author: BOWEN, Presiding Judge. TAYLOR, Judge,

text:
    Vic ASHURST, Sr. v. STATE.
    3 Div. 905.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-229.

      Stephen R. Glassroth and Rick Harris of Moore, Kendrick, Glassroth, Harris, Bush & White, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Operating a business called the Gold Mine, which dealt in the purchase of gold and silver, Vic Ashurst, Sr. was indicted and convicted for receiving stolen property in the first degree in violation of Alabama Code 1975, § 13A-8-17. The sentence of two years’ imprisonment was suspended and Ashurst was sentenced to five months in the county jail.

I

Ashurst claims that the evidence was insufficient to convict him of receiving stolen property. Specifically, he disputes the sufficiency of the evidence to show that he knew or should have known that the merchandise was stolen. The record in this case is extensive and reveals a trial which this Court can only characterize as a battle wherein defense counsel, with relentless energy, contested and opposed the State’s every effort to convict his client. Despite those efforts, the circumstantial evidence against Ashurst was sufficient to support the conviction.

Hannelore Bice was employed at Klein & Son Jewelers as an inventory control clerk. Ashurst operated the Gold Mine, a business which specialized in the purchase of gold and silver. Ashurst’s wife and their seventeen-year-old son also worked there.

Between July of 1980 and February of 1981, Ms. Bice stole over $100,000 worth of merchandise from Klein’s and sold it to the Gold Mine, receiving between $3,000 and $4,000. During this time, she made twenty-two trips to the Gold Mine, usually during her lunchtime. Most of the property the forty-two-year-old Bice sold to the Gold Mine was stolen, although “some jewelry and some silver” belonged to her. Usually, the property was new.

Ms. Bice testified that she sold silver flatware about ten or twelve times. On approximately six of those occasions the flatware was still in the original packaging. The flatware consisted of different patterns by different manufacturers.

She took jewelry to the Gold Mine about ten times. All the jewelry was new. Ms. Bice sold four diamonds to the Gold Mine, which she had stolen from Klein’s. She testified that “most of the time when I sold a loose diamond that' Mr. Ashurst was there, except one time”, and that Ashurst “looked at them diamonds”, although his son actually weighed and measured them.

During her twenty-two visits to the Gold Mine, Ashurst was present “about thirteen, fourteen times.” Ms. Bice testified that, if Ashurst was present, “(h)e would either talk or counsel (his son) about the price of it” and that when he was present he “usually” made the final decision about the purchase price.

Ms. Bice testified that she never told anyone at the Gold Mine that the property was stolen. Each and every time a transaction was conducted, someone in the store asked her name, address and license number.

The particular offense for which Ashurst was indicted occurred on the 5th of February, 1981, when Ms. Bice sold some jewelry to the Gold Mine, which she had stolen from Klein’s. Although the retail value of these items was over $5,000, Bice received $625. Ms. Bice stated that the “young Mr. Ashurst weighed it and actually paid me the money, but Mr. Ashurst was there.” Ashurst “saw his son make the actual sale.” He stepped into the office where Ms. Bice was sitting, but she did not recall the conversation they had.

Bill Heilpern, the president of Klein’s at the time in question, testified, without objection, that Ms. Bice’s actions would have made him “pretty suspicious” and that “when somebody comes in that many times with that much, I feel, and that’s a personal opinion, I feel like there is no way on earth you wouldn’t think that it was stolen.” In Heilpern’s opinion, Ms. Bice usually looked “sloppy”. He testified that, if someone like her came into Klein’s with just three different manufacturers of silverware, that would make him “quite suspicious”. If she came in with just two, it would make him “pretty suspicious, too.” Heilpern testified that 99% of the merchandise Ms. Bice stole from Klein’s was “brand new”.

Debby Matthews worked for Ashurst “somewhere around 1980” at Southern American Gold and Silver before Ashurst opened the Gold Mine. She testified that Ashurst told her to buy stolen property: “At one time he said to buy it. If we looked at something that looked to be kind of, you know, unusual or stolen, buy it real cheap because he would not get the money back from the Police Department.”

It is undisputed that Ashurst complied with a municipal ordinance requiring second-hand gold and silver dealers to report their daily transactions to the Montgomery Police Department. Montgomery, Alabama, Ordinance No. 18-80 (1980). The report required “a brief description of the articles or property purchased, the date and hour of the purchase and a brief description of the person from whom the purchase is made, together with the address, Drivers License number, sex, race, and date of birth of such person.” The record does show that Ashurst failed to list the quantity of much of the flatware he purchased from Ms. Bice and that the descriptions on the police report for the merchandise purchased from Ms. Bice were considerably less detailed than the description listed on the bills of sale.

Ashurst maintained that Ms. Bice told him that she had purchased the merchandise from Bellas Hess when the store closed. (See Issue II). He denied any knowledge that the property was stolen and contended that he was not even present on February 5th.

In reviewing the sufficiency of the evidence to support a conviction based on circumstantial evidence, the test to be applied is whether a jury might reasonably conclude that the evidence excludes every reasonable hypothesis except that of guilt. Dolvin v. State, 391 So.2d 133, 137 (Ala.1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979).

“In reviewing the sufficiency of the evidence in criminal cases, we are to view the evidence and all inferences that may reasonably be drawn from it in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Whether evidence is direct or circumstantial, we must accept all credibility choices that tend to support the jury’s verdict. United States v. Allison, 616 F.2d 779 (5th Cir.), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72 (1980). The standard of review is whether a reasonably minded jury must necessarily have entertained a reasonable doubt of the defendant’s guilt. If the jury could not reasonably have concluded that the evidence excluded every reasonable hypothesis but that of guilt, then we must reverse the convictions. United States v. Rodri guez, 654 F.2d 315 (5th Cir.1981); United States v. Kelley, 630 F.2d 302 (5th Cir.1980).” United States v. Hinds, 662 F.2d 362, 366 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1720, 72 L.Ed.2d 140 (1982).

Under an indictment for receiving stolen property, the prosecution must prove that the accused actually knew that the property was stolen or that he had reasonable grounds to believe that it was stolen. “[I]f ‘reasonable grounds for believing’ exist, that element is established, although defendant may have had no ‘knowledge’, ... [I]f the jury believes beyond a reasonable doubt the existence of facts which were known to defendant and which are sufficient in the opinion of the jury to show the existence of ‘reasonable grounds for believing’ that the goods were stolen, and they were in fact stolen, no further inquiry in that respect need be pursued.” Farzley v. State, 231 Ala. 60, 61, 163 So. 394 (1935); W. LaFave and A. Scott, Criminal Law 687 (1972).

“In most cases there is no direct testimony of the receiver’s actual belief. Proof thereof must therefore be inferred from the circumstances surrounding his receipt of the stolen property.” LaFave at 686. Guilty knowledge may be inferred from all the facts and circumstances surrounding the entire transaction concerning the accused’s acquisition of the stolen property. Tombrello v. State, 431 So.2d 1355, 1357 (Ala.Cr.App.1983); Tyree v. State, 407 So.2d 580, 581 (Ala.Cr.App.1981). “ ‘[GJuilty knowledge may be inferred from the fact that the receiver purchased the goods for very much less than their value.’ Fulton v. State, 8 Ala.App. 257, 263, 62 So. 959 (1913).” Tyree, 407 So.2d at 581. “[A] very inadequate purchase price is a factor which points towards appellant’s guilt.” Fillmore v. State, 647 S.W.2d 300, 303-04 (Tex.App.1982). The fact that an accused maintained no records and failed to obtain the information required by statutes when purchasing merchandise are also circumstances which indicate guilt. Fillmore, supra. Applying these principles to the facts of this case, we find the evidence sufficient to support the verdict.

The offense of receiving stolen property is defined by Alabama Code 1975, § 13A-8-16:

“(a) A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.
“(b) If a person:
(1) On two separate occasions within a year prior to the commission of the instant offense of receiving stolen property is found in possession or control of stolen property; or
(2) Possesses goods or property which have been recently stolen; or
(3) Regularly buys, sells, uses or handles in the course of business property of thé sort received, and acquired the property without making reasonable inquiry whether the person selling or delivering the property to him had a legal right to do so, this shall be prima facie evidence that he has the requisite knowledge or belief.
“(c) The fact that the person who stole the property has not been convicted, apprehended or identified is not a defense to a charge of receiving stolen property.”

In most cases involving a dealer, that is one who “regularly buys, sells, uses or handles in the course of business property of the sort received”, § 13A-8-16(b)(3), the prosecution is aided by one or more of the statutory presumptions defined in § 13A-8-16(b)(l), possession on two separate occasions within one year’s time; (b)(2) possession of recently stolen property; and (b)(3) possession by a dealer without reasonable inquiry. See Watts v. State, 435 So.2d 129, 133-34 (Ala.Cr.App.1982), reversed on other grounds, Ex parte Watts, 435 So.2d 135 (Ala.1983); Eldridge v. State, 415 So.2d 1190, 1192-95 (Ala.Cr.App.1982); Goodman v. State, 401 So.2d 208, 210-11 (Ala.Cr.App.), cert. denied, Ex parte Goodman, 401 So.2d 213 (Ala.1981); People v. Roder, 33 Cal.3d 491, 658 P.2d 1302, 189 Cal.Rptr. 501 (1983); People v. R. Kelly Freedman & Son, Inc., 95 Misc.2d 564, 407 N.Y.S.2d 963, 966 (1978); R. Perkins & R. Boyce, Criminal Law 403 (3rd ed. 1982); C. Torcia, 4 Wharton’s Criminal Law § 456 (14th ed. 1981). However, here, the trial judge granted defense counsel’s motion for an acquittal or directed verdict as to § 13A-8-16(b) and did not charge the jury on these statutory presumptions.

