author: TYSON, Judge.

text:
    Billy Ray COFER v. STATE.
    6 Div. 918.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.
    Rehearing Denied March 1, 1983.

      Carl E. Chamblee, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Gregory J. Robinson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Sexual abuse in the first degree; sentence: five years’ imprisonment.

On July 25, 1981, the prosecutrix, who was then sixteen years old, went to her brother’s trailer to get some medicine for her father. Because she was unable to find the medicine, the prosecutrix went next door to her brother-in-law’s home to attempt to use the telephone. Her brother-in-law, the appellant herein, met her at the door, invited her in, and told her she could use the telephone. As the prosecutrix attempted to leave after completing her telephone call, appellant closed and locked the door and told the prosecutrix he wanted “to feel” her. Appellant grabbed the victim, began to kiss her, and then threw her onto a loveseat in the living room. Appellant lay beside her on the sofa and moved his body toward her. He then picked her up and carried her into the bedroom and threw her onto the bed. In the prosecutrix’ words, the following then occurred:

“He come down on top of me and he was kissing me and everything, again, I was telling him to quit, I told him if he cared anything about my sister he wouldn’t be doing that and then he pulled my shorts off and I was fighting him and I told him I had to get my father’s medicine to him within thirty minutes and he told me that it wouldn’t take that long and then he just kind of slid my panties out of the way and starting sticking his finger in me and I was hollering and telling him to quit and he was just hunching on my legs and stuff. I told him I had to go and he iust quit, he said well, that is all I wanted.” (R. 31)

The prosecutrix put her shorts on and then fled from the house.

I

Appellant argues reversible error occurred when the trial judge allowed the State to introduce on rebuttal, over appellant’s objection, evidence proving appellant had committed a different sexual offense, upon a third party, approximately ten years prior to the immediate offense. The State’s rebuttal witness testified she was also related to appellant, as his first cousin, and that she had been raped by him, at her home, in 1972. She described the attack as follows:

“He opened the door and pushed me all the way through the house to the bedroom.
“He pushed me down on the bed and he started tearing — I had my housecoat on with my panties and bra and he tore my clothes off of me and he beat me in the face and he beat me in the breast, and he put a pillow over my face and tried to smother me and told me if you ever tell a word of this I will kill you.
“His private parts entered mine twice, the whole time he was beating me and biting me and his fingers entered me, I don’t know how many times, the whole time I was screaming then he put the pillow over my face and tried to smother me two or three different times to keep me from screaming.”
(R. 144-145)

Appellant objected to the admission of the above testimony on grounds of remoteness, improper rebuttal, incompetency, irrelevancy, and immateriality.

Evidence of collateral acts or offenses, which are themselves similar to the offense being tried, may be admissible as relevant and material in proving the intent with which the accused acted on the occasion in question. Howton v. State, 391 So.2d 147 (Ala.Cr.App.1980).

As to appellant’s remoteness objections, admissibility of evidence because of remoteness is a relative standard, varying in its application according to the facts of each case. Palmer v. State, 401 So.2d 266 (Ala.Cr.App.), cert. denied, 401 So.2d 270 (Ala.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). The issue of remoteness is analyzed in Smitherman v. State, 33 Ala.App. 316, 318, 33 So.2d 396, 398 (1948) as follows:

“Ordinarily, remoteness of time affects the weight and probative value of evidence rather than its admissibility. It rests largely in the enlightened discretion of the court whether or not such proof will be allowed. Remoteness has regard also to factors and considerations other than mere lapse of time. It results, therefore, that it is practically impossible and not at all accurate to attempt to state a fixed rule or standard with particular reference to the time element. Of course it can be said with certainty that the tendered evidence must not be so remote in point of time as to be without causal connection or logical relation to the main event.”

Remoteness of time alone does not render a prior, similar act or offense inadmissible. Yet, the trial court’s discretion in admitting evidence does not extend to admitting evidence that is so remote as to time or circumstances that its relevance or materiality must rest in conjecture and speculation. White v. State, 380 So.2d 348 (Ala.Cr.App.1980).

Where the competency of evidence is doubtful because of remoteness, the better practice is to admit the evidence, leaving it to the jury to determine its credibility and weight. If the questioned evidence tends to prove a fact for the jury’s determination, however slight that evidence may be, it should be admitted as relevant. White, supra.

While a span of ten years between acts bears close scrutiny, it is not beyond the pale of reason. Demmert v. State, 565 P.2d 155 (Alaska 1977); Maestas v. State, 224 N.W.2d 248 (Iowa 1974). See Annot. 88 A.L.R.3d 8 (1978); Palmer, supra (involving a span of five years). Because of the testimony’s highly probative nature in illuminating appellant’s intent, as discussed infra, we find the trial court did not abuse its discretion in overruling appellant’s objection as to remoteness.

We note the prosecutrix’ version of the events, when compared with the prior rape described by the State’s rebuttal witness, indicates both assaults occurred on young female relatives of appellant who found themselves alone with appellant. As well, both followed similar patterns, with appellant throwing the victims onto the bed while evidencing a preoccupation with putting his finger inside the victims. While perhaps these facts alone might not be sufficient to warrant admitting the evidence as tending to prove an identity issue, see Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975), they do bare strongly in judging the relevancy and materiality of the evidence as to remoteness in proving appellant’s intent. See also Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981).

Appellant took the stand and testified in his own behalf. He recalled the occasion of the prosecutrix using his telephone, but denied any sexual abuse, stating rather that they had engaged in a heated argument over a prior incident involving baby sitting.

Appellant described his actions and intent in so acting on the occasion in question as follows:

“All right. Now, you said you had not seen Connie since that night up until the time she walked in on this occasion?
“No, sir, I sure hadn’t, I had been laying for her.
“Q Now, on this occasion when she was up there punching the phone, what did you do if anything?
“A Well, I got ready to bless her out and that is exactly what I proceeded to do when she got off of this phone.
“Q Where were you standing?
“A I was standing right in the doorway.
“Q The doorway going into your house?
“A That’s right.”
(R. 138-139)

While appellant admits an altercation, at least verbally, occurred, and that he in fact “had been laying for her,” he denied that any sexual motivation existed, or that any sexual encounter occurred. Thus, while appellant admitted the confrontation and that he “was standing right in the doorway,” he denied his actions were sexually motivated.

In discussing the intent exception to the general rule against admitting other offenses, this Court in Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973) stated:

“One of the exceptions is that the other crime is admissible to show criminal intent. That issue, not identity, is here involved. Judge McElroy elucidates intent to mean the state of mind of any person at the time he does the act — the act together with such state of mind constituting the charged crime. It may be an intentional doing of the act as distinguished from an inadvertent doing of the act, or we might add, a casual or an isolated instance that found expression in an inept suggestion or approach. Judge McElroy, supra p. 168, further said, with logic and reason, that: ‘Because the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question, the greater likelihood that the act in question was not done inadvertently. Therefore, in certain crimes the state may prove accused’s doing of similar acts as tending to show that in doing of a now charged act, he had that intent that is an element of the now charged crime.’ ”

We find that the evidence of the prior rape was admissible for the purpose of proving the criminal intent and negating any innocent intent or any other intent as regards the act committed upon the prose-cutrix. McKenzie v. State, 250 Ala. 178, 33 So.2d 488 (1947); O'Berry v. State, 361 So.2d 1132 (Ala.Cr.App.), cert. denied, 361 So.2d 1135 (Ala.1978); Howton, supra.

Lest there be any doubt that intent is an issue under a charge of first degree sexual abuse, we set forth the following from Parker v. State, 406 So.2d 1036, 1039 (Ala.Cr.App.) cert. denied, 406 So.2d 1041 (Ala.1981):

“On its face, § 13A-6-66, fails to state any requisite culpable mental state. However, the term ‘sexual contact’ as defined in § 13A-6-60(3), and used in the above statute, requires that the touching be done for the purpose of gratifying the sexual desire of either party. Therefore, it is incumbent upon the State to establish intent to gratify the sexual desire of either party in order to complete proof of the crime.”

Appellant admitted the confrontation in the presentation of his case, but denied any sexual intent or abuse. Appellant’s intent therefore was in issue, and it was proper for the State on rebuttal to elucidate his intent on this occasion by offering evidence of prior sexual misconduct against another young female relative on a prior occasion. See O’Berry, supra. Finally we note that the trial court, in its oral charge, instructed the jury as follows:

“There was some evidence that was allowed to come to you by the Court concerning prior acts between the Defendant and a Mrs. Gutherie, concerning another act or another offense in a different time and place. I instruct you that you consider that evidence along with all the other evidence in this as to its relevancy to prove, if it does, at the time and place in question here, a motive of the Defendant if any, the intent of the Defendant if any, at the time and place, a system that is planned or designed by the Defendant if any, at the time and place in question in this action, any special defenses that the Defendant may have had or put forward to you in this case, guilty knowledge if any of this Defendant at the time and place in question here, identity of the crime if any because of action here, any one or all of these things you may consider with the total evidence. Not that he is guilty or innocent of this offense, but for the reasons that I gave you here and the purpose that I have delineated to you.”
(R. 188-189)

II

Appellant asserts he was denied the right to a speedy trial because of a continuance granted in his case which passed his trial from the February 1982 court term to the May 1982 court term at the State’s request. He alleges he was specifically prejudiced thereby because the delay extended through the abrogation of the two-for-one juror strike enacted by revision of § 12-16-100, Code of Alabama 1975.

