author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Archie PEOPLES v. STATE.
    2 Div. 372.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    William J. Bonner, Jr., Camden, for appellant.
    Charles A. Graddick, Atty. Gen., and Russell C. Stoddard, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty under an indictment which, omitting the formal parts thereof, charged as follows:

“Archie Peoples, whose name is otherwise unknown to the Grand Jury other than as stated, did, in the course of committing a theft of lawful money of the United States and a shotgun, the property of Gafford Dandridge, use [sic] force against the person of Gafford Dandridge or against the person of another present, with intent to overcome his physical resistance or physical power of resistance, while the same, Archie Peoples was armed with a deadly weapon, to-wit: a shotgun, in violation of Section 13A-8-41 of the Code of Alabama,.... ”

After adjudging defendant guilty and a sentence hearing, the court sentenced him to imprisonment for life. A violation of Section 13A-8-41 of the Code of Alabama is a Class A felony, which, according to § 13A-5-9(a)(3) calls for punishment “by imprisonment for life or for any term of not more than 99 years but not less than 15 years.”

No contention was made by defendant on the trial, and no contention is made by appellant, that the crime alleged in the indictment was not committed by someone. The only factual contest is as to whether the appellant-defendant committed the robbery. He did not testify; two of his sisters and a brother-in-law testified that he spent the night in Birmingham on the night of the robbery, November 21, 1981, the robbery having occurred at the home of the alleged victim and his wife and grandchildren a short time after 10:00 P.M.

Appellant presents three issues as a basis for his contention that the judgment of the trial court should be reversed. All three of the issues, however, are directed at the action of the trial court in overruling a motion for a continuance of the case, which was presented after the State had rested and after defendant had presented the testimony of his witnesses as to an alibi, and one other witness had testified on call of defendant as to what the alleged victim had indicated after the robbery as to whether the defendant robbed him. We now set forth that part of the transcript showing the motion, the ruling of the court thereon, and the context thereof:

“(Whereupon an off-the-record discussion was held between counsel and the Court.) “MR. CROMER [Defendant’s appointed trial counsel]: Like I told you, Your Hon- or, we had subpoenaed a witness that the Clerk showed service on by the name of John Chapman who was told to be here today and we feel he’s necessary to our case. I don’t know where he is. He was subpoenaed and the return is shown by the Clerk and served by the Sheriff’s Department. We don’t have him in Court at this time. We feel at this time that we do need him.
“THE COURT: His testimony is similar to what you have already put on; is that correct?
“MR. CROMER: No, sir; we feel it’s somewhat different. It’s the identity of Archie Peoples.
“THE COURT: What efforts have you made to get him here today?
“MR. CROMER: We told the Sheriff this morning when we first got here that we were looking for him. He checked the return again to see that it said that he was to be here this morning, the seventeenth of August. He lives in Arlington, Alabama.
“THE COURT: Has there been any effort made to contact him today?
“MR. CROMER: Before the case started this morning at 11:00, Your Honor.
“THE COURT: Has anybody called over there this morning?
“MR. CROMER: We called the roll this morning and thought that he would be here by this time. Now that’s the only remedy we have is to have the subpoena issued and it shows a return on it.
“THE COURT: I understand that. You have to show some effort on your part to get him here. You wait until you need him and you want me to stop this case while you go looking for him. I don’t think I can do that. I’ll have to insist that you go forward.
“MR. CROMER: We except. We rest, Your Honor.”

Under the captions of “Supplemental Documents Together With Explanation” and “Supplemental Documents Explanation” at the conclusion of brief of counsel for' appellant is the following paragraph:

“Although not included in the record on appeal, appellant has specifically requested that appellant’s counsel include in this brief a photocopy of appellant’s petition for writ of habeas corpus. Counsel realizes that the proceedings are different from this appeal. Yet, counsel feels a duty to grant appellant’s request. It is the appellant’s life which is in the balance. Appellant has requested his counsel to include the petition in order that ‘the Court might understand what has really gone on.’ ”

Immediately thereafter in said brief, are copies of two separate pro se petitions of this appellant as petitioner and his trial attorney as respondent, which petitions are captioned “Petition for Writ of Habeas Corpus,” each filed with the Clerk of the Wilcox County Circuit Court, one filed on February 11, 1983, and the other on February 16, 1983, which petitions are substantially, if not precisely, the same. The petition contains averments of failure on the part of petitioner’s trial attorney to “perform his duty to see that his client received a fair and impartial trial” and includes the following paragraph:

“The petitioner ask that [his trial attorney] return the money paid to him back to the state and the taxpayers for breach of trust and the petitioner ask the court order [his trial attorney] to show cause for his neglect to his client and pay punitive damages totaling the sum of $200,-000.00.”

Included also in the petition are averments that “petitioner requested a change of venue, because there were a lot of publicity about him and the said charge, but, [his trial attorney] made no effort to enter a motion for his request.” The petition also avers that, “the petitioner want the defendant [appellant’s trial attorney] fired from case and to release all materials pertaining to the petitioner charge and trial,” and that petitioner “requested to have a continue to allow the witnesses to be present, but, the defendant [appellant’s trial attorney] refused to get one.” The petition contains an allegation also that “there were jury tampering in with the selection of jurors, but, [appellant’s trial counsel] refused to ask [the trial judge] to declare the verdict a mistrial.”

We were at first disposed to ignore in this opinion the references to the “Petition for writ of habeas corpus” as they are not germane to this appeal, but we have concluded that fairness to all concerned requires our inclusion of such references, which regrettably will result in a more lengthy opinion than otherwise.

Appellant’s counsel makes a strong argument to the effect that the trial court should have continued or suspended the trial for a sufficient length of time for the appearance of John Chapman, the subpoenaed witness. He argues that “as a result of the ruling of the court, Counsel was unable to show conclusively how the Dan-dridges’ identification was tainted by someone suggesting to them that it was Archie Peoples.” We now proceed to consider the testimony of the Dandridges as to their identification of the defendant as the alleged robber and as to whether their “identification was tainted by someone suggesting to them that it was Archie Peoples.”

Mrs. Dandridge, 68 years of age, testified that after 10:00 P.M. on the night of the robbery, she was in bed and heard a knock at the door. She went to the door and was told by someone from the outside that “his wife was having a baby,” then she opened the door, and the man at the door told her that “he wanted a spread,” then he followed her out of the living room into the children’s bedroom and gave him the spread, then the man told her “to hurry up, that his wife was bleeding.” She testified:

“Q. Now as you were walking out of the children’s room, did anything else happen? Did anything happen?
“A. I walked out of the children’s room and he demanded money.
“Q. So as you were walking out of the children’s room you heard—
“A. (Interposing) He throwed the spread down.
“Q. What did the voice say?
“A. ‘Give me your money.’ I said, ‘You going to do me that way? My own color going to do me that way?’ That’s the word I spoke to him.
“Q. All right. And what happened after that?
“A. He just asked for the money and demanded the money and he pulled back his coat.
“A. He pulled the coat back like this on the right side. He had that sawed-off shotgun under the coat.
“Q. So was this gun pointed at you?
“A. That’s right. He had it pointed at me. When he demanded the money, he told me to tie my husband up.
“Q. So did you tie your husband up?
“A. I had to tie him. I’m going to tell it like it was. I tied him up.
“Q. Did your husband give him the money?
“A. He had his hands tied. He reached under his pillow and gave him the pocketbook and he took it out and throwed the pocket book there on the bed.
“Q. So what was your husband doing, was he sitting on the bed?
“A. Sitting on the bed.
“Q. So after you saw your husband give this person his money, what happened after that?
“A. I told him, I said, ‘You’ve got the money, why don’t you go on.’ That’s the time he went out the door. When he went out the door, he came back and he busted the latch off the door. I didn’t let him in that time.
“Q. When the person went out the door, what did you do?
“A. I went back right behind him and latched my door, but I didn’t fix it like I generally fix it. He just busted the latch out and came on back.
“Q. This person came back inside your house?
“A. Yes. He brought another man with him.”

The witness further testified that the man, who took the money and went out the door and returned with another man, took the shotgun from the wall of the house (not the shotgun he had the time he entered the house) and the two men left. She identified the defendant as the first of the two men. She testified:

“Q. You said you got a good look at this person?
“A. That’s right.
“Q. Have you seen that person since then?
“A. Yes, sir; I see him today.
“Q. Where is he?
“A. Right over there.
“Q. You are certain that’s the person that came into your house that night?
“A. I’m certain.
“Q. You have no problems with that at all?
“A. I ain’t got no doubts about it.
“Q. Where were you when you learned or you heard the knock on the door?
“A. I was in my bed.
“Q. He [her husband] was in the bed, too?
“A. He was too.
“Q. Did he hear the knock at the door?
“A. I don’t know whether he did, but I did.
“Q. But you think he was asleep?
“A. He was probably asleep. I don’t know whether he was or not.
“Q. Did he get up when you went to the door?
“A. Nobody got up but me. I went to the door.
“Q. Did you have any lights on in the house at this time?
“A. I had a light on in my room.
“Q. How long did all this take, if you recall?
“A. Didn’t take long.
“Q. Ten minutes or fifteen minutes?
■ “A. I wouldn’t know about that.
“Q. I mean, your best judgment.
“A. Probably be ten or fifteen minutes. I don’t know.
“Q. (Continuing): Did you know the Defendant’s brother?
“A. No, I don’t know none of them.
“Q. How did you know it looked like his brother?
“A. I just said it looked that way.
“Q. Oh. But you said some of your children said that it was him?
“A. My children didn’t tell me that. I know it was him. My children ain’t told me that.”

