author: PATTERSON, Judge.

text:
    STATE v. Tony WOODRUFF.
    3 Div. 932.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.

      Charles A. Graddick, Atty. Gen. and Joseph G.L. Marston III and Richard L. Owens, Asst. Attys. Gen., for appellant.
    John T. Kirk, Montgomery, for appellee.
   PATTERSON, Judge.

The appellee, Tony Woodruff, was charged by affidavit and warrant in the District Court of Montgomery County with the misdemeanor offense of sexual misconduct prohibited by § 13A-6-65, Code of Alabama (1975). More specifically, Wood-ruff was charged with the violation of § 13A-6-65(a)(3), which Act provides as follows:

“(a) A person commits the crime of sexual misconduct if:
(3) He or she engages in deviate sexual intercourse with another person under circumstances other than those covered by sections 13A-6-63 and 13A-6-64 [sodomy in the first and second degree]. Consent is no defense to a prosecution under this subdivision.”

Deviate sexual intercourse is defined by § 13A-6-60(2) as “any act of sexual gratification between persons not married to each other, involving the sex organs of one person and the mouth or anus of another.”

After Woodruff was convicted and fined $1000 in the District Court, he appealed to the Montgomery County. Circuit Court. The District Attorney filed a complaint, to which Woodruff pleaded not guilty with leave to file any special pleas or demurrer. Woodruff moved to dismiss the complaint on the allegation, among others, that § 13A-6-65(a)(3) was unconstitutional because, on its face, it violates the right of privacy of consenting adults to engage in deviate sexual intercourse. The trial court granted Woodruffs motion to dismiss and dismissed the complaint. In so ruling, the court specifically found that § 13A-6-65(a)(3), on its face, is “overinclusive and overbroad” because of the statute’s particular language disallowing consent as a defense to the charge. The State appeals from this order as it is entitled to by § 12-22-91, Code of Alabama (1975), which provides for an appeal on behalf of the State when an act of the legislature upon which the indictment is based is held to be unconstitutional.

In reviewing the propriety of the trial court’s holding that the sexual misconduct statute is unconstitutional on its face, our threshold consideration is whether the trial court properly disregarded the following prudential rule of judicial self-restraint in allowing Woodruff to raise the question of the facial invalidity of the statute as applied to others:

“[0]ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. ...”

United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960).

This court, as well as our Supreme Court, has previously recognized and applied this traditional rule of standing. For example, in Bland v. State, 395 So.2d 164, 166 (Ala.Crim.App.1981), we cited County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), for the following general proposition: “A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights; as a general rule, if there is no constitutional defect in the application of a statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.” In State v. Wilkerson, 54 Ala. App. 104, 305 So.2d 378, 380, cert. denied, 293 Ala. 774, 305 So.2d 382 (1974), in finding that the appellant could not challenge the constitutionality of a statute because he could not show that the statute’s unconstitutional feature adversely affected him, we cited the general rule, as follows:

“ ‘... in criminal prosecution, accused has the right to assert the invalidity of the law, regulation, or rule under which he is being’prosecuted, but he must show that his rights are adversely affected by the statute or ordinance, and, more particularly, that his rights' are thus affected by the particular feature of the statute alleged to be in conflict with the constitution. It is not sufficient that the statute may impair the rights of others. An accused affected by one portion of a statute may not plead the invalidity of another portion of the same statute not applicable to his case, where the invalidity of the portion questioned will not render void the entire act or at least some provision that does affect him adversely; but, conversely, he may do so where the invalidity of the portion questioned would render the entire act, or some provision affecting him, void...(quoting 16 C.J.S. Constitutional Law § 84).

Appellate courts will not pass upon a constitutional question unless some specific right of the appellant is directly involved; the appellant must belong to that class affected by the statute’s provisions. McCord v. Stephens, 295 Ala. 162, 325 So.2d 155 (1975); Evans v. State, 338 So.2d 1033 (Ala.Crim.App.1976), cert. denied, 348 So.2d 784 (Ala.1977); Bozeman v. State, 7 Ala.App. 151, 61 So. 604, cert. denied, 183 Ala. 91, 63 So. 201 (1913). Even under the circumstances where a constitutional attack on a statute may be presented to the trial court prior to trial and, consequently, without benefit of a trial record, adherence to the traditional concepts of standing is required. See, e.g., State v. Friedkin, 244 Ala. 494, 14 So.2d 363 (1943); State v. Wilkerson, supra; People v. Allen, 657 P.2d 447 (Colo.1983); State v. Raybon, 242 Ga. 858, 252 S.E.2d 417 (1979); State v. Price, 237 N.W.2d 813 (Iowa 1976), appeal dismissed, 426 U.S. 916, 96 S.Ct. 2619, 49 L.Ed.2d 370 (1976); People v. Jose L., 99 Misc.2d 922, 417 N.Y.S.2d 655 (N.Y.Crim.Ct.1979); Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980); Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d 306 (1976). Unless these usual rules of standing are not applicable to the situation at bar, they should have precluded the trial court from deciding the constitutionality of the sexual misconduct statute in a factual vacuum.

The use of facial analysis is appropriate in certain limited circumstances where “weighty countervailing policies” counteract the usual standing requirements. The following exceptions to the general rule were recognized in United States v. Raines, 362 U.S. at 22-23, 80 S.Ct. at 523-524:

“... where, as a result of the very litigation in question, the constitutional rights of one not a party would be impaired, and where he has no effective way to preserve them himself, the Court may consider those rights as before it. N.A.A.C.P. v. Alabama, 357 U.S. 449, 459-460 [78 S.Ct. 1163, 1170-1171, 2 L.Ed.2d 1488 (1958)]. Barrows v. Jackson [346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) ], supra. This Court has indicated that where the application of these rules would itself have an inhibitory effect on freedom of speech, they may not be applied. See Smith v. California, 361 U.S. 147, 151 [80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959) ]; Thornhill v. Alabama, 310 U.S. 88, 97-98 [60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940) ]. Perhaps cases can be put where their application to a criminal statute would necessitate such a revision of its text as to create a situation in which the statute no longer gave an intelligible warning of the conduct it prohibited. See United States v. Reese, 92 U.S. [(2 Otto)] 214, 219-220 [23 L.Ed. 563 (1875)]; cf. Winters v. New York, 333 U.S. 507, 518-520 [68 S.Ct. 665, 671-672, 92 L.Ed. 840 (1948)]. And the rules’ rationale may disappear where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of the cases it was originally designed to cover. See Butts v. Merchants & Miners Transportation Co., 230 U.S. 126 [33 S.Ct. 964, 57 L.Ed. 1422 (1913)]. The same situation is presented when a state statute comes conclusively pronounced by a state court as having an otherwise valid provision or application inextricably tied up with an invalid one, see Dorchy v. Kansas, 264 U.S. 286, 290 [44 S.Ct. 323, 324, 68 L.Ed. 686 (1924) ]; or possibly in that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its litigation to stand at all unless it could validly stand in its every application. Cf. The TradeMark Cases, 100 U.S. [ (10 Otto) ] 82, 97-98 [25 L.Ed. 550 (1879)]; The, Employers’ Liability Cases, 207 U.S. 463, 501 [28 S.Ct. 141, 146, 52 L.Ed. 297 (1908) ].” (Notes omitted.)

None of these exceptions applies to excuse Woodruff from showing that his rights were adversely affected by the feature of the sexual misconduct statute which he alleges to be in conflict with the constitutional right to privacy.

First, there is no showing that persons seeking to litigate the privacy issue as it relates to the application of this statute to private conduct between consenting adults would not be able to defend their alleged constitutional rights outside the confines of the present litigation. See State v. Goodrich, 102 Idaho 811, 641 P.2d 998 (1982). We have no indication that a request for declaratory judgment by persons fearing prosecution for private, consensual acts would not be feasible. See United States v. Lemons, 697 F.2d 832 (8th Cir.1983).

Second, the “chilling effect” exception, which has been traditionally called “over-breadth,” has consistently been applied only to claims that a statute tends to “chill” the constitutional free speech or expression rights of others in violation of the first amendment; the United States Supreme Court has limited this exception to traditional free speech cases. United States v. Lemons, 697 F.2d at 835, and cases cited therein. We follow the precedent set forth in Lemons and conclude that this exception does not apply to Woodruffs privacy claim; Woodruff did not meet the threshold requirement of showing that the challenged statute tends to “chill” a first amendment interest.