In this case there are several circumstances which afford the reasonable inference that Ashurst had “reasonable grounds to believe” that the jewelry purchased on the 5th of February 1981 was stolen. The most significant of those circumstances are: (1) In an eight-month period, the Gold Mine purchased merchandise from Ms. Bice on twenty-two different occasions. (2) During that time, the Gold Mine purchased property with a retail value of over $100,000 for between $3,000 and $4,000. On February 5th, it purchased jewelry valued at over $5,000 for $625. (3) The president of Klein’s testified that Bice’s conduct would have made him “pretty suspicious”, and, considering the frequency, quality, and amount of her business, there was “no way on earth you wouldn’t think that it was stolen.” (4) Most of the merchandise Bice sold to the Gold Mine was stolen from Klein’s and 99% of that was “brand new”. (5) Ashurst was present on more than half the occasions Ms. Bice came in, talked to or counseled his son and usually made the final decision about the purchase price. (6) Ashurst’s wife and seventeen-year-old son also worked at the Gold Mine. (7) Ashurst was an experienced dealer in gold and silver and had been warned by the Montgomery police about the purchase of property that he suspected to be stolen. (8) Ashurst reportedly told his employees at the store he owned before opening the Gold Mine to purchase stolen merchandise.

Although entirely circumstantial, there was sufficient evidence to support Ash-urst’s conviction for receiving stolen property in the first degree.

“Guilty knowledge may be shown by circumstantial evidence, as well as by direct evidence. See United States v. Kilcullen, 546 F.2d 435, 441 (1st Cir.1976). Circumstantial evidence tending to show guilty knowledge need not compel a finding of such knowledge in order to sustain a conviction; all that is necessary is that reasonable jurors could be convinced beyond a reasonable doubt that the defendants had guilty knowledge. Id. at 441 (citing cases). The jury is ‘free to choose among various reasonable constructions of the evidence.’ United States v. Gabriner, 571 F.2d 48, 50 (1st Cir.1978) citing United States v. Klein, 522 F.2d 296, 302 (1st Cir.1975).” United States v. Flaherty, 668 F.2d 566, 579 (1st Cir.1981).

The reasonableness of Ashurst’s explanation concerning his possession of the stolen merchandise was for the jury’s determination. United States v. Spivey, 508 F.2d 1061, 1063 (5th Cir.1975); Goodman, 401 So.2d at 211. “The reasonableness of the explanation given by one in possession of recently stolen property is to be determined from all of the circumstances, and, if reasonable people can come to a different conclusion on the subject, the question of whether the explanation is reasonable is one to be determined by the jury.” Ford v. State, 383 So.2d 601, 603 (Ala.Cr.App.1980). If the circumstances suggest the possibility that the property was stolen, the accused may not willfully “shut his eyes” for fear of what he would learn. Perkins, supra, at 401. An accused may not be “willfully blind”. Haynes v. State, 335 So.2d 203, 205 (Ala.Cr.App.), cert. denied, 335 So.2d 208 (Ala.1976).

The fact that the circumstances indicating Ashurst’s guilty knowledge are relatively weak or insignificant when considered individually is of no import. “For even if the jury had found that each piece of evidence, standing alone, was consistent with innocence, the jury nevertheless could reasonably have concluded that the evidence, taken as a whole, excluded every reasonable hypothesis but that of guilt.” Hinds, 662 F.2d at 367.

“ ‘(T)he jury was entitled to ponder the interrelationship of all these evidentiary items.’ [United States v.] Staten, 581 F.2d [878] at 886 n. 71 [D.C.1978]; United States v. Smith, 171 U.S.App.D.C. 342, 520 F.2d 74, 76 (1975). ‘Circumstantial evidence sufficient to support a jury’s finding of guilt may be found in the accumulation of several relatively insignificant pieces of evidence, or it may be presented in the form of a single highly significant or incriminating event.’ United States v. Morando-Alvarez, 520 F.2d 882, 884-85 (9th Cir.1975). In considering the weight to be given evidence, ‘courts and juries must use common sense, common reason, and common observation as well as a common knowledge of the usual acts of men and women under given circumstances.’ Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557 (1926).” German v. State, 429 So.2d 1138, 1143 (Ala.Cr.App.1982).

With regard to the sufficiency of the evidence, Ashurst argues that he had no reasonable grounds to believe that the property was stolen because he complied with the municipal ordinance requiring the reporting of certain business transactions. He contends that “a legitimate businessman may presume that his obedience to a strict ordinance, regulating the sale of potential stolen property, constitutes reasonable action to prevent being a recipient of stolen property.” (Appellant’s Brief, p. 9).

We wholly reject this contention. Such a presumption fosters and encourages “willful blindness”. The ordinance is designed to discourage the sale of stolen property and is aimed at what defense counsel characterized in his closing argument to the jury as the “rather treacherous business” of buying gold and silver. No reasonable construction of the ordinance affords the interpretation that faithful compliance with the reporting requirements protects a dealer from any criminal liability arising out of the purchase or receipt of stolen property. As one commentator has observed:

“The ordinary thief steals in order to sell the stolen property, not to use it. Yet he cannot, by himself, successfully deal with the ultimate consumer. He must operate through a middleman, the professional receiver of stolen property. Without such receivers, theft ceases to be profitable. It is obvious that the receiver must be a principal target of any society anxious to stamp out theft in its various forms.” LaFave at 682.

A municipal ordinance requiring gold and silver dealers to report their transactions daily to the police does not absolve the dealer from making “reasonable inquiry whether the person selling or delivering the property to him had a legal right to do so”, § 13-8-16(b)(3), nor does it serve as a shield behind which the unscrupulous dealer may hide. Such regulations “[i]n no sense can ... be read or construed so as to exculpate a secondhand dealer of the charge of receiving stolen property, if in fact he knew it to have been stolen, simply because he reports the purchase to the chief of police.” State v. Salzman, 186 Wash. 44, 48, 56 P.2d 1005, 1008 (1936). The fact that Ashurst did comply with the ordinance was a factor the jury should have given such weight as they deemed it entitled to in determining whether the offense was committed. Salzman, 56 P.2d at 1007.

Our review of the evidence convinces us that the jury’s verdict is supported by the evidence. “[T]he standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.” Williamson v. United States, 365 F.2d 12, 14 (5th Cir.1966), quoted with approval in Cumbo, 368 So.2d at 875. The fact that after a five-day trial the jury returned a verdict in only fifty-five minutes is some indication of the strength of the State’s case.

II

Ashurst contends that he should not have been convicted of receiving stolen property in the first degree as a matter of law because a dealer can only be convicted of receiving stolen property in the second degree.

The crime of receiving stolen property is defined in Alabama Code 1975, § 13A-8-16. The offense is graded into three degrees which, in most cases, are determined by the value of the property stolen. Speight v. State, 437 So.2d 662, 663 (Ala.Cr.App.1983). Receiving stolen property in the first degree involves property which exceeds $1,000 in value (§ 13A-8-17); second degree involves property which exceeds $100 but does not exceed $1,000 in value (§ 13A-8-18); third degree involves property which does not exceed $100 in value (§ 13A-8-19). The one exception to the rule that the value of the stolen property determines the degree of the offense is in the case of pawn brokers or dealers. Speight, supra.

Section 13A-8-18(a)(2) states that “(Receiving stolen property: * * * Of any value under the circumstances described in subsection (b)(3) of Section 13A-8-16; constitutes receiving stolen property in the second degree.” (Emphasis added.) Section 13A-8-16(b)(3) states, “(I)f a person: * * * Regularly buys, sells, uses or handles in the course of business property of the sort received, and acquired the property without making reasonable inquiry whether the person selling or delivering the property to him had a legal right to do so, this shall be prima facie evidence that he has the requisite knowledge or belief.”

We view § 13A-8-18 as stating the minimum degree for which a dealer can be convicted. If the property exceeds $1,000 in value, he may be convicted for receiving stolen property in the first degree. This particular provision is aimed at the professional dealer in stolen property, the “fence”, because “ ‘(T)he professional fence is always a felon because he is vital to making theft lucrative.’ ” Commentary following § 13A-8-19.

Section 13A-8-18(a)(2) and § 13A-8-16(b)(3), creating a greater liability for the dealer who purchases stolen goods, are directed to the professional “fence”.

“Any larceny is a violation of the social interest in the protection of property rights, it is true, but the ‘fence’ stirs up countless larcenies which would otherwise not be committed, and tends to put this type of crime on an organized ‘business’ basis. The ‘fence’ is the popular name for the receiver of stolen property. Historically, receiving stolen property is a much lesser offense than larceny, but as a present social problem it should be ranked as a crime of graver degree.... Receiving stolen property is one of the crimes most difficult to prove to the satisfaction of the jury; but the extent of the social menace involved should not be underestimated.” Perkins at 394.

Under our statutory scheme, Ash-urst could not have been found guilty of theft in the third degree, a misdemeanor, as a lesser included offense of theft in the first or second degree because he was a dealer. Regardless of the value of the property, Ashurst, if guilty, was guilty of receiving stolen property in the second degree. If the value exceeded $1,000 he was guilty of receiving stolen property in the first degree.

