author: TYSON, Judge.

text:
    Fred D. ERVIN v. STATE of Alabama.
    7 Div. 129.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    On Return to Remand Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-231.

      B. Greg Wood, Wood, Hollingsworth & Willis, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Fred D. Ervin was indicted for assault in the second degree in violation of § 13A-6-21, Code of Alabama 1975. The jury found the appellant guilty “as charged in the indictment” and the trial judge set sentence at four years’ imprisonment in the penitentiary.

I

Prior to trial, defense counsel filed a plea in abatement and a motion to quash based on the fact that the foreman of the Grand Jury that returned the indictment in this cause against this appellant, was a law partner of the assistant district attorney. At the hearing on the plea and the motion, the following occurred:

“That if we we could stipulate basically as I have alleged in my plea in abatement or Motion to Quash that on or about January 10, 1983, the January 1983 term of the Talladega County Grand Jury was duly empaneled. That on or about that same date The Honorable Barry N. McCrary was duly appointed to serve and did serve as Foreman of that Grand Jury. That that Grand Jury did return an indictment against the Defendant signed by Barry N. McCrary as Foreman of the Grand Jury which is the indictment we are going to trial on in this case.
“That the Honorable Barry N. McCrary is a practicing attorney in the city of Talladega, Talladega County, Alabama, and he is a law partner of The Honorable Julian M. King, Attorney at Law and a part-time Assistant District Attorney in the county, in and for this circuit.” (R. 3).

The trial judge denied the appellant’s plea in abatement and motion to quash based on the above. The appellant contends this was error to reversal because the above situation violates §§ 12-16-207, 209, Code of Alabama 1975.

Section 12-16-207, Code of Alabama 1975 provides that a prosecutor shall not “be present at or take any part in the deliberations” of the Grand Jury. Section 12-16-209, Code of Alabama 1975, provides that a district attorney “must not be present at the expression of their [the Grand Jurors’] opinions or the giving of their votes on any matter before them.”

The appellant claims these two statutes were violated because the knowledge of the assistant district attorney should have been imputed to his law partner and therefore, vicariously, disqualify him from service on the Grand Jury.

While we do not find that the situation, as set forth above, in this case expressly violates the above cited statutes, or that the law partner was incompetent, as a matter of law, to serve as a grand juror because of a pre-conceived bias or prejudice, we do believe any possibility of a conflict of interest should be avoided in this case. See Sheppard v. State, 243 Ala. 498, 10 So.2d 822 (1942).

In order to avoid any claim of impropriety, we are of the opinion that the proper course of action herein is to remand this case with directions to the trial court, so that the trial judge may make a factual determination as to what confidential information, if any, with reference this cause, was exchanged between the law partner and the district attorney or any full or part time member of his staff. If the trial judge finds that the law partner possessed no disqualifying knowledge when the Grand Jury was convened, then he was, in fact, competent to serve as a member of and to be the foreman of the Grand Jury.

As this court stated in Terry v. State, 424 So.2d 710 (Ala.Cr.App.1982):

“We do not wish to be understood as retreating from the high standards of ethical conduct embodied in Canon 9 of the Alabama Code of Professional Responsibility. While we reaffirm the principle that attorneys should avoid even the appearance of impropriety, we agree with the South Dakota Supreme Court, that:
‘[w]hen dealing with ethical principles, it is apparent that we cannot paint with broad strokes. The lines are fine and must be so marked. Guideposts can be established when virgin ground is being explored, and the conclusion in a particular case can be reached only after painstaking analysis of the facts and precise application of precedent.’
Schmidt v. Pine Lawn Memorial Park, Inc. [86 S.D. 501] 198 N.W.2d [496] at 502 [1972] (Quoting United States v. Standard Oil Co., 136 F.Supp. 345, 367 (S.D.N.Y.1955)).
‘Improper surface appearances are capable of damaging the judicial function and image as well as carrying a potential for actual injury to a party. However, the discretion of the trial judge in such matters is very broad for appearances may be misleading and the overall proper administration of justice may well allow the trial judge to ignore appearance in favor of fact. What might appear as a conflict of interest on the surface can, in fact, be no conflict at all or so insignificant as to be overcome by other circumstances.’
Schmidt, supra, 198 N.W.2d at 502, quoting Waters v. Western Co. of North America, 436 F.2d 1072, 1073 (10th Cir.1971).”

Therefore, this cause is remanded to the trial court with directions to make a factual determination as to whether there existed a conflict of interest in this case, as herein noted. See Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956).

This cause is remanded to the trial court with directions that the appellant and his counsel be present and a hearing conducted on the issue herein set forth. A transcript of this hearing shall be prepared following this hearing, with the appropriate findings set forth in writing by the trial judge, and such transcript promptly returned to this court.

REMANDED WITH DIRECTIONS.

All the Judges concur.

On Return to Remand

This cause was remanded to the circuit court for a hearing, to determine whether or not the assistant district attorney whose law partner served as foreman of the Grand Jury which returned the indictment in the instant case had received information prior to his service on the Grand Jury, which might have precluded or prevented such service. The trial court determined that the law partner who served as foreman of the Grand Jury possessed no disqualifying information relative to this case.

I

The trial court submitted its written findings to this court which reveal the following:

“... Barry McCrary possessed no disqualifying knowledge when this Grand Jury that indicted Fred D. Ervin was convened on January 10, 1983, and was therefore competent to serve as a member of and to be foreman of the Grand Jury based on the following findings of fact:
“(1) That Assistant District Attorney King did not confer with his partner, Barry McCrary, relative to the prosecution of Fred D. Ervin at any time prior to the convening of the Grand Jury on January 10, 1983 or subsequent to the convening thereof in which Fred D. Ervin was indicted.
“(2) That Assistant District Attorney King had no knowledge that Fred D. Ervin had been charged with any crime or that his case was to be presented to a Grand Jury for its consideration prior to January 10, 1983.
“(3) That Assistant District Attorney King did not participate in prosecution of Fred D. Ervin at this Grand Jury during this session. In fact, Mr. King was in the hospital when this Grand Jury was convened by Judge William C. Sullivan on January 10, 1983. That a true bill was rendered by this Grand Jury as to Fred D. Ervin on January 11, 1983 and Assistant District Attorney King did not make an appearance at this Grand Jury until January 12 or January 13, 1983.
“(4) That the law partner to Assistant District Attorney King, namely Barry McCrary, did not confer with Assistant District Attorney King or any other member of the District Attorney’s Staff including the District Attorney, Robert Rumsey, relative to the prosecution of Fred D. Ervin at any time prior to the convening of this Grand Jury on January 10, 1983, that indicted Fred D. Ervin.
“(5) That Attorney Barry McCrary had no knowledge that Fred D. Ervin had been charged with any crime or that this case was to be presented to a Grand Jury for its consideration prior to January 10, 1983.
“(6) That Attorney Barry McCrary and Assistant District Attorney King did not, confer with each other after the convening of this Grand Jury relative to the prosecution of Fred D. Ervin while this Grand Jury was in session.
“(7) That Attorney McCrary had no preconceived bias or prejudice as a Grand Juror in this case either because of his partnership with Assistant District Attorney King or for any other reason presented to this Court.
Done this 7th day of September, 1983.
/s/ Jerry L. Fielding Jerry L. Fielding Circuit Judge”

From the above recitation, this court finds that what appeared to have been a possible conflict of interest was, in fact, no conflict whatever. See Terry v. State, 424 So.2d 710 (Ala.Cr.App.1982). We can find no violation of §§ 12-16-207, 209, Code of Alabama 1975 or the Code of Ethics for Lawyers. Therefore, we hold the assistant district attorney’s law partner was competent to serve as a member of and to be foreman of the Grand Jury which returned the indictment in the case at bar. The appellant’s motion to quash the indictment was properly denied by the trial judge.

II

The appellant, following a presentation of the State’s case made a motion to exclude the evidence, and after trial, filed a motion for new trial, each of which challenged the weight and sufficiency of the State’s evidence. Both of these motions were denied by the trial judge.

Briefly stated, the victim in this cause was Katherine Oden, the former wife of the appellant, who lived at 30-C Howard Drive in Sylaeauga, on October 7, 1982, with two children of her former marriage to the appellant, Fred Ervin. The two children’s names are Kenyata Christopher Oden, age 12 and Crystal Shena Oden, age 8. The appellant came to the Oden apartment about 5:30 in the morning, knocked on the door on the pretext of having some money for her, and after the door was opened, Fred Ervin began pulling on Katherine Oden, and struck her with his fist. He cursed and told her, “I don’t appreciate the s... you’re pulling on me” and struck her a second time. She stated that he struck her with what appeared to be a flashlight, knocked her down and cursed, saying, “I will kill your g.d. ass if you don’t leave those men’s alone.” She stated that a neighbor and her children came running and found her lying on the floor bleeding and took her to the hospital about 6:30 that morning. She stated that she required about eight stitches and that she remained in the hospital two and a half days and had to go back to the doctor as an out patient because her jaw was broken and had to be wired for six weeks.

Katherine Oden’s testimony was corroborated by her son, Kenyata or Ken Oden, and her daughter, Crystal Oden. The two children told of going next door and getting a neighbor to telephone police and help take their mother to the hospital.

