source: Caselaw Access Project

author:
PER CURIAM.
      MADDOX, Justice

license: Public Domain

text:
    Ex parte Paul Edward MURRY. (In re Paul Edward Murry v. State of Alabama).
    82-743.
    Supreme Court of Alabama.
    July 13, 1984.
    Rehearing Denied Aug. 24, 1984.
    William W. Gobrecht, Montgomery, for petitioner.

      Charles A. Graddick, Atty. Gen., and Edward E. Carnes, Asst. Atty. Gen.; for respondent.
   PER CURIAM.

This is a death penalty case. The Court of Criminal Appeals affirmed petitioner’s conviction for capital murder and sentence of death. Petitioner asserts that the capital offense of murder of a police officer requires knowledge of the officer’s status and that a trial judge should not be allowed, under the sentencing provisions of the Alabama Criminal Code, to impose a sentence of death after a jury recommends life without parole.

Paul Edward Murry was indicted on February 5, 1982, the grand jury charging that he

“did intentionally cause the death of Mary Pearl McCord by shooting the said Mary Pearl McCord with a pistol while the said Mary Pearl McCord was on duty as a Police Officer for the City of Montgomery, Alabama or because of some official act or job-related act or performance of the said Mary Pearl McCord as a Police Officer for the City of Montgomery, Alabama, to-wit: because Mary Pearl McCord was attempting to arrest the said Paul Edward Murry ....”

Murry pleaded not guilty at his arraignment.

The case came to trial on May 17, 1982. On May 19 the jury pronounced Murry guilty of capital murder and reconvened immediately to deliberate on a sentence. The jury voted 11 to 1 to recommend life without parole. The trial judge conducted a presentence hearing on June 11 and entered a detailed sentence order on June 22, 1982, ordering that Murry be sentenced to death. The Court of Criminal Appeals affirmed the conviction and sentence, 455 So.2d 53 (Ala.Crim.App.1983), whereupon Murry petitioned this Court for a writ of certiorari to the Court of Criminal Appeals.

Murry states his first issue as follows: “whether the offense of the murder of a police officer who is in the performance of his duty requires proof of knowledge that the victim is in fact a police officer before the offense may be elevated to a capital one.” Murry made statements immediately after the incident and at trial that he did not know the people he shot were police officers, but thought they were trying to rob him. The trial judge refused to charge the jury that the offense of capital murder of a police officer required the defendant to know that the victim was a police officer on duty.

The statute under which Murry was convicted and sentenced is the 1981 capital offense statute. 1981 Acts of Alabama, Act No. 81-178; Code 1975, §§ 13A-5-39 through -59 (1982 replacement volume). He was indicted under the following provision of § 13A-5-40:

“(a) The following are capital offenses:
“(5) Murder of any police officer, sheriff, deputy, state trooper, federal law enforcement officer or any other state or federal peace officer of any kind, or prison or jail guard, while such officer or guard is on duty or because of some official or job-related act or performance of such officer or guard ...” [Emphasis added.]

This case squarely raises the issue of whether this statute requires that the accused know that the victim was a peace officer in order for the murder to be a capital offense.

Clearly, a murder “because of some official or job-related act” requires that the perpetrator know the victim is a peace officer and is or was performing an official act. A reading of § 13A-5-40 shows two similar offenses: murder of a public official which “stems from or is caused by or is related to [the victim’s] official position, act, or capacity,” § 13A-5-40(a)(ll); and murder of a witness “when the murder stems from, is caused by, or is related to the capacity or role of the victim as a witness,” § 13A-5-40(a)(14). The causal elements of these provisions require that the defendant have knowledge of the specified status or act and intend to murder the victim because of the status or act.

To determine whether the clause “while such officer or guard is on duty” similarly requires an intent to murder with knowledge that the victim is an officer on duty, or at least a reckless disregard of facts which should inform the offender of the victim’s status, we must examine the criminal code for an expression of legislative intent.

All of the capital offenses set out in § 13A-5-40(a) are murders. Section 13A-5-40(b) provides in part that “the terms ‘murder’ and ‘murder by the defendant' as used in this section to define capital offenses mean murder as defined in section 13A-6-2(a)(l), but not as defined in section 13A-6-2(a)(2) and (3).” Section 13A-6-2(a)(1) states that a person commits the crime of murder if, “[w]ith intent to cause the death of another person, he causes the death of that person or of another person.” Subdivision (2) pertains to recklessly engaging in conduct creating a grave risk of death, and subdivision (3) pertains to felony murder. Moreover, § 13A-6-2(b) provides in part that

“A person does not commit murder under subdivisions (a)(1) or (a)(2) of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself.”

A capital murder is therefore an intentional murder without legal provocation and including one of the elements of § 13A-5-40(a). The question before us is whether a mens rea in addition to the intent to murder, i.e., a culpable mental state regarding the status of a police officer on duty, is required in order for an intentional murder of a victim who is such an officer to sustain a capital conviction.

The Supreme Court of the United States, in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed.2d 288 (1952), reversed Morissette’s conviction for knowing conversion of United States property. The Court held that the trial court erred in refusing to submit the question of felonious intent to the jury. In the course of a thorough discussion of criminal intent and its place in the criminal law, the Court observed:

“Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.9 As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.
“9- Holmes, The Common Law, considers intent in the chapter on The Criminal Law, and earlier makes the pithy observation: 'Even a dog distinguishes between being stumbled over and being kicked.’ P. 3. Radin, Intent, Criminal, 8 Encyc.Soc.Sci. 126, 127, points out that in American law ‘mens rea is not so readily constituted from any. wrongful act’ as elsewhere."

Id., 342 U.S. at 251-252, 72 S.Ct. at 243-244. We turn to the Alabama Criminal Code to ascertain whether the legislature has created an offense without regard to criminal intent, as the State contends.

Section 13A-2-2 defines four culpable mental states: intent, knowledge, recklessness, ’ and criminal negligence. Section 13A-2-3 reads:

“The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If that conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, the offense is one of ‘strict liability.’ If a culpable mental state is required with respect to any material element of an offense, the offense is one of ‘mental culpability.’ ”

The second and third sentences of this section contradict each other, but it is clear that the question before us is whether capital murder of a police officer is a strict liability offense. This is so because the identity of the victim as a police officer is the only element distinguishing the capital offense from non-capital murder.

Section 13A-2-4 provides in part as follows:

“(a) When a statute defining an offense prescribes as an element thereof a specified culpable mental state, such mental state is presumed to apply to every element of the offense unless the context thereof indicates to the contrary.
“(b) Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability.”

This statute supports the construction of § 13A-5-40(a)(5) advanced by Murry for three reasons: (1) paragraph (a) suggests that the “intentional” element of the murder applies to the element of the capital offense that the victim was a police officer on duty; (2) the first sentence of paragraph (b) pertains to the extent that the “proscribed conduct,” murder punishable as a capital offense, “necessarily involves” a culpable mental state; and (3) the second sentence of paragraph (b) applies because § 13A-5-40(a)(5) says nothing “clearly indicating a legislative intent to impose strict liability,” such as “whether or not the defendant knew that the victim was a police officer on duty or intended to kill the victim for that reason.”

While the reasons we have listed as (1) and (3) in the previous paragraph are general rules of construction provided by the criminal code itself and tending to require a culpable mental state in addition to an intent to murder for a crime to be a capital offense rather than non-capital murder, reason (2) triggers an analysis more specific and more designed to resolve the issue on its merits. The question may be posed as, “Does a capital offense require a culpable mental state in addition to the intent to murder taken from the non-capital murder statute?”

The first approach is to survey the crimes deemed capital offenses in § 13A-5-40(a). The offenses numbered (1) through (4) and (8) prescribe capital offenses of “[mjurder by the defendant during [specified felonies] or an attempt thereof committed by the defendant.” These offenses clearly require additional culpable mental states: the felonious intent to kidnap, rob, rape, etc. Offense number (6) is murder while the defendant is under sentence of life imprisonment, and number (13) is murder by a defendant who has been convicted of murder within the previous 20 years. These two crimes address the recidivist or habitual offender, who is put on notice that he will be punished more harshly for subsequent offenses.

Offense number (7) is murder for profit or for hire, involving a particularly odious criminal intent. Offense number (9) includes murder during arson, similar to the first group of offenses above, and murder by means of explosives, an abnormally dangerous means which readily implies knowledge or at least recklessness on the part of the offender regarding the fact that he is at least potentially placing persons other than the intended victim in unreasonable danger. Offense number (10) requires multiple intentional murders. Offenses (11) and (14) were mentioned above as requiring intent to murder officials and witnesses because of their capacity or acts. Finally, offense number (12) is murder during an aircraft hijacking, which requires the intent to exert unlawful control over the aircraft.

All of these offenses, in short, require an element in addition to murder of which the defendant must have at least knowledge, and in most cases an additional criminal intent. Under the trial court’s refusal to instruct the jury that Murry had to know that the deceased was a police officer, Mur-ry was convicted of capital murder with no more of a mens rea requirement than that of the intent to kill in the non-capital murder statute. Although controverted, Mur-ry’s testimony was that he did not know the two he shot were police officers, but thought they were attempting to rob him.

The statute as applied by the trial court cannot have the effect of protecting police officers. If the defendant does not know the victim is a police officer, how is the escalation of the murder of a police officer to a capital offense supposed to deter him?

