author: TYSON, Judge.

text:
    Charlie JOHNSON v. STATE of Alabama.
    8 Div. 29.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1079.
    M. U. Griffin of Griffin & Griffin, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   ON REHEARING

TYSON, Judge.

On May 8, 1984, this court unanimously affirmed this cause without opinion. 453 So.2d 8.

Because counsel has filed a request for a statement pursuant to Rule 39(k) and Rule 40 ARAP, this court sets forth the following as its opinion.

Charlie Johnson was charged in a two count indictment with the unlawful sale of Diazepan, a controlled substance, in violation of the Alabama Uniform Controlled Substances Act of 1971. Following a jury trial, the appellant was found “guilty as charged”. A sentencing hearing was conducted and no prior felonies were found, but the appellant was sentenced to two years’ imprisonment because of the sale of an unlawful drug. Appellant’s motion for a new trial was overruled following a hearing.

Diane Etterly testified she was employed by the Russellville Police Department as a Narcotics Investigator. She stated that she had worked for several police departments in the North Alabama and Tennessee Valley area. In October of 1982, she was on loan to the Huntsville, Alabama Police Department and also worked with the Sheriff’s Department of Madison County. On October 5, 1982, while working with Deputies Al Duffey and Sam Goins, she went to the home of one Charlie Johnson, located at 1217 Rison Avenue, and blew the horn. She stated that this place had been pointed out to her by Deputy Duffey. She stated that a person, who came out and was introduced to her as the appellant and identified himself as Charlie Johnson, began talking with her. She said she had an informant with her but that she did not know his name and was simply introduced to the informant by an alias. After being introduced to the appellant by the informant, she told the appellant that she wanted some valium. The appellant then went back inside and came back out in a few minutes and sold her a packet of twenty tablets for $20.00. She identified them as a small bluish tablet which had the word “Roche” on them. She stated that she then placed these tablets in a zip-lock bag, marked it with her name and the date and the name of the appellant. She then turned these over to Deputy Duffey. On cross-examination, she testified that she had been working in law enforcement for about six years. She testified that she was not sure that the appellant had any prior record, that she had looked at some police identification matters prior to going to appellant’s home. She stated that she did not know whether they were convictions or simply the charges. When asked specifically about a burglary, she said, “I think there was one burglary, I’m not sure if there was a conviction or not. I’m not sure what the others were.” Then she further stated, “I never said he was convicted of anything.” (R. 27). All of this was brought out on cross-examination of the officer by the appellant’s counsel.

Deputy A1 Duffey testified that he knew Diane Etterly, that she had worked as an undercover agent with the Sheriff’s Department of Madison County in September and October of 1982. He stated that she went to the home of the appellant on October 5, 1982 and made a purchase of twenty valium tablets, brought them back to him marked with the date, time of purchase and amount paid the appellant, namely $20.00. He stated that he then turned over this package to Lt. Jack Hennessy of the Madison Sheriff’s Department. Lt. Hennessy said he kept it in his control for two days and on October 7, 1982, took the packet of the blue valium tablets to Ms. Martha Odom at the Department of Forensic Sciences in Huntsville.

Ms. Odom testified that she made an analysis of the valium tablets and determined that they were, in fact, valium and that they were known as Diazepan, which is a tranquilizer, and requires a prescription of a medical practitioner and that they are on the Controlled Substances list.

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

The appellant took the stand and testified that his name was Charlie Johnson, that there was another Charlie Johnson living in the area in Huntsville who had also been charged with an offense. He stated that he had lost one of his sons in September, 1982, and as a result of the death of the child, had made a trip to Indiana. He was in Indiana on the date of October 5, 1982, and was not at the residence of 1217 Rison Street. He stated he did not make the sale to Ms. Etterly or to anyone else. He testified on cross-examination that in court was the first time he had ever seen the undercover officer.

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

I

Appellant’s counsel argues three points on appeal. The first is that he avers that the State used perjured testimony in its case in chief by allowing Officer Diane Etterly to testify that the appellant had a prior criminal record when, in fact, the appellant did not, and that the State knew that such was false. It should be first pointed out that all of this information was brought out concerning any prior arrest as distinguished from convictions by appellant’s counsel on cross-examination of Officer Etterly. The State made no attempt to present any such testimony at all.

In fact, the record in the case at the sentencing hearing shows that the appellant had no prior criminal record. That is, no prior convictions. Moreover, Officer Etterly gave a negative answer by stating in response to the question, “And this Charlie Johnson you identified was a man with several criminal convictions, such as burglary?” Her response was, “I never said he was convicted of anything.” There was a subsequent discussion as to arrest, but again she said that she was not aware of these and that she had simply looked over the Madison County Sheriffs records. There was no motion or other objection to this testimony and all of it was brought out by the appellant’s counsel on cross-examination. Clearly, there was no knowing use of perjured testimony, which is the argument the appellant’s counsel seeks to here make.

In a very recent opinion of this court, Ford v. State, 445 So.2d 981 (Ala.Crim. App.1983), this same issue is discussed. This Ford case also involved a drug sale and matters brought out by defense counsel with reference to another sale. As in Ford, supra, this answers this particular allegation of appellant.

II

With reference to the name of the alleged informant who went to the home of the appellant with Officer Etterly on October 5, 1982, the officer stated she did not know the man nor know his name. She testified at trial that she simply was introduced to him by an alias and, using the alias, the informant rode with her to the home of the appellant and introduced her to the appellant. She stated that this was all she ever knew and that this was her common practice when using such an informant. Therefore, there is no violation of the rule in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

III

The third point raised by appellant’s counsel is the weight and sufficiency of the evidence when tested by his motion for judgment of acquittal or motion to exclude. As noted above, the State presented a prima facie case and the motion made by appellant’s counsel was therefore properly overruled. See Rogers v. State, 346 So.2d 29 (Ala.Crim.App.1977) and Jones v. State, 348 So.2d 1116, cert. denied, 348 So.2d 1120 (Ala.1977).

In light of the above authorities, this appeal is due to be and is affirmed.

APPLICATION FOR REHEARING OVERRULED; AFFIRMED.

All the Judges concur..


source: Caselaw Access Project

license: Public Domain

text:
    Steve Camron PERRY v. STATE.
    1 Div. 724.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied July 31, 1984.
    Certiorari Denied Sept. 21, 1984 Alabama Supreme Court 83-1284.

      Thomas M. Haas and Christopher Knight, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Steve Camron Perry was indicted for the intentional murder of one Horace Junior Goodwin, “by shooting him with a gun”, in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant “guilty of murder” and following a sentencing hearing, the trial court fixed punishment at life imprisonment.

Jimmy Johnson testified that in February of 1982 he was employed by the Baldwin County Sheriff’s Department. He stated that at approximately 11:12 p.m. on February 4, 1982, he received a call to go to Patrick’s Landing on the Tensaw River. He stated that when he arrived he found the deceased, Horace Godwin. He stated that he was the first officer at the scene and he proceeded to secure the area and recover evidence. He stated that he recovered a cap, which had Bulldog Mack Truck written on the front of it, from the inside of the houseboat. He further stated that he recovered, from the end of the wharf, a gray hood with bloodstains on it. He also found some tape which had been used to tie the hands of witnesses to the shooting, and some cartridge cases, one of which was found inside the houseboat. He stated that he turned this evidence over to Investigator Thomas Nunley.

Phyllis Godwin testified that she was the wife of the deceased. She stated that on February 4, 1982, she, Horace, and a few friends decided to go to Patrick’s Landing on the Tensaw River. She stated that she and her husband owned a houseboat which they kept at Patrick’s Landing. She stated that they arrived at the houseboat, at approximately 8:00 p.m., along with Cecil Wilson who rode with them. She said that Tony Godwin, the deceased’s brother, Willard Carter and Kim Josie were already at the houseboat when they arrived.

Mrs. Godwin testified that she and her husband carried approximately 100 Dilau-did pills and more than one pound of marijuana with them to the houseboat. She stated that earlier that afternoon she and her husband had injected some Dilaudid while at their home in Cantonment, Florida. She further stated that after arriving at the houseboat the group drank approximately three or four beers and smoked approximately three “joints” of marijuana.

She testified that at approximately 10:00 p.m., a man knocked on the door to the houseboat and asked for the location of Greer’s Landing. She stated that the man had on a baseball cap, jeans, a T-shirt, and a hooded sweatshirt. She further stated that this man had a mustache and was not very tall. She identified the appellant as the man who came to the door. She also stated that this man left and returned approximately thirty minutes later with another man.