Mr. Gafford Dandridge, 72 years of age, testified at length and in detail as to the incident, particularly as to the taking of the money. He had gone into another room of the house at the time of the taking of the shotgun on the wall. The witness testified:

“Q. Did you report this robbery?
“A. After they called the police.
“Q. Who called the police?
“A. My daughter, Darleen, walked up to Thomas’ to the Thomas house and Twilly was the man who called.
“Q. All right. Now the law come out to your house; is that right?
“A. They came.
“Q. Do you remember the officer that came out there?
“A. When they came out there, they asked me who it was.
“Q. Do you know what officer came out to your house?
“A. Ido.
“Q. What was his name?
“A. I don’t know his name, but Mr. Mo-ton back there and the other one back there.
“Q. So Officer Moton came to your house?
“A. Yes.
“Q. Did you describe the person that was in your house with this sawed-off shotgun that demanded money from you?
“A. I knowed the boy.
“Q. You knew who the person was?
“A. I knew the person, but it took me a good while to place just exactly who he was. I knowed his face, but I had to wait a little while before I could just say definitely who he were.
“Q. In other words, you knew the name of the person?
“A. I knew the name. After I placed him, then I knew his name..
“Q. How long did it take you to place this person?
“A. Didn’t take me so awfully long.
“Q. Were you able to place the person that night when the Sheriff first came? Were you able to place the person that night when the Sheriff first came to your house? .
“A. I told him it was Archie Peoples.
“Q. When did you tell him that?
“A. That night and then I told him, I said, ‘Let me study over this thing and let me make sure.’ I said, ‘You come back in the morning.’
“Q. About what time of night was this, do you know?
“A. Somewhere between ten and ten thirty. I think it was about ten fifteen when I first looked at the clock.
“Q. What time was it when the Sheriff came to your house?
“A. It was about 15 minutes later.
“Q. And did they come back Sunday morning?
“A. Came back early Sunday morning.
“Q. And who came back?
“A. Mr. Moton, and I told him, I said, ‘It was Archie Peoples.’
“Q. You are absolutely sure this was Archie Peoples?
“A. I made sure it was Archie Peoples.
“Q. How long have you been knowing him?
“A. When he was a little boy I hauled him to school.
“Q. About how old was he when you first hauled him to school?
“A. I wouldn’t know, but it was something like that then.
“Q. And you’ve been knowing him since that time?
“A. How’s that?
“Q. You’ve been knowing him since that time?
“A. I seed him occasionally.
“Q. You used to haul him to school?
“A. Yes.
“Q. Do you still work — are you still driving a school bus?
“A. That’s right.
“Q. And you are telling this Court that this man sitting right here is the man—
“A. (Interposing) That’s the man right there, Archie Peoples.”

Deputy Willie L. Moton testified on the call of the defendant. He had with him a copy of the report of the incident made by him. On direct examination, he testified:

“Q. And in this report did you say that,
‘A vague description of the suspect was given at the time’? Was that the first night?
“A. That’s the first night.
“Q. All right. And then you have entered on your report, ‘11-22-81,’ which was the next day; is that right?
“A. Yes.
“Q. At approximately 9:30 A.M. Now you again — did you go back to the Dan-dridge family at that time?
“A. Yes, sir, I did.
“Q. And you say the Dandridge family was contacted again by this writer and was given the names of Eddie Moore, black male, and Archie Peoples, as the ones who had robbed him.
“A. That’s right.
“Q. And also, did you add, ‘Lonnie James Abrahams, black male,’ also as suspects?
“A. (No response).
“Q. Along with a black female that was traveling with him?
“A. That’s right.
“Q. Did you give these names to Mr. Dandridge?
“A. No, I did not.
“Q. What does that mean right there?
“A. That means he gave me — he told me the names.
“Q. It says, ‘Was contacted by this writer.’ Now you contacted him and was given the names?
“A. Yes, sir.
“Q. You gave them those names?
“A. No.
“Q. You are saying he gave you these names?
“A. That’s right.
“Q. You got here that he was contacted by you. You are the writer of this report; is that right?
“A. Yes, sir.
“Q. And on the first night he gave you a vague description; is that correct?
“A. On the first night he told me, he said he knew the man, but he couldn’t call the name. He told me to come back the next morning and he would talk with me again about it.
“Q. Did you go back the next morning.
“A. I went back the next morning.
“Q. Did you ever show him any pictures and all for him to identify?
“A. I did at a later date after he was arrested because we didn’t have a picture.
“Q. How long after this time did you show him these pictures?
“A. It was on the 22nd of January, 1982.
“Q. Did you show him any pictures other than the pictures of Archie Peoples?
“A. Yes, sir.
“Q. How many others do you recall?
“A. Five other pictures.
“Q. Did both Mr. and Mr. [which we construe as Mrs.] Dandridge identify him?
“A. Mrs. Dandridge identified it second.
“Q. That was her second choice?
“A. Yes, sir.”

On cross-examination by the State, the witness testified:

“Q. Which choice was Mr. Dandridge’s?
“A. Mr. Dandridge identified him as his number one choice.
“Q. So Mr. Dandridge didn’t have any problem in choosing which one of these five photos?
“A. No.
“Q. And the one that Mr. Dandridge chose on his first attempt was that of Archie Peoples?
“A. That’s right.
“Q. Now isn’t it a fact that before you left Mr. Dandridge’s house that night, that he gave you the name?
“A. He did tell me.
“Q. What name did he give you?
“A. Archie Peoples.
“Q. That night?
“A. That night.
“Q. And isn’t it a fact that he told you or said to you, ‘Come back in the morning after I study on it a little bit?’
“A. That’s what he told me, to come back in the morning. He said, T don’t want to tell you nothing I don’t know for sure.’
“Q. So even though he gave you a name, he told you to come back so he could be definite; is that right?
“A. That’s right.
“Q. And you came back the next day?
“A. I did.
“Q. What time?
“A. Approximately 9:30.
“Q. Did you talk to Mr. Dandridge?
“A. I did.
“Q. What did he tell you?
“A. He told me that it was the man that had the gun and it was Archie Peoples.
“Q. He was sure of that?

On redirect examination, Officer Moton testified:

“Q. Did you ever make a statement to Mr. Peoples that the description didn’t fit him? That there was no way to identify him?
“A. No, sir.
“Q. That it was too vague a description?
“A. No, sir; I did not. Mr. Peoples and I had very few conversations.”

We are inclined to agree with the appellant that it was made known to the trial court that the expected testimony of the absent witness was not cumulative of the testimony witnesses as to an alibi, but that such testimony “was expected to discredit the identifications of the defendant.” However, we are unable to find any basis for a conclusion that it would or could have substantially discredited the identification of the defendant by either of the eyewitnesses to the incident. They were positive in their identification of him. Furthermore, they were subjected to extensive and intensive cross-examination that would have revealed any weakness in their testimony as to their identification of defendant. Moreover, the defendant had the benefit of the testimony of Deputy Moton, as to what the eyewitnesses of the robbery said less than an hour after the robbery and what they said the next morning, which should have removed any reasonable doubt as to the accuracy of their identification of the defendant. We are convinced that the trial court was well within the province of its judicial discretion in overruling defendant’s motion for a continuance or a suspension of the trial until further opportunity had been afforded defendant to produce, by judicial process or otherwise, the absent witness. There is agreement between the parties on appeal that generally such a motion is addressed to the sound discretion of the trial court, as shown by the cases cited by the parties. Smith v. State, Ala.Cr.App., 368 So.2d 298 (1978), cert. denied, 368 So.2d 305 and Goodrum v. State, Ala.Cr.App., 402 So.2d 1103 (1981), cited by appellant; Smith v. State, supra, Stewart v. State, Ala.Cr.App., 398 So.2d 369 (1981); Smith v. State, supra, and Pugh v. State, Ala.Cr.App., 376 So.2d 1135 (1979), cited by appellee.

The only other issue presented by appellant is thus stated in appellant’s brief:

“The trial court abused its discretion and inflicted excessive, cruel, and unusual punishment upon the defendant in its sentencing the defendant.”