The state argues that the issue here is one of proof: the only time this issue is likely to arise is when an undercover, plainclothes police officer is shot while on duty. In such situations, argues the state, the assailant is likely to be the only surviving witness, and will of course testify that he did not know the victim was a police officer. We cannot speculate that the legislature intended to create a unique strict liability capital offense on the basis of this reasoning, especially not in this case, where the surviving officer, Burks, contradicted Murry’s testimony and said that both he and Officer McCord identified themselves as police.

The trial court submitted the questions of provocation, justification, and self-defense to the jury, so it might be said that the jury disbelieved Murry’s claim that he did not know the victims were police officers. It is just as possible, however, that the jury found that legal provocation existed but Murry’s use of deadly force was unwarranted or that his claim of self-defense could not stand because he did not retreat when he had the opportunity.

“[Cjriminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants.” Clements v. State, 370 So.2d 723, 725 (Ala.1979), citing Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). We are bound to resolve the ambiguity regarding the peace officer offense in Mur-ry’s favor, especially in light of the rules of construction found in the criminal code militating against the creation of strict liability offenses by implication.

Our conclusion that the legislature did not intend to create a strict liability capital offense is bolstered by the fact that this would be such an extreme change from prior law. Under prior law, a homicide by one resisting an unlawful arrest could not be more than manslaughter, unless the resistance was in enormous disproportion to the threatened injury. Dodd v. State, 251 Ala. 130, 36 So.2d 474 (1948); Spooney v. State, 217 Ala. 219, 115 So. 308 (1928); Brown v. State, 109 Ala. 70, 20 So. 103 (1895); Catrett v. State, 31 Ala.App. 326, 16 So.2d 725, cert. denied, 245 Ala. 336, 16 So.2d 727 (1944); Shine v. State, 44 Ala. App. 171, 204 So.2d 817 (1967). Under these authorities, if the officer did not disclose his authority, the arrest was not lawful. If the legislature intended to create a capital offense for what might have been limited to manslaughter under traditional law, it should have been more explicit.

We are mindful that the legislature in 1967 passed an act creating the crime of assault with a deadly instrument upon a police officer in performance of his duties:

“Whenever any peace officer or other law enforcement officer of this state or any political subdivision of this state shall be engaged in the active discharge of his lawful duty or duties, it shall be unlawful for any person to commit any assault with a deadly instrument upon such officer, and any person guilty of such assault with a deadly instrument shall be guilty of a felony, and upon conviction shall be imprisoned in the penitentiary for not less than two years nor more than twenty years.”

1967 Ala. Acts p. 1600, Act No. 746, § 3; Code 1940 (Recomp. 1958, 1973 eum.supp.), t. 14, § 374(20).

In McKinney v. State, 50 Ala.App. 271, 274, 278 So.2d 719, 722 (1973), cert. den., 291 Ala. 789, 278 So.2d 724, cert. den., 414 U.S. 1027, 94 S.Ct. 456, 38 L.Ed.2d 320, the Court of Criminal Appeals held that

“[t]o read into this statute the additional elements of scienter, murderous intent, and the use of the instrumentality in such manner as to reflect an evil intent, is unwarranted. The statute falls in the class of malum prohibitum and not ma-lum in se. It was enacted to protect a class of citizens engaged in ferreting out crime and in the enforcement of the criminal laws of the State and thereby for the ultimate protection of society.”

Without reaching the discrepancy between the opinion in McKinney that officers are protected without a knowledge requirement and our observation above to the contrary, we decline to follow the holding in McKinney in a death penalty case. The statute at issue in that case increased the punishment for assault with a deadly instrument against a police officer without a mens rea requirement other than that required for the ordinary crime of assault with a deadly instrument, but the increase in punishment was qualitatively different from that involved herein. Under the criminal code’s own presumptions against strict liability crimes, it would be a preposterous result to increase punishment, from a term of years or life with possibility of parole, to life without parole or the death penalty, with the sole difference being an element making no reference to the mental culpability of the defendant.

The United States Supreme Court, in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), reversed the death sentence of an accomplice to a robbery who had no intent to kill, insisting that the focus must be on the defendant’s culpability:

“American criminal law has long considered a defendant’s intention — and therefore his moral guilt — to be critical to ‘the degree of [his] criminal culpability,’ and the Court has found criminal penalties to be unconstitutionally excessive in the absence of intentional wrongdoing. ... The Court employed a similar approach in Godfrey v. Georgia, [446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398] reversing a death sentence based on the existence of an aggravating circumstance because the defendant’s crime did not reflect ‘a consciousness materially more “depraved” than that of any person guilty of murder.’ ”

Id., 102 S.Ct. at 3378 (citations omitted).

The Court in Enmund analyzed the felony murder statutes of the various states and concluded that “the current legislative judgment ... weighs on the side of rejecting capital punishment for the crime at issue.” Id., 102 S.Ct. at 3374. We have similarly analyzed the death penalty provisions of the states which have death penalty statutes. Thirty-two states have “murder of a peace officer” offenses similar to the one at issue here. Of these states, seventeen have statutes which require that the offender know, or in some cases “should know,” the status of the peace officer, and fifteen are silent on the subject. (See Appendix.)

Of the states which make no specific requirement of knowledge of the status of the victim as a peace officer, only Missouri has specifically ruled that no such requirement will be inferred. State v. Baker, 636 S.W.2d 902 (Mo.1982), cert. den., Baker v. Missouri, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983). The denial of certio-rari by the United States Supreme Court is at least some indication that that Court would not find the death penalty unconstitutional in a case such as the one before us, but it does not address the statutory construction issue to which we have referred above.

We decline to follow the reasoning of the Missouri Supreme Court whereby that court refused to interpret the statute to require that the accused know the victim to be a peace officer, basing its decision only on its conclusion that “[t]he evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant knew Erson was a police officer.” State v. Baker, supra, 636 S.W.2d at 907. Because the trier of fact was never asked to make a finding on the issue of knowledge, the possibility that such a finding would have been sustainable is irrelevant. Nor do we see the logic of holding that no finding of knowledge is required on the ground that such a finding could have been made in the case at bar. Moreover, the Missouri Supreme Court “decline[d] to address the un-scrutable [sic] question of mens rea, [citing] Morrisette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); [and] Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).” Id. The mens rea issue is the very heart of the case, especially under a statute such as we have here, where the only element differentiating the capital offense from non-capital murder is the identity of the victim.

Of the fifteen states, not including Alabama, which have statutory provisions regarding murder of a peace officer but making no mention of the perpetrator’s knowledge of the identity of the victim, thirteen include such provisions among the aggravating circumstances to be considered by the sentencer, not as elements of the offense of capital murder. Thus, the possibility of applying an element which makes no reference to criminal intent could only arise after the defendant has been convicted of a capital crime. Even assuming some of these states other than Missouri would refuse to infer a knowledge requirement, the identity of the victim as an aggravating circumstance is only one of the circumstances to be considered in deciding whether the defendant is to be punished by life imprisonment without parole (in most cases) or by death. This is unlike the situation in Alabama, where the offense is necessarily raised from a non-capital one to a capital one without any distinct criminal intent.

For the reasons discussed above, we hold that the trial court erred in failing to instruct the jury in accordance with Murry’s requested instructions that, in the event the jury found him guilty of murder, the murder could be raised to a capital offense only if Murry knew that the victim was a peace officer on duty. We note that the mens rea analysis above would allow an instruction that the offense could be raised to a capital one even if the State did not prove beyond a reasonable doubt that the defendant knew the victim was a peace officer, so long as the State proved a mentally culpable state regarding the victim’s status, such as reckless disregard of facts which should put the offender on notice that the victim was a peace officer. Without any such instruction, however, Murry has been convicted of a capital offense without proof of “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Enmund, v. Florida, supra. We cannot hold that the legislature intended to impose such a strict liability offense merely by implication.

Murry raises as a second issue the propriety of the trial court’s decision to raise his sentence from the jury’s recommendation of life without parole to a sentence of death. In view of our reversal of the judgment of conviction, we make no judgment whether such action was proper in this case. We do point out, however, that this Court recently affirmed such an increase in sentence in spite of a challenge on statutory construction and constitutional grounds. Ex parte Jones, 456 So.2d 380 (Ala.1984).

For the reasons stated, the judgment of the Court of Criminal Appeals is reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C.J., and JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

MADDOX, FAULKNER and ADAMS, JJ., dissent.

APPENDIX

“CM” means the quoted material is part of the definition of murder punishable as a capital offense; “AC” means the quoted material is a statutory aggravating circumstance to be considered during the sentencing phase of a trial.