Ill

Ashurst alleges that the admission of his testimony at his first trial was error because that testimony was “tainted” and “constitutionally defective”.

This case involves the appeal from Ashurst’s second conviction. His first conviction was reversed because the trial judge prohibited defense counsel from talking to his client once Ashurst had commenced testifying until he had completed his testimony including all breaks and recesses. This Court held that this prohibition was an unconstitutional deprivation of Ashurst’s right to counsel. Ashurst v. State, 424 So.2d 691 (Ala.Cr.App.1982). An absolute rule that deprives a defendant of the right to consult with counsel while the defendant is in the process of testifying is overly broad and overly restrictive and in violation of the accused’s constitutional right to the effective assistance of counsel. Payne v. State, 421 So.2d 1303 (Ala.Cr.App.), cert. quashed, 421 So.2d 1306 (Ala.1982).

The general rule is that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Koch v. State, 401 So.2d 796, 801 (Ala.Cr.App.), cert. denied, Ex parte Koch, 401 So.2d 801 (Ala.1981); Cantrell v. State, 353 So.2d 80, 82 (Ala.Cr.App.1977); Willingham v. State, 50 Ala.App. 363, 367, 279 So.2d 534, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973). However, this rule does not apply where the former testimony was given at a hearing where the accused was denied his right to the assistance of counsel, People v. Martin, 21 Mich.App. 667, 176 N.W.2d 470 (1970), or where the former testimony was “impelled” in order to rebut evidence introduced against the accused in violation of his constitutional rights. Harrison, supra.

In this case, the objection now raised was not made at trial. “The point appears here in its virgin state, wearing all its maiden blushes, and is therefore out of place.” Cleveland v. Chambliss, 64 Ga. 352, 359 (1879). Although defense counsel objected to the admission of Ashurst’s former testimony, those objections do not reach the ground advanced on appeal. This Court “will not consider on appeal any constitutional questions not raised below.” Steele v. State, 289 Ala. 186, 189, 266 So.2d 746 (1972); Proctor v. State, 424 So.2d 705 (Ala.Cr.App.1982). “[Ojbjections to evidence cannot be raised for the first time on appeal.... Even constitutional rights can be waived on appeal if they are not seasonably raised in the trial court.” Owen v. State, 418 So.2d 214, 219-20 (Ala.Cr.App.1982).

The record reveals that defense counsel had read the transcript of Ashurst's first trial and was aware of the reason why the first conviction had been reversed. There can be no contention that the objection now argued was not available at trial. Yet, nowhere in the record before this Court does that objection appear. Even with a proper objection Ashurst would have been entitled only to have that portion of his prior testimony suppressed which occurred after the violation of his right to counsel.

We do not think that a defendant should be permitted to benefit from his failure to raise at his second trial essentially the very same error which resulted in the reversal of his first trial on appeal without some reasonable excuse or justification. In this case, counsel’s failure to object could well have been a tactical decision in order to place Ashurst’s testimony before the jury without subjecting the defendant to additional cross examination by the State. Without proper objection, there is nothing for this Court to review.

IV

Throughout the course of the proceedings in the circuit court, defense counsel unsuccessfully but repeatedly attempted to establish that Ashurst had been set up, and that the sale of jewelry on the 5th of February, 1981, had been a “controlled buy” conducted by the Montgomery Police Department. Despite these numerous attempts and contrary to the defendant’s insistence, there was no evidence that the police, or anyone else, entrapped Ashurst through a “controlled buy”. Despite this absence, defense counsel, in his closing argument to the jury, argued that the jewelry was “planted” and that the “trap was baited.”

Although the trial judge did occasionally prevent defense counsel from pursuing this issue and did at times require couns.el to “move on” in his examination of witnesses, this subject was thoroughly explored at trial. “The latitude and extent of cross-examination, of necessity, is a matter within the sound discretion of the trial court, and, in the absence of prejudicial abuse, it is not reviewable on appeal.” Turner v. State, 289 Ala. 97, 100, 265 So.2d 883 (1972). Although the accused has a constitutional right of confrontation, U.S. Const.Amend. VI, that right is not unlimited. United States v. Summers, 598 F.2d 450, 460 (5th Cir.1979). Once the accused has been afforded the constitutionally required threshold level of inquiry, the trial judge has broad discretion in limiting further inquiries. United States v. Tracey, 675 F.2d 433, 437, 439 (1st Cir.1982); United States v. Butman, 667 F.2d 1374, 1381 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). A judge may limit cross examination if the questions are repetitive, United States v. Wood, 695 F.2d 459, 465 (10th Cir.1982); Ross v. Estelle, 694 F.2d 1008, 1010 (5th Cir.1983); United States v. Sonntag, 684 F.2d 781, 788 (11th Cir.1982), irrelevant, United States v. Barnes, 681 F.2d 717, 726 (11th Cir.1982), cert. denied, 460 U.S. 1046, 103 S.Ct. 1447, 75 L.Ed.2d 802 (1983), or lacking in a sufficient basis, United States v. West, 670 F.2d 675, 683 (7th Cir.), cert. denied, 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982); United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir.), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982).

Even if the trial judge’s rulings constitute error, the error is harmless in view of the exhaustive treatment of this issue both in the pretrial hearings and at trial.

We recognize that if the police had arranged to have Ms. Bice given the jewelry so that she could sell it to Ashurst, there would have been no theft and the property would not have been stolen. Farzley, 231 Ala. at 61, 163 So. 394. Here,' there was simply no evidence to suggest or support this contention.

V

We do not consider the remark of the assistant district attorney in closing argument to constitute a comment on Ashurst’s failure to testify. The remark must be reviewed within the context of the trial. The State presented evidence that Ms. Bice sold some diamonds to the Gold Mine which she had stolen from Klein’s. Bice testified that the diamonds “belonged to Klein and Son and they would not sell anything but diamonds.” The president of Klein’s, Mr. Heilpern, testified that the procedure for identifying and determining the value of a diamond involved the use of microscopes, other equipment and instruments.

The defense made an issue of how the purchase price of gold and jewelry was determined at the Gold Mine. In Ashurst’s former testimony introduced during the State’s case-in-chief, Ashurst stated that he had no experience in determining the value of a diamond and that the matter of purchasing a diamond was left to his seventeen-year-old son.

Ed Caldwell, an employee at the Gold Mine, verified this in his testimony for the defense. Ashurst’s son testified that he used a magnifying glass and a “gem instrument” in identifying and pricing diamonds. He stated that he would use his “best judgment” and purchase a diamond even though he had no “precise measurements”.

In his cross examination of defense witnesses, the prosecutor attempted to establish that the reason why Ashurst was willing to purchase the diamonds from Ms. Bice was because he knew that Bice had stolen the gems from Klein’s, which only handled quality merchandise.

The objectionable remark is found in the following portion of the closing argument of the assistant district attorney when the prosecutor, once again, stressed this point:

“Then we have Little Vic testifying, ladies and gentlemen. He has a little magnifying glass and is he paying four, five, five hundred and fifty, and eight hundred dollars by looking at it with a magnifying glass. He said he was just guessing, his judgment. He said his Daddy said he could buy anything that he wanted, trusting his judgment. Well, folks, you heard experts get up there and say they had to use all these different instruments to tell. Now, what does that tell you, ladies and gentlemen? Remember the last question I asked him. I said, ‘Vic, or Mr. Ashurst, you know why you bought those diamonds, don’t you? I said’, ‘The reason you bought them is because you knew Mrs. Bice worked at Klein’s and you knew where those diamonds came from.’ I think we know the answer to that. If they had had regular instruments and used those instruments in examining those diamonds, don’t you think that they would have brought them in here and told you about them. Don’t you think.” (Emphasis added.)

There was no objection raising this issue in the circuit court and it is presented here for the first time. The prosecutor’s comment does not raise the possibility that the jury could have understood it to be a reference to the defendant’s failure to testify. An objection was required. See Ex parte Tucker, 454 So.2d 552 (Ala.1984). Without proper objection there is nothing for this Court to review. Broadway v. State, 257 Ala. 414, 60 So.2d 701 (Ala.1952).

Even with proper objection, the prosecutor’s comment cannot be understood as a reference to Ashurst’s failure to testify. Ex parte Dobard, 435 So.2d 1351, 1359 (Ala.1983), cert. denied, Dobard v. Alabama, — U.S. -, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984). “While the State may not call attention to a defendant’s failure to testify it may expose the failure of the defendant to produce other exculpatory evidence.” Griffin v. State, 393 So.2d 523, 528 (Ala.Cr.App.1981). The prosecutor’s comment is a proper reference to the testimony given and not to the defendant’s failure to testify. Annot., 14 A.L.R.3d 723, § 9 (1967). “Where the State’s evidence does stand uncontradicted, the prosecutor does have the right to point this out to the jury.” Beecher v. State, 294 Ala. 674, 682, 320 So.2d 727 (1975) (emphasis in original). A comment by the prosecutor which refers to the defendant’s failure to put on evidence is not a comment on the defendant’s failure to testify unless the defendant himself is the only one who can contradict or deny the evidence. Griffin, 393 So.2d at 528.

We find no plain error in the prosecutor’s comment.

VI

Finally, Ashurst alleges that the trial judge committed “numerous procedural errors which require a new trial.”