Third, application of our traditional standing rules would not necessitate a revision of the statute and render inadequate its fair warning that certain sexual acts are prohibited.

Fourth, the constitutionality of § 13A-6-65(a)(3) has not been decided in any application.

Finally, we have no indication that the Alabama lawmakers intended this statute to be struck down unless it could stand in all its applications.

Thus, the trial court inappropriately invoked the overbreadth doctrine and improperly held § 13A-6-65(a)(3) invalid on its face, for Woodruff established none of the exceptions to the Raines doctrine. Unless the litigant falls within one of these exceptions, the statute is immune from a facial overbreadth attack; the overbreadth attack is obviated by adjudicating the question of constitutionality on an “as applied” basis. State v. Langley, 265 N.W.2d 718, 722 (Iowa 1978). See, e.g., State v. Goodrich, supra; State v. Worthington, 582 S.W.2d 286 (Mo.App.1979). In other words, one who challenges a statute as unconstitutionally overbroad must be directly affected by the statute’s alleged overbroad aspects. People v. Allen, 657 P.2d at 452.

Therefore, the trial court should have confined itself to deciding the constitutionality of the statute only as it applied to Woodruff, rather than permitting Wood-ruff to assert alleged rights of non-litigants to whom the statute might be applied. In ruling on the facial constitutionality, the trial court disregarded the considerations underlying the Raines doctrine, which are the desire to avoid unnecessary, premature, or unduly broad rulings on constitutional issues; the undesirability of the court’s considering every situation in which a statute could be applied; and the possibility that a limiting construction could be placed on the law if the application of questionable constitutionality was concretely presented. United States v. Raines, 362 U.S. at 21-22, 80 S.Ct. at 522-523.

Thus, our analysis focuses again to the general proposition that the question of a statute’s validity can not be determined abstractly, but rather should be determined only as it applies and is to be enforced in the specific case before the court. Because Woodruff did not claim or argue that his right to privacy has been violated by the statute’s application to him, he has not met his burden of demonstrating that the statute is unconstitutional as applied to him. The transcript is totally devoid of evidence indicating that Woodruff’s right to privacy was violated; the trial court declared the statute unconstitutional after a brief oral argument and without benefit of any evidence. Moreover, the complaint, charging Woodruff in the general statutory language, offers no indication of the factual setting in which the violation occurred.

On this record, the trial court should have refrained from determining the statute’s constitutionality; furthermore, we will not express any opinion as to whether the “penumbral” right to privacy, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), should be extended to protect the freedom to indulge in sexual practices which have long been prohibited by our laws. “Where the question of the constitutionality of a statute is distinctly presented, and is necessary to the decision of the particular case, the courts do not hesitate to decide the question,” Bray v. State, 140 Ala. 172, 37 So. 250, 251-252 (1904), but resolution of a constitutional question should not be predicated on supposition or speculation of the facts. Whitten v. City of Atmore, 278 Ala. 70, 175 So.2d 764, 766 (1965). We are bound by the principles espoused by the Supreme Court of Alabama in State v. Montgomery, 177 Ala. 212, 59 So. 294, 296 (1912):

“It is the established rule of this court to decline to pass upon the constitutional validity of legislative enactments, unless the determination of the questions and rights then before it requires their decision. Smith v. Speed, 50 Ala. 276 [(1874)]; Bray v. State, 140 Ala. 172, 179, 37 South. 250 [1904]; Hill v. Tarver, 130 Ala. 592, 30 South. 499 [1901].... [T]his court will not decide any constitutional question respecting the validity of legislation, unless its decision thereupon is ‘indispensable’ the determination of that litigation. Wisdom and a just respect for the Legislature suggest and approve these rules.”

The adjudication of Woodruff’s claim should not be determined in the bare outline of this record, for it does not negate the elements of majority, privacy, and consent which give rise to the right of privacy. State v. Worthington, supra. Evidence of any one of these distinctions would render Woodruff’s assertions meritless.

Because the question of the constitutionality of § 13A-6-65(a)(3) comes before this court without the benefit of “concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions,” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), we decline to pass upon this “ill-defined controversy.” See People v. Rice, 41 N.Y.2d 1018, 395 N.Y.S.2d 626, 363 N.E.2d 1371 (1977); Commonwealth v. Cook, 468 Pa. 249, 361 A.2d 274 (1976). Because Woodruff has not shown himself to be entitled to raise the question, this court will “leave the question of constitutional power to be passed upon when a case arises which cannot be otherwise disposed of, and which, consequently, renders a decision upon such question necessary.” Speed v. Smith, 50 Ala. 276, 283 (1874), quoting Cooley on Cons.Lim. 163. It is our duty to sustain legislative acts unless we are convinced beyond a reasonable doubt of their unconstitutionality. Ex parte McCurley, 390 So.2d 25 (Ala.1980). This case is infested with grave doubt concerning any unconstitutional application of § 13A-6-65(a)(3) to Woodruff; therefore, we leave this delicate constitutional issue for the proper case.

Accordingly, the judgment appealed from is due to be reversed. The trial court’s dismissal of the complaint is set aside, and the cause remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All Judges concur.

      . We construe this language to indicate that the trial court held the statute facially invalid because the court found that, by its terms, the statute can embrace private sexual activity between consenting adults and, thus, be enforced in such a manner as to infringe on constitutionally protected rights. We do not find the court’s reference to "overbreadth” to denote its usual application to activity protected by the first amendment. Therefore, as we will conclude, the mere use of this term should not have justified a conscious departure from conventional standing concepts.

      . Statutes proscribing sexual misconduct have been constitutionally applied to the defendant where the defendant's conduct was with a minor, e.g., Hughes v. State, 14 Md.App. 497, 287 A.2d 299, cert. denied, 409 U.S. 1025, 93 S.Ct. 469, 34 L.Ed.2d 317 (1972); State v. Worthing-ton, supra; Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976); Jones v. State, 85 Nev. 411, 456 P.2d 429 (1969); where it was not in private, e.g., United States v. Lemons, supra; Harris v. United States, 315 A.2d 569 (D.C.1974); State v. Langley, supra; People v. Jose L., supra; and where it was accomplished by force, e.g., State v. Goodrich, supra; State v. Langley, supra; Dinkens v. State, supra; State v. Levitt, 118 R.I. 32, 371 A.2d 596 (1977).

      . Litigation challenging the constitutionality of laws proscribing sodomy or deviate sexual behavior has increased sharply in recent years. Annot., 20 A.L.R.4th 1009 (1983). Presently, it is an open question of whether the right to privacy created from "penumbras” of the Bill of Rights, applies to all adult, sexual relations; the United States Supreme Court and many lower courts are in a state of confusion regarding the extent to which the right to privacy should be applied to protect consensual sexual conduct outside of the familial setting. Pearson, The Right of Privacy and Other Constitutional Challenges to Sodomy Statutes, 15 U.Tol.L.Rev. 811, 844 (1984). At present, twenty-six jurisdictions have enforceable statutes criminalizing consensual adult sodomus conduct. Id. at 817.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Robert Ray HENDERSON v. STATE of Alabama.
    6 Div. 428.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.

      Bill Fite, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Robert Ray Henderson was indicted for the offense of receiving stolen property in the first degree, in violation of § 13A-8-17, Code of Alabama 1975. The jury found the appellant “guilty of receiving stolen property in the second degree” and following a sentencing hearing, the trial judge sentenced the appellant to seven years’ in the penitentiary.

The appellant does not challenge the weight and sufficiency of the evidence, therefore rendering a statement of the facts unnecessary.

I

A

The appellant contends that the trial court erred to reversal in refusing some 65 written requested charges. Such contention is without merit.

“The refusal of a charge, though a correct statement of law, shall not be cause for a reversal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s general charge or in charges given at the request of the parties.”

Ala.Code § 12-16-13 (1975). See also, Lambeth v. State, 380 So.2d 922 (Ala.Crim.App.), reversed on other grounds, 380 So.2d 923 (Ala.1979), on remand, 380 So.2d 925 (Ala.Crim.App.1979), cert. denied, 380 So.2d 926 (Ala.1980); Jackson v. State, 414 So.2d 1014 (Ala.Crim.App.1982); Campbell v. State, 423 So.2d 284 (Ala.Crim.App.1982); Williams v. State, 451 So.2d 411 (Ala.Crim.App.1984).

We find from our review of the appellant’s refused written charges and from the trial court’s oral charge to the jury that such charges were substantially and fairly covered in the trial court’s oral charge or the nine given written requested charges. (R. 79-80).

