author: SAM W. TAYLOR, Judge.

text:
    Robert Lee FRANKLIN v. STATE.
    3 Div. 652.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 16, 1983.

      Elno A. Smith, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   SAM W. TAYLOR, Judge.

On August 17, 1982, the appellant was found guilty of the offense of trafficking in cannabis. He was sentenced to 15 years’ imprisonment.

The appellant attacks his conviction on the grounds that the State failed to prove a prima facie case of constructive possession. The State’s case in chief consisted of the following:

Thomas Lewis Steele testified that he knew the appellant. He stated that he (Steele) broke into an apartment located at 817 South Decatur Street and stole a pound and a half of marijuana. The witness stated he talked to the appellant after this incident and appellant complained that someone had broken in and gotten his marijuana.

Steele further testified that after police searched the apartment on February 10th but before the appellant knew the witness had acted as the police informant, the appellant told him that the police had gotten the marijuana but they had not gotten him.

Steele testified that two weeks later, he and the appellant went to 817 South Decatur Street. The witness said the appellant walked around the building to the side that the searched apartment was on. Steele said after some time the appellant returned with a quarter pound of marijuana which he gave to the witness to sell for him. The witness stated that the appellant had given him marijuana to sell a number of other times. Steele also testified that on one occasion he saw the appellant’s car parked in front of 817 South Decatur Street.

Janice Watson testified that she was appellant’s sister. She stated that she was living at 817 South Decatur Street, but that from September 1981 through a large part of February 1982 she did not stay full-time at that address. Watson further stated that she went to the apartment in December and found it had been broken into.

She testified that there were three keys to the apartment. She had one, one was in the possession of a friend and the third was kept in a jewelry box at her parents’ house so that members of her family could check her mail. In addition, she said that the appellant sometimes stayed at his parents’ house where the third key was kept.

She testified that no one was supposed to be living in the apartment in February and her boyfriend did not have any of his clothes stored there at that time.

Investigator N.W. Ward of the Montgomery County Sheriff’s Office testified that on February 10, 1982, he executed a search warrant to gain entry to 817 South Decatur Street. He stated that no one was in the apartment when officers arrived and they entered by forcing the door. Ward said that his search of the apartment revealed five plastic bags in a closet next to the bedroom, which he turned over to the evidence technician on the scene. In addition, he testified that both women’s and men’s clothing were found in the bedroom closet as well as letters addressed to the appellant.

J.R. Russell, Jr. of the Montgomery Police Department testified that hé was ⅛ evidence technician during the search of thé apartment. He stated that plant material was found in various locations in the apartment including under the bed, on the floor next to the bed, on a kitchen shelf, in a hall closet, and sitting in a tray in plain view on the living room floor.

Russell also testified that a receipt from the Pardon and Parole Board in the appellant’s name dated February 5, 1982, five days before the date of the search, was found in the bedroom closet. The witness stated further that the search also revealed personal papers, get-well cards and court papers all either addressed to appellant or in his name.

Allen Adair testified that he was a crimi-nalist with the State of Alabama Department of Forensic Sciences, Montgomery Division. He stated that he was not present when the search was conducted, but that he examined the evidence obtained in the search.

He testified that the plant material he examined was marijuana and that the total amount seized was 77.3 ounces.

Appellant claims that the trial court committed error by not granting his motion to suppress the evidence and by not granting his motion for a directed verdict of acquittal. .He supports his assertions by arguing that the State failed to prove a prima facie case of constructive possession.

We find that appellant’s position is without merit.

Since appellant was not found in actual possession of the contraband, it was necessary for the State to prove constructive possession. The three elements necessary to show possession, whether actual or constructive are

“(1) actual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.” Radke v. State, 52 Ala.App. 397, 293 So.2d 312, aff’d, 292 Ala. 290, 293 So.2d 314 (1974).

Although each of these elements is necessary to show constructive possession, the use of direct proof is not required, and possession may be established by an adequate showing of surrounding facts and circumstances. Luker v. State, 358 So.2d 504 (Ala.Cr.App.1978).

In addition, as this court has stated

“Constructive possession may be determined by weighing facts tending to support a defendant’s necessary control over the substances against facts which demonstrate a lack of dominion and control.” Crane v. State, 401 So.2d 148 (Ala.Cr.App.) cert. denied, 401 So.2d 151 (Ala.1981).

Testimony indicated that the appellant had been in the apartment where the marijuana was seized; he had access to a key to the apartment; and he admitted to Steele on at least two occasions that the marijuana found by the police was his.

In addition, numerous items of appellant’s personal correspondence, as well as a receipt from the Pardon and Parole Board dated only five days before the search was carried out, were found.

After a careful review of the State’s evidence, we find that constructive possession of the contraband by the appellant was sufficiently proven, the trial court did not commit error, and that this judgment is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Jasper RICHMOND v. STATE.
    3 Div. 669.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.
    Certiorari Denied Sept. 23, 1983 Alabama Supreme Court 82-1058.
    Charles M. Law, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for theft of property in the second degree in violation of Alabama Code Section 13A-8-4 (1975). He was sentenced as an habitual offender to fifteen years’ imprisonment. Three issues are argued on appeal.

I

The defendant contends that his prior conviction of burglary in the first degree (Alabama Code Section 13A-7-5 (1975)) barred the subsequent prosecution for theft under the principles of former jeopardy where the property was taken in the burglary.

The defendant’s plea of autrefois convict was filed after his plea of not guilty and was not timely. Jelks v. State, 411 So.2d 844, 850 (Ala.Cr.App.1981).

Even if the plea had been timely filed, it was not due to be granted. A conviction on a trial for larceny is not a bar to a prosecution for burglary with intent to commit the larceny. Gordon v. State, 71 Ala. 315 (1882). See also Bibb v. State, 352 So.2d 840 (Ala.Cr.App.), reversed, 352 So.2d 842 (Ala.1977), citing Clift v. State, 352 So.2d 838 (Ala.1977), and Colston v. State, 350 So.2d 337 (Ala.1977). A conviction on an indictment for burglary which alleges a breaking, entering, and stealing certain property will bar a subsequent prosecution for the theft of that same property. However, “a conviction on an indictment for burglary which merely charges a breaking and entering with intent to steal will not bar a subsequent prosecution for the actual theft.” 22 C.J.S. Criminal Law, Section 290(a) (1961).

II

The defendant contends that the trial court erred in overruling his motion for a mistrial on the grounds that the prosecution put his character into issue even though he did not take the witness stand. The basis for this contention is reflected in the following portion of the record.

“Q. (MR. GILLIS, DEPUTY DISTRICT ATTORNEY): Okay. You say that the relationship between Jasper Richmond (defendant) and Officer Farrior goes back for some period of time?
“A. Yes, sir, that’s correct.
“Q. Prior offense through juvenile court?
“MR. LAW (Defense Counsel): I object to that, Judge, and I move for a mistrial The Defendant has not taken the stand. We’re talking about prior offenses of the Defendant, and I would ask for a mistrial. I think it’s highly prejudicial. This young man has never taken the stand on any of these cases.”
“I object and move to strike it, and I feel that it is so prejudicial that I would ask for a mistrial at this time.
“THE COURT: Well, I’ll overrule your grounds for a mistrial and sustain your objection.”

“Since a motion for a mistrial implies a miscarriage of justice, it should only be granted where it is clearly manifest that justice cannot be afforded.” Kelley v. State, 405 So.2d 728, 729 (Ala.Cr.App.), cert. denied, 405 So.2d 731 (Ala.1981).

This case was trial by a judge sitting without a jury. On this matter of a mistrial, the trial judge stated that he had been the trial judge at the defendant’s previous trial for burglary when a jury had found him guilty and, at that time, the defendant’s application for youthful offender treatment disclosed the defendant’s prior history. The judge further stated:

“The Court throughout the trial of this case, even when (defendant) waived his right to a jury trial, I’m sure you’re aware of the fact that the Court was aware of (defendant’s) prior juvenile record. The Court has not considered that, will not consider it in making whatever determination it makes in this case.”

The record reveals no abuse of the trial judge in denying the motion for a mistrial.

Ill

The defendant challenges the application of the Habitual Felony Offender Act and argues that the act should not apply because his two prior convictions were “companion” cases for which he was arrested on the same day and later pled guilty to both offenses on the same day and received concurrent sentences for both offenses.

This argument was decided adversely in Watson v. State, 392 So.2d 1274 (Ala.Cr.App.), cert. denied, 392 So.2d 1280 (Ala.1981), wherein this Court held that “where two or more convictions occur at the same time and in the same court, they are separate ‘convictions’ within the meaning of the Habitual Offender Statute.” See also Chambers v. State, 418 So.2d 948 (Ala.Cr.App.1982); Bates v. State, 405 So.2d 1334 (Ala.Cr.App.), cert. denied, 405 So.2d 1339 (Ala.1981); Seritt v. State, 401 So.2d 248 (Ala.Cr.App.), cert. denied, 401 So.2d 251 (Ala.1981).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Gregory DANIELS v. STATE.
    4 Div. 123.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 30, 1983.

      Donald J. McKinnon, Clayton, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty of rape in the first degree in violation of § 13A-6-61 of Alabama Criminal Code, which provides in pertinent part:

“(a) A male commits the crime of rape in the first degree if:
“(1) He engages in sexual intercourse with a female by forcible compulsion; or
“(2) • • •
“(3) .. •
“(b) Rape in the first degree is a Class A felony.”

The statutorily prescribed punishment for a Class A felony is “for life or not more than 99 years or less than 10 years.” § 13A-5-6(a)(1). , The court fixed his punishment at imprisonment for fifty years and sentenced him accordingly.

