Opeli-ka, Alabama, to Columbus, Georgia. He heard the commotion created by the robbery, including gunshots, and thought he was being “shot at.” He ducked into some bushes by a house down a dirt road for safety. When someone spotted him, he ran. He did not know a robbery had taken place. He thought he was being chased for trespassing on private property. He eventually surrendered at gunpoint, but only because he thought he would be accused of trespassing.

The appellant admitted making the statement to Deputy Johnson about “screwing up” in Alabama but insisted that he was referring to his unfortunate luck of being in the vicinity of the robbery and not to any participation in the robbery. He admitted that he was carrying a lot of cash, but explained that his friends and relatives had given him the money to help keep him out of jail. He admitted that he had been arrested and convicted of several other crimes and that he had actually traveled to Opelika to avoid the Columbus, Georgia, authorities, who were continuously har-rassing him for no reason.

Before the appellant gave his alibi testimony, he moved, in effect, for a judgment of acquittal claiming that the state’s evidence was insufficient to prove his participation in the robbery. The trial court denied this motion.

Although the identification of the appellant at trial by the victim, Gordon, was less than positive, and there was no evidence that the appellant actually took Gordon’s money, the evidence was, nevertheless, sufficient for the jury to infer appellant’s participation in the robbery.

“While mere speculation, conjecture, or surmise, will not authorize a conviction, the jury is under a duty to draw whatever permissible inferences it may from circumstantial evidence and to base its verdict on whatever permissible inferences it chooses to draw. Kontos v. State, 363 So.2d 1025, 1034 (Ala.Cr.App.1978).”

Stewart v. State, 405 So.2d 402 (Ala.Cr. App.1981). A permissible inference from the evidence in this case was that the appellant conspired with McHarris immediately before the robbery and participated therein as either a decoy or a look-out.

There was no direct evidence of this conspiracy. However, “participation and community of purpose may be shown by circumstantial evidence or inferred from the conduct of the participants.” (Emphasis added.) Sanders v. State, 423 So.2d 348 (Ala.Cr.App.1982). And a person’s presence and his conduct before, during, and after the crime, are “potent circumstances from which participation may be inferred.” Sanders v. State, supra.

The state’s evidence, when viewed pursuant to Dolvin v. State, 391 So.2d 133 (Ala. 1980), reversing, 391 So.2d 129 (Ala.Cr. App.1979), and cases therein cited, in the light most favorable to the prosecution, showed that the appellant was conversing with McHarris immediately before the robbery, that he distracted Gordon and then signaled McHarris as McHarris stepped up behind Gordon and threatened him with a pistol, and that he eventually fled when Gordon requested that he stay until the police arrived. The state’s evidence further indicated that after his arrest the appellant said “I came to Alabama and screwed up,” and that a large amount of cash was recovered from him.

This evidence was sufficient to present to the jury the question of whether or not the appellant was, indeed, an accomplice in the robbery. The trial court, therefore, did not err in denying appellant’s motion for judgment of acquittal. See, Sanders v. State, supra; see also, Reed v. State, 55 Ala.App. 138, 313 So.2d 564 (1975); Glover v. State, 382 So.2d 645 (Ala.Cr.App.1980).

Furthermore, although the appellant testified that he was not the unarmed man who, allegedly, participated in the robbery, the evidence was sufficient to support the jury’s verdict to the contrary. We will not substitute our judgment for that of the jury. Cumbo v. State, 368 So.2d 871 (Ala. Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979); Dolvin v. State, supra; Stewart v. State, supra.

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

AFFIRMED.

All the Judges concur.

      . The evidence presented herein distinguishes this case from Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978), Lollar v. State, 398 So.2d 400 (Ala.Cr.App.1981), and other cases cited by the appellant as examples of instances where convictions based on mere speculation, suspicion, or conjecture were, necessarily, reversed.


author: SAM TAYLOR, Judge.

text:
    Joseph Clyde HENRY v. STATE.
    5 Div. 791.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 31, 1984.
    Certiorari Denied April 6, 1984 Alabama Supreme Court 83-521.
    Richard D. Lane, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Ferris W. Stephens, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Joseph Clyde Henry was convicted of the first degree burglary of the home of Edward J. Cobb and sentenced to fifteen years’ imprisonment.

Taken from Cobb’s home were two pistols, a shotgun, a watch, and a small amount of cash. The stolen guns were recovered and identified by Mr. Cobb. Appellant gave a statement to police in which he admitted breaking in with an ax and stealing the property.

Appellant raised this issue: Is a person who begins a burglary unarmed, but who steals a deadly weapon during a burglary, “armed with a deadly weapon” within the meaning of Ala.Code § 13A-7-5 (1975)? That statute reads in pertinent part:

“A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in dwelling or in immediate flight therefrom, he ...
(1) Is armed with ... a deadly weapon .... ” (emphasis added)

The statutory phrases “while in dwelling” and “in immediate flight therefrom” anticipate those instances when the perpetrator of a crime arms himself during the course of the crime or while fleeing from the scene. The fact that the weapon with which appellant armed himself belonged to his victim made appellant no less armed than he would have been had he brought the weapon with him.

As defined in § 13A-1-2(11), Code of Alabama 1975, a deadly weapon is:

“A firearm or anything manifestly designed, made or adapted for the purposes of inflicting death or serious physical injury, and such term includes, but is not limited to, a pistol, rifle or shotgun;”

We have held that “any firearm is a deadly weapon for purposes of bringing the offense within the definition of robbery in the first degree.” Carter v. State, 420 So.2d 292 (Ala.Cr.App.1982). See also Lidge v. State, 419 So.2d 610 (Ala.Cr.App. 1982), cert. denied, 419 So.2d 616 (Ala. 1982).

The remaining contentions of appellant concern issues not preserved for our review.

Accordingly, the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Paul Marion SWICEGOOD v. STATE.
    6 Div. 564.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 31, 1984.
    Certiorari Denied April 6, 1984 Alabama Supreme Court 83-516.
    Hugh C. Henderson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant was convicted of violating the Alabama Uniform Controlled Substances Act; fined $25,000; and sentenced to ten years’ imprisonment.

I

Appellant contends that the trial court committed reversible error when it failed to grant his motion to suppress; he asserts that his warrantless arrest was improper since there was no probable cause to justify it. This constitutional issue was the principal issue at trial.

Police Officer Bishop testified that on February 21, 1980, he and other officers proceeded to a motel after an informant had told them that an escaped prisoner was in room 204. They were also told that the escapee had drugs. After arresting the individual, the officers asked the motel manager to call them if anyone else came to that room.

Later that evening the police department received a call from the motel informing them that there were two people standing at the door of the room. Officer Bishop testified that as he pulled into the motel he saw two men standing in front of the room. There was some controversy at trial as to which room the men were near. The police officer shouted to them, “Freeze!”, the appellant and his companion began to run, and Officer Bishop gave chase. He testified that as he rounded the corner he saw the appellant place a white sack in a garbage can. After the men were caught, Officer Bishop retrieved the white sack from the garbage can and found that it contained a quantity of pills.

The two suspects were then arrested. When asked at trial if the motel had been involved in other drug cases, Officer Bishop stated, “I really don’t remember.”

Section 15-10-3, Code of Alabama 1975, states:

“An officer may arrest any person without a warrant, on any day and at any time, for:
“(1) Any public offense committed or a breach of the peace threatened in his presence;
(2) When a felony has been committed, though not in his presence, by the person arrested;
(3) When a felony has been committed and he has reasonable cause to believe that the person arrested committed it;
(4) When he has reasonable cause to believe that the person arrested has committed a felony, although it may after-wards appear that a felony had not in fact been committed; or
(5) On a charge made, upon reasonable cause, that the person arrested has committed a felony.”

The “reasonable cause” or “probable cause” standard that must be met before a warrantless arrest can be made has been defined as follows:

“[Reasonable cause ... is knowledge of circumstances such as would lead a reasonable man of ordinary caution, acting impartially, reasonably and without prejudice, to believe the person arrested to be guilty.” As quoted in Oliver v. State, 385 So.2d 69 (Ala.Cr.App.1980).