States With a Knowledge Requirement

Arkansas: “... with the premeditated and deliberated purpose of causing the death of any law enforcement officer .... ” Ark.Stat.Ann. § 41-1501(l)(b) (1977). CM

California: “The victim was a peace officer ... and such defendant knew or reasonably should have known that such victim was a peace officer engaged in the performance of his duties _” Cal.Penal Code § 190.2(a)(7) (West Supp.1983). AC

Colorado: “He intentionally killed a person he knew to be a peace officer .... ” Colo.Rev.Stat. § 16-11-103(6)(c) (1978). AC

Idaho: “Any murder of any peace officer ... who was acting in the lawful discharge of an official duty, and was known or should have been known by the perpetrator of the murder to be an officer so acting ....” Idaho Code § 18-4003 (1979). CM

Illinois: “...the defendant knew or should have known that the murdered individual was a peace officer .... ” IlLRev. Stat. ch. 38, § 9-l(b)(l) (Supp.1982). CM

Louisiana: “When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties;” La.Rev.Stat.Ann. § 14.30(2) (West Supp.1983). CM

Mississippi: “... and with knowledge that the victim was a peace officer or fireman.” Miss.Code Ann. § 97-3-19(2)(a) (Supp.1983). CM

Nevada: “... and the defendant knew or reasonably should have known that the victim was a peace officer or fireman.” Nev. Rev.Stats. § 200.033(7) (1983). AC

New Hampshire: “... knowingly causes the death of: (a) A law enforcement officer acting in the line of duty;” N.H. Rev.Stat. Ann. § 630: l(I.)(a) (1974). CM

New York: “... and the defendant knew or reasonably should have known that the victim was a police officer;” N.Y. Penal Law § 125.27(l)(a)(i) (McKinney 1975). CM

Ohio: “The victim of the offense was a peace officer ... whom the offender had reasonable cause to know or knew to be such_” Ohio Rev.Code Ann. § 2929.-04(A)(6) (Page 1982). AC

Tennessee: “... and the defendant knew or reasonably should have known that such victim was a peace officer _” Tenn. Code Ann. § 39-2-203(i)(9) (1982). AC

Texas: “... and who the person knows is a peace officer or fireman;” Texas Penal Code § 19.03(a)(1) (Vernon 1974). CM

Utah: “... and the actor knew or reasonably should have known that the victim holds or has held that official position.” Utah Code Ann. § 76-5-202(l)(k) (Supp. 1983). CM

Vermont: “... any person known by the respondent to be a law enforcement officer ....” Vt.Stat.Ann. tit. 13, § 2303(c) (Supp.1983). CM

Virginia: “The willful, deliberate and premeditated killing of a law-enforcement officer ... when such killing is for the purpose of interfering with the performance of his official duties_” Va.Code § 18.2-31(f) (Supp.1983). CM

Washington: “... and the victim was known or reasonably should have been known by the person to be such at the time of the killing_” Wash.Rev.Code § 10.-95.020(1) (1983). CM

States Without a Knowledge Requirement

Connecticut: “Murder of [a law enforcement officer] while such victim was acting within the scope of his official duties .... ” Conn. Gen.Stat. § 53a-54b(l) (1983). CM

Delaware: “He recklessly causes the death of a law-enforcement officer ... while such officer is in the lawful performance of his duties _” Del. Code Ann. tit. 11, § 636(a)(4). CM

Georgia: “The offense of murder was committed against any peace officer ... while engaged in the performance of his official duties _” Ga.Code § 17-10-30(b)(8) (1982). AC

Indiana: “The victim of the murder was a ... law enforcement officer, and either (i) the victim was acting in the course of duty or (ii) the murder was motivated by an act the victim performed while acting in the course of duty.” Ind. Code Ann. § 35-50-2-9(b)(6) (Burns Supp.1983). AC

Kentucky: “The offender’s act of killing was intentional and the victim was a ... police officer ... engaged at the time of the act in the lawful performance of his duties.” Ky.Rev.Stat.Ann. § 532.-025(2)(a)(7) (Bobbs-Merrill Supp.1982). AC

Maryland: “The victim was a law enforcement officer who was murdered while in the performance of his duties.” Md. Ann. Code art. 27, § 413(d)(1) (1982). AC

Massachusetts: “[T]he murder was committed on a victim who was killed while serving in the performance of his official duties as one or more of the following: police officer _” Mass.Ann.Laws ch. 279, § 69(a)(1) (Michie/Law.Co-op.Supp.1983). AC

Missouri: “The capital murder was committed against any peace officer, corrections employee, or fireman while engaged in the performance of his official duty ....” Mo.Rev.Stat. § 565.012.2(8) (1978). AC

Montana: “The offense was deliberate homicide ... and the victim was a peace officer killed while performing his duty.” Mont. Code Ann. § 46-18-303(6) (1983). AC

New Mexico: “[T]he victim was a peace officer who was acting in the lawful discharge of an official duty when he was murdered.” N.M.Stat.Ann. § 31-20A-5(A). AC

North Carolina: “The capital felony was committed against a law-enforcement officer ... while engaged in the performance of his official duties or because of the exercise of his official duty.” N.C. Gen. Stat. § 15A-2000(e)(8) (Supp.1981). AC

Oklahoma: “The victim of the murder was a peace officer ... and such person was killed while in performance of official duty.” Okla.Stat. tit. 21, § 701.12(8) (1981). AC

Pennsylvania: “The victim was a ... peace officer ... who was killed in the performance of his duties.” 42 Pa.Cons. Stat.Ann. § 9711(d)(1) (Purdon 1982). AC

South Carolina: “The offense of murder was committed against any peace officer ... while engaged in the performance of his official duties.” S. C. Code Ann. § 16-3-20(C)(a)(7) (Law.Co-op.Supp.1983). AC

South Dakota: “The offense was committed against a law enforcement officer ... while engaged in the performance of his official duties.” S.D. Codified Laws Ann. § 23A-27A-1(7) (Supp.1983). AC

MADDOX, Justice

(dissenting).

I am of the opinion that the Court errs in holding that the § 13A-5-40(a)(5) capital offense requires the State to prove that the defendant knew the person he was murdering was a law enforcement officer on duty.

Applying principles of statutory construction, I conclude that the obvious purpose the legislature sought to obtain when it enacted § 13A-5-40(a)(5) was protection of law enforcement officers while in the performance of their duties.

Since the legislative intent behind § 13A-5-40(a)(5) is to protect law enforcement officers by providing severe punishment, even death, for anyone who murders an officer on duty, I am of the opinion that no knowledge requirement should be read into the law. The State should only be required to prove that a defendant intentionally killed a law enforcement officer while that officer was in the performance of his duty. To require more interferes with the protection of law enforcement officers which the legislature sought to provide.

We can take judicial knowledge of the fact that many police officers are killed while in the performance of their duties, and that many of these policemen perform their duties in plain clothes. The majority decision, which requires that the State prove beyond a reasonable doubt that the defendant knew at the time that his victim was a law enforcement officer, puts a burden on the State which the legislature did not impose and creates a problem of proof, especially in cases involving the murder of a policeman in plain clothes who is acting as an undercover officer. The only surviving witness to the situation that preceded the murder of a plain-clothes or undercover officer might be the murderer himself, who could always claim that he did not know he was murdering an officer. The officer would not be able to testify that he identified himself to the defendant, because the officer would be dead.

In the present case, there was a surviving eyewitness, Officer Burks, who did live to testify that he and Officer McCord had identified themselves to the defendant; however, that happened only because Officer Burks survived the gunshot wound the defendant inflicted on him. Had the defendant’s aim been better, he would have murdered two officers and how could the State, under those circumstances, prove that the defendant knew the two persons he killed were police officers performing their duty? Here, the State may be able to meet the burden placed upon it, but what about all those cases where there are no witnesses to prove the knowledge of the defendant? I believe the legislature was aware of this problem and deliberately did not put a knowledge requirement in the statute. I recognize that criminal statutes should be narrowly construed, but a strict construction rule should not be substituted for “common sense, precedent, and legislative history.” United States v. Standard Oil Co., 384 U.S. 224, 225, 86 S.Ct. 1427, 16 L.Ed.2d 492 (1966); accord, e.g., Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976). That is why the rule of strict construction does not require that the more narrow of two possible meanings be ascribed to words in a criminal statute. E.g. United States v. Cook, 384 U.S. 257, 262-263, 86 S.Ct. 1412, 1414-15, 16 L.Ed.2d 516 (1966); United States v. Alvillar, 575 F.2d 1316, 1320 (10th Cir.1978).

The canon of strict construction is but one of many rules of statutory construction, and as this Court itself has noted, “[a]ll rules for construing statutes must be regarded as subservient to the end of determining legislative intent.” State ex rel. Moore v. Strickland, 289 Ala. 488, 493, 268 So.2d 766, 770 (1972). The clear and obvious legislative intent behind § 13A-5-40(a)(5) is to protect all law enforcement officers by inflicting the supreme penalty on those who murder them while they are performing their duties. That intent can only be effectuated insofar as plain-clothes officers are concerned by not reading a status scienter requirement into the statute.

The United States Supreme Court has addressed a very similar issue concerning 18 U.S.C. § 111, the modern statute which prohibits obstructing or assaulting a federal officer. United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), involved a conviction under that statute which grew out of an assault on drug purchasers who turned out to be undercover narcotics agents. It was undisputed that defendants were unaware that their victims were federal officers. 420 U.S. at 674-675, 95 S.Ct. at 1258-1259. The trial court charged the jury that status scienter was not required, and the court of appeals reversed on that ground. Id., at 675, 95 S.Ct. at 1259. After determining that the purpose of the statute was to protect federal officers-, the Supreme Court reinstated the convictions, holding:

“We conclude, from all this, that in order to effectuate the congressional purpose of according maximum protection to federal officers by making prosecution for assaults upon them cognizable in the federal courts, § 111 cannot be construed as embodying an unexpressed requirement that an assailant be aware that his victim is a federal officer. All the statute requires is an intent to assault, not an intent to assault a federal officer. A contrary conclusion would give insufficient ‘protection to the agent enforcing an unpopular law, and none to the agent acting under cover.
“This interpretation poses no risk of unfairness to defendants. It is no snare for the unsuspecting. Although the perpetrator of a narcotics ‘rip-off,’ such as the one involved here, may be surprised to find that his intended victim is a federal officer in civilian apparel, he nonetheless knows from the very outset that his planned course of conduct is wrongful. The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected. In a case of this kind the offender takes his victim as he finds him. ...”