A.

Debby Matthews testified that Ashurst told her to buy “unusual or stolen” merchandise “real cheap because he would not get the money back from the police department.” Her testimony was not inadmissible hearsay. “As stated by Wigmore, ‘any and every statement of an accused person, so far as not excluded by the doctrine of confessions * * * or by the privilege against self-incrimination * * * is usable against him as an admission * * *.’ 6 Wigmore, Evidence, § 1732, p. 99 (3rd Ed.1940).” United States v. Rouse, 452 F.2d 311, 313 (5th Cir.1971).

B.

On the day set for trial, defense counsel requested a continuance to “further” investigate a Uniform Incident/Offense Report produced by the Montgomery Police Department. This request was properly denied as the trial judge found that “these documents are no different than what has already been testified to [in the pretrial hearings].” The record shows no abuse of the trial judge’s discretion in denying the request.

C.

Bill Heilpern, the president of Klein’s, was properly allowed to remain in the courtroom during the trial even though the rule had been invoked. “It is within the discretion of the trial judge to excuse some witnesses and not others from the operation of ‘the rule’ of exclusion.” Weatherford v. State, 369 So.2d 863, 865 (Ala.Cr.App.), cert. denied, Ex parte Weatherford,, 369 So.2d 873 (Ala.), cert. denied, Weatherford v. Alabama, 444 U.S. 867, 100 S.Ct. 141, 62 L.Ed.2d 91 (1979). “No abuse of discretion in this respect can be charged to the trial court in the absence of a showing of any injury to defendant by reason of any infraction of the rule.” Pope v. State, 367 So.2d 998, 1002 (Ala.Cr.App.1979).

D.

The motion to quash the jury venire was properly denied. Prior to this particular trial, the trial judge was the “Duty Judge” and was conducting “Juror Orientation” of the entire venire where he “simply oriented the Jury and qualified them generally.” No particular case was mentioned. In a noncapital case, a defendant’s presence is not required when the jury venire is organized and some prospective jurors are excused. Black v. State, 401 So.2d 320, 321 (Ala.Cr.App.1981); Durden v. State, 394 So.2d 967, 977 (Ala.Cr.App.1980), cert. quashed, Ex parte Durden, 394 So.2d 977 (Ala.1981).

E.

The record contains no evidence that the prosecutor systematically used his peremptory challenges against blacks over a period of time. Swain v. Alabama, 380 U.S. 202, 227, 85 S.Ct. 824, 839, 13 L.Ed.2d 759 (1965). The mere facts that the prosecutor struck some or even all of the blacks from the jury (the record not showing which) and “reserve[d] the right to use any criteria to strike a Jury, race being one of dozens of facts that we consider”, did not overcome the presumption that the prosecutor utilized the State’s strikes in a fair and impartial manner. Ex parte Dobard, 435 So.2d at 1355. See also United States v. Jenkins, 701 F.2d 850, 859-60 (10th Cir.1983); United States v. Capers, 685 F.2d 249, 250 (8th Cir.1982).

F.

“The constitutional guaranty of a public trial does not apply to ‘conferences on questions of law which take place during the trial but out of the hearing of the jury.’ ” Williams v. State, 383 So.2d 547, 559 (Ala.Cr.App.1979), affirmed, Ex parte Williams, 383 So.2d 564 (Ala.), cert. denied, Williams v. Alabama, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980). Despite his objections to “bench trials”, on at least two occasions defense counsel requested to make a motion “in Chambers”. Additionally, the trial judge had a reason for requiring certain objections to be made “at the bench.”

“THE COURT: The Court would agree that there has been a lot of approaching the Bench, but one of the reasons for the Court requiring this to be done is because both sets of lawyers continue to speak out in front of the Jury in what I consider to be an improper fashion. I have asked both sides to please quit making comments, start asking questions and don’t make comments to witnesses and so forth. That’s the reason that I am requiring it to be done at the Bench rather than out in front of the Jury.”

G.

The trial judge properly excluded the testimony of a Mr. Haynes, who was “paying on” a ring at Klein’s. Defense counsel wanted to show that Ms. Bice refused to accept Haynes’ check and stated that he would have to have cash money. There was a confrontation, and Ms. Bice called Kalman Shwarts, the store manager, who approved the check. Defense counsel contended that Shwarts and Bice were “working together” and that Haynes’ testimony would impeach both of them. The trial judge ruled that “the whole matter is irrelevant to this trial.”

Haynes’ testimony did not tend to show that Ashurst was entrapped nor did it tend to impeach either Shwarts or Bice on a material matter. Although given the opportunity, defense counsel was unable to establish the relevancy of Haynes’ testimony. It is impermissible to impeach a witness on an immaterial matter. C. Gamble, McElroy’s Alabama Evidence, § 156.01 et seq. (3rd ed. 1977).

H.

Ashurst contends that, because the evidence in his first trial was insufficient to sustain a conviction, his second trial violates his constitutional rights against double jeopardy. This issue was not raised in the circuit court and there is nothing before this Court other than bare allegations to support the contention that the evidence at Ashurst’s first trial was insufficient.

Our review convinces this Court that the defendant received a fair trial. The judgment of the circuit court is affirmed.

AFFIRMED.

TYSON, HARRIS and PATTERSON, JJ., concur.

TAYLOR, J., dissents with opinion.

TAYLOR, Judge,

dissenting.

I respectfully dissent. Section 13A-8-18, Code of Alabama 1975 states “(a) Receiving stolen property ... [o]f any value under the circumstances described in subdivision (b)(3) of section 13A-8-16 constitutes receiving stolen property in the second degree _” Section 13A-8-16(b)(3) refers to a person who “[rjegularly buys, sells, uses or handles in the course of business property of the sort received ... ”. The language is plain and clear. The appellant, fitting the description as set out in § 13A-8-16(b)(3), could have been convicted only of receiving stolen property in the second degree.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Kurt Max MILLER v. STATE.
    5 Div. 928.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Jan. 25, 1985 Alabma Supreme Court 84-222.

      John E. Enslen, Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane Lecroy Brannan, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Petitioner filed a petition for writ of ha-beas corpus in Elmore County alleging that the clerk of the Circuit Court of Choctaw County failed to provide him or his appointed counsel with the certificate of completion and transmittal of the record on appeal of his conviction for trafficking and a copy of the trial transcript. The State’s motion to dismiss was granted and from that ruling the petitioner appeals to this Court.

For habeas corpus to apply, the judgment under which the convicted person is held must be void on its face. Sneed v. State, 157 Ala. 8, 47 So. 1028 (1908). “Habeas corpus issues against void, and not merely voidable, judgments. * * * While habeas corpus will issue when the record shows an excess or a lack of jurisdiction on the part of the convicting court, ... an allegation of errors and irregularities in the conduct of the trial will not be considered.” Fields v. State, 407 So.2d 186, 187 (Ala.Cr.App.1981). The issue of the alleged failure of a circuit court to provide an appellant with a trial transcript is not cognizable in a petition for writ of habeas corpus. James v. State, 399 So.2d 904, 906 (Ala.Cr.App.1981). Allegations of errors or irregularities involving the appeal of a judgment which is not void on its face are properly raised in a petition for writ of error coram nobis. Longmire v. State, 443 So.2d 1265 (Ala.1982); Peterson v. State, 428 So.2d 201 (Ala.Cr.App.1983).

The petition was properly dismissed and the judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TAYLOR, Judge.

text:
    Stevie Tyrone ORR v. STATE.
    6 Div. 451.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-225.

      Miles M. Huffstutler, Homewood, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Stevie Tyrone Orr was indicted and convicted of theft of property in the second degree, § 13A-8-4, Code of Alabama (1975). He was sentenced to 15 years’ imprisonment under the Habitual Felony Offenders Act. Three issues are raised on appeal.

I

This is a shoplifting case involving the theft of a coat from Southeast Zayre Corporation in Birmingham. The appellant contends that the court erred by allowing the security manager to testify to the value of stolen property because his knowledge of value was acquired through inadmissible hearsay. The evidence tends to show that the appellant removed a coat from a rack, put it on, put his own coat on over it, and attempted to leave the store. The security manager, Hence Williams, stopped the appellant and placed him under arrest.

At trial, the only evidence presented on the issue of the value of the coat was the testimony of the security manager. The coat did not have a price tag on it. The security manager testified that he had an employee in the department from which the coat was stolen take the coat and compare it to identical coats on the rack to determine the price. After the police arrived he went to the rack and determined the price by the same procedure.

This case is similar in many aspects to DeBruce v. State, 461 So.2d 889 (Ala.Crim.App.1984). In that case a silver cup was shoplifted from Rich’s Department Store in Birmingham. The store detective was the only employee called to testify as to the value of the cup. This court held that she “was not qualified to testify to her opinion concerning the value of the cup” because of “the undisputed fact that her knowledge of that value was based solely on the price tag.” We adopted the position that store security officers are not qualified to testify as to the value of stolen merchandise where their knowledge is based solely on the price ticket, and that any such testimony should be excluded as incompetent. State v. White, 37 Conn.Super. 796, 437 A.2d 145 (1981); State v. Coleman, 19 Wash.App. 549, 576 P.2d 925 (1978); DeBruce v. State, supra.

In the present case the security manager testified that he had nothing to do with the pricing of goods in the store. His testimony concerning the value of the coat was based on what someone else told him and on a price tag he observed on another coat. According to this court’s ruling in DeBruce, the trial court erred in allowing the security manager to testify as to the value of the stolen property.