When Officer Bishop arrived at the motel, the appellant and his companion were standing in front of the door to a motel room. Even had the room number not been in issue, proximity to the door of a room where police officers had earlier arrested an escaped jail inmate by itself does not serve as the basis for a “reasonable belief” that those persons near the door had committed a crime. See, Ala.Digest and West’s Federal Practice Digest, 2d, Criminal Law, Key No. 63.4(17).

Neither does the fact that someone tries to run away in and of itself justify a warrantless arrest according to our precedents. Foy v. State, 387 So.2d 321 (Ala.Cr. App.1980). Flight may be used to establish probable cause only when there are other circumstances tending to show that a felony had been committed. Foy, supra.

Since evidence seized as a result of an unlawful arrest is, of course, inadmissible, Foy, supra, the paper bag and its contents which were retrieved by Officer Bishop from the trash can could not be used as evidence against appellant at trial. It is true that the effect of an illegal stop or arrest may be cured when a defendant voluntarily abandons evidence. United States v. Beck, 602 F.2d 726 (5th Cir.1979). However, “... for this to occur the abandonment must be truly voluntary ...,” Beck, supra, and it is obvious that appellant threw the paper bag away because he was being chased by police officers.

By statute a peace officer has the authority to stop and question a person for investigatory purposes even though the circumstances that prompted the officer to detain the individual fall short of the probable cause requirement under § 15-10-3, Code of Alabama 1975.

The so-called “stop and frisk” statute reads as follows:

“A sheriff or other officer acting as sheriff, his deputy or any constable, acting within their respective counties, any marshal, deputy marshal or policeman of any incorporated city or town within the limits of the county or any highway patrolman or state trooper may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions.” Ala.Code § 15-5-30 (1975).

In Butler v. State, 380 So.2d 381 (Ala.Cr. App.1980), this court reiterated the standard established by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), which held that a stop is permissible “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Further, the United States Supreme Court has stated that in order for the seizure of an individual to meet fourth amendment requirements, the seizing officer’s suspicion that an individual is committing a criminal act must be based on “objective facts.” Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

Having no choice but to use the standard mandated by the United States Supreme Court under that Court’s interpretation of the constitution, we find that the record in this case fails to reveal enough evidence that appellant’s behavior could have led an officer to reasonably conclude that criminal activity was being carried out.

Thus, upon consideration of all the factors surrounding appellant’s detention and arrest, we hold that the motion to suppress the evidence should have been granted.

II

The other issue appellant raises on appeal is whether the trial court erred in denying defendant’s motion for a view of the courtyard area of the motel. Since the decision in this matter was within the trial court’s discretion, and since we find no evidence of abuse of that discretion, this issue is without merit. See Alabama Digest, Criminal Law, Key No. 651(1), and the cases cited therein.

For the reasons cited in I above, this case is due to be reversed.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Barry Darnell WYSINGER, alias Barry Wysinger v. STATE.
    6 Div. 838.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 31, 1984.
    Certiorari Denied April 20, 1984 Alabama Supreme Court 83-515.

      J.D. Terry and Michael C. Cornwell, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

On the night of the 21st of April, 1981, Walter Thomas was shot in the back while standing in a crowd of people. Barry Darnell Wysinger, the appellant, was indicted and convicted for his murder. Sentence was life imprisonment. Three issues are presented on appeal.

I

Wysinger asserts that the trial judge erred in not granting a mistrial based on the improper conduct of the prosecutor in cross examining defense witnesses. He argues that the prosecutor improperly questioned defense witness Cassandra Webb about a prior inconsistent statement which, in fact, did not exist and that the prosecutor improperly questioned defense witnesses about prior shooting incidents not supported by evidence.

A

The Inconsistent Statement

The record shows that Mrs. Webb never made any prior inconsistent statement. However, during his cross examination of Mrs. Webb, the prosecutor asked her if she had told the police that she heard Adell Abrams telling Wysinger not to shoot because there were too many people out there and that Wysinger was yelling that he did not give a damn. Mrs. Webb admitted that she talked to the police the night of the shooting but denied making any statement and denied making the specific statement the prosecutor attributed to her in his question. Mrs. Webb’s testimony was elicited without objection.

State witness Adell Abrams did testify that she told Wysinger to “put the gun down. You will hurt somebody” and that he replied, “I am going to kill all those mother-_” On cross examination by defense counsel she testified that she did not hear Wysinger say that he did not give a damn. Two other state witnesses corroborated Mrs. Abrams’ testimony.

As part of his defense, Wysinger called a former Tuscaloosa police officer who stated on cross examination by the State that he investigated the homicide. He testified that Mrs. Abrams told him that she told Wysinger “to put the gun up. There was too many people around” and that Wysinger replied, “I don’t give a damn” and started shooting. j

B

The Other Shooting Incidents

The first witness for the defense was Shirley Wysinger, Wysinger’s sister. On cross examination, Ms. Wysinger testified, without objection by defense counsel, that she had never seen Wysinger with a pistol and that she had never seen him shooting at street lights or signs, or carrying a pistol around the neighborhood or in his automobile. The prosecutor also questioned defense witness Cassandra Webb about this same matter and she also denied ever having seen Wysinger with a pistol.

On direct examination Wysinger denied owning a pistol or having one in his possession at the time of the homicide. On cross examination, Wysinger denied ever owning a pistol and testified in response to the prosecutor’s questions that Otis Tubbs, his brother-in-law, had never talked to him about shooting at signs or shooting in front of his mother-in-law’s house.

In rebuttal, the prosecution proved that, about one week prior to the killing, Curtis Carpenter saw Wysinger in the area with a pistol shooting at a bus sign. To this testimony defense counsel interposed a general objection. This was the only objection to any of the testimony about the “prior shooting incidents.” Mr. Carpenter testified that he stopped Wysinger from shooting and told him “that it was kind of dangerous for him to be firing firearms in front of kids like that.”

The issue argued on appeal was first raised at trial when defense counsel requested a mistrial after both parties had rested their case. Defense counsel argued that, since the State had not introduced any evidence that Mrs. Webb had made a prior inconsistent statement and had proven only one prior shooting incident, the prosecutor’s questions were without any factual basis and were not made in good faith.

After the trial judge denied the mistrial, defense counsel requested he instruct the jury that Mrs. Webb did not make any statement to the police. The judge found that defense counsel “should have objected to it at the time” and refused to instruct the jury that Mrs. Webb did not make any statement as that would constitute a “comment on a particular part of the evidentiary proceedings.”

We find that, even if the prosecutor’s conduct was improper, the extreme remedy of a mistrial was not required. “It is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner knows he cannot support by the evidence.” Young v. State, 363 So.2d 1007, 1012 (Ala.Cr.App. 1978); Bezotte v. State, 358 So.2d 521, 525 (Ala.Cr.App.1978). Both of those cases involved questions about prior convictions. Young involved the use of prior convictions about which the prosecutor continued to question the defendant when he had no legal evidence of such convictions, knew he could not support them by evidence, and had been instructed by the trial court on several occasions to cease going into the area of prior convictions. In Bezotte, the youthful offender conviction was inadmissible and the prosecutor had been warned to avoid its use. In both of those cases, the prosecutor’s conduct was in violation of the trial judge’s instructions.

Laying prejudicial allegations before the jury “by dint of cross-examination without being prepared to prove them is generally regarded as reversible error.” United States v. Brown, 519 F.2d 1368, 1370 (6th Cir.1975). It is improper for the prosecutor “to ask a question which implies a factual predicate which the examiner knows he cannot support by evidence or for which he has no reason to believe that there is a foundation of truth.” United States v. Harris, 542 F.2d 1283, 1307 (7th Cir.1976); 6 J. Wigmore, Evidence Section 1808 (Chadbourn rev. 1976). “Where the State, in laying a foundation for impeachment, insinuates the existence of prior inconsistent statements by the witness and the witness denies making the statement, the State must produce evidence that the prior inconsistent statement was made.” People v. Sprouse, 94 Ill.App.3d 665, 50 Ill.Dec. 76, 418 N.E.2d 1070, 1077 (1981); see also United States v. Bohle, 445 F.2d 54, 73-74 (7th Cir.1971). In such cases, the State may have a duty to complete its impeachment of the witness or show that the prosecutor had “evidence of or reasonable ground to believe the truth of its implication.” Lee Won Sing v. United States, 215 F.2d 680, 681 (D.C.Cir.1954); see United States v. Mackey, 571 F.2d 376, 386 (7th Cir.1978).