420 U.S. at 684, 685, 95 S.Ct. at 1263, 1264 (emphasis added) (footnote omitted).

Likewise, § 13A-5-40(a)(5) does not involve legitimate conduct which becomes unlawful solely because of the identity of the individual affected — murder is illegitimate conduct regardless of the victim’s identity. I would hold that “the offender takes his victim as he finds him.” Id., at 685, 95 S.Ct. at 1264. Consequently, I must respectfully dissent.

FAULKNER and ADAMS, JJ., concur.

      . Under the second sentence, if some material element does not require culpability, an offense is one of strict liability; under the third sentence, if any material element requires culpability, the offense is one of “mental culpability". The contradiction is illustrated by the offense at issue, where both intentional murder and status of the victim are material elements.

      . See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), in which the U.S. Supreme Court held that intent to rob will not support a felony-murder death sentence where the defendant was not present at the killing and had exhibited no intent to kill.

      . The four other states with a death penalty statute have "resisting arrest” or "escaping custody” capital offenses, but we do not deem these to present the mens rea problem of the "murder of a peace officer” type of offense. Ariz.Rev. Stat.Ann. § 13-703 (Supp.1983); Fla.Stat.Ann. §§ 782.04, 921.141(5)(e) (West Supp.1983); Neb. Rev.Stat. § 29-2523(l)(g) (1979); Wyo.Stat. §§ 6-2-101(a), 6-2-102(h)(v) (Supp.1983).

      . Under the Missouri statute, the identity of the victim is an aggravating circumstance. See Appendix.

      . The Supreme Court of North Carolina has held that both a "murder of a peace officer” and a "resisting arrest" aggravating circumstance could be submitted to the jury, because the former "looks to the underlying factual basis of defendant’s crime, the [latter] to defendant’s subjective motivation for his act.” State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788, 809 (1981).

        .Cf. the statutes in some states which require that the defendant "knew or reasonably should have known” the victim's status.


author: TYSON, Judge.

text:
    Paul Edward MURRY v. STATE of Alabama.
    3 Div. 604.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
   TYSON, Judge.

Reversed and Remanded for a new trial on authority of Paul Edward Murry, 455 So.2d 72 (Ala.1984).

REVERSED AND REMANDED FOR A NEW TRIAL.

All the Judges concur.


author: HARRIS, Judge. BOWEN, Presiding Judge,

text:
    Paul E. MURRY v. STATE.
    3 Div. 661.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Jan. 27, 1984 Alabama Supreme Court 83-204.

      William W. Gobrecht of Skinner & Go-brecht, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Paul Edward Murry was indicted by the Montgomery County Grand Jury for the attempted murder of Tony Burks, a police officer for the City of Montgomery. After a jury trial, the appellant was found “guilty as charged” and was sentenced to life imprisonment.

This case arises out of the same set of facts as found in Murry v. State, 455 So.2d 53 (Ala.Cr.App.1983), in which this court affirmed the appellant’s capital murder conviction and sentence of death for the murder of Montgomery Police Officer Mary Pearl McCord, Officer Burks’ police partner.

Officer Burks and Officer McCord were acting as undercover officers in the Vice and Narcotics Division of the Montgomery Police Department on January 5, 1982. They had been partners about two months and Officer McCord, a new police officer, was still undergoing training. On this particular day, both officers were dressed in plain street clothes and were driving in an unmarked police vehicle.

Officer Burks decided to drive down Traction Avenue, an area in the city of Montgomery where drug transactions were known to take place, to show Officer McCord the area. As they were driving slowly along Traction Avenue at about 6:00 p.m. that day, they saw a crowd of people on the right side of the street disperse immediately upon seeing their car. After passing the spot where the crowd once stood, they came upon a black male standing behind a parked car and holding several brown bags. He motioned for them to stop. Upon seeing this, Officers Burks and McCord remarked to each other that they “couldn’t believe this guy was trying to sell some drugs in a police car.” Officer Burks drove past the black male, stopped his car and backed up the car.

Officer McCord then got out of the unmarked car on the passenger side and said to appellant, “I can’t believe you’re trying to sell us some drugs in a police car. And you’re under arrest for possession of drugs.”

Officer Burks then got out of the car and observed Officer McCord and appellant with their guns drawn. Appellant turned toward Officer Burks and stated he would shoot Officer McCord if he (Burks) tried to shoot him. Officer Burks then drew his weapon and told appellant he was an investigator with the Montgomery Police Department and they had to “take him down.”

Soon thereafter while appellant was not looking, Officer Burks grabbed appellant’s wrist and a shot was fired. This shot, however, missed appellant and both officers. Appellant grabbed Officer Burks’ gun with his left hand. Officer McCord started backing away as appellant and Burks struggled. Several shots were fired by appellant and one by Officer Burks. Officer Burks yelled for Officer McCord to shoot but she never did. Appellant told Burks he was going to take him to a wooded area. Officer Burks then tripped appellant who lost his gun as he fell.

Officer Burks then began to run toward the unmarked car to get a shotgun, but before he got there, he was shot in the back. He fell behind appellant’s car, remaining conscious, and saw appellant run to a brown house nearby. Appellant returned and as he stood over Officer Burks, asked, “MF, you ain’t dead yet?” Appellant then dropped a gun at Burks’ feet, grabbed something off the ear trunk and ran back to the brown house. Officer Burks crawled to the police car, saw Officer McCord, who was unable to talk, on the driver’s side, and radioed for help. Officer Burks was shot in the wrist and in the lower back.

Appellant testified that he had gone to Traction Avenue on January 5, 1982, to do some gambling. He had just gotten his pistol out of the glove compartment to put in the car trunk when the officer’s patrol car drove up. Appellant stated that Burks jumped from the car with his pistol drawn. Appellant stated that he thought he was about to be robbed.

Appellant testified that he struggled with Officer Burks, and, during their struggle, they both fell to the ground. Upon falling to the ground, both men broke apart and Officer Burks got up and ran. Appellant admitted shooting Officer Burks in the back as he ran away. Appellant stated that neither Officer Burks nor Officer McCord ever told him they were police officers.

Appellant contends that the State’s evidence failed to establish a prima facie case of attempted murder. He argues that the State failed to prove beyond a reasonable doubt that he did not act in self-defense.

After reviewing the record, we find that no motion for acquittal was made either at the conclusion of the State’s evidence, at the conclusion of all the evidence or within thirty days after pronouncement of sentence. No motion for new trial was ever made. We also note that the sufficiency of the evidence was not challenged by a motion to exclude, a request for an affirmative charge, or a motion for directed verdict. Due to the absence of said motions, the issue concerning the sufficiency of the State’s evidence is not preserved for appellate review. Miller v. State, 423 So.2d 1377 (Ala.Cr.App.1982).

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.

AFFIRMED.

All the Judges concur.

BOWEN, P.J., concurs with opinion in which SAM TAYLOR, J., joins.

BOWEN, Presiding Judge,

concurring.

I am in complete agreement with the opinion written by the highly esteemed Judge Harris. I would only add that even if the issue of the sufficiency of the evidence had been preserved for review, that issue was properly submitted to the jury. The State made out a prima facie case of attempted murder. Even though Murry shot Burks in the back while the officer was unarmed, Murry claimed that he was acting in self-defense. Murry’s own testimony indicates that he shot Burks while the officer was running away from him. Even if the jury believed Murry’s story that the two police officers did not identify themselves, the jury could still have found that Murry had a duty to retreat which he never exercised and for that reason his claim of self-defense must fail. Whether' or not Murry was justified in shooting Officer Burks was for the jury to determine under the evidence in this case. Harris v. State, 347 So.2d 1363 (Ala.Cr.App.), cert. denied, 347 So.2d 1368 (Ala.1977). Whether Murry was in imminent danger at the time he fired was solely for the jury to decide. Lowery v. State, 103 Ala. 50, 15 So. 641 (1893). Murry’s credibility was for the jury. Kemp v. State, 278 Ala. 637, 179 So.2d 762 (1965); Warren v. State, 380 So.2d 305 (Ala.Cr.App.), cert. quashed, 380 So.2d 307 (Ala.1979). Where the evidence of self-defense is conflicting, as it was here, a jury question is presented. Streeter v. State, 278 Ala. 272, 177 So.2d 826 (1965); Moore v. State, 364 So.2d 411 (Ala.Cr.App.), cert. denied, Ex parte Moore, 364 So.2d 416 (Ala.1978).

      . The comment to A.R.Crim.P. Temp. 12 which became effective March 1, 1982, states that a motion for judgment of acquittal subsumes the motion for directed verdict, the motion for affirmative charge, and the demurrer to the evidence, which are abolished by this rule.


author: HARRIS, Judge.

text:
    Ronald Harvey PAULSON v. STATE.
    1 Div. 533.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Quashed July 27, 1984 Alabama Supreme Court 88-635.
    T. Jefferson Deen, III, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Ferris W. Stephens, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellant, Ronald Harvey Paulson, was indicted for forgery second degree by the Mobile County Grand Jury during its June, 1982, session. On December 8, 1982, he was found guilty as charged and was sentenced to ten years in the state penitentiary.