This incident was also confirmed by their next door neighbor, Fannie Hoytt, who told of hearing Katherine Oden screaming and opening the door and seeing Ms. Oden’s former husband standing over her with a flashlight. He turned to her and told her, “Bitch, get back in your own damn apartment and mind your own business.” She heard Mrs. Oden screaming, “Fred, leave me alone.” She stated that she helped Mrs. Oden’s sister take her to the hospital.

The appellant testified in his own behalf, indicating that he had gone by the apartment to see about the children on the early morning of October 7, 1982. He stated he lived at his parents’ home. He stated that when he opened the door, his former wife asked him if he had brought her some money and when he said that he had not, she grabbed a butcher knife and started chasing him around the apartment. He stated that they wrestled back and forth and that his wife fell and struck her head on a ceramic flower pot shaped like an elephant. He stated that this was how she cut her head. Appellant denied carrying a flashlight to the apartment or striking his wife with a flashlight or his fists.

Intent to take life may be shown by inference, via the character of the assault, the use of a deadly weapon, and other attendant circumstances. Tolliver v. State, 50 Ala.App. 654, 282 So.2d 92; Roberts v. State, 49 Ala.App. 729, 275 So.2d 709 (1973).

The appellant does not dispute the fact that he scuffled or wrestled with his former wife, but contended that she fell and struck her head, which resulted in the head injuries. This was in direct conflict with the testimony of the victim, Mrs. Oden, both children, and the neighbor, Mrs. Hoy-ett.

The jury resolved this issue against the appellant and we think that verdict was properly sustained by the State’s evidence. Baldwin v. State, 342 So.2d 940 (Ala.Cr.App.1977) and authorities therein cited.

After considering all the factors herein set forth, we conclude that the trial judge properly overruled the appellant’s motion to exclude the State’s evidence, and also properly denied his motion for new trial which challenged the weight and sufficiency of the cause. Baldwin, supra, and authorities therein cited.

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

We have carefully examined this entire transcript and find this record free of error. The judgment of the trial court is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . The Fifth Amendment to the United States Constitution requires an indictment by a legally constituted and unbiased grand jury.
      See also United States v. Sells Engineering, Inc., et al,-U.S.-, 103 S.Ct. 3133, 77 L.Ed. 2d 743 (1983).


source: Caselaw Access Project

author: HUBERT TAYLOR, Judge.

license: Public Domain

text:
    Billy Charles TAYLOR v. STATE.
    2 Div. 359.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-41.

      William S. Poole, Jr. and William H. Traeger, III, Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington Garrett and Ed Carnes, Asst. Attys. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant was indicted for the capital offense of murder during a robbery in the first degree in violation of § 13A-5-40(a)(2), Code of Alabama 1975. After the jury returned a verdict of guilty, the trial court followed the jury’s recommendation and sentenced appellant to life imprisonment without parole.

The state’s evidence established that on the evening of February 4, 1982, Mr. Willie Ravizee and Ms. Fannie Bell Mack were at home in their trailer when someone knocked on the door. Ravizee opened the door and invited appellant inside. Thereupon, Ms. Mack excused herself and walked down the hall to the bathroom. She did not hear any conversation between Ravizee and appellant, but as she was coming back up the hall, a shot rang out. Armed with a rifle, appellant met her in the hall and said, “I done killed Bill, and I’m going to kill you if you don’t give me all your money.”

Ms. Mack went to her bedroom to get her purse and, as she was trying to get the money out, appellant grabbed the pocketbook and took the money himself. Ms. Mack testified that her purse contained over $200 at the time. Appellant also took three ladies’ watches from Ms. Mack, jerked the telephone from the wall, and told her not to leave her home.

After appellant left, Ms. Mack went to the front of the trailer and found Willie Ravizee “sitting up in the chair dead.” She stated that Ravizee’s billfold was still full of cash and he still had his pocket watch after he was shot. When appellant was apprehended, he had nearly $200 concealed in his underwear and in his shoe, as well as three ladies watches on his person.

Appellant admitted being at the trailer of Ms. Mack and Mr. Ravizee on the evening in question, but he denied committing the offense with which he was charged. He stated that he normally kept money in his underwear.

I

Appellant argues that his motion to dismiss the indictment, motions for judgment of acquittal, and requests for jury instructions should have been granted because the evidence did not prove a “murder by the defendant during a robbery,” § 13A-5-40(a)(2). He contends that there may have been “a murder and a robbery but not a murder during a robbery,” since Mr. Raviz-ee was neither robbed nor killed in the presence of Ms. Mack, and Ms. Mack, who was robbed, was not killed.

The capital offense for which appellant was indicted subsumes the following elements of robbery in the first degree as set out in § 13A-8-41, Code of Alabama 1975:

“(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
“(2) Causes serious physical injury to another.

Section 13A-8-43 provides:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use or force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

The testimony of Ms. Mack clearly established that she was the victim of a robbery in the first degree, i.e., that appellant, who was armed with a rifle, threatened her with the imminent use of force in order to acquire her property. The fact that Ms. Mack was not also the victim of the murder is immaterial under the current capital murder statute. “[Section] 13A-5-40(a)(2) is broader than § 13A-5-31(a)(2) in that it encompasses a robbery-murder in which the person murdered is not the same as the victim of the robbery.” Bush v. State, 431 So.2d 563, 565 (Ala.1983). See also Raines v. State, 429 So.2d 1111, 1113 n. 1 (Ala.1982); Carnes, Alabama’s 1981 Capital Punishment Statute, 42 Ala.Law. 456, 461-62 (1981).

The capital offense requires only that the murder occur during a robbery, see § 13A-5-40(a)(2) (emphasis added). The word “during” is defined in § 13A-5-39(2) as follows:

“(2) DURING. The term as used in section 13A-5-40(a) means in the course of or in connection with the commission of, or in immediate flight from the commission of the underlying felony or attempt thereof.” (emphasis added)

The term “during” was employed in the current statute in order to “close[] the[] loopholes” of the prior capital murder provision, which required the victim of the murder to be the victim of the underlying felony. Raines v. State, supra; Carnes, 42 Ala.Law. at 461.

In the present case, there was evidence from which the jury could reasonably have inferred that the murder of Willie Ravizee was done “in connection with” the robbery of Fannie Bell Mack. The fact-finders could easily have concluded that appellant shot Mr. Ravizee in order to effectuate or facilitate the robbery of Ms. Mack. That is, with her male companion out of the way, Ms. Mack became an easier target for robbery. Appellant, having shot Ravizee within the hearing of Ms. Mack, need not convince her further that he “meant business” and need not stay on the offensive against more than one person. It is our judgment, therefore, that Willie Rav-izee was murdered “in connection” with a robbery within the meaning of § 13A-5-40(a)(2).

II

The admission of photographs of the deceased was not error. Showing as they did the character and location of the murder victim’s wounds, they were “admissible as tending to prove a material issue, illustrate a relevant fact, and corroborate other evidence offered at trial.” Godbolt v. State, 429 So.2d 1131, 1134-35 (Ala.Cr.App.1982); Hopkins v. State, 429 So.2d 1146, 1157 (Ala.Cr.App.1983), and cases cited therein.

III

Appellant claims that the Alabama statutes for imposition of the death penalty are unconstitutional in that their application results in cruel and unusual punishment in violation of the Eighth Amendment, and because their definitions of aggravating and mitigating circumstances are arbitrarily applied in violation of the Equal Protection Clause of the Fourteenth Amendment.

Initially we note that, having received a sentence of life without parole rather than the death penalty, and having presented no evidence to substantiate his claim that the statute was unconstitutionally applied to him, appellant may not be heard to complain that the death penalty procedures of the statute are unconstitutional as applied to others. See Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

“A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. Broadrick v. Oklahoma, 413 U.S. 601, 610 [93 S.Ct. 2908, 2914, 37 L.Ed.2d 830] (and cases cited).”

442 U.S. at 154-55, 99 S.Ct. at 2223.

IV

Appellant insists that a rifle introduced as state’s exhibit 14 was improperly admitted into evidence because Ms. Mack was not able to positively identify the gun, and because the criminalist who test-fired the weapon could not state with absolute certainty that the rifle was the same one which fired the fatal bullet. Instead, the criminalist testified as follows:

“I can say [the bullet] came from a gun similar to this one, the same make and model. But I can’t differentiate this particular gun from another gun of the same make and model. It could have been fired in this gun, but I cannot rule out other guns that are just like this one.”

In view of the fact that the witness testified the murder weapon was the same or a similar rifle as state’s exhibit 14, the gun was properly allowed in evidence, see Humphrey v. State, 370 So.2d 344, 347 (Ala.Cr.App.1979); Means v. State, 51 Ala. App. 8, 11, 282 So.2d 356, cert. denied, 291 Ala. 792, 282 So.2d 359 (1973), with the jury entitled to give it whatever weight they deemed appropriate, see Williams v. State, 384 So.2d 1205, 1211 (Ala.Cr.App.1980).

V

Prior to trial, appellant filed a “Motion to Prevent Death Qualification Voir Dire” questioning, in which he claimed that qualifying prospective jurors pursuant to Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), before the guilt phase of a bifurcated trial “prejudiced the Appellant and was not justified by any reasonable state interest.” Brief of Appellant at 22.