However, not every violation of these rules is “so grossly prejudicial as to require the trial court to declare a mistrial as a matter of law.” United States v. Kelly, 459 F.2d 10, 11 (9th Cir.1972). In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses “(o)ur task is to consider their impact in the context of this particular trial”, and “not view the group of allegedly improper questions and comments in the abstract.” United States v. Davis, 546 F.2d 583, 593 (5th Cir.1977). “(W)e must assess the impact of the questions in the context of the entire trial.” United States v. Bosby, 675 F.2d 1174, 1185 (11th Cir.1982).

Within the confines of this case, the prosecutor’s conduct does not amount to reversible error. First of all, there was a reasonable basis for the questions concerning the prior shooting incidents even though that basis was not as broad as the prosecutor’s questions. “While the prosecuting attorney should not endeavor to introduce legally inadmissible evidence, or testimony known to be untrue, he should be allowed full range within the law to bring out all the material evidence he has good reason to believe will shed light on the commission of an alleged offense.” 23A C.J.S. Criminal Law § 1087 (1961).

In regard to the alleged prior inconsistent statement of Mrs. Webb, the record reflects nothing that would indicate any intentional misconduct by the prosecutor to mislead the jury. The record does reflect that the prosecutor learned that Mrs. Webb did not make the statement he attributed to her only after the defense had rested its case. Defense counsel made this clear in his motion for a mistrial: “Also at the bench conference this afternoon the Defense rested. I think Mr. Summerford (prosecutor) indicated for the Record he has subsequently learned that the statement which he was using to question Mrs. Webb was not in fact made by her but some other witness.”

By his questions, the prosecutor added no substantive evidence which was not properly before the jury when the trial ended. Bradford v. Stone, 594 F.2d 1294, 1296 (9th Cir.1979). Other defense witnesses corroborated Mrs. Webb’s version of the manner in which the shooting occurred. Viewed within the context of the entire trial and the evidence against Wy-singer, the prejudicial effect of the prosecutor’s conduct must be deemed insignificant. United States v. Cardarella, 570 F.2d 264, 268 (8th Cir.1978). “The prosecutor’s naughty words were in effect a flyspeck on this record, not a blot.” United States v. Natale, 526 F.2d 1160, 1172 (2nd Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976).

The trial judge is allowed the exercise of broad discretion in determining whether or not to grant a mistrial. Woods v. State, 367 So.2d 982, 983-84 (Ala.1978). “No iron-clad rule exists by which the prejudicial qualities of improper questions or remarks or arguments of counsel can be ascertained in all cases: much depends upon the issues, parties and general circumstances of the particular case.” Williams v. State, 245 Ala. 32, 36, 15 So.2d 572 (1943). In determining whether the accused was prejudiced by prosecutorial misconduct, “we must ordinarily give great deference to the ... judge’s handling of the alleged misconduct during the trial. The ... judge is ordinarily in a much better position to understand the circumstances surrounding the alleged misconduct and to evaluate its impact.” United States v. Tham, 665 F.2d 855, 860 (9th Cir.1981). We find that the prosecutor’s conduct did not result in “ineradicable prejudicial error” as Wysinger argues and further find no abuse of discretion by the trial judge in refusing to grant the mistrial.

II

The trial judge properly denied Wysinger’s requested charge on criminally negligent homicide. The State’s evidence shows that Wysinger deliberately fired his pistol after having been warned of the danger he was creating. Wysinger denied ever having or firing any pistol. At trial, there was no defense presented that Wy-singer was attempting to break up an argument and scatter the crowd and in the process a shot was fired accidentally or prematurely as is argued on appeal.

As we stated in Phelps v. State, 435 So.2d 158, 165 (Ala.Cr.App.1983): “A killing is not accidental when the act causing death is done intentionally. Lewis v. State, 96 Ala. 6, 10, 11 So. 259 (1891). Any contention that the death was accidental ‘ignores the nature of the enterprise that the defendant ... (was) engaged in.’ Sanders v. State, 16 Ala.App. 511, 513, 79 So. 504 (1918).” Here, there was no rational basis for a verdict of criminally negligent homicide.

Ill

Count I of the indictment charged reckless murder under Alabama Code Section 13A-6-2(a)(2). Count III charged intentional murder as defined in Section 13A-6-2(a)(1). The jury found Wysinger “guilty of Murder as charged in Count I of the indictment.” The trial judge granted defense counsel’s motion to strike Count II of the indictment, which charged that Wysinger caused the death of Walter Thomas while intending to cause the death of William Granger. The trial judge denied the request to strike either the count for reckless murder or the count for intentional murder. On appeal, Wysinger argues that there is no evidence to show that he intended to kill Walter Thomas and that a jury verdict finding him guilty of such an intentional killing would not have been sustained by the evidence.

We agree that the evidence in this case would not have supported a verdict finding Wysinger guilty of intentionally killing Walter Thomas and therefore Count III of the indictment should have been stricken. However, the error was only harmless. Any error in refusing to direct an acquittal as to one count is harmless where the jury acquits the accused on that count or finds him guilty under another count. Treadwell v. State, 168 Ala. 96, 53 So. 290, 292 (1910); Segars v. State, 409 So.2d 1003, 1005 (Ala.Cr.App.1982).

Wysinger’s conduct is a classic example of a dangerous act evincing a depraved mind regardless of human life, F. Wharton, The Law of Homicide, Section 130 (3rd ed. 1907), which, when that conduct causes the death of another person, constitutes murder in this state. Northington v. State, 413 So.2d 1169 (Ala.Cr.App.1981), cert. quashed, 413 So.2d 1172 (Ala.1982).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Stanley OGLE v. STATE.
    8 Div. 899.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied April 6, 1984 Alabama Supreme Court 83-433.

      David J. Evans, Jr., Boaz, for appellant.
    Charles A. Graddick, Atty. Gen., and Lynda K. Oswald, Asst. Atty. Gen., Montgomery, for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Stanley Ogle, was convicted of the possession of a controlled substance and sentenced to four years in the penitentiary. Two issues are raised on appeal.

First, Ogle contends that there was no probable cause for the issuance of the search warrant for his home. The affidavit accompanying the search warrant reads, “A reliable informant who has proven to be reliable in the past stated to the affiant that he has seen on said premises within the past twenty-four hours a quantity of marijuana contary [sic] to law.”

In Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983), the Court adopted the totality of the circumstances test and said, “[E]ven if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitled his tip to greater weight than might otherwise be the case.” In the case sub judice, the record indicates that the affiant orally gave the issuing judge additional information, namely, that Ogle was known through surveillance to be a drug dealer and that large numbers of drug users had been seen going to and coming from his house.

Under the circumstances, we cannot say that the State has failed to establish probable cause under the new liberal standards established by Gates, supra.

Ogle next contends that his confession was involuntary and should not have been admitted. A summary of the facts follows. Ogle, his wife, and a friend had been arrested and placed in the back of a patrol car. Apparently, Ogle was in some discomfort or pain due to the tightness of his handcuffs and, additionally, at some point during the raid, he had urinated on himself. After staying in the patrol car for about thirty minutes, Ogle asked one of the officers why his wife was being arrested. The officer told him that she had been arrested because she was both present and a legal resident of the place where the marijuana was found. Ogle told the officer that the contraband was his and that his wife knew nothing about it. The officer asked Ogle if he wanted to sign a statement to that effect. Ogle answered in the affirmative. Before the statement was given, the police officer advised Ogle of his Miranda rights.

Appellant now claims that he was induced into making the statement because of the implied promise by the officer that his wife would be released if the statement was signed. He cites Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). That case, however, is distinguishable because there the officer was threatening to take the wife into custody to get a confession. In our case, the wife was legally in custody and Ogle initiated the conversation with the officer. The statement given by Ogle was not in response to questioning by police officers and was, therefore, voluntary.

We find no error. The judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Glenn J. RAGSDALE v. STATE of Alabama.
    1 Div. 701.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied April 27, 1984 Alabama Supreme Court 83-630.
    Thack H. Dyson of Foster, Brackin & Bolton, Foley, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Glenn J. Ragsdale was indicted for the second degree robbery of a Junior Foods Store, by taking some $42.00 from the person of one Linda Taylor, by use of a deadly weapon, a pistol, while in the company of Lawrence A. Grass, contrary to § 13A-8-42, Code of Alabama 1975. The jury found the appellant “guilty of robbery in the second degree” and following a sentencing hearing, the trial court fixed punishment at 10 years’ imprisonment in the penitentiary.