II

The appellant contends that the trial court erred in allowing a state’s witness to testify to other property allegedly stolen by appellant near the time of the property made the basis of this case and for which no charge was lodged against appellant.

As a general rule, evidence of other collateral crimes is not admissible as substantive evidence to establish the guilt of the accused in a particular crime. Miller v. State, 405 So.2d 41 (Ala.Crim.App.1981). One well established exception to this rule is where the evidence of other or collateral crimes is relevant as part of the res gestae. Johnson v. State, 335 So.2d 663 (Ala.Crim.App.1976), cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976). See Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala.L.Rev. 241 at 251 (1984).

A careful review of the record reveals that after the appellant was placed under arrest by the security manager and was apprised of his rights he attempted to gain his release by making a deal with the security manager. Appellant offered to surrender property which he had stolen and taken outside only minutes before he was apprehended while leaving the store with the coat which was the subject of the indictment. We believe that this statement by the appellant served to make it a part of the res gestae and indicated that his actions were close enough in time to show that it was part of one criminal transaction. Evidence of other alleged criminal activity is properly admitted where the episode is part of one continuous criminal transaction. Reeves v. State, 432 So.2d 535 (Ala.Crim.App.1983).

In the case of Howard v. State, 371 So.2d 475 (Ala.Crim.App.1979), this court held that where a defendant was indicted for feloniously taking and carrying away one diamond ring, testimony tending to establish that defendant had committed a similar offense at a store one block away on the same day as the crime charged should properly be admitted as constituting one continuous occurrence or adventure. In the present case the evidence tended to show that the defendant had committed the same offense at the same store only a few minutes earlier. This tends to establish an even more convincing argument for admission as constituting one continuous occurrence than that presented in Howard, supra.

The trial court did not err in allowing testimony concerning the other property allegedly stolen by the defendant.

Ill

The appellant contends that the trial court erred in not sustaining objections to the prosecutor’s remarks to the jury in final argument with regard to the effect of shoplifting on the community at large. These statements were: “Everyone of us in this room have to pay for it” and “People shoplift and the stores have to raise their prices.”

The trial judge is in the best position to collect and weigh all considerations in reviewing allegedly inflammatory questions or remarks by counsel, and great weight should be accorded his determination. Pickett v. State, 417 So.2d 589 (Ala.Crim.App.1982).

The comment in the present case is not unlike that in Varner v. State, 418 So.2d 961 (Ala.Crim.App.1982), in terms of its effect on the jury. There, the prosecutor in closing argument commented, “We can’t work for anything and hold on to it nowadays because people like Mr. Varner are going out and stealing it.” In Varner, supra, this court held that the comment was within the latitude allowed prosecutors in their exhortations to the jury to discharge their duties in such a manner as, not only to punish crime, but to protect the public from like offenses. Statements of counsel in argument must be viewed as in the heat of debate and must be valued at their true worth rather than as factors in the formation of the verdict. Hayes v. State, 395 So.2d 127 (Ala.Crim.App.1980), cert. denied, 395 So.2d 150 (Ala.1981); McQueen v. State, 355 So.2d 407 (Ala.Crim.App.1978); Pickett v. State, 417 So.2d 589 (Ala.Crim.App.1982).

The trial court at the time of closing arguments instructed the jury that the lawyers “can argue all inferences they can draw from the evidence,” that “they can argue their interpretation of the law” and that “what they say is not evidence.” This instruction would serve to offset any inflammatory result of the particular statements in question.

The trial court did not err in not sustaining the Defendant’s objection to the prosecutor’s remarks in closing argument.

Because the store security manager’s testimony was incompetent and should have been excluded, the conviction must be reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: TYSON, Judge.

text:
    Phillip Dwight HARDY v. STATE of Alabama.
    6 Div. 498.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-231.
    Charles M. Purvis and Virginia A. Vinson, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Phillip Dwight Hardy was indicted for assault in the first degree in violation of § 13A-6-20, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment.” Following a habitual felony offender hearing, the trial judge sentenced the appellant to 22 years in the penitentiary.

Since the facts of this case are not pertinent to our discussion of the two issues raised by the appellant on appeal, we pre-termit a recitation of such facts.

I

The appellant contends the prosecutor expressed his opinion as to the appellant’s guilt during his closing argument and, therefore, invaded the province of the jury.

The pertinent portion of the record is quoted below: (R. 124).

“MR. TUCKER: Mr. Armstrong says it’s a real serious charge and it is. It could have been worse. Luckily for him, and more luckily for Willie Perkins, Willie didn’t die. It would have been a murder then. He could also have been charged with attempted murder which is even more serious than assault in the first degree.
“We charged him with what we thought the evidence fit. And that is assault in the first degree, because he did cause serious physical injury.
“MR. ARMSTRONG: Object and move to exclude what he has been charged with, and ask the Court to instruct the jury to disregard.
“THE COURT: Overruled.”

We do not believe the above-quoted statement by the prosecutor was an expression of his opinion as to the appellant’s guilt. The prosecutor was merely explaining to the jury the reason this appellant was charged with this particular offense. His comment was an explanation of the nature of the evidence against this appellant. It was not the prosecutor’s opinion on material fact. See Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961); Milton v. State, 417 So.2d 620 (Ala.Crim.App.1982).

Therefore, we do not find the trial judge erred to reversal by overruling defense counsel’s objection to this remark.

II

During the State’s closing argument, the following remark was also made:

“I appreciate the time you have given us. I appreciate the attention you have shown us. I have nothing else really to argue about. I have told you I wouldn’t be long. The evidence is clear. The case has been short as far as the witnesses. We would ask that you convict him of the charge with which he is charged.” (R. 126).

The appellant claims the above-quoted portion of the record constituted an improper comment by the District Attorney on the appellant’s failure to testify. We find no merit to this contention. There were only three witnesses at this trial. Obviously, the State was referring to the brevity of the trial and the witnesses’ testimony, not to the appellant’s failure to testify or present any evidence. See Earley v. State, 358 So.2d 494 (Ala.Crim.App.1978), cert. denied, Earley v. State, 358 So.2d 501 (Ala.1978); Carden v. State, 382 So.2d 1158 (Ala.Crim.App.1980), cert. denied, 382 So.2d 1162 (Ala.1980).

Further, as the State points out in its brief, to constitute an improper comment on the accused’s failure to testify, the prosecutor must make a direct reference to the accused’s failure to take the witness stand. Ex Parte Yarber, 375 So.2d 1231 (Ala.1979) and cases herein cited. There was no such reference by the State in this case.

Therefore, for the reasons stated above, this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Robert M. DILLARD v. STATE.
    8 Div. 98.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-232.
    John 0. Cates, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellant was arrested on October 3, 1983, by Huntsville Police officers, and charged with possession of marijuana, and receiving stolen property. On October 4, 1983, appellant was taken to various locations in Madison County to help investigators of the Huntsville Police Department, who were attempting to recover the stolen property. While the investigators were at a house, appellant was left unsupervised by the officers, and he went out the back door of the house.

The Grand Jury of Madison County returned an indictment charging appellant with escape in the third degree. Ala.Code § 13A-10-33 (1975). On February 6, 1984, appellant appeared before the circuit court, and pled guilty to the escape charge. Appellant’s counsel informed the trial judge that appellant was going to plead guilty, and that he was going to take “a couple of minutes” to go over the form with appellant. After a brief recess, the proceedings continued, and the trial judge accepted appellant’s guilty plea.

Appellant alleges that the trial court failed to develop an adequate factual basis on which to base its determination that appellant knowingly and voluntarily pled guilty to the charge. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), requires that the trial judge make certain that the accused has a full understanding of what the guilty plea connotes, and it’s consequences. The plea must be voluntarily made, and the trial judge should be satisfied that there is factual basis for the plea. Dingler v. State, 408 So.2d 527 (Ala.Crim.App.1980), writ quashed, 408 So.2d 530 (Ala.1981).

Appellant alleges that the trial judge did not make a determination of whether the guilty plea was knowingly and voluntarily made. An examination of the record clearly shows that the trial judge elicited sufficient information from appellant to determine if the guilty plea was knowingly and voluntarily made. Appellant was represented by counsel, who informed the trial court that he had explained appellant’s constitutional rights to him. Appellant signed an Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971) form, which also listed his constitutional rights, and appellant stated that he understood his constitutional rights. Appellant was informed of the maximum and minimum punishment for escape in the third degree. The trial court and appellant further conversed:

“THE COURT: Do you understand you don’t have to plead guilty?
“THE DEFENDANT: Yes.
“THE COURT: But you can plead not guilty and that I am here as much to try your case and if you are innocent or declare your innocence as I am to determine your guilt and impose punishment. I am here for both purposes, whichever is appropriate. Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: You have entered a request to enter a guilty plea form, and if you do that, you should do that only if you are guilty. Do you understand?
“THE DEFENDANT: Yes.
“THE COURT: And for no other reason. Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: To the charge of escape in the third degree, how do you plead?
“THE DEFENDANT: Guilty.
“THE COURT: Is that because you are guilty or is there some other reason?
“THE DEFENDANT: No, because I am guilty.”