She testified that the two men pushed open the door and both had a pistol in their hand. She said the appellant stated “you know what we’re here for and we’re going to get it” upon gaining entry into the houseboat. She said that the appellant then told his companion to tape everybody up. She stated that the man taped the hands of Tony, Cecil, and Willard. She stated that during this time Horace was trying to talk the men out of doing this act. She further stated that the men took the Dilaudid pills out of her purse. At this point she said the appellant told his companion to tape Horace’s hands, but Horace would not let him do so. She said Horace tried to grab the guns from the appellant, they struggled for a moment, and appellant’s companion told him to shoot Horace. She stated that the appellant pushed Horace to the floor and shot him. She stated that the men ran out the door and Horace jumped up and ran after them. She stated that Horace caught the men at the end of the pier and was then shot again. She stated that the men then entered a small white car and drove away. She then went and called an ambulance. She stated that they were going to take Horace to the hospital, but the tires on both pickup trucks were slashed and the keys missing.

Mrs. Godwin further testified that she identified the appellant in a photographic lineup, and later in a live lineup. She also stated that she identified the appellant’s accomplice in another live lineup.

Dr. Leroy Riddick testified that he was a forensic pathologist. He stated that he performed an autopsy on Horace Godwin. He stated that Mr. Godwin died as a result of a gunshot wound to the chest. He testified that a very small amount of Dilaudid was found in Mr. Godwin’s body fluid and no alcohol was present.

Thomas Nunley testified that he was employed as a criminal investigator for the Baldwin County Sheriff’s Department. He stated that he was called to the scene of the shooting on February 4, 1982, and while there, Deputy Johnson turned over to him evidence which was found there. He stated that he took this evidence to the lab in Mobile, Alabama.

Officer Nunley testified that on February 6, 1982, he took Willard Carter and Tony Godwin to the Pritchard Police Department to view some mug books. He stated that both of these men picked the appellant’s picture out of the books as being the man who shot Horace Godwin. He stated that until this time there was no suspect in the case. He stated that he subsequently went to the appellant’s home, recognized him from the picture Mr. Carter and Mr. Godwin picked out, and immediately read his Miranda rights to him. He said the appellant was then taken to the Mobile Police Department. He stated that the appellant was placed in a lineup and that both Mr. Carter and Mr. Godwin, at different times, identified him as the man who shot Horace Godwin. He said the appellant was then advised that he had been identified and was arrested. He further stated that the appellant agreed to be placed in the lineup.

Walter Crook testified that he was employed as a detective for the Baldwin County Sheriffs Department. He stated that on February 6, 1982, he conducted a photographic lineup with Kim Josie and Mrs. Godwin. Both women identified the appellant as the man who shot Horace Godwin. He further stated that he conducted another photographic lineup on February 8,1982, with Cecil Wilson. He stated that Mr. Wilson identified the appellant as the man who shot Horace Godwin.

Tony Godwin testified that he was the brother of Horace Godwin and that he was at Patrick’s Landing on February 4, 1982, when his brother was shot. He stated that the appellant came to the houseboat at approximately 10:15 p.m., asking for directions to Greer’s Campgrounds. He stated that the appellant returned with another man at approximately 10:45 p.m. He stated that the appellant and his companion entered the houseboat without knocking and that each of the men had a gun. He stated that the appellant’s companion taped him up and made him lie on the floor. He stated that the man then taped the hands of Cecil Wilson and Willard Carter.

Mr. Godwin testified that the men started going through Mrs. Godwin’s purse. He said that the appellant then told his companion to tape Horace up but Horace would not let him do so. He stated there was a struggle, the appellant’s companion said to “shoot him,” and the appellant did. He said the men ran out the door and he heard another gunshot. He stated that by the time he got outside the men were driving away in a car and his brother was lying on the wharf.

Cecil Wilson, Willard Carter, and Kim Josie all testified and they told essentially the same story about the shooting as did Tony Godwin.

The appellant did not testify in this case, however, he offered a number of alibi witnesses. These witnesses testified in essence that the appellant was at home on February 4, 1982, from 6:30 p.m. until after 10:30 p.m.

I

The appellant contends that the trial court erred in refusing his written requested charges on lesser included offenses. Specifically, the appellant argues that the State presented evidence from which the jury could find a lesser verdict than murder. He contends that his request for charges on manslaughter and criminal negligent homicide should have been granted. We disagree.

A charge on a lesser included offense should not be given when there is no reasonable theory from the evidence to support such a proposition. When the evidence clearly shows the appellant is either guilty of the offense charged, or innocent, the charge on a lesser included offense is not necessary or proper. Daly v. State, 442 So.2d 143 (Ala.Crim.App.1983); Phelps v. State, 435 So.2d 158 (Ala.Crim.App. 1983); Gwin v. State, 425 So.2d 500 (Ala. Crim.App.1982), writ quashed, 425 So.2d 510 (Ala.1983); Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); Cooper v. State, 364 So.2d 382 (Ala.Crim. App.), cert. denied, 364 So.2d 388 (Ala. 1978). “A defendant is likewise not entitled to charges on lesser included offenses when he denied committing the crime itself.” Daly v. State, supra; Wesley v. State, 424 So.2d 648 (Ala.Crim.App.1982); Williams v. State, 377 So.2d 634 (Ala.Crim. App.), cert. denied, 377 So.2d 639 (Ala.1979); Parker v. State, 337 So.2d 1378 (Ala.Crim.App.1976). Further, a court may properly refuse to charge on lesser included offenses when it is “clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense.” Phelps v. State, supra; Wesley v. State, supra; Chavers v. State, 361 So.2d 1106 (Ala.1978).

The State’s evidence made out a pri-ma facie case of an intentional killing and was in no wise refuted by the appellant. The appellant offered only evidence of alibi. The requests for instructions on lesser included offenses were properly refused in absence of any rational basis to support them. Crowe v. State, 435 So.2d 1371 (Ala.Crim.App.1983); Phelps v. State, supra; Thomas v. State, 418 So.2d 921 (Ala.Crim. App.1981); Chavers v. State, supra. From our review of this record, it is clear that the appellant either intentionally murdered the deceased or was innocent of the crime. Therefore, the trial court did not err in refusing the requested charges.

II

The appellant contends that the trial court erred to reversal in denying his motion for a new trial which was based on newly discovered evidence.

In support of his motion for a new trial, appellant called Laura Grant as a witness. She testified that in the early morning hours of February 5, 1982, at approximately 3:30 a.m., she saw the appellant’s alleged accomplice—Mitch King—in the company of the appellant’s brother. She testified that she saw these men in a nightclub in Tillman’s Corner, Alabama. She stated that she had been drinking on this occasion. She further stated that Mitch King was clean shaven on this occasion and that appellant’s brother had a full beard. She also stated that the appellant and his brother resembled one another and that she decided to come forward with this information only after learning of the appellant’s conviction in the case.

During the trial of the case sub judice, the eye witnesses to the crime each testified that the appellant, the short man, was clean shaven except for a mustache. These witnesses also stated that appellant’s accomplice, a tall man, had a full beard and mustache. Mrs. Grant stated at the motion hearing that she did not know where the men had been earlier, nor did she know who they had been with earlier.

To establish his right to a new trial based on newly discovered evidence, the appellant must show the following: (1) that evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching. Bland v. State, 390 So.2d 1098 (Ala.Crim.App.), cert. denied, 390 So.2d 1109 (Ala.1980), cert. denied, 451 U.S. 991, 101 S.Ct. 2332,68 L.Ed.2d 851 (1980); Gilley v. State, 367 So.2d 597 (Ala.Crim.App.1978), cert. denied, 367 So.2d 600 (Ala.1979); Lewis v. State, 367 So.2d 542 (Ala.Crim.App.1978); Taylor v. State, 266 Ala. 618, 97 So.2d 802 (1957). “Although a new trial may be granted on grounds of newly discovered evidence which tends to prove that the crime for which the accused has been convicted was actually committed by another, the awarding of a new trial rests in the sound discretion of the trial court, and depends largely on the credibility of the new evidence.” Peterson v. State, 426 So.2d 494 (Ala.Crim.App.1982); Prince v. State, 356 So.2d 750 (1978), and cases cited therein.