Walter Crook stated he was Deputy Sheriff of Baldwin County on February 5, 1983, when he received a radio dispatch to investigate a robbery in the Fairhope area. He observed a vehicle matching the description which had been broadcast, occupied by two white males, traveling on U.S. 98, pulled close enough to them to obtain the vehicle number and determined that such had been reported as a stolen tag, and continued to follow the vehicle. A roadblock had been established and Crook pulled in behind the vehicle containing the appellant who was seated on the passenger side, and his companion who was driving, and the two men were placed under arrest. They were given their Miranda rights warning at this point. The question was asked of the appellant if he had taken any money, and some monies were found in his front shirt pocket, which the appellant stated “that was what had been given to him.”

He also stated that he found a handgun under the passenger side of the vehicle which was protruding from beneath the seat.

On cross-examination, he testified that the tag on the vehicle at the time same was stopped was 2 B-49523, Alabama, registered to one Richard L. Luker, with a Mobile address. It was assigned to an American Motors Classic, white in color. The car which was stopped was a four-door, 1974 Chevrolet and the driver was one Lawrence Grass.

Charles Jones stated that he was a Fair-hope policeman on February 5, 1983. He received a telephone call from Ms. Linda Taylor, who was on duty at a Junior Foods Store and reported a robbery which he then broadcast over the police network. He made a positive identification in court of the appellant and stated that he had first observed him at the police station at Fair-hope. He stated that Ms. Taylor had come to the police station about two hours after the robbery, examined some photographs, and without any suggestions being made, selected the photograph of appellant. He stated that she also identified the appellant in person.

This testimony was corroborated by Fair-hope Police Officer Elbert Tarver.

Ms. Linda F. Taylor stated that she was employed at the Junior Foods Store in Fair-hope, Alabama on February 5, 1983. About 2:00 o’clock that afternoon, two men came into the store and asked some directions of her, which she gave them. She noted their clothing and their manner of speech. She stated that at the time, the man who returned and robbed her was seated on the passenger side, while the appellant was the party who had come in and asked directions. She stated that the two men returned a short time later and that Mr. Grass pointed the pistol at her and demanded the proceeds from the cash register, which she stated she handed to him in a paper bag and he told her that he “would blow her brains out” and “kill her” if she did not lie down on the floor and not move. After the two men left, she then telephoned Fairhope police and gave a description of the men and of the vehicle.

Ms. Taylor stated she later viewed some photographs that same afternoon and selected immediately the p.hotograph of the appellant and subsequently made a positive in-court identification of the appellant.

The appellant’s motion for a judgment of acquittal was overruled at the close of the State’s case.

Lawrence Grass testified in the appellant’s behalf and stated that he had committed the robbery of the Junior Foods Store at Fairhope on February 5, 1983. He testified that the appellant, Glenn Rags-dale, was an acquaintance who had simply hitchhiked a ride and that he had just picked him up and given him a ride on the date in question.

The appellant, Glenn Ragsdale, gave testimony similar to Mr. Grass.

I

The appellant first contends that his conviction is against the great weight of the evidence, inasmuch as he was simply a “hitchhiker” in the vehicle on the date in question.

The conflict presented by the appellant’s testimony and that of his companion, Mr. Grass, was one which presented a jury question. This issue was resolved against the appellant properly. Williams v. State, 412 So.2d 1274 (Ala.Cr.App.1982); Butler v. State, 439 So.2d 210 (Ala.Cr.App.1983) and Carroll v. State, 440 So.2d 1168 (Ala. Cr.App.1983), cert. denied (Ala.1983).

II

The appellant next argues that the trial court erred in not submitting certain charges requested in writing by him to the trial jury. These charges were either matters which were properly covered by the trial court’s oral charge or were refused, inasmuch as they dealt with speculation, conjecture, surmise or suspicion, arising from the evidence. These charges were properly refused under the evidence because they were argumentative and invasive of the province of the jury under the evidence presented. The trial court properly refused these as the State’s evidence indicated the appellant had been in the store twice on the afternoon of the robbery, was observed in the vehicle both before and after the robbery and was found in possession of some missing money following the robbery in question. Also, the pistol was found by the arresting officer underneath the seat where the appellant was observed just prior to his arrest. Clearly, the trial judge properly refused the charges herein requested by appellant’s counsel. Hudson v. State, 335 So.2d 208 (Ala.Cr.App.1976), cert. denied, 335 So.2d 211 (Ala.1976); St. John v. State, 55 Ala. App. 95, 313 So.2d 215 (Ala.Cr.App.1975), cert. denied, 294 Ala. 768, 313 So.2d 218 (Ala.1975).

Ill

' Finally, appellant’s counsel argues that reversible error occurred during closing argument by the District Attorney as follows: (R. 124-125)

“And then, Mr. Dyson said, ‘And I thought this was interesting, that Mr. Ragsdale testified exactly what Grass said.’ Well, no two human beings perceive anything exactly the same way. If anything happens that more than one person sees, you get two different versions. They were trying their best to testify exactly the same. They had been over it together. They knew what they were supposed to say.
“Then, you remember, Mr. Ragsdale was trying to say the right thing, after they left the store and then, all of a sudden they were on the roadblock and they got stopped. And then, when his lawyer coached him, prompted him — (interrupted)
“MR. BOLTON: Judge, I object. You know, what she is doing is saying that either (sic) or Thack have done something either unethical or illegal in coaching or prompting witnesses.
“Judge, I find that very offensive since I haven’t coached or prompted any witness in this case. I just really object to that implication of Ms. Minie that Mr. Dyson or myself is doing something unethical or illegal as far as preparing witnesses for this trial.
“THE COURT: Okay. Let’s move on.”

At the outset, it should be noted that defense counsel interjected his argument before the State’s attorney had completed her statement, i.e., “coached him, prompted him — ,” then the objection appears. Such statement as it appears in the record is therefore fragmentary in nature and does not contain the full statement here urged to be error.

It is the duty of counsel urging error in closing argument to be certain that the full language, deemed objectionable, is set forth so that the propriety of same is preserved in the record. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973) and cases cited.

Moreover, where as here, the trial court simply agrees by stating, “Let’s go ahead” or “move on”, it is incumbent upon defense counsel to make a motion to exclude, motion for mistrial or request for instructions from the trial court so that an adverse ruling is obtained which preserves the matter asserted for appellate review. Lambert v. State, 208 Ala. 42, 93 So. 708 (1922); Veith v. State, 48 Ala.App. 688, 267 So.2d 480 (1972); West v. State, 54 Ala. App. 647, 312 So.2d 45, cert. denied, 294 Ala. 775, 312 So.2d 52 (1975).

Moreover, the trial court in its oral charge gave the following instructions: (R. 132-133)

“In determining what the true facts are in the case, you are limited to evidence that has been presented from the witness stand as opposed to matters that have been stated by the lawyers in the course of the trial. What the lawyers have said, both for the State and for the Defendant, is not evidence in the case. What they have argued to you at various points in the trial is not evidence. They have a right and a duty at the appropriate time in the trial to comment on the evidence and to draw reasonable inferences from the evidence as they argue their respective positions to you. What they say is not evidence and you should not put what they think in a proper category in your thinking.”

In view of the matters hereinabove set forth, clearly, no error appears.

We have carefully considered this record and find same free of error.

The judgment appealed from is therefore due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . We do not wish to be understood as approving either the language or suggestion that counsel “coached a witness." West v. State, supra.


text:
    Joseph EATHORNE v. STATE.
    6 Div. 233.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    As Corrected on Denial of Rehearing March 20, 1984.

      Ralph I. Knowles, Jr. of Drake, Knowles & Pierce, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for writ of error coram nobis. In December of 1979, Joseph Eathorne caused the death of Delores Terry when his automobile collided with hers. He pled guilty to an indictment charging second degree murder and was sentenced to thirty years’ imprisonment. He did not appeal this conviction. Six months after he had been sentenced, Eathorne filed a pro se petition for writ of error coram nobis alleging that the combined effect of mental illness and medication prevented him from making an informed, intelligent, and voluntary guilty plea. That is the only issue raised on appeal.