The transcript shows that at the sentence hearing the court was informed that the defendant had had a conviction in Chicago in 1966 and that there had been other charges against him in court in Chicago, Ill., in Jefferson County, Alabama, and in Mar-engo County, Alabama, but the court made it known that there was not sufficient evidence brought to the attention of the court that would entitle the State to proceed against the defendant under the Habitual Felony Offenders Act. The remainder of the sentence hearing is as follows:

“Now I’ve explained to him, Mr. Bonner, that he does not have the right to proceed on those at this time by reason that they are premature. Now I’ve dismissed that for that reason, but still preserving his right to file it at the proper time.
“MR. BONNER: Yes, sir, Your Honor. First, the defendant would like to move for a mistrial and/or a new trial based on ineffective counsel in the prior proceeding.
“THE COURT: All right. The Court will deny that motion. Mr. [defendant’s appointed trial counsel] is competent counsel. He’s tried many cases and I’m familiar with his record over the years connected with both prosecution and defense in criminal cases.
“MR. BONNER: I would also move for mistrial based on the grounds that there is tampering with the Grand Jury, in the selection of the Grand Jury.
“MR. SULLIVAN: Are you talking about the Grand Jury or the jury?
“MR. BONNER: The jury.
“THE COURT: As far as the Grand Jury is concerned, having entered a general plea to the charge of not guilty, he’s waived any right to challenge the Grand Jury. That’s a pretrial motion.
“MR. BONNER: Yes, sir.
“THE COURT: That would be denied. Now likewise the composition of the Petit Jury that tried the case, that’s part of the record in this case and will be subject to review on appeal and that’s likewise denied.
“MR. BONNER: Yes, sir. Then, Your Honor, considering that it appears to me that there was some circumstantial evidence used and also that the Defendant was a contractor in Chicago, Illinois, that he’s married and has three children [naming one of the age of twelve, another of the age of ten and another of the age of five], that the Defendant would request that the Court be lenient in this situation.
“THE COURT: In reviewing this record, leniency is not indicated. Is there anything further?
“MR. BONNER: Do you have anything to say?
“MR. PEOPLES: I was contracting and I came down to brick my father’s house and that’s what I was doing since 1974. I’ve been self-employed as a contractor. I do all phases of residential buildings, and kinds of repairs or what have you.
“THE COURT: You’ve been doing some things since ’74 besides contracting. Between 1967 and ’81 you had five arrests in the State of Illinois. ’81 and ’82 you had four arrests in the State of Alabama. It seems like you spend a whole — you don’t spend a whole lot of time in the contracting business.
“Is there anything further from the State?
“MR. SULLIVAN: Judge, we would request a substantial sentence in this case. These were two elderly black individuals who Were tied up and robbed of in effect their life’s possession at that time which totaled $271. It was a very bad situation for those two individuals and because of that and his history, we would request a substantial sentence against Mr. Peoples. “THE COURT: All right. The Defendant having been found guilty of robbery in the first degree and sentence on said verdict deferred, he’s accordingly adjudged to be guilty and as punishment for this offense, he is sentenced to the penitentiary of Alabama for life.
“Now if you give notice of appeal, he can take it on up.
“MR. BONNER: Yes, sir.
“THE COURT: That will be duly entered.
“MR. BONNER: We would like to give notice of appeal, Your Honor.
“THE COURT: All right. The sentence being longer than 20 years, bond is not indicated.
“Now, Mr. Bonner, you are appointed to represent the Defendant on appeal.
“(Whereupon the proceedings concluded this date).”

Appellant’s contention that the cause should be remanded for another sentence hearing is not well taken, in our opinion.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur, except BOWEN, P.J., who concurs in the result only.


source: Caselaw Access Project

author: JOHN D. SNODGRASS, Circuit Judge.

license: Public Domain

text:
    James Earl THOMAS v. STATE.
    3 Div. 553.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    James Curtiss Bernard, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   JOHN D. SNODGRASS, Circuit Judge.

The defendant was convicted for three counts of criminal possession of a forged instrument and sentenced to fifteen years’ imprisonment to run consecutively on each count.

I

The evidence adduced by the state tended to show that appellant, Denise Parker, Robin Parker, and Belinda Sue White formed a conspiracy to make some “quick money.” Robin Parker, at the direction of appellant, obtained a duplicate driver’s license bearing the name of Sharon Lindsey. She gave the license to appellant. Appellant and Robin Parker later took Ms. White to the courthouse in Opelika, gave her a birth certificate in the name of Sharon Lindsey, and told her to get a duplicate driver’s license with it. She, too, gave the duplicate license to appellant.

Later, appellant, Ms. White and Robin Parker sorted about a hundred Pensions and Security checks drawn in the amount of one hundred forty-eight dollars and bearing the name of Sharon Lindsey. The checks were sorted into good and bad piles depending on whether they were made out correctly. Appellant, Ms. White, Robin Parker, and Denise Parker then cut out the checks with a hammer and a cutting tool.

The following night they all drove to Montgomery. Ms. White went into a Super Foods Store and took one of the checks they had cut along with the driver’s license she had gotten and a social security card appellant had given her bearing the name of Sharon Lindsey. She forged Sharon Lindsey’s name on the back of the check and used it to pay for some merchandise. She gave the remaining balance to Denise Parker. Ms. White followed the same procedure at two Winn-Dixie Food Stores and at ten or eleven other stores. She and Denise Parker then checked into the Days Inn for the night.-

In the meantime, Robin Parker and appellant went to Gayfers, where appellant instructed Robin to purchase a coat for fifty dollars. She cashed a forged check and gave appellant the balance. They followed the same or a similar procedure at a number of other stores in Montgomery before driving to Birmingham for the night. Appellant registered them at the Econo-Travel Motel in Birmingham under the name of Lanny Rhyne.

They all returned to Denise Parker’s apartment in Phenix City the next night. Robin Parker burned the driver’s license and social security card and received five hundred dollars in cash from appellant. Denise Parker and Ms. White also received payment of some money in cash but appellant retained most of it.

Other witnesses for the state included Ted Payne, an investigator for the Alabama Bureau of Investigation, who testified that appellant, after being advised of his Miranda rights, told him he was also known as Lanny Rhyne. Appellant signed a Consent to Search Waiver Form, and a bottle of opaque used by printers was found in his truck. Appellant also consented to his room being searched and in it the police found an assortment of order books for printing paper, an order book for determining how to mix inks, a wrapper for printing paper, part of a printing apparatus, an assortment of pieces of paper cut out of address labels with the type asterisks found on the counterfeit checks, a piece of paper with the address of 701 Fountain Street on it (the address of the checks), check stubs with the name Lanny Rhyne on them, a check stub from a Pensions and Security check issued to Denise Parker and a pill vial bearing the name of Denise Parker. Appellant told the police he was a printer and explained how to use magnetic ink so that the checks would go through the bank computer.

II

Initially, appellant argues that the evidence is insufficient to support the verdict because the conviction rests on the uncorroborated testimony of an accomplice, contrary to the provisions of Section 12-21-222, Code of Alabama 1975.

The question we must answer is whether the testimony, excluding that of accomplices Denise Parker, Robin Parker and Belinda Sue White, legitimately tends to connect appellant with the crime charged in the indictment. That is the test of the sufficiency of the evidence necessary to corroborate the testimony of an accomplice. Section 12-21-222, Code of Alabama 1975; Ex Parte Senn, 344 So.2d 192 (Ala.1977); Staton v. State, 397 So.2d 227 (Ala.Cr.App.1981).

Viewing the evidence in this case, we find at least five factors which, when combined, corroborate the accomplices’ testimony and tend to connect appellant with the crime charged.

First, appellant himself testified that he used the alias Lanny Rhyne. Marion White of the Econo-Travel Motel in Birmingham testified that a Lanny Rhyne registered at the motel on December 18, 1981, with one other person. Robin Parker had testified earlier that she and appellant rode a bus to Birmingham and stayed at this motel after cashing checks in Montgomery.

Second, Sharon Lindsey testified that she and appellant were friends.

Third, Carol Curlee, a latent print expert with the Alabama Bureau of Investigation, testified that certain fingerprints on the checks could have been made by no one other than appellant.

Fourth, Louis Miller, an investigator with the Dothan Police Department, testified that appellant used a similar check forging scheme in Dothan.

Finally, a search of appellant’s apartment and truck revealed a bottle of opaque, order books for printing paper, order books for mixing inks, a printing apparatus, pieces of paper cut out of address labels with asterisks of the same type as those used on the forged checks, a check stub from Pensions and Security issued to Denise Parker and a pill vial with her name on it.

After carefully reviewing all the evidence, we find that appellant’s conviction was not had on the uncorroborated testimony of an accomplice. Corroborative evidence need not “be strong, nor sufficient of itself to support the conviction, the criterion being that it legitimately tends to connect the accused with the offense.” Moore v. State, 30 Ala.App. 304, 307, 5 So.2d 644 (1941).