B

Appellant further argues that the failure to give his written requested charges, numbers 17 and 70, constituted reversible error. A review of the record reveals that these charges dealt with the appellant’s failure to testify during trial of the cause. A further review of the record also reveals that the failure of the trial court to give such requested charges was not excepted to at the conclusion of the court’s oral charge as is required by Allen v. State, 414 So.2d 989 (Ala.Crim.App.1981), affirmed, 414 So.2d 993 (Ala.1982). The failure to so except precludes this court’s review of this matter. Allen, supra; Hill v. State, 409 So.2d 943 (Ala.Crim.App.1982); Campbell, supra.

Moreover, these two written requested charges were withdrawn from the trial court’s consideration at the request of defense counsel, before the oral charge to the jury was given. (R. 62). Counsel stated that “charge 70 and like charges were withdrawn.”

Therefore, the failure to give such charges is not error.

II

The appellant alleges that the trial court committed reversible error in allowing the prosecutor to make a reference, during closing arguments, to the appellant’s ability to get probation.

This court has held on many occasions that in order to determine whether a statement of the prosecutor was improper, “it must be examined in its context and in light of what had transpired, that is, in light of preceding argument of defense counsel, to which the prosecutor’s argument was an answer.” Washington v. State, 259 Ala. 104, 65 So.2d 704 (1953); Gibson v. State, 347 So.2d 576 (Ala.Crim.App.1977); Rutledge v. State, [Ms. 5 Div. 610, August 16, 1983] (Ala.Crim.App.1983). The rule in Alabama is that “remarks or comments of the prosecuting attorney, including those which might otherwise be improper, are not grounds for reversal when they are invited, provoked, or occasioned by accused’s counsel and are in reply to or retaliation for his acts and statements.” Shewbart v. State, 33 Ala.App. 195, 32 So.2d 241, cert. denied, 249 Ala. 572, 32 So.2d 244 (1947); Camper v. State, 384 So.2d 637 (Ala.Crim.App.1980); Wilder v. State, 401 So.2d 151 (Ala.Crim.App.), cert. denied, 401 So.2d 167 (Ala.1981), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981); Miller v. State, 431 So.2d 586 (Ala.Crim.App.1983); Rutledge, supra. This court stated in Miller, supra at 592:

“It is true that argument by a District Attorney to a jury that a defendant convicted and sentenced to the penitentiary may be eligible for pardon or parole is improper and has been held to be reversible. Eaton v. State, 278 Ala. 224, 177 So.2d 444 and Lee v. State, 265 Ala. 623, 93 So.2d 757. However, it is further held if that argument is in reply to argument by the defense that the defendant, if convicted, will be sentenced to the penitentiary, the rule above referred to does not apply and the district attorney is within his rights in making his reply to a subject first introduced in argument from the defendant. Matthews v. State, 54 Ala.App. 359, 308 So.2d 718 (1975).”

This record reflects that the prosecutor’s argument was merely a reply in kind to the appellant’s counsel’s argument concerning punishment. Further, control of closing arguments rests in the broad discretion of the trial judge and where no abuse of discretion is found, there is no error. Elston v. State, 56 Ala.App. 299, 321 So.2d 264 (1975); Robinson v. State, 439 So.2d 1328 (Ala.Crim.App.1983); Thomas v. State, 440 So.2d 1216 (Ala.Crim.App.1983). The trial judge can best determine when discussion by counsel is legitimate and. when it degenerates into abuse. Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958); Hurst v. State, 397 So.2d 203 (Ala.Crim.App.), cert. denied, 397 So.2d 208 (Ala.1981). There was no abuse of discretion in this case. Therefore, the prosecutor’s comment to the jury concerning punishment and probation was not error.

We have carefully reviewed the transcript for errors injurious to this appellant and find none therein.

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

AFFIRMED.

All the Judges concur.


text:
    Herbert Spencer SALMON III v. STATE of Alabama.
    6 Div. 445.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    L. Drew Redden and William N. Clark, of Redden, Mills & Clark, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Herbert Spencer Salmon, III was indicted for the intentional murder of one Herbert Spencer Salmon, IV, his 30 day old child, by “beating or shaking or striking or squeezing him with his hands”, in violation of § 13A-6-2, Code of Alabama 1975. The appellant entered a plea of not guilty and not guilty by reason of mental defect or disease. The jury found the appellant “guilty of murder as charged” and, following a sentencing hearing, the trial judge sentenced him to life imprisonment.

Ernestine Salmon testified that she was married to the appellant. She said that on April 9, 1983, they lived at Cedarbrook South Apartments. She said they had two sons who lived with them in the apartment. She stated that their youngest son, Herbert Spencer Salmon, IV, was 30 days old on April 9, 1983.

Mrs. Salmon testified that on April 9, 1983, she left the apartment at approximately 3:45 p.m. to run some errands. When she returned at 5:15 p.m. her husband was watching television. She went to the bedroom and glanced at the baby, who appeared to be asleep. The child’s mouth was open and he looked a little paler than normal, but as she was in a hurry to get supper started, she did not check him very closely. She prepared the baby’s bottle and went to feed him. When she picked him up, his body was cold and he would not move. She noticed two small marks on his cheeks. She screamed for the appellant, telling him something was wrong with the baby. She carried the baby to the dining room and placed him on the table where she and the appellant began mouth-to-mouth resuscitation. They could not revive the child so the appellant called the paramedics. Mrs. Salmon stated that during this time the appellant’s face was drained of color and he looked real funny. The paramedics arrived and began mouth-to-mouth resuscitation, but they could not revive the child. They called Brookwood Hospital for an ambulance which arrived shortly thereafter, along with Hoover police officers. The child was transported to Brookwood Hospital where he was pronounced dead. The Hoover police transported Mrs. Salmon and the appellant back to their apartment.

Mrs. Salmon testified that she stayed with her parents that night but her husband remained in the apartment. She received a telephone call the next morning from Sergeant Murdock. She stated that together with her sister and her parents she went to her apartment as a result of this call. When they entered the apartment they saw a note addressed to her, taped to the back of a dining room chair. She said that her father handed the note to her. She further stated that the note was not signed, but was in the appellant’s handwriting. She said that Sergeant Linda Kir-chler, of the Hoover Police Department, came to the apartment and she gave the note to Sergeant Kirchler. In part, the note stated, “I promise you, I had no intention of taking Herbert’s life, but unfortunately, I was too rough on him and Herbert didn’t make it.... I’m turning myself in to the authorities.” (R. 59).

Mrs. Salmon testified that for several months prior to the baby’s death, the appellant would come home from work early. He was Vice-President of his family company. She said he would come home at one or two o’clock in the afternoon, then just sit and watch television and play complicated games by himself. She stated that she could not communicate with the appellant at all. He could not stand stress or pressure and began withdrawing. She stated that for several years she had felt that he needed “help”, but that he was not insane. She said that he had displayed a temper in the past, but that he had never hurt her or the children.

James Phillips testified that he was employed as a paramedic for the City of Hoover Fire Department. On April 9, 1983, Phillips and his partner were called to the Salmon’s residence at Cedarbrook Apartments. When they entered the apartment Mrs. Salmon was working on, and trying to revive, an infant which was lying on the dining room table. Phillips checked the baby, but found no respiration or pulse. He said that he began cardiopulmonary resuscitation. He could not revive the child, so an ambulance was called and the baby was transported to Brookwood Hospital where he was turned over to a resuscitation team.

D.C. Scivley testified that he was employed as a police officer by the City of Hoover. He said that on April 9, 1983, he responded to a call at the Salmon residence. He stated that when the child was taken to the hospital, the key to the apartment was given to Sergeant Reeves. After the baby was pronounced dead, he transported the Salmons by City Hall where they picked up’ the keys to their apartment. He then transported them to their apartment. He stated that he never observed the appellant engage in any irrational behavior.

Harold Murdock testified that he was employed as a Detective-Sergeant by the City of Hoover Police Department. He was called to the police station on the morning of April 10, 1983, and told by Sergeant Franklin that the appellant wanted to talk to him about the death of his child. The appellant had come to the police station of his own free will. He indicated that the appellant was calm and exhibited no irrational behavior.

The appellant was read his Miranda warnings and signed a waiver of rights form. At this time the appellant gave a statement to him and Officer Kirchler. This statement was recorded. The appellant also gave a statement in his own handwriting. The appellant was then arrested and charged with murder.