Assessing the credibility of evidence presented at a new trial hearing falls to the trial judge because he is in the best position to evaluate the new evidence in light of all that has gone before. Peterson v. State, supra; Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, cert. denied, 295 Ala. 430, 325 So.2d 539 (1976). Moreover, the decision of the trial court will not be disturbed unless an abuse of discretion can be shown. Ward v. State, 440 So.2d 1227 (Ala.Crim.App.1983); Peterson v. State, supra; Robinson v. State, 389 So.2d 144 (Ala. Crim.App.), cert. denied, 389 So.2d 151 (Ala.1980); McBryar v. State, 368 So.2d 568 (Ala.Crim.App.), cert. denied, 368 So.2d 575 (Ala.1979); Page v. State, 57 Ala.App. 265, 327 So.2d 760 (1976).

After a thorough review of the evidence presented at the new trial hearing, and the evidence presented during the trial of this cause, we find that the trial court did not abuse its discretion in denying the motion for new trial. The appellant did not establish his right for a new trial based on newly discovered evidence according to the requirements set out in Taylor and Bland.

Ill

The appellant contends that the trial court erred in denying his motion for judgment of acquittal for failure of the State to prove a prima facie case of murder where the indictment alleged the intentional killing of Horace Junior Goodwin, and the proof was that the individual killed was Horace Junior Godwin.

The appellant asserts that such a difference in the spelling of the victim’s name was a material variance between the pleading and proof, and as such it materially affected his substantial rights. To be material, a variance as to the name alleged in the indictment from that proved by the evidence must be such as to be “misleading or substantially injurious to the accused in making his defense, or to expose him to danger of a second trial on the same charge.” Jackson v. State, 412 So.2d 302 (Ala.Crim.App.1982); Rupert v. State, 45 Ala.App. 84, 224 So.2d 921 (1969). “The rule in this state is if the variance in the name be so slight as scarcely to be perceptible such variance is immaterial.” Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90, cert. denied, 258 Ala. 579, 64 So.2d 102 (1953); Aaron v. State, 37 Ala. 106 (1861). We find the above variance in the spelling of the victim's last name to be so trifling that it is inconceivable that appellant could have been misled or prejudiced thereby. See Jackson v. State, supra; Holloman v. State, 349 So.2d 131 (Ala.Crim.App.1977); Westfaul v. State, 56 Ala.App. 519, 323 So.2d 404, cert. denied, 295 Ala. 427, 323 So.2d 406 (1975); Rupert v. State, supra; Helms v. State, 40 Ala.App. 622, 121 So.2d 104, cert. denied, 270 Ala. 603, 121 So.2d 106 (1960); Hollis v. State, 37 Ala.App. 453, 70 So.2d 279 (1954); Huddleston v. State, supra; Aaron v. State, supra.

IV

The appellant’s final contention on appeal is that the trial court erred in allowing Officer Nunley to testify that Willard Carter and Tony Godwin selected the appellant, from a photographic lineup, as the perpetrator of the crime. The appellant argues that such testimony is hearsay, not subject to any exception.

This issue has been decided adversely to appellant’s position by this court in a number of cases. “A statement which is useful in identifying a person, time, place or other thing is admissible, for that purpose as a hearsay exception.” C. Gamble, McElroy’s Alabama Evidence, § 273.01 (3d Ed.1977); Coleman v. State, 443 So.2d 1355 (Ala.Crim.App.1983); Ferguson v. State, 401 So.2d 204 (Ala.Crim.App.), cert. denied, 401 So.2d 208 (Ala.1981). The fact that Officer Nunley observed a third party identify the appellant in a photographic lineup is an independent fact to which he could testify, just as to any other fact. Coleman v. State, supra; Ramsey v. State, 441 So.2d 1065 (Ala.Crim.App.1983); Dent v. State, 423 So.2d 327 (Ala.Crim.App. 1982); Ferguson v. State, supra; Abercrombie v. State, 382 So.2d 614 (Ala.Crim. App.), cert. denied, 382 So.2d 616 (Ala. 1980). Such testimony is an exception to the hearsay rule and limited for the purpose of identification. It may not be considered as evidence of the truth of the matter asserted. Coleman v. State, supra; Ramsey v. State, supra; Franklin v. State, 424 So.2d 1353 (Ala.Crim.App.1982); Dent v. State, supra; Ferguson v. State, supra; Abercrombie v. State, supra.

We have carefully reviewed the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Charles Lewis WALLER v. STATE of Alabama.
    1 Div. 740.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    John D. Whetstone, Gulf Shores, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Callen Sparrow, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Charles Lewis Waller was charged by indictment for the unlawful possession of marihuana and Pentazocine, both controlled substances, in violation of the provisions of the Alabama Uniform Controlled Substances Act, a violation of § 20-2-70, Code of Alabama 1975 as amended.

The jury found the appellant “guilty of possession of controlled substances” and following a sentencing hearing, the trial court fixed punishment at 15 years’ imprisonment.

On December 14, 1982, Baldwin County Deputy Sheriff Gary Smith was directed to serve some papers revoking the probation of one Calvin Dubose. He had been by the home of Dubose twice making inquiry and had been unable to locate him.

Later that afternoon, he was riding down the road between Spanish Fort and Daphne and turned down a county road through a wooded area when he observed a white Oldsmobile parked with three black males in same. He noticed Calvin Dubose seated on the passenger side in the front seat, that the appellant, Charles Lewis Waller, was seated on the driver’s side on the front seat and the brother of Calvin Dubose, Morris Dubose, was seated on the rear seat. Deputy Smith drove to within about “15 feet or so” of the Oldsmobile, got out and directed Calvin Dubose to get out of the car. He stated that he could see a “frenzie-type movement” inside the car as he approached same and he noticed that Dubose was very slow in responding and that he told him to place his hands on the car. As he did so, he saw a syringe lying on the floorboard on the passenger side where Dubose had been seated. He then handcuffed Calvin Du-bose and placed him in the rear of his car and radioed for assistance. State Trooper Larkus Smith arrived a few minutes later and the two then directed the appellant, Charles Waller, to get out of the car and, as Waller did so, he threw something toward the bushes a short distance away. Deputy Smith stated that Waller’s speech was slurred, that he acted “kind of lackadaisical”, unsteady on his feet and had bloodshot eyes. He stated there was a strong odor of smoke about the car and that, after Waller got out, he noticed some hand rolled cigarettes lying on the seat and some cigarette buts in the ashtray. He found a second syringe under the front seat on the driver’s side and, on looking in the bushes, found a white plastic bottle cap which contained a blue-greenish powder “three to four feet from the vehicle”. He stated they also found another syringe outside the car. The syringes and the bottle cap were seized and taken, subsequently, to the State Toxicologist’s Office for examination.

Deputy Smith testified he had what appeared to be “healed scar marks on his forearm” which appeared to be from prior use and that there were some “fresh marks and blood dripping from his veins.” He stated that the appellant appeared to have been using some combination of drugs which included Talwin or a combination of Talwin and Ritlin, which is used with human blood and “reaches the blood stream faster.” He stated these sets are commonly called “T’s and Blues”. He stated that two additional syringes were found.

Deputy Smith then identified the package containing the items seized at the scene which were delivered to the State Toxicologist’s Office.

Trooper Larkus Smith testified that on the afternoon of December 14, 1982, he responded to a call of Deputy Smith and assisted in the arrest of the appellant. He stated that at the time of the arrest the appellant’s speech was slurred and incoherent and he appeared to be “spaced out” and staggered as he was unsteady on his feet.

Deputy Carl Cherry corroborated the other two officers’ testimony.

Taylor Noggle testified that on January 3, 1983, he received a packet from the Baldwin County Sheriff’s Department which contained one white bottle cap, some syringes, some needle covers for the syringes, plungers and three partially smoked, hand rolled cigarettes.

He weighed the material contained in the bottle cap and found that it was .505 grams of a substance “containing Pentazocine and Tripelennamine” and that these were substances listed in the Alabama Uniform Controlled Substances Act. He also determined that the plant material consisted of .04 grams of marihuana.

He further testified that he examined two syringes and found that they contained “Tenazocine”.

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

The appellant took the stand and testified that he lived in Daphne, Alabama, was married with two children and worked at the Fairhope Municipal Airport. He stated that he had been undergoing drug treatment, voluntarily, at Doctor’s Hospital. He stated that he had had problems with drugs and had voluntarily entered the treatment program. He stated that earlier that day Deputy Smith had come by his home looking for Charles Dubose and he told Deputy Smith that Dubose lived on Yancey Road, but that he did not know him.

However, later that day, Dubose came by a store where appellant was and asked him to play basketball with Dubose and his brother and they rode off. He stated that Dubose had gotten out of the car and that the Deputy dragged him out of the car and claimed that he had been using some drugs in the syringe. He stated that there were no “caps” on the backseat and he stated that he had been on the drug program and had not been “using anything” since he had been on the drug program. On cross-examination he stated that at one time he had used “T’s and Blues”. He contended that Calvin Dubose threw the cap out of the car and denied, seeing Calvin use the syringe that afternoon.