Ill

Appellant also contends that the court committed reversible error by allowing his prior conviction to be mentioned during the redirect examination of state’s witness, Ted Payne, an investigator for the Alabama Bureau of Investigation. We quote from the record:

“Q Why was the bond twenty thousand dollars?
“A Because we knew that James had a connection in Rochester, New York, and we knew that he had a previous conviction, and we felt that he may leave.
“MR. JOHNSON: Your Honor, I object to that.
“THE COURT: Sustained. That is stricken, ladies and gentlemen, anything about any previous conviction. They have a right to show, though, why his bond may have been higher than another bond.”

As can be seen from the record the only objection came after the answer to the question. Where a question is answered before an objection is made, the objection comes too late and the court’s ruling will not be declared in error without a motion to exclude and an adverse ruling. Hobbs v. State, 401 So.2d 276 (Ala.Cr.App.1981). In the case at bar there was neither a motion to exclude nor an adverse ruling and thus nothing for this court to review.

IV

Appellant further contends that argument by the prosecutor within the hearing of the jury after appellant’s objection had been sustained constitutes reversible error. The record indicates that the circuit judge asked Ms. Brooks to state her grounds as to the relevancy of her question by saying: “I sustain the objection unless it has some relevancy to that.” Appellant did not at that point object to this being argued before the jury.

The general rule is that improper argument of counsel is not grounds for a new trial or the subject of review on appeal unless the complaining party has moved that the offending remark be excluded from the jury’s consideration. The trial judge is under no duty to exclude improper argument. See § 12-22-241, Code of Alabama 1975, and comments thereto.

We have considered appellant’s remaining argument, that the three indictments against him were not properly consolidated for trial, and hold this argument is without merit, since he and counsel agreed on the record to the consolidation.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is hereby affirmed.

The foregoing opinion was prepared by the Honorable JOHN D. SNODGRASS, Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; the court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.


text:
    Willie Morris SMITH v. STATE.
    3 Div. 796.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.

      Willie Morris Smith, pro se.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

An instrument in writing and dated the 13th day of March, 1983, was styled “Willie Morris Smith, petitioner, vs. the State of Alabama, respondent, Petition for Writ of Habeas Corpus.” Under head of “statement of ease” it is averred that on or about December 8,1975, the petitioner was arrested and charged with the November 21, 1975, robbery and assault with intent to murder of a Clifford A. St. John, Sr. On February 9, 1976, the petitioner was indicted by the Grand Jury of Montgomery County, Alabama, on Cases # 76-192 and 76-193. On February 17, 1976, the petitioner was arraigned and trial was set for April 13,1976, on Case # 76-193, and April 15 on Case # 76-192. The petitioner was tried by a jury, and convicted on both indictments. On Case # 76-193 sentenced to 20 years’ imprisonment, and “life” on Case # 76-192.

Under heading of “allegations” the paper states that he was not taken before a magistrate immediately after being arrested, was held incommunicado, and was deprived of the right to counsel prior to interrogation; that he was committed by false evidence, a coerced confession, and action of a grand jury which was unconstitutionally selected and impanelled; and that he was deprived of his Miranda rights.

The paper requested that the court grant the petitioner a new trial. On March 31, 1983, the motion for a writ of habeas corpus was dismissed. On April 7, 1983, notice of appeal was given. Code of Alabama, 1975, Section 15-21-8, provides that the judge to whom the application for a “writ of habeas corpus is made must grant the same without delay, unless it appears from the petition itself or from the documents thereto annexed that the person imprisoned or restrained is not entitled to the benefits of the writ under the provisions of” chapter 21. Code of Alabama, 1975, Section 15-21-4, provides for some of the contents of the petition. The requirements of Section 15-21-4 are not met by the statements in the petition in this record. When a petition for a writ of habeas corpus shows on its face that if all the statements of fact contained in the petition were true, the petitioner would not be entitled to a writ of habeas corpus, it is not error to deny the petition. It appears from the petition in this case that the petitioner is imprisoned under sentences of the Circuit Court of Montgomery County, rendered on the 13th day of April, 1976, and on the 15th day of April, 1976.

Habeas corpus is not the correct remedy to correct errors and irregularities in a trial in a court of competent jurisdiction. We hold that under the facts shown by the record in this case the trial court did not err to the prejudice of the petitioner when it dismissed his petition. The petitioner has wholly failed to state facts entitling him to the issuance of a writ of habeas corpus, or comply with the requirements as set out in Section 15-21-4, supra. Code of Alabama, 1975, Sec. 15-21-8, 15 — 21—4; Collins v. State, Ala.Cr.App., 424 So.2d 693; Luker v. State, Ala.Cr.App., 424 So.2d 662; O’Such v. State, Ala.Cr.App., 423 So.2d 317; Woodard v. State, Ala.Cr.App., 426 So.2d 524.

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.


author: COLE, RANDALL L., Circuit Judge.

text:
    Rodney Robert SPANN v. STATE.
    4 Div. 20.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.

      C. Lawson Little, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   COLE, RANDALL L., Circuit Judge.

This appeal is from a conviction of driving under the influence of a controlled substance. The appellant was sentenced to one year in the county jail. This conviction results from a de novo jury trial in the circuit court.

At the appellant’s trial, Houston County deputy sheriff Jerry Hunt testified that on the night of November 14, 1981, he observed an automobile parked on the shoulder of Highway 84 seven miles west of Dothan. The car’s engine was not running but its headlights were on. Deputy Hunt approached the car and found the appellant seated behind the wheel with his head down as if he were asleep. A girl was lying on the front seat with her head in the appellant’s lap. The keys were in the ignition.

Deputy Hunt aroused the appellant by tapping on the window several times; he then asked appellant for identification, and requested him to step out of the car. Deputy Hunt testified that the appellant was unsteady on his feet and that his speech was slurred. The officer charged the appellant with driving under the influence of alcohol, and transported him to the county jail. The charge was later changed to driving under the influence of a controlled substance.

After taking the automobile to the sheriff’s office, officers made a routine inventory search which uncovered a plastic bag containing green vegetable material identified as marijuana, a partially burned hand-rolled cigarette also identified as marijuana, and twenty-five small white pills identified as quaaludes, a controlled substance.

A photoelectric intoximeter (P.E.I.) test was administered to the appellant, indicating a blood alcohol content of .04 percent. A laboratory analyst from the State Department of Forensic Science testified at trial that the consumption of quaaludes will cause one’s speech to be slurred, make body control difficult, and cause sleepiness. He also testified that when alcohol is taken in combination with such depressant drugs, the effects of both drugs are compounded.

I

The appellant’s first argument in support of reversal is that his arrest was unlawful because Deputy Hunt, the arresting officer, had not completed the minimum training requirements prescribed by the Peace Officers Standards and Training Act. This act provides that peace officers shall have completed 240 hours of formal police training at the time of their employment or within nine months thereafter, and should an officer fail to complete such training, his appointment as a peace officer shall be null and void. Section 36-21-46, Code of Alabama 1975.

It is undisputed that Deputy Hunt had not completed the required training although he had served as a deputy for more than a year at the time of appellant’s arrest. It follows that his appointment as a deputy was a nullity at the time he arrested the appellant. This fact, however, does not render the appellant’s arrest unlawful, for the law recognizes that one who acts without authority but under color of right is a de facto officer, and the official acts of a de facto officer are valid. Malone v. State, 406 So.2d 1060 (Ala.Cr.App.1981). Deputy Hunt was acting under color of right and his arrest of the appellant was valid as an official act of a de facto officer.

II

The appellant’s next claim of error is that the evidence is insufficient to support the conviction. Specifically, the appellant contends that the state failed to prove that he operated the vehicle or that he was in actual physical control of it. The appellant was charged and convicted under Section 32-5A-191, Code of Alabama 1975, which makes it unlawful for a person to “drive or be in actual physical control of any vehicle” while under the influence of alcohol or drugs. The appellant’s conviction under this section can be sustained by sufficient proof that the appellant either was driving or was in actual physical control of the vehicle. While proof may be lacking that the appellant drove the vehicle on the occasion in question, the evidence is sufficient and convincing that he was in actual physical control of it. The elements of proof necessary to establish actual physical control were enumerated recently by this court as follows:

“1. Active or constructive possession of the vehicle’s ignition keys by the person charged or, in the alternative, proof that such a key is not required for the vehicle’s operation;
“2. Position of the person charged in the driver’s seat, behind the steering wheel, and in such condition that, except for the intoxication, he or she is physically capable of starting the engine and causing the vehicle to move; and
“3. A vehicle that is operable to some extent.”

Key v. Town of Kinsey, 424 So.2d 701 (Ala.Cr.App.1982). Each of these elements was proved in the present case by substantial evidence.

Ill

The appellant’s final ground for attacking his conviction is that the arrest was unlawful because (1) Deputy Hunt did not have probable cause to approach the stopped automobile and (2) Deputy Hunt did not see an offense committed in his presence.