An abbreviated chronology of events preceding appellant’s ultimate trial date, as revealed by testimony and the judgment entry, is as follows:

July 25,1981: The prosecutrix was sexually abused by appellant.

July 27, 1981: The prosecutrix filed a complaint against appellant with the Cullman County Sheriff Department.

July 28, 1981: A warrant was issued and appellant arrested.

August 25, 1981: Appellant filed a motion for a preliminary hearing.

November 9,1981: The preliminary hearing was held.

January 8, 1982: Appellant was indicted.

January 25, 1982: Appellant was appointed counsel by the Court after he was determined to be an indigent; appellant was arraigned and a not guilty plea was entered in the presence of his counsel.

January 29, 1982: Appellant’s motion for a continuance and an election was denied.

February 8, 1982: Appellant’s retained counsel first appeared; appellant’s motion for extension of time denied, and case set for February 10, 1982 with appointed counsel to remain in the case also.

By further court order, case continued on State’s motion because of witness problems and because another case against appellant was continued on appellant’s motion; case reset for March 22,1982. Appellant’s counsel apparently orally entered their objection to the Court’s continuance, after being informed of the Court’s action.

March 24, 1982: Court appointed counsel discharged from representation of appellant.

March 26, 1982: Case continued because appellant was being tried on another case during the March 22, 1982 jury week.

April 13, 1982: Two State’s witnesses, having been served, failed to appear and were ordered attached and brought before the Court.

May 12, 1982: Case called for trial and a one day continuance was granted to the State because of the absence of one witness; appellant’s oral motion for dismissal of charges for denial of a speedy trial was denied.

May 13,1982: Appellant’s motion for application of § 12-16-100, Code of Alabama 1975 or in the alternative, for dismissal; appellant’s case proceeded to trial, which resulted in his conviction on May 14,1982 of sexual abuse, first degree.

As outlined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the four balancing factors for assessing denial of a speedy trial are as follows: (1) the length of the delay, (2) the reason for the delay, (3) the assertion by the defendant of his right, and (4) the prejudice resulting to the defendant.

In order to trigger an inquiry into the latter three factors delineated in Barker, supra, the length of the delay must in itself by “presumptively prejudicial.” McCallum v. State, 407 So.2d 865 (Ala.Cr.App.1981). Because the speedy trial right is activated for and extended to one who has become “an accused,” either by formal indictment or actual restraint pursuant to arrest, it appears the triggering date for appellant’s right to a speedy trial was July 28,1981, the date of his arrest. McCallum, supra. The length of delay in appellant’s trial was approximately nine and one half months, as computed from his arrest on July 28, 1981 through his trial on May 13, 1982.

Considering the case history, as delineated above, as well as appellant’s failure to assert his right to speedy trial prior to the case being called on May 12, 1982 and being continued for trial to May 13, 1982, we find this delay was,not “presumptively prejudicial.” McCallum supra. No inquiry into the remaining three Barker factors is mandated. Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980).

We point out that appellant failed to demonstrate, either on or before trial, or on appeal, that any prejudice resulted to him from the delay. See McCloud v. State, 412 So.2d 1266 (Ala.Cr.App.1982). As this Court has recently opined, the two-for-one juror strike involves a procedural process only. “The jury striking process, being procedural in nature, rather than jurisdictional or substantive, is governed by the law in effect on the trial date.” Terrell v. State, 429 So.2d 656, 659 (Ala.Cr.App.1982).

No error harmful to the substantial rights of appellant having been demonstrated on appeal, this case is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex Parte Billy Ray COFER. In re Billy Ray Cofer v. State of Alabama.
    82-555.
    Supreme Court of Alabama.
    Sept. 16, 1983.

      Carl E. Chamblee, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
   SHORES, Justice.

Cofer was convicted under § 13A-6-66, Ala.Code 1975, of sexual abuse of his sixteen-year-old sister-in-law. The Court of Criminal Appeals upheld the conviction in Cofer v. State, 440 So.2d 1116 (Ala.Cr.App.1983). The facts of the case are fully stated in that opinion. We granted certiorari.

Cofer argues that the trial court’s admission of the State’s evidence of alleged prior sexual misconduct is reversible error. The evidence was in the form of testimony by Cofer’s first cousin, the victim of an alleged rape by Cofer, which occurred in approximately 1972, about ten years before the date of the present offense. The alleged victim of the 1972 incident described the details of the rape to the jury and identified Cofer as the rapist. No charges had ever been filed in connection with this rape. The State produced this testimony on rebuttal, although the witness was in court every day of the trial. Cofer argues that this evidence was inadmissible because it was used to prove he had a bad character and a propensity to commit sexual misconduct. He contends that there was no legitimate purpose for admission of the testimony.

Cofer raises one other issue. He claims that he was denied a speedy trial as guaranteed him by the Sixth and Fourteenth Amendments to the United States Constitution and by Art. I, § 6, of the Alabama Constitution of 1901. The basis of his argument is that there was an unreasonable delay between the date his counsel and the State announced “ready” and the date on which the trial actually commenced. The delay was not his fault. He claims he was prejudiced as a result of the delay because he lost his two-for-one peremptory jury strike by a change in Alabama law which became effective during the delay. Ala. Code 1975, § 12-16-100(a) (Supp.1982).

The Court of Criminal Appeals, after argument on these issues, affirmed the conviction. We reverse.

The rule regarding admissibility of prior misconduct by a criminal defendant has been well stated in C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (3rd ed. 1977):

“This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question. This rule is generally applicable whether the other crime was committed before or after the one for which the defendant is presently being tried.
“This exclusionary rule is simply an application of the character rule which forbids the state to prove the accused’s bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.”

The rule protects the defendant’s right to a fair trial. It seeks “to prevent conviction based on a jury belief that the accused is a person of bad character. The jury’s determination of guilt or innocence should be based on evidence relevant to the crime charged.” Goodman v. State, 401 So.2d 208, 212 (Ala.Cr.App.1981), cert. denied, 401 So.2d 213 (Ala.1981), citing United States v. Turquitt, 557 F.2d 464, 468 (5th Cir.1977).

There are some well-known exceptions to the rule, and under certain circumstances, evidence of prior misconduct may be admitted. See generally, Johnson v. State, 335 So.2d 663, 673 (Ala.Cr.App.1976); McElroy’s Alabama Evidence § 69.01.

The State originally argued before the Court of Criminal Appeals that the alleged rape was admissible under the common scheme exception. It was offered to prove that Cofer did the act presently charged. Sellers v. State, 41 Ala.App. 612, 145 So.2d 853 (1962). We hold that a single rape which occurred ten years prior to the present offense, as reprehensible as it is, is not evidence of a pattern or pre-existing design into which the present charge of sexual abuse fits. See Brasher v. State, 249 Ala. 96, 98-100, 30 So.2d 31, 32-34 (1947).

The evidence of the prior alleged rape does not fall within any of the other exceptions either. There were no questions about identity, motive, physical capacity, or knowledge.

The Court of Criminal Appeals held that the testimony of the prior alleged rape was admissible as tending to prove that Cofer had the requisite intent to commit first degree sexual abuse, the present charge.

Under §§ 13A-6-60 and 13A-6-66, Code 1975, first degree sexual abuse requires proof that the defendant acted with the intent to gratify the sexual desires of himself or the prosecutrix. Parker v. State, 406 So.2d 1036 (Ala.Cr.App.1981), cert. denied, 406 So.2d 1041 (Ala.1981). This intent may be inferred by the jury from the act itself. Parker v. State, 406 So.2d 1039. The prosecutrix testified that Cofer kissed her, removed some of her clothing, inserted his finger into her, and lay close to her. If the jury believed her testimony, it could infer that Cofer had the requisite intent and find him guilty of the offense. There is, therefore, no real and open issue about his intent, and the evidence of the prior rape was erroneously allowed to prove Cofer’s intent.

The State has no absolute right to use evidence of prior acts to prove the elements of an offense or to buttress inferences created by other evidence. Evidence of prior bad acts of a criminal defendant is presumptively prejudicial to the defendant. It interjects a collateral issue into the case which may divert the minds of the jury from the main issue. Kilpatrick v. State, 51 Ala.App. 352, 285 So.2d 516 (1973), cert. denied, 291 Ala. 628, 285 So.2d 525 (1973). Therefore, the admission of such evidence constitutes reversible error. Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966).

Additionally, the prior rape was alleged to have occurred ten years before the present offense. Even if intent were in issue, this prior rape is too remote to be probative of the issue. Deason v. State, 363 So.2d 1001, 1005 (Ala.1978). In Deason, we were concerned with the proximity of an act subsequent to the one charged, but our admonition there that the acts be not too remote in time is applicable here.

We now address Cofer’s other contention that he was denied a speedy trial and unjustly prejudiced by the delay. The gist of his argument is that his trial was postponed at least twice upon the State’s motion. During this delay, a change in the law became effective, and the two-for-one peremptory strike was abolished and replaced with a one-to-one jury strike. Code of Alabama, § 12-16-100(a) (Supp.1982). The trial court held Cofer to a one-to-one jury strike.