Kathleen Ann Paulson, appellant’s wife, was arrested on May 15, 1982, at Bel Air Mall in Mobile after giving Zales Jewelry Store a forged certified check for four thousand four hundred twenty-five dollars ($4,425.00). A search of her purse at the time of arrest produced three additional forged cashier’s checks, and a search of the car she was driving disclosed: one IBM typewriter Selectric II, one address box of Weston bond fluorescent white Commercial Guaranty Bank cashier’s checks, one Paymaster cheek writer, several hundred blank birth certificates, one trash bag with defective obliterated cashier’s checks, a cashier’s check on the American National Bank, one checkbook in the name of Ronald Paulson, the account on Citizens National Bank in Meridian, Mississippi.

Appellant was arrested four days later at Knollwood Hospital in Mobile.

Mrs. Paulson waived her privilege of testimonial exemption in return for a plea bargain entered into with the District Attorney. She testified that she and appellant were married in Livingston, Alabama, on May 14, 1982, the day before her arrest. On direct examination by the State she recounted events prior to the marriage.

According to Mrs. Paulson, she and appellant owned three businesses in Meridian, Mississippi, were over-extended and were in financial trouble. Appellant, a printer by profession, devised a scheme whereby the two of them would forge certified checks and with them obtain very expensive diamonds in Alabama. They would then return to Mississippi to sell them.

Appellant’s plan was that he would print the checks and that she would pass them. He convinced her that, as an ex-felon, someone might recognize him, but that, if she wore neutral colored clothing and a wig, she would be more difficult to identify. In furtherance of the conspiracy, they purchased an authentic cashier’s check to use as a model, special paper used to print checks, and a wig and clothing for her.

On May 13, the couple went to Goldstein Jewelry Store in Mobile, so that appellant could guide her through a trial run of the plan. The two picked out a ring and talked with the sales clerk. They asked for a business card and requested that she write down the total price of the ring on the back of the card. Then they asked if she would accept a cashier’s check. Appellant explained to Mrs. Paulson that she was to bring the card with the amount back to him so that he could complete a forgery of the exact amount. She would sign the name Alta L. McAllister to the check, forging the signature of the bank’s authorizing officer.

It was Mrs. Paulson’s testimony that appellant devised the entire scheme and made the purchases pursuant to the plan. He printed the checks in Mississippi, where he used gloves to avoid leaving fingerprints, and planned to complete them in Mobile when she could determine the exact amounts required.

On May 14, after the two were married, she went to Zales Jewelry Store with a check made out according to the plan. The man who waited on her said that she would have to return the following day in order to give him time to verify the check. She was arrested the following day.

On cross-examination by the defense she testified that she saw appellant put the amounts on the checks with the Paymaster machine and that appellant purchased the equipment used and paid for their motel rooms.

Mr. Nick L. Horne, Jr., manager of the Zales Jewelry Store in Bel Air Mall, testified that on Friday, May 14, 1982, at around 3:30 p.m., he negotiated a sale with a woman who identified herself as Marilyn Karn. She looked at a lady’s diamond solitaire ring valued at four to five thousand dollars. She requested that the ring be sized and said that she would be back. She returned after 5:00 p.m. with a certified check in the amount of $4,425.00. The bank was closed by this time, but Mr. Horne, anxious to make the sale, called Mrs. McAllister at home. She was authorized to sign cashier’s checks for Commercial Guaranty Bank and her purported signature appeared on the check, but he learned that she had not signed the check. He alerted mall security and the other stores in the mall, and the following day Mr. Frank, at Goldstein Jewelry Store, reported that he had an appointment at 2:00 or 2:30 that afternoon, with a woman answering the description given by Mr. Horne. Mr. Horne came at that time, accompanied by mall security and Mobile police officers, and identified the woman, Kathleen Paulson, who was then arrested.

The president of the First Small Business Investment Company identified appellant as the person to whom he sold a Paymaster check printer, and an employee of a printing company identified appellant as the person who bought special paper used to print checks.

Mr. William G. Clarke, operator of Clarke Jewelers, testified that he accepted a forged certified check for $3,400.00 in exchange for a diamond ring from a woman who identified herself as Marilyn Earn.

Ronald Paulson testified on his own behalf, and denied that he .had planned, conspired, executed, or even knew about the forgery of the cashier’s checks. He stated that he was forty years old and had been a printer for twenty-three years. He admitted to three previous convictions: one for possession of a counterfeit bill, one for theft by deception, and one for issuing worthless checks. He explained that he purchased the Paymaster check writer for his wife to use in one of their businesses, that the other equipment discovered in their car was used in their businesses, and that he was in Mobile for the purpose of locating employment with a printing company.

On cross-examination, appellant admitted that he had not applied with any printing companies in Mobile, nor talked to anyone about a job. Instead, he had begun to drink and had stayed drunk most of the time he was there, finally ending up in the hospital, where he was arrested. He explained this behavior by stating that he was a sometime alcoholic and that he had had a fight with his wife concerning their financial problems.

Two issues are raised for consideration on appeal. Appellant first contends that the testimony of his wife against him was not voluntarily given and should not have been admitted into evidence.

Section 12-21-227, Code of Alabama 1975, states:

“Husband, and wife for or against one another. The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do.”

This statute was interpreted in Arnold v. State, 353 So.2d 524, 526 (Ala.1977), where the court stated that “... the Alabama Legislature abolished the rule of incompetency and adopted the present statutory language which allows the spouse to testify voluntarily.”

Appellant contends that, because of her plea bargain arrangement with the District Attorney, his wife’s decision to testify was not made voluntarily. It is clear, however, that the testimonial exemption of a spouse in a criminal trial is a privilege of the witness and may be waived for whatever reason the witness might have. Morrison v. State, 382 So.2d 1187, 1189 (Ala.Cr.App.1980), quoting, Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837, cert. denied, 254 Ala. 74, 46 So.2d 847 (1950), held, in this vein:

“There is a duty on every person to testify in judicial proceedings, as the public has an interest in the proper and just conclusion of cases brought into the courts of a sovereign power. In the interest of certain policies certain classes of witnesses may be exempted from this duty, even though such exemptions may tend to interfere with full disclosure of facts. Among such classes of witnesses who may be exempted from testifying are attorneys who stand in relation of attorney and client to one of the parties litigant, priest in relation to confessor, etc., and since the enactment of Section 311, Title 15, Code of Alabama 1940, providing that husband and wife may testify either for or against each other in criminal cases, but shall not be compelled to do so, there may be added to this exempted class of witnesses, husband and wife. ‘This testimonial exemption is however a privilege, purely personal to the witness, and is solely a matter between the witness and the court.’ ”

In Morrison, supra, the witness spouse first stated that she would testify against her husband, then said that she was not sure and would rather not. After some discussion she finally decided in favor of testifying. Appellant in that case claimed that his wife had been coerced or intimidated into testifying, but the court found that the witness was properly advised of her privilege and testified voluntarily.

In the case before us the record demonstrates that Mrs. Paulson was properly advised by the court of her right not to testify and that her reason for waiving that right was a plea bargain agreement with the District Attorney by which she hoped to receive a more lenient sentence. The record thus demonstrates that her testimony was voluntarily given.

Appellant next contends that Mrs. Paul-son’s testimony that he completed the forged cashier’s checks in Alabama using the Paymaster check writer should not have been admitted over his objection based on the marital privilege for confidential communications. The record demonstrates, however, that this testimony was elicited on cross-examination by the defense as follows:

“CROSS EXAMINATION
“BY MR. DEEN (Defense Attorney):
“Q. All right, and then he ran on the Paymaster Machine—you’re saying that he put the amount on—
“A. Yes.
“Q. —the checks?
“A. Yes.
“Q. And the case we have today he did it [sic] amount of $4,425.00 to Zales? “A. Yes, sir.
“Q. All right, and you saw him do all that?
“A. I was in the room with him, yes, sir.
“Q. Okay.
“MR. COPELAND: I’m sorry, I didn’t hear the answer.
“THE COURT: I was in the room with him.”

The defense counsel then continued to extensively examine Kathleen Paulson about the defendant’s criminal activity after the two were married on May 14.

“REDIRECT EXAMINATION
“BY MR. COPELAND (Assistant District Attorney)
“Q. All right. Now let’s talk a little bit, since the Defense Attorney asked the question, what has happened with these checks after you all were married? You say you all went to the LaQuinta Inn? “A. Yes.”
(emphasis added)

This was the first time that the State had elicited testimony from Kathleen Paulson regarding the defendant’s criminal activity after they were married, i.e., after cross-examination opened the door. Hence, the testimony that Kathleen Paulson gave about the defendant’s criminal activity was clearly proper. McDaniel v. State, 418 So.2d 932 (Ala.Cr.App.), cert. denied, 418 So.2d 934 (Ala.1982); Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981).

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Ernest McCOY v. STATE.
    6 Div. 994.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    On Return to Remand Aug. 14, 1984.

      James M. Kendrick, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appellant, while a prisoner at Elmore, Alabama, serving a life sentence for rape, filed a handwritten pro se petition for writ of error coram nobis in July 1982, in which he alleged, inter alia, that his conviction and sentence occurred in 1959, that he was represented by an attorney at the time and that his then attorney (who has since died) agreed in the presence of the judge (who also has since died) that this appellant would plead guilty in the case of rape with the understanding that the case of robbery then pending would be nol-prossed and the sentence to imprisonment for life would be imposed upon him in the rape case, for which he is now imprisoned, on the judgment of conviction and sentence upon his plea of guilty. It is further alleged in the petition that the judgment of sentence was invalid in that the crime of rape at the time was a capital offense and that under the law at that time it was required that a jury fix the punishment in a capital case, even upon the entry of a plea of guilty, but that punishment was fixed and imposed by the trial judge without the intervention of a jury. In the concluding paragraph of the coram nobis petition, it is stated in appellant’s exact wording:

“Petitioner alleges that his attorney and the court was well aware that a defendant couldn’t plea guilty in a captive case in 1959. But this was the easy way to do it. They showed no regard for the Law or the Petitioner Constitutional rights.”