Both the alleged victim and the defendant testified at the trial. She was thirty years of age, and he was twenty years of age. Both were prisoners in the Barbour County Jail, in which defendant was also a trusty. She was confined to a cell awaiting trial on a charge of murder of her mother-in-law. According to the undisputed evidence, there was sexual intercourse between the two shortly after midnight of May 21-22, 1982. She testified:

“... I had been sleeping on my stomach, because when I sleep on my back or side I always woke up with aching, and I could sleep better. And something woke me up. And several things — [omitted are about twelve lines in which the alleged victim mentions lights, noise of a radio and something that someone other than the defendant said].
“Q. What took place then?
“A. The defendant started pounding on my behind with his behind, and he was holding me in a manner as to where I couldn’t — When I moved my arm I couldn’t get up, get down or do anything. And I tried to scream and it just seemed like it caught in my throat.
“He pulled my — I sleep with my housecoat on and he pulled my housecoat and my gown up. I was still struggling and I tried to scream. I was trying to scream, you know, and I was trying to get away and it just seemed like it got hung in my throat. And he went through the crotch of my panties and raped me while I was on my stomach. And when I could get leeway to try to get out of there I tried to run, and when I tried to he took his hand and held me down like this, and then he swung my hips over like that and took me a second time.
“Q. He did have sexual intercourse with you, didn’t he?
“A. Twice.
“Q. And I’ll ask you did you resist him?
“A. I didn’t give it to him if that’s what you are talking about.
“Q. That’s what I mean.
“A. I was trying to get out of there.
“Q. Were you in fear?
“A. Yes, sir, I was.
“Q. You tried to scream but it just hung in your throat?
“A. Yes, sir.”

The defendant testified that he was serving time for a conviction of robbery, that on the night involved he had been to a softball game and “arrived back at the jail” about 12:15, “went into the office and got the key from the jailer and went to his cell and unlocked the door of his cell, carried the key back to the jailer and thereafter asked the jailer to let him have the keys again.” His testimony continues as follows:

“A. I asked Palmer [the jailer] to let me hold the keys again to go back to my cell. See, he didn’t know I had unlocked the cell. He just gave me the keys, and he gave them to me. And Mrs. Sarah Weathers’ [the alleged victim] light was on and I stopped and started talking to her.
“Q. Where was she in her cell when you first called to her?
“A. At the door.
“Q. She was standing at the door?
“A. Yes, sir.
“Q. And who was the first one — which one of you spoke first?
“A. She spoke first.
“Q. What did she say?
“A. She asked for some water.
“Q. What did you tell her?
“A. I told her there wasn’t no cold water.
“Q. Then what did she say?
“A. She said it would be okay.
“Q. Then, what happened next?
“A. We started talking about her life and my life then.
“Q. What did y'all say?
“A. I asked her how long she got to be in jail and she said, T don’t know. They won’t give me a bond.’
“Q. What else was said? What else did either one of you say?
“A. Then she said, ‘How long have you got to be in?’ And I said, ‘I’m supposed to get out about September if I make parole.’ And she said that would be good. And she asked me — she said, ‘Do you want to come in and talk to me?’ And I said, T can’t, that would be against the rules. I can’t go in there.’ I wasn’t supposed to be at the door or anything because it was against the jail rules, and everything.
“Q. Then what happened?
“A. Then I asked her, ‘How long are you going to be in here?’ And she said her lawyer was trying, and the judge was trying, to work something out, or something like that, to get her bail set, you know. And she said, T don’t know how long I’ll be here.’
“Q. What was said next?
“A. Then I asked her could I come in and she said it was okay.
“Q. You asked her if you could come in and she said it was up to you?
“A. Yeah.
“Q. Did she say anything else?
“A. No.
“Q. What did you do then?
“A. I went in.
“Q. Where were the keys then?
“A. I had the keys in my hand then when I asked her.
“Q. You had the keys in your hand?
“A. Yes, sir.
“Q. Now, after you went in did you say anything to her?
“A. I sat on the bed.
“Q. Then what happened?
“A. We started talking.
“Q. You started talking?
“A. Yes, sir.
“Q. What did you start talking about?
“A. I asked her if she had ever had anything to do with a black guy.
“Q. What did she say?
“A. T couldn’t say.’
“Q. What?
“A. T couldn’t say.’
“Q. Then what happened?
“A. Then I started talking to her — rapping to her, and feeling of her, and everything, and she got kind of hot, and then she had sexual intercourse with me.
“Q. What were you wearing at the time?
“A. I had on this jersey I got on now and some blue hospital pants.
“Q. What was she wearing?
“A. A gown.
“Q. Was she wearing anything other than a gown?
“A. A bra.
“Q. Now, did she keep her panties on or did she take them off?
“A. She kept them on.
“Q. In what way was she laying on the bed?
“A. She was laying on her back.
“Q. She was laying on her back?
“A. Yes, sir.
“Q. How long did you have sex with her?
“A. About 15 minutes.
“Q. And while y’all were having sex did either you or she say anything?
“A. No, sir.
“Q. Did she resist you or try to push you off or anything?
“A. No, sir.
“Q. After you had sex with her did she say anything to you?
“A. No, sir.
“Q. Did you say anything to her?
“A. I told her I would see her later.
“Q. Then what did you do?
“A. I went outside.”

The first issue presented by appellant is thus stated:

“In a rape case, where there is no evidence of force and no credible evidence of fear, the trial court should have directed a verdict of acquittal or otherwise rendered a judgment acquitting the defendant.”

If we accept the defendant’s testimony as true, the intercourse was without the required force to constitute rape. However, the testimony of the alleged victim as quoted above shows that the intercourse was forcible. In addition, there was some, though slight, evidence of force as shown by other testimony in the case that there were bruises, though not severe bruises, on her legs. In arguing issue one, appellant emphasizes the failure of the alleged victim to call for help and that she did not report the incident until some six or seven hours later. As to this argument, reference should be made to additional testimony of the alleged victim as follows:

“Q. How many other women were in the county jail at this time on the night this happened, if you know?
“A. Just myself.
“Q. Approximately how many prisoners were in that jail, if you know?
“A. I asked one of the trustees [sic] and I think he said 28. I’m not for sure.
“Q. Twenty-three?
“A. Or sixteen. It was one or the other.
“Q. How many other white prisoners were there?
“A. Mr. Shelby next to me.
“Q. What is Mr. Shalby’s approximate age?
“A. I don’t know.
“Q. Is he an old man?
“A. He’s kind of old, yes, sir.
“Q. How many trustees were in that jail at the time?
“A. There were three.
“Q. Any of them white?
“A. No, sir.
“Q. How about the jailer? Is he a white man?
“A. No, sir.
“Q. You were in fear of your life until you reported it in the morning, is that correct?
“A. Yes, sir.
“Q. Did you report it the first opportunity you felt safe in reporting it?
“A. I did.
“Q. As a result of your reporting this what took place?
“A. The sheriff was brought to the cell, he was told what happened, they took me to the hospital and checked me, and everything, and let the jailer go that was on the night shift.”

The evidence clearly presented a jury question as to whether sexual intercourse between the alleged victim and the defendant was by forcible compulsion, or, on the other hand, whether it was consensual. The court overruled a motion for a new trial filed by defendant, in which it was asserted that the verdict “was contrary to the evidence,” but there was no ground of the motion to the effect that the verdict was against the preponderance or the weight of the evidence and no such issue is presented on appeal. The trial court was not in error in submitting the case to the jury for its determination of defendant’s guilt, in overruling defendant’s motion for a judgment of acquittal, his motion for a judgment notwithstanding the verdict, or his motion for a new trial.

The court refused defendant’s requested charge No. 4, which states:

“The absence of injury to Mrs. Weathers as well as the absence of damage to her clothing are circumstances that can be considered in determining whether or not Mrs. Weathers consented to have sexual intercourse with the defendant.”

The charge was properly refused for the reason that it ignores the testimony of Mrs. Weathers as to what occurred. Appellant is correct that if there was an “absence of injury to Mrs. Weathers” such absence of injury would constitute a circumstance that should be considered in determining whether or not she consented to have sexual intercourse with defendant, but no such hypothesis, nor any hypothesis whatever, is in defendant’s requested charge No. 4.

Appellant also contends that the trial court erred in refusing defendant’s requested Charge No. 6, as follows:

“Offense of rape is complete when unlawful intercourse is accomplished by overcoming resistance, and procuring submission by means of threats, though there may be no intention in fact to apply actual force.”

Appellant says the charge should have been given, and appellee says it should not have been given, but neither party cites a case in which such charge was ever given or refused. We are puzzled by what is meant by it as applied to the facts of this case. In neither the testimony of the alleged victim nor in the testimony of the defendant can there be found evidence to the effect that submission of the alleged victim was procured by threats by defendant. She said that the intercourse was procured by force. He said it was by consent. The requested charge was abstract in that no threats were made in the instant case, and argumentative in that it implies that there was “no intention in fact to apply actual force.” Even in a case in which there was evidence that submission was obtained by threats, it would have been one that would have been potentially helpful to the prosecution and not to the defendant. If it would have been helpful to defendant in the instant case, it would have been so merely in the fact that it would mislead the jury into consideration of a question that was nonexistent under the undisputed evidence of the case. The charge was properly refused.

We do not agree with appellant’s fourth contention that the “sentence of fifty years is so excessive as to be an abuse of discretion.” Furthermore, it is not within our province to “review sentences within the statutorily prescribed limits.” Wallace v. State, Ala.Cr.App., 408 So.2d 171 (1982), cert. den. 408 So.2d 173.