The U.S. Supreme Court has held that the peremptory challenge is a very important right of the accused and “a necessary part of the trial by jury,” Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965); however, it has not been elevated to the status of a constitutionally guaranteed right. United States v. Morris, 623 F.2d 145, 151 (10th Cir.1980), cert. denied, 449 U.S. 1065, 101 S.Ct. 793, 66 L.Ed.2d 609 (1980). We also recognize that peremptory challenges are an inherent part of the jury trial; however, we agree that “the granting or withholding of peremptory challenges is solely a matter of procedure.” Haynes v. State, 424 So.2d 669, 671 (Ala.Cr.App.1982), citing 16A Am.Jur.2d Constitutional Law, § 648 (1979). The trial court correctly applied the law as it existed at the time of trial. This was appropriate because it is a matter of procedure.

Cofer was not denied a speedy trial. A change of procedure, even though working a disadvantage to the defendant, is not denial of due process.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All the Justices concur.


text:
    Billy Ray COFER v. STATE of Alabama.
    6 Div. 918.
    Alabama Court of Criminal Appeals.
    Nov. 1, 1983.
   TYSON, Judge.

On September 16, 1983, the Supreme Court of Alabama reversed and remanded this cause for a new trial because it determined that the trial court improperly admitted evidence of a “prior rape alleged to have occurred 10 years before the present offense.” As directed in Cofer, 440 So.2d 1121, this cause is herewith reversed and remanded for a new trial.

REVERSED AND REMANDED FOR NEW TRIAL.

All the Judges concur.


author: BOWEN, Judge.

text:
    Glennon HOPPINS, Jr. v. STATE.
    1 Div. 474.
    Court of Criminal Appeals of Alabama.
    March 1, 1983.
    Rehearing Denied March 29, 1983.
    Certiorari Quashed Nov. 10, 1983 Alabama Supreme Court 82-660.

      G. Wayne Ashbee, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

This is an appeal from the denial of a petition for writ of error coram nobis. In Hoppins v. State, 337 So.2d 134 (Ala.Cr.App.1976), this Court affirmed Hoppins’ conviction of robbery.

I

Johnson v. Williams, 244 Ala. 391, 395, 13 So.2d 683 (1943), made it perfectly clear that an attack on the jury venire not urged at trial or on appeal could not be raised for the first time on petition for writ of error coram nobis, since petitioner had “waived” any objection to venire by his failure to object. If this were not the rule “no skilled lawyer would ever attempt to raise such question until after conviction.” Vernon v. State, 240 Ala. 577, 581, 200 So. 560 (1941). A contrary doctrine would “reduce the trial of a defendant charged with crime to a mere game of chance, and make a mockery of the courts.” Johnson, 244 Ala. at 395, 13 So.2d 683. See also Morris v. Sullivan, 497 F.2d 544 (5th Cir.1974); Ellison v. State, 410 So.2d 130 (Ala.1982); Williams v. State, 343 So.2d 1328 (Ala.1977); Hamilton v. State, 283 Ala. 660, 662, 220 So.2d 267 (1969); Warden v. State, 274 Ala. 720, 145 So.2d 815 (1962); Ex parte Seals, 271 Ala. 622, 623, 126 So.2d 474 (1961); Taylor v. State, 249 Ala. 667, 669, 32 So.2d 659 (1947); Redus v. Williams, 244 Ala. 459, 461, 13 So.2d 561 (1943); Summers v. State, 366 So.2d 336, 340 (Ala.Cr.App.1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala.1979); Senn v. State, 43 Ala.App. 323, 189 So.2d 870 (1966); Horsley v. State, 42 Ala.App. 567, 172 So.2d 56 (1965); State v. Willis, 42 Ala.App. 414, 166 So.2d 917 (1964). To the same effect see Thigpen v. State, 374 So.2d 401, 405 (Ala.Cr.App.), cert. quashed, 374 So.2d 406 (Ala.1979); Thigpen v. State, 372 So.2d 385, 387 (Ala.Cr.App.), cert. denied, Ex parte Thigpen, 372 So.2d 387 (Ala.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 690, 62 L.Ed.2d 660 (1980).

II

Hoppins alleges that his trial counsel was ineffective because he did not file a motion to quash the jury venire and was not aware that the constitutionality of the jury selection process in Mobile County was the subject of continuing litigation.

In Preston v. Mandeville, 428 F.2d 1392, 1394 (5th Cir.1970), the Fifth Circuit Court of Appeals found that the “disparity in the circumstances” of the jury selection process in use in Mobile County “made out a prima facie case of discrimination based on race.” See also Preston v. Mandeville, 479 F.2d 127 (5th Cir.1973); Malloy v. State, 357 So.2d 671 (Ala.Cr.App.), cert. denied, 357 So.2d 674 (Ala.1978); Griffin v. State, 356 So.2d 723 (Ala.Cr.App.), cert. denied, Ex parte Griffin, 356 So.2d 728 (Ala.1978).

Hoppins’ trial counsel testified that he did not file a motion to quash the grand or the petit jury because he “didn’t have any reason to at that time.” He testified that even if he had been aware of Preston v. Mandeville, he “may or may not” have filed a motion to quash: “There were some cases, ... when I didn’t file the motion, although I could have, because I thought that the jury venire would be better handling that case at that particular time. So, there were a couple of times that I chose not to even file a motion to quash.”

In Malloy, 357 So.2d at 674, even though this Court found it “inconceivable” that, in 1977, an experienced trial counsel would not have been aware of the federal litigation concerning the jury selection process, it recognized that “(f)ailing to file a motion to quash the jury venire prior to trial could well have been trial strategy.”

Hoppins’ trial counsel was not shown to be ineffective when judged by the “norms of representation prevailing at the time of counsel’s action.” Hubbard v. State, 382 So.2d 577, 585 (Ala.Cr.App.1979), affirmed, Ex parte Hubbard, 382 So.2d 597 (Ala.1980), set aside on other grounds, 405 So.2d 695 (Ala.1981). Counsel testified that the “Mobile Criminal Bar Association became aware of the unconstitutional practice” of jury selection in that county “(a)fter the trial of Glennon Hoppins.”

The Assistant District Attorney stated that “this whole thing broke open” when the parties entered into a consent decree in April of 1977 that “the jury list presently being used in Mobile County, Alabama, shall no longer be used for the selection of juries.” Malloy, 357 So.2d at 673. This evidence did not clearly and convincingly satisfy the court on the merits and allegations of the petition. Summers, 366 So.2d at 343.

In this state, the minimum standard of competence and efficacy is the “mockery of justice rule.” Taylor v. State, 291 Ala. 756, 760, 287 So.2d 901 (1973); McKinnis v. State, 392 So.2d 1266, 1269 (Ala.Cr.App.1980), cert. denied, Ex parte McKinnis, 392 So.2d 1270 (Ala.1981).

“(T)he rule in this State is that, in order to have a conviction reversed because of incompetent counsel, a defendant must show that the representation by counsel was only perfunctory, that the conduct of the attorney reduced the trial to a farce, sham, or mockery of justice, or that the representation shocks the conscience of the court.” Bridges v. State, 391 So.2d 1086, 1091 (Ala.Cr.App.1980).

The Sixth Amendment does not require er-rorless counsel or counsel judged ineffective by hindsight. Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir.1977).

Our finding on Hoppins’ original appeal precludes any determination that trial counsel’s conduct reduced the trial to a mockery of justice. In Hoppins, 337 So.2d at 137, we noted:

“Furthermore, no point is made on appeal, wherein defendant is represented by appointed counsel, to the effect that the employed counsel did not adequately represent him at the trial. Even so, we have examined the record, in consideration of the question, and find no basis for any reasonable contention that he was without adequate representation.”

On the adequacy of defense counsel’s representation regarding a defendant’s right to and the incidents of a jury trial see Annot., 3 A.L.R.4th 601 (1981).

Applying a different standard for the conduct of lawyers, Hoppins did not show “that reasonably competent lawyers rendering similar services under existing circumstances would have filed a motion to quash the jury panel.” Benson v. State, 611 S.W.2d 538, 544 (Mo.App.1980).

Our review of this record convinces us that Hoppins did not carry his heavy burden of proving the ineffectiveness of counsel and of supporting the allegations of his petition with evidence.

The judgment of the circuit court denying Hoppins’ petition for writ of error cor-am nobis is affirmed.

AFFIRMED.

All Judges concur.


author: BOWEN, Presiding Judge.

text:
    LaBarron MILLER v. STATE.
    1 Div. 349.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-984.

      W. Gregory Hughes, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard D. Melson, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

On the night of November 17, 1980, Geraldine Hayles was strangled to death by an intruder in her home. The defendant was indicted and convicted for the capital offense involving an intentional killing during the commission of a burglary. Alabama Code Section 13A-5-31(a)(4) (1975). In accordance with the jury’s recommendation at the punishment fixing phase of the trial, the trial judge sentenced the defendant to life imprisonment without parole. Three issues are presented on appeal.