Robert E. Jones, Jr., testified that he was a physician. On April 9, 1983, he performed an autopsy on Herbert Spencer Salmon, IV. From his external examination of the child, two small cuts or scrapes were revealed about one-half inch on each side. The left ear was bruised, as was the area on the back of the scalp. He stated that there were small bruises on each arm.

Dr. Jones testified that the internal examination revealed hemorrhage deep into the skin of the scalp. The skull had small fractures on each side, approximately an inch or one and one-half inches long. These fractures were consistent with someone grabbing the head with the hands and squeezing. There was trauma to both sides of the head. He stated it was his opinion that death resulted from trauma or injury to the head.

Allen E. Shealy, a clinical psychologist, testified that he examined the appellant on two occasions. These examinations lasted approximately two hours each and consisted of psychological testing and interviewing the appellant. He stated that he first examined the appellant on May 5, 1983, then again on May 10, 1983. He stated that the appellant told him he came to see him because appellant had been charged with the accidental death of his one month old son.

Dr. Shealy stated that he asked the appellant to describe the death of his son. The appellant told him the following:

“My one month child let out a cry which provoked the irrational behavior. I do recognize the child as my son, so there was a partial level of consciousness at that time. By the time I was shaking him, I didn’t know what his name was and I didn’t even know that he was a baby. The baby was held in a parallel plane over the bed and not taken away from the bed. At that time, I thought of it as a form, not a child. The second act was the squeezing of the head. The autopsy said a cerebral hemorrhage. The baby’s eyes were open and it was breathing and looked quite exhausted. Its pulse was slow. It was looking outward, not necessarily at me.” (R. 206-207).

He stated that it was his opinion that the appellant was of above average intelligence based on the appellant’s vocabulary and general knowledge. He further stated that the appellant showed no emotion during the time he interviewed him.

Dr. Shealy testified that he administered several psychological tests to the appellant and that these tests showed this appellant was a paranoid schizophrenic. He stated that it was his opinion that on April 9,1983, at the time the appellant committed this act, the appellant was suffering from the disease of paranoid schizophrenia. In his opinion, the appellant lacked the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

Dr. Shealy further testified that, when the appellant came to his office for the first interview, he could understand him well. He stated that appellant had no speech defects and was organized in his speech. He also said that the appellant conveyed to the doctor his belief that he was suffering from a mental disorder.

Patrick Linton testified that he was a psychiatrist employed by the University of Alabama in Birmingham. On May 24, 1983, the appellant was transferred from Brookwood Hospital to the University Medical Center. He stated that he saw the appellant every day, with a few exceptions, during appellant’s two and one-half month stay in this hospital. His diagnosis of the appellant was schizophrenic disorder, paranoid type. He stated that the appellant was withdrawn, quiet, showed little emotion, and was very circumstantial and involved with explanations. He said that the appellant recalled “either having squeezed the child’s head or done some kind of damage.”

Dr. Linton testified in his opinion the appellant’s act was a result of his illness. His opinion was that the appellant lacked the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. However, Dr. Linton stated that the writer of the note indicated appreciation of criminality of conduct. He stated that the act of a person going to the authorities and turning himself in would denote that the person had substantial capacity to appreciate the criminality of his conduct. He further agreed that the statement in the note, “And unfortunately, in anger, I shook the child and also squeezed his head, out of anger, but there’s no excuse for that, though, and I just wanted to be honest with the authorities and clear the air, and I realize I have a debt to pay to society”, was written by someone who appreciates the criminality of his conduct. Dr. Linton further said that if a person performs some bizarre act on one day, and appears rational the next, generally, he will recall the facts that occurred the day before.

Larry Beverly testified that Ernestine Salmon is his sister and the appellant is his brother-in-law. He is the office manager at Salmon and Company. He stated that the appellant had been leaving work early every day because of a lack of business activity. He stated that he was in the appellant’s presence every day from May of 1980 until April of 1983. He stated that he never observed the appellant act irrationally. He stated that he and the appellant made joint decisions at work and that appellant did not appear to be unduly stressed by his decision making position. He further stated that he was with the appellant on the day before the death of appellant’s son and appellant was normal on that occasion.

I

There was no evidence that the appellant had a history of mental defect or disease. After a careful review of the testimony in this case, it is clear that there was sufficient evidence presented to go to the jury on the issue of appellant’s insanity vel non. See Wherry v. State, 402 So.2d 1130 (Ala.Crim.App.1981); Shorts v. State, 412 So.2d 830 (Ala.Crim.App.1981); Thomas v. State, 418 So.2d 199 (Ala.Crim.App.1982); Nobis v. State, 401 So.2d 191 (Ala.Crim.App.), cert. denied, 401 So.2d 204 (Ala.1981).

II

The appellant contends that the trial court committed reversible error in admitting into evidence appellant’s medical records from Hillcrest Hospital. He argues that the introduction of these records constituted a violation of his psychotherapist/ psychiatrist-patient privilege.

In a review of the evidence presented in this cause, we find that the appellant initiated the inquiry into his sanity. At arraignment, appellant pled not guilty by reason of mental defect or disease, and at trial presented an insanity defense. The records complained of, which are accounts of Dr. Grayson’s analysis of the appellant, came in on rebuttal, after the appellant presented an insanity defense. These records contained information relevant to Dr. Grayson’s diagnosis and observation of the appellant. The appellant offered the testimony of Dr. Shealy, a psychologist, and Dr. Linton, a psychiatrist, as defense witnesses in his cause. They testified to the effect that, in their opinion, the appellant was not legally responsible for this action by virtue of a mental defect and disease.

We hold that by actively pursuing an insanity defense and introducing testimony of qualified psychologists or psychiatrists as defense witnesses, the appellant has waived any potential psychotherapist-patient privilege or privilege against self-incrimination against subsequent qualified testimony or rebuttal. The Supreme Court of Alabama in an opinion authored by Mr. Justice Bloodworth in Ex Parte Day, 378 So.2d 1159 (Ala.1979), stated:

“As the Court of Criminal Appeals notes in its opinion, there are states which hold that by pleading insanity, a criminal defendant waives his statutory privilege against disclosure of a ‘psychotherapist-patient communication.’ The better reasoned cases hold, however, that there must be some presentation of evidence of insanity in addition to the plea, in order for the question of ‘waiver’ to arise....”

As this court stated in Magwood v. State, 426 So.2d 918 (Ala.Crim.App.1982), affirmed, 426 So.2d 929 (Ala.1983), “to allow a defendant to remain silent, when he asserts the offense of insanity and introduces supporting psychiatric testimony, might deprive the State of its only effective measure of controverting the defendant’s proof on an issue interjected into the trial by the defendant himself.”

As noted above, these records were introduced in lieu of the testimony of Dr. Gray-son himself, and only on rebuttal after the appellant had put on testimony supporting his plea of not guilty by reason of mental defect or disease. This evidence was properly admitted by the trial court.

Moreover, the essence of these records were revealed during the trial of this cause. The information relative to Dr. Grayson’s analysis of the appellant was presented by reference to the records during the testimony of defense witnesses, Dr. Shealy and Dr. Linton, without objection by the defense on the basis of psychiatrist-patient privilege. (R. 281-295, 411-412). Since such evidence was already before the jury, it was not error to admit these records.

Ill

The appellant contends that the trial court erred to reversal in charging the jury, as a means to determine intent, that “the law says one is presumed to intend the natural and probable and inevitable consequence of his own intentional acts.” He also argues that the court compounded this error by repeating the same charge over defense counsel’s timely objection.

The United States Supreme Court determined in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), that the trial court erred to reversal in charging the jury that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” Id. at 513, 99 S.Ct. at 2453. The appellant contends that the instruction on intent at his trial was sufficiently similar to the instruction in Sandstrom to warrant reversal.

According to Sandstrom, the threshold inquiry which must be made is “to determine the nature of the presumption [the jury instruction] describes. Id. at 514, 99 S.Ct. at 2454; Franklin v. Francis, 720 F.2d 1206, 1209 (11th Cir.1983). One must pay “careful attention to the words actually spoken to the jury, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Id. In the Sandstrom case, the Court stated that “a reasonable juror could well have interpreted the presumption as ‘conclusive’, that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption.” Id. 442 U.S. at 517, 99 S.Ct. at 2456. The Court further stated that such a presumption could have been viewed as a mandatory rebuttal presumption. The Court further stated that because some of the jurors “could have given the presumption conclusive or persuasion-shifting effect ... we cannot discount the possibility that [the] jurors actually did proceed upon one or the other of these interpretations.” Id. at 520, 99 S.Ct. 2457.