Appellant urges in his next issue presented that it was error for the trial court “to refuse to allow a witness to testify about whether before the alleged rape the prose-cutrix made a statement about what would happen if somebody messed with her.” He says that the “statement, if admitted, would have been very valuable to the defense insofar as showing Sara Weathers’ mental operations.” We note that during the testimony of the witness Carolyn Gainer, the defendant sought to show by said witness that Mrs. Weathers had made a statement to the witness “about what would happen if somebody messed with her,” and thereafter, out of the presence of the jury, there was a colloquy among the court and counsel for the respective parties as to what the defendant proposed to show by the witness and as to whether he should be allowed to do so. Immediately thereafter, in the presence and hearing of the jury, the following occurred:

“Q. (Mr. McKinnon [defendant’s attorney] continuing). Mrs. Gainer, would you please state whether or not you heard Mrs. Weathers make a statement to the general effect that if anybody messed with her that her husband would get them, and at the same time say she would get out the best way she could?
“A. Yes.
“MR. McKINNON: Okay. Your witness.” V

We conclude that appellant is mistaken in asserting that “the trial court would not allow the defense counsel to elicit that testimony from the witness.”

Appellant’s next contention is that the trial court “erred in refusing to allow the defendant to introduce testimony that the prosecutrix had stated that her husband had heard that the prosecutrix had been allowed to go to the upstairs portion of the jail to be with the men up there.” This issue is closely related to the immediately preceding issue, which was attempted to be resolved by the same colloquy out of the hearing or presence of the jury. The pertinent part of the colloquy relative to the issue now under consideration is as follows:

“THE COURT: Now, you propose to show by this witness what?
“MR. McKINNON: All right, sir. The witness told me that she heard Sara Weathers say that her husband had heard that they would let her, the witness, and Sara Weathers out to go be [sic] with the men upstairs, and that she also heard Sara Weathers say that if anybody messed with her that her husband would get them, and that she was going to get out the best way she could.
“THE COURT: I sustain the objection to that. I think you are getting into past sexual conduct which is prohibited.
“MR. McKINNON: Well, we weren’t getting — They never went upstairs. We were just trying to show some motivation to show that she was thinking about that.
“THE COURT: Well, too, that puts the thought in the jury’s mind that she and this witness went upstairs and had sexual relations with the men prisoners up there. That is just not proper.
“MR. McKINNON: All right. Your Honor, I do have an item of testimony that is admissible but I’ve been having difficulty asking the witness the question.
“THE COURT: What question is it?
“MR. McKINNON: Well, what I was trying to elicit from her was that she had told me: That if anybody messed with her, Mrs. Weathers, that her husband would get them, and at the same time, T would get out the best way I could,’ that she was trying to use that to show that she was trying to set this trap for the purpose of getting out.
“THE COURT: If the witness says that she made the statement, ‘I’ll get out the best way I can,’ I’ll let her answer that.”

In our opinion, the trial court was correct for declining to allow defendant’s attorney to ask the witness, Ms. Gainer, whether “She heard Sara Weathers say that her husband had heard that they would let her, the witness, and Sara Weathers out to go be with the men upstairs” for the reason, as explained by the trial judge, that such proposed testimony “puts the thought in the jury’s mind that she and this witness went upstairs and had sexual relations with the men prisoners up there.”

Without the citation of any authority, appellant urges that the trial court should have permitted on request of defendant’s attorney the jury to view “the cell that Mrs. Weathers stayed in, and just look at the general layout of the jail.” As to this, the court said:

“I don’t believe I’m going to allow that. I’m going to deny the motion for that, because I think you have got plenty of testimony it is adjoining, and you’ve got pictures of it. And I just don’t believe it would be worthwhile, considering the fact that this is a criminal ease, that it’s needed to show the scene. I think they have plenty of information already to show the location of the doors and cells and the bunk, so I’ll deny that.”

The ruling was in accordance with “the general rule that in a criminal prosecution it is within the discretion of the trial court to determine whether the jury should be taken to the scene of the alleged crime.” Helton v. State, 55 Ala.App. 428, 316 So.2d 355, 359 (1975). We find no abuse by the trial court of the discretion vested in it.

As a final contention for a reversal, appellant says that it was “error for the court to refuse a defendant’s motion for a continuance of the rape trial until after the prosecutrix’ trial.” In the last sentence of his argument as to this issue, appellant’s brief states, “A motion to amend the record to more completely reflect the substance of the motion for a continuance has been filed and is pending a ruling by the trial court.” Appellants’ brief is dated March 16, 1983. It may well be that action has been taken with reference to appellant’s motion to amend the record and that the result thereof has not reached this court, but we feel that we are not justified in assuming that the record has been so amended as to make inapplicable what was recently stated in Wilson v. State, Ala.Cr.App., 395 So.2d 1116, 1119 (1981), which we now repeat and apply:

“The matter of placing cases on the docket for trial, and of granting a continuance, is largely within the discretion of the trial judge, and in the absence of a showing of an abuse of discretion by the trial court, this Court should not disturb the trial court’s ruling. Childers v. State, Ala.Cr.App., 389 So.2d 193; Wilson v. State, Ala.Cr.App., 384 So.2d 1243.”

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Bobby DANCY, Jr. v. STATE.
    6 Div. 263.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Aug. 30, 1983.

      John H. England, Jr., and Jo Celeste Pettway of England & Bivens, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   SAM W. TAYLOR, Judge.

Bobby Dancy, Jr. was convicted of murder and sentenced to life imprisonment. He assigns two errors on appeal.

On January 3, 1978, appellant paid for and received a gun from Mack’s Bait Shop in Tuscaloosa. He entered the showroom of the Bill DeLoach Lincoln-Mercury Agency in Tuscaloosa that day at about 5:30 p.m. where several men were standing watching the 5:30 TV news. He fired his newly acquired weapon, striking Ned Whiting, a salesman with the company, in the forehead. The injury proved immediately fatal. The appellant was arrested within a short time after the shooting. One of the men in the showroom had followed the appellant at a distance until he was able to flag a police patrol car. The defense was “not guilty” and “not guilty by reason of insanity.”

I

The appellant contends that the trial court erred to reversal when it admitted into evidence the appellant’s written request to talk with his lawyer. After having been read his Miranda rights, the appellant' while in the police car made a spontaneous statement, “You all just go ahead and shoot me; I know you all are going to kill me for what I done.” The contention of the appellant’s counsel at trial was that the appellant was in a mental condition which made it unlikely that he would be able to understand his right to remain silent. Three psychiatrists were called as witnesses by the defense to testify to this effect, although one of them appeared to back off from his testimony to some degree. The fact that the appellant wrote on a piece of paper “I want to talk to my lawyer,” and signed it “Bobby Dancy,” was devastating to the conclusions of the psychiatrists and to this theory of defense.

The theory of the appellant is that the statement, “I want to talk to my lawyer,” should be interpreted by us as a statement by him, “I want to remain silent.” Following such proposed change in facts, appellant then contends that permitting the piece of writing into evidence amounted to a comment upon his invocation of his constitutional rights. That is to say, appellant seeks to have us interpret this exercise of the right to counsel to be the exercise of another and different right, the right to remain silent. The court instructed the jury that the evidence could be considered solely on the issue of whether the appellant’s mental state on the night of the murder was such that he could or could not understand his constitutional rights. We find that the events described herein did not violate the constitutional rights of the appellant and that the court did not err in admitting such testimony.

II

The appellant evidently contends that the jury erred in not finding the appellant “not guilty by reason of insanity.” He contends that the evidence of his insanity was overwhelming and uncontradicted so that the statutory presumption of sanity is overcome. One of the cases cited by appellant, Bowen v. State, 386 So.2d 489 (Ala.Cr.App.) cert. denied, 386 So.2d 492 (Ala.1980) noted that in cases involving the principle of law here urged by the appellant, the state presented no evidence of sanity but rather chose to rely solely on the statutory presumption of sanity. Proof of appellant’s insanity was not overwhelming nor was it uncontradicted. One of the psychiatrists called by the appellant admitted on direct examination that he was not sure his diagnosis would have been the same if he had had available to him all the evidence presented at the trial. He said that all he had was the information contained in a letter from the defense counsel. He testified, “... I would have a lot more reservation in — I am not sure I would have come to the conclusion I did had I known...”

The state called a police officer who testified that the appellant gave every appearance of being able to understand his Miranda rights. A bank employee testified that she observed the appellant conducting his banking business on many occasions and he always appeared normal. The sales clerk who sold the appellant the pistol testified that the appellant appeared normal and was able to fill out a required federal form. There’s testimony from witnesses in regard to things the appellant said just after the shooting and upon his apprehension.

In sum, this is a case in which the evidence for the appellant is not overwhelming and is strongly contradicted. No error was committed therefore in submitting the case to the jury on the issue of insanity.

In view of the foregoing, this judgment is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    John Thomas LISTER v. STATE.
    7 Div. 104.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Aug. 30, 1983.

      Patrick H. Tate and David C. Wear, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

The defendant was indicted for the attempted murder of Lois Bray. A jury convicted him of assault in the first degree. Sentence was twenty years’ imprisonment. Three issues are raised on appeal.

I

On the night of January 23, 1982, the defendant shot and killed Betty Bray and shot and wounded her husband, Lois Bray, in one continuing criminal transaction. The murder case had the lower docket number, CC-82-29, followed by the attempted murder charge, CC-82-30. Both cases were scheduled for trial on the same day.