I

Appellant first contends that the indictment in this cause was fatally defective because it charged the appellant with the unlawful possession of two controlled substances, one of which was a felony and the other a misdemeanor, contrary to law.

We have carefully examined this record and find there was no challenge to the indictment either by objection, motion or demurrer filed in the trial court. Moreover, where, as here, the charge against the appellant in the indictment embraces both a felony and a misdemeanor, the rule of law against joinder of felonies and misdemeanors has no application to an indictment under § 20-2-70, Code of Alabama 1975, since the charged felony includes a misdemeanor by operation of law. Coleman v. State, 344 So.2d 1249 (Ala.Crim.App.1977), Shultz v. State, 437 So.2d 670 (Ala.Crim.App.1983).

II

We have carefully considered the evidence as set forth in this opinion and determined that Deputy Smith clearly had probable cause to arrest and search the appellant and the Dubose brothers based upon his observations of them in the automobile when he approached the car. Deputy Smith testified that he observed a syringe lying on the floorboard and detected the odor of smoke which was determined to be marihuana. He saw appellant throw a cap into the bushes a few feet from the car. . He found a second syringe under the driver’s seat of the Oldsmobile in which the appellant had been seated. Based upon the appellant’s conduct and behavior at the scene, clearly, Deputy Smith had probable cause to effect the arrest and make the search of the vehicle which revealed the drugs in question. We determine that the opinion of the Supreme Court of the United States in United States v. Ross is disposi-tive of this matter. United States v. Ross, 456 U.S. 798,102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Also, Vogel v. State, 426 So.2d 863 (Ala. Crim.App.1980), affirmed, Vogel v. State, 426 So.2d 882 (Ala.1982). See also, Durden v. State, 394 So.2d 967 (Ala.Crim.App.1980), cert. quashed, 394 So.2d 977 (Ala.1981); Sterling v. State, 421 So.2d 1375 (Ala.Crim.App.1982).

Ill

Appellant contends that the evidence was insufficient to support a conviction in this cause. We have carefully detailed the arresting officers’ testimony and determined that the facts and circumstances give rise to probable cause to effect the arrest and search of the appellant, Waller, and his two companions, the Dubose brothers. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Section 15-10-3, Code of Alabama 1975.

Based upon the arresting officers’ testimony and the toxicologist’s examination of the drugs seized, it is clear that the State of Alabama presented a prima facie case. Vogel, supra and Tice v. State, 386 So.2d 1180 (Ala.Crim.App.1980), cert. denied, 386 So.2d 1187 (Ala.1980); Durden, supra; Reed v. State, 401 So.2d 131 (Ala.Crim.App.1981), cert. denied, 401 So.2d 139 (Ala.1981).

We have carefully examined this record and find no error. The sentence of the trial court is within the statutory limits. The judgment is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Mary Lee CHAMBERS v. STATE.
    1 Div. 789.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.

      Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

The appellant, Mary Lee Chambers, was indicted on June 1, 1988, by the Mobile County Grand Jury for the crime of murder. Appellant later pled not guilty to the indictment and was tried on December 13 and 14, 1983. The jury found her guilty of the lesser offense of manslaughter, and the Court sentenced her to ten years’ imprisonment in the penitentiary.

A review of the facts reveals that on April 7, 1983, the Mobile Fire Department received a call regarding a life threatening situation. The paramedics arrived at the emergency address and were greeted by a black female in the yard who stated that she thought her child had stopped breathing. Upon entering the residence, the paramedics found a three year old black female lying across a bed. They testified at the appellant’s trial that the child was cool to the touch, cyanotic and without any vital signs present.

The autopsy performed by Dr. Gary Cumberland, a certified pathologist, revealed externally numerous bruises and scars on the body of the deceased. He further testified that a compression abrasion inside the lip, which would be consistent with a gag or a cloth-like material tied very tightly into the mouth, was found. The pathologist also observed a bruise or contusion on the front part of the neck consistent with injury caused by a type of cloth having been tied around the neck, and U-shaped contusions on the back side of the legs which coincided exactly with the dimensions of the distal portion of a piece of electrical cord found in the house. Dr. Cumberland testified that, on the basis of his examination, the cause of death of the child was “asphyxia secondary to obstruction of the airway.”

The first issue for our consideration is whether the trial court erred in denying the appellant’s motion to suppress statements made by the appellant supposedly induced by promises of leniency on the part of the law enforcement officers.

In support of her assertion, appellant relies on the premise that a confession is not admissible if it is induced by promises encouraging the accused to believe that his or her case will be lightened or meliorated and dealt with more favorably. Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583 (1975).

We have meticulously searched the record for any statements the law enforcement officers made to the appellant that would suggest some type of leniency if she would confess and have found none. Several statements made by the officers during the interrogation urged the appellant to tell the truth, but such statements are permissible. Eakes v. State, 387 So.2d 855 (Ala.Crim.App.1978). Statements made by law enforcement officers during the questioning of an accused that it would be better for him to tell the truth and statements that the accused has lied do not render any subsequent confessions or statements that the accused makes inadmissible. Furthermore, confessions or statements are not inadmissible because they have been obtained by propounding to the accused questions assuming his guilt. Golden v. State, 439 So.2d 813 (Ala.Crim. App.1983); Raines v. State, 428 So.2d 206 (Ala.Crim.App.1983); and Bennett v. State, 409 So.2d 936 (Ala.Crim.App.1981), cert. denied, 409 So.2d 936 (Ala.1982).

The use of an accused’s statements for trial purposes has been extensively litigated. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), advanced the proposition that exculpatory or inculpatory statements stemming from custodial interrogation may be used at the accused’s trial if procedural safeguards were implemented to insure the accused’s rights against self-incrimination. Miranda, supra, sets forth specific measures that should be followed prior to questioning an accused person. The person “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda, supra. See also Romine v. State, 384 So.2d 1185 (Ala.Crim.App.1980). These rights may be waived if the waiver is made voluntarily, knowingly, and intelligently. Miranda, supra.

In the case at bar, the appellant affirmatively waived her “rights” and answered the law enforcement officers’ questions. The trial judge conducted a hearing outside the presence of the jury on appellant’s motion to suppress statements she made at her custodial interrogation. The court found that the statements were voluntarily made and were not induced by threats or promises operating to lead the appellant to believe she would be harmed if she did not make a statement or gain any favor by making a statement.

Hale v. State, 420 So.2d 821 (Ala. Crim.App.1982), held that the question of whether a statement is made voluntarily is one of law and should be determined by the trial judge. See also Myers v. State, 401 So.2d 288 (Ala.Crim.App.1981). In considering whether a confession or inculpatory statement is voluntarily made, the trial judge need only be convinced from a preponderance of the evidence as to the rules of voluntariness. Hale, supra, and Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). Furthermore, this court has consistently held that it will not overturn a trial court’s finding as to the issue of voluntariness of a statement unless his decision is wrong and against the great weight of authority. Raines v. State, 428 So.2d 206 (Ala.Crim.App.1983); Snider v. State, 422 So.2d 807 (Ala.Crim. App.1982); Morgan v. State, 363 So.2d 1013 (Ala.Crim.App.1978); Hurst v. State, 356 So.2d 1224 (Ala.Crim.App.1978); Carter v. State, 53 Ala.App. 43, 297 So.2d 175 (1974); McNair v. State, 50 Ala.App. 465, 280 So.2d 171 (1973). “Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty”. Bennett v. State, supra; Snider, supra, and McNair, supra.

On the other hand, the credibility and weight to be given any statement that an accused makes is a determination for the jury. Snider, supra; Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976). “Once a confession has been admitted into evidence, the jury may consider the circumstances in which the confession was obtained and the way by which it was elicited in determining the credibility of the evidence and the weight to which it is given in reaching their decision.” Snider, supra; Lewis, supra.

Proper procedures were followed by the trial judge in the present ease in determining the voluntariness of the appellant’s statement and also the statement’s admission into evidence. The statement was then properly weighed by the jury in reaching their verdict.

Lastly, the appellant argues that the court erred to reversal in charging the jury as to “universal malice murder” when the indictment only charged the appellant with murder pursuant to Section 13A-6-2(a)(l) Code of Alabama, 1975.