It is undisputed that Eathorne was taking five legally prescribed medications at the time he pled guilty. Four of the drugs (Diazide, Inderal, Isordil, Zyloprim) were for treatment of a heart condition, high blood pressure or hypertension. The fifth drug (Mellaril) was a tranquilizer useful in treating major mental illnesses such as schizophrenia and also for treating anxiety and even mild depression in smaller doses.

Only one expert’s testimony was offered in evidence at the hearing on the coram nobis petition on the effect of these medications. Psychiatrist James E. Morris, Jr. stated that the combination of all these drugs “could produce such side effects as weakness, as a sense of slowing, of low energy level, even possibly somewhat diminished level of alertness.” Dr. Morris had not examined Eathorne and stated that “(i)t would be difficult to say how significantly (the drugs) would interfere” with his mental abilities. He could not give a “precise” opinion as to the actual effect of the medications on Eathorne at the time of the guilty plea.

Eathorne testified at this same hearing and stated that he felt “extremely guilty over the death of the young woman, but did not feel that it was a crime.” He pled guilty because of “the combination of a severe depression and the effect of drugs, I had just thrown myself to the system, I just didn’t have any fight or any will to contest (the) thing.” He described the effects of the medication: “It slowed— slowed all of my body and my mental capacity down, it made me more or less lethargic and not I didn’t have any will to no agression to — at all no — nothing that made me want to stand up and fight, fight back.”

Although maintaining that the medication interfered with his mental capacity and that he had “thrown himself to the system”, Eathorne admitted that he refused, against the advice of his own attorney, to accept the twenty-year plea bargain offered by the District Attorney. Eathorne stated that he refused the settlement because he “wanted to rely on the wisdom of the court to see the whole picture and to realize that this was not in effect a murder but an accident.” He testified that he could not effectively assist his counsel and if he “were to make the decision today (he) would have gone to trial.”

Eathorne admitted that, before accepting his guilty plea, the judge asked him if he were using drugs. He testified that he denied using any “drugs”, even though he was on prescription “medication”, because he thought the judge was asking about “illegal drugs”. On cross examination, Eathorne testified that he told the judge he was not under the influence of any drugs because he “did not use any illegal drugs at that time.”

Eathorne’s appointed trial attorney, Walter Braswell, also testified at the coram nobis hearing. He advised Eathorne to plead guilty and accept the district attorney’s offer of a twenty-year sentence and advised him against entering a plea without any agreement. He knew that Eathorne was taking Inderal and Isordil and stated that he “seem(ed) to me at the time that he was able to comprehend (and) appropriately respond” to their “discussions regarding the applicable law”: “I think he understood, ... but he just did not feel that the circumstances of this ease were such that it would be morally right for him to be charged with murder.”

Braswell testified that Eathorne “broached” the possibility that the offered twenty-year sentence could be made to run concurrent with a life sentence he was serving for a 1970 murder conviction. Braswell felt that Eathorne wanted “an open ended plea” because he felt that “the Court would be less of that (prosecutorial) mind in looking at the case and I think he felt that the Court would not regard it as a case where a Murder sentence was appropriate and confidently with that would also impose a sentence less than twenty years.”

Braswell stated that Eathorne “appeared to be in touch with reality he knew who he was, where he was, who I was, why I was conversing with him and the subject matter. * * * He was able to recount some of his activities on the day in question, prior to the accident. But he himself received some head injuries in the accident and his recollection of those immediately events was poor as a result. * * * He tried to cooperate (with me) the best he could.” When asked if counsel thought Eathorne appeared to understand what he was doing in pleading guilty, counsel responded, “He made a decision, the question would be whether or not he used good judgment or had good judgment at the time he made the decision, I advised him against making that decision. What motivated him to make that decision I really couldn’t say.”

This record includes a transcript of the guilty plea and the sentencing hearing. At the sentencing hearing, the defense called Dr. Edwin Segar, a Forensic Psychologist at Bryce Hospital, who testified to Eat-horne’s long history of alcohol abuse.

Before Eathorne was arraigned, he was sent to Bryce Hospital for an evaluation of his mental competency. There, he was found competent to stand trial and responsible for his actions at the time of the crime. The evaluation at Bryce’s also revealed a “long history of alcohol abuse.”

In February of 1980, the Forensic Evaluation Board at Bryce found Eathorne to be “functioning within the average range of psychological abilities. Test results were not suggestive of organic impairment. Test results did suggest that Mr. Eathorne is suffering from a grief reaction, along with his having a history of alcohol abuse. Also, Mr. Eathorne has strong religious interest.”

In May of 1980, the Board found that although the “reality testing was marginal ... his judgment and insight were fair” and “the psychological assessment revealed that Mr. Eathorne is functioning at the above average range of intellectual abilities.” He was “diagnosed (1) Personality Disorder — Addiction and (2) Depressive Neurosis.” The medical records reveal that Eathorne was considered “suicidal” at times and was suffering from guilt and a “worthless state of mind.”

In April of 1980, the Forensic Unit found him “presently competent to stand trial and to assist his attorney in preparing his defense; that he did understand the nature of the charge against him; that he was not suffering from a mental illness at the time of the offense which prevented him from distinguishing right from wrong or from adhering to the right.” At the time of his release in May of 1980 from the hospital, Eathorne “was not felt to be suicidal.” Eathorne pled guilty in October of 1980.

Due process requires that an accused be legally competent to plead guilty. Chavez v. United States, 641 F.2d 1253, 1255-56 (9th Cir.1981). The plea must be voluntary and intelligent. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). “Courts generally have held that the standard of competence to stand trial parallels the standard of competence to plead guilty.” Twelfth Annual Review of Criminal Procedure, 71 Geo.LJ. 339, 540, n. 1348 (1982). See also Annot. 31 A.L.R.Fed. 375 (1977). That test is whether the accused has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

Here, Eathorne did not prove that his condition had significantly deteriorated between the time he was found competent to stand trial and the time he pled guilty. Unless the circumstances change, an accused is not entitled to a separate determination of his competence to plead guilty after being found competent to stand trial because the same standard applies. United States ex rel. Heral v. Franzen, 667 F.2d 633, 638 (7th Cir.1981). See also Atwell v. State, 354 So.2d 30 (Ala.Cr.App. 1977), cert. denied, Ex parte Atwell, 354 So.2d 39 (Ala.1978); Annot. 37 A.L.R.Fed. 356 (1978).

The standard of appellate review of claims of incompetency is set out in 71 Geo.LJ. at 542-43:

“The determination of competence is a finding of fact that an appellate court will set aside only if clearly erroneous, or for abuse of the trial court’s discretion. Defendants often assert their incompetence based on schizophrenia, psychosis, amnesia, or drug dependence. Appellate courts generally reject such claims when the defendant appears to have been competent during trial, the psychiatric evaluations conflict, or the standard of appellate review prevents such a finding.”

Even in a federal forum where the government bears the burden of proving the defendant’s competence if the issue is raised before or during trial, where the defendant initially raises the issue in post-conviction proceedings, the burden of proving incompetence shifts to the defendant. Zapata v. Estelle, 585 F.2d 750, 752 (5th Cir.1978). On a petition for writ of error coram nobis, “(t)he petitioner bears the burden of submitting clear, full and satisfactory proof which extends beyond a mere balancing of probabilities to clearly and convincingly satisfy the court on the merits and allegations of the petition.” Corley v. State, 397 So.2d 223, 225 (Ala.Cr.App.), cert. denied, 397 So.2d 225 (Ala.1981).

In denying the petition, the trial judge specifically found that “the Defendant has failed in his burden of proof.” We agree.

“Addiction to narcotics does not per se render a defendant incompetent to enter a guilty plea.” Jackson v. United States, 512 F.2d 772, 773 (5th Cir.1975). “Even a claim of present drug use does not per se render a defendant incompetent to stand trial.” United States v. Metcalfe, 698 F.2d 877, 882 (7th Cir.), cert. denied, — U.S. -, 103 U.S. 1886, 76 L.Ed.2d 814 (1983). See also United States v. Helgesen, 669 F.2d 69 (2nd Cir.), cert. denied, 456 U.S. 929, 102 S.Ct. 1978, 72 L.Ed.2d 445 (1982); United States v. Robinson, 530 F.2d 677 (5th Cir.1976); United States v. Williams, 468 F.2d 819 (5th Cir.1972); United States ex rel. Fitzgerald v. LaVallee, 461 F.2d 601 (2nd Cir.), cert. denied, 409 U.S. 885, 93 S.Ct. 121, 34 L.Ed.2d 142 (1972).