It is apparent that the trial court did, in fact, have enough information to ascertain that appellant was aware of the nature of the crime he was charged with committing. The record reflects sufficient facts from which the trial court could determine that appellant’s guilty plea was knowingly and voluntarily entered. Ex parte Dingler, 408 So.2d 530, 532 (Ala.1981).

Appellant’s admission that he pled guilty because he was guilty is an admission of all the elements of the offense charged. Carr v. State, 406 So.2d 440 (Ala.Crim.App.1981); Barnes v. State, 354 So.2d 343 (Ala.Crim.App.1978). A voluntarily given guilty plea concludes the issue of guilt, dispenses with need for judicial fact finding, is conclusive as to the defendant’s guilt, and is an admission of all facts sufficiently charged in the indictment. Morrow v. State, 426 So.2d 481 (Ala.Crim.App.1982).

The record indicates that the trial court had ascertained that appellant was aware of the crime charged in the indictment. Thus, we cannot say that appellant was unaware of the elements of the offense. Russell v. State, 428 So.2d 131 (Ala.1982). Once a guilty plea is properly accepted and entered, it is a “conviction of the highest order, and is an admission, of record, of the truth of whatever is sufficiently charged in the indictment.” Ex parte Sankey, 364 So.2d 362, 363 (Ala), cert. denied, 440 U.S. 964, 99 S.Ct. 1513, 59 L.Ed.2d 779 (1978). The trial court was not in error in accepting appellant’s guilty plea.

Appellant’s contention that the record infers that appellant was not in custody at the time of his attempted escape, but merely on bail, is not reflected in the record, and the issue is wholly without merit.

An examination of appellant’s contentions and the record reveals no errors prejudicial to appellant’s substantial rights. This cause is, hereby, due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    James WOMACK v. STATE.
    1 Div. 557.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Jan. 8, 1985.
    John Bertolotti, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

James Womack was convicted of burglary in the third degree, § 13A-7-7, Ala.Code 1975. He was sentenced as a habitual offender to 12 years’ imprisonment.

The evidence tends to show that on June 3, 1982, at approximately 1:45 a.m. Officer Bankston of the Mobile Police Department was summoned to the UMS Preparatory School on a burglar alarm call. Upon arrival he apprehended the appellant, who was crawling out of a window at the school from which an air conditioner had been removed. The appellant, however, did not have the air conditioner in his possession nor was it ever recovered.

The appellant contends that the trial court erred when it failed to give his requested charge on criminal trespass in the second degree as a lesser included offense of burglary in the third degree.

“A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders.” Ala.Code (1975), § 13A-7-7. Therefore, the elements of these two crimes are essentially the same, except that burglary in the third degree requires proof of an intent to commit a crime once the trespass is made.

It is well established under Alabama law that an individual accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment when there is a reasonable theory from the evidence to support his position. Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973); Chavers v. State, 361 So.2d 1106 (Ala.1978); Staggs v. State, 51 Ala.App. 203, 283 So.2d 652 (Ala.Crim.App.1973).

A charge on lesser included offenses should be denied, however, unless the charge (1) defines the offense, (2) is based on a consideration of all the evidence, (3) sets out the degree of proof necessary to establish the offense, and (4) would not tend to mislead the jury. Lami v. State, 43 Ala.App. 108, 180 So.2d 279 (1965); Tate v. State, 462 So.2d 748 (Ala.Crim.App.1984); Chavers, supra.

The evidence tends to show that the appellant at the least committed a criminal trespass, since he was apprehended while crawling out of a window at the school. However, some doubt could arise as to proof of the appellant’s intent to commit a crime after making entry. It is highly probable that the appellant had the intention of committing a theft, and the jury so found. However, since neither the missing air conditioner nor any other property from the school was ever traced to his possession, there is a lack of evidence, which is consistent with guilt only of the lesser offense.

From a consideration of all the evidence a reasonable theory is presented to support the appellant’s contention that a charge on criminal trespass in the second degree should have been given. The offense was within the definition of the lesser offense and the charge set out the degree of proof necessary to establish the offense. The charge in this instance would not confuse or mislead the jury.

Accordingly, we must find that the trial court erred in not giving the requested charge on criminal trespass in the second degree as a lesser offense included in burglary in the third degree. Thus, the judgment is reversed and the case remanded for further proceedings.

REVERSED AND REMANDED.

All the Judges concur.


author: PATTERSON, Judge. PATTERSON, Judge.

text:
    David Lee WALDROP v. STATE.
    1 Div. 784.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Dec. 11, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-308.

      John Bertolotti, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for appel-lee.
   PATTERSON, Judge.

Appellant David Lee Waldrop was indicted in a two-count indictment by the Mobile County Grand Jury in May 1980, one count charging murder in the first degree of two persons by one act or a series of acts, and one charging a killing incident to a robbery or attempt to rob. Ala.Code 1975, § 13-ll-2(a)(2) and (10) (1975) (repealed 1980). Appellant was found “guilty of the capital felony as set out in the indictment”, and that conviction was subsequently reversed by this court in Waldrop v. State, 424 So.2d 1345, 1346 (Ala.Crim.App.1982), cert. denied, No. 82-226 and 82-227 (Ala.1983). Appellant was retried pursuant to the original indictment on January 9, 1984; he was found “guilty of the capital felony as charged in the indictment”, and sentenced to life imprisonment without parole. It is from this second conviction that Waldrop now appeals.

On the afternoon of July 11, 1977, Richard Hacker, assistant manager of Del-champs Store No. 10, and Terry Stainback, a part-time cashier, left the store with the afternoon bank deposit. Thirteen days later their partially decomposed bodies were discovered in a remote, wooded area in west Mobile County. Each victim had been killed by a. single shotgun wound to the head.

Police authorities in Mobile had no leads on this double homicide for over two years. On December 12, 1979, Detective Willie Estes received a call from Lance Delaney of the Hillsborough County Sheriffs Department in Tampa, Florida. Delaney informed Estes that he had some information, from an informant, regarding a double homicide in which two people were taken some distance from a store, robbed, and killed with a shotgun. Delaney further inquired from Estes as to whether there was a reward connected with the case, to which Estes replied in the affirmative. Estes requested additional information on the matter and asked Delaney to call back if such was obtained. Delaney called back a few days later with a more detailed account of the informant’s knowledge. According to Delaney the “confidential informant” said that two people were involved in the Delchamps killings. One person was named Larry Stahl, and the other person’s name was not known by Delaney. Delaney, however, did state that the second person lived on Roderick Street in Mobile next door to a Mr. Millwood and that this second person’s mother was employed by Delchamps. The informant also told Delaney that the two individuals involved in the crime used the vehicle and gun belonging to the second person’s father. Upon investigation of this information, the police focused their investigation upon appellant. It was ascertained that appellant lived at the address stated and that appellant’s mother was employed at the same Del-champs store as that at which the homicide victims had been employed.

On January 2, 1980, Detective Estes and three other officers flew to Tampa to meet with the informant, Roy Reynolds. Reynolds, in turn, took the officers to one Charles Roberts, who had given Reynolds the information he knew about the Del-champs killings. Roberts verified the information Reynolds had told the authorities.

Roberts told the investigators that he and Luke Stahl had been in the military together and were roommates in Mobile around the time of the Delchamps killings. Luke Stahl is the brother of Larry Stahl, whom Reynolds had implicated in the killings. Roberts stated that one night between the time of the robbery and the time the bodies were discovered he and Luke were in a bar in Mobile; that Luke told Roberts that Larry Stahl and appellant had abducted the two people from Delchamps and had killed them. According to Roberts, Luke said that appellant did the actual killing; that the vehicle and gun used belonged to appellant’s father; and that appellant’s mother and father were on vacation at the time of the incident. The investigators learned from Roberts that Luke and Larry lived in Larkin, Kansas.

On January 4, 1980, Estes and the other three officers flew to Larkin, Kansas, where they talked to Larry Stahl. Larry Stahl denied any participation in the crime. The investigators also spoke with Luke Stahl, who claimed appellant’s gun had been used and that his brother, Larry, was not the killer. Luke refused to tell the investigators how he knew these facts. After talking with both Luke and Larry, Estes called Detective Driggers in Mobile and told Driggers to “pick up” appellant.

Detective Driggers and two other officers proceeded, without a warrant, to appellant’s residence at approximately 9:30 p.m. on January 4, 1980. Upon their arrival appellant answered the door and the officers identified themselves as law enforcement officers. Appellant was requested to accompany the officers downtown, because they needed to talk with him. Appellant asked to get his coat and stepped back in the house; the officers, one on each side of appellant, followed him into the house. While inside, appellant attempted to use the telephone; however, Driggers put his finger on the cut-off button of the telephone, preventing appellant from using the phone, and told appellant he could make any calls he wanted from the Sheriffs Office downtown. Appellant was then escorted outside his home, with officers on each side. Appellant asked if the officers thought he needed a lawyer, and was told he could call one if he thought he would need one.

Appellant was taken to the Sheriffs Office. After his arrival he apparently asked if he had to stay there. Officer Baker testified at the preliminary hearing that appellant was told “in a sense” that if he tried to leave “we’ll probably arrest you.” At trial Officer Baker did not remember saying this; however, his testimony produced from the preliminary hearing was used to refresh the officer’s vague memory. At no time was appellant told he was under arrest nor was he told that he was free to go or that he did not have to accompany the officers.