I

The trial judge properly overruled the defendant’s motion to suppress the physical evidence and testimony resulting from a search pursuant to a warrant of the residence where the defendant was arrested.

While the affidavit in support of the search warrant is not recommended as a model for imitation, it was sufficient to ■ justify the issuance of the warrant. The affidavit itself, which was admitted into evidence, shows that the affiant, Lieutenant Ronald Mair of the Mobile Police Department, signed the affidavit and presented it to the issuing judge. The affidavit and the search warrant dispute the defendant’s contention that “there is no showing that any evidence was presented to the judge, under oath, or that the witness, Lieutenant Mair, was ever examined by the judge” as required by Section 15 5 — 4, Code of Alabama 1975. The “search affidavit” reflects that Lieutenant Mair personally appeared before a judge of the district court of Mobile County and swore to the facts of the affidavit. This affidavit is signed by both the lieutenant and the judge. The search warrant signed by the district judge recites “affidavit having been made before me.”

Lieutenant Mair was at the scene on the night of the burglary-murder. The victim’s eight-year-old granddaughter gave him an eyewitness account of the crime and a description of her grandmother’s killer. He participated in a house-to-house search for the assailant described by the young child and was present when the defendant was arrested at his grandmother’s house the day following the murder. This was the same address described in the affidavit and search warrant. Lieutenant Mair was present at the police station that same day of the defendant’s arrest when the child twice identified the defendant.

The police had information that the defendant lived with his grandmother: “We ... knew from talking to different ones that he was living at that residence.” * * “By people telling us, that’s where his grandmother lives.”

Mobile police detective Rivers Johnson testified that he established the defendant’s residence by “picking up an anonymous young lady” who was a “friend of the Defendant” who showed him the defendant’s residence. “(E)ven a first-time citizen-informer need not have a ‘track record’ of good past performance in order to have his information credited.” Moylan, Hearsay And Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 765 (1974). See also Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965). The facts contained in this record show that the constitutional requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), were satisfied, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and demonstrate the existence of probable cause for the arrest of the defendant and the search of his residence.

II

Elaine Scott, a criminalist with the Alabama Department of Forensic Sciences specializing in forensic serology, testified, over objection, that approximately forty-five percent of the population have blood group 0 and that approximately ten percent of the population have blood group B. Her testimony was based on statistics “put out” by the F.B.I. Laboratory. The defendant contends that witness Scott was not properly qualified to testify to these statistics.

At trial, defense counsel’s objections were (1)“improper predicate, as to her knowledge of that” and (2) an objection that “she’s (not) properly qualified to give any statistical evidence as to percentages.”

Ms. Scott was qualified as an expert in forensic serology by her education, training and experience. She stated that she had received “training as to blood types, and what portion of the population have those blood types.” The statistics she “normally” used were the ones used by the F.B.I. Laboratory. She had used these statistics “on previous occasions in testifying in court” and testified that they are used “generally in the practice of serology.”

Blood grouping evidence is admissible in a criminal prosecution. Chatom v. State, 348 So.2d 838, 841 (Ala.1977); Annot. 2 A.L.R. 4th 500, Section 4(a) (1980); Annot. 46 A.L.R.2d 1000 (1956). In civil divorce cases see Balfour v. Balfour, 413 So.2d 1167 (Ala.Civ.App.1982).

The percentages of the distribution of the different blood groups among the population as testified to by Ms. Scott are recognized and accepted as general guidelines. See 2 Am.Jur. Proof of Facts, Blood Types, 607, 609 (1959); J. Richardson, Modern Scientific Evidence, Section 12.2 (2nd ed. 1974); E. Imwinkelried, Scientific And Expert Evidence pp. 940-41 (2nd ed. 1981).

In Chatom, 348 So.2d at 842, our supreme court recognized that “the question of the qualifications of a person to testify as an expert rests largely in the discretion of the trial court and will not be disturbed by the appellate courts in the absence of abuse.” Considering Ms. Scott’s educational background, training, experience, and testimony that the statistics she used were generally used in the practice of serology, we find that the trial judge did not abuse his discretion in allowing her to testify as an expert in connection with blood groups and their distribution. We agree with the trial judge that the witness was qualified and that the alleged lack of her knowledge or qualifications went to her credibility and not her competency.

Ms. Scott’s testimony as to what percent age of the population possessed blood types B and O was reasonably within her area of experience. Redd v. State, 240 Ga. 753, 243 S.E.2d 16 (1979). Testimony concerning blood grouping statistics, based on journals published nationwide by a named pharmaceutical company, has been admitted in evidence under an exception to the hearsay rule based upon principles of necessity and trustworthiness. People v. Gillespie, 24 Ill.App.3d 567, 321 N.E.2d 398 (1974). In State v. Rolls, 389 A.2d 824 (Me.1978), a sufficient foundation was laid for the introduction of an expert’s opinion that five percent of the population possessed a combination of three blood characteristics possessed by the victim, and found in a bloodstain on the defendant’s pants, where the trial judge heard evidence from which he could have found as a preliminary fact that the blood-grouping surveys from which the expert witness drew his conclusions were of a type which were reasonably relied upon in the field. In People v. Romero, 42 Colo.App. 20, 593 P.2d 365 (Colo.App.1978), it was held that the testimony of a serology expert was admissible although the expert relied on tables produced by a pharmaceutical company, since the expert was competent to judge the reliability of the information upon which his testimony was based.

Ill

No written charge was requested on the defense of alibi. There was no objection to the trial judge’s failure to instruct the jury on this defense. There is therefore nothing for this Court to review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed, Ex parte Allen, 414 So.2d 993 (Ala.1982).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Michael Anthony NELSON v. STATE of Alabama.
    1 Div. 350.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-964.

      Joseph P. Givhan, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard D. Melson, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Michael Anthony Nelson was indicted for the murders of Joseph Couey and James Evans in violation of § 13A-5-31(a)(10) (now § 13A-5-40(a)(10), Code of Alabama 1975.

The jury found the appellant “guilty of the Capital Felony as charged in the indictment.” The trial judge followed the jury’s recommendation and sentenced the appellant to life imprisonment without parole.

Since the issues raised on appeal do not turn on the facts, we will discuss only those facts necessary for our decision.

I

The appellant contends he was denied a fair and impartial trial due to the extensive pre-trial publicity concerning the appellant’s participation in these murders and therefore, the trial judge erred by refusing to grant the appellant’s motion for a change of venue.

One of the basic tenets embodied in the United States Constitution is the right to a jury trial. This right guarantees that an accused shall receive a fair trial by a panel of impartial jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

Section 15-2-20, Code of Alabama 1975 states that a defendant is entitled to a change of venue to another county if he can show to the reasonable satisfaction of the trial court that a fair and impartial trial cannot be had in the county in which the indictment is found. Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978).

However, merely because jurors are not totally ignorant of the facts and issues involved in a particular case does not mean that an unbiased verdict cannot be expected in such case.

“In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the jur- or can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”

Irvin v. Dowd, supra.

There are two situations in which a change of venue is mandated. The first is when the defendant can show that prejudicial pre-trial publicity “has so saturated the community as to have a probable impact on the prospective jurors” and thus renders the trial setting “inherently suspect.” McWilliams v. United States, 394 F.2d 41 (U.S.C.A. 8th Cir.1968); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In this situation, a “pattern of deep and bitter prejudice” must exist in the community. Irvin v. Dowd, supra.

The second situation occurs when the defendant shows “a connection between the publicity generated by the news articles, radio and television broadcasts and the existence of actual jury prejudice.” McWilliams v. United States, supra.

The United States Supreme Court, on numerous occasions, has reversed convictions which occurred within a trial setting utterly corrupted by the press. See cases cited in McWilliams v. United States, supra. The case at bar does not approach the magnitude of those cases that have been condemned by the United States Supreme Court.

“Generally newspaper articles which objectively report the commission of a crime, do not carry inflammatory headlines, and do not editorialize on the facts in a manner to inflame the community or create an atmosphere of prejudice are an insufficient basis on which to grant a motion for a change of venue. Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975).”

Anderson v. State, supra.

The appellant introduced copies of nine newspaper articles and transcripts of three television news segments in support of his motion for change of venue. All of the publicity surrounded the trial of his co-defendant, David Beech. We have examined the newspaper articles and the television broadcasts and believe they were factual accounts of the trial proceedings in David Beech’s case and objectively reported. The appellant was mentioned only as Beech’s cohort and the emphasis of the articles concerned Beech and the appellant was only mentioned incidentally. We do not believe that the publicity which the appellant received created an inherently prejudicial atmosphere at this trial. The appellant has failed to show that he did not get a fair and impartial trial as a result of the publicity concerning the murders he allegedly committed.

The appellant claims that because the community was so aware of the charges against him and of the details of the murders that the juror panel had a pre-con-ceived bias against him. The fact that the jurors had knowledge of his case doesn’t necessarily mean that they were biased against the appellant when they were impaneled. Anderson v. State, supra. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

The appellant has failed to establish any indication of actual prejudice against him by the jurors who were impaneled or any unfairness in the juror selection process. The trial judge personally asked each juror about his or her knowledge of the case. All of the jurors, even those who were aware of these murders, indicated they could and would disregard anything they had heard about the appellant’s case and could render an impartial verdict based solely on the evidence presented to them at trial. They further stated that if they did not do so, it would violate their oaths as jurors. Therefore, we are of the opinion that the jury was impartially selected and that they rendered their verdict based solely on the evidence adduced at this trial.