Whether an officer must have probable cause to believe that an individual has committed an offense in order to approach that individual in the manner established by the facts of this case was addressed by this court in Atchley v. State, 393 So.2d 1034, 1044 (Ala.Cr.App.1981) wherein the court stated:

“Our reading of the facts in the instant case leads us to the conclusion that appellant was not ‘stopped’ or seized within the meaning of the Fourth Amendment ... at the point when the officers approached him as he slept in the parked car and asked him for identification and questions as to his activities. There is no concrete indication that the officers physically pulled the appellant out of the car or grasped him in such a manner as to prevent him from leaving the scene. And, while the tone of Officer Yarbrough’s voice is, of course, unclear from the record, it does appear that he was only requesting appellant to produce some identification, and explain why he was sleeping in a parked car on a downtown street after midnight. There were certainly no weapons produced by the officers, and indeed the only real show of authority by them appears to have been that they were dressed in their official uniforms. Under these circumstances, we hold that there was no ‘stop’ or seizure, but a reasonable inquiry under the circumstances shown by this record.”

We hold that Deputy Hunt’s initial encounter with the appellant was not a stop or seizure and that no probable cause was necessary. During this encounter, Deputy Hunt observed the commission of an offense in his presence; that is, the deputy observed the appellant’s actual physical control of a vehicle while under the influence of alcohol or drugs. Under these circumstances, the appellant’s arrest was lawful and proper.

The court having considered the appellant’s claims of error and finding the claims to be without merit, IT IS ADJUDGED that the conviction should be, and it is hereby, affirmed.

The foregoing opinion was prepared by the Honorable Randall L. Cole, Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; the court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Calvin Lamar WARD v. STATE.
    4 Div. 70.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    C.R. Lewis of Lewis & Brackin, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

The appellant, Calvin Lamar Ward, was indicted for “intentionally damaging a building of Betty Ward, by starting or maintaining a fire or causing an explosion, in violation of § 13A-7-42 Code of Alabama 1975.” The jury found appellant “guilty as charged” in the indictment, and the trial judge set sentence at fifteen years’ imprisonment. From the overruling of appellant’s two motions for a new trial, the appellant prosecutes this appeal.

Prior to the reception of any testimony defense counsel made a motion to exclude certain evidence, which he styled a “motion in limine.” Defense counsel advised the court that two fires occurred at Betty Ward’s residence, one on November 2,1981, in which the kitchen was damaged and the other on November 25, 1981, in which the house was totally destroyed. Defense counsel argued that the two fires were not related and requested that no evidence of the November 2, 1981, fire be allowed since appellant was charged with the fire that occurred on November 25, 1981. The trial court declined to rule on defense counsel’s motion until this issue came up at trial.

During the questioning of the first witness at trial, further argument was heard on said motion in a hearing outside the presence of the jury. After hearing argument from defense counsel and the prosecution, the trial court overruled said motion and the prosecution was then allowed to elicit testimony as to the earlier fire.

Betty Ward, appellant’s wife, testified that she and appellant had been living together since their re-marriage in 1971 and were living together at the time of the trial. She testified that she and her husband had contacted a builder about re-building their home after the fire that destroyed their home on November 25, 1981.

Stanley Early testified that he was the manager of “The Associates,” a lending institution. He testified that appellant had three loans with his company. The first loan was for $24,809 which was secured by a mortgage on appellant’s home. Appellant’s wife also signed the loan. “The Associates” made another loan to appellant and his wife for $40,500. A third loan for $410 was also made to appellant. Mr. Early testified that appellant was delinquent on his payments.

Beverly Crawford testified that she worked for appellant at the Dothan Truck Stop. While discussing the bad financial situation of the truck stop, Ms. Crawford stated that appellant told her that he “was going to have to do something, he had to get some money quick.” She said he told her that if she saw any orange flames behind her parents’ home, not to bother calling the fire department because it would be his house. Appellant also told Ms. Crawford to give one Frankie Brannon some money.

Frankie Brannon testified that appellant contacted him about burning his house. Mr. Brannon stated that he and appellant, along with Johnny Frank Spain and Greg Woods, went to K-Mart, where appellant bought a torch that appellant wanted them to use in setting the fire. Appellant promised to pay him $450 to burn the house. Mr. Brannon testified exactly how he set the house on fire. Mr. Brannon stated that the day after the fire on November 25, 1981, a waitress at the Dothan Truck Stop gave him fifty dollars. He stated he later saw appellant, who gave him one hundred dollars and told him he “did a fine job.”

Sergeant Mike Gilley of the Houston County Sheriff’s Department testified that he took a statement from appellant after the November 25, 1981, fire. Sergeant Gil-ley stated that appellant told him he saw Frankie Brannon and two boys at K-Mart the night of the second fire. Appellant also told him that he did not give Mr. Brannon any money.

At trial, Sergeant Gilley read into evidence a tape-recorded conversation between appellant and Shirley Brannon, wife of Frankie Brannon. In this conversation, Mrs. Brannon told appellant that her husband was going to talk to the fire marshal if appellant did not send him money. Appellant responded by telling Mrs. Brannon that he would take care of Frankie and would hire a lawyer for him. Appellant told her to tell Frankie to “Stick to his story” and “Keep it quiet.”

Greg Woods testified that he went with Frankie Brannon and Johnny Frank Spain to K-Mart on November 25,1981, and there met appellant. Appellant and Brannon went into K-Mart and appellant bought a propane torch. Mr. Woods then described how later that night he dropped Brannon and Spain off at appellant’s house with a jug of gasoline. The next day he went with Spain and Brannon to the Dothan Truck Stop where Brannon was paid fifty dollars.

Malinda Dickens testified that she was employed at the Dothan Truck Stop on November 25, 1981, and that the following day, Brannon came in, told her to call appellant, and that appellant told her to give Brannon fifty dollars.

Fred Gulledge, a home builder, testified that he had been contacted by appellant after the November 25, 1981, fire about building a house.

Alex Peaden testified that appellant told him prior to November 25, 1981, that he was “needing money.” Appellant asked him to set up an accident where Peaden would run a stop sign and hit appellant so that appellant could sue Peaden’s employer, Brungart Equipment Company. Mr. Peaden stated that appellant told him “he was going to get money one way or the other” and that “he didn’t care how he had to do it, but, he’d do it.” Appellant said, “If he had to burn something or do something he would do it.”

Thomas Shirley with the State Fire Marshal’s Office testified that he investigated the November 25, 1981, fire. He testified that the burn pattern was indicative of flammable liquids and there were no shorts or problems in any of the wiring. He stated that the timber in the house showed signs of having been eaten by termites.

Mr. Shirley stated that he also investigated the financial situation of appellant and his wife and found that they were heavily in debt. He also found that the deed to the property on which their house was located was in Mrs. Ward’s name. However, the insurance on the house and the mortgage were in both Mrs. Ward’s and appellant’s names.

Jim Leonard, an insurance adjustor, testified that he estimated the damage done to appellant’s house by the November 2, 1981, fire. He testified that the insurance company paid $12,432 less a hundred dollar deductible for this loss. As to the fire that occurred on November 25, 1981, the insurance company paid $62,336.

Appellant contends that the trial court erred in failing to exclude testimony of the prior unrelated fire of November 2, 1981, at his and his wife’s residence. Appellant contends that since no evidence was offered connecting either appellant or his wife with the first fire, the trial court erred in overruling his “motion in limine,” or in the alternative, his motion for new trial. Appellant relies on Moreland v. State, 373 So.2d 1259 (Ala.Cr.App.1979), which states:

“of a person for the alleged commission of a particular crime, evidence of other acts which of themselves constitute distinct and independent offenses is not admissible.... [BJefore evidence of a second fire is introduced, there must be some legitimate evidence which would at least furnish a reasonable inference of the involvement of the accused.”
(citations omitted)

Moreland, supra, at 1261.

Appellant cites to this court a correct proposition of law, but one that is inapplicable to the case at bar. Unlike Moreland, the State in the case sub judice never introduced evidence showing directly or by inference that the first fire on November 2, 1981, was the result of criminal activity. Furthermore, there was no argument by the prosecution implying the same. As such, the prior fire cannot be said to constitute an “offense” to which the general exclusionary rule applies.

The trial court is afforded broad discretion in passing on the admissibility of evidence, and its determination will not be disturbed without a clear showing of abuse. United States v. Dothard, 666 F.2d 498 (11th Cir.1982).

Appellant further contends that his conviction should not stand because of the conduct of Mr. Valeska (the assistant district attorney who prosecuted the case) subsequent to his trial and motions for new trial. The record, as supplemented pursuant to Rule 10(f), A.R.A.P., shows that in closing argument to the jury, Mr. Valeska made a statement assuring the jury that Frank Brannon, appellant’s co-conspirator and chief witness against him, would be prosecuted to the fullest extent of the law. Mr. Valeska’s statement was that “Frankie Brannon faces the Habitual Offender Law in the State of Alabama ... we have made him no promises ... Frankie Brannon will get his day in court; Spain and Woods have already had theirs ... he will be prosecuted ... you can take my word that he will be prosecuted.”