The record before us shows that the court hearing the coram nobis petition directly involved in the instant appeal proceeded to render a final judgment and enter the judgment on the bench notes of the 1959 case in which appellant was sentenced to life imprisonment for rape, which judgment upon the coram nobis proceeding directly involved is in pertinent part as follows:

“This the 22nd day of July, 1982, the defendant has filed a subsequent petition for writ of error coram nobis. September 29, 1966, the State files motion to dismiss petition for writ of error coram nobis and said motion was granted by Honorable Alta King, circuit judge, subsequent to that time, to wit: on April 24, 1978, the defendant filed a second petition for writ of error eoram nobis, and said petition was dismissed pursuant to Rule 50. Said dismissal was appealed to the Alabama Court of Criminal Appeals, and this Court appointed David Hassinger, Attorney, to represent said defendant on said appeal. The Alabama Court of Criminal Appeals dismissed said appeal. The defendant on this date, has filed a new petition for writ of error coram no-bis. Said petitioner alleges the same or similar grounds as decided in defendant’s previous petition for writ of error coram nobis. Therefore, after the petition for writ of error coram nobis being duly considered by the Court, it is hereby ordered, adjudged and decreed by the Court that the petition for writ of error coram nobis be and the same is hereby dismissed].”

The record before us further shows that on August 17, 1982, the petitioner gave notice of appeal, that the court found that appellant was indigent, ordered a free transcript and appointed an attorney to represent him on appeal, who has filed a brief in appellant’s behalf.

The record before us also shows that prior to a submission of this case on appeal, a motion was filed in the trial court by each of the parties hereto to supplement the record. Each of the motions was granted by the trial court, and we now have before us a supplemental transcript, which includes many documents not found in the original transcript on appeal. Included in the supplemental transcript are: (1) a copy of this appellant’s petition for writ of error coram nobis filed April 19,1978; (2) respondent’s motion to dismiss the petition; (3) petitioner’s “motion in transverse to State’s motion to dismiss”; (4) a trial docket entry of July 22, 1982, which includes the judgment of the trial court dismissing the cor-am nobis petition directly involved on this appeal, as quoted above; (5) a trial docket entry of April 24, 1978, dismissing the then pending coram nobis petition; and (6) several barely legible trial docket entries between May 1965 and July 29,1966, purporting to refer to a petition for writ of error coram nobis, the entries being made by Judge King, since deceased. The last entry made by Judge King of July 29, 1966, is: “State files motion to dismiss petition for writ of error coram nobis. Motion granted. Defendant excepts. King, J.”

We do not have before us a copy of the petition for writ of error coram nobis filed by this appellant during the life of Judge King, and, therefore, we are unable to determine whether the allegations of the cor-am nobis petition considered by him (the first petition) were essentially the same as those set forth in either the second or third petition, but we are convinced that the second petition and the third petition are essentially the same.

Appellant’s attorney sets forth in his brief as the pivotal issue for determination a strong contention that it was reversible error for the trial court to relieve “the jury of its statutory duty to fix punishment”. He finds support in that position in Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858 (1955), which held that under the law at that time it was mandatory in a capital case, even when a plea of guilty to the capital crime had been entered and accepted, that a jury fix the punishment and that it was reversible error for the trial court to sentence the defendant without the punishment having been fixed by the jury. Without attempting to refute the issue presented by the appellant, which we will hereafter consider further, appellee counters with an unrelated contention that it urges as dispositive of this appeal, which we now consider.

Appellee contends that the dismissal of the petition for writ of error coram nobis which forms the basis of this appeal was correct for the reason that, as shown by the transcript now before us, such petition alleged in essence “the same grounds as his prior petitions.” As indicated above, we are unable to determine whether the last petition sets forth the same grounds as both of the prior petitions, but we are convinced that it sets forth in essence the same grounds as those set forth in the 1978 petition.

But for a particular feature of the case now under consideration, appellee finds adequate support for its contention for an affirmance of the judgment of the trial court in McLeod v. State, Ala.Cr.App., 415 So.2d 1232, 1233 (1982), wherein it is stated:

“Appellant’s coram nobis petition reasserts the same issues presented in March, 1980, along with a further allegation that, at the time of his guilty pleas, his court-appointed counsel was ineffective because he had had a conflict of interest as a part-time city prosecutor or city judge.
“Former Supreme Court Rule 50, which has now been superseded by the Rules of Appellate Procedure, provided the following:
“‘... And the sentencing court shall not be required to entertain a second or successive petition for similar relief on behalf of the same prisoner. A successive petition on different grounds will not be entertained unless good cause is shown why the new ground or grounds were not known or could not have been reasonably ascertained when the first petition was heard.’
“(Quoted in Rickard v. State, 44 Ala.App. 281, 207 So.2d 422 (1968)). Although former Rule-50 is no longer the law, the policy underlying it is still valid. If a petitioner may not assert as grounds for a coram nobis petition facts he knows or should have known at trial, see Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964), certainly he may not allege, in a second coram nobis petition, facts he knew or should have known at the time of filing a first petition for post-conviction relief.
“Appellant’s coram nobis petition affirmatively shows that, prior to the March 17, 1980 hearing, he knew of his attorney’s part-time city judge status. Appellant’s own testimony during the hearing indicates that his attorney ‘was not talking right because he’s the City Judge. That’s one reason he didn’t want to investigate.’
“Appellant cites Ellison v. State, 406 So.2d 439 (Ala.Cr.App.1981), for the proposition that he should have been given a hearing on his allegations of ineffective counsel. In Ellison however, Judge Bowen noted that the record there contained ‘no evidence to contradict petitioner’s allegations.’
“The record in appellant’s case demonstrates not only that appellant himself knew of the facts relating to ineffective counsel at the time of his first hearing, but the trial judge also heard evidence on that point in March, 1980. It is our judgment, therefore, that the Dale Circuit Court was correct in denying the petition without a hearing.”

From the quotation from the eommend-ably concise opinion in McLeod v. State, supra, it is to be observed that the rationale of the conclusion therein is that there had been a previous hearing of a coram nobis petition by the same petitioner that constituted a prior adjudication of the issue presented by the subsequent petition, which distinguishes McLeod and other like cases from the instant case, in that, as far as we can tell from the record before us, there has never been an evidentiary hearing as to the issue presented by any of this appellant’s petitions for writ of error coram nobis.

We now revert to a consideration of Ex parte Jenkins, supra, upon which appellant wholeheartedly relies for a reversal. In that case, the jurisdiction of the then Alabama Court of Appeals was invoked by a petition thereto for writ of error, which procedure has since been largely supplanted by a petition to the trial court for writ of error coram nobis. The Court of Appeals granted the writ, reviewed the judgment of the trial court adjudging defendant-petitioner guilty on his plea of guilty of robbery, punishable at the time “at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years.” Code of Alabama Recompiled 1958, Tit. 14 § 415. In holding that the punishment should not have been determined without the intervention of a jury, the judgment of conviction and sentence was reversed and the cause remanded to the trial court.

It is understandable that appellant finds comfort in Ex parte Jenkins, supra. However, Isbell v. State, 42 Ala.App. 498, 169 So.2d 27 (1964), rendered after a change in the procedure for obtaining a writ of error coram nobis by providing that it was not necessary to obtain approval of the appropriate appellate court before petitioning the trial court for such post conviction relief, casts considerable doubt upon any conclusion that consistency with Jenkins requires a reversal in the instant case. We now quote the entire opinion in Isbell v. State:

“This is an appeal from denial of relief under coram nobis. Under Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858, had the appellant applied here for a writ of error, he would have got himself another trial, and we may add another sentence (even unto death) without credit for any time already served.
“Originally Isbell was indicted for robbery, a capital felony punishable only by a jury. Code 1940, T. 14 § 415. He pled guilty. The judge rather than the jury fixed punishment.
“We were confronted with a like claim in Thomas v. State, 40 Ala.App. 697, 122 So.2d 535, a habeas corpus appeal. There we refused to consider due process had been breached in a clear case of invited error.
“Here, too, we consider the judgment should be “Affirmed.”

Whether Isbell v. State is distinguishable from the instant case as a precedent for a reversal for the same reason that we have distinguished McLeod v. State, supra, and like cases as precedents for an affirmance, i.e., that in McLeod and other cases relied upon by appellee there was an evidentiary hearing, is somewhat questionable. However, the language of the opinion, “This is an appeal from a denial of relief under coram nobis,” indicates that there was a hearing of the petition and that such hearing was not ex parte.

As much as our disinclination might be to breathe life into an issue that was apparently dead for so long, we are of the opinion that there should have been a hearing of this appellant’s last petition for writ of error coram nobis and an opportunity for him to be present at the hearing and participate therein pro se or by counsel. In the present state of the record, our duty is not as clear as we should like for it to be as to whether there should be an affirmance or a reversal. A hearing may not supply the answer, but we are confident that it will help and be without harm to either party. It is suggested that at such a hearing, an inquiry as to the reason for the delay of twelve years, the period between the dismissal of the 1966 petition and the filing of the 1978 petition, would be worthy of investigation.