Moreover, the determination of whether or not to grant a motion for change of venue is generally left to the sound discretion of the trial judge because he has the best opportunity to assess any prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835 (1974), Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983), cert. denied, (Ala.S.Ct., 82-582, May 6, 1983).

This court will not review the trial judge’s decision in such case in the absence of gross abuse. Botsford v. State, supra. There was none shown here.

For the reasons herein stated above, we hold the appellant’s motion for change of venue was properly denied.

II

The appellant asserts the trial judge erred by admitting the testimony of State’s witness, Theresa Manders.

Before trial, the appellant filed a motion for discovery asking that the State produce, among other things:

“(9). All written statements of any person whom the District Attorney plans to call as a witness, which contains any statement or alleged statement made by the Defendant.” (R. 4-5).

An agreement was entered on the trial court’s docket sheet and the State produced all such statements except that of Theresa Manders. During the course of the trial, the appellant moved to exclude and prevent Manders from testifying about a statement given by her to the police, which contained statements made to her by this appellant. Defense counsel argued that since the District Attorney had not provided him with Manders’ statement, he was unable to adequately prepare his defense.

At this same hearing which was conducted outside of the presence of the trial jury, the District Attorney stated he had not expected Manders to testify, and had been unable to locate her. She had moved out of state and the State had not been able to locate her to testify at co-defendant David Beech’s trial. Their efforts to locate her for the appellant’s trial had been unsuccessful until the day before she was called to testify. She flew into Mobile the night before she was to testify which was the day of the hearing on the motion to exclude her testimony.

In light of the fact that the District Attorney did not know Manders would be available as a witness until the last moment, and the fact that he first talked to her at 7:00 p.m. on the night before the 10:00 a.m. hearing, the trial judge decided to allow Manders’ testimony but ordered that the District Attorney provide defense counsel with her statement, granted a short recess, and gave defense counsel the opportunity to interview witness Manders before she, in fact, testified.

Defense counsel had requested a sufficient recess in which to review the statement and interview the witness and stated he could probably do it in about fifteen minutes. We must note that defense counsel did not ask for a second continuance which could have given him more time to prepare if he needed it. No further objection or request was made.

The appellant cites United States v. Beasley, 576 F.2d 626 (U.S.C.A., 5th Cir., 1978) and states that “due process forbids the prosecution to suppress evidence favorable to an accused on request...” (appellant’s brief, p. 10).

However, in that case, the court held that a retrial is required “... only if, after conviction of a defendant, it is learned that evidence requested and not produced creates a reasonable doubt that did not otherwise exist as to the guilt of the accused.” (Emphasis added). “If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.” United States v. Beasley, supra. See also United States v. Agur, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Even though defense counsel might have prepared his case somewhat differently had he known before trial of Manders’ statement, it would be difficult for us to say that the evidence pointing to the appellant’s guilt would have been much different, or the outcome changed.

In view of the circumstances surrounding the District Attorney’s failure to produce this witness, Manders’ statement to the appellant earlier before the trial (the fact that the District Attorney did not know she would testify in the appellant’s trial until the day before she was to testify, the fact that defense counsel was given the opportunity to review the statement and interview the witness, the fact that defense counsel did not ask for another continuance and the fact that there was no contention that District Attorney acted intentionally), we hold that the trial court did not err in allowing Theresa Manders to testify at the appellant’s trial. Cases herein cited.

This record is free of error. Therefore, this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Willie Lee BARNETT v. STATE.
    3 Div. 637.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-986.
    David G. Flack, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Ger-rilyn V. Grant, Asst. Atty. Gen., for appel-lee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant was convicted of the offense of theft of property in the first degree, a Class B felony, and duly and legally sentenced to be imprisoned in the penitentiary of the State of Alabama for a term of 15 years, said sentence to run concurrently with the sentence he is presently serving.

The appellant was represented at all proceedings in the trial court by counsel of his choice, and is represented in this Court by the same counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief three reasons why his conviction should be reversed. First, that state’s evidence was not sufficient to convict the appellant for theft of personal property in the first degree under Title 13A-8-3, Code of Alabama, 1975; second, because the trial court refused to give appellant’s requested written charges distinguishing the offenses of unauthorized use of a motor vehicle, and theft of a motor vehicle; and third, because this Court should overrule the case of Johnson v. State, Ala.Cr.App., 398 So.2d 393, and decide that unauthorized use of a motor vehicle is a lesser included offense under the facts in this case.

State’s witness Willie Edward Mac Reynolds’ testimony tended to prove that January 6, 1982, at about 5:00 p.m. he was employed by Montgomery Seed and Supply Company, the owner of the motor vehicle involved in this case, as a delivery truck driver; that when he completed his day’s work, he drove the truck from the warehouse to the retail office on Dexter Avenue in Montgomery County, Alabama, and parked it right beside the office building; that he does not know the appellant or anybody by the name of Earl Lewis; that he had never seen the appellant before trial; that he gave no one permission to be fooling around with the truck; that it was his duty to bring the truck to the retail office each afternoon; that his boss man drives the truck home every afternoon, and back to the office every morning.

State’s witness, Arthur L. Morgan’s testimony, tended to prove that he is one of the partners of Montgomery Seed and Supply Company; that its office is located on the corner of Dexter and McDonough Avenues in Montgomery County; that state’s witness, Reynolds, works for them as a truck driver; that in the late afternoon, or early evening, of January 6, 1982 he had a Ford pickup truck stolen; that Montgomery Seed and Supply Company was the owner of the truck; that before that time he did not know the appellant, and had never heard of Mr. Earl Lewis; that he did not give either the appellant or Earl Lewis the right to take the truck; that the next morning, January 7, 1982, he saw the appellant driving the Ford pickup truck on Bainbridge Street, and going down Randolph Street in Montgomery; that he identified the truck, stopped the appellant as he got out of the truck, took the keys from him, and turned him over to the police; that the appellant said he was not driving the truck; that there was no one else in the truck with the appellant at the time; that the truck was 10 or 12 blocks away from where it had been parked the afternoon of the 6th.

State’s exhibit 1, a written statement made and signed by the appellant, was legally introduced into evidence. The facts contained in state’s exhibit 1 are, in substance: That on January 6, 1982 the appellant and one Earl Lewis were walking downtown, and Earl said he knew where a truck was that had the keys in it, and he showed appellant where the truck was parked, and they went to the truck, and Earl said let’s get it, and the appellant said okay; that they got the truck; that Earl got in on the driver’s side, and appellant on the passenger side; that they drove it off; that they rode around that night, and then parked the truck; that the next morning appellant got in the truck, and started riding around again; that he went to a store, and that is when the owner of the truck pulled up behind him, and then the police came; that he knew the truck did not belong to appellant or Earl; that he does not know where Earl lives.

The state rested its case at this point, and the appellant made a motion to exclude state’s evidence on the ground that the state failed to prove that appellant had an intent to deprive the owner of the property. The court overruled the motion to exclude. The appellant offered no evidence on his behalf.

Code of Alabama, 1975, Section 13A-8-2 defines theft.

“Theft of property — Definition.
“A person commits the crime of theft of property if he:
“(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property;”

Code Of Alabama, 1975, Section 13A-8-l(2)(a) defines the word “deprive” to mean; “to withhold property or cause it to be withheld from a person permanently or for such period or under such circumstances that all or a portion of its use or benefit would be lost to him;” Code Of Alabama, 1975, Section 13A-8-3(b) defines theft of property in the first degree; “the theft of a motor vehicle, regardless of its value, constitutes theft of property in the first degree.”

It is a question for the jury to determine from all the evidence before it, whether the appellant had the intent to deprive the owner of the property at the time it was taken. We hold that the trial court did not err when it overruled appellant’s motion to exclude the state’s evidence. Craig v. State, Ala.Cr.App., 410 So.2d 449; Certiorari Denied, March 19, 1982; McMurphy v. State, Ala.Cr.App., 358 So.2d 1065; Certiorari Denied, Ala. 358 So.2d 1069; Simas v. State, Ala.Cr.App., 410 So.2d 139; Benefield v. State, 44 Ala.App. 339, 208 So.2d 449; Certiorari Denied, 282 Ala. 19, 208 So.2d 455.

Appellant’s second and third contentions in his brief are that the trial court erred to his prejudice by refusing to give appellant’s requested written charges to the jury distinguishing the offense of unauthorized use of a motor vehicle, and theft of a motor vehicle.

From an inspection of the record, we find that the appellant’s refused, requested written charges were properly refused by the trial court; they are not hypothesized on a belief or finding “from the evidence” which justified the trial court in refusing them. We hold that the offense of unauthorized use of a vehicle as defined in Code of Alabama, 1975, Section 13A-8-11 is not a lesser included offense contained in an indictment for theft of property in the first degree as defined in Code of Alabama, 1975, Section 13A-8-3; therefore the trial court did not err when it refused appellant’s requested written charges. McMurphy v. State, supra; Johnson v. State, Ala.Cr.App., 398 So.2d 393.