The supplemented record also shows that said Frank Brannon was charged with second degree arson. Subsequent to appellant’s trial, Mr. Brannon pleaded guilty to the charge against him and was sentenced to five years in the penitentiary. However, on October 27,1982, Mr. Brannon’s sentence was set aside after it was brought to the attention of the court that Mr. Brannon had been improperly sentenced since he was subject to the provisions of the Habitual Felony Offender Act. Ala.Code § 13A-5-9 (Supp.1981); Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). Thereafter, on February 24, 1983, the indictment charging Frank Brannon with second degree arson was nol-prossed on motion of the state.

Appellant argues that the above statement of Mr. Valeska was made to bolster the credibility of Frank Brannon, a twice convicted felon. Furthermore, since defense counsel had no way to determine whether Mr. Valeska’s promise would be carried out, there were no grounds on which to object to the prosecutor’s statement. We disagree.

The argument to the jury set out above was improper in the first place since Mr. Valeska' clearly argued facts not in evidence. No evidence was ever introduced at trial concerning Mr. Brannon’s fate after the completion of appellant’s trial. The test of a legitimate argument is that whatever is based on facts in evidence is within the scope of proper comment in argument to the jury. Carroll v. State, 405 So.2d 163 (Ala.Cr.App.1981). Since no objection was initially raised to this improper comment at trial, the issue of whether Mr. Valeska’s promise was ever carried out is not preserved for review. Moore v. State, 415 So.2d 1210 (Ala.Cr.App.1982).

A decision on a motion for a new trial rests largely within the discretion of the trial court, and, in reviewing such decision, this court will indulge every presumption in favor of the correctness thereof. Woodard v. State, Ala.Cr.App., 401 So.2d 300.

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none. The judgment of conviction is affirmed.

Since his conviction, he was involved in an automobile accident in which he received serious and permanent brain damage to the extent that he has been declared by the Probate Court of Houston County to be completely incompetent and has to have personal help and supervision at all times. In short, he is of unsound mind. His wife has been appointed guardian of his person and estate.

A petition was filed with the Circuit Court of Houston County seeking to reduce his sentence from 15 years to 10 years, and Judge Storey is now without jurisdiction to give him any relief because he has lost jurisdiction of the case. The hearing was held before Judge Storey in which he made the following findings:

“(5) That it is the finding and judgment of this Court that the Defendant, Calvin Lamar Ward, received injuries to his brain on October 7,1982, which have rendered him of unsound mind and incapable of taking care of himself or conducting or managing his affairs. It is the further finding and judgment of this Court that Defendant’s brain damage is probably permanent and that the Defendant requires the constant attention of a competent person.
“(6) That it appears to the Court that the Defendant would not comprehend or understand why he is incarcerated or the fact that he was incarcerated.
“(7) That it is the Judgment and finding of this Court that the Defendant is totally incompetent both mentally and physically.
“(8) That under the facts and circumstances of this case, the Court finds that due to the injuries sustained by the Defendant, his present mental condition, and the improbable chances of any meaningful improvement of his condition, incarceration of the Defendant would most likely not be in the best interest of the State of Alabama and to allow the Defendant to be placed on probation would not be incompatible with the welfare of society.”

Judge Storey has filed in this court an order indicating that, if this case is remanded to the Circuit Court of Houston County, Alabama, steps will be taken to reduce his original sentence of 15 years to 10 years or less and place him on probation in the custody of his legally-appointed guardian.

The ends of justice would be best served by this court remanding this case to the Circuit Court of Houston County, so that court will be re-invested with jurisdiction, power and authority to deal with the merits of this case and to impose a sentence, to the end that this insane man will not be incarcerated in the penitentiary.

JUDGMENT OF CONVICTION AFFIRMED; CAUSE REMANDED FOR SENTENCING.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Ralph Edward BIGHAMES v. STATE.
    6 Div. 54.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and R. David Christy, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

Ralph Edward Bighames, the appellant, was indicted and convicted for rape in the first degree. Sentence was life imprisonment. Three issues are raised on appeal.

I

Bighames argues that the trial judge erred in allowing evidence of prior rape. Under the identity exception to the general exclusionary rule prohibiting the admission of other or collateral crimes as substantive evidence of the guilt of the accused, the prior crime is not relevant to prove identity unless both that and the now-charged crime are “signature crimes” having the accused’s mark and the peculiarly distinctive modus operandi so that they may be said to be the work of the same person. Thomas v. State, 409 So.2d 955, 957 (Ala.Cr.App.1981); C. Gamble, McElroy’s Alabama Evidence, Section 69.01(8) (3rd ed. 1977).

Bighames was charged with the rape of a single individual. This offense occurred on November 29,1981, when Bighames, Sylvester Gosha, and an unidentified third individual abducted two young females from the campus of the University of Alabama in Birmingham. Both young women were raped and sexually assaulted in a particularly degrading manner. At Bighames’ trial, the judge allowed the State to prove that two days before this offense Bighames had also participated in the abduction and rape of two other young women from the U.A.B. campus. Because the similarity of the two offenses is not questioned, we need not enumerate the details of each offense in order to demonstrate their correspondence and Bighames’ particular “signature” in each offense. We do note that it is hard to imagine more identical offenses.

Bighames argues that the prior rapes were not admissible to prove his identity because the trial judge limited the purpose of these other offenses to showing intent or a pattern of conduct. The basis for this issue is found in the fact that initially the trial judge instructed the jury that the pri- or rapes were admissible on the issue of identity but, in his oral charge, he stated that the offenses were for the purpose of intent.

During the trial, the judge repeatedly instructed the jury that the prior rapes went to the issue of identification. Before admitting the testimony of one of the victims of the prior rapes, the judge instructed the jury that the testimony was going to be admitted for a “very limited purpose .... only for the purpose of your consideration for identification or a possible plan or pattern known as modus operandi, a plan or pattern. It comes to you under two aspects, one for identification, the other for plan or pattern.” When the judge later admitted fingerprint evidence linking Big-hames to the prior incident, he again charged that the evidence was being admitted “only for the limited purpose” and “only as to the question of the identification or pattern or scheme. And that’s the only reason that comes in.”

However, in his oral instructions to the jury at the end of the trial, the judge charged that the evidence of the other offenses was admissible on the issue of intent.

“Now, this is the third time I’ve said this, so you all know it well .... I told you when it first came up, when she first testified, that it plays no part in the guilt or innocence of the defendant in this case except it is and the law says that it can be introduced to show intent ... or to show a pattern of conduct.... But I only remind you of what I’ve said before.” (emphasis added)

No objection was taken to this portion of the judge’s oral charge.

Evidence that the accused has committed other rapes in a novel or peculiar manner is clearly admissible to show the identity of the now-charged offense. McElroy, Section 70.01(22)(b). However, since the crime of rape carries no specific intent, the “intent exception” to the general rule excluding evidence of other offenses is generally inapplicable. McElroy, Section 70.-01(22)(d).

Bighames’ argument that the judge’s instructions precluded the admission of the other offenses must be rejected. The testimony concerning the other rapes was properly admitted during the trial on the issue of identity. That evidence was also admissible to show that both offenses were committed pursuant to a common plan or scheme. McElroy, Section 70.01(22)(c), citing Summers v. State, 33 Ala.App. 358, 36 So.2d 571 (1947), reversed on other grounds, 251 Ala. 38, 36 So.2d 574 (1948). The judge’s instructions in charging the jury did not render that properly admitted evidence inadmissible. A trial court will not be placed in error for assigning the wrong reason for a proper ruling, if that ruling is correct for any reason. Harnage v. State, 290 Ala. 142, 144, 274 So.2d 352 (1972); Nichols v. State, 276 Ala. 209, 213, 160 So.2d 619 (1964); Nettles v. State, 222 Ala. 236, 237, 132 So. 41 (1931); Walker v. State, 416 So.2d 1083, 1092-93 (Ala.Cr.App.1982).

Although instructions should be harmonious and not inconsistent, conflicting, or contradictory, conflicting and inconsistent instructions are not necessarily prejudicial. 24B C.J.S. Criminal Law, Section 1922(4) at 170 (1962). “Where instructions given to the jury for their guidance present contradictory and conflicting rules which are unexplained, and where following one would or might lead to a different result than would obtain by following the other, the instructions are inherently defective.” 75 Am.Jur.2d Trial, Section 628 (1974).