In reviewing Eathorne’s mental capacity, we have examined the totality of the circumstances surrounding the plea.

“Determination of the defendant’s state of mind is certainly critical in determining the voluntariness of a plea. Ford v. United States, 418 F.2d 855 (8th Cir. 1969). See Griffith v. Wyrick, 527 F.2d 109 (8th Cir.1975). However, to a large extent, it is to be determined by examining the totality of the circumstances surrounding the plea instead of solely on the basis of the defendant’s subsequent testimony. United States ex rel. Robinson v. Housewright, 525 F.2d 988 (7th Cir.1975); Calabrese v. United States, 507 F.2d 259 (1st Cir.1974); Ford v. United States, supra. Otherwise every plea would be subject to successful attack.”
Toler v. Wyrick, 563 F.2d 372, 373-74 (8th Cir.1977).

The mere fact that Eathorne was suffering from feelings of guilt or worthlessness at the time he pled guilty is not sufficient in and of itself to render the plea involuntary. “(T)he mere presence of mental illness or other mental disability at the time (the defendant) entered his plea does not necessarily mean that he was incompetent to plead under the Dusky test.” Bolius v. Wainwright, 597 F.2d 986, 990 (5th Cir.1979). “The mental illness or disability must have been so debilitating that (the defendant) was unable to consult with his lawyer and did not have a rational and factual understanding of the proceedings.” Bolius, 597 F.2d at 990.

Here, also, there was conflicting evidence of Eathorne’s mental condition at the time he pled guilty and consequently the finding of competency by the trial judge is due to be upheld. Stonecipher v. United States, 409 F.2d 745 (5th Cir.1969); Taliaferro v. United States, 330 F.Supp. 408 (N.D.Cal.1971), affirmed, 457 F.2d 504 (9th Cir.1972). Among other factors, “the fact that the defendant’s (own) attorney believes his client is competent and able to assist counsel in defense is significant evidence that he is competent.” Metcalfe, 698 F.2d at 882. Eathorne’s decision to seek the mercy of the court rather than accept a plea agreement which he deemed too severe and his inquiry of the sentence running concurrent with his prior conviction provides further evidence of his competency.

In our opinion, the record reflects that Eathorne was legally competent when he pled guilty and that he did so in a voluntary and intelligent manner. “From the rule that a plea must be intelligently made to be valid it does not follow that a plea is vulnerable to later attacks solely because the petitioner or his counsel did not correctly assess every relevant factor which contributed to his decision.” Thundershield v. Solem, 565 F.2d 1018, 1026 (8th Cir.1977). In making our determination, we note that the trial judge who accepted Eathorne’s guilty plea and sentenced him was also the same judge who presided over the coram nobis hearing. That judge’s observation of Eathorne at the guilty plea and coram nobis hearings is entitled to significant weight where the other evidence of his mental condition is conflicting. See United States v. Oliver, 626 F.2d 254 (2nd Cir.1980).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Lorene MOSELEY v. STATE.
    3 Div. 763.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.

      Benjamin E. Pool, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Lorene Moseley was convicted by a Montgomery County jury of sexual abuse in the first degree and was given a suspended sentence of five years’ imprisonment. She appeals on eleven different grounds.

The facts of this case are particularly sordid; appellant’s conviction arises from her attempt to induce her twelve-year-old daughter to commit and submit to certain sexual acts with a man who was the appellant’s boyfriend. The child, who lived with her grandmother, went to visit her mother on a Sunday, at her mother’s request. On Monday night she was forced by her mother to commit sodomy with her mother’s boyfriend despite the fact that, in the child’s words, “I kept begging her not to make me do it....”

The girl was taken back home on Tuesday night and on Wednesday she told her grandmother what had happened; her grandmother then took her to the hospital and to the police station.

I

Appellant first challenges certain questions asked by the state during the cross-examination of a general reputation witness. Specifically, appellant contends that the questions were not framed so as to make it clear that they referred to acts which occurred before the instant offense. Our Supreme Court has stated that:

“When a witness testifies as to the general reputation or character of the defendant, the knowledge of the witness as to such reputation or character may be tested on cross-examination by asking him if he had heard of the defendant being charged with other offenses or of specific acts of bad conduct on the part of the defendant. Helms v. State, 254 Ala. 14, 47 So.2d 276, Kervin v. State, 254 Ala. 419, 48 So.2d 204; Johnson v. State, 260 Ala. 276, 69 So.2d 854. The better practice is to frame the question so as to inquire of the witness if he had heard of such occurrence prior to the commission of the offense for which the defendant is on trial. Ragland v. State, 178 Ala. 59, 59 So. 637.” Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960), aff'd, 273 Ala. 337, 139 So.2d 309 (1961); writ denied, 275 Ala. 377, 155 So.2d 334 (1963), rev’d on other grounds, 283 Ala. 52, 214 So.2d 327 (1968), judgment modified, 49 Ala.App. 402, 272 So.2d 609 (1973).

We think it clear from an examination of the record that the questions in issue impliedly referred to a time before the alleged sexual abuse took place. The relevant portions of the record read as follows:

“Q And have you also heard about the times when she wasn’t living out of wedlock with other men, her frequency of attending bars at night and running around town, leaving her children to her mother?
“MR. POOL: We object to that, Your Honor.
“THE COURT: It goes to the weight of this witness’s testimony.
“Q I ask you again, have you heard about the times when Lorene was not married or not living with someone, about the nights that she would hang out in bars and not come home and leave the children solely to her mother?
“A I heard — her mother did tell me things to that effect.
“Q Yes.

We do not feel the court erred in overruling the objection. We note further that the objection did not assign specific grounds but was merely a general objection.

II

During the cross-examination of the twelve-year-old victim in this case, defense counsel questioned her extensively concerning an alleged statement she had made at the time of the preliminary hearing in which she said that she had lied about the entire incident and that she did not want to testify. The state then called the investigator to whom the original complaint had been made. Through this investigator, the state undertook to prove a pri- or consistent statement. The usual rule is that when a witness has been impeached by a prior inconsistent statement, the proponent of that witness is not allowed to counter the impeachment through the introduction of evidence of a prior consistent statement. Murphy v. State, 355 So.2d 1153 (Ala.Cr.App.1978). However, as the Murphy case points out, “there is an exception to the principle, to be found in ‘prior’ consistent statements by victims of rape or other sex offenses.” That rule is stated in C. Gamble, McElroy’s Alabama Evidence, § 178.01 (3d Edition 1977), in pertinent part as follows:

“Where the testimony of the prosecutrix is impeached by proof of self-contradictory statements ... the prosecution may prove her complaints in detail.”

Thus, no error occurred in this respect.

III

Appellant contends that it was reversible error to fail to compel the state to turn over to her a copy of a statement made by a state witness, after that witness had testified. The trial court did conduct an in camera inspection of the statement, at the conclusion of which the court denied the defense motion for production. Production for inspection of a statement of a prosecution witness after the witness has testified lies within the sound discretion of the trial judge. Ex parte Pate, 415 So.2d 1140 (Ala.), on remand, 415 So.2d 1145 (Ala.Cr.App.1981). The statement itself was not made part of the record. We can only conclude that after the in camera inspection the trial court determined that the statement made by the witness before trial did not differ in any substantial respect from the testimony during trial, that the statement did not contain material exculpatory to the defendant, and that the statement requested was not of such a nature that, without it, the defendant’s trial would be fundamentally unfair. Thus, we find no error.

IV

Appellant next contends that the court erred in permitting the following exchange to occur:

“Q Did you ever hear about the time back in 1976 when she was arrested for filing a fraudulent false statement?
“A No.
“MR. POOL: We object to that, Your Honor, unless he can prove these allegations.
“MR. MENDELSOHN: Judge, I’m entitled to ask have you heard if I have a good faith belief it’s true. I have a rap sheet here that shows she did it, and I’ll be glad to tender it to the Court and present it to the jury.
“MR. POOL: All right, we ask that he be compelled and required to do so, Your Honor.
“THE COURT: Y’all come up here. (Whereupon a discussion was held at the bench out of the hearing of the Court Reporter and jury.)”