The defendant contends that he was prejudiced by having to defend the attempted murder charge first when defense counsel had prepared for and was expecting to try the murder case first. He argues that in the murder case the State would have had to call the toxicologist to establish the cause of death and the toxicologist’s report would have established that the murder victim was highly intoxicated. There was no toxicology report on the victim of the attempted murder. The defendant argues that “(h)is reliance upon the order in which the cases were docketed caused his counsel to prepare his defense based upon evidence to have been elicited from the toxicologist.”

In reply to the defendant’s objection, the prosecutor stated that the toxicologist was unavailable to testify in the murder case on that particular day because of “two subpoenas to be in court at other places ahead of the subpoena that he got in the riiurder case that’s on this docket for today.” He also stated that “we would expect to call the same witnesses in the murder case as we would in this attempted murder case with the exception of the toxicologist and cause of death” and the ballistics expert.

The trial judge noted that the “facts are the same insofar as the events that occurred” and after listening to the arguments of defense counsel stated: “I still can’t see that for them (the State) to choose to try the attempted murder case causes you any particular problem.”

This issue was addressed in Chatom v. State, 360 So.2d 1068, 1070 (Ala.Cr.App.), cert. denied, Ex parte Chatom, 360 So.2d 1074 (Ala.1978).

“If the failure of the State to inform an accused, facing separate indictments, of the order in which they will be tried is to work a reversal, it can only do so where a proper and timely request has been made by defense counsel and the failure to inform or elect results in actual prejudice to the accused.”

It is within the discretion of the trial court, or the prosecuting attorney, subject to the control of the court, to determine the order in which cases shall be tried. Williams v. State, 356 So.2d 216, 218 (Ala.Cr.App.1977), cert. denied, Ex parte Williams, 356 So.2d 219 (Ala.1978).

Here, there was no timely request for an election. The record supports no finding of prejudice to the defendant and no abuse of the discretion of the trial judge in allowing the State to try the higher docket numbered case first.

II

The trial judge’s failure to charge on the lesser included offense of assault in the third degree is not properly preserved for review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), cert. denied, Ex parte Allen, 414 So.2d 993 (Ala.1982). The record does not reveal that a “charge conference” was held. Although it does reflect that at the close of all the evidence a conference was held between the judge and the attorneys where “legal” and “procedural” matters were discussed, the content of that conference is not disclosed.

Ill

The trial judge did not err in refusing to give the defendant’s requested jury instruction on insanity.

The defendant testified that he “blacked out” after drinking Listerine and whiskey and simply did not remember what happened the night of the crime. He stated that he had been drinking for over fifty years, that he had a “problem” with drinking, and that he “usually blacked out” when he “drank too much.” However, the defendant also testified that, before he began drinking on the day of the crime, he had not had anything to drink for a year.

Although excessive intoxication may produce insanity, Beasley v. State, 50 Ala. 149 (1876); Harmon v. State, 23 Ala.App. 468, 126 So. 896 (1930), “legal insanity does not embrace every kind of mental disease and disorder that renders a person not responsible for his acts.” Brackin v. State, 417 So.2d 602, 604 (Ala.Cr.App.1982). Alabama Code Section 13A-3-2(d) specifically provides that “(i)ntoxication in itself does not constitute mental disease or defect within the meaning of Section 13A-3-1” defining the defense of insanity. Here, there was no evidence that the defendant was not criminally responsible for the alleged conduct as a result of a mental disease or defect.

Voluntary intoxication is no defense to a charge of assault and battery, unless the degree of intoxication amounts to insanity and renders the accused incapable of forming an intent to injure. Maddox v. State, 31 Ala.App. 332, 334, 17 So.2d 283 (1944). “Emotional insanity or temporary mania, usually due to causes such as intoxication, not associated with disease of the mind, does not constitute insanity.” Johnson v. State, 43 Ala.App. 224, 226, 187 So.2d 281 (1966). See also Beasley, supra; State v. Bullock, 13 Ala. 413 (1848). “(I)nsane conduct or mania resulting merely from present intoxication is not the insanity which excuses crime.” James v. State, 193 Ala. 55, 69 So. 569, 572 (1915). “Temporary insanity which arises from present voluntary intoxication is no defense to a criminal charge .... On the other hand, if the accused is suffering from a settled or fixed insanity, even though caused by long-continued alcoholic indulgence, the rule is the same as in the case of insanity arising from any other cause.” 21 Am.Jur.2d Criminal Law Section 54 (1981). See also Annot. 8 A.L.R.3d 1236 (1966).

Here, there was no evidence that the defendant was suffering from any settled or fixed insanity. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    James Walter BROWN v. STATE.
    7 Div. 120.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Aug. 30, 1983.

      Thomas M. Semmes, Oxford, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard D. Melson, Asst. Atty. Gen., for appel-lee.
   SAM W. TAYLOR, Judge.

On March 3, 1983, a Calhoun County Circuit Court jury found the appellant guilty of sodomy in the first degree. He was sentenced to life without parole under the Habitual Offender Act.

The sole issue presented on appeal is whether or not enough evidence was presented by the state to sustain a conviction of sodomy in the first degree. Section 13A-6-63, Code of Alabama 1975, reads in part as follows:

“(a) A person commits the crime of sodomy in the first degree if:
(1) He engages in deviate sexual intercourse with another person by forcible compulsion ...”

Specifically, appellant claims the element of “forcible compulsion” was not proven.

A brief summary of the facts presented by the state includes the following:

On May 5, 1982, inmate Tony Bethune, a resident of the Calhoun County Jail, approached some of the other inmates who were confined within the jail’s “bull pen.” He asked them if they wanted to “buy” Robert Fegans’s body and several of them agreed. The appellant, James Brown, then paid $2 to Bethune. Fegans was then slapped by Bethune and told to “get with it.” Fegans understood that he was being asked to submit to sodomy since he had witnessed another inmate being sodomized earlier that day.

When the victim refused to comply with Bethune’s request that he take off his clothes and go into the shower, Bethune then picked Fegans up, threw him down and began slapping and kicking him. This continued for five minutes, at the end of which time the victim tried to get up off the floor when he was again grabbed by another inmate and thrown against a wall and told to “. .. do what the man said.”

During these minutes the appellant was continually present and could see and hear everything that was going on.

Bethune then asked for someone to pass him a knife, at which time the victim went into the shower because “I didn’t want to get hurt or cut, no bad [sic] than I already was.”

The appellant then entered the shower with Fegans and sodomized him.

At trial, the statements of the medical doctor who examined Fegans after the offense was committed, supported the victim’s testimony that he had been sodomized.

We find no support whatsoever for appellant’s claim that the evidence could not sustain a finding of sodomy in the first degree.

As this court said in Johnson v. State, 405 So.2d 149 (Ala.Cr.App.1981),

“... all persons concerned in the commission of the crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, must be indicted, tried and punished as principals.” (citations omitted)

The judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Zon Curtis WEAVER v. STATE.
    1 Div. 536.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Jerry Turner, Chatom, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

On November 23, 1982, appellant pleaded guilty to theft of property in the first degree and escape in the third degree. He was sentenced to 22½ years’ imprisonment for the first offense and 10 years’ imprisonment for the second offense with the sentences to run concurrently.

The four issues appellant raises on appeal involve his guilty plea and sentencing.

I

The first claim appellant makes is that his guilty plea was coerced. He asserts that during the plea bargaining process he was told by the state that if his case went to trial he could receive a sentence of life imprisonment without parole. In fact, the most severe sentence appellant could have gotten was life imprisonment. However, the appellant concedes in his brief that the instructions given to him at hearing by the court as to the possible punishments he could receive were correct. The plea bargaining process is not on record, and since the description given to him by the court of his possible minimum and maximum sentences is beyond challenge, no issue has been preserved for our review. Lewis v. State, 426 So.2d 932, cert. denied, Ex parte Lewis, 426 So.2d 938. We note that if the rule were otherwise, every appellant could overturn his sentence.

II

Appellant next says he was not afforded reasonable notice that he was to be sentenced under § 13A-5-9, Code of Alabama 1975, the habitual offender statute. Reasonable notice is required by A.R.Crim. P.Temp. 6(b)(3)(ii). Written notice of intention to proceed under the habitual offender statute is always proper. Hollander v. State, 418 So.2d 970 (Ala.Cr.App.1982). However, the Alabama Rules of Criminal Procedure do not require a written notice. Hollander, id.

During the hearing at which appellant pleaded guilty and at which he was sentenced, no objection was made regarding the inadequacy of the notice given to proceed under the habitual offender statute. Consequently, the circuit court did not err. Hollander, supra. Thus we find no merit in this issue on appeal. In addition, it seems obvious from a reading of the transcript that a plea bargaining arrangement was reached before the hearing.

III

The third issue appellant raises challenges the method chosen by the state to. prove the prior conviction that was used to enhance his sentence. Since appellant made no objection when the document used to prove his prior conviction was placed into evidence, we find that the issue has not been properly preserved for our review. Smith v. State, 409 So.2d 455 (Ala.Cr.App. 1982); also, Temporary Rules of Criminal Procedure.

IV

The last issue appellant raises on appeal is whether or not Alabama’s habitual offender statute is violative of the constitutional provisions for due process and equal protection. The constitutionality of the recidivist statute has been affirmed by this court on numerous occasions and we do so again now. Watson v. State, 392 So.2d 1274, writ denied, Ex parte Watson, 392 So.2d 1280; Murphy v. State, 399 So.2d 340, cert. denied, Ex parte Murphy, 399 So.2d 347.

Appellant has not challenged his sentence on the grounds that it is violative of the Eighth .Amendment, which states that “Excessive bail shall not be required, no excessive fines imposed, nor cruel and unusual punishments inflicted.” The recent United States Supreme Court decision of Solem v. Helm, - U.S. -, 103 S.Ct. 3001, 76 L.Ed.2d 637 (1983) includes an in-depth discussion of an 8th amendment challenge to South Dakota’s recidivist statute.