Here, the fact that the trial judge mistakenly substituted the word “intent” for “identity” in his oral charge must only be viewed as an inadvertent error which did not cause prejudice. Considering this particular error within the context of the oral charge, and guided by the application of common sense, it is clear to this Court that no injury occurred to Bighames. It has long been the law in this state that “(w)here a portion of the oral charge is erroneous or misleading, the whole charge may be looked to, and the entire charge must be construed together to see if there be reversible error.” Harris v. State, 412 So.2d 1278, 1281 (Ala.Cr.App.1982). Here, the trial judge specifically told the jury that he was “reminding” them of the instructions he had previously given them. Moreover, in his oral charge he never instructed the jury that they should consider the evidence of the prior rapes only on the issue of intent.

Finally, we note that this error was not preserved for review. Ex parte Allen v. State, 414 So.2d 993 (Ala.1982). The mistake occurred in the court’s oral charge to which defense counsel did not object. Since this issue was not raised at trial, it cannot be argued on appeal. Knight v. State, 273 Ala. 480, 487, 142 So.2d 899 (1962); Moore v. State, 415 So.2d 1210, 1217 (Ala.Cr.App.1982).

II

The introduction of testimony of Bighames’ absence from Alabama following the crime and his arrest in California and the trial judge’s instructions on flight was not error. This issue is also not preserved for review because no objection was made to evidence of the arrest in California or to the instructions on flight. It is well settled that flight is a circumstance which the jury may consider even where the conduct of the defendant tending to show flight is weak and inconclusive, Tiner v. State, 279 Ala. 126, 134, 182 So.2d 859 (1966); Tate v. State, 346 So.2d 515, 520 (Ala.Cr.App.1977); Chancellor v. State, 38 Ala.App. 89, 91, 80 So.2d 313, cert. denied, 262 Ala. 700, 80 So.2d 315 (1954); McElroy, Section 190.01.

III

The final argument is that the trial judge committed reversible error in admitting into evidence Bighames’ fingerprint card because the technician who made the card could not positively identify Bighames as the individual whose prints she took. It is also argued that this same error was committed in the admission of the fingerprint card of Gosha, Bighames' accomplice.

The fingerprint cards were used to link Bighames and Gosha to the prior rapes committed on November 27th. On appeal, the State argues that the cards were properly admitted as a business record and for that reason the predicate for their admission did not include the positive identification of the accused by the individual making the fingerprint card.

The general rule is that the identification expert must have personal knowledge of the person whose fingerprints are on the fingerprint card before that witness can testify that the card bears the fingerprints of a specific individual. People v. Zirbes, 6 Cal.2d 425, 57 P.2d 1319, 1322 (1936). Otherwise, the expert’s testimony constitutes hearsay and the admission of the fingerprint card is improper. Zirbes, supra. See also State v. Seales, 245 Iowa 1074, 65 N.W.2d 448 (1954); People v. Hardnett, 45 Mich.App. 247, 206 N.W.2d 470 (1973).

Although fingerprint records may properly be admitted as business records, State v. Rives, 220 Kan. 141, 551 P.2d 788 (1976); State v. Medley, 11 Wash.App. 491, 524 P.2d 466 (1974), at trial it does not appear that the prosecution specifically sought to qualify Bighames’ and Gosha’s fingerprint cards as business records under Alabama Code Section 12-21-43 (1975).

The testimony at trial reveals that Birmingham Police Officer Norma K. Hunt testified that in December of 1981 she was working in the City Jail where she “booked people in, helped with processing the prisoners, also fingerprinted, job applicants.” She identified Bighames’ fingerprint cards as “fingerprint cards or palm prints that I made. I signed my name and dated it.” She testified that the person whose fingerprints she took signed the card and the card was signed “Ralph Bighames”. After getting the prints, Officer Hunt delivered them to Joy Lance, the technician in the I.D. Bureau.

Officer Móntala Roshada testified to the same effect with regard to Gosha’s fingerprints. Both officers candidly stated that they had no independent recollection of the individual whom they fingerprinted.

The apparent basis for applying the business record exception in this case is found in the testimony of fingerprint technician Joy Lance. She stated that she retrieved the fingerprint cards from “our alphabetical file that is maintained in the Bureau.” Although the predicate could most certainly have been laid in a more definite and explicit manner, a good argument can be made that the record contains sufficient information to authorize the admission of the fingerprint cards as business records under Section 12-21-43. Additionally, we note that the fingerprint card was signed “Ralph Bighames”. “The general rule is well settled that identity of name imports, prima facie, identity of person.” Esco v. State, 278 Ala. 641, 643, 179 So.2d 766 (1965). See also Freeman v. Hall, 286 Ala. 161, 165, 238 So.2d 330 (1970). No evidence was presented to rebut this presumption. McCord v. State, 373 So.2d 1242, 1244 (Ala.Cr.App.1979); Williams v. State, 364 So.2d 717, 719 (Ala.Cr.App.1978); Dunaway v. State, 50 Ala.App. 200, 202, 278 So.2d 200, cert. denied, 291 Ala. 93, 278 So.2d 205 (1973).

Even if the admission of the fingerprint cards were improper, that error was harmless in view of the other evidence against Bighames. A.R.A.P. 45. See Little v. United States, 93 F.2d 401 (8th Cir.1937), cert. denied, 303 U.S. 644, 58 S.Ct. 643, 82 L.Ed. 1105 (1938), and Brown v. State, 55 Ala.App. 264, 314 So.2d 717, cert. denied, 294 Ala. 241, 314 So.2d 721 (1975), as authority for the proposition that the improper introduction of fingerprint evidence may constitute harmless error.

Here, Bighames and Gosha were positively identified by one of the victims of the prior rapes. (The other victim did not testify.) As in Brown, supra, the fingerprint card was “absolutely unnecessary” to the State’s case. The evidence against Big-hames was overwhelming. Our review of the record convinces us that the fingerprint card had no influence on the jury’s verdict.

Bighames is represented at trial and on appeal by diligent and experienced counsel who has preserved and protected Bighames’ constitutional rights at every stage of the proceedings. Despite his arguments to the contrary, we are convinced that Bighames received a fair trial. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Larry Dwight HOLLAND v. STATE.
    6 Div. 90.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Bill Fite, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted of theft in the second degree. Sentence was six years. Two issues are raised on appeal.

First, Holland argues that the criminal charges were brought against him solely for the purpose of collecting a debt. Holland worked for the victim, Zodiac Industries, as a truck driver. Expense money was advanced to the drivers before each trip. Holland obtained $580 from his employer by implying that he was going to use it for expenses during a business trip he was supposed to make.

Holland never made the proposed trip nor returned the money; instead, he left the state to look for other work. He testified that he intended to keep the money when it was given to him. He believed the company was indebted to him for that amount.

Holland’s claim that he is wrongfully being prosecuted for a debt is without merit since there was no contract liability upon which a debt could be based. His conduct amounts to a tortious act and not a breach of contract to pay a debt. A tor-tious act may be made the basis of a criminal prosecution. This prosecution does not arise out of the fact that Holland owed money; rather, it arose because he stole property in violation of § 13A-8-4, Code of Alabama 1975. Wright v. State, 421 So.2d 1324 (Ala.Cr.App.1982).

Holland next contends that several jury charges were improperly refused, re-suiting in reversible error. He did not object to the denial of his written charges prior to the jury’s retirement and, therefore, the issue is not properly before this court. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff’d, 414 So.2d 993 (Ala.1982).

The judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Arthur Lee GILES v. STATE.
    6 Div. 165.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.

      Walter W. Kennedy, III of Nash, Walker & Kennedy, P.A., Oneonta, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Arthur Lee Giles, was charged by an indictment returned against him by the Grand Jury of Blount County for a first degree assault of Annie M. Nelson. He entered a plea of not guilty, was found guilty of assault with intent to murder as charged in the indictment, and was duly sentenced to be imprisoned in the penitentiary for a term of twenty years. He appeals to this Court.

Appellant was at all proceedings in the trial court, and is in this Court represented by 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 the trial court erred in overruling his motion to exclude the evidence on the grounds that the state failed to prove the elements of the alleged offense beyond a reasonable doubt. Second, by charging the jury as follows: “When the assault is made with a deadly weapon in sufficient proximity to inflict a deadly wound, the law implies malice from the use of such instrument.” Third, in refusing to charge the jury on the lesser included offenses over defendant’s objection over the failure to do so.