In our opinion the cause should be remanded to the trial court to set a time for a hearing, an evidentiary one in the event of any factual issue, of this appellant’s last petition for writ of error coram nobis, order that adequate arrangements be made for the attendance of petitioner and his counsel, give notice to the State in order for it to be represented by counsel at the hearing, render a judgment granting or denying a writ of error, and in due course make a return to this order of remandment with notice thereof to each of the parties. Either party aggrieved thereby will have twenty-eight days within which to file a brief and the opposing party will have fourteen days thereafter to file a reply brief.

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.

REMANDED WITH DIRECTIONS.

All the Judges concur, except BOWEN, P.J., who dissents.

ON RETURN TO REMAND

LEIGH M. CLARK, Retired Circuit Judge.

On April 5, 1984, there was filed with the Clerk of this Court a transcript of the record of proceedings “AFTER RE-MANDMENT” that shows precise and plenary compliance with the directions set forth in our opinion on original submission in remanding the case to the trial court. An evidentiary hearing was conducted, at which this appellant was present and represented by counsel, which included his previous counsel on this appeal as co-counsel and new counsel appointed by the Court, all to the express satisfaction of the appellant. During the lengthy testimony of appellant-petitioner, he made it clear that there had been evidentiary hearings of his previous petitions for writ of error coram nobis, which included an evidentiary hearing conducted by Judge King, the now deceased judge who adjudged him guilty as charged in an indictment for rape and sentenced this appellant to imprisonment for life. However, appellant’s testimony did not include an admission by him that in his petition for writ of error coram nobis heard by Judge King there was a ground asserted therein that his punishment was not fixed by a jury. Nevertheless, in the typed petition that is signed by this appellant and was ruled upon by Judge King, there is the following paragraph:

“The Petitioner further contends that the fact that he was just put to trial without a jury on a capital felony, deprived him of his rights. See: Smith v. State, 11 Ala.App. 153, 155, 65 So. 693; Gandy v. State, 1962. The record must show affirmatively a compliance with the requirements of the statute as to the jury for the trial of a person indicted for a capital felony. In a capital case the Court must cause the punishment to be fixed by a jury. Applied in Howard v. State, 165 Ala. 18, 50 So. 954; cited in Martin v. State, 62 Ala. 240, 242.”

By the transcript now before us, we have ■ the benefit of the “ORDER AND JUDGMENT OF THE COURT,” signed by Judge King dated September 29, 1966, which recites, inter alia, “The Court being of the opinion that the evidence elicited from said Petitioner was not sufficient, as a matter of law, denied said petition and granted the State’s Motion to Dismiss.”

After the evidentiary hearing conducted by the trial court in accordance with the remandment with directions, the trial court rendered an “ORDER AND JUDGMENT OF THE COURT ON REMAND FROM THE ALABAMA COURT OF CRIMINAL APPEALS,” in material part as follows:

“As shown by State’s Exhibit No. 2, the Hon. Alta L. King, Circuit Judge, did dismiss the Petition for Writ of Error Coram Nobis, having considered all the issues alleged in said petition. The essential issues in said petition of 1965 were alleged again in the Petition for Writ of Error Coram Nobis filed by the defendant in 1978. This Court at that time dismissed said petition. Further, substantially the same grounds were alleged in the Petition for Writ of Error Coram Nobis filed in 1982, which resulted in the present appeal and present remand.
“All matters having been previously heard by virtue of a Petition for Writ of' Error Coram Nobis, this Court feels that said petition in 1982 should be and is hereby dismissed....
“Having complied with the remandment from Alabama Court of Criminal Appeals and having now dismissed the Petition for Writ of Error Coram Nobis; it is, therefore, CONSIDERED, ORDERED, ADJUDGED and DECREED that the petition of Ernest McCoy 1982, be and the same is hereby denied and dismissed. And it is further ordered that a transcript of these proceedings along with the exhibits be forwarded to the attorneys for the defendant, to the District Attorney for the Tenth Judicial Circuit of Alabama and to the Alabama Court of Criminal Appeals, showing that this Court has complied with the order of the remandment.”

We agree with the decision of the trial court on the evidentiary hearing after remand. Neither party, by an attorney or otherwise, has filed a brief challenging the correctness of the trial court’s order and judgment on remand. The judgment of the trial court should now be affirmed.

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Clinton Earl HALL, alias v. STATE.
    1 Div. 564.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied July 20, 1984 Alabama Supreme Court 83-936.
    Dennis J. Knizley of Alexander & Kniz-ley, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Clinton Earl Hall, was convicted of possession of pentazocine, a controlled substance, and sentenced to twenty years in the penitentiary. Three issues are raised on appeal, but only one merits our attention.

At the close of the State’s case in chief, Hall moved to exclude State’s evidence. This motion was denied, and Hall, in turn, claims on appeal that the State failed to establish a prima facie ease.

On July 28, 1981, Henry Robinson, Jr. was arrested in connection with several residential burglaries. Based on information supplied by Robinson, Detective Jack Dove, Jr. executed a search warrant for Room 4, 1057 West Adams Street in Mobile, Alabama, allegedly the residence of Hall. The house at 1057 West Adams Street was a rooming house in which several individuals rented rooms and shared a common hallway and bathroom. The individual rooms were ordinary bedrooms, approximately 8’ x 12’ in size with a closet. Room 4 was actually “rented” by Beula Mitchell, a female companion of Hall’s, who paid weekly rent to the owner of the house.

When the warrant was served, Hall was in the common hallway but followed the officer into Room 4. Found in the room were two van loads of property, all of which was stolen. Some of the items recovered from the room were positively identified as items taken in burglaries to which Henry Robinson had confessed.

In addition to the stolen property, several items susceptible of being used as drug paraphernalia were found. Among those items were two syringes that appeared to contain the residue of human blood. It was later determined that there were traces of the drug pentazocine in the syringes.

Beula Mitchell was in the room at the time of the search and was arrested along with Hall. Hall was undressed when the search began, his street clothes were draped over a loveseat next to the bed in Room 4. Although it was never established that Hall had any other personal possessions in the room, some of the clothing in the closet looked like it could have been worn by a man.

Hall later gave a statement to Officer Dove in which there was a recital that he lived at 1057 West Adams Street in Room 4 and that he had no knowledge of the illegal drugs found in “his” room. On cross examination, Officer Dove admitted that he substantially altered the statement (Hall neither reads nor writes), in that Hall told him only that he stayed on Adams Street and that the use of possessive pronouns in connection with the room may or may not have been Hall’s own words. Officer Dove also admitted that he knew he had to make out a case of constructive possession when he prepared the statement. The only other evidence connecting Hall to the premises was the testimony of Robinson, the burglar, who said that he would go “around on Adams Street” when he wanted to find Hall.

Since Hall had been indicted on several charges arising out of the incident and the indictment in the instant case was very specific, a motion in limine was made and granted which disallowed any comments or testimony as to prior occasions of drug use or other offenses. The State had hoped to show that Robinson took stolen items to Hall in exchange for drugs and that this had been done two days prior to the arrest. Although this offer of proof, taken outside the presence of the jury, was not allowed into evidence, the prosecutor did manage to get the fact that Robinson exchanged stolen property for drugs before the jury.

To establish a prima facie case of possession of narcotics, there must be actual or constructive possession and guilty knowledge. The Attorney General bases his arguments on the offer of proof that was never allowed into testimony and they are, therefore, useless. However, the totality of the circumstances indicates Hall stated he stayed on Adams Street, Robinson said that he went to Adams Street when he wanted Hall, Hall had at least one set of street clothes in the room, and Hall was present when the search was conducted. Therefore, the jury could have reasonably concluded that Hall shared dominion and control over the room with Beula Mitchell.

The existence of guilty knowledge can be based on circumstantial evidence. In this case, we have the following: Robinson traded stolen merchandise for drugs; merchandise connected with Robinson was found in the room shared by appellant and Mitchell; the room itself was small, 8’ x 12’, making it unlikely that Hall was unaware of what was in the room; two van loads of stolen merchandise was found in the room; several items apparently used as drug paraphernalia were found in the room; the two syringes containing traces of pentazocine were found in plain view on the headboard of the bed. We feel that the jury could have reasonably inferred Hall’s guilty knowledge based on these facts.

The judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Curtis James LOVE v. STATE.
    1 Div. 629.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied July 20, 1984 Alabama Supreme Court 83-923.
    C. Daryl Drinkard, Thomasville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of attempt to commit the crime of murder by shooting the alleged victim with a pistol and a sentence to imprisonment for thirty years. According to Alabama Criminal Code § 13A-4-2(d), such an offense is a Class A felony; according to § 13A-5-6(a)(1), the punishment for a Class A felony is “for life or not more than 99 years or less than 10 years.”

The only issue presented in appellant’s brief is the following:

“Whether Defendant in the instant case was denied due process of law because of the failure of the trial court to hold a separate hearing to determine the Defendant’s sanity in accordance with Section 15-16-21, Code of Alabama, 1975.”

Section 15-16-21 provides:

“If any person charged with any felony is held in confinement under indictment and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the facts of such s'anity, such jury to be empanelled from the regular jurors in attendance for the week or from a special venire as the court may direct. If the jury shall find the accused sane at the time of its verdict, it shall make no other inquiry, and the trial in chief shall proceed. If it finds that he is insane at that time, the court shall make an order committing him to the Alabama state hospitals, where he must remain until he is restored to his right mind. When the superintendent of the hospitals shall be of opinion that such person is so restored, he shall forthwith, in writing, inform the judge and sheriff of such court of the fact, whereupon such person must be remanded to jail on an order of such judge and the criminal proceedings resumed. In no event shall such a person be set at large so long as such prosecution is pending or as long as he continues to be insane.”