In the present case, the trial judge initially instructed the jury as follows: (R. 566).

“The law says that one is presumed to intend the natural and probable and inevitable consequences of his own intentional acts. That is, if someone intentionally — and you look to all the surrounding facts and circumstances. If one intentionally does an act, intentionally does that act, the only natural, probable and inevitable consequence of which would result in someone’s death, then the law says that person intends not only the act, but the result. There have been examples given. An extreme example, if I throw this gavel at that window, I am said to have intended to cause the window to be broken because that is the natural, inevitable and probable consequence of my intentional act.
“So if you believe beyond a reasonable doubt that this defendant, Herbert Spencer Salmon, III, with the intention to cause the death of Herbert Spencer Salmon, IV, intentionally — and it is alleged in the indictment — intentionally did acts which caused that death — that is, knowingly, willfully, intentionally did acts which the natural, probable and inevitable consequence of which would be to cause the death — if you believe that beyond a reasonable doubt, then you must find the Defendant guilty of murder.

After the court gave instructions on lesser included offenses, he gave the following charge: (R. 569).

“Let me go over that again. Murder, intention to take the life of someone. You intend to take the life of someone and you intentionally do acts which take that life. That’s murder. And as I said, one is presumed to have intended the result of the natural, probable and inevitable consequence of their own intentional acts. And with that in mind, a specific intent to kill and intentionally do acts which cause that death, that’s murder.”

The trial judge further instructed the jury, during a supplemental charge, as follows: (R. 588).

“In order to convict someone of murder, you must believe beyond a reasonable doubt from the evidence that the Defendant, with the intention to take one’s life, or the life of Herbert Spencer Salmon, IV, with the intention to take that life, intentionally does an act or acts which result in death. It is an intention to kill. As I said before, one is presumed to intend the natural, probable and inevitable results of his own intentional acts. So murder is intentionally killing someone; that is, with the intention to kill someone, you intentionally do an act and that person dies.
“In order to convict Herbert Spencer Salmon, III of murder, you must believe beyond a reasonable doubt that with the intent to take the life of Herbert Spencer Salmon, IV, he intentionally did acts which caused that death. An intent to kill. As I said, intent may be inferred from — the natural, inevitable results of their own intentional act, one is said to have intended the result. That’s for the jury to determine. That’s murder. But the key word is intentional.”

The court in Sandstrom found that such a charge could have been interpreted as shifting the burden of proof to the defendant to prove that he lacked the requisite mental intent. In the case at bar, we have a conclusive presumption as described in Sandstrom.

Before making a final determination that such a charge as given here, and in the Sandstrom case is constitutionally defective, we must determine whether the alleged burden shift affected an essential element of the offense. The statute under which the appellant was charged, § 13A-6-2, Code of Alabama 1975, defines murder as follows:

“A person commits the crime of murder if [w]ith the intent to cause the death of another person, he causes the death of that person or of another person; ...”

The cases are legion in Alabama which state that intent is an essential element of the crime of murder. See Swann v. State, 412 So.2d 1253 (Ala.Crim.App.1982); Sanders v. State, 392 So.2d 1280 (Ala.Crim.App.1980). Thus, the intent instruction in this case clearly relates to an essential element of the offense charged.

“The Supreme Court’s final step in Sandstrom was to determine whether either of the two possible interpretations of the intent presumption (that it was a conclusive presumption or a mandatory rebut-table presumption requiring the defendant to present evidence to the contrary) was constitutional.” Franklin v. Francis, 720 F.2d 1206, 1210 (11th Cir.1983). The Supreme Court in Sandstrom, in determining the validity of a conclusive presumption, stated that such a presumption would “conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime,” and would “invade [the] factfinding function which in a criminal case the law assigns solely to the jury.” Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459. Under the interpretation given such a conclusive presumption by the Sand-strom case, the presumption in this case is necessarily unconstitutional.

The Supreme Court left the question of whether such a charge would be harmless error open in Sandstrom. However, subsequent opinions indicate that the Court feels such a “presumption that the defendant intended to kill completely eliminates the defense of ‘no intent’ ”. See Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). The rule in the Eleventh Circuit appears to be that such a presumption may be considered harmless if intent has been overwhelmingly proved by the evidence in the case or if the instruction “shifted the burden of proof to the defendant with respect to an element of the crime not at issue in the case.” Drake v. Francis, 727 F.2d 990, 999 (11th Cir.1984).

In the case at bar, we are not prepared to hold that such evidence of intent was so overwhelming that this improper instruction could not have been considered by or contributed to the jury’s decision to find the appellant guilty of murder.

As required by Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) and Lowman v. State, 400 So.2d 430 (Ala.Crim.App.), cert. denied, 400 So.2d 434 (Ala.1981), we have considered the offensive jury instruction in the context of the overall charge. Although the trial court couched its supplemental charge in terms of an inference, we cannot hold that this cured the overall effect of the charge on intent. Therefore, the charge must be viewed as reversible error in this cause.

Moreover, in Sandstrom, the Supreme Court cited an Alabama case which is also dispositive of the issue at hand, Hall v. State, 49 Ala.App. 381, 272 So.2d 590 (1973). In Hall, the objectionable language used by the trial court in its charge to the jury was that the law presumes one intends to do that which he does. The court held under such an instruction the “jury may mistakenly believe that it is permissible to infer specific knowledge or intent solely from the doing of a particular act, without regard to the totality of the circumstances; or that the occurrence of particular acts shifts the burden of proof to the defendant; or that the question is whether a reasonable man in similar circumstances would have had the requisite knowledge or intent, rather than whether the accused actually had it.” Hall, 49 Ala.App. at 384, 272 So.2d at 593. The decision in Hall was followed by Carter v. State, 53 Ala.App. 43, 297 So.2d 175 (1974). In Carter the objectionable language which the court found impermissible was that the law presumes one to intend the natural and probable consequences of his act. In ruling on this instruction, this court stated that “such an instruction to the jury makes the subjective intent of the defendant the determining factor whether a crime has been committed at all.” Carter, 53 Ala.App. at 48, 297 So.2d at 180.

Under the authorities cited above, and the discussion above stated, we hold the jury instructions in this case were erroneous and this cause must therefore be reversed and remanded.

The remaining issues submitted for review by the appellant have been pretermit-ted.

In view of our holding, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    James Bernard FLETCHER v. STATE.
    8 Div. 155.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    James D. Chadbourne, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane Lecroy Brannan, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

James Bernard Fletcher was indicted for the intentional killing of one Kevin West, “by stabbing him with a knife,” in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant “guilty of murder as charged,” and following a sentencing hearing, the trial judge sentenced him to “twenty years and one day” in the penitentiary.

Sherry White testified that in November, 1983, she was present when the appellant and the deceased, Kevin West, had a fight. She indicated that on the night in question, she and Kathy Ricks walked over to visit Kevin at his home. When she and Kathy arrived at Kevin’s residence, the appellant, Kevin, and Marcus Steele were driving up in Kevin’s automobile. Kevin invited the girls into the house. Once inside the house, Kevin mixed everyone a drink, and the boys began to smoke marijuana. Sherry stated that Kevin asked her if she and Kathy wanted to go to a movie with him. Sherry and Kathy left the house, and walked to Sherry’s house where she changed clothes. When they returned to Kevin’s house, Sherry entered into a conversation with the appellant, and he asked if she and Kathy would go to a party with him and Marcus. When she told appellant that she did not know, the appellant told her that Kevin had earlier referred to her as a whore. She said that Kevin had gone outside to start his car at this time, so she went out and confronted him with this information. Kevin denied making the statement and called the appellant outside.

Miss White stated that when the appellant came outside, Kevin told him to leave and do not come over any more “if he was going to be lying like that.” (R. 20) The appellant and Kevin exchanged words about this matter, and entered into a shoving match. This confrontation ended in the street. Kevin walked away from the appellant and went into his house, shortly returning outside. Kevin asked Sherry if he could give her a ride home. At this point, the appellant stated that, if she got in the car with Kevin, they were both going to be dead. Sherry stated that she and Kevin were standing beside the curb, and the appellant was in the street behind Kevin. The appellant came up behind Kevin, reached in Kevin’s back pocket, and pulled out a knife. Kevin told the appellant to give the knife back to him, but the appellant said, “you were going to use this on me.” Kevin denied this, and asked the appellant to give the knife back to him, over and over again. The appellant began waving the knife at Kevin, then grabbed him by the shirt. Sherry then left and went home, returning later to talk to police.