State’s evidence tended to prove that Annie M. Nelson, on November 10, 1978, and for many years before, a person about eighty-nine years of age, lived in her home in the Rosa Community in Blount County, Alabama. That her son, Carl Nelson, his wife, Willene Nelson, her grandson, Tony Nelson, her little granddaughter, Brenda Nelson, and her little grandson, Charlie Nelson, all lived there in her home with her. That about two years before November 10, 1978, the appellant, Arthur Lee Giles, worked on the farm for her son, Carl Nelson. That on the night of November 10, 1978, her grandsons were asleep in their bedroom, her son, and his wife, and little daughter were asleep in their bedroom, and Annie M. Nelson was asleep in her bedroom, when at about three-thirty, A.M., Tony Nelson was awakened by the light in his bedroom being turned on, and he saw the appellant standing at the foot of his bed. That the appellant was asked to leave the house, and went out of the bedroom, and when Tony got out of the bed, and went near the door going onto the porch, the appellant said to him, “HERE,” and shot Tony Nelson in the chest; that Tony fell to the floor, and the appellant shot Tony again in the back of the neck while he was lying on the floor. That Tony got out of the house and under a truck where he heard several other shots fired from inside the house. That Annie M. Nelson was then shot in the face by the appellant when they both were standing in a few feet of each other in the house, and she still has a bullet in her neck. That Annie M. Nelson identified the appellant as the person who shot her. That Charlie Nelson saw the appellant when the appellant shot his grandmother, Annie M. Nelson, and Charlie then went into his father’s bedroom, and saw the appellant and one Aaron Jones come in the bedroom. The appellant had a gun in his hand, and Aaron Jones had a butcher knife in his hand. That the appellant, and Aaron Jones left the Nelson’s home in a car. The state rested its case. The appellant made a motion to exclude state’s evidence on the grounds that the state failed to make out a case against this defendant. The court overruled appellant s motion to exclude. The appellant offered no evidence in his behalf.

When a motion to exclude state’s evidence is made on the grounds that the state has failed to make out a prima facie case because the evidence is insufficient to support a finding of guilty beyond a reasonable doubt, it is the duty of the trial court to determine the sufficiency of the evidence to sustain a conviction under the indictment. In determining if the evidence of the state is sufficient to sustain a verdict, the trial court should consider only the evidence before the jury of the facts at the time the motion is made, and must consider it most favorably to the state. Where there is evidence from which the jury may by fair inference find the defendant guilty, the trial court should submit the case to the jury to determine the weight it will give the evidence, and this Court should not disturb the verdict.

We hold that under state’s evidence, and all reasonable inferences therefrom, the evidence in this case is sufficient to sustain a jury verdict of guilty of assault in the first degree as charged in the indictment, and that the trial court did not err to the prejudice of the appellant in overruling his motion to exclude state’s evidence. Hinds v. State, Ala.Cr.App., 423 So.2d 1382; Dolvin v. State, Ala., 391 So.2d 133; Barbee v. State, Ala.Cr.App., 395 So.2d 1128; Crumpton v. State, Ala.Cr.App., 402 So.2d 1081; Johnson v. State, Ala.Cr.App., 378 So.2d 1164, certiorari quashed, Ala., 378 So.2d 1173; Kelly v. State, Ala.Cr.App., 423 So.2d 343; Bozeman v. State, Ala.Cr.App., 401 So.2d 167, certiorari denied, Ala. 401 So.2d 171, certiorari denied, 454 U.S. 1058, 102 S.Ct. 606, 70 L.Ed.2d 595.

Appellant states in his brief, for the second reason why his conviction should be reversed, that the trial court erred to his prejudice when it charged the jury: “When the assault is made with a deadly weapon in sufficient proximity to inflict a deadly wound, the law implies malice from the use of such instrument.” Under the undisputed evidence the appellant shot Annie M. Nelson in the face with a gun. At the date of the trial she still had the bullet in her neck. The evidénce before the jury fully supports the jury’s finding that the shooting was with malice, and with the intent to kill. The court, in its oral charge, further explained to the jury the rebuttable nature of the presumptions, and instructed the jury that it was a question to be determined by the jury upon consideration of all the evidence.

We hold that under the facts in this case, and the oral charge of the court, the trial court did not err to the prejudice of the appellant in its oral charge to the jury. Ex parte Bayne, Ala., 375 So.2d 1239; Hall v. State, Ala.Cr.App., 348 So.2d 870, certiorari denied, Ala., 348 So.2d 875; Sommerville v. State, Ala.Cr.App., 361 So.2d 386, certiorari denied, Ala., 361 So.2d 389.

Appellant’s third contention in his brief is that the trial court erred to his prejudice when it refused to charge the jury on the lesser included offenses over defendant’s objection over the failure to do so. The defendant’s objection in the record before us states that: “Third, we object to the court’s failure to give jury charges on lesser and included offenses to the offense of assault with intent to murder. The Court: Namely? Mr. Kennedy: Assault and battery.” The objection was overruled. There are no requested, written charges made by the appellant to the trial court in this record, therefore there is nothing presented to this Court to decide. The correct way to review this issue is for the defendant to submit a written, requested charge concerning the matter omitted from the oral charge, assign his grounds for the objection, and object to the trial judge’s refusal to give his requested, written charge. Rule 14, Alabama Rules of Criminal Procedure, Temporary; Lidge v. State, Ala.Cr.App., 419 So.2d 610, certiorari denied, Ala., 419 So.2d 616; Ciervo v. State, Ala.Cr.App., 342 So.2d 394, certiorari denied, Ala., 342 So.2d 403; Winstead v. State, 53 Ala.App. 222, 298 So.2d 642, certiorari denied, 292 Ala. 761, 298 So.2d 646.

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, except HUBERT TAYLOR, J., who concurs in the result only.


author: SAM W. TAYLOR, Judge.

text:
    Ronald W. MORGAN v. STATE.
    8 Div. 916.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Randall Gladden, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and R. David Christy, Asst. Atty. Gen., for appel-lee.
   SAM W. TAYLOR, Judge.

Ronald W. Morgan was found guilty of burglary in the third degree and sentenced to imprisonment for 20 years and 1 day.

Appellant, a former employee, knew where the money was hidden at Audie’s Lounge when it could not be deposited on the weekend. The manager testified that appellant left with six or seven others when he closed up the joint. An uneasy feeling that night told him not to put the money where he usually put it. Leaving Audie’s after locking up, the manager again saw the appellant at a convenience store. The manager, still feeling uneasy, went back to Audie’s and searched through the place because he feared someone might have concealed himself in the lounge when he closed up. He found no one.

Later that same morning (at 3:46 a.m.), someone from the business next door called the police, saying they saw a car drive up by the side of Audie’s and shortly thereafter saw a light inside. As the police arrived they saw a man leave the building but when one of the officers identified himself, the man went back inside. They arranged for the police dispatcher to call Audie’s and talk the person into coming out. It was the appellant who said he had fallen asleep and had been there all night. They saw that a piece of plywood which had been attached over a window had been removed. It was testified that the particular area where the money was usually hidden, if left in the establishment overnight, appeared to have been ransacked. Everyone testified that appellant had no permission to be in Audie’s aftér closing.

I

Appellant first contends that the trial court erred in denying his motion for mistrial based on questions asked by the prosecution during cross-examination; these questions explored the circumstances under which appellant pleaded guilty to several prior offenses.

After a careful consideration of the relevant portions of the record, we find no merit in this issue. On direct examination, appellant was asked about his prior criminal record. He admitted pleading guilty to forgery, possession of a sawed-off shotgun and grand larceny. Then the transcript reveals the following exchange between appellant and his counsel:

“Q: You say you plead guilty all three times?
“A: Yes, sir.
“Q: Ronald, would you have plead guilty on this had you done it?
“A: If I had done it, the way the situation turned out, yes, sir.”

Appellant was obviously trying to show that since he had pleaded guilty to crimes in the past, he must not be guilty of the instant crime to which he chose to plead “not guilty.”

In its cross-examination of the appellant, the state properly rebutted evidence of his apparent honesty by establishing two points: First, it was shown that the Habitual Felony Offender Act was not in effect at the time appellant pleaded guilty to the earlier offenses and, second, it was shown that appellant’s previous larceny charge had been reduced from a robbery charge.

We must agree with the state’s conclusion that “there was no error in allowing the prosecutor to imply that the defendant had reasons less virtuous but more practical than his basic integrity for pleading not guilty to the instant indictment.” See, Terry v. State, 424 So.2d 710 (Ala.Cr.App.1982).

It is axiomatic that an accused is not allowed to prove good character by showing specific evidences of meritorious conduct. C. Gamble, McElroy’s Alabama Evidence, § 69.01(9) (3d ed. 1977).

By implying that appellant habitually confessed to those crimes for which he was responsible, appellant opened the door wide for the state to show appellant’s seemingly virtuous confessional tendency was in fact motivated by ulterior, self-serving reasons.

As articulated by this court in Wyrick v. State, 409 So.2d 969 (Ala.Cr.App.1981), the doctrine of curative admissibility provides that:

“If illegal evidence is introduced by one party and admitted, then the opponent has the right to introduce illegal evidence in rebuttal, even though the opponent failed to object to the initial introduction of illegal evidence.”

Thus, appellant cannot now be heard to complain about exploration of the issue of his character which he himself improperly injected into the trial.

II

The appellant contends the state failed to make out a prima facie case. The evidence is overwhelming to the conclusion that the appellant re-entered the premises after it was locked for the night. The fact of the vicinity of the hiding place for the day’s receipts being ransacked was evidence to be considered by the jury on the issue of intent to steal. We think there was “a gracious plenty” of evidence for the jury to convict.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.