The trial court did in fact commit error by reading the “universal malice murder” charge, but the error became harmless when the jury returned a guilty verdict of manslaughter, a lesser offense. See Hutcherson v. State, 441 So.2d 1048 (Ala. Crim.App.1983); Weaver v. State, 35 Ala. App. 158, 44 So.2d 773 (1950); Garrett v. State, 33 Ala.App. 168, 31 So.2d 151 (1947); and Thompson v. State, 131 Ala. 18, 31 So. 725 (1902).

We completely agree with appellant’s contention that Ex parte Washington, 448 So.2d 404 (Ala.1984), established the principle that an accused may not be indicted for murder pursuant to Section 13A-6-2(a)(l) and the jury later charged with “universal malice murder” as an option for their consideration. However, as the State asserts in its appellate brief, Washington, supra, and Thomas v. State, 452 So.2d 899 (Ala. Crim.App.1984), a recent decision of this court, the facts in these cases are distinguishable from the facts in the case at bar. Here, the appellant was indicted for murder and yet received a lesser conviction of manslaughter, even though one of the charges to the jury was “universal malice murder” and therefore improper. The jury chose not to rely on the improper charge, but decided to follow a different course and convict the appellant of a crime of lesser-degree. If the jury had convicted the appellant of “universal malice murder”, as in the case of Washington, supra, then prejudicial error would have occurred and a reversal and remandment would be appropriate measures.

Therefore, this court having searched the record and found no errors injurious to the appellant’s substantial rights, the decision of the trial court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: TAYLOR, Judge.

text:
    James E. HARDING v. STATE.
    3 Div. 39.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    James Edward Harding, pro se.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

In this case, issues have been raised by the petitioner which ordinarily require a hearing. The State of Alabama does not disagree, but rather has filed a motion asking that this cause be remanded for a hearing on the petition for writ of error coram nobis.

We must remand this case with instructions to the circuit court to conduct a hearing.

REMANDED WITH DIRECTIONS.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Joan Connie BLOCK v. STATE.
    4 Div. 311.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.

      Samuel J. Clenney, III, Abbeville, for appellant.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

Joan Connie Block was indicted and convicted for robbery in the first degree in violation of Alabama Code 1975, § 13A-8-41. Sentence was 30 years’ imprisonment. Two issues are raised on appeal.

I

Mrs. Block’s appointed appellate counsel argues that the trial court erred “in allowing the prosecutor to continually point to appellant’s post-Miranda silence as evidence of guilt.” We find no merit to this contention for three reasons.

Initially, we note that this issue has not been preserved for review. At trial, there were no objections to the prosecutor’s question of Mrs. Block, “If you are innocent, why didn’t you tell them (police) that?” and “You refused to talk to them and this is the first time that any law enforcement officer has heard this story is right now, isn’t it?” The general rule is that even constitutional rights have to be seasonably raised in the trial court before they will be considered by this Court. Steele v. State, 289 Ala. 186, 189, 266 So.2d 746 (1972); Charley v. State, 204 Ala. 687, 87 So. 177 (1920); Smith v. State, 439 So.2d 1336 (Ala.Cr.App.1983). See also Marsden v. State [Ms. 83-292, July 6, 1984] (Ala.1984); Watts v. State [Ms. 82-676, December 9, 1983] (Ala.1983) (arraignment waived by pronouncing ready to proceed with trial and by remaining silent until after verdict).

In connection with this issue, we observe that Mrs. Block represented herself at trial. Although appointed counsel was present to act as her “legal adviser”, his role was severely limited.

“MR. CLENNEY [Defense Counsel]: Your Honor, I have a question. It is my understanding that the Defendant doesn’t wish for me to make any independent motions such as objections or any motions. Is that correct?
“MRS. BLOCK: Yes.”
“THE COURT: And, you will make your own objections?
“MRS. BLOCK: Yes. I will, sir.”
“THE. COURT: And, do the questioning of the witnesses?
“MRS. BLOCK: Yes, I will.
“THE COURT: Now, you understand that you are a layman, but that you are going to be held to the same standards that a lawyer would be? You will not be able to get into evidence anything that is not legal evidence?
“MRS. BLOCK: Yes. I understand.
“THE COURT: You will be held to the same standard as if you were an attorney. In other words, you can’t introduce any evidence unless it is legal evidence. And, the questions you ask the witnesses will have to be framed in the proper way. You understand that?
“MRS. BLOCK: Yes.
“THE COURT: Okay. And knowing all of that, you still want to represent yourself?
“MRS. BLOCK: Yes, I do, sir.
“THE COURT: Okay.”

Mrs. Block chose to represent herself at trial after being warned that she would not be given any special consideration. Now, she must bear the consequences of her decision.

A second reason why Mrs. Block cannot claim foul by the prosecutor’s use of her post-Miranda silence is because it was Mrs. Block’s own cross examination of Do-than Police Corporal Jackie Mendheim that initially placed her failure to make a statement before the jury. “An accused cannot by his own voluntary conduct invite error and then seek to profit thereby. It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choice.” Aldridge v. State, 278 Ala. 470, 474, 179 So.2d 51 (1965).

Finally, we note that, on cross examination, Mrs. Block testified that she “told some things to Lieutenant Lee and some of the women matrons what had happened” and that she “tried to tell the Sheriff about things and he wouldn’t even listen to” her.

II

Our review of the evidence convinces us that Mrs. Block was a participant in the robbery of the Headland Jewelry Company on September 13, 1982. The evidence is clear that Mrs. Block and her husband drove their automobile around to the back of the building where they both put on wigs. Mrs. Block helped her husband put on his wig. Mr. Block then robbed the jewelry store, returned to the car where Mrs. Block had been waiting and said, “Get out of here in a hurry.” Mrs. Block had been in the store shortly before the robbery.

Mr. and Mrs. Block were apprehended in Dothan and transported back to Henry County. Mrs. Block led law enforcement authorities to the jewels taken in the robbery, which had been buried in a cemetery in Newton.

Mrs. Block was guilty as an accomplice. Alabama Code 1975, § 13A-2-23. Under § 13A-8-41(b), Mr. Block’s assertion that he had a bomb in the bag he was carrying was prima facie evidence that he was armed with a deadly weapon. “An aider and abettor may be indicted directly with the commission of the substantive crime and the charge may be supported by proof that he only aided and abetted in its commission.” Killough v. State, 438 So.2d 311, 323 (Ala.Cr.App.1982), reversed on other grounds, Ex parte Killough, 438 So.2d 333 (Ala.1983). “[0]ne indicted as the actual perpetrator of a crime may be convicted of such upon proof of a conspiracy although not charged with such.” Kendrick v. State, 311 So.2d 1112, 1114 (Ala.Cr.App.), cert. denied, 377 So.2d 1114 (Ala.1979).

On appeal, Mrs. Block has filed certain papers which this Court treats as a pro se brief. Mrs. Block complains about the conditions of her confinement in the Henry County Jail. She also alleges that the arrest warrant was defective, that pending trial she was held without bond, that the grand jury was drugged, that she was not tried within .180 days, that she was denied the effective assistance of counsel, that witnesses perjured themselves, and that the trial judge was a personal family friend. Mrs. Block requests a complete investigation of her allegations. These contentions are unverified and without any type of support.

Prior to trial, Mrs. Block requested and received a psychiatric evaluation. She was found to be sane at the time of the crime and competent to stand trial, with “an absence of any psychotic features.”

On the record presented to this Court, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Tommy Joe McCURLEY v. STATE.
    4 Div. 339.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    H.J. Martin, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

In cases which the trial judge described as “somewhat bizarre or sensational”, Tommy Joe McCurley was sentenced to two terms of 99 years’ imprisonment after pleading guilty to two indictments charging rape in the first degree in violation of Alabama Code 1975, § 13A-6-61. The sentences are to run consecutively.

I

The victim in each case was a young child, one eleven years old and the other eight. The trial judge did not abuse his discretion in permitting the prosecutor to ask leading and suggestive questions of these two children on direct examination. “It is usual and proper for the court to permit leading questions in conducting the examination of a witness who is immature, ... ignorant of, or unaccustomed to, court proceedings, inexperienced, unsophisticated, ... terrified, or timid or embarrassed while on the stand, lacking in comprehension of questions asked or slow to understand.” 98 C.J.S. Witnesses § 332 (1957). “[LJeading questions are permissible to arrive at the facts when modesty or delicacy prevents full answers to general interrogatories, such as in a trial for a sexual offense.” 81 Am.Jur.2d Witnesses § 430 (1976). The discretion of a trial judge in allowing leading questions is especially broad in prosecutions for sexual offenses involving young children. Hammock v. State, 401 So.2d 292, 293 (Ala.Cr.App.1981); Baxter v. State, 360 So.2d 64, 65-66 (Ala. Cr.App.1978); C. Gamble, McElroy’s Alabama Evidence § 121.05(8) (3rd ed. 1977).