Kathy Ricks’ testimony was much the same as Sherry White’s. She testified to the same events leading up to the initial confrontation between the appellant and Kevin. However, she stated that after Kevin had told appellant to leave, the appellant took his coat off and said, “we can fight,” and they began shoving each other. (R. 53) Kathy further stated that the first confrontation ended in the street, and Kevin then walked into his house, returning shortly thereafter. She stated that appellant and Kevin began fighting. She tried to get Marcus Steele to break them up, and when she turned back around, the appellant had a knife in his hand. The appellant was waving the knife back and forth. She stated that she again asked Marcus to break them up, and when she turned around, Kevin was on the ground with the appellant on top of him. Appellant then stabbed Kevin, and stated, “you dead, man, you dead.” (R. 59) Kathy stated that the appellant then got up, walked down the street, and tossed the knife aside.

Marcus Steele testified that he and the appellant had gone to visit Kevin West on the night in question. They entered Kevin’s house and drank some beer. The three of them then left and went to buy some liquor. When they returned to Kevin’s house, Sherry White and Kathy Ricks walked up, and everyone went inside. Everyone was inside drinking mixed drinks. He stated that Kevin and the appellant got into an argument because appellant said that Kevin had to go pick up a whore. He stated that at this time everyone was outside the house. He said that the appellant and Kevin were in the street fighting. When they stopped, Kevin walked into the house and came back out a short time later. Kevin walked down to the street and was talking to Sherry when the appellant came up behind Kevin and started hitting him. The appellant then held up a knife and said, “look what he tried to stab me with.” (R. 79) Marcus indicated that the appellant began hitting Kevin with the knife. He stated that the appellant struck Kevin with the knife in the upper body. They stopped fighting when Kevin fell to the ground. He said that the appellant walked off and threw the knife on the ground. Marcus stayed at the scene until the police arrived, then told them what happened.

Dr. Josephino Aguilar testified that he performed an autopsy on the body of Kevin West. He stated that there were seven stab wounds on the upper torso and extremities. It was his opinion that the cause of death was a stab wound through the left breast, which cut the heart, severed the coronary artery, and punctured the left lung.

There was testimony at trial that the knife was found by police officers across the street in front of Kevin West’s residence.

Alice Marie Booker, the appellant’s mother, testified that she was home on the evening in question, and that appellant came to the house around 9:20 p.m. She stated that the appellant entered the house, and he had blood all over him. She told him to go take a bath, and he then told her he had been in a fight. She told the appellant to go to bed, which he did. She further stated that she put his clothing in the washing machine.

The appellant testified in his own behalf, and his testimony was substantially the same as the other witnesses, up until the point of the fatal fight. Referring to this second altercation, the appellant said that he was in the street when Kevin came out of the house and walked to the curb to talk to Sherry White. He stated that he walked up the street diagonally toward the spot where Kevin and Sherry were talking. He said as he walked in that direction, Kevin walked toward him in the street. He stated that he thought Kevin had a gun, so he did not run. He stated that as Kevin neared him, he grabbed Kevin’s shirt to hold him off, and when he did so, Kevin grabbed his shirt. There was a brief tussle, during which appellant saw the knife in Kevin’s back pocket. Appellant then grabbed the knife out of Kevin’s pocket, at which time he and Kevin released each other. Appellant stated that Kevin kept reaching toward him as appellant waved the knife in front of him. He stated that Kevin finally grabbed him by the throat, rammed his other hand into appellant’s mouth, and forced appellant down on his knees. Appellant said that he was gasping for air, and since he could not breathe, he lashed out at Kevin with the knife, and kept stabbing until Kevin collapsed. Appellant then got up and walked down the street, tossing the knife aside as he walked away.

I

The appellant contends that the trial court erred in overruling his motion for new trial. He specifically argues that the evidence was insufficient to support the jury’s verdict of guilty of murder.

“When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for acquittal, the refusal to give the affirmative charge, or the denial of a motion for new trial by the trial court do not constitute error.” Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Baker v. State, 338 So.2d 528 (Ala. Crim.App.1976); Cox v. State, 363 So.2d 1054 (Ala.Crim.App.1978); Duncan v. State, 436 So.2d 883 (Ala.Crim.App.1983). Conflicting evidence as to what actually took place creates a question for the jury to resolve. Graham v. State, 339 So.2d 110 (Ala.Crim.App.), cert. denied, 339 So.2d 114 (Ala.1976); McBryar v. State, 368 So.2d 568 (Ala.Crim.App.), cert. denied, 368 So.2d 575 (Ala.1979).

Further, “[a] verdict of conviction will not be set aside on the ground of insufficiency of the evidence, unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this [cjourt that it was wrong and unjust.” Ward v. State, 356 So.2d 238 (Ala.Crim.App.), cert. denied, 356 So.2d 242 (Ala.1978); Johnson v. State, 378 So.2d 1164 (Ala.Crim.App.), cert. quashed, 378 So.2d 1173 (Ala.1979); Duncan v. State, supra.

In the case at bar, the jury heard all the evidence and they were charged on lesser included offenses. They chose not to believe the appellant’s version of the incident, i.e. that he acted in the heat of passion. We have carefully reviewed the evidence in this cause and find that there was sufficient evidence to support the verdict of murder. See Baker v. State, supra; Graham v. State, supra; Ward v. State, supra; Hamilton v. State, 358 So.2d 766 (Ala.Crim.App.1977), writ quashed, 358 So.2d 772 (Ala.1978); Cox v. State, supra.

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

AFFIRMED.

All the Judges concur.


author: TAYLOR, Judge.

text:
    Donald Wayne SMITH v. STATE.
    7 Div. 243.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.

      R.D. Pitts, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee. *
   TAYLOR, Judge.

The appellant Donald Wayne Smith was convicted of murder and was sentenced to 25 years’ imprisonment.

The evidence shows that on March 6, 1983, a vehicle driven by the appellant collided head-on with an automobile driven by Gary Watts in Talladega County on Highway 77. Gary Watts was accompanied by his wife, Sharon L. Watts, who was riding in the front passenger seat. She was killed instantly as a result of the collision. Gary Watts was transported first to Citizens Hospital in Talladega, and then to the University of Alabama Trauma Center in Birmingham, where he died as a result of injuries received in the collision. Both Gary Watts and Sharon Watts were tested for alcohol and drug consumption. These tests were negative except for the presence of aspirin in the blood of Gary Watts.

An officer at the scene of the accident ordered that the appellant be given a blood alcohol test after he smelled what he thought was alcohol in the appellant’s van. This test was performed on appellant at Citizens Hospital in Talladega while he was unconscious as a result of the collision. This test revealed a blood alcohol level of .25, greatly exceeding the statutory level of intoxication of .10.

I

The appellant contends that the court committed reversible error in allowing the results of the blood alcohol test' into evidence. Specifically, he contends that the person who withdrew the sample of blood was unqualified to do so under the Rules and Regulations of the State Board of Health Relating to the Alabama Chemical Test for Intoxication Act. After a careful examination of these rules, we find that are applicable only to the person who actually performs the chemical analy-not ⅛6 person who withdraws the k]00(j

The statute, Acts 1980, No. 80-434, states in section (a)(2) that “only a physician, registered nurse (or other qualified person) may withdraw blood for the purpose of determining the alcoholic content therein.” The technician who withdrew the blood testified that she was licensed through the American Society of Clinical Pathologists and was a member of the American Society of Medical Technologists. We find that these qualifications were sufficient to meet the requirements set out in section a(2) of the Chemical Test for Intoxication Act. In addition, the appellant did not specifically object to the technician’s testimony at trial or make a motion to exclude evidence produced by the blood test on the basis that she was not qualified to extract the blood.

Accordingly, the trial court did not err in admitting into evidence the results of the chemical analysis of the appellant’s blood.

II

We will now address the five issues raised by the defendant in his letter to this court.

The appellant first contends that the presence of Mrs. Dee Fine in the courtroom influenced the judge’s decision in sentencing. We find this contention meritless. Anyone may attend a public trial. To suggest that any particular person’s attendance could improperly influence the judge’s decision is an affront to the integrity of the trial court and merits no further attention here.

The appellant next contends that the technician had no right to withdraw the blood sample from him and that he did not authorize a blood alcohol test.

We have already addressed the qualifications of the technician and have determined that she was qualified to withdraw the blood sample under the Alabama Chemical Test for Intoxication Act.