It is to be observed from the first few words of the relatively long section of the Code just quoted that the provisions thereof do not come into operation until the person charged with a felony is held in confinement under indictment. According to the undisputed evidence in this case, the alleged crime occurred on October 15, 1982. The defendant was promptly arrested, but he was not indicted until four months thereafter, February 16, 1983. Soon after defendant’s arrest, he was brought before the judge of the District Court of Clarke County and was there advised of his Constitutional rights, including his right to a preliminary hearing and his right to “court-appointed counsel” if he was indigent and desired counsel. It was determined that he was indigent and that he desired counsel, and the District Court appointed counsel to represent defendant. The court-appointed counsel demanded a preliminary hearing. However, before any preliminary hearing was apparently conducted, information was brought to the attention of the judge of the Clarke County Circuit Court, by Mental Health Coordinator Elizabeth Vredenburg of Southwest Alabama Mental Health/Mental Retardation Board, that defendant had previously been in Search Hospital where his primary diagnosis was “Schizophrenic Disorder, Paranoid Type,” that at the request of the Clarke County Sheriff the defendant had been investigated by a representative of the Board of which she was mental health coordinator and that she recommended that defendant “be hospitalized at the Forensic Unit at Bryce Hospital.” On November 29, 1982, the resident judge of the First Judicial Circuit of Alabama residing in Clarke County ordered that the Clarke County Sheriff deliver defendant to the custody of the Taylor Hardin Secure Medical Facility in Tuscaloosa, Alabama, to then and there be examined and treated and that said “Medical Facility be directed to make a report to this Court of the result of their examination.”

On December 20, 1982, the director of Taylor Hardin Secure Medical Facility rendered a two-page report to said Circuit Judge, with a copy thereof to defendant’s attorney, which was concluded as follows:

“Our evaluation being completed, I am requesting the appropriate court order be issued remanding MR. LOVE to the custody of the Clarke County Circuit Court for the resumption of legal proceedings.”

As already observed, all of the proceedings relative to the evaluation of defendant as to the question of his sanity were prior to any indictment. Soon after return of the indictment, the trial court set the date for an arraignment. On March 1, 1983, defendant’s attorney filed a motion to withdraw as defense counsel, in which he alleged the following:

“4. Defense counsel should be permitted to withdraw from the representation of the Defendant on the following grounds:
“A. Defense counsel has not been able to communicate with his client in a meaningful manner;
“B. Defense counsel believes that there has been a substantial breakdown in the Attorney-client relationship;
“C. Defendant knowingly and freely assents to and requests the termination of Defense counsel’s employment; “D. That an irreconcilable conflict has arisen from these circumstances which can only be remedied by allowing counsel to withdraw from the above styled cause;
“5. The best interest of the Defendant will be served by the withdrawal of defense counsel;”

On March 10, 1983, the motion of defendant’s court-appointed counsel was granted; on March 14, 1983, defendant was arraigned while appearing with his newly appointed counsel and pleaded not guilty. He was represented thereafter by said newly appointed counsel, who continues to represent him as such on appeal.

In appellant’s brief, it is stated:
“On March 14, 1983, at arraignment, the Appellant refused to allow his attorney to enter a plea of not guilty by reason of insanity (R.ll).”

Our review of all the transcript of the proceedings tends to convince us that there is considerable merit in appellant’s contention that there was reasonable ground to doubt defendant’s sanity and that it would have been advisable for the trial of the case to have been “suspended until the [a] jury shall inquire into the fact of such sanity,” as provided in Code of Alabama 1975, § 15-6-21. Nevertheless, there is considerable, if not more, merit in an opposite contention. If the trial court had “reasonable ground to doubt his sanity,” it was mandatory upon the trial court to empanel a jury to determine the issue. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973), writ quashed, 292 Ala. 745, 293 So.2d 489, vacated, 57 Ala.App. 633, 330 So.2d 615 (1974).

However, the hypothetical clause of the proposition of law just stated remains unestablished. The trial court did not state, and the transcript does not show with reasonable certainty, that while defendant was under indictment the trial court had reasonable ground to doubt defendant’s sanity. We cannot assume that the trial court had reasonable ground to doubt defendant’s sanity. If the trial court had previously had reasonable ground to doubt defendant’s sanity, such ground could have well been removed by the report of the director of Taylor Hardin Secure Medical Facility, which contains the following as its first paragraph:

“In summary, Mr. Love was admitted on December 1, 1982, evaluated by the clinical staff and reviewed concerning his competency status by the Competency Evaluation Board on December 16, 1982. Mr. Love is viewed as not suffering from any significant psychiatric disturbance at the present time. It is the opinion of the Board that Mr. Love is presently competent to stand trial; he can communicate with his attorney in a rational manner; he does have a rational as well as factual understanding of the charges pending against him.”

Such proceeding was authorized by Code of Alabama 1975, § 15-16-20. It is to be noted that Section 15-16-20 expressly permits, but does not require, the trial court to “call a jury” to hear and determine the issue as to sanity of the accused prior to the return of an indictment against him.

Notwithstanding any inability on our part to determine with reasonable certainty the issue as to defendant’s sanity vel non, we are persuaded that there was no error on the part of the trial court in its “failure ... to hold a separate hearing before a jury for the purpose of a determination of that issue.”

We find it unnecessary to discuss in detail the evidence on the trial of the case. We merely recite that which follows in the hope that it will be in the best interest of the appellant, the victim of the alleged crime, and all others directly concerned who mainly are persons related to one another by blood or marriage. The evidence shows that there was bad feeling between the defendant and the alleged victim, defendant’s brother, and that there was bad feeling toward defendant by other members of the family. The defendant admitted that he shot his brother with a pistol but testified that in shooting the pistol he did not intend to hit his brother or anyone else. There were preceding circumstances in which drinking of alcoholic beverages had a part that led to quarrels and misunderstandings. All of which tends to evoke sympathy and pity from others. May they all be assured that they all have our best wishes in the hope that a better relationship will exist among them in the future than prevailed prior to the commission of the alleged crime.

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.


author: SAM TAYLOR, Judge.

text:
    Robert L. LAWSON v. STATE.
    4 Div. 32.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 22, 1984.
    Certiorari Denied July 27, 1984 Alabama Supreme Court 83-973.
    Brian Dowling, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen. and Ger-rilyn Y. Grant, Asst. Atty. Gen., for appel-lee.
   SAM TAYLOR, Judge.

Robert L. Lawson was convicted in Houston County Circuit Court of second degree assault, and sentenced to three years’ imprisonment. The pertinent evidence at trial was as follows:

After a difficulty in “Mr. Silk’s” lounge, the victim, Michael Jackson, and appellant started to go outside. Mr. Jackson was later found unconscious with very low blood pressure and bleeding from a puncture wound in the upper left portion of the chest around the nipple area. The victim testified that he was stabbed by the appellant in “the lower part of my heart” and that his hospitalization continued for two weeks after the injury. In addition, a paramedic testified that he saw the puncture wound in the left side of the chest and that Mr. Jackson had low blood pressure. The paramedic also testified that the injured party was unconscious and would have bled to death had he been left unattended.

I

Appellant contends that there was insufficient evidence in this case of serious physical injury to support a conviction of assault in the second degree. Section 13A-1-2(9), Code of Alabama 1975, defines “serious physical injury” as follows:

“Physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.”

On the basis of the testimony of the victim and the paramedic, we have no doubt that a serious physical injury was proved to have existed in this case.

As this court has stated, “Paramedics are the most highly trained medical personnel available at the location of many injuries, and they qualify as experts under our evidentiary rules.” Thomason v. State, 451 So.2d 401 (Ala.Cr.App.1984). Even if the paramedic in this case does not qualify as an expert, both he and the victim were qualified to testify about the nature of the wounds. See C. Gamble, McElroy’s Alabama Evidence § 128.10(2), § 128.10(4) (3d ed. 1977). Thus, no error was committed in allowing the case to go to the jury on these facts.

II

Appellant argues that he should have been permitted to present evidence that the victim was of a “quarrelsome nature.” There seems to be a conflict in the law in Alabama about ascertaining whether the victim was quarrelsome or argumentative. McElroy’s, supra, at § 33.01(4), notes 5 and 6, indicates this conflict.

We believe that mere “quarrelsomeness” is not a provable trait, Wilson v. State, 31 Ala.App. 21, 11 So.2d 563, cert. denied, 243 Ala. 671, 11 So.2d 568 (1943); Bullington v. State, 13 Ala.App. 61, 69 So. 319 (1915); Rhea v. State, 100 Ala. 119, 14 So. 853 (1894), and the court did not err by not allowing the witness to answer general reputation questions directed toward the trait of “quarrelsomeness.”

III

Appellant also challenges the lower court’s refusal of certain of his requested charges. However, the record reveals that appellant did not properly preserve the issue for our review since he failed to state specifically the grounds for his exception before the jury retired. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed, 414 So.2d 993 (Ala.1982).

Appellant did object to portions of the trial court’s charge so as to preserve the issue. The issues raised by those objections were not argued by brief. See A.R. A.P. 45B.

Accordingly, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.