Appellant was then given a form listing his Miranda rights, which he appeared to read and understand; appellant then signed a waiver of these rights. Initially appellant denied any participation in the Delchamps killings. After about twenty minutes appellant asked, “Well, what’s going to happen to me? What’s going to happen to me if I tell you about it?”, to which Officer Driggers advised, “It’s just according to whether you pulled the trigger or not”. At that point appellant gave an oral statement. The detectives then contacted District Attorney Galanos, who, upon arrival, re-read appellant his Miranda rights, had appellant sign a second waiver form, and proceeded to take a written statement from appellant.

In this statement, which was read to the jury, appellant related in detail the circumstances of the murder and robbery, stating that he and Larry Stahl had abducted Hacker and Stainback from the parking lot of Delchamps No. 10 and taken them to a secluded area where appellant tied the victims’ arms together. Stahl burned the bank bag and its contents except the cash. Appellant stated that as he was entering the vehicle Stahl shot Hacker and then Stainback with a shotgun that appellant had illegally purchased some months before. Appellant stated that these events occurred while his parents were on vacation and that they had used his father’s car. Appellant further stated that his mother worked for Delchamps No. 10, and that he also worked there for a while. He was familiar with the store’s deposit procedure and had heard his mother tell his father about it before. Finally, appellant disclosed that the shotgun had been disposed of at a land fill and that shortly thereafter appellant left for North Carolina.

I

Appellant first contends that the trial court erred in refusing to allow individual voir dire of the jury necessitated by adverse pretrial publicity. Appellant maintains that, because many of the prospective jurors indicated they had heard or seen something about the case, appellant should have been allowed to individually determine which jurors were aware of his previous reversed conviction. Appellant offered no evidence of the extent of any prejudicial pretrial publicity, nor has he asserted any in brief, other than the fact that many jurors had heard or seen something about the case.

As a general rule, it is within the trial court’s discretion to allow individual voir dire of prospective jurors. See Duncan v. State, 436 So.2d 883, 900 (Ala.Crim.App.), cert. denied, (Ala.1983), cert. denied, — U.S. -, 104 S.Ct. 720, 79 L.Ed.2d 182 (1983), and cases cited therein. Additionally, this court has recently stated:

“Prospective jurors who have heard of a previous conviction on the same charges need not be automatically excluded from the venire.... A prospective juror with knowledge of a previous conviction need not be dismissed for cause, if the trial court determines that the juror does not have a fixed opinion of appellant’s guilt, but rather can lay aside any preconceived notions or opinions and render a verdict based solely upon the evidence presented in court.”

Beck v. State [Ms. 7 Div. 909, March 20, 1984] (Ala.Crim.App.1984) (citations omitted) (emphasis in original). The mere fact that prospective jurors know something about a case, at the time of empaneling, is not unusual, nor is it sufficient to invoke individual voir dire where the trial court takes the necessary steps to ensure that the accused receives a fair trial by a panel of impartial and indifferent jurors. We expect that citizens of this state will take an interest in the affairs of their community, and where a criminal act occurs in a certain community, the accused cannot expect that the venire, drawn from that community, will be totally devoid of any knowledge surrounding the circumstances of the criminal act. “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based upon the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961).

Appellant relies on United States v. Hawkins, 658 F.2d 279 (5th Cir.1981); United States v. Liddy, 509 F.2d 428 (D.C.Cir.1974); and Silverthorne v. United States, 400 F.2d 627 (9th Cir.1968), to support his contention of error. These cases have been interpreted to hold that no basis for reversal is present unless the accused has shown that the trial court abused its discretion to the substantial prejudice of the accused. Liddy, 509 F.2d at 453. Whether substantial prejudice exists depends upon the totality of the circumstances. Id. The Fifth Circuit further elaborated on the trial court’s discretion, stating:

“This broad discretion, however, is limited by the requirements of due process, and the reviewing court must independently evaluate the voir dire testimony of empanelled jurors, as well as the record as a whole, and determine whether the method of voir dire adopted by the district court is capable of giving ‘reasonable assurances that prejudice would be discarded if present’ ... The district court’s decision will ‘not be lightly overturned’.”

Hawkins, 658 F.2d at 283 (citations omitted). We agree with the line of reasoning espoused by the federal courts; however, appellant fails to prove that the trial court abused its discretion, because he fails to show substantial prejudice due to pretrial publicity.

In the three federal cases relied upon by appellant, there was a clear showing of the nature and extent of the pretrial publicity. In Hawkins, supra, the “appellants filed ... over forty articles appearing in the local Beaumont, Texas newspapers, as well as transcripts of several television reports, all relating to the arrests, indictments, and pretrial activities surrounding the case”. 658 F.2d at 284. The court went on to discuss the enormous amount of adverse pretrial publicity that occurred in this case and stated:

“Of course this does not mean that every case involving exposure to pretrial publicity automatically requires the ‘time consuming, probing, preferably individual voir dire described in [United States v.] Davis [583 F.2d 190 (5th Cir.1978)] ...; nor does it mean that such an examination, when necessary, must always be conducted apart from the other jurors.... What it does mean, however, is that when the nature of the publicity as a whole raises a significant possibility of prejudice, and a juror acknowledges some exposure to that publicity, more than the abbreviated questioning ... is necessary....”

Hawkins, 658 F.2d at 285 (citations omitted). Likewise, overwhelming evidence of adverse pretrial publicity surrounding the trials was present in Liddy, supra, and Silverthorne, supra. As noted previously, no such evidence was admitted or is argued in the case sub judice.

Absent a showing that the nature of the pretrial publicity as a whole raises a significant possibility of prejudice, the court is acting wholly within its discretion in denying a motion for individual voir dire. This should not be construed as a direction to implement individual voir dire on a showing of substantial pretrial publicity; individual voir dire remains within the sound discretion of the trial court. In conclusion, we note that the trial court’s approach to qualifying the jury was very similar to the approach used in Liddy, 509 F.2d at 436, wherein the court stated:

“[The] trial judge used voir dire examination procedures similar to those employed in [United States v. ] Bryant [471 F.2d 1040 (D.C.Cir.1972) ] — general questions addressed to the entire array, followed by individual questioning of those who responded affirmatively to any of the initial inquiries, and thus raised the possibility they might have formed an opinion on the case. Although the trial judge recognized that the Watergate matter had been publicized extensively, he did not abuse his discretion in declining the defendants’ request that all the veniremen who had heard anything about the case be examined individually.”

In the case at bar the trial judge interviewed the veniremen in panels of twelve, clearly instructed the members of each panel not to state what they had heard, and determined whether what they had heard would affect their verdict. No communication of any prejudicial information occurred. Those jurors who indicated that what they heard would affect their verdict were dismissed from the panel. The judge allowed the attorneys to submit additional questions if they wished. We have reviewed the record in this matter and conclude that the trial court’s method of em-panelling the jury provides reasonable assurances that prejudices would have been discovered if present. We find absolutely no abuse of discretion in the trial court’s method of empanelling the jury.

II

Appellant contends that he was illegally arrested in his home, without a warrant, or without probable cause coupled with exigent circumstances. Appellant relies on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which holds that the Fourth Amendment prohibits the police from making a warrantless and non-consensual entry into a suspect’s home for the purpose of making a routine felony arrest.

This issue was addressed on appellant’s first appeal to this court, wherein we stated:

“Other than the mere fact of the officers’ physical presence, there is nothing in their conduct to suggest any element of coercion. As in State v. Anonymous, 37 Conn.Sup. 755, 436 A.2d 789 (1981), the defendant willingly came out of his house onto his front porch. At that time Payton did not apply and its rule protecting against a warrantless entry into a home was no longer applicable. ‘Although the porch of a house may be characterized as private under the law of property, it is not usually a place where a person has a reasonable expectation of privacy and the same Fourth Amendment protection (as his home) is not afforded.’ Anonymous, 436 A.2d at 793. See also United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).”

Waldrop v. State, 424 So.2d 1345, 1350 (Ala.Crim.App.1983).

In addition to the above cited authority, we find additional support for the proposition that an arrest outside the boundaries of a home does not fall within the protection of Payton, supra, from the Payton case itself, wherein it is stated:

“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms .... In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.”

Payton, 445. U.S. at 589-590, 100 S.Ct. at 1381-1382 (emphasis added). The protections afforded in Payton clearly do not apply outside the physical boundaries of the home. The theoretical basis of the Payton decision is that an arrest within a home violates the “sanctity of the home”, id. at 589, 100 S.Ct. at 1381, whereas outside the boundaries of the home, no such violation is present, id. at 587, 100 S.Ct. at 1380.

The actual point of an arrest is usually a question of fact. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Foy v. State, 387 So.2d 321 (Ala.Crim.App.1980). An arrest occurs when one’s freedom of movement has been curtailed. Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); Foy, supra, at 324. In 6A C.J.S. Arrest § 2 (1975), “arrest” is defined:

“An arrest is the taking, seizing, or detaining the person of another by touching, or by any act which indicates an intention to take him into custody and subject the person arrested to the actual control and will of the person making the arrest, or any deprivation of the liberty of one person by another or any detention of him, for however short a time, without his consent, and against his will, whether it was by actual violence, threats, or otherwise, [emphasis added].”

From the record before us it is clear that appellant was taken into custody and subjected to the actual control and will of arresting officers while on the front porch of his home. This is evidenced from the facts that (1) the officers escorted appellant into his home in order to allow appellant to obtain his coat; (2) the officers prevented appellant from making any communications with the outside world when Detective Driggers disconnected appellant’s attempt to telephone his father; (3) the officers escorted appellant outside his home to the awaiting police car; and (4) when appellant asked if he could leave, Officer Baker indicated that he would be arrested if he tried to do so.