Appellant’s first contention is not supported by any evidence in the record that he was prejudiced. Appellant’s second claim is answered by the Witherspoon opinion itself, in which the United States Supreme Court recognized that the state has an interest in identifying those jurors who are so opposed to capital punishment that “their attitude toward the death penalty would prevent them from making an impartial decision about the defendant’s guilt.” 391 U.S. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original).

In addition, the state has a reasonable interest in avoiding the delay and confusion which would result from death qualifying a jury after the guilt stage and prior to the sentencing stage. Because, under appellant’s proposal, some of the guilt-phase jurors might have to be removed on Wither-spoon grounds, the sentencing-phase jurors who replaced them would not have heard the evidence admitted during the guilt phase. The repetitive and disoriented proof which might ensue would be intolerable. We therefore find appellant’s argument untenable.

VI

Finally, appellant maintains that prospective juror Jerimiah Belton was incorrectly excused for cause on Witherspoon grounds. The record reveals the following exchange on voir dire:

“MR. WATKINS [District Attorney]: Now, for everybody: Again, as I told you, we’re talking about a capital case, and the State is going to be asking for the death penalty. So, I want you to all be thinking along the same lines when we start to strike this jury. Will all of you be willing to consider all the penalties provided by the State law and not be irrevocably committed before trial has begun to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of this trial?
“What I’m asking you, Ladies and Gentlemen, is will you be able to have an open mind and return a penalty of death by electrocution if, in fact, the evidence is such that it could convince you of that, or would you be so irrevocably against the death penalty that you would not be able under any circumstances to render a penalty of death? Is there anybody that would be irrevocably opposed to the death penalty to the extent that you could not render a death penalty if it was justified from the evidence?
“(No response.)
“MR. WATKINS: I take it by your silence that everybody — Are you shaking your head? Would you be able to?
“PJ J. BELTON: I don’t think so.
“MR. WATKINS: What’s your name?
“PJ J. BELTON: Jerimiah Belton.
“MR. WATKINS: Mr. Belton, you say you don’t think you would be able to render a verdict that would require electrocution. Now, are you just irrevocably opposed to the death penalty? Is that your problem?
“PJ J. BELTON: Yes.
“MR. WATKINS: You just don’t believe in the death penalty?
“PJ J. BELTON: No.
“MR. WATKINS: You’re telling us that you would be irrevocably committed before the trial to vote against the penalty of death regardless of what the evidence is?
“PJ J. BELTON: To be fair with you.
“MR. WATKINS: To be fair with me, you would be irrevocably committed to vote against the death penalty regardless of what the facts were?
“PJ J. BELTON: Yes.
“MR. WATKINS: This is Mr. Belton?
“PJ J. BELTON: Yes.
“MR. WATKINS: I would ask that he be excused for cause.
“Has anybody else got a problem with it?
“(No response.)
“MR. WATKINS: Mr. Belton, let me ask you this: Is your attitude toward the death penalty such that it would prevent you from making an impartial decision as to his guilt?
“PJ J. BELTON: Repeat that question.
“MR. WATKINS: In other words, would you not be able to find him guilty if there was a chance that you were going to have to determine whether or not he was going to get the death penalty?
“PJ J. BELTON: I think so if there was enough evidence.
“MR. WATKINS: Are you saying if there’s enough evidence, you can vote for the death penalty, or are you just saying you could vote him guilty but you could not under any circumstances vote the death penalty? Is that what you’re saying to me?
“PJ J. BELTON: Right.
“MR. WATKINS: Judge—
“THE COURT: Let me make sure I understand. Mr. Belton, is it your feelings because of deep convictions that no matter what the evidence or what the facts in any case, you could never vote for the death penalty?
“PJ J. BELTON: No.
“THE COURT: You’re not saying that. You’re saying, then, that you could vote for the death penalty?
“MR. WATKINS: No. I think he’s saying—
“MR. TRAEGER [Defense Counsel]: Let him say what he thought, Your Honor.
“THE COURT: Let’s have order in the court, please.
“The question is: Some people and a good many people at various times are opposed to the death penalty. That’s what we’re asking you today. Do you have a deep conviction that no matter what the evidence, no matter what the testimony in any case you could never vote for the death penalty? Would you have that feeling before we even begin the trial of the case?
“PJ J. BELTON: Right.
“THE COURT: You do have that feeling?
“PJ J. BELTON: Yes.”

In our judgment, Mr. Belton made it “unmistakably clear” that he would “automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case,” Witherspoon v. Illinois, 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21, and was thus properly excused.

' The judgment of the Greene Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Phillip Ryan MIMS, alias v. STATE.
    5 Div. 680.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-104.

      J. Paul Lowery, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Trafficking in cannabis; sentence: ten years’ imprisonment and $25,000 fine.

On October 30, 1981, Alabama Bureau of Investigation narcotics unit investigator Grady Gibson executed a search warrant at the residence of appellant located in Eclectic. Discovered in a greenhouse was over one hundred pounds of marihuana as well as other items and paraphernalia indicating the presence of a large-scale trafficking operation. Appellant was subsequently arrested and charged with the instant offense.

I

Appellant challenges the trial court’s ruling denying his motion to suppress the items seized during the search. In his written motion he asserts that no probable cause existed for issuing the search warrant. At the hearing on his motion, appellant further alleged that two separate searches had occurred. On appeal, however, appellant raises several challenges to the search warrant for the first time. He argues: (1) that the description of the place to be searched is such that it describes both a residence and business; (2) the use of the term “residence” in the affidavit is “totally inadequate since the affiant could easily have described it as being a wooden frame house or a mobile home trailer or a metal shed ... ”; (3) the warrant does not establish the informant’s ability to recognize marijuana; and (4) the use of the name “Phillip Lyan” by the informant illustrates his unreliability and identifies him as an agent of the State.

Initially, the testimony of Gibson unequivocally established that only one search of appellant’s residence occurred. No evidence was offered to rebut or contradict Gibson’s testimony. Thus, nothing appears in the record to substantiate appellant’s claim.

Although not properly preserved for our review, see Dickerson v. State, 414 So.2d 998 (Ala.Cr.App.1982), we find no merit to any of appellant’s contentions initially raised on appeal. As to appellant’s first contention, Hutto v. State, 50 Ala. App. 636, 282 So.2d 75 (1973), cited by appellant as controlling, is not applicable to the instant cause. The fact that a greenhouse was situated upon appellant’s property does not lead to the conclusion that it was being used for commercial purposes. The description of the property was sufficient to enable a prudent officer to ascertain, identify, and locate the property with reasonable certainty. Yielding v. State, 371 So.2d 951 (Ala.Cr.App.), cert. denied, 371 So.2d 962 (Ala.1979). Hutto dealt with rental, multi-unit dwellings and businesses within one building, which do not exist in this case.

We note that the warrant authorized the search of “the house trailer, and outbuilding[s], including one ... green house, automobiles, and the premises located at the residence of ...” appellant. We find that the use of the term “residence” by Gibson in his affidavit would not confuse or mislead the magistrate issuing the warrant or cause any misidentification of the premises. Its use was not improper. See generally Neugent v. State, 340 So.2d 52 (Ala.1976).

There is no constitutional requirement that an affidavit submitted for issuance of a search warrant for marijuana, based upon information received from a confidential informant, allege the informant’s expertise in identifying marijuana. All that is constitutionally required is that the affidavit support a finding that the informant is reliable or credible and has a sufficient basis of knowledge for the information supplied. See numerous authorities cited at 17A Alabama Digest Searches & Seizures 3.6(3).

There is no basis in the record for appellant’s conclusion that since the informant supplied Gibson with the name “Phillip Lyan,” rather than his correct name, the informant was in actuality an agent for the State, i.e., a law enforcement officer. This allegation is not supported by the record.

Gibson’s affidavit fully met the requirements of the Aguilar-Spinelli “two prong” test, a substantial basis for believing the informant’s information existed therein. McClellan v. State, 415 So.2d 1238 (Ala.Cr.App.1982). It was unnecessary for the affidavit to state who owned the premises where the marijuana was found, Mitchum v. State, 384 So.2d 1193 (Ala.Cr.App.), cert. denied, 384 So.2d 1205 (Ala.1980), and the officers were not prohibited from searching the premises until the occupant was present. Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978).

In conclusion, we find the affidavit sufficient to establish probable cause for issuance of the search warrant. We find the warrant to have been properly executed with a proper return being made. Consequently, the seizure of the marijuana and other items was legal.

II

Appellant contends that the trial court erred in admitting thirty-five photographs seized by Gibson during execution of the search warrant on the basis that the proper predicate for their admission was not established.

Gibson testified in detail to the manner in which he became possessed of the photographs. Gibson stated that the photographs were found enclosed in a manila envelope inside a green leather case discovered in one of the bedrooms of the trailer. The case also contained various assorted papers and articles dealing with the cultivation of marijuana. Gibson was unaware of the photographs until a short time after the search, when he inventoried the contents of the case. He stated that once seized the photographs remained exclusively under his control and custody.