In rendering its decision, the court did not strike down the South Dakota statutory scheme. Instead, it specifically held that Helm’s sentence was unconstitutional, but in doing so the court said that “... a state is justified in punishing a recidivist more severely than it punishes a first offender.” It is clear from the Helm opinion, therefore, that sentencing under recidivist statutes was intended to be approached on a case by case, trial and error basis. We find under the facts of this case that appellant’s sentence would handily withstand an 8th amendment challenge.

We feel that for the reasons stated above, the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Norman JONES v. STATE.
    2 Div. 356.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Robert B. Blair, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted in the Dallas County Circuit Court on December 6, 1982, of robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. A sentence hearing was held, after which the court fixed appellant’s punishment at life in the penitentiary. This appeal followed.

The issue raised on appeal is whether appellant was entitled to a hearing on his motion to quash the venire. The motion contained an averment based upon “information and belief” that the venire had not been drawn from the master jury box in accordance with § 12-16-55, Code of Alabama 1975. It was also alleged that appellant would be denied a trial before a fair cross section of the populace of Dallas County if the motion was denied. He then prayed that the venire be quashed. The motion was denied without a hearing.

First, it should be noted that the motion was filed prior to the empaneling and swearing in of the jury; therefore, it was timely made. Durden v. State, 394 So.2d 967, writ quashed, 394 So.2d 977 (Ala.1980).

Secondly, the allegation that the venire was not drawn in accordance with § 12-16-55 was in essence a claim of fraud. That section declares the policy of this State to be that all persons selected for jury service be selected at random from a fair cross section of the population. Fraud, in turn, is the intentional omission from the jury roll of large numbers of citizens who possess the qualifications required by law. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970). This motion, then, satisfied the requirements of § 12-16-80, Code of Alabama 1975.

In the case of Nixon v. State, 291 Ala. 657, 286 So.2d 315 (1973), the Supreme Court of Alabama held that the trial court’s denial without a hearing of appellant’s motion to quash was not error. It listed three reasons. These were: (1) the defendant did not ask for any relief or for an opportunity to be heard; (2) it was not clear from the record whether there had been a hearing or not; and (3) there was no offer of proof of the allegations in the motion.

In the case sub judiee, the written motion prayed for specific relief; additionally, the record indicates that appellant requested a hearing so that he could offer proof of his allegations. It is the opinion of this court that the hurdles of Nixon, supra, have been met by appellant and that he is entitled to a hearing on the motion.

This cause is remanded to the trial court with directions that a hearing be conducted on the merits of the motion. A transcript of the hearing with the findings of the trial court shall be returned to this court.

REMANDED WITH DIRECTIONS.

All the Judges concur.


text:
    Roosevelt F. YOUNGBLOOD v. STATE.
    3 Div. 799.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    See also 372 So.2d 34.
    John L. Jernigan, III of Stokes, Jernigan & Stokes, Brewton, for appellant.
    Charles A. Graddick, Atty. Gen., and Susan Beth Farmer, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

The appellant, Youngblood, was indicted for the capital offense of murder in the first degree while sentenced to imprisonment for life. Alabama Code Section 13-1-75 (1975). His conviction, based on a guilty plea, was reversed by this Court in Youngblood v. State, 372 So.2d 34 (Ala.Cr.App.1979). On remand, a jury convicted him of capital murder and fixed sentence at death. That conviction was voided by the circuit court under Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), when it granted Youngblood’s petition for writ of error coram nobis.

Youngblood was originally indicted in March of 1978 for the capital murder of inmate Hayes J. Toosen in September of 1977. Five years later, in March of 1983, he pled guilty to murder in the second degree and was sentenced to twenty years’ imprisonment. This guilty plea was pursuant to a plea bargain agreement.

On appeal from that conviction, Young-blood argues that he is entitled to credit on his sentence for the time he spent in jail awaiting trial. In his order sentencing Youngblood to twenty years’ imprisonment, the trial judge ordered “the Defendant to get credit for any time of incarceration pending a disposal of the charge as is allowed by law.”

Youngblood was originally sentenced on March 14, 1978, as a result of a guilty plea that was later reversed on appeal. On January 22, 1980, he was sentenced a second time after a jury trial. That conviction was set aside on a petition for writ of error coram nobis. Youngblood was sentenced a third time on March 2,1983, as the result of a negotiated guilty plea. When that plea was accepted, defense counsel stated that it was “agreed” between the State and Youngblood that Youngblood would “get credit for the time he served since the sentence of January 22,1980.” The trial judge noted that that “is a matter of law. The statutes take care of that.”

Initially, we note that this issue is not preserved for review. Nowhere in the record is there any evidence to the effect that Youngblood has not received the credit to which he may be entitled.

Alabama Code Section 15-18-5 (1975) provides that a convict should be credited with all time spent in jail in connection with the offense for which he has been sentenced.

“Upon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the board of corrections.”

Here, there is simply no showing that Youngblood spent any time incarcerated pending trial for such offense for the reason that he was already serving a life sentence.

Youngblood is not entitled to any credit on his twenty-year sentence because the conviction resulting in that sentence was not the cause of his pretrial confinement.

“Even under statutes providing that time spent in jail prior to conviction may be credited toward the term of imprisonment imposed on conviction, a period of confinement under conviction of one crime may not be deducted from the term of a sentence imposed on conviction of another crime.”
24B C.J.S. Criminal Law, Section 1995(4) (1962).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LESLIE G. JOHNSON, Circuit Judge.

text:
    Eddie L. RIGGINS v. STATE.
    4 Div. 79.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.

      R. Michael Raiford, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   LESLIE G. JOHNSON, Circuit Judge.

The appellant, Eddie L. Riggins, was convicted by a Russell County jury for unlawfully possessing marijuana in violation of Ala.Code § 20-2-70 (1975). The appellant was given notice by the District Attorney of an intention to proceed under the Habitual Offender Act. On July 8, 1982, the appellant appeared for sentencing, and, following proof of three prior convictions, the court sentenced the appellant to a term of fifteen years.

The appellant presents two issues for review. First, the appellant contends that the state failed to establish that he was in possession of the controlled substance. Second, the appellant claims that the trial court erred in allowing the admission of evidence which “had been altered from the way it was presented to the state toxicology laboratory.”

I

The facts of this case indicate that on December 11, 1981, police officers executed a search warrant on an apartment in Phe-nix City. Testimony by Abraham Williams, Jr., an employee of the Phenix City Housing Authority, established that the apartment was occupied by the appellant, his wife and daughter on December 11, 1981. However, when the search warrant was served, the appellant, as well as Lonnie Williams and 2 or 3 unidentified individuals were actually in the apartment.

When the police arrived at the appellant’s apartment to execute the search warrant, Officer Carey went to the back door outside the kitchen and waited. When other officers knocked on the front door, Officer Carey heard noises coming from the kitchen. She heard low voices and understood the words, “Take this and .... ” Immediately after hearing these words, Williams opened the back door, and Officer Carey directed him back inside.

Inside the apartment officers found marijuana on Lonnie Williams. No marijuana was found on the appellant. A small quantity of marijuana was found on the top surface of the kitchen table.

The marijuana which was found on Williams and that which was found on the kitchen table top in appellant’s apartment was transported to the toxicology laboratory for analysis. Mr. Taylor Noggle of the Alabama Department of Forensic Sciences received the material and tested it. From his analysis, Mr. Noggle concluded that the submitted material was marijuana. He then resealed the envelopes and stored them in locked drawers.

On the day of the trial, Mr. Noggle discovered that mice had eaten some of the marijuana seeds. The appellant objected to the admission of the marijuana, but it was received by the trial court.

The appellant’s contention that the prosecution failed to prove any degree of possession of the marijuana is without merit. In his brief, the appellant argues that his mere presence will not support a conviction of possession of marijuana. We agree. However, as the Alabama Supreme Court in Radke v. State, 292 Ala. 290, 293 So.2d 314 (1974), stated:

“... when the presence of the accused at the scene is established and evidence of his knowledge of the presence of the prohibited substance is shown, along with any other incriminating evidence, the issue of the defendant’s guilt should be submitted to the jury.”

The law of the State of Alabama recognizes two types of possession which may be the basis of a conviction for the possession of a controlled substance. The appellant contends in his brief that “for unlawful possession of controlled substances it is not necessary to prove manucaption, but constructive possession may be shown.” Again, we agree. Daniels v. State, 49 Ala. App. 654, 275 So.2d 169 (1973), Easley v. State, 56 Ala.App. 102, 319 So.2d 721 (1975), and Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760 (1975).

In this case, the prosecution did not rely upon the mere presence of the defendant to establish his possession of the controlled substance. Without question, the defendant was present at the apartment where the controlled substance was found on the date on which it was found. A quantity of marijuana was found on the person of Lonnie Williams, but he testified that the defendant had possession of the marijuana at the apartment before Williams arrived and that upon the arrival of the police the defendant told him to take the marijuana and leave. Mr. Williams’s testimony is corroborated in part by the words which Officer Carey heard before Mr. Williams exited the apartment. In addition to all of these factors, there was marijuana found on the kitchen table in the defendant’s apartment. All of these facts taken together provide a sufficient basis for the submission of this cause to the jury and for the jury’s conclusion that the defendant did possess the controlled substance.