Appellant’s contention that he did not authorize the test and thus that the blood sample should not have been taken is also without merit. Section 32-5-192(a), Code of Alabama 1975 states:

“any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, ... to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor.”

Section 32-5-192(b), Code of Alabama 1975, provides that “Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by subsection (a) of this section and the test or tests may be administered.” Accordingly, the blood sample was properly taken.

The appellant next contends that it was never proven that he was driving a vehicle with the intent to kill as stated in the indictment. Section 13A-6-2(a), Code of Alabama 1975, states that “A person commits the crime of murder if ... (2) Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person.” A conviction for murder resulting from a homicide caused by the driving of an automobile is authorized where there is sufficient evidence to warrant a finding by the jury either that the accused intentionally caused the collision or that he was conscious of his acts, conscious of the impending danger surrounding him, and conscious of the probable results of his acts, and then, with reckless indifference to the probable consequences of his acts, brought about the collision and death of the deceased. Jolly v. State, 395 So.2d 1135 (Ala.Crim.App.1981). Such a finding was warranted by the evidence in this case.

The appellant next contends that publicity caused by Mrs. Dee Fine caused prejudice against him which resulted in an unjust sentence. We have already addressed the issue of Mrs. Fine’s influence on the trial, found there to be none, and find here likewise that no prejudice was suffered by appellant because of her presence.

Appellant’s final contentions are that he should have been charged with manslaughter because this is his first felony and that other persons convicted since his trial have received lesser sentences.

The charge of murder was warranted by the facts in this case. As to the appellant’s final contention, we can say only that the judicial system is not a vending machine and thus identical sentences need not be given in every similar case.

AFFIRMED.

All the Judges concur.

      . Mrs. Dee Fine was instrumental in the organization of MADD (Mothers Against Drunk Drivers) in Alabama.


author: BOYD, Chief Justice. OVERTON, Justice,

text:
    TAMARON HOMEOWNERS ASSOCIATION, INC., Petitioner, v. TAMARON UTILITIES, INC., Respondent. SARASOTA COUNTY, Petitioner, v. TAMARON UTILITIES, INC., Respondent.
    Nos. 63626, 63646.
    Supreme Court of Florida.
    Sept. 13, 1984.
    Rehearing Denied Jan. 3, 1985.

      Daniel Joy, Sarasota, for Tamaron Homeowners Ass’n, Inc.
    Richard E. Nelson and Omer Causey of Nelson, Hesse, Cyril, Smith, Widman & Herb, Sarasota, for Sarasota County.
    M. Joseph Lieb, Jr. of Syprett, Meshad, Resnick & Lieb, Sarasota, for respondent.
    B. Kenneth Gatlin of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, amicus curiae for Florida Cities Water Co.
   BOYD, Chief Justice.

This case is before the Court upon two separate petitions for review of a decision of the District Court of Appeal, Second District, reported as Sarasota County v. Tamaron Utilities, Inc., 429 So.2d 322 (Fla. 2d DCA 1983). The decision provided a construction of the fourteenth amendment to the United States Constitution and article I, section 9 of the Florida Constitution. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Tamaron Utilities, Inc. (Tamaron), a public utility providing water and sewer service, applied to the Sarasota County Commission for permission to increase its monthly rates for sewage disposal. Ta-maron is a subsidiary of U.S. Homes, Inc., the developer of the subdivision served by Tamaron. U.S. Homes provided Tamaron with the capital assets necessary to operate the sewerage system and recouped its investment by passing the cost on to purchasers of homes in the subdivision. When capital assets of a utility are in effect provided by the customers, they are called “contributions in aid of construction” (CIAC). It is important to distinguish such “contributed” capital assets from other assets of the company used in its water and sewer operation, which will be referred to as “noncontributed.” Because practically all of its capital assets were obtained by means of such contributions, Tamaron is a zero rate-base utility. Since there was no rate base on which Tamaron was entitled to earn a rate of return, Tamaron limited its request for a rate increase to cover its operating expenses, including depreciation on noncontributed assets, and taxes.

Tamaron claimed that based on the test year ending in 1980, it would incur operating expenses in 1981 of $128,082. To cover these expenses, it asked for a rate increase to $20.91 per month per customer for sewer service. Tamaron included in its estimate of operating expenses $6,000 for repairs, $10,000 for maintenance, $2,000 for miscellaneous maintenance, and, the main contested item in this case, $23,530 for what was initially labeled as a “reserve contingency account.”

At the rate hearing Tamaron claimed that the reserve contingency account was necessary for unforeseen expenses since all of its estimated revenue was matched dollar for dollar with expenses requiring a cash outlay. Tamaron arrived at the figure of $23,530 by multiplying the value of contributed assets ($588,243) by a depreciation factor of four percent.

A rate analyst for Sarasota County agreed that Tamaron had a negative rate base and was therefore limited to a rate increase sufficient to cover its operating expenses, depreciation on noncontributed property, and taxes. The rate analyst calculated Tamaron’s estimated operating expenses for 1981 to be $90,583. In arriving at his calculations, the rate analyst alloted only $14,600 for repairs and expenses and nothing at all for a reserve contingency fund. He testified that the county’s legal department had issued an opinion that the reserve contingency fund was actually an allowance for depreciation on contributed property, which was prohibited by County Ordinance 80-62. Section 8(e) of that ordinance provides:

(e) The Board has the duty and authority to determine and fix reasonable rates and charges that may be charged'by any public utility for its services. The Board shall determine and investigate the actual original cost of the property of each public utility actually used and useful in public service and shall keep a current record of the net investment of each utility in such property. The value as so determined by the Board shall be used for rate-making purposes, less accrued depreciation and shall not include any contribution in aid of construction or any good will or going-concern value. The Board shall fix and determine a rate which allows for reimbursement of operating costs including depreciation on all properties, excluding contributed properties, and a fair and reasonable net return on the original cost of a system incurred by the person first dedicating it to public service, which shall not include contributions in aid of construction or customer contributions.

The Sarasota County Commission adopted a resolution finding that the rates and charges presented by its rate analyst were fair and reasonable and authorized Tamaron to increase its rates to $15.84 per month per customer.

Tamaron filed a petition for writ of cer-tiorari with the circuit court, seeking to have the ordinance declared unconstitutional. The circuit court granted the motion of the Tamaron Homeowners Association and others to intervene. After hearing arguments on the petition and Sarasota County’s response, the circuit court granted the petition for writ of certiorari, holding that section 8(e) was invalid and violative of the due process and equal protection clauses of the state and federal constitutions. The circuit court then ordered that the phrase “excluding contributed properties” contained in the fourth sentence of section 8(e) be deleted from the ordinance so that Ta-maron could claim depreciation on contributed property as an operating expense.

Sarasota County, Tamaron Homeowners Association, and others filed petitions for writ of certiorari with the second district court of appeal, which consolidated the cases. The district court of appeal stated that there was no constitutional requirement that a utility be allowed to build up a reserve fund to cover depreciation losses, but that depreciation of contributed property should be considered at some point in the rate-making process. The district court construed section 8(e) as prohibiting the inclusion of CIAC depreciation in the rate base calculation by way of an add-back. 429 So.2d at 327. The district court concluded that the entire ordinance was confiscatory and violative of due process since it completely prohibited the consideration of CIAC depreciation in the rate-making process.

The issue in this case is whether an ordinance which prohibits the inclusion of CIAC property in the rate base and prohibits the consideration of depreciation of such property as an operating expense deprives a utility of its property without due process of law. In analyzing this ordinance, we must therefore examine its impact upon the rate base and operating expenses. We must then determine whether the impact necessarily results in unjust and unreasonable rate.

We begin by noting that in utility rate-making cases, a utility’s rate base is arrived at by determining the original cost of the property used in providing the service. This original cost figure is periodically adjusted downwards as the value of the property depreciates. The rate base is then multiplied by a percentage factor denoted as the rate of return. The purpose of this calculation is to estimate the amount of equity investors have in the utility and the amount of return they should get on their investment. Since investors do not have an equity interest in property contributed to a utility and therefore are not entitled to earn a rate of return on such property, it would be unfair to the customers to include contributed property in the rate base. State ex rel. Utilities Commission v. Heater Utilities, Inc., 288 N.C. 457, 219 S.E.2d 56 (1975); Princess Anne Utilities Corp. v. Commonwealth ex rel. State Corp. Commission, 211 Va. 620, 179 S.E.2d 714 (1971). Hence the various states have been uniform in holding that contributions in aid of construction should be excluded from the rate base. 1 A. Priest, Principles of Public Utility Regulation 177 (1969).