Gibson stated that he observed the greenhouse at appellant’s residence and took several photographs of its exterior and interior, which were properly admitted into evidence. He stated that the greenhouse depicted in the photographs seized from appellant's trailer was the same as the one personally observed and photographed by him on October 30. Gibson noted that the photographs of the interior of the greenhouse seized on October 30 depicted a large quantity of marijuana plants at various stages of growth, a condition which he also observed on October 30. However, Gibson could not state when the seized photographs were taken, who took them, or whether the marijuana plants depicted therein were the same ones that he personally observed on October 30. Gibson noted that the marijuana plants depicted in the seized photographs were, by and large, much smaller and less mature than those seized on October 30.

“As a general rule, photographs are admissible in evidence, if they are properly verified either by the photographer or a person who is familiar with the subject of the photograph and if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered. Photographs may be admitted if they tend to shed light on, strengthen, or to illustrate other testimony in the case.
“It is within the trial court’s discretion to determine the sufficiency of preliminary proof offered to identify photographs and to show that they fairly and accurately represent what they purport to be. Only when its exercise is abusive will such be overturned.” (Citations omitted.) Donner v. State, 409 So.2d 461, 464 (Ala.Cr.App.1981).

“The time in relation to the main event at which photographs were taken does not necessarily control their admissibility. The important question is the probability of change in the conditions or objects shown.” McKee v. State, 35 Ala.App. 174, 177, 44 So.2d 777, 779, rev’d, 253 Ala. 235, 44 So.2d 781 (1949).

The record is clear that Gibson was sufficiently familiar with the general appearance and dimensions of the greenhouse to determine whether it had been substantially altered after the taking of the photographs. In fact, his testimony established that no change of its condition occurred. He properly identified the scene depicted in the seized photographs. The photographs are relevant to the material issue of appellant’s possession of the greenhouse. It is immaterial whether the marijuana plants depicted in the photographs are the same as those seized by Gibson as long as appellant was in possession of the contents of the greenhouse on October 30, 1981. The record unequivocally established the fact of appellant’s possession. Consequently, we find no error in their admission.

Ill

Contrary to appellant’s contention, the State’s evidence sufficiently established his possession of the marijuana. Numerous receipts of bills, automobile title certificates, and a canine registration certificate, as well as testimony from appellant’s neighbors, established his dominion and control over the premises and his constructive possession of the marijuana. Thus, denial of appellant’s motion to exclude was not error. Mitchell v. State, 395 So.2d 124 (Ala.Cr.App.1980), cert. denied, 395 So.2d 127 (Ala.1981).

IV

Lastly, appellant argues that comments made by the State during its rebuttal argument constituted reversible error.

A

The first comment, “You saw these sacks, where he’d been bagging it up in pound bags to sell anywhere from seven hundred and fifty to a thousand dollars a pound,” was permissible as a reasonable inference from the evidence.

The evidence adduced at trial revealed that inside appellant’s trailer were found plastic freezer and sandwich bags of assorted sizes, bags with marijuana residue therein, and a quantity of marijuana contained in a plastic bag. Seized from the greenhouse was over one hundred pounds of marijuana. Its value was estimated at between $40 to $100 for an ounce and $700 to $1,000 for a pound. The above argument was a reasonable and legitimate inference arising from the evidence and, therefore, proper. Sanders v. State, 426 So.2d 497 (Ala.Cr.App.1982); Pickett v. State, 417 So.2d 589 (Ala.Cr.App.1982).

B

The second complained of remark appears in the record as follows:

“HON. JANICE WILLIAMS: Mr. Drin-kard asked you and all the other members of the jury venire this morning if you had children between the ages of 19 and 25.
“HON. EDWARD W. DRINKARD: Not any evidence before this jury in this case.
“THE COURT: Overruled.
“HON. JANICE WILLIAMS: He wanted to know who had children between the ages of 19 and 25,'because ya’ll are the ones who .
“HON. EDWARD W. DRINKARD: I object to that being improper argument.
“HON. JANICE WILLIAMS: Judge, it’s inference.
“THE COURT: She can argue — overruled.”

Appellant’s objection, quoted above, was general in nature; assigning no specific grounds thereto. On appeal, however, appellant for the first time specifically contends that the above quoted remark “was calculated to create ill will or prejudice against Appellant’s Counsel and to make the tacit implication that the jurors were being unscrupulously deceived thereby.”

As to the latter ground asserted by appellant, although not properly before us, we find nothing in the comment, either directly or indirectly, to support his contention.

While the State’s comment is directed to matters not presented as evidence to the jury, the record reflects that appellant’s counsel did, in fact, inquire of the venire that which is encompassed in the above remark. The jury had knowledge of the matter contained in the comment prior to rebuttal argument of the State. Thus, the State did not inform the jury of anything of which it was not already aware.

From the posture of the record before us, we can only speculate as to the. inference the State was attempting to draw from its comment. By objecting at the time he did, appellant prevented the State from making its inference and, thus, possibly injecting immaterial and irrelevant material into the trial. Consequently, we cannot ascertain the context in which the remark was made. See Barbee v. State, 395 So.2d 1128 (Ala.Cr.App.1981).

A careful review of the above quoted comment, in light of the whole record, leads us to the conclusion that the remark was not prejudicial to appellant. No reversible error occurred.

There appearing no errors on review of the record filed before us, this cause is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . See Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (wherein the Aguilar-Spinelli test was abandoned for a totality of the circumstances standard).

      . Both appellant and the State introduced evidence at the suppression hearing that appellant had used the name Ryan Phillips when establishing his account with Alabama Power Company for his residence. At trial, the State introduced other evidence indicating that appellant had used the above name on more than his electric power account.

        . Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

      . At his motion to suppress, appellant admitted that the greenhouse and marijuana therein, depicted in the seized photographs, belonged to him. He stated that he took the photographs sometime in June 1981, and identified himself, his brother, and his dog in some of them.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jesse GOSHA v. STATE.
    3 Div. 650.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Docket 83-47.
    Barry E. Teague, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appellant was found guilty by a jury on a trial on an indictment in pertinent part as follows:

“Jesse Gosha ... did on or about March 18, 1982, unlawfully, wilfully, feloniously and knowingly sell, manufacture, deliver or bring into the State of Alabama, or have in his possession in excess of 28 grams or more of cocaine or of any mixture of cocaine, contrary to the provisions of Section 20-2-80 of the Code of Alabama .... ”

Code of Alabama 1975 (1982 Cumulative Supplement) § 20-2-80(2)(b) provides:

“Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine, described in Section 20-2-25(1), is guilty of a felony, which felony shall be known as ‘trafficking in cocaine.’ If the quantity involved:
“Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of five calendar years and to pay a fine of $100,000.00.”

The court sentenced defendant to imprisonment for twenty years and imposed a fine of fifty thousand dollars. A condition of the sentence was that it was “to run concurrent with the previous sentence in Case No. 553,” which was for eighteen years. No issue is presented on appeal as to the sufficiency of the evidence to show defendant’s possession of “200 grams or more, but less than 400 grams” of cocaine or as to the extent of the sentence. Appellant raises three issues, which we will discuss in the order discussed in appellant’s brief.

I.

The first issue presented by appellant is stated in his brief as follows:

“Did the Trial Court err in refusing to grant the requested continuance for court-appointed counsel, who had been appointed less than twenty-four hours prior to the commencement of the trial below?”

We have no doubt that under many circumstances it would be better for a trial court to grant a request for the continuance of a criminal case by court-appointed counsel who had been appointed less than twenty-four hours prior to the commencement of the trial. The transcript shows that the trial court gave lengthy and painstaking consideration to the request for a continuance in the instant case.

The case was set for trial on Tuesday, August 24, 1982. At approximately 9:30 A.M. that day, in chambers of the judge who tried the case, a conference was conducted among the judge, the prosecuting attorney, the defendant, the defendant’s appointed attorney, and defendant’s previously retained attorney, who had been retained by defendant to represent him in this case from the time of his arraignment, on April 22, 1982, until August 13, 1982, when said attorney’s motion to be relieved as defendant’s attorney was granted. As to this, the previously retained attorney said at the conference on August 24:

“I talked with Mr. Gosha on the 12th and at that particular time we talked about several matters. We talked about the appeal that is pending and the case that was tried. We also talked about the appeal bond. We talked about the trial of this case at which time I indicated to Mr. Gosha that the trial was set for August 24. Mr. Gosha indicated to me that he was dissatisfied with my representation. At that point I told him that if he were dissatisfied with my representation that I would withdraw from the case and I advised him that I would file a motion to withdraw and ask him whether or not he could secure counsel, as I thought the Judge would not continue the trial because he had discharged me or I had withdrawn; and he indicated to me that all he needed to do was make a phone call and he could get a lawyer, at which time he asked the jailer or the deputy sheriff who was present whether or not he could make a phone call .... ”

The previously retained attorney was asked by the judge whether “I advised you to go back and talk with him and tell him that the ease would not be continued,” and the attorney replied that he had not gone back to talk with defendant because he “had already told him that” and defendant “had assured me that he could get counsel, that all he had to do was make a phone call.” The attorney said he told defendant that “the case was set on the 24th.”