II

The appellant’s second contention is that the court erred in allowing the admission of the marijuana at the trial after the marijuana had been altered from the way it was presented to the State Toxicology Laboratory. The appellant cites no cases which address this point. Instead, he claims that his rights under the Fifth Amendment of the U.S. Constitution and under Article I, § 6, of the Constitution of the State of Alabama were violated. The appellant contends that:

“... his right to a fair trial has been violated because the jury was able to review and consider evidence that had been altered and was not in its original form at the trial before a jury of peers. Appellant would maintain that the evidence in its tainted and altered state should have been excluded at his trial and therefore, he was deprived of a fair trial and was not afforded due process of law that he was entitled [to] under the basic tenets of our laws.”

We cannot agree with the appellant’s contention. The evidence in this cause shows that the marijuana was presented to the State Toxicology Laboratory and was tested prior to mice invading the container in which the marijuana was held. The toxicologist had tested the substance and reached his conclusion that it was marijuana prior to any invasion of the container by mice. There is no evidence in this cause that mice added anything to the container. In fact, the evidence does not indicate that the marijuana presented to the jury was anything other than the marijuana which the officers had presented to the toxicologist and from which mice had removed a few seeds.

This court has previously discussed the importance of a chain of custody to show “a reasonable probability there has been no tampering with the item of evidence.” Congo v. State, 409 So.2d 475 (Ala.Cr.App.1981). In this cause the state met the requirement of showing the chain of custody and thereby showed the authority of the evidence as required by our laws. Williams v. State, 375 So.2d 1257 (Ala.Cr. App.), cert. denied, 375 So.2d 1271 (Ala.1979); Ex Parte Yarber, 375 So.2d 1231 (Ala.1979).

Although it would be preferable for the state to present the marijuana in the same condition as it was presented to the toxicologist, testing sometimes makes this an impossibility. We recognize that evidence will be altered in some form when chemical tests are administered. Our law does not require that the item remain in the same form at the trial as it was when seized. See Taylor v. State, 372 So.2d 387 (Ala.Cr.App.1979). In this case the conclusion of the toxicologist as to the substance delivered to him was not affected by the invasion of mice. Therefore, even though it would have been preferable for the marijuana to have been in exactly the same condition as delivered, the defendant was not prejudiced by the removal of some seeds by mice. Therefore, since the analysis and conclusion of the toxicologist were not affected by the removal of some seeds by mice and since nothing was added to the marijuana, the evidence was properly admitted upon explanation to the court and jury of the total extent of the alteration in the marijuana. See Mauldin v. State, 402 So.2d 1106 (Ala.Cr.App.1981); Congo v. State, supra.

We have searched the record and have found no error prejudicial to this appellant. Therefore, the judgment of the circuit court is affirmed.

The foregoing opinion was prepared by Honorable LESLIE G. JOHNSON, Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Ala. 1975; the court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.


text:
    Robert Earl THOMPKINS v. STATE.
    4 Div. 104.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Barry Bledsoe of Byrd & Carter, Dothan, for appellant.

      Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

The Houston County Grand Jury indicted appellant for burglary II in violation of § 13A-7-6, Code of Alabama 1975, in February 1980. On February 11, 1980, a writ of arrest was issued for appellant based on the indictment. In May 1980, the appellant was convicted in Florida of another burglary and incarcerated there for the next two years. In June 1982, appellant asserted his right to a speedy trial on the charges stemming from the 1980 Houston County indictment. The writ of arrest, issued on February 11,1980, was executed on September 9, 1982. Appellant was tried and convicted of burglary, second degree, on October 26, 1982, and sentenced to six years in the penitentiary. Appellant now brings this appeal based on the claim that he was denied his right to a speedy trial.

The four factors to be assessed in determining whether a criminal defendant has been denied a speedy trial are: (1) the length of the delay, (2) the reason for delay, (3) the assertion by the defendant of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The length of the delay must be “presumptively prejudicial” in order to make inquiry into the remaining Barker factors. Barker, supra; Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980). This court held that a delay of two and one-half years was long enough to be considered “presumptively prejudicial” in the case of McCallum v. State, 407 So.2d 865 (Ala.Cr.App.1981). We will, therefore, review the other Barker factors.

The record provides no information concerning the reason for the delay. Appellant contends the State knew he was incarcerated in Florida and, therefore, had a duty to extradite him for trial. The only support for this assertion is that a Sergeant Gilley knew appellant was being held by Florida authorities prior to the indictment. Appellant, however, was not convicted and sentenced on the Florida charge until some four months after Sergeant Gilley’s last contact with him. There is nothing to indicate that Sergeant Gilley or any other Alabama official knew of the Florida conviction or that appellant was being held there four months after Gilley’s last contact with him. Assuming, however, that the State did know of appellant’s whereabouts, the reason for delay seems to be no more than negligence. There is no showing that this was a case of deliberate prosecutorial delay. “Negligence on the part of the State must be weighed less heavily than deliberate prosecutorial delay.” McCallum, supra, at 867.

Appellant asserted his right to a speedy trial for the first time in June 1982. Appellant asserts that he was unaware of his right prior to that time. A review of the testimony does not support that assertion. Appellant is well acquainted with the judicial system, having several convictions already on his record.

Appellant also asserts that he was unaware that charges were pending against him in Alabama until June 1982. This is not supported by the record. Appellant gave a signed confession to Sergeant Gilley admitting his involvement in the Houston County burglary. Sergeant Gilley testified that he discussed with appellant, prior to taking the statement, the possibility of any Alabama time running concurrently with any Florida time. Surely, appellant realized that the confession and the talk about doing time would result in criminal charges.

These mere assertions cannot be made the basis for relieving appellant of his duty. Appellant was tried and convicted within four months of the time he first asserted his right. It should also be noted that appellant escaped from the Florida authorities at some point after his May 1980, conviction and was later convicted of escape. Some part of the delay in bringing appellant to trial in Alabama would have been, by necessity, caused by appellant’s own conduct in escaping and the subsequent need for a trial on that charge.

Appellant claims that he was prejudiced by the delay because his memory had faded. No particulars were given to support this conclusion. The record does not show that the appellant or any of the witnesses had any trouble recalling the facts. Appellant’s attorney as much as concedes that appellant was not prejudiced by the delay; we agree.

In Byrd v. State, 421 So.2d 1344, 1346 (Ala.Cr.App.1982), this court said: “The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, ... and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” Appellant in this case would have been incarcerated regardless of the actions taken by Alabama authorities. The factors set out in Barker, supra, weigh against appellant. The judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Bobby WOODS v. STATE.
    5 Div. 745.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.

      Ernest C. Hornsby of Hornsby & Schmitt, and Cottle & Cottle, Tallassee, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

The appellant was convicted of selling marijuana and sentenced to ten years.

According to Investigator Tyrone Anderson of the A.B.I., he and undercover agent Glenda Faye Davis went to appellant’s residence in Elmore County at approximately 4:18 p.m. on September 11, 1981, to make a marijuana buy. At that time, Ms. Davis told appellant she wanted to purchase a “twenty cent bag” and appellant sold her 13.2 grams of marijuana for $20.

Defense witness Howard Bickley testified that he was with the appellant at the time the sale of marijuana was alleged to have occurred. Bickley said that he and appellant had driven to Alexander City that day and they did not return to appellant’s house until 5 p.m. As they drove up, they saw several deputies on the premises but they did not see Investigator Anderson or Ms. Davis. Appellant corroborated Bickley’s testimony and denied that he had ever seen or sold drugs to Ms. Davis.

Over appellant’s objection, the state was allowed to question appellant on cross-examination regarding the presence of the deputies at his residence. Appellant acknowledged that the deputies were executing a search warrant when he arrived.

On rebuttal, the state called Elmore County Deputy Billy Hornsby, who testified that, pursuant to a search warrant, he seized the following items from appellant’s home on September 11, 1981:

“1 gram marijuana, 17 yellow tablets in plastic bag, 12 yellow tablets in plastic bottle, 21 white tablets in plastic bag, numerous coin envelopes, 1 set large scales, 1 set small scales. ... ”

The warrant and return were then admitted in evidence. Deputy Hornsby also testified that he found some money in a heating duct inside the house and that the refrigerator was stocked with beer and whiskey. The deputy stated that, when he drove up to appellant’s residence about 5 p.m., he saw the appellant run across the yard and disappear behind the house.

Eclectic Police Chief Mike Lewis stated that he went to appellant’s residence on the same afternoon and saw appellant running away from him.

Appellant contends that it was error to admit evidence regarding the execution of the search warrant subsequent to the marijuana buy at issue here, on the theory that it tended to show his guilt of crimes not charged in the indictment.

In our judgment, evidence of the later search was admissible to show appellant’s plan, design, scheme, or on-going business system to engage in illegal drug transactions. See Terry v. State, 424 So.2d 710, 711 (Ala.Cr.App.1982); C. Gamble, McElroy’s Alabama Evidence § 70.01(21)(c) (3d ed. 1977). See also Tucker v. State, 429 So.2d 1165, 1168 (Ala.Cr.App.1983).

As the Attorney General points out, “[E]vidence of possession of other narcotic drugs, two sets of scales, baggies and coin envelopes commonly used for packaging marijuana, and hidden money is properly admitted to show that appellant was, on the date of the crime charged, engaged in the business of selling and was in possession of equipment and the means for so doing.” Brief of Appellee at 15.

Appellant also maintains that the jury should not have been made aware of what items were seized during the search since there was no proof any of those items were controlled substances.