On the basis of the authorities cited in I above, we find that the question was proper during cross-examination of a defense character witness. No error occurred in this respect.

V

Appellant next contends that the court erred in sustaining an objection to a question by defense counsel addressed to Miss Faulkner, an investigator with the Youth Aid Division of the Montgomery Police Department. The pertinent part of the transcript reads as follows:

“Q Did you also interview Deb Freeman?
“A I didn’t; another investigator did.
“Q With regard to the results of those two interviews—
“MR. MENDELSOHN: Objection.
“THE COURT: Let’s hear the question first.
“MR. MENDELSOHN: There had been a Motion in Limine, Judge.
“Q My question was simply going to be, to your knowledge were there any inconsistencies between the interview that Lorene granted and the one that Deb Freeman granted?
“THE COURT: Sustain the objection.”

This witness had previously stated that she had not had any interview with Deb Freeman, an accomplice in the case. It would not make sense for her to testify regarding any alleged inconsistencies in the interview with the defendant and the interview which was, to her, hearsay. Thus, we find no error in this respect.

VI

Appellant’s attorney contends that reversible error occurred in the following cross-examination of the grandmother about the victim:

“Q Have you had some problem in your mind about sex for a number of years? “MR. MENDELSOHN: Objection.
“A Well, I think it’s—
"THE COURT: Just a moment, please, ma’am, the gentleman has made an objection.
“MR. MENDELSOHN: Relevancy, Judge. I hate to object, but we’ve been going on and on with stuff that I don’t see how it has anything to do with whether or not on October the 10th or October the 11th this lady committed any type of sexual misconduct against this victim.
“THE COURT: I sustain.
“Q All right. Mrs. Sexton, you have had how many children, please, ma’am?
“A I have five living.
“Q Five. Let me ask you whether or not you told your son recently within the last thirty days that you had in effect been raped by your husband five times that resulted in five children?
“MR. MENDELSOHN: Objection.
“THE COURT: No, sir. Sustained.
“A No, sir, I’ve never been raped.”

Appellant has no grounds for complaint since the question was answered in the presence of the jury. The court had already permitted the appellant to range far afield in allowing him to question the grandmother of the victim regarding her personal and private attitudes regarding sex.

VII

Appellant contends that the court erred in not permitting evidence relating to the past sexual behavior of the complaining witness. He asserts that the specific acts sought to be proved were part of the res gestae.

Alabama’s rape shield statute, Section 12-21-203, Code of Alabama 1975, states in part that:

“(b) In any prosecution for criminal sexual conduct or for assault with intent to commit, attempt to commit or conspiracy to commit, sexual conduct, evidence relating to the past sexual behavior of the complaining witness ... shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or of other witnesses.... ”

The exception to this rule is that evidence of past sexual behavior of the victim which directly involves the participation of the accused may be considered by the jury as bearing on the issue of consent. Ala.Code § 12-21-203(c) (1975); Wooten v. State, 361 So.2d 1192 (Ala.Cr.App.1978). However, evidence of particular acts of un-chastity on the part of the victim with a third person are not admissible. Hollis v. State, 380 So.2d 409 (Ala.Cr.App.1980). In the instant case, the trial court properly-instructed the jury that evidence that the victim allegedly told her mother about a sexual encounter she had with a neighborhood boy should only be considered for the limited purpose of impeaching the witness’s credibility.

We find no factual basis for the contention that specific sexual acts between the victim and a third person were part of the res gestae, as contended by appellant. The court did not err in this respect.

VIII

Appellant next asserts that a particular venireman should not have been allowed to remain on the jury. During voir dire the following occurred:

“THE COURT: Mr. Mooney, I understand you know the defendant in this case?
“JUROR MOONEY: I do, but I don’t know where from. I just — her face is very familiar, and I have seen her somewhere before. The name is also known to me, but I couldn’t say it was from the newspaper, though.
“THE DEFENDNT: I worked at Morrison’s—
“THE COURT: Do you believe that that would influence your ability to sit as a juror in this case?
“JUROR MOONEY: I don’t think so.
“THE COURT: Well, now is the time to—
“JUROR MOONEY: I don’t know where I know her from, so I really don’t have anything that I could base it on. At some point I may remember, and then it might be a problem, but I don’t at this time know where I remember her face from.
“THE COURT: Are you telling me that to your knowledge right now, you can sit as a fair and impartial juror?
“JUROR MOONEY: Right. You know, I don’t have any recollection of any background in relation to her. I haven’t read anything about the case in the paper. But I do know her from someplace.
“THE COURT: All right. Bring all of your witnesses in so that I can swear them in at this time.
I note your objection, Mr. Pool. Overruled.
“MR. POOL: Judge, could we be heard on this matter outside the presence of the jury?
“THE COURT: I understand your objection. No, sir, I am ready to proceed.”

We do not find any error on the part of the court in allowing this juror to remain on the jury. It is not a ground for challenge for cause that a juror thinks he remembers the accused. See § 12-16-150, Ala. Code (1975).

IX

Appellant next contends that during the oral charge, the trial court committed error by telling the jury what acts had been relied upon by the prosecution to make out the state’s case. After reviewing the charge, we find that none of the trial judge's comments rose to the level of improper commentary on the evidence.

In addition, appellant challenges the following portion of the charge:

“Now, I want you to understand that the events which are alleged to have transpired on October the 10th are not what forms the basis of the charges in this case, but that testimony is offered to you for whatever weight you will give it in determining what happened on the 11th. All of the charges that are being made in this case are alleged to have occurred on October the 11th in this case, and you should understand that.”

Since the victim testified that the actual physical contact between herself and her mother’s boyfriend did not occur until October 11th, we find no error in this charge.

X

In her tenth issue, appellant attacks the constitutionality of Alabama’s rape shield statute (see VII above) on the grounds that it denies her the right to confront witnesses. This issue has previously been before our court and once again we find it has no merit. Young v. State, 429 So.2d 1162 (Ala.Cr.App.1983), see also, Lawson v. State, 377 So.2d 1115 (Ala.Cr. App.1979). Statutes of this type are not unique to Alabama, and other jurisdictions have upheld such laws in the face of similar attacks on their constitutionality. In People v. Cornes, 80 Ill.App.3d 166, 35 Ill.Dec. 818, 399 N.E.2d 1346 (1980), a case previously quoted with approval by this court, the Illinois court upheld that state’s rape shield statute and commented:

“Complainant’s past sexual conduct has no bearing on whether she has consented to sexual relations with defendant. The legislature recognized this fact and chose to exclude evidence of complainant’s reputation for chastity as well as specific acts of sexual conduct with third persons in cases of rape and sexual deviate assault. The exclusion of this evidence does not prevent defendant from challenging or attacking complainant’s credibility or veracity or otherwise utilizing cross-examination as an effective tool of impeachment. It merely denies defendant the opportunity to harass and humiliate the complainant at trial and divert the attention of the jury to issues not relevant to the controversy.”

As stated in Annot. 1 A.L.R. 4th 283 (1980):

“Numerous contentions that a particular rape shield statute denied the defendant’s right to confront and cross-examine witnesses or to present a defense have been rejected by the courts generally on the basis that the defendant had no right to question or to introduce evidence as to irrelevant, immaterial, or prejudicial matters.”

We find no reason to reject these precedents.

XI

Appellant finally contends that the court erred in its failure to grant a mistrial for an alleged assertion of personal opinion by the district attorney.

An examination of the record reveals objections of counsel to the alleged comment as well as rulings by the trial court on those objections. In addition, the transcript includes instructions by the lower court to the district attorney advising him not to “comment on the credibility of that witness, please, sir.” We decline to reverse on this record. Even though reversal is not mandated in the instant case, we feel we must emphasize the line of cases decided by this court in which we have held that it is highly improper for attorneys, particularly prosecutors, to state their personal opinions in closing argument. As we stated in Brown v. State, 393 So.2d 513 (Ala.Cr.App.1981), “attorneys should be careful in their arguments to the jury to refrain from an injection of their own personal experience or knowledge in support of their argument, as distinguished from what they deem to be reasonable inferences to be drawn from the evidence. This is especially true as to arguments by prosecuting counsel in criminal cases, for the reason that jurors generally know that prosecuting attorneys usually have had more experience in trying criminal cases ... than attorneys in general. What they tell a jury as to their experience during the trial of a criminal case is more likely to influence a jury than what is told a jury by attorneys in general.”