“The rule against asking leading questions of one’s own witness on direct examination is not an absolute rule of exclusion. Rather, the allowance of leading questions on direct examination is within the discretion of the trial judge. Leading questions on direct examination are allowed under special circumstances which make it appear that the interests of justice require them, and determination of whether special circumstances justify direct examination of a witness by leading questions is a matter lying within the sound judicial discretion of the trial judge.” 81 Am.Jur.2d Witnesses § 430 (1977).

Additionally, we note that McCurley waived this issue by pleading guilty. “It is universally held that a voluntary plea of guilty waives all nonjurisdictional defects.” Lane v. State, 412 So.2d 292, 294 (Ala. 1982); Dingler v. State, 408 So.2d 530 (Ala. 1981).

II

The defendant’s argument that his guilty pleas were accepted without the establishment of any factual basis for the offenses is simply without merit and is not supported by the record.

The defendant decided to plead guilty after trial had begun and one day of testimony had been completed. During that day both victims had testified in detail to their sexual encounters with the defendant. The testimony of either victim was sufficient to establish a prima facie case of rape in the first degree. In accepting the pleas, the following question was asked:

“THE COURT: To that charge and under those facts as set forth in that indictment and the facts as you have heard them here in the Courtroom, how do you plead to the charge of rape in the first degree, guilty or not guilty?
“THE DEFENDANT: Guilty.” (Emphasis added).

“[A] factual basis for accepting a guilty plea may be established by several sources, including a prosecuting attorney’s assertions of what he expects the evidence to show.” Yamada v. State, 426 So.2d 906, 909 (Ala.1982). See also Russell v. State, 428 So.2d 131, 135 (Ala.1982). “As long as the factual basis is developed on the record, it may come from several sources." United States v. King, 604 F.2d 411, 414 (5th Cir.1979).

The record contains a colloquy which satisfies the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The guilty pleas were voluntarily and intelligently entered.

III

The record also shows that the trial judge adequately informed the defendant of the minimum and maximum possible sentences he could receive. The trial judge instructed the defendant that “if you plead guilty in both cases, I would be required to sentence you to some period of time in the penitentiary of the State of Alabama in both cases.... ⅜ * * And that period of time could run for a minimum of ten years up to a maximum of life or ninety-nine years in prison .... * * ⅝ [And] that there could be a possible fine in each of the cases in an amount up to twenty thousand dollars.” (Emphasis added).

Additionally, the prosecution made it clear that its recommendation was “ninety-nine years in each case, consecutive, for a total of a hundred and ninety-eight years.” Our review of the transcript of the guilty pleas and the sentencing hearing leaves it unmistakably clear that there was no confusion over the possible sentences the defendant could receive.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    David K. KELLY v. STATE.
    5 Div. 890.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Robert S. Milner, Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn Y. Grant, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

While this appellant was an inmate of Staton Correctional Facility in Elmore County, he filed a petition for writ of habe-as corpus with the Clerk of the Circuit Court of Elmore County, in which he alleged that he was being restrained of his Due Process and Liberty rights by the finding of prison officials at a disciplinary hearing that he was guilty of violation of Rule 37 proscribing a non-forcible sex offense and that as a result thereof he had been deprived of some “good time” credit. The habeas corpus petition was filed after a ruling against this appellant on his appeal to the appropriate higher authority within the Department of Corrections. Within a reasonable time after the habeas corpus petition was filed, the State by its District Attorney of the Nineteenth Judicial Circuit, which includes Elmore County, filed a motion to dismiss the petition and as grounds therefor set forth the following:

“1. The Disciplinary complained of meets all of the procedural due process requirements of Wolff v. McDonnell, 418 U.S. 539, 41 L.Ed.2d 295 [935] 94 S.Ct. 2963 (1974). See attached State’s exhibit #A. And this Honorable Court has no jurisdiction to review substantive matters in disciplinaries. Fielding v. State, 409 So.2d 964 (Ala.Cr.App.1981); Washington v. State, 405 So.2d 62 (Ala.Cr. App.1981).
“2. Petitioner has failed to properly verify his Petition as required by section 15-21-4 Code of Alabama, 1975; O’Such v. State, 423 So.2d 317 (Ala.Cr.App.1982); 28 U.S.C.A. 1746 and Moore v. State, 417 So.2d 610 (Ala.Cr.App.1982).”

On the day following the date of the filing of the motion to dismiss, the court rendered the following order:

“The Petition for Writ of Habeas Corpus having been considered by the Court, along with the Motion of the District Attorney of the Nineteenth Judicial Circuit to dismiss said Petition, the Court is of the opinion that the Motion to Dismiss is well taken.
“It is therefore ORDERED, ADJUDGED AND DECREED by the Court that the Petition for Writ of Habeas Corpus be and is hereby dismissed.”

In the briefs of the parties on appeal are found issues in addition to those presented in the trial court. We deem it appropriate and dispositive of this appeal to limit our consideration at this time to the two issues presented in the trial court by the motion to dismiss the petition for habeas corpus and the briefs of counsel for the respective parties as to such issues.

I.

In Ex parte Lewis Floyd, Jr., 457 So.2d 961 (1984), the Alabama Supreme Court stated:

“The dispositive issue is whether the due process requirements that a prisoner in a disciplinary hearing, the outcome of which could result in revocation of ‘good time’ benefits, must be given written notice in advance (not less than twenty-four hours) of the charges against him, a written statement of the evidence relied upon by the board, and the reasons for its action, have been satisfied.
“The only evidence of record which indicates that Floyd was ever served with written notice of the charges against him may be found in the ‘Disciplinary Report.’ This report sets out a charge of ‘failure to obey a direct order.’ The report contains a notation, however, that Floyd refused to sign. The only notation on this report showing that Floyd ever received a copy of the written charge is dated ‘12-31-82,’ three days after his disciplinary hearing.”

The disciplinary report in the instant case shows that the disciplinary hearing was conducted on December 13, 1983. It appears that Kelly received a copy of the disciplinary report on December 15, 1983. The record before us does not show that he was served with notice of the charge against him prior to the disciplinary hearing. In accordance with Ex Parte Floyd, supra, the failure to serve him with written notice of the charge at least twenty-four hours before the hearing constitutes a denial of due process. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Williams v. Davis, Ala., 386 So.2d 415 (1980).

II.

Ground No. 2 in the motion to dismiss is not supported by the facts shown by the transcript, which shows that David K. Kelly signed the habeas corpus petition, and immediately thereafter there is the following legend in pen and ink: “Subscribed and sworn to before me this 1st day of March 1984.” The legend is signed by one as a notary. In the recent case of Rice v. State, Ala.Cr.App. (Ms. 5 Div. 885, June 12, 1984), it was held:

“The words ‘sworn to’ at the foot of Rice’s petition must be taken to mean that he declared on oath that the allegations set forth in his petition were true, and we are of the opinion that this satisfied the requirements of verification in Sec. 15-21-4.”

The judgment of the trial court should be reversed and the cause remanded for action by the trial court consistent with this opinion.

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

REVERSED AND REMANDED.

All the Judges concur.


text:
    David K. KELLY v. STATE of Alabama.
    5 Div. 891.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    D. Patrick Harris, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

David K. Kelly appeals from the summary denial of his pro se petition for writ of habeas corpus, challenging the constitutionality of a disciplinary proceeding which resulted in the loss of four months’ good time and thirty days of store and visitation privileges. In the habeas corpus petition Kelly specifically asserted that the institutional officers took disciplinary action against him without providing him with a proper statement as to the reasons for their actions and the evidence upon which they relied. The habeas corpus. petition was denied based upon the State’s motion which simply attached a summary statement of the disciplinary court to same. This statement simply stated:

“On October 13, 1983, you made allegations of illegal and immoral activities on the part of a Staton employee which could have been highly detrimental to the career of that employee. On October 31, 1983 when you faced a polygraph examination, you confessed your allegations was a total fabrication. Your actions were designed to gain certain favorable consideration.”

The summary statement also indicates that the “Chairman of the Board contacted Mr. John Copeland, I & I, and he stated that Kelly confessed to lying to the State Investigators.” Nowhere does this summary statement show when such allegedly false statements were made or to whom such false statements were made.