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

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Larry Wayne GARDNER v. STATE.
    3 Div. 783.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-1077.

      Edward W. Drinkard and Stephen W. Drinkard, and James T. Bachelor, Pratt-ville, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for the first degree robbery of Oweb Bain-hill who managed the Zip Mini Mart on South Memorial Drive in Prattville. He was sentenced as an habitual offender to life imprisonment without parole. Three issues are raised on appeal.

I

Conflicting evidence always presents a question for the jury unless the evidence fails to establish a prima facie case. Starling v. State, 398 So.2d 337 (Ala.Cr.App.), cert. denied, Ex parte Starling, 398 So.2d 342 (Ala.1982). In his oral charge to the jury, the trial court summarized the factual issue presented by all the evidence:

“It’s the State’s contention that the defendant in this case went to this service station to rob the person who was there and to take money. It’s the defendant’s contention that he went up there to hopefully pawn a pistol, or to try to pawn a pistol to the man who was in charge of the service station. Now, I charge you simply that if you decide the first alternative; that is, that he went up there with the pistol to rob the man, then he would be guilty. But if on the other hand, he went up there to pawn the pistol to the man, he would be not guilty. That’s the real bottom line issue that you have to decide.”

Mr. Bainhill and his wife had been observing the defendant outside his store immediately before the attempted robbery. When the defendant entered the store and drew a .25 caliber automatic pistol from his rear pocket, Mr. Bainhill accosted him before the defendant could finish the statement, “This is a .... ” During the struggle, Bainhill shot the defendant, who dropped his pistol and fled.

The defendant denied any criminal intent and testified that he was going to ask Bain-hill to “hold the gun for a week or so” as collateral for the items he wanted to purchase. The defendant stated that when Bainhill shoved him he was trying to say, “This is a gun that I want to pawn, if you’ll take it for some gas, cigarettes and some brake fluid.”

The State’s evidence was sufficient to establish a prima facie case of robbery in the first degree. The defendant’s testimony presented an explanation for his actions and an alternative for the jury to consider. “When the evidence presents two reasonable and conflicting constructions, one favorable and the other unfavorable to the defendant, it is for the jury and not the court to determine and decide which they believe.” Powe v. State, 214 Ala. 91, 92, 106 So. 503 (1925).

II

The defendant argues that the trial court erred in denying his motion for a mistrial based on the prosecutor’s comment.

On the second day of trial, the judge asked the prosecutor about the number of state witnesses remaining to testify. The district attorney’s allegedly prejudicial comment was: “Your Honor, we have one — had two, but neither one of them showed up. One we’re going to ask for a bench warrant.” The prosecutor then identified by name the witness to be subpoenaed.

Defense counsel requested a mistrial on the basis that the district attorney was “going to make an inflammatory remark about witnesses that they’ve (the jury) got to listen to.” A mistrial was also requested because of the prosecutor’s “very ugly manner.” The trial court denied the motion and, immediately thereafter, the State rested its case. No further objection was made and no limiting instructions were requested.

At the hearing on the motion for new trial, juror James Cook testified that the jury discussed this incident and expressed some concern as to why the district attorney was not given additional time to locate his witnesses.

On appeal the defendant argues that the inference from the comment was that the prosecutor had evidence to prove the defendant guilty beyond all reasonable doubt but was deprived of presenting such evidence because of the absence of his witnesses. Additionally, he contends that the real prejudicial effect of the comment “is found in the tone, manner and inflection” placed upon the words used.

The record does not reveal such prejudice to the accused or a miscarriage of justice which would warrant the extreme measure of a mistrial. Shadle v. State, 280 Ala. 379, 304, 194 So.2d 538 (1976); Kelley v. State, 405 So.2d 728 (Ala.Cr.App.), cert. denied, 405 So.2d 731 (Ala.1981); Windom v. State, 18 Ala.App. 430, 433, 93 So. 79, cert. denied, 208 Ala. 701, 93 So. 924 (1922). Obviously, the trial court was in a much better position to determine what effect, if any, the prosecutor’s demeanor, tone and inflection of voice had upon the jury’s ability to fairly and justly decide the defendant’s fate. Minnifield v. State, 392 So.2d 1288 (Ala.Cr.App.1981). “It is not feasible for this Court to review the tone of voice used, and it is impossible to detect the accompanying gestures or other subtleties which animate verbal speech from a written transcript.” State v. Passman, 345 So.2d 874, 882 (La.1977). The record supports no finding of abuse of the trial judge’s discretion in overruling the request for a mistrial.

Ill

The defendant argues that under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the State was under a constitutional duty to disclose that “the ‘stocking mask’ found by police, if one was found, was not legal evidence.”

From the record the facts supporting this argument are not abundantly clear. Apparently, in investigating the case, defense counsel interviewed the police officers who investigated the crime. Officer Gerald Dennis told defense counsel, allegedly in the presence of the district attorney, that a stocking mask similar to the one described by Mrs. Bainhill had been found. Dennis also informed defense counsel that it was legal evidence that would be used by the prosecution.

Allegedly, Mr. Bainhill gave a statement to the police on the night of the robbery and did not mention a stocking mask. The next morning he gave a second statement which included information about a stocking. Defense counsel asserts that “based upon the expectation that the ‘stocking mask’ would be offered and admitted as evidence”, he “made a decision to offer the police reports into evidence for the purpose of emphasizing the contradiction, in support of the defense’s theory that there never really existed any ‘stocking mask’.” At trial during the State’s case in chief, defense counsel introduced a police report which showed that a “nylon stocking on head” was listed as an item of inventory.

The defendant complains that to his “damaging surprise” the State rested without introducing any stocking. “Consequently, the only reference to the stocking during the trial came from Mrs. Bainhill, who testified that she saw a stocking on the defendant’s head but not pulled over his face and on defendant’s Exhibit 1 which listed as an item of inventory ‘nylon stocking on head’.”

Under Brady, the prosecution is under no duty to disclose evidence that is available to the defense from another source. United States v. Milstead, 671 F.2d 950, 953 (5th Cir.1982); United States v. Furlow, 644 F.2d 764, 767 (9th Cir.1981). Here, the defendant complains not that the State failed to disclose evidence, but that the State failed to disclose its opinion as to the illegality of certain evidence.

Here also, defense counsel knew of Bainhill’s allegedly inconsistent statements and knew that a stocking had been found. See United States v. Truong Dinh Hung, 667 F.2d 1105, 1107 (4th Cir.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982), holding that the failure to disclose impeachment evidence favorable to the defendant did not require a reversal because the defense was already familiar with the information. In spite of this knowledge, defense counsel deliberately elected not to cross examine Mr. Bainhill about the stocking. Although defense counsel was undoubtedly surprised, the surprise was caused by his own trial strategy and not by any failure of the State to disclose exculpatory evidence. In conclusion, the prosecutor’s trial strategy is not evidence and is not subject to discovery within the meaning of Brady v. Maryland, Generally, see Annot. 7 A.L.R.3d 8 (1966).

We have reviewed the issues raised on' appeal, and the judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Judge.

text:
    Jerry Lee WILLIAMS, Jr., alias v. STATE.
    4 Div. 40.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1242.

      Steven K. Brackin of Lewis & Brackin, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellant was indicted for the November 26, 1981, first degree robbery of taxi cab driver Robert Woods at Billy’s Trailer Park in Dothan. After a three-day trial, he was found guilty as charged. Ala.Code § 13A-8-41 (1975). Appellant waived preparation of a presentence investigation and was sentenced, as an habitual offender, to life imprisonment. From that conviction he now appeals in forma pauperis.

Appellant raises several issues on appeal. However, his major contention centers upon the legality of the search of his residence and seizure of property therein. Appellant filed a motion to suppress the seized evidence and a pretrial hearing was held upon such. Appellant offered the affidavit and search warrant as evidence as well as called the affiant and victim as witnesses on his behalf.

In order to better harmonize appellant’s arguments against the various portions of the affidavit with the evidence presented, we will summarize the evidence presented at the hearing as well as at trial pertinent to each of the five paragraphs separately.

Nothing was presented by appellant or the state to contradict or verify the first paragraph of the affidavit. It forms no basis for a finding of probable cause and thus is of little importance in a determination thereof.

The second paragraph is a summary of the incident as told by the victim to the affiant, Dothan Police Investigator Jackie Mendheim. The first one-half of it is a brief narration of the facts surrounding the robbery. It does not provide any basis for a finding of probable cause. The following two sentences recite the description given by the victim to Mendheim at the hospital on November 28. Woods’s testimony at the hearing confirmed the accuracy of the description contained in the affidavit and the fact that the robber had a pistol. Woods did not testify to the pistol’s caliber or color or as to the height or build of the robber. He could not recall giving Mendheim a description of the robber’s clothing and did not verify the description thereof in the affidavit. Woods did not know if the robber had come out of trailer 119, as he had approached his taxi from the rear. Consequently, he would only testify as to the general area from which the robber came.