At the particular conference, the secretary of the judge who tried the case was questioned by the judge, and she stated the following:

“I believe it was Friday afternoon, Judge. I called the jail and asked one of the deputies — I don’t recall who it was on the desk — to please go back and ask Mr. Gosha if he had obtained counsel as he was set to go to trial on the 24th. They did go back and call me back. They called me back and told me that he said he was going to obtain counsel and that he would know over the weekend whether or not ... who it would be and would let me know and I called Monday again to check and asked the deputy to go back and check and see if he had obtained counsel, if so, who it was; and he came back and said he had not and that is when I came and talked to you about the case.”

The transcript shows that the trial judge then stated:

“And then at that time, that’s yesterday, I brought him in, asked him if he had counsel, sent for him from jail, he came in and I asked him if he was indigent. He indicated that he was not indigent. He said he was not indigent, that he could hire himself a lawyer. At that time I told him that if he was going to he’d better go ahead because the case was still set for. trial tomorrow and that’s where the situation was .... ”

The colloquy at the conference among the trial judge and the attorneys, with the defendant at all times present but saying practically nothing, continued at such length that we think it inappropriate to quote it all herein and limit the remainder of the colloquy to the following:

“THE COURT: ... I have asked Mr. Larry Craven, who is present, here today in Court, who is a lawyer here in the City of Montgomery, to sit in with Mr. Gosha during the trial of this case to try to help insure that all of his rights will be protected. That’s the situation we are in. Mr. Craven is appointed, it’s the first time he’s been aware of the case. I have also called Mr. Hardwick, who is involved in the preparation of this trial, along with all the other trials on the first day set — so he’s already prepared the case— too, in addition, as a friend of the Court — and I am appointing him even though he is not representing, to sit if Mr. Gosha does not want him to participate in any way he can just sit there. But I want him there and present in order to advise with Mr. Craven; and if Mr. Gosha will allow that and the representation of Mr. Gosha in the trial of this trafficking in cocaine case. Mr. Hard-wick had to change his schedule at the request of the Court, but he is here and I would ask both of these gentlemen to sit at counsel table and to advise and assist the Defendant in any way that the Defendant will let them advise and assist him. Mr. Craven, if you want to say anything else — that brings us up to date. The venire is in the courtroom and I am ready to go strike the jury.
“MR. CRAVEN: Your Honor, for the purposes of the record — I don’t know whether or not it has been indicated by Mr. Gosha whether he wants counsel at the table, and I would ask the Court—
“THE COURT: Do you want these gentlemen?
“THE DEFENDANT: Yeah, sure.
“THE COURT: You don’t object to them sitting with you?
“THE DEFENDANT: No.
“MR. CRAVEN: Your Honor, since I am somewhat unfamiliar with this particular type of appointment and these particular kinds of arrangements, I am at somewhat of a loss and I know the Court will appreciate this position, but for the record I would ask for a continuance in light of the fact that the appointment has come at such a late date and in order to allow counsel for the Defendant — even if I am acting in an advisory capacity only and am completely unfamiliar at this point in time with the facts of the witnesses, any testimony that might be heard, any items of evidence that might be attempted to be introduced against Mr. Gosha. I think in light of what’s occurred and speaking on his behalf I think a continuance would be in order for somebody to prepare his case.
“THE COURT: Mr. Hardwick has previously prepared the case and he is here to advise with you. I’m not inclined to grant a continuance at this time. Three prior continuances were granted in the cases and this Defendant was fully aware, made aware and the jury is here and I am here and all the witnesses are here and the case is going to go to trial. That’s one reason I’m aware that you have not been able to investigate the case or anything else, but Mr. Hardwick has and that’s another reason I’ve called him — to try to make every effort to insure the rights of the Defendant in the trial of this case.”

Perhaps we should say also that it is shown by the transcript of the colloquy quoted from above that another case against defendant, one for the possession or sale of a prohibited substance, was pending on the docket for August 24, 1982, but that such case was nol-prossed on motion of the State prior to the commencement of the trial in the instant case.

Counsel for appellant, different counsel from either of the attorneys assisting defendant on the trial of the instant case, has made a strong appeal in support of appellant’s first issue.

It was highly unfortunate, we think, that the case could not have gone to trial on August 24, 1982, under more satisfactory conditions than those then existing relative to defendant’s right to counsel in the defense of the ease. However, no one is to blame for such unsatisfactory conditions other than defendant himself. Both attorneys whom the trial court had called upon to aid defendant in the defense of his case cross-examined witnesses for the State, only one attorney cross-examining each witness. At the close of the testimony for the State, a hearing out of the presence of the jury was conducted as to whether the defendant would testify in the case. The court instructed him comprehensively as to what his rights, constitutional and otherwise, were in this respect. The defense presented no testimony.

The transcript does not show the argument of counsel in the case, but it discloses that “counsel for both parties argued their case to the jury.”

Counsel for appellant, who is not one of the attorneys on the trial of the case, has submitted an attractive brief in which he stoutly argues that the trial court was in error “in refusing to grant the requested continuance.” In our opinion, the well established rule that the action of a trial court in refusing to grant a motion for a continuance should not be disturbed in the absence of a clear abuse of its discretion is here applicable. Furthermore, we are of the opinion that the revealed attitude of the defendant to the effect that he did not care to retain an attorney, even though he was financially able to do so, indicates his preference in that respect, which was based perhaps on his belief that he could then thereby prevent a just verdict and judgment against him or thereafter extricate himself from such a judgment.

II.

Mr. Craven, the attorney who was not in the case until the day before it was tried, filed a motion for a new trial on September 14, 1982. The motion was overruled by the trial court on September 21, 1982.

In the second issue presented by appellant, his counsel says in his brief that the court “erred in summarily denying, without benefit of evidentiary hearing, appellant’s motion for a new trial, wherein substantial issues concerning juror bias were raised.” In one of the grounds of the motion for a new trial, it is averred that two members of the jury would have indicated to counsel that they did not understand the nature of the question being asked with regard to law enforcement personnel. In another ground, it was alleged that “a substantial number of the venire sat as jurors on a criminal trial on Monday, August 23, 1982, in which the same witnesses appeared on behalf of the State and gave essentially the same testimony regarding a charge of illegal sale of drugs in an undercover operation conducted by its enforcement personnel” and that “the ve-nire should have responded to the court’s inquiry regarding their knowledge or relationship with any of the State’s witnesses.” In support of appellant’s issue II, appellant quotes from United States v. Phillips, 664 F.2d 971, 999 (5th Cir.1981), as follows:

“When juror misconduct concerns influences from outside sources, the complete failure of the trial court to hold a hearing constitutes an abuse of discretion and is reversible error because a presumption of prejudice arises when the trial court learns of such influences. United States v. Chiantese, supra, 582 F.2d [974] at 979 [ (5th Cir.1978) ]. Any off-the-record contact with a jury is presumptably prejudicial and the Government bears the heavy burden of proving that such a contact did not affect the jury; if the Government cannot meet this burden, a new trial is required. United States v. Forrest, 620 F.2d 446, 457 (5th Cir.1980).”

No ground of the motion for a new trial in the case sub judice alleges any “juror misconduct” or any “off-the-record contact with a jury” before or during the period of trial of the case or the return of the verdict of the jury. There was no duty on the trial court to conduct an “evidentiary hearing” of the motion for a new trial. We find no valid ground for holding that the court was in error in overruling defendant’s motion for a new trial.

III.

The last issue presented by appellant is thus stated:

“Did the trial court err by impairing Appellant’s right against self-incrimination as guaranteed by the Fifth Amendment to United States Constitution where in its oral charge to the jury, the court attributed certain statements to Appellant when he, in fact, never took the stand or testified?”

The transcript shows that during the court’s oral charge it stated:

“To the charge of trafficking in cocaine this Defendant has pled not guilty. He said I didn’t do anything. I was not involved in this matter at all. Immediately upon a plea of not guilty the State has the burden of proving the Defendant’s guilt beyond a reasonable doubt and to a moral certainty....”

At the conclusion of the oral charge and before the jury commenced its deliberations, the transcript shows:

“WHEREUPON, the following occurred out of the presence of the jury as follows:
“MR. CRAVEN: Thank you. Secondly, Judge, if I’m not mistaken, during that part of the charge wherein you indicated that the Defendant comes before you ladies and gentlemen and says to the indictment and pleads not guilty, I think you indicated — see if you caught this, too, I think you said the Defendant said he didn’t do anything at all. Then there was something else said and that was all I caught of it, but—
“THE COURT: I don’t think I said that, but I will clear that up.
“MR. CRAVEN: I think that’s what needs to be indicated — something to the effect that he has that right to plead not guilty, or however you want to do that.
“THE COURT: Would you like me to clear up the fact he hasn’t testified? I will do that if you ask me to. I’ll just tell them that he has a legal right to plead not guilty and has a legal right not to testify at all and that the burden is on the State of Alabama to prove his guilt.
“MR. CRAVEN: I think you should.
“THE COURT: And that he stands on that right in the Constitution of the United States and you cannot consider the fact that he didn’t testify one way or another.
“MR. CRAVEN: I think that would be good....
“(WHEREUPON the following occurred in open court in the presence of the jury as follows:)
“THE COURT: Ladies and gentlemen, I just want to make sure that there is one matter that is perfectly clear. When a defendant enters a plea of not guilty the burden automatically, under our system of criminal justice, is placed upon the State of Alabama to prove his guilt beyond a reasonable doubt and to a moral certainty. A person charged with a criminal offense, a Defendant in a criminal case, has no obligation whatsoever to take the stand and testify. He has a Constitutional right not to do so and you are not allowed to consider it to be a fact one way or another that he did not. That is his Constitutional privilege and it cannot be held against him in any way. On a plea of not guilty the burden is placed upon the State to prove a Defendant’s guilt. A Defendant has no burden at all to prove non-guilt or to take the stand in any way whatsoever.