I

This court in Rice v. State, [Ms. 5 Div. 885, June 12, 1984] (Ala.Crim.App.1984), speaking through Judge Patterson, noted:

“The correct method for challenging the decision of a state disciplinary board is by petitioning the appropriate circuit court for a writ of habeas corpus. Williams v. Davis, 386 So.2d 415 (Ala.1980); Washington v. State, 405 So.2d 62 (Ala. Crim.App.1981); Fielding v. State, 409 So.2d 964 (Ala.Crim.App.1981), cert. denied, 409 So.2d 964 (Ala.1982). Habeas corpus is the appropriate remedy in this case.”

II

Further, this court, again speaking through Judge Patterson, in Spooner v. State, 451 So.2d 429 (Ala.Crim.App.1984), stated:

“In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court held that due process requires that an inmate involved in a prison disciplinary proceeding must be provided with a written statement by the factfind-ers as to the evidence relied upon and the reasons for the disciplinary action taken. Id. at 565. The written statement protects the inmate from possible collateral consequences based on a misunderstanding of the nature of the original proceeding and from arbitrary action by prison officials and enables him to ‘propound his own cause’ subsequent to the hearing. Id. at 565.”

III

In the case at bar, all that was before the trial court was the summary statement with reference to the action of the disciplinary court. This, as indicated above, simply reiterated the result of the Board’s action without indicating when the allegedly false statements were made or to whom the statements were made.

The summary report, before the trial court, does not indicate that any witnesses actually appeared before the disciplinary court. Moreover, the inmate, Kelly, complains that he was not given an opportunity to be heard, or to hear the statements of the witnesses against him. He simply was informed of the results at a later time.

This denial of an opportunity to be heard, to present witnesses and to cross-examine and confront adverse witnesses is a complete denial of the due process clause of the Fourteenth Amendment of the United States Constitution. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Williams v. Davis, 386 So.2d 415 (Ala.1980).

In light of the allegations herein made and the failure to furnish a proper statement showing the reasons as determined by the factfinders and further as to the evidence upon which they relied, this court has no choice but to reverse and remand this cause for a proper hearing consistent with the requirements of due process of law. Counsel should be appointed to assist the petitioner and the trial court should set this, cause for hearing at an appropriate date and inquire into the merits of this petitioner’s allegations.

This cause is hereby reversed and remanded to circuit court with instructions that a hearing be held on the merits of this petitioner’s allegations.

The initial order denying the habeas corpus petition is hereby set aside and vacated.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Paul D. BIBBY v. STATE.
    6 Div. 365.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Carol J. Millican, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from an order denying this appellant’s petition for writ of error coram nobis, which order, according to the minute entry in the case in the trial court, is as follows:

“This the 6th day of October, 1983, ruling on Motion for Writ of Error Coram Nobis filed by defendant on October 5, 1983, in this Court is as follows:
“The defendant, Paul D. Bibby, alias Jim Bibby, Jr., was tried and convicted of Robbery on February 26, 1980. Appeal was taken, affirmed and certiorari denied by the Supreme Court. The first Coram Nobis was filed, hearing denied, appealed by attorney, denial affirmed by Court of Appeals. Numerous other petitions, motions, Habeas Corpus Petitions (one of which was filed in U.S.D.C. and denied) have been filed inundating this Court. An example of one order as follows: ‘September 29, 1982: Defendant, (from Shadow Mt. Corr. Facility, Colorado), files Petition for Coram Nobis, a brief in support thereof, a Forma Pauperis Petition, Motion for Appointment of Effective Counsel; Petition for Writ of Habe-as Corpus Ad Prosequendum and Associated Papers. Each and every petition, motion, writ and request is overruled and denied ... ’ Petitioner’s sole allegation of error (Coram Nobis) is that his representation at the trial (in which he was found guilty of robbery and sentenced to 20 years on February 26, 1980) was so ineffective that he was denied his right to the assistance of counsel ... ’ This allegation has already been heard on a prior Coram Nobis Hearing and defendant has a complete transcript of the hearing on April 8, 1980. This Court denied the petition and in a unanimous opinion, 394 So.2d 73, the Alabama Court of Criminal Appeals affirmed this Circuit Court’s denial of Petition for Error Coram Nobis. The defendant, of course, was represented by a new attorney in the above-referred to hearing. The Alabama Supreme [Court] denied certiorari, 394 So.2d 76.’ This last petition alleges same point covered in the Criminal Court of Appeal’s opinion on the case and the Coram Nobis opinion. This last Petition being duly considered by the court and the same is hereby denied and overruled.”

The only issue on appeal as to which the parties are in disagreement is as to whether the trial court was correct in concluding in the instant case that petitioner’s claim that he had not received effective assistance of counsel in the case in which he had been convicted of robbery had been judicially determined adversely to him in the coram nobis proceeding between the same parties as this proceeding, in Bibby v. State, Ala.Cr.App., 394 So.2d 73, cert. denied, Ala., 394 So.2d 76 (1980). We are persuaded, as appellee’s attorney urges, that the gravamen of the petition in the cited case was not as to whether petitioner had received effective assistance of counsel in the robbery case but whether he had been deprived of due process of law by reason of misinformation that had been furnished defendant’s counsel as to the date of the alleged robbery. Two paragraphs of said previous coram nobis petition are as follows:

“Your Petitioner respectfully shows that said conviction was unlawfully and improperly taken against him in consequence of the fact that long before the trial date, the District Attorney of Jefferson County, through his Deputy District Attorneys, informed Petitioner’s counsel that the alleged offense occurred on July 27, 1979. Said counsel ... relying on this assertion by the District Attorney prepared his case around said date. Numerous witnesses were present on behalf of your Petitioner at the trial to testify as to his true whereabouts on said date. “On the date the trial was had, after these witnesses were excused from the Courtroom pursuant to the rule being invoked, it became apparent that the District Attorney’s office, prosecuting on behalf of the State, presented testimony to show that the alleged offense occurred on July 19, 1979, as opposed to the earlier date given, July 27, 1979. Under these facts your Petitioner was denied the due process of law guaranteed by the Constitution of the United States.”

Two paragraphs of the trial court’s order in Bibby v. State, supra, by the same trial judge as the trial judge who rendered the order from which the present appeal was taken, are as follows:

“Based on the testimony, heard this date, the Court is of the opinion that the potential witnesses of the defendant, namely his mother and girl friend and the defendant himself (although he probably would not have testified if an alibi had been attempted, because of prior felony convictions) were unable to substantiate his alibi for either date. A disagreement apparently developed between defendant and his witnesses prior to the trial or during the State’s testimony, as to where defendant was on the two dates in question. There apparently would have been a disagreement between the only potential witness who testified today and the defendant. The testimony at this point is, at best, questionable. Petitioner has not established his right to relief by clear and satisfactory evidence and has not carried the burden the law requires as to a coram nobis petition.
“The Court is of the opinion that the trial was fairly conducted and none of defendant’s Constitutional rights were evaded; that Petitioner is not entitled to the relief sought and Petitioner is remanded to the custody of the Department of Corrections.”

That which we thus accept as the correct reproduction of the trial court’s order in Bibby v. State, supra, makes it reasonably clear that the gravamen of the previous coram nobis petition in the same trial court and before the same trial judge was the alleged misinformation given to defendant’s counsel by counsel for the State as to the date of the alleged robbery and that, as a result thereof, defendant and his counsel were unable to defend the case successfully. It seems to us that the gravamen in the 1980 petition was not the same as the gravamen of the petition in the instant case. The argument between appellant and appellee on the point is in some respects a mere logomachy, but we conclude therefrom and from the record proper and transcript before us that the gravamen of both petitions was based upon the same alleged facts, the same incident in two aspects: in one, that the State had incorrectly informed defendant’s attorney as to the date of the robbery and, in the other, that defendant’s counsel failed to properly represent the defendant by adequate investigation as to whether the information he received from State’s counsel was correct.

If the judgment of the court in the previous case were a judgment in any proceeding other than a coram nobis proceeding, or the like, we should readily determine that the principle of res judicata mandated a denial of the second petition without an evidentiary hearing. As to coram nobis petitions, which have proliferated immensely in the last few decades, the issues adjudicated therein have been characterized uniformly as “quasi res judicata,” as noted by our now Presiding Judge Bowen, with a citation of several authorities, in Bies v. State, Ala.Cr.App., 418 So.2d 940 (1982). One of the authorities cited is that of Waldon v. State, 284 Ala. 608, 227 So.2d 122 (1969), in which Chief Justice Livingston stated:

“Even where other grounds are alleged in the second petition, this Court has held that in the absence of a petition containing cogent and compelling reasons why all the grounds relied upon were not included in the first petition for writ of error coram nobis, which has been heard and determined, this Court will not order the lower court to entertain or hear a second coram nobis petition relating to the same conviction.”