We note, first, that appellant’s objection to Deputy Hornsby’s reading the return on the warrant came after the deputy’s answer. When an objection comes after an answer and there is no motion to exclude, there is nothing preserved for review. Flowers v. State, 402 So.2d 1088 (Ala.Cr.App.), cert. denied, 402 So.2d 1094 (Ala.1981). Moreover, under the holdings of Smith v. State, 351 So.2d 668 (Ala.Cr. App.), cert. denied, 351 So.2d 675 (Ala.1977), and Wilcox v. State, 333 So.2d 202 (Ala.Cr.App.1976), these items, though not conclusively shown to be contraband, were properly admitted in evidence. In Wilcox this court observed the following:

“Judging from the listed items seized as shown in the lengthy return, their pharmaceutical character, names, labels and containers, a reasonable person would be impressed that the several rooms, residence and the curtilage room were used as a storage place for drugs and empty drug containers.
“All of this evidence shed light on the use of the premises for drug use and traffic on this residential property. The presence of these items so listed on the return, which was introduced in evidence, created an atmosphere of drug possession and traffic. It is true that only the codeine tablets were mentioned in the indictment, but most of the seized items so listed were related thereto. The presence of the listed items on the premises was a part of the res gestae of the search. They were a part of the same transaction.”

333 So.2d at 204.

Next, appellant insists that it was error to admit Deputy Hornsby’s description of appellant’s refrigerator as well-stocked with beer and whiskey, his comment that “[I]f anybody wanted a mixed drink, they could have a mixed drink,” and his statement that money was found in a heating duct. However, appellant either failed to object or interposed only a general objection, without a statement of grounds, to all of the foregoing testimony. There was no error here. The trial court will not be put in error for admitting evidence over a general objection unless the matter is clearly inadmissible for any purpose and cannot be made legal by supplying other evidence. Ward v. State, 376 So.2d 1112 (Ala.Cr.App.), cert. denied, 376 So.2d 1117 (Ala.1977).

Finally, appellant asserts that the trial judge erred by overruling his objection to the following portion of closing argument by the prosecutor:

“HON. JANICE WILLIAMS: I want you to look at what they found. Marijuana, seventeen yellow tablets in a plastic bag, twelve yellow tablets in a plastic bottle, twenty-one white tablets in a plastic bag, coin envelopes, one large set of scales, and one small set of scales. The only pills that they could account for were these that were in this — twelve yellow capsules in a plastic bottle.”

Appellant made the following objection:

“HON. E.C. HORNSBY: Your Honor, we object. That is an improper inference to be drawn and is highly prejudicial to this defendant as to what could be accounted for. That is not an issue in this trial and we respectfully object and move for a mistrial.
“THE COURT: Overruled — motion denied.”

Although appellant’s objection at trial was aimed at what specific pills “could be accounted for” his argument on appeal is directed toward the claimed general inadmissibility of any other drugs or drug paraphernalia found on the premises.

As we have pointed out, the items found pursuant to the warrant were admissible and were, therefore, properly the subject of argument by counsel. In addition, the prosecutor’s comment regarding what pills “could be accounted for” was based on the testimony of appellant’s wife that twelve of the tablets were prescribed for her. Appellant’s objection and motion for mistrial were correctly overruled. See Watson v. State, 398 So.2d 320, 328 (Ala.Cr.App.1980), cert. denied, 398 So.2d 332 (Ala.1981).

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.


text:
    Raymond FARLEY v. STATE.
    6 Div. 57.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    J. Michael Campbell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Appellant was convicted of theft by deception of $300, in violation of § 13A-8-1(1), § 13A-8-2(2), and § 13A-8^(a), Code of Alabama 1975. He was sentenced to fifteen years’ imprisonment as a habitual offender. Three issues are raised by him on appeal.

I

Appellant contends that the trial court erred in denying his motion for a mistrial based upon an answer by the victim in the case. She answered a question propounded by the court during her cross-examination by stating, inter alia, that she had viewed some “mugshots.”

Appellant’s counsel began his cross-examination of the witness with a detailed inquiry concerning the events leading up to her swearing out a warrant for appellant’s arrest. The response made the basis of this ground of appeal and the testimony surrounding that response read as follows:

“Q: And then you swore a warrant out on him about the next Monday or Tuesday, didn’t you?
“A: Yeah.
“THE COURT: Was it Monday or Tuesday that the warrant was sworn out?
“THE WITNESS: It was on a Monday. Well, let’s see. Like I said, it’s been a long time. I really don’t — Let’s see. I know it was on Monday when I called the officer, and then he sent a lady out there and had me to pick some mugshots out.
“THE COURT: Wait a minute now. Let’s not get into that.
“THE WITNESS: I think it was the next day.
“THE COURT: That’s all right.
“Q: So would that have been a Tuesday?
“THE COURT: He wants to know if that was a Tuesday?
“A: Uh huh. I told him I think so.”

Appellant’s counsel did not object to the answer, he did not move for its exclusion, and he never requested any curative instructions. After the conclusion of the witness’s testimony, counsel moved for a mistrial, contending that the response was ineradicably prejudicial. The trial court offered to instruct the jury to disregard the statement, but appellant refused, stating that he did not want to overemphasize it.

We conclude that the reference to “mugshots” was “Not of such a highly prejudicial nature as to require a mistrial.” Smiley v. State, 371 So.2d 469, 471 (Ala.Cr.App.1979); see also, Impson v. State, 331 So.2d 837 (Ala.Cr.App.1976).

In Elmore v. State, 414 So.2d 175, (Ala.Cr.App.1982), we said:

“Even those ‘inadvertant slips’ which are prejudicial to the defendant need not be cause for a mistrial where the judge acts promptly to impress on the jury that the improper statements are not to be considered by them. ‘When prejudicial remarks have been made, the trial judge is in a better position that an appellate court to determine whether the remarks were so prejudicial as to be ineradicable.’ Chambers v. State, 382 So.2d 632, 635 (Ala.Cr.App.), cert. denied, 382 So.2d 636 (Ala.1980).” (citation omitted)

As Judge Bowen stated in Diamond v. State, 363 So.2d 109, (Ala.Cr.App.1978): “A mistrial does not serve the same function as a mere objection or motion to strike and is not ordinarily used to indicate a mere erroneous ruling of law. It specifies such fundamental error in a trial as to vitiate the result.”

Neither does a motion for mistrial include a motion to strike or exclude testimony as a lesser prayer for relief. Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978); see also Renfroe v. State, 382 So.2d 627 (Ala.Cr.App.), cert. denied, 382 So.2d 632 (Ala.1980).

The necessary steps to preserve the event for our review were not taken.

II

Appellant next argues that a fatal variance existed between the indictment and the state’s proof.

The indictment charged appellant with “knowingly obtainpng], by deception, control over Three Hundred Dollars .. . the property of Lizzie Branch.... ” Appellant contends that at trial, however, the state proved that he received control over a check drawn by Mrs. Branch and made payable to appellant in the amount of $300. He asserts that this variance was fatal and that his motion to quash the indictment should have been granted.

The evidence tended to prove that at her initial meeting with appellant, Mrs. Branch signed a contract prepared by appellant for the painting of her house and paid him, by check, $300 of the $1,000 total contract price. The check was written on Wednesday, October 15,1980, but she did not fill in the date as she did not have sufficient funds in her checking account to cover it. She asked appellant to hold the check until Friday, October 17, before presenting it for payment. Appellant agreed. On October 16, appellant returned to Mrs. Branch’s house and began to scrape and prepare it for painting. Appellant and Mrs. Branch discussed their agreement for presentment of the $300 check. On October 17, appellant called Mrs. Branch and told her that he had dropped the check in some oil and needed another one issued to him. She told the appellant to bring the oleaginous check to her and she would issue him another.

After 4:00 p.m., appellant arrived at the Branch home. He did not have the soiled check with him but offered an explanation for its absence. Appellant then urged Mrs. Branch to write him another check. She refused and he quit the job and left.

The custodian of records of the First National Bank of Birmingham testified that the check in question had been endorsed and cashed by appellant on October 16, 1980.

In urging reversal of his cause, appellant relies upon Airhart v. State, 388 So.2d 211 (Ala.Cr.App.1979), cert. denied, 388 So.2d 213 (Ala.1980). The indictment in Airhart charged embezzlement under § 13-3-90, Code of Alabama 1975 (now repealed), alleging that the defendant embezzled a specified sum of “lawful currency.” Proof at trial established that a check of the same amount was embezzled. There the proof varied fatally from the language of the indictment.

Airhart was decided before the effective date of the Alabama Criminal Code. Adoption of the new code cures this problem presented in Airhart. The commentary to § 13A-8-2, asserts that the purpose of enacting the section “is to create a unified theft offense which eradicates the common law distinctions between the crimes of larceny, embezzlement, and false pretenses.” It further states that:

“Aside from the benefit of clearer language, the Criminal Code will reduce the risk of variance between pleading and proof, and upon a charge of theft will allow a conviction upon evidence of the commission of any one of the traditional offenses of larceny, embezzlement, or false pretenses. The gist of the offense will be ‘the obtaining of control over property in which another had an interest and the deliberate diversion of it for the offender’s own purposes.’ Michigan Revised Criminal Code § 3208, Commentary at 227.” Commentary, § 13A-8-2, page 268.

For a variance to be material, it must mislead the accused or be substantially injurious to him in making his defense. Coker v. State, 396 So.2d 1094, (Ala.Cr.App.1981).