It is our view that upon consideration of the oral charge of the court in its entirety, the statement of the court therein, “He said I didn’t do anything, I was not involved in this matter at all,” the court was merely making it clear to the jury that the plea of not guilty interposed by defendant was a good plea to the charge made against him in the indictment in its entirety, including, as correctly contended by the State, the issue of guilt as an aider or abettor. In our opinion, no harm was done the defendant by reason of the statement by the trial court that defendant “said I didn’t do anything. I was not involved in this matter at all.” Moreover, the comprehensive charge of the trial court as to the strong presumption of innocence, the necessity for proof beyond a reasonable doubt and to a moral certainty of defendant’s guilt, that defendant was under no duty whatever to prove his innocence or to testify in his behalf, and that his not taking the stand as a witness could not be held against him, removed any likelihood whatever of any harm to the defendant by what the court said in its oral charge.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Julian William DALY, Jr. v. STATE of Alabama.
    4 Div. 156.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-213.

      Robert P. Lane of Phillips & Funder-burk, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Julian William Daly, Jr., was indicted for murder in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and the trial court set sentence at life imprisonment in the penitentiary.

At approximately 12:00 a.m. on August 5, 1982, Ralph Copeland, who lives near the intersection of County Road 24 and Ridge Road in Russell County, Alabama, heard a noise similar to a vehicle hitting something. He looked out of his window and saw a lot of dust. Later, he heard another vehicle and saw what appeared to be someone picking up somebody.

About one-half hour later, Copeland’s sister came to his house and told him someone was badly hurt and lying in the road. Copeland went outside and saw a red and white pickup truck and a man lying behind the truck. He then called the .police.

Trooper W.L. Ross received a call concerning an accident at 12:58 a.m. on August 5, 1982. When he arrived at the scene, he found a 1970 red and white Ford pickup truck which appeared to have struck a tree in a 90 degree curve at the intersection of County Road 24 and Ridge Road. He found a body lying face up behind the wrecked truck. When he examined the body, he saw what appeared to be gunshot wounds so he summoned extra help.

The body was determined to be that of James A. Crouch and the truck belonged to the deceased.

Approximately twenty to thirty feet from the accident, a driver’s license bearing the appellant’s name and address was found. Two officers were sent to the appellant’s residence where they found what appeared to them to be relevant evidence.

A short time later, the officers were informed that the appellant was at the Eu-faula State Trooper’s Post.

The evidence in this case was obtained from three separate sources; the site of the accident, the appellant’s residence and premises, and the appellant’s truck.

Beside the passenger door of the wrecked truck, a trash bag was found which contained a wallet, several one dollar bills, some .45 caliber shells and casings and several articles of garbage. A damp mop with a broken handle and some photo albums bearing the name of the appellant were found in the bed of the truck. Some bed sheets which matched the pattern of a pillowcase found in the appellant’s residence, were also found in the bed of the truck, along with a piece of a denture plate which matched the denture material later found in the appellant’s residence. A large amount of blood in the bed of the truck matched the deceased’s blood type.

Near the site of the wreck, tire prints were located which were similar in design and wear of the tires on the appellant’s truck.

Inside the passenger area of the truck, blood was found on the top of the steering wheel, and on the passenger seat. The blood from the seat was of the same type as the appellant’s blood type. The ignition key, which was located to the left of the steering wheel, was also bent. The appellant was later found to have injuries on his chin and his knee which would be consistent with his body’s having struck the steering wheel and the ignition key.

After securing a search warrant, the officers executed a search of the appellant’s residence and premises. The gate to the appellant’s driveway was lying on the ground and was determined to have been knocked down by the appellant’s truck. There were tire prints in the dew and footprints which led from the railroad tracks behind the appellant’s house to his front door. A path from the site of the wreck to the appellant’s house was also discovered.

Several articles were strewn about the yard and on the porch. The porch was wet although there had been no rain. Two checkbooks, belonging to the deceased, were found on the ground. Blood and pieces of bone and flesh were found on the porch and inside the front door.

The front door appeared to have been forced open from the outside and all of the lights were on in the house. Inside the house, the officers found a few .45 casings, approximately 3000 rounds of .45 caliber ammunition along with equipment set up to reload .45 ammunition. They also found four weapons, a .22 pistol, a .44 revolver, a .30 rifle and a shotgun. They were never able to locate the .45 semi-automatic pistol which the appellant said he owned.

Several bullet holes were found in the kitchen and blood was on the baseboard. However, the walls appeared to have been recently cleaned up to the height where a man could reach. Further, they found a shirt in the washing machine and wet towels in the bathroom which appeared to have been recently washed.

Serological analysis of all of the blood samples that were obtained from the various sources revealed that a pair of pants found in the appellant’s bathroom had blood on them which was of the same type as that of the appellant. The blood and tissue found in the appellant’s house matched the deceased’s type and the blood from the clothing worn by the appellant was his own.

On August 5, 1982, at 12:36 a.m. C.S.T., the appellant struck a parked car in the parking lot of the trooper post in Eufaula, Alabama. Several officers went outside and found the appellant slumped over his steering wheel with a big dog in the cab. The appellant raised up and pointed to his stomach. The officers believed he had been shot and thought the man involved in this incident might be someone who was connected with the Russell County incident.

Once the appellant got out of the truck, they noticed a cut on his chin and realized that was where the blood was coming from. The appellant was taken to the hospital where he received some stitches. Once back at the post, the appellant was given his Miranda rights and after stating he understood them, he gave the officers a statement but refused to sign it.

The appellant told the officers that he and the deceased had been drinking that night at his house when two blacks came into his kitchen and attacked both of them. He could not remember anything else until he pulled into the trooper post.

A P.E.I. test was administered to the appellant, approximately three hours after he arrived at the post. It registered .08. The officers said it was obvious the appellant had been drinking but he was not intoxicated.

In the bed of the appellant’s truck, an empty clip for a .45 pistol, several .45 casings, several articles of clothing, including a shirt with blood and denture material on it were found.

A waitress at the Possum Trot restaurant in Russell County stated the appellant and the deceased had been at the restaurant drinking on the night of August 4, 1982. The two began fussing and the appellant left. He returned 15 minutes later, paid the bill and the two men left.

The autopsy report revealed that the cause of death was multiple gunshot wounds to the head. The deceased’s blood alcohol content was .20. The deceased received six wounds, three of which could have caused his death. The deceased also had lacerations and contusions on his facial area and on the back of the left hand. This would be consistent with the deceased having been struck with a blunt object.

A ballistics expert testified that the only bullet that remained in the deceased’s body, a bullet found in the appellant’s trash can and one recovered from the kitchen wall, were all fired from the same .45 automatic or semi-automatic pistol. All of the expended casings which were recovered were also fired from the same weapon.

I

The appellant contends the trial court erred by refusing the requested charge that “Neither the Defendant nor his attorney was present before the grand jury, and thus, did not present any evidence on behalf of the Defendant to the grand jury.”

We do not agree with the appellant. It is not the function of the grand jury to hear the defendant’s side of a case. The trial court covered this in its oral charge. Section 12-16-13, Code of Alabama 1975.

From our review of the record, it is clear that the trial judge explained to the jury the proper role of the grand jury and the indictment itself as it pertains to the criminal trial process. Therefore, the trial judge did not err by failing to give the above requested written charge to the jury.

II

The appellant argues that reversible error occurred when the district attorney made an improper and impermissible comment about the appellant’s failure to testify.

In determining whether the district attorney’s statement was an impermissible comment on the appellant’s failure to testify, we must review the statement in the context in which it was made. King v. State, 48 Ala.App. 154, 262 So.2d 764, cert. denied, 288 Ala. 744, 262 So.2d 767, cert. denied, 409 U.S. 986, 93 S.Ct. 339, 34 L.Ed.2d 252 (1972).

The relevant part of the record is set out below:

“(Final argument by Mr. Davis, during which the following occurred:)
“MR. DAVIS: Is it an hypothesis that that blood that belonged to Julian Daly was in Mr. Crouch’s truck? Is that a guess theory? Did he tell you how it got there?
“MR. FUNDERBURK: We object.
“MR. DAVIS: I said Mr. Funderburk, may it please the Court.
“THE COURT: Come on over to the side where we can get this on the record. “(Side-bar conference, on record.)
“MR. FUNDERBURK: At this point we move for a mistrial. I think the jury can make an implication from Mr. Davis’s comments that he was inferring that Mr. Daly didn’t take the stand to testify and explain to the jury how the blood got there. In this case it would require an automatic mistrial.
“MR. DAVIS: I would answer first that I made no such reference and secondly, I would answer—
“MR. FUNDERBURK: You said did he take the stand.
“MR. DAVIS: Secondly, if I did, the most that I could ask the Court is an admonition before the jury.
“MR. LANE: Note our exception, Your Honor.
“(Jury present.)
“THE COURT: The Court would advise the jury that a remark of counsel directed toward counsel of the opposing party—any remark of that sort should not be taken by you as any evidence. I am going to tell you again—I have told you I think 2 or 3 times today already that the remarks of counsel in this case are not evidence in this case and I have told you where I expect the evidence to come from. So if you will simply recall that at this time and disregard the remark of counsel at this point. (R. 262-263) (Emphasis added).