Mendheim testified that he received descriptions of appellant from other unnamed individuals which indicated that appellant was tall and slender. His skin tone was described by these individuals only as “black.” He stated that through his investigation he learned that appellant resided in trailer 119, although such was not recited in the affidavit. The statements concerning appellant’s injuries were Mendheim’s conclusions based upon his observations of Woods. They do not provide any foundation for a finding of probable cause.

Trace Hamlin testified that he accompanied the police to the scene of the robbery and was present when Woods was asked to describe, his assailant. Hamlin testified that Woods described the robber as a white male wearing a cowboy hat. Hamlin thought Woods stated that he had been beaten with a tire tool, as he assisted the police in searching for one.

A comprehensive review of the second paragraph reveals that the only information contained therein which would assist the issuing judge in determining whether probable cause existed to issue the search warrant was the general description of the robber. With Woods being unable to identify his assailant, his description acquired more importance. Mendheim verified Woods’s description, but the confirmation was more vague and general than that stated by Woods. Further, the source of such was not revealed.

The third paragraph consists of two sentences, the latter being concerned with the verification of Woods’s description of the robber and identification of such as appellant, heretofore discussed. The first sentence contains multiple hearsay statements originating from a tenant at the trailer park, later identified as Wayne Kelly. Kelly informed the trailer park owner, Billy Parrish, that appellant had come to his trailer, number 114, apparently to call a taxi. However, no time frame for appellant’s action was stated and none can be found in the record. Parrish then passed this information on to Lieutenant Locke, who in turn relayed it to Mendheim.

Mendheim testified that prior to the issuance of the search warrant, he talked with Kelly in an attempt to verify the information he had received. Kelly refused to verify it and was uncooperative. He stated that he did not want to get involved. Neither Kelly, Parrish, nor Locke testified at the hearing or trial to confirm the accuracy of the information contained in the third paragraph. Furthermore, at trial, the state stipulated that if Kelly was called to testify he would deny making the statement attributed to him.

Paragraph four also contains multiple hearsay statements. An individual later identified as Florida Corrections employee Freddie Jones called Locke and told him of appellant’s whereabouts. He also relayed information he had received from a girl named Beverly, but later identified as Shirley Harris. Harris told Jones that appellant had told her that he had beaten a man in Dothan and thought that he had died.

Mendheim admitted not corroborating any of the above information until after issuance of the search warrant. In doing such, he only interviewed Jones. At trial Jones verified calling the Dothan Police Department at appellant’s request. However, he did not confirm the substance of his conversation with Locke as recited in Mend-heim’s affidavit. Jones did testify that appellant came to his house during the early morning hours of November 26. He noticed blood on appellant’s coat sleeves and blood and scratches on one of his hands. Appellant explained that such was a result of “some in-law trouble, a guy was after him.” Jones gave appellant a shirt to change into. Appellant spent the night at Jones’s house and left the next morning. He returned a couple of days later. At that time appellant asked him to call the Dothan Police to inquire if anyone had been mugged at Billy’s Trailer Park. After calling, Jones told appellant that such had occurred and that appellant was suspected of doing it. Appellant replied that “that’s what he was accused of.” Afterwards, appellant left Jones’s house only to return around December 1. He stayed only for a short time before leaving. Jones was not called as a witness at the suppression hearing.

Harris, who testified only at trial, stated that on November 28 appellant told her “that he had been in a fight with his relatives.” He also told her “that he thought he had been accused” of beating a man in Dothan “but, he didn’t know for sure.” Harris stated that she carried some clothes for appellant to Malone, Florida, apparently to Jones’s residence. Consequently, Harris, to some extent, contradicted the statement attributed to her in the affidavit.

Mendheim initially testified at the suppression hearing that he had no knowledge of the information contained in the last paragraph of his affidavit. At trial, however, Mendheim stated that he had made a mistake at the hearing, and had personally contacted Riley. A close reading of this paragraph reveals that it adds nothing to support a finding of probable cause. Whether Riley had seen appellant “since before Thanksgiving Day” does not support the conclusion that he robbed Woods, nor does it suggest any consciousness of guilt.

No oral testimony was made before the issuing judge in addition to the information in the affidavit. Thus, the trial court had before it only Mendheim’s affidavit to determine whether probable cause existed for issuance of the search warrant.

Consequently, a review of the affidavit reveals that paragraphs one and five were of no assistance to the issuing judge in determining whether probable cause for issuance of the search warrant existed. . Further, except for a few sentences of paragraph two, it likewise provided no foundation for a finding of probable cause. Thus, we are left with the information contained in paragraphs three and four, as well as a portion of the second paragraph to review.

In both the third and fourth paragraphs, Locke relayed information which he had received through telephone conversations with private citizens. These individuals had acquired all or part of their information from yet another named citizen. Consequently, the confidential police informant situation addressed by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and explicated by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), was not present. Generally, in conjunction with a consideration of the Aguilar-Spinelli “two-prong test”, law enforcement officers as well as named private citizens are not required, when assessing the information derived therefrom in light of the probable cause standard, to satisfy the “veracity prong” of Aguilar-Spinelli. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); United States v. Ventresea, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Miller v. State, 440 So.2d 1127 (Ala.Cr.App.1983); Mauldin v. State, 402 So.2d 1106 (Ala.Cr.App.1981); Hadley v. State, 391 So.2d 158 (Ala.Cr. App.), cert. denied, 391 So.2d 162 (Ala.1980); Richardson v. State, 376 So.2d 205 (Ala.Cr.App.1978), aff’d, 376 So.2d 228 (Ala.1979); Davis v. State, 333 So.2d 168 (Ala.Cr.App.1976); W. La Fave, 1 Search and Seizure, § 3.4(a) (1978); Moylan, The Right of the People to be Secure, 252-56 (1976); Moylan, Hearsay And Probable Cause; An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 765-73 (1974).

However, a “basis of knowledge” for the information attributed to the citizen or policeman informer must be established. La Fave §§ 3.4(b), 3.5(a)(c), supra; see generally, Moylan, 25 Mercer L.Rev. 741, 772-73, supra. Consequently, we must test the information recited in the affidavit to determine some of the underlying circumstances from which the informant drew his conclusion. As stated in Hadley, 391 So.2d at 162:

“ ‘The citizen informer rule does not dispense with all requirements of credibility, and an untested informant may not be accorded reliability where his statements lack specificity and evidence of personal knowledge. The reliability of a citizen informer should be evaluated from the nature of his report, his opportunity to see and hear the matter reported, and the extent to which it can be verified by independent police investigation.’ ” (Citations omitted).

We have no problem in finding a sufficient basis of knowledge for Woods’s description of the robber found in paragraph two of the affidavit. It was based upon his recollection of the events surrounding the robbery. Although sketchy, the description is of sufficient detail to establish Woods’s basis of knowledge. See Soles v. State, 16 Md.App. 656, 299 A.2d 502 (1973); La Fave § 3.4(a) supra; Cf. La Fave § 3.4(c) supra.

In paragraph three, the “veracity prong” from Mendheim to Locke and Locke to Parrish is not in question. Neither is such in issue from Parrish to Kelly. As to the basis of knowledge for Kelly’s statement attributed to him, the affidavit reveals that such was based upon firsthand knowledge via a direct communication between him and appellant. No argument has been advanced that Kelly’s statement, if true, was based upon anything other than firsthand knowledge. See La Fave § 3.3(d), supra. However, a serious problem exists when viewing Kelly’s statement as part of the basis for a finding of probable cause.

At trial, at the conclusion of appellant’s voir dire examination of Mendheim and Hamlin and prior to admission of the articles seized from appellant’s trailer, appellant requested that Kelly be called as a witness in order that he, under oath, could deny making the statement attributed to him in paragraph three. The assistant district attorney then stipulated that if Kelly testified he would make such a denial. Consequently, the state conceded that Kelly would testify that the statement as it appeared in paragraph three was not true. Furthermore, prior to issuance of the search warrant, Mendheim was unsuccessful in having Kelly verify the accuracy of the statement attributed to him by Parrish and Locke. Nevertheless, Mendheim relied upon the double hearsay information provided by Locke rather than the inconclusive statements of Kelly and utilized the information in his sworn affidavit.

In Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), the United States Supreme Court stated, as a rule of constitutional law:

“[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”

Appellant properly raised the issue of misrepresentation during his argument at trial after his voir dire examinations of Mendheim and Hamlin. Cf. Brooks v. State, 642 S.W.2d 791 (Tex.Cr.App.1982).

The instant case does not fall within the situation addressed in Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964). The statement attributed to Kelly in paragraph three is not of “peripheral relevancy to the showing of probable cause.” Id. at 532, 84 S.Ct. at 828; Franks, 438 U.S. at 163, 98 S.Ct. at 2680. Inclusion of the statement in his affidavit, after gaining personal knowledge that Kelly would not confirm its accuracy, indicated a deliberate course of action by Mendheim to persuade the issuing judge to issue the search warrant on less than all the pertinent facts available to him. It cannot be questioned that the third paragraph as found in the affidavit is more accusatory in nature against appellant and provides a more sound basis for a finding of probable cause than if it had contained the additional negative facts known by Mendheim. The omission by Mendheim drastically altered the complexion of paragraph three. While it is not a direct false statement, its inclusion clearly misled the issuing judge as to its accuracy. It could, therefore, be considered a deliberate omission which is a species of an actual misstatement. State v. Lockett, 232 Kan. 317, 654 P.2d 433 (1982). See People v. Easley, 33 Cal.3d 65, 654 P.2d 1272, 187 Cal.Rptr. 745 (1982). Consequently, we find the omission to have caused the affidavit to be substantially misleading and, thus, material. People v. Easley, supra; People v. Bowen, 137 Cal.App.3d 1020, 187 Cal.Rptr. 614 (1982).