We, therefore, conclude that appellant was actually arrested while on the front porch of his home and hold that when a person voluntarily removes himself from the boundaries of his home the protections afforded in Payton, supra, no longer apply. In making this determination we do not express any opinion as to the situation where a person is coerced or involuntarily removes himself from the boundaries of his home.

HI

Having determined that appellant was arrested outside his home, we next determine the question of whether the police had sufficient probable cause to validly arrest appellant without a warrant. In order for a warrantless arrest to be valid, the arresting officer must have probable cause to make the arrest. Foy v. State, supra; Braxton v. State, 350 So.2d 753 (Ala.Crim.App.1977); Sexton v. State, 349 So.2d 126 (Ala.Crim.App.1977); see also, Ala.Code (1975), § 15-10-3(3). In making this determination of probable cause, we are guided by the United States Supreme Court’s most recent directions. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Aguilar-Spinelli tests were abandoned in favor of the “totality of the circumstances test”. 103 S.Ct. at 2332; McCants v. State, 459 So.2d 992 (Ala.Crim.App.1984). The Court in- Gates, supra, clarified its prior holdings in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), by stating:

“[A]n informant’s ‘veracity’, ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case .... Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.”

103 S.Ct. at 2327, 2328.

The existence of probable cause must be determined from the facte of each ease. Carter v. State, 435 So.2d 137, 139 (Ala.Crim.App.1982); Moore v. State, 415 So.2d 1210 (Ala.Crim.App.1982), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982); Hatton v. State, 359 So.2d 822 (Ala.Crim.App.1977), cert. quashed, 359 So.2d 832 (Ala.1978). One does not have probable cause unless he is possessed of information upon which, if submitted to a magistrate, a warrant would be issued. Ex parte Meeks, 434 So.2d 844 (Ala.), on remand Meeks v. State, 434 So.2d 848 (Ala.Crim.App.1983); Knight v. State, 346 So.2d 478, 481 (Ala.Crim.App.), cert. denied, Ex parte State ex rel. Attorney General, 346 So.2d 483 (Ala.1977), appeal after remand, Knight v. State, 356 So.2d 765 (Ala.Crim.App.1978). It has been stated that probable cause exists “where the facts and circumstances within the officer’s knowledge and of which he has reasonable trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed”. Knight, supra, at 481, and cases cited therein. “Probable cause is concerned with ‘probabilities’, that ‘are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act’ ”, Carter v. State, 435 So.2d at 139 (quoting Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)); see also Illinois v. Gates, 103 S.Ct. at 2328, quoting Brinegar, supra, with approval.

The facts of this case contain sufficiently reliable information to warrant a finding of probable cause, thus making the appellant’s arrest valid. The information supplied to Detective Estes by Ray Reynolds was verified by independent police corroboration. Ray Reynolds’s factual rendition was then verified by Charles Roberts, who appears to be merely a citizen informer who received no pecuniary gain for his part in the investigation. Roberts established his basis of knowledge on information he had received from Luke Stahl, Larry Stahl’s brother. Roberts, furthermore, informed the detectives as to the present location of Luke and Larry, which was also verified.

Luke Stahl provided the final information which clearly establishes the existence of probable cause. Larry denied everything; Luke stated that Larry did not kill anyone, yet the implication is present, that Larry had participated in the robbery-murder, along with appellant.

The reliability of the informant’s information, when viewed from the totality-of-the-circumstanees position, clearly establishes the necessary probable cause to effectuate a warrantless arrest. Luke Stahl basically corroborated and verified the information supplied by Reynolds and Roberts. Luke Stahl essentially informed on his brother in his attempt to protect him. The information supplied by the informants came from Luke Stahl, whose relationship to Larry Stahl makes it unlikely that Luke Stahl would fabricate this story in order to implicate appellant and his brother (Larry) in a robbery-murder crime. Upon verification of the facts supplied by Reynolds and Roberts, through the implied admission of Luke Stahl, the police clearly had probable cause to obtain a warrant for appellant’s arrest.

IV

Appellant’s final contention is that the trial court improperly instructed the jury on finding “ ‘a particularized intent to kill’ by the non-triggerman accomplice”. Ex parte Raines, 429 So.2d 1111, 1112 (Ala.1982). The Alabama Supreme Court set forth the requirements of this question in Ex parte Raines, 429 So.2d at 1113:

“To affirm a finding of a ‘particularized intent to kill,’ the jury must be properly charged on the intent to kill issue, and there must be sufficient evidence from which a rational jury could conclude that the defendant possessed the intent to kill.”

The trial court properly instructed the jury on the intent to kill issue, the record, in pertinent part, is as follows:

“COURT: In addition to this robbery or while in the commission or perpertration of this crime, the Defendant must have intentionally killed the deceased, Richard Hacker, as opposed to accidentally or unintentionally. In this case under this count, again, you would have to believe beyond a reasonable doubt and to a moral certainty, first, that David Lee Wal-drop did rob or attempt to rob the deceased, Richard Hacker, as I have defined that for you, and that he intentionally killed him.
jfc ⅜ * * * *
“You must look to all the surrounding facts and circumstances of this case to determine if that specific intent to kill is present.”

The court then correctly instructed the jury on accomplice liability. Appellant argues that no distinction was made between an accomplice to the robbery and an accomplice to the killings. The court, however, did instruct the jury that appellant could not be convicted of capital murder under the felony-murder doctrine. The court specifically instructed the jury that “intent cannot be supplied by the felony-murder doctrine”. The jury was thus properly instructed on the issue of “particularized intent to kill” stemming from appellant’s participation as an accomplice to the killings, rather than his participation as an accomplice to the robbery.

The jury could rationally conclude from the evidence presented at trial that appellant possessed the intent to kill, based on accomplice liability theories. There can be no doubt that appellant encouraged and supported his cohort and was present to render assistance should it become necessary. In appellant’s statement, which was admitted into evidence, and before the jury, appellant stated that he supplied the murder weapon and bound the hands of the victims. The jury could rationally conclude from this evidence that appellant possessed the particularized intent to kill necessary to support a conviction of capital murder.

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.

On Rehearing

PATTERSON, Judge.

On application for rehearing, appellant asserts that the record does not support the conclusion that appellant ventured beyond the threshold of his home such that the protections afforded in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), were inapplicable. Appellant also requests additional statement of facts pursuant to A.R.A.P. 39(k). Appellant asserts that the testimony of Officer Baker establishes that appellant was inside the boundaries of his home. Officer Baker was asked on direct examination:

“Q. All right. So, apparently Mr. Wal-drop had come outside the house to speak to you initially?
“A. This was at the door itself. We was standing on the edge of the porch and he was standing inside the house at the door.”

This testimony of Officer Baker standing alone does not clearly establish that appellant was inside or outside his home; the testimony is vague and subject to interpretation, especially in view of the question being phrased with the term “initially”. This line of questioning of Officer Baker was not pursued to establish specifically by him where the appellant was located when the officers first talked with him, nor was the subject broached on cross-examination.

On appellant’s motion to suppress the statement made by appellant, the defense offered the testimony of Mr. Aubrey Dean Robinson, who was visiting at appellant’s home the night he was arrested. In testifying before the court, Mr. Robinson related the following:

“Q. After the knock on the door what happened?
“A. David, he answered the door and then he walked out and I noticed there was about two or three men. He walked out.
“Q. Did you see who was at the front door?
“A. Just two or three men, that’s all.
“Q. Two or three men, and you say David walked outside?
“A. Yes, sir.
“Q. Did you hear anything that was said either when the two men knocked on the door and he answer “or outside”?
“A. No, sir.
“Q. All right, approximately how long were they outside?
“A. About fifteen, twenty minutes.
“Q. And did all of you all remain in the house while these people were outside?
“A. Yes, sir.
“Q. And then after remaining out there fifteen or twenty minutes what happened?
“A. Then two men escorted him inside and ...
“Q. In what manner did these two men come into the house?
“A. Sir?
“Q. How did these two men come into the house?
“A. One on each side of David?

(emphasis added). This testimony was elicited by appellant’s attorney on direct examination at the hearing to suppress appellant’s confession, based on appellant’s alleged grounds of illegal arrest and invasion of his home. The appellant did not take the stand to testify for the limited purpose of adducing evidence of his arrest. The clearest testimony as to appellant’s movements when the officers arrived, came from Mr. Robinson, who testified on behalf of appellant and was inside the home when these events occurred. The trial court had ample evidence upon which to base a finding that appellant was legally arrested. The appellant’s contention that he was illegally arrested in his home without a warrant is therefore without merit.

We have reviewed appellant’s two remaining contentions in his application for rehearing, and find them also to be without merit.

Consequently, for the reasons herein stated, appellant’s application for rehearing is due to be, and the same is hereby, overruled. His motion filed pursuant to A.R. A.P. 39(k) moving the court to adopt certain facts is due to be, and is hereby, denied.

APPLICATION FOR REHEARING OVERRULED; RULE 39(k) MOTION DENIED; OPINION EXTENDED.

All Judges concur.

      . See Stahl v. State, 426 So.2d 909 (Ala.Crim.App.1982), writ quashed, 426 So.2d 917 (Ala.1983).