It is obvious that the district attorney intended the remark to refer to defense counsel and not the appellant when he related this to the court in the presence of the jury. Furthermore, any harm to the appellant was certainly remedied by the trial court’s prompt instruction to this jury. Therefore, we find no error in the ruling on this motion for a mistrial. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Retowsky v. State, 333 So.2d 193 (Ala.Cr.App.1976); Kuczenska v. State, 378 So.2d 1182 (Ala.Cr.App.1979), cert. denied, 378 So.2d 1186 (Ala.1980) and authorities therein cited.

Ill

The appellant’s contention that reversible error occurred when the trial court refused to charge the jury on the “lesser included offense of manslaughter” is without merit.

“A defendant is likewise not entitled to charges on lesser included offenses when he denied committing the crime itself. Parker v. State, Ala.Cr.App. 337 So.2d 1378 (1976).” Williams v. State, 377 So.2d 634 (Ala.Cr.App.1979). The appellant in this case plead not guilty, gave a statement to the police, inferring that two blacks committed the crime and presented no evidence at trial. Therefore, the appellant was not entitled to the charge on the lesser included offense of manslaughter under the evidence presented at trial.

Further, “[a] charge on a lesser-in-eluded offense should not be given when there is no reasonable theory from the evidence to support such a proposition.” When the evidence clearly shows the appellant is either guilty of the offense charge, or innocent, the charge on a lesser included offense is not necessary or proper. Cooper v. State, 364 So.2d 382 (Ala.Cr.App.), cert. denied, 364 So.2d 388 (Ala.1978).

From our review of this record, it is clear that the appellant either intentionally murdered the deceased or was innocent of the crime. We find absolutely no evidence to support a charge of manslaughter. Therefore, the trial judge correctly refused the appellant’s requested charge as above noted.

IV

Defense counsel contends that his motion to exclude should have been granted because the State failed to prove a pri-ma facie case. Although this appellant’s conviction was based entirely on circumstantial evidence, we conclude there was sufficient evidence, presented at trial, to support this conviction.

“ ‘In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.’ (Citations omitted). Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1979).
“Whether there was sufficient circumstantial evidence to exclude every other reasonable hypothesis but that of guilt is a question for the jury and this court will not substitute its judgment for that of the jury. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978).
‘This court will not disturb a verdict of conviction on the grounds of insufficiency of the evidence, “unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that is was wrong and unjust.’ ”

Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.1979). This court is not so convinced.” Wicker v. State, 433 So.2d 1190 (Ala.Cr.App.1983).

From our review of this record, we hold the State presented sufficient evidence, from which the jury could conclude by fair inference, that the appellant was guilty of murder, beyond a reasonable doubt. The jury correctly resolved this matter contrary to the appellant’s contentions.

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

AFFIRMED.

All the Judges concur.


text:
    Charles Ray CLENCY v. STATE of Alabama.
    6 Div. 226.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-182.

      Charles Ray Clency, pro se.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Charles Ray Clency appeals from the denial of two writ of error coram nobis petitions, denied by the Jefferson County Circuit Court on March 7, 1983.

The appellant had sought by his petitions to challenge his original convictions for an armed robbery of two drug stores in Jefferson County, the first being for the robbery of Ms. Imo Chatham at Wasson Drug Company on October 8, 1980, affirmed, Clency v. State, 415 So.2d 714 (Ala.Cr.App.1982), and the second was for the robbery of Elizabeth Poole at Harbin’s Drug Store in Hoover, Jefferson County, Alabama, on October 18, 1980, affirmed, Clency v. State, 415 So.2d 1244 (Ala.Cr.App.1982).

In the coram nobis petitions filed in circuit court attacking each of these convictions, the appellant sought to challenge the eyewitness identification by the victim, the instructions by the trial court, the fingerprints used at the Wasson Drug robbery trial and in the second case, the voluntariness of a statement which was given by appellant to arresting officers.

The appellant' also sought to challenge the adequacy of his representation at trial in both cases.

I

It is clearly apparent that the appellant was seeking to relitigate the same issues which had been tried at each of his original trials and which were affirmed following thorough review in this court. This is not the function of the writ of error coram nobis.

Moreover, the appellant’s allegations that the trial counsel in each case was “inadequate” or “incompetent” is not borne out by the record in either original trial. To the contrary, the record on appeal in each case affirmatively reflects that the appellant was thoroughly, adequately and competently represented by his trial counsel, who fully advised him of the nature of the State’s evidence against him before trial.

Moreover, the only matter presented the trial court, and on which that court denied the two petitions, was the appellant’s own petition, which was not supported by verified affidavits or other evidence to sustain his allegations. This, therefore, constituted a proper basis for the trial court’s denial without conducting a hearing on these allegations. Stephens v. State, 420 So.2d 826 (Ala.Cr.App.1982).

We have carefully examined this record and find the trial court’s denial of each of the petitions was entirely proper.

This appellant, like so many others, who routinely aver following conviction and unsuccessful appeal that their trial counsel was “ineffective and inadequate,” must remember the words of our Supreme Court speaking through Mr. Justice Coleman in Mills v. State, 275 Ala. 217, 153 So.2d 650 (1963) as follows:

“Conviction of a client does not prove lack of either zeal or skill on the part of counsel.”

We find no error and the judgment denying each of the eoram nobis petitions is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Bobbie Jean CARTER, alias v. STATE.
    6 Div. 748.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-207.
    William M. Dawson, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Bobbie Jean Carter was tried and convicted for the capital murder of John Doyle Pennington by shooting him with a pistol, during the course of a robbery, in violation of § 13A-5-31(a)(2), Code of Alabama 1975. After a separate sentencing hearing for consideration of aggravating and mitigating circumstances, the jury fixed his punishment at life imprisonment without parole. In accordance with the jury’s verdict, the trial court sentenced the appellant to life imprisonment without parole.

On December 19, 1980, two armed men entered George’s Grocery in Birmingham, Alabama, shot and killed one of the owners, John Doyle Pennington, and took cash, totaling over $2,700, from Mr. Pennington and the store cash registers. The appellant, Bobbie Jean Carter, was later identified by two eye-witnesses as the gunman who shot and killed Mr. Pennington during the robbery.

The appellant presented an alibi defense. He testified that at the time of the robbery-murder he was at his girlfriend’s home. His girlfriend, Barbara Player, and her friend, Sonya Winborn, testified that they were with the appellant for most of the day except for a period between 3:00 and 5:10 p.m., when they left the appellant at Player’s home while they went to the laundromat. Player testified that, although she was not with the appellant between 3:00 and 5:10 p.m., she did call her home during that period and talk with him on the telephone.

In light of this alibi testimony, the jury found the appellant “guilty of the capital offense as charged in the indictment.”

I

During its cross-examination of the appellant, the prosecution asked him if he had related his alibi to the investigating police officers. The appellant answered “yes,” that he had given his alibi information to the police after his arrest. Over appellant’s objection, the state was allowed to pursue this issue with the appellant and was later allowed to impeach the appellant with Sergeant Gaut’s testimony that the appellant never told the police investigators about his alibi.

The appellant argues that the trial court erred to reversal in permitting this line of questioning. He contends that, in accordance with the Miranda warnings, he had a right to remain silent at the time of arrest and the state should not have been allowed to use such silence against him at trial.

The general rule in this regard was stated in Houston v. State, 354 So.2d 825 (Ala.Cr.App.1977), cert. denied, 354 So.2d 829 (Ala.1978), as follows:

“Not only is the prosecutor forbidden to use as evidence of substantive guilt the fact of defendant’s silence following his arrest and Miranda warnings but the state may not constitutionally impeach a defendant’s trial testimony with proof of post-arrest silence. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976).”

See also, Dickey v. State, 390 So.2d 1177 (Ala.Cr.App.), cert. denied, 390 So.2d 1178 (Ala.1980).

The state asks us to distinguish the instant case from Houston and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), because there was no evidence in the record that the appellant was even given the Miranda warnings. See, Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). The state’s argument is unfounded and its reliance on Fletcher v. Weir is totally misleading because there is evidence in the record that the appellant was informed of his Miranda rights several times after his arrest.

However, the appellant’s reliance on Houston v. State, supra, and Doyle v. Ohio, supra, is unwarranted. In Houston the state made several comments about the defendant’s post-arrest silence and introduced, through the testimony of its own witness, the fact that the defendant refused to make a statement after his arrest. In Doyle, the prosecutor, during cross-examination, forced the defendant to admit that he had not told his exculpatory story to the police after his arrest. Under those circumstances the reviewing courts found reversible error, in accordance with the general rule prohibiting evidence of post-arrest silence.