The claim that defendant was not afforded effective assistance of counsel is so closely and inextricably involved in the claim in the former coram nobis petition, considered on appeal in Bibby v. State, supra, that “cogent and compelling reasons” cannot be given, and have certainly not been given, why the ground relied upon in the last petition was not included in the former petition. It follows that the judgment of the trial court in this case 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.

      . We should make it clear that this quotation is not from the record proper or the transcript of the proceedings in the case upon which the instant appeal is based. We find it in appellant’s brief, which would not be appropriate for us to consider as a correct reproduction of the record proper or the transcript, but as it is not challenged by appellee and as, if incorrect, the incorrectness thereof could be determined by the record on appeal in the previous case of Paul D. Bibby v. State, Ala.Cr.App., 394 So.2d 73, we forgo a definitive rejection thereof at this time and proceed to consider the purported quotation thereof in appellant’s brief as correct.


author: PATTERSON, Judge.

text:
    Alfonzo BELL v. STATE.
    6 Div. 419.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddiek, Atty. Gen. and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   PATTERSON, Judge.

Appellant, Alonzo Bell, was indicted by a one-count indictment charging that he intentionally murdered Maxine Bush in violation of § 13A-6-2, Code of Alabama 1975. He was convicted of murder and sentenced to a term of twenty years’ imprisonment.

We need only address Bell’s first contention of error. He argues that the trial court erred in instructing the jury on “universal malice” murder, defined by § 13A-6-2(a)(2), because the indictment only alleged that he acted intentionally in causing the victim’s death (§ 13A-6-2(a)(l)). The Alabama Supreme Court in Ex parte Washington, 448 So.2d 404 (Ala.1984), determined that, because an accused has the right to be informed of the charges against him, it is error for the trial court to instruct the jury on “universal malice” murder unless the indictment specifically charges such. See also Ponder v. State, 451 So.2d 1382 (Ala.Crim.App.1984), and cases cited therein. Accordingly, this cause is due to be reversed and remanded for a new trial.

REVERSED AND REMANDED.

All Judges concur.


author: BOYD, Justice.

text:
    Michael Harrison PHOENIX, Steven Michael Trusz, Morton Neal Hall, Jr., and Richard Hale, Petitioners, v. STATE of Florida, Respondent.
    No. 63535.
    Supreme Court of Florida.
    June 21, 1984.
    Rehearing Denied Oct. 15, 1984.
    Max P. Engel of the Law Offices of Max P. Engel, Miami, for petitioners.
    Jim Smith, Atty. Gen. and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for respondent.
   BOYD, Justice.

We have for review a decision of a district court of appeal, State v. Phoenix, 428 So.2d 262 (Fla. 4th DCA 1982), certified by that court as involving a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The certified question concerns the scope of the authority of law enforcement officers to conduct citizen’s arrests. We approve the decision below which held that a sheriff and sheriff’s deputies can make a valid arrest outside their jurisdiction even though they have used their police car and have identified themselveá as police officers when making the arrest.

This case involves the arrest of petitioners in St. Lucie County by the sheriff and deputies of Martin County. On June 23, 1979, at about 1:00 a.m., an officer of the Martin County sheriff’s office saw some gasoline cans in the back of a camper-covered pickup truck. Upon hearing the report of this observation, the sheriff of Martin County ordered officers to follow the truck. An officer in a surveillance airplane saw the truck enter St. Lucie County, but then lost sight of it. The sheriff and officers of Martin County entered St. Lucie County where they observed a fence gate upon which a chain had been cut and a new lock affixed. The gate was located at the entrance to a ranch which the officers suspected was possibly being used as an airstrip. The sheriff and deputies waited there until around 6:00 a.m., when the surveillance pilot reported seeing an aircraft and two camper-top pickup trucks (but not the one that had aroused suspicion) on the ranch grounds. The Martin County sheriff then notified the sheriff of St. Lucie County of the suspected activity. The two pickup trucks were then observed departing the ranch; one moved north in St. Lucie County while the other proceeded south into Martin County. The Martin County sheriff and a deputy stopped the northbound truck in St. Lucie County and, guns drawn and blue lights flashing, arrested the occupants. They discovered marijuana in the truck. The passengers of the southbound truck were arrested in Martin County-

The petitioners were charged with trafficking in marijuana. They moved to suppress the evidence. The trial judge ruled that the stop and search of the truck in St. Lucie County, having been carried out by the sheriff of Martin County “under color of office” outside his jurisdiction, were unlawful. The evidence found in the truck, along with evidence from the other truck and from the aircraft, and an incriminating statement, were suppressed.

The district court of appeal reversed. Although agreeing with the trial court that the officers had no official authprity to stop and arrest the defendants in St. Lucie County, the district court reasoned that the officers might have properly conducted a common-law citizen’s arrest. On motion for rehearing, the district court certified the following question to be of great public importance:

Can an arrest be validated as a “citizen’s arrest”

(1) if the arrest resulted from an intentional surveillance conducted by police officers outside their jurisdiction utilizing a police aircraft and officers on the ground and,
(2) if the police officers used a marked police car and asserted their official position in stopping the arrestees?

428 So.2d at 267. We answer the questions in the affirmative.

At common law, a private citizen could make an arrest without a warrant in certain specific circumstances:

A private citizen does have the common law right to arrest a person who commits a felony in his presence, or to arrest a person where a felony has been committed, and where the arresting citizen has probable cause to believe, and does believe, the person arrested to be guilty. Even though there was time to obtain a warrant, a private citizen may make such an arrest and justify his failure to obtain a warrant by proving the person arrested was actually guilty of a felony.

Collins v. State, 143 So.2d 700, 703 (Fla. 2d DCA), cert. denied, 148 So.2d 280 (Fla.1962). See also State v. Shipman, 370 So.2d 1195 (Fla. 4th DCA 1979), cert. denied, 381 So.2d 769 (Fla.1980).

Common sense dictates that law enforcement officials, when they are outside their jurisdictions, should not be any less capable, by virtue of their position, of making a felony arrest than a private citizen. But because there are jurisdictional limitations on law enforcement officials’ ability to make arrests, neither should they have any greater power of arrest outside their jurisdiction than private citizens. Schacter v. State, 338 So.2d 269 (Fla. 3d DCA 1976); State v. Crum, 323 So.2d 673 (Fla. 3d DCA 1975).

To prevent law enforcement officials from misusing the powers of their office in making a citizen’s arrest, the courts of this state have held that law enforcement officials may not make a citizen’s arrest under the color of their office. Unfortunately, this “under color of office” doctrine is ambiguous and has led to some inconsistent results. United States v. Ible, 630 F.2d 389 (5th Cir.1980). At least one district court of appeal has held that a police officer is acting under color of his office if he announces he is a police officer and displays his badge when making an arrest outside his jurisdiction. State v. Chapman, 376 So.2d 262 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980). See also State v. Jimerson, 330 So.2d 169 (Fla. 4th DCA 1976). However, the majority of the courts have disagreed, holding that the “under color of office” doctrine applies only to prevent law enforcement officials from using the powers of their office to observe unlawful activity or gain access to evidence not available to a private citizen. United States v. Hernandez, 715 F.2d 548 (11th Cir.1983), cert. denied, — U.S.—, 104 S.Ct. 1006, 79 L.Ed.2d 237 (1984); United States v. Ible; McAnnis v. State, 386 So.2d 1230 (Fla. 3d DCA 1980); State v. Shipman.

The district court below followed, and we approve, this latter line of cases. In applying this standard, the district court found that the record also reveals, and the trial court did not find to the contrary, that at the time the occupants of the St. Lucie County truck were arrested, the sheriff and his officers had not asserted their official position for any purpose other than to make the arrests. The evidence upon which the arrests were based was obtained before confronting any persons in St. Lucie County and without any unlawful assertion of official authority visa-vis the occupants or a third party.

428 So.2d at 266. The district court concluded that the trial court had erred in finding that the “under color of office” doctrine applied simply because the officers had identified themselves as police officers when they made the arrest. The district court remanded for further proceedings on numerous other questions relating to the legality of the stop, the search, and the arrests, and the admissibility of the evidence derived therefrom. We approve the district court’s decision and remand for further proceedings consistent with the district court’s mandate.

It is so ordered.

ALDERMAN, C.J., and McDONALD, EHRLICH and SHAW, JJ., concur.

OVERTON, J., dissents.