In Adams v. State, 280 Ala. 678, 198 So.2d 255 (1967), our Supreme Court said:

“It is, of course, never proper for the prosecuting attorney or the defendant’s attorney to state in argument to the jury their personal belief in the guilt or innocence of the accused. To do so is to place before the jury for consideration the lawyer’s own character and credibility, which is no part of any judicial proceeding. The office of district attorney and counsel for the accused does not demand that the former’s duty is to secure a conviction, and the latter’s duty to obtain an acquittal; but rather, the primary duty is to see that justice is done. See Canons 5 and 15 of American Bar Association Canons of Professional Ethics. And where, as here, the trial judge attributes beliefs to and sanctions such personal beliefs by opposing attorneys, even though the record was not protested by an exception, we call attention to the error so that it may not be repeated on another trial.”

The rule was also set forth in Woods v. State, 19 Ala.App. 299, 97 So. 179 (1923), rev’d on other grounds, 20 Ala.App. 200, 101 So. 314 (1924), aff'd, 21 Ala.App. 436, 109 So. 171 (1926), as follows:

“The personal opinion of the solicitor as to the guilt of the accused or as to any material fact involved in the case is not evidence. It should never be uttered by a prosecuting attorney, and, if the court gives sanction to such an utterance, it thereby commits error necessitating a reversal of conviction appealed from. Inferences and deductions from the evidence may be drawn by counsel almost without limit, but the minds of the jury should not be prejudiced, nor should they be swayed in their deliberations by unauthorized statements in the argument of the solicitor, such as, ‘In my honest opinion, and before God it is my honest opinion,’ that such a state of facts exists. It is for the jury to say what state of facts exists, and this must be done by a consideration of all the evidence in the case, and such conclusion must not be reached by the honest or other character of opinion upon the part of the solicitor. In the annotation of the case of People v. Fielding (N.Y.) 46 L.R.A. 641, 667, [158 N.Y. 542, 53 N.E. 497] note, it is said: “ ‘The personal opinion of the prosecuting attorney as to the guilt of the accused is not evidence, and the sanction of such an opinion by the court is serious error.’
“ ‘The right to a fair and impartial trial is violated by the misconduct of counsel in stating to the jury facts not in evidence because by so doing he fraudulently testifies without having been sworn as a witness.’ People v. McGuire, 89 Mich. 66 [64], 50 N.W. 786.’ ”

Thus, this court is prepared to reverse any case that has been tainted by highly prejudicial prosecutorial comments to the jury where the issue has been properly presented and preserved for our review.

For the foregoing reasons, we conclude that no reversible error was committed in this case, and the judgment of the trial court is due to be affirmed.

AFFIRMED.


text:
    Thomas DIXON v. STATE.
    6 Div. 834.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.

      Charles R. Malone of Wooldridge, Wool-dridge & Malone, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Thomas Dixon was convicted by a Tuscaloosa County jury of the first degree theft of a Massey-Ferguson farm tractor; he was sentenced to life imprisonment under the Habitual Felony Offenders’ Act.

The state’s evidence tended to show that appellant and three other men hooked a 1981 Massey-Ferguson farm tractor to a pickup truck in Tuscaloosa and towed it, via back roads, to Greene County. They delivered it to one Bush, who had promised to pay $6,000 for the tractor.

I

Appellant contends that he was either unconscious, not present or too intoxicated to formulate an intent during the occurrence of all the events crucial to the commission of the crime. As appellant’s counsel points out in brief, “Mr. Dixon’s case rested heavily upon the defense of intoxication.” The court correctly stated to the jury that voluntary drunkenness is not ordinarily an excuse to a criminal charge. The court undertook to state the exception to the rule that if the accused is so intoxicated as to be unable to formulate an intention, and if intent is an element of the crime, then he cannot be convicted of the crime. The court charged:

“No person can go out here and voluntarily get drunk and come into this court and use that as an excuse for you, ladies and gentlemen, to say he is not guilty. We just don’t operate the law in that fashion. However, if he becomes so intoxicated that his mind ceases to function as a mind and he becomes an idiot, if he is not oriented as to who he is or where he is or things of that nature, if he is idiotic, then of course, that could be an excuse to commit a crime. But voluntary intoxication is not an excuse to come to you and ask for a verdict of not guilty unless he is completely idiotic, his mind ceases to function. I want to point that out to you because there has been quite a bit said about drinking in this case. I want you to remember that.
“... I want to repeat to you that any person who goes out here and gets drunk and comes into court and says, ‘Oh, you can’t convict me because I was drunk’, voluntary intoxication is no excuse'for the commission of a crime. If the evidence shows a person, an accused, was in a state of stupification, idiotic, and his mind was such that he could not function properly to know what he was doing, where he was and things of that nature, that he was disoriented, then that would be worthy of your serious consideration as to whether or not he was guilty. But I want to repeat, ladies and gentlemen, this all goes to you to decide. You are to decide what actually occurred on this occasion, and I will ask you to use your common sense. That is all I can do.”

This charge incorrectly states the law; idiocy is not the measurement to be employed by the jury. The court erred to reversal in giving this charge.

II

Appellant also challenges the following charge made by the trial judge regarding the testimony of the FBI agent:

“You have a right to consider the circumstances under which the statement was given because you are to say whether or not this agent of the Federal Bureau of Investigation got upon this witness stand, ladies and gentlemen, and the county of Tuscaloosa and city of Birmingham [sic] and told you a lie about what this witness said when he testified. This is for you to say, ladies and gentlemen, not me.”

This charge telegraphs to the jury that the court believes the testimony of the witness, thereby bolstering the witness’s testimony. The court erred to reversal in giving this charge.

Section 12-16-11, Code of Alabama 1975, provides that a judge shall not charge upon the effect of a witness’s testimony. Our court in Richardson v. State, 403 So.2d 293 (Ala.Cr.App.), aff’d, 403 So.2d 297 (Ala. 1981), quoted the following with approval:

“The weight to be given to the 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.

Agent Yessick had testified that Dixon said that he himself agreed to sell the tractor to the fence for $6,000, payable on delivery. Agent Yessick also testified that Dixon said he and three others took the tractor to Eutaw, Alabama, and stored it. Appellant Dixon denied making both of these statements. The issue regarding Agent Yessick’s testimony was properly preserved.

The appellant further points out that the court gave the definition for theft of property in the second degree rather than the definition of theft of property in the first degree as was charged and for which appellant was convicted. Appellant further charges the court erred in explaining the concept of reasonable doubt, and other matters.

Since we are obliged to reverse this case for the reasons stated, we will not go into the other errors alleged in brief because of the likelihood that they will not be repeated upon a subsequent trial. Accordingly, this ease is reversed and remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Judges concurred.


text:
    Norman JONES v. STATE.
    2 Div. 356.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Robert B. Blair, Selma, for appellant.

      Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   ON RETURN TO REMAND

HUBERT TAYLOR, Judge.

On return to remand, the record shows that an evidentiary hearing was held on the issue of systematic exclusion of blacks from the jury venire, in compliance with our opinion issued August 16, 1983, 437 So.2d 628. The evidence presented during that hearing tended to show the master jury box was comprised of names from the registered voters’ list and the tax assessor’s list in strict compliance with federal court orders. Additionally, it was shown that seven percent or less of the qualified prospective jurors were not included in at least one of these two lists. Finally, it was shown that the make-up of the master jury box for the year in question was thirty-eight percent black and sixty-two percent white in a county in which the population is approximately equally divided between blacks and whites.

Appellant Jones has not shown intentional exclusion of blacks from the master jury roll; rather, he relies on the numerical disparity noted above. As we held in Rainer v. State, 342 So.2d 1348 (Ala.Cr.App.1977), a mere statistical disparity will not suffice. That is especially true when, as here, the jury roll is comprised in strict compliance with federal court orders.

The judgment of conviction of the lower court is hereby affirmed.

AFFIRMED.

All the Judges concur.