The circumstances of the instant case are materially different from those in Houston and Doyle. The appellant presented three alibi witnesses and then, in his own behalf, confirmed his alibi, that he was at his girlfriend’s apartment when the instant offense was committed. The state, through vigorous cross-examination of the appellant, forced him to re-state his alibi with a bit more detail. At the conclusion of this re-statement the following exchange took place (R. 640):

“Q Did you ever tell Sergeant W.T. Gaut that [the alibi story] ... ?
“A Yes, I did.
“MR. DAWSON [Appellant’s attorney]: Judge, I would object to that.”

After a discussion that followed and some voir dire testimony from the appellant concerning his alleged post-arrest statements to Gaut, the trial court overruled the appellant’s objection, permitted, in the presence of the jury, some additional questioning of the appellant, concerning the circumstances surrounding the statements he, allegedly, made to Gaut, and permitted Gaut to testify in rebuttal that the appellant never disclosed his alibi story to Gaut.

Quite clearly, the triggering question on the issue of appellant’s post-arrest behavior was the state’s inquiry (quoted above) as to whether or not the appellant told Sergeant W.T. Gaut about his alibi. This question, by itself, was not erroneous because it did not infer post-arrest silence. See, Dickey v. State, supra; See also, Monroe v. State, 396 So.2d 241 (Fla.App.1981). Then, before any objection was made by his attorney, the appellant stated that he had, indeed, told Gaut about his alibi. We need not speculate as to how the trial court would have ruled, had appellant’s attorney interposed an objection before the appellant answered. The fact is that the appellant was not forced to admit post-arrest silence. Instead, he claimed that he told his exculpatory story to the police.

Under these circumstances, the instant case falls within an exception to the “post-arrest silence” rule quoted above from Houston v. State. The exception was stated as footnote 11 in Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), as follows:

“It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378, 1383 (CA5 1975).” (Emphasis supplied.)

The appellant’s claim that he told the alibi story to Sgt. W.T. Gaut after his arrest invited impeachment by the state. Consequently, we find no error by the trial court as regards this post-arrest silence issue. See also, United States v. Quintana-Gomez, 488 F.2d 1246, 1248 (5th Cir.1974); and United States v. Fairchild, 505 F.2d 1378 (5th Cir.1975).

II

The appellant was positively identified by Mrs. Pennington and Johnny Payne as one of the perpetrators of the instant offense. Mrs. Pennington identified the appellant in a photographic line-up, in a live line-up, and from the witness stand at trial, and testified that the appellant was the triggerman, the robber who shot and killed her husband. Johnny Payne identified the appellant in a live line-up and from the witness stand at trial.

At trial the appellant moved to suppress the pre-trial identifications and raised timely objections to prevent the identifications in court. The appellant argues that all of these identifications were inadmissible because they were the “fruits of an illegal detention,” that the line-up identifications were inadmissible because they were unduly suggestive, and that the in-court identifications were inadmissible because they were “tainted” by the out-of-court identifications. We disagree.

With all due respect to the appellant and his arguments on appeal, we, simply, cannot find in the record before us any support for these contentions.

A

There is no evidence that the appellant was illegally arrested or detained. The robbery-murder of Mr. Doyle Pennington occurred on December 19, 1980. Descriptions of the two robbers and the “getaway car” were obtained by the investigating police officers from Mrs. Pennington, Johnny Payne and other witnesses at the scene. Through what appears to have been normal and efficient detective work by the Birmingham Police Department, the details of which were not disclosed at trial, the appellant was identified as a possible suspect. On December 23, 1980, just four days after the crime, Mrs. Pennington and Johnny Payne, the two key eyewitnesses to the robbery-murder, were, independently, shown a photographic line-up which included a photograph of the appellant. Although Johnny Payne could not positively identify the appellant from his photograph, Mrs. Pennington positively and unequivocally identified the appellant as the trigger-man, the robber who shot and killed her husband.

Based, primarily, upon Mrs. Pennington’s positive identification from the photographic line-up, the appellant was “picked up” that day as a suspect in the instant offense. He was placed in a line-up the following day and was positively identified, independently, by Mrs. Pennington and Johnny Payne.

The trial court concluded, and we agree, that there was absolutely no evidence of an illegal arrest or detention. Therefore, appellant’s arguments against admitting the identification evidence at trial on the “fruit of an illegal detention” theory, are unfounded.

B

Similarly, there was also a lack of evidence of any undue suggestiveness surrounding either the photographic line-up or the live line-up the following day. The police officers, Mrs. Pennington and Johnny Payne, all testified that there was nothing suggestive about either line-up. Mrs. Pennington witnessed her husband’s murder and then had the opportunity to view the triggerman face-to-face for several moments from the other side of a cash register counter. As she later explained, she was able to positively identify the appellant because she had a very close look at his face, and a very vivid memory of the man that shot and killed her husband, a recollection she would probably never forget. Her identifications of the appellant were unequivocal. Johnny Payne was not able to positively identify the appellant until he saw him in person, in the live line-up. He then realized that the appellant was the robber that he had seen face-to-face from about five feet away just after the shooting.

Both line-ups, from which the appellant was ultimately identified, included seven suspects. The other six individuals, in each instance were selected because of their similarity to the appellant in height, weight, age, hair style and race. Both line-ups, and the consequent identifications, occurred within five days of the crime. Viewing the “totality of these circumstances” in light of the “factors to be considered in evaluating the likelihood of misidentification” (i.e. the witness’s opportunity to view the person at the time of the crime, the witness’s degree of attention, the witness’s prior description of the person, the witness’s level of certainty, and the length of time between the crime and the identification), we have concluded that there was not a “very substantial likelihood of irreparable misidentification.” See, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and cases therein cited. The in-court identifications were, therefore, not “tainted” by the pretrial procedures. Consequently, the trial court did not err in refusing to exclude as evidence either the pre-trial or the in-court identifications. For more detailed analyses and discussions of the legal principles governing our determination of the admissibility of the identification evidence, herein, see our very recent opinions in Raines v. State, 428 So.2d 206 (Ala.Cr.App.1983), Miller v. State, 431 So.2d 586 (Ala.Cr.App.1983), and Jones v. State, 431 So.2d 1367 (Ala.Cr.App.1983).

Ill

Sergeant Gaut was permitted to testify that appellant's accomplice, Benny Ray Jones, was also identified by Mrs. Pennington from a line-up. The appellant objected to the introduction of this information and asserts on appeal that it should have been excluded because its prejudicial effect, associating the appellant with the, allegedly, “notorious” Benny Ray Jones, outweighed any probative value.

However, the appellant cites no authority, and we can find no support for his assertion. The trial court was well aware of the situation and the possibility of undue prejudice in associating the appellant with Benny Ray Jones. The trial court’s determination that this information was relevant and material and, therefore, admissible was within its sound discretion, and there was no abuse of said discretion in this instance. Bryant v. State, 49 Ala.App. 359, 272 So.2d 286, cert. denied, 289 Ala. 740, 272 So.2d 297, cert. denied, 412 U.S. 922, 93 S.Ct. 2744, 37 L.Ed.2d 149 (1972); Strickland v. State, 348 So.2d 1105 (Ala.Cr.App.), cert. denied, 348 So.2d 1113 (Ala.1977); Payne v. State, 419 So.2d 286 (Ala.Cr.App.1982).

The identification of Benny Ray Jones was additional evidence tending to connect the appellant with the instant offense and provided the jury a more “complete picture of the crime, with all attending circumstances.” See, Williams v. State, 354 So.2d 48, 51 (Ala.Cr.App.1977), cert. denied, 354 So.2d 53 (Ala.1978). The appellant was seen inside the store with Benny Ray Jones. They left the scene together in a “getaway car” that belonged to Benny Ray Jones, and the murder weapon was later recovered from a motel room registered to Benny Ray Jones. This evidence supported the eyewitnesses’ identifications of the appellant and its probative value outweighed any prejudice. See, Hunter v. State, 38 Ala.App. 351, 83 So.2d 737 (1956); Tate v. State, 346 So.2d 515 (Ala.Cr.App.1977); and Payne v. State, supra.

IV

The trial court did not err in sustaining the state’s objections to appellant’s questions concerning the blood alcohol content of the victim. Apparently, the appellant theorized that if the victim was intoxicated he might have provoked the attack that led to his death.

However, there was absolutely no evidence of provocation or self-defense. The state proved that Mr. Pennington was assisting a young customer when he was approached and shot at point-blank range. He did not provoke this assault and did not even have an opportunity to defend himself. The appellant's sole defense was alibi. The victim’s blood alcohol content was, therefore, not relevant to any material issue and it was properly excluded by the trial court.

V

The evidence was sufficient to support the jury’s verdict. The appellant was positively identified by Mrs. Pennington and Johnny Payne as a participant in the robbery and the murder of Mr. Pennington. Mrs. Pennington identified the appellant as the triggerman. Benny Ray Jones was identified as appellant’s accomplice. Jones and the appellant were seen leaving the scene of the crime in an automobile that belonged to Benny Ray Jones. The murder weapon was found in a motel room registered to Benny Ray Jones. Although there was evidence to the contrary (appellant’s alibi evidence), the jury was justified in finding the appellant “guilty of the capital felony as charged in the indictment.”

For the foregoing reasons, this cause is affirmed.

AFFIRMED.

TYSON, HARRIS and SAM TAYLOR, JJ., concur.

BOWEN, P.J., concurs in result only.