As stated in House v. State, 380 So.2d 940, 942-43 (Ala.1979):

“The policy behind the variance rule is that the accused should have sufficient notice to enable him to defend himself at trial on the crime for which he has been indicted and proof of a different crime or the same crime under a different set of facts deprives him of that notice to which he is constitutionally entitled.
“This court has stated the policy behind the fatal variance rule as follows: ‘The purpose of the rule is for identification and notice to defendant, and if those purposes are met no substantial injury to defendant results.’ ”
“The law of this state is well settled that ‘[t]here is no material variance where there is proof of so much of an indictment as shows the defendant committed a substantial offense specified therein.’ ” (citations omitted)

In Green v. State, 377 So.2d 4 (Ala.Cr. App.1979), defendant was indicted for the grand larceny of “$436.00 in lawful United States Currency, Proof at trial established that the defendant stole “$400 in cash, $30 in food stamps, and a credit due bill for $6.26.” This court, after reviewing several similar cases involving such a variance between the indictment and proof, found the above variance “not ... harmful to the defendant.” Id. at 8. In so holding, we stated:

“Here, the indictment was sufficient (1) to identify the charge lest the defendant should be tried for an. offense different from that intended by the grand jury, (2) to enable the defendant to prepare for his defense, (3) to protect the defendant against the possibility of being twice put in jeopardy for the same offense, and (4) to enable the court, after conviction, to pronounce judgment on the record. Sanders, 289 Ala. [224] at 228, 266 So.2d 802.”

Thus, we find the variance between indictment and proof in the instant case not misleading to appellant or substantially injurious to him in preparing his defense. Therefore, the variance is not “material” within the Coker definition.

Ill

The trial court committed no abuse of discretion in refusing to allow appellant’s expert witness to testify to the reasonable cost of painting and scraping the Branch house. The expert had no firsthand knowledge concerning the area of Branch’s house to be painted or its condition prior to appellant’s scraping. In addition, the expert had no knowledge of the type of materials, if any, used for preparing Branch’s home for painting and he did not know the type of paint to be used. There was no other evidence as to these matters. Further, there was no evidence of what percentage of the total cost was for materials. The testimony of appellant’s expert unequivocally established'his lack of knowledge of the facts. Absent such information, there was nothing upon which he could base an opinion. White v. State, 294 Ala. 265, 314 So.2d 857 (1975); Kozlowski v. State, 248 Ala. 304, 27 So.2d 818 (1946); Rhodes v. State, 232 Ala. 509, 168 So. 869 (1936).

The judgment of the circuit court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Bernard LEWIS v. STATE.
    6 Div. 114.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.

      Michael C. Cornwell, Asst. Public Defender, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty under an indictment charging in pertinent part:

“Bernard Lewis ... did, possess a tool, instrument, or other article, to-wit: a set of bolt cutters, which is adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises, or theft by a physical taking, with the intent to use the same, in the commission of an offense involving forcible entry into premises or theft by a physical taking, in violation of § 13A-7-8 of the Code of Alabama.”

This appeal is from a judgment of conviction and sentence to imprisonment for two years.

We will condense our summary of the facts to that part of the evidence that has a bearing upon the single issue presented on appeal.

Police Officer Luther Latner testified that while he was patrolling in an automobile in a particular area of the city of Tuscaloosa at approximately 11:25 P.M. on May 19, 1982, the following occurred:

“I was heading west and I had just come from the Grant’s here and Mr. Quik. I had passed the 15th Avenue exit going that way, and I was heading west here. And when I got I don’t know how far inside before I got to 16th Avenue, I saw two black males coming kind of an angle. And they had another car over here. And when I saw them, they saw me and they ducked behind the car. (Indicating).
“When I saw the subjects there and they were behind the car, I went on past. The subjects got up and went across into the parking lot at Roger Manor Apartments.”

Officer Latner further testified that he drove around with the lights of his automobile out most of the time, arrived at the Roger Manor Apartments and walked up toward the laundromat and saw this appellant therein. He said he “could see two, kind of looked like tire tools sticking out of his shirt” and “could see the two bar parts up on top.” He further testified:

“I reached over, grabbed the two things that I saw sticking out of his shirt, and pulled them out and found out it was a set of bolt cutters, sir.
“Q. All right. Now, Officer Latner, did you place him under arrest at that time?
“A. Yes, sir, I did.
“Q. And did you put any cuffs on him or anything of that nature at that time?
“A. Yes, sir, I did.
“Q. Now, Officer Latner, after you apprehended Mr. Lewis, what, if anything, occurred at that time?
“A. After I had Mr. Lewis in custody and had him in handcuffs, another subject come out of the stairwell; come out between the apartments through that stair place; saw me and I saw him. I yelled for him to halt. I called him by name, but he did not and he run back through the stairwell, sir.
“Q. Did you recognize the individual when he stepped out?
“A. Yes, sir, I did.
“Q. And who was that individual?
“A. The subject’s name was ‘Eric Hard-away.’ ”

According to the undisputed evidence, Eric Hardaway was never apprehended, although Officer Latner and other officers attempted to locate him.

According to further testimony of Officer Latner, after he had placed the appellant under arrest and had him to get in the officer’s automobile, then, Officer Latner informed the appellant of his constitutional rights, including his Miranda rights, and obtained a voluntary oral statement from the appellant, in which the appellant said that “he was walking home and that the bolt cutters belonged to a friend of his named ‘Eric’ and he was just holding the bolt cutters for him.”

According to the testimony of the defendant, just a few moments before he was arrested he saw Eric Hardaway, that Hard-away had a pair of bolt cutters in his back pocket and asked the defendant “would I hold them for him while he run across the street to Mr. Quik to get a pack of cigarettes.” The defendant testified in effect that his only occasion or reason for possessing the bolt cutters at the time was to comply with the request of Hardaway, and that he had no plans to use the cutters or to participate in their use. During the defendant’s testimony, he denied that he had signed the waiver of rights form, that Officer Latner had stated that the defendant had signed, and defendant denied that his purported signature thereon was his own signature. He further said that he did not “remember him [Officer Latner] reading me any rights at all.”

At the conclusion of the defendant’s testimony, the State called Officer Latner in rebuttal, and Officer Latner testified unequivocally that defendant did sign the waiver of rights form.

Appellant’s only insistance on a reversal is thus captioned in his brief:

“The trial court erred to reversal by overruling defense objection and by denying a defense motion for a mistrial where said objection and motion were made in response to the prosecutor’s questions regarding appellant’s election to remain silent after being advised of his constitutional right to do so.”

Appellant relies upon Houston v. State, Ala.Cr.App., 354 So.2d 825 (1977), cert. denied, 354 So.2d 829, Wilkinson v. State, Ala.Cr.App., 361 So.2d 400 (1978), cert. denied, 361 So.2d 405, and other cases for his insistence that the admission in evidence of post-arrest silence of an accused “violates the due process clauses of both Federal and State Constitutions” and that “his silence can be attributed to reliance on his Constitutional right.” The case sub judice, however, is not a case in which defendant chose to remain silent or in which there was any effort to show that he remained silent. There was complete harmony between what the defendant testified as to what he said and what Officer Latner testified that defendant said as to his reason for having the bolt cutters in his possession at the time he was observed and arrested by Officer Latner. The question asked Officer Latner by the State, the objection made by defendant, the ruling of the court, and the answer of Officer Latner are to be found in the following excerpt from the transcript during the redirect examination of Officer Latner:

“Q. Officer Latner, after you got him to sign that particular form, did you ask him whether or not he would give you a written statement?
“A. Yes, sir.
“MR. CORNWELL [Defendant’s Attorney]: Now, Your Honor, we are going to object to that.
“THE COURT: State your grounds.
“MR. CORNWELL: Whether or not Mr. Lewis has to make any statement?
“MR. LEMLEY [State’s Attorney]: No, we just—
“THE COURT: Read the question back, please.
“(Requested portion read.)
“THE COURT: Do you object to that?
“MR. CORNWELL: Sir?
“THE COURT: Do you object to that?
“MR. CORNWELL: Yes, sir.
“THE COURT: State your grounds, please.
“MR. CORNWELL: I think it’s a comment on Mr. Lewis’ not making a statement at that time. When the officer has read him his constitutional rights and then to try to introduce testimony that he chose to remain silent after that, it’s clearly prejudicial and erroneous.
“THE COURT: The answer to that question would be yes or no. I overrule.
“Q. Did he make a—
“MR. LEMLEY: I’m sorry. Could you reread the question? I apologize. The specific question I asked.
“(Requested portion read.)
“Q. Did you ask him?
“A. Yes, sir, I asked him.
“Q. Now, prior to this time had he made an oral statement to you?
“A. Yes, sir, he had.
“Q. And then once you got to the statement, you filled out this explanation of rights form.
“A. Yes, sir, I did.
“Q. And the standard procedure to fill out that explanation of rights form before you take a written statement—
“A. Correct.
“MR. CORNWELL: We object to leading, Your Honor.
“THE COURT: Don’t lead him, please.
“MR. LEMLEY: I’m sorry.
“Q. What procedure do you follow before you take a written statement from the defendant?
“A. Make sure his rights have been read, get him to sign a rights paper saying he has read his rights and he understands them and that he’s giving the statement on his own free will, sir.
“MR. LEMLEY: No further questions.
“MR. CORNWELL: No further questions, Your Honor.”

We are unable to agree with contentions found in appellant’s brief that “State’s attorney rather than avoiding any reference to Mr. Lewis’ not giving a written statement, intentionally injected the matter of the Waiver Form to lead up to an obvious conclusion that Mr. Lewis refused to give the officer a written statement” and that the “State’s prosecutor intentionally violated” the rule stated in United States v. Wycoff, 545 F.2d 679 (9th Cir.1976), that “Counsel for the prosecution must scrupulously avoid all reference to or use of an accused’s assertion of his right to remain silent.”

We acknowledge our inability to understand fully the actions of all concerned in this case, but we are convinced that no error prejudicial to defendant was committed by the trial court as claimed by the only issue presented by appellant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.