In Westwood Lake, Inc. v. Dade County, 264 So.2d 7 (Fla. 1972), we acknowledged the constitutionality of ordinances that exclude contributions in aid of construction from the rate base. We also held that “there can of course be an unconstitutional application of the ordinance as to a utility if it deprives that utility of a fair rate and thereby deprives the utility of its property without due process of law.” Id. at 9 (emphasis in original).

In this ease, however, we are not concerned with the constitutionality of the ordinance as applied. Both the circuit court and the district court of appeal found the ordinance unconstitutional on its face. The district court of appeal held the entire ordinance unconstitutional by construing it to prohibit any consideration of contributed property or depreciation on contributed property as part of the rate base as well as prohibiting the allowance of depreciation of contributed property as an operating expense.

We disagree with this construction of the ordinance. To better explain, we must first examine the concept of adding back depreciation on contributed property to the rate base. We examined this concept in State v. Hawkins, 364 So.2d 723 (Fla. 1978), where the Public Service Commission calculated a utility’s rate base by taking the total value of all the utility’s property, subtracting the accumulated depreciation on both contributed and noncontributed assets, subtracting the value of the contributed property, and then adding back the accumulated depreciation on the contributed property. This method of subtracting the depreciation of contributed property and then adding it back is the same as calculating the rate base by taking the value of the non-contributed property and subtracting the accumulated depreciation on only that property. See Citizens v. Florida Public Service Commission, 399 So.2d 9 (Fla. 1st DCA 1981). The Public Service Commission argued that adding back the depreciation on contributed property to the rate base was therefore necessary to eliminate all influence of CIAC in the calculation of the rate base. This Court found, however, that the additional practice of allowing the utility to include the depreciation of CIAC as an operating expense had the effect of increasing the utility’s rate of return and that the adding back of depreciation of CIAC into the rate base, increasing it, would therefore result in a windfall to the utility. Thus our decision there suggested that adding back the depreciation on contributed property to the rate base from which it had previously been subtracted should be allowed only if the utility is not authorized to include depreciation on CIAC as an operating expense.

In this case, section 8(e) of Sarasota County Ordinance 80-62 provides that the original cost of the utility’s property “shall be used for rate-making purposes, less accrued depreciation and shall not include any contribution in aid of construction or any good will or going-concern value.” The key phrase here is “less accrued depreciation.” In reaching the result it did, the district court of appeal must have construed this phrase to require that the depreciation on both contributed property and noncontributed property be subtracted from the original cost of the utility’s assets. We do not believe that the language of the ordinance compels such a construction. It is obvious that the intent of the ordinance is to exclude any contributions in aid of construction from a utility’s rate base. As we have pointed out, this can be done most simply by taking the total value of the utility’s noncontributed property and subtracting the accumulated depreciation on only that property. Hence the phrase “less accumulated depreciation” would not result in an improper reduction of a utility’s rate base if it were construed as referring only to the accumulated depreciation on noncontributed property.

Moreover we note that our construction of the ordinance comports with the method actually utilized before the Sarasota County Commission in calculating Ta-maron’s rate base. In calculating Tamar-on’s rate base, both Tamaron and the county’s rate analyst presented exhibits showing that the method used to exclude CIAC from the rate base was to start with the value of Tamaron’s total property and subtract from it the value of CIAC and the accumulated depreciation of only the non-contributed property. Though the parties disagreed as to the value of Tamaron’s noncontributed property and the amount of depreciation of such property, these differences were not explained and both sides agreed that in the end Tamaron was left with a negative rate base. The negative rate base was reached by subtracting from the value of Tamaron’s noncontributed property $32,065 which represented the amount of connection fees Tamaron had collected. Although this amount was not included in the original cost of Tamaron’s property, it was properly deducted from the rate base. Christian and Missionary Alliance Foundation, Inc. v. Florida Cities Water Co., 386 So.2d 543 (Fla. 1980).

We therefore conclude that the ordinance is not unconstitutional by virtue of the fact that it prohibits the inclusion of CIAC in a utility’s rate .base. However, we are now faced with the question of whether this prohibition coupled with the prohibition of including depreciation of CIAC as an operating expense is unconstitutional.

There is no question that the depreciation of a utility’s noncontributed property is properly included among its operating expenses.

Broadly speaking, depreciation is the loss, not restored by current maintenance, which is due to all the factors causing the ultimate retirement of the property. These factors embrace wear and tear, decay, inadequacy, and obsolescence. Annual depreciation is the loss which takes place in a year. In determining reasonable rates for supplying public service, it is proper to include in the operating expenses, that is, in the cost of producing the service, an allowance for consumption of capital in order to maintain the integrity of the investment in the services rendered.

Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 167, 54 S.Ct. 658, 664, 78 L.Ed. 1182 (1934)(footnotes omitted). Because noncontributed property is purchased with the funds of the utility or its investors, recognition of depreciation of such property as an operating expense is necessary to maintain the integrity of the investment. As the depreciation of such property is charged as an operating expense, a corresponding amount is deducted from the rate base so that the investors will not earn a rate of return on the amount of their investment that has already been returned to them through the recognition of depreciation as an operating expense.

However, when part of a utility’s productive assets have been provided by contributions from its customers, there is no need to charge the depreciation of such property as an operating expense. “The Constitution does not require that the owner who embarks in a wasting-asset business of limited life shall receive at the end more than he has put into it.” Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 593, 62 S.Ct. 736, 746, 86 L.Ed. 1037 (1942). To permit such a utility to include such depreciation as an operating expense would allow it “to recover the cost of property for which it had invested nothing.” Mississippi Public Service Commission v. Coast Waterworks, Inc., 437 So.2d 448, 452 (Miss. 1983). See also State ex rel. Utilities Commission v. Heater Utilities, Inc.; Town of New Shoreham v. Rhode Island Public Utilities Commission, 464 A.2d 730 (R.I. 1983); Princess Anne Utilities Corp. v. Commonwealth ex rel. State Corp. Commission. We therefore conclude that a utility is not constitutionally entitled to be compensated for depreciation on contributed property as an operating expense.

However, different considerations come into play when all or practically all of the property used by a utility in providing a public service has been contributed to it. In such situations the utility is not entitled to earn a rate of return on the contributed property because it has invested nothing in obtaining the property and is therefore limited to earning enough revenue to cover its operating expenses. The problem is that if a utility’s expenditures are due before it collects its revenues, then the utility is placed in a negative “cash-flow” position. If there is insufficient working capital to cover this negative cash-flow, then the utility may be forced into desperate measures to obtain short-term financing, which might ultimately so damage the utility as to be confiscatory without increased rates. The utility might also be placed in a position where it would be unable to attract any capital for replacement of worn-out equipment resulting in a real inability to provide the required service. In such cases there might conceivably be an unconstitutional application of an ordinance prohibiting the depreciation of CIAC as an operating expense. See Westwood Lake, Inc. v. Dade County. But there is no unconstitutional deprivation as long as the utility is allowed to charge rates which enable it “to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed.” Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 605, 64 S.Ct. 281, 289, 88 L.Ed. 333 (1944).

Tamaron argued before the Sarasota County Commission that it needed to deduct depreciation of CIAC as an operating expense in order to build a contingency reserve fund so that it would have funds on hand for unexpected expenditures. However, it failed to present any evidence that it needed such a fund to operate successfully. There is nothing in the record to show that Tamaron would be unable to pay for unexpected expenditures through internally generated funds or by attracting additional outside capital. We also note that the record reflects that the Commission authorized Tamaron to collect revenues to pay for maintenance and repairs. Although in theory there is a distinction between current maintenance expenses and depreciation, in reality both relate to the same phenomenon — the fact that physical assets wear out and need to be maintained or replaced. Lindheimer v. Illinois Bell Telephone Co. The allowance for maintenance and repairs may not only be a source of funds for unexpected expenditures but may also result in prolonging the life of the utility’s property.

We therefore conclude that Sarasota County Ordinance 80-62 does not necessarily deprive a utility of its property without due process of law. We quash the decision of the district court of appeal and remand with instructions that the circuit court’s order holding the ordinance unconstitutional be vacated and for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, ALDERMAN, McDONALD and SHAW, JJ., concur.

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

I would affirm the decision of the district court of appeal and adopt its opinion as the opinion of this Court.