Franks, 438 U.S. at 164-65, 98 S.Ct. at 2680-81, quoted with approval the following from United States v. Halsey, 257 F.Supp. 1002, 1005 (S.D.N.Y.1966), which we find apropos:

“ ‘[W]hen the Fourth Amendment demands a factual showing sufficient to comprise “probable cause,” the obvious assumption is that there will be a truthful showing’ (emphasis in original). This does not mean ‘truthful’ in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be ‘truthful’ in the sense that the information put forth is believed or appropriately accepted by the affiant as true.”

It is clear that the information put forth by Mendheim in paragraph three could not be “believed or appropriately accepted” by him to be true in light of his interview with Kelly. Further, couple such with the state’s stipulation that Kelly would deny ever making the statement and the foundation for the paragraph crumbles. We are therefore of the opinion that the third paragraph could not be used to inform the issuing judge of sufficient facts and circumstances from which he could make an independent determination of probable cause to search. See State v. Roubique, 421 So.2d 859 (La.1982).

Furthermore, the detail in paragraph three is insufficient to satisfy the self-verifying detail alternative to the “basis of knowledge” prong. Spinelli, supra; Agai-lar, supra.

As previously noted, there are no “veracity-prong” questions in the fourth paragraph of the affidavit. We assume that the basis for Harris’s statements was through firsthand knowledge, although such originates from the tenor of Jones’s statement to Locke. However, a careful review of Jones’s and Harris’s testimony clearly establishes a sufficient basis of knowledge for the statements as well as their accuracy. Therefore, the issuing judge could rely upon the fourth paragraph in reaching his determination.

“In determining the existence vel non of probable cause, the magistrate must make two distinct determinations. The number and the nature of these determinations do not vary, whether the specimen being analyzed is direct observation or hearsay information. He must:
“(1) Evaluate the truthfulness of the source of the information; and
“(2) Evaluate the adequacy of the factual premises furnished by that source to support the validity of the source’s conclusion.
“In the first instance, he is judging the integrity of a person. In the second instance, he is judging the logic of a proposition. These functions are distinct. They are the direct analogues of those other two functions performed by the ultimate finder of fact who 1) assesses the credibility of a witness and 2) then assesses the weight to be given the testimony of that witness.
“Once the magistrate has decided that the information is trustworthy, he has still only half completed his ultimate determination. He must still decide what the information is worth. He has decided that the source is not lying; but he has not yet decided whether the source is mistaken. The magistrate’s second function is now to evaluate the information which he is accepting as true and to see what probabilities emerge from that available date.
“In applying then these tools of analysis to an application based upon a mixed predicate of direct observation and hearsay information, the issuing magistrate may, after evaluating both the trustworthiness of the source of the information and the weight and worth of the information itself, reach one of four conclusions: “(1) That the direct observation is adequate unto itself to establish probable cause;
“(2) That the hearsay information is adequate unto itself to establish probable cause;
“(3) That neither the direct observation nor the hearsay information, standing alone, is adequate to establish probable cause but that the two combined do add up to the establishment of such probable cause; or
“(4) That even the sum total of the direct observation plus the hearsay information does not establish probable cause.” (Citations omitted). Dawson v. State, 11 Md.App. 694, 276 A.2d 680, 681-84 (1971).

Applying the above standards, as well as those enumerated in Hadley, we make the following findings:

(1) Paragraph one was of no assistance to the issuing judge in determining the existence of probable cause;
(2) The portion of paragraph two containing the victim’s direct observation of the robber could be used in determining probable cause to search, but standing alone is insufficient to satisfy such;
(3) Paragraph three could not be considered in determining the existence of probable cause as it lacked a sufficient showing of the “basis of knowledge” from which it originated and lacked sufficient detail by which to verify itself; See State v. Scotti, 428 So.2d 771 (Fla.Dist.Ct.App.1983);
(4) The fourth paragraph could be used to assist in establishing probable cause, but standing alone is inadequate to do so;
(5) Paragraph five offers no aid in the search for probable cause;
(6) Taken together, the information found in paragraphs two and four does not add up to the establishment of probable cause.

The instant search warrant fails both quantitatively and qualitatively in its ability to supply probable cause to search. While there is no requirement that all information contained in the affidavit supporting a search warrant be dissected to the nth degree, the nature of the information, especially that which is not easily verifiable, must be more substantial than “an off-hand remark heard at a neighborhood bar.” Spinelli, 393 U.S. at 417, 89 S.Ct. at 589. Probable cause does not require an officer to compile an airtight case against a suspect. Rather, it deals with the probable consequences of all the legitimate facts considered as a whole. Upon such a review, the instant affidavit fails.

A more thorough investigation could have revealed appellant’s residence and the trailer number, as well as a more complete description of his appearance. Statements could have been taken from Parrish and Kelly, if they had not already been taken, prior to the issuance of the search warrant. Such could have been presented to the issuing judge as corroboration of the statements made in affidavit. Kelly’s statements not confirming the information in paragraph three should have been included therein. Paragraph four could have been more thoroughly investigated by verifying it before requesting the search warrant. Jones and Harris could have been interviewed with the prospect of obtaining more detailed information than that recited in the affidavit. Their statements would also have been available to the issuing judge if needed. A more comprehensive interview of Riley could have aided in pinpointing the time frame which he had last seen appellant. Interviews with other residents may well have aided in ascertaining such.

The trial court erred in denying appellant’s motion to suppress. Due to such, we reverse and remand this cause to the circuit court. We pretermit discussion of the remaining issues raised by appellant.

REVERSED AND REMANDED.

All the Judges concur.

APPENDIX

1. Justice of the Peace or olhp* Magistrate, as the case may be.

2. The Affiant.

3. State positively that the property is on Die premises or in the place to be searched or thalJ there is probable cause for believing the facts stated, as the case may be. The person and the place must be described.

(a) The Affiant.

(b) State the facts appearing in the affidavit.

(c) Slate "at any tune of the day or night” if the affidavit states the facts positively; if the facts are stated only on “probable ground,” slate "in the daytime.”

(d) Describe the property for which search is to be made.

Thisiis to certify that the within Search Warrant was returned to me on this the p.f1day of December, 1981, together with the property listed thereon, and that . the same was properly executed within the time allowed by law, and that the property seized thereunder was properly seized within the authority of said warrant.

Before me, the undersigned Honorable J. Ronald Storey, a Judge of the Houston County Circuit Court, Houston County, Alabama, personally appeared Jackie Mendhetm who being duly sworn deposes and says that he has probable cause to believe that on the premises known as 110 Billy's Trailer Park, further described as a brown trailer in the City of Dothan, Alabama, or it's police jurisdiction, there is now being concealed certain property, namely ore chrome 32 caliber pistol, one pair of grayish trousers, a grayish shirt and a grayish hat, which are the fruits of the crime of robbery in the first degree and assault in the second degree, and are in violation of Title 13-A.

And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: On Thursday, November 26, 1981, at 0155 A. M., Robert Woods, a taxi driver for Howell Taxi, was robbed and beaten severely in Billy's Trailer Park. The assault and robbery occurred on Bavarian Way just west of trailer #119. The taxi driver was instructed to pick up a fare between #115 and #122 Billy's Trailer Park. The taxi driver drove past #115, past #119, and saw someone come from the area of #119. Woods was robbed by a negro male armed with a 32 caliber chrome revolver. The negro ' male was described as being 6' 2" or 3" with real light skin. The victim was severely beaten in the face and on top of the head. The victim lost a large amount of blood. The negro male was described as being dressed in gray or grayish pants and gray shirt. On November 30, 1981, Lt. Harold Locke received a call from Mr. Billy Parrish who stated that a tenant from Billy's Trailer Park stated that a black male identified as Jerry L. Williams came to trailer lot II11A wanting a taxi. Jerry L, Williams is known to fit the description of the robbery suspect.

On November 30, 19B1, approximately 3:00 P. M., Lt. Harold Locke received a phone call from a black male who identified himself as Ex-Houston County Deputy with the last name of Jones. Jones told Lt. Harold Locke that Jerry L. Williams was at that time in Donaldsonville, CA, and that Williams had told a girl named Beverly that he had beaten a man in Dothan and that he thought that he had died.

On December 1, 19B1, at 2:15 P. M., contact was made with. David Riley, Lot #118, Billy's Trailer Park. Riley stateá he had not seen Williams since before Thanksgiving Day.

      . Included as appendix “A”.

      . Spelled Trace Hammond at appellant’s suppression hearing, but referring to the same person.

      . See also Richardson v. State, 419 So.2d 289 (Ala.Cr.App.1982).