author: FAULKNER, Justice.

text:
    Ex parte State of Alabama. (Re Alice Freeman HORNE v. STATE of Alabama).
    83-296.
    Supreme Court of Alabama.
    April 6, 1984.

      Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for petitioner.
    S. Kent Stewart, Birmingham, for respondent.
   FAULKNER, Justice.

The defendant was arrested for welfare fraud and charged with obtaining money under false pretenses. We granted certio-rari to review a decision by the Court of Criminal Appeals, 453 So.2d 1068, that the indictment by which charges were brought against this defendant was defective because it failed to name the person at the Department of Pensions and Security to whom the false statements were allegedly made. The indictment charged, inter alia, that:

“Alice Freeman Horne, whose name is to the Grand Jury otherwise unknown than as stated, did falsely pretend to the Alabama State Department of Pensions and Security, or its agents or employees, with intent to defraud, that her household income was less than it actually was, or that her household composition was greater than it actually was, and by means of such false pretense obtain from the Alabama State Department of Pensions and Security, or the State of Alabama, property, to-wit: food assistance in the form of Food Stamps, from January, 1977, through December, 1979, the property of the Alabama State Department of Pensions and Security, or the State of Alabama, or the United States of America, all or a portion of which property, the value of, to wit: four-thousand seventy dollars ($4070.00) dollars, she was not entitled to receive, against the peace and dignity of the State of Alabama.”

The Court of Criminal Appeals ruled that, although the nature of the charge against the defendant was stated in the indictment, the facts relating to the offense were not stated specifically enough “to enable the defendant to prepare her defense.” The court based its decision on Pierce v. State, 42 Ala.App. 53, 151 So.2d 793 (1963). Pierce was charged with fraudulently obtaining unemployment benefits. In Pierce, the Court of Appeals ruled that the indictment under which Pierce was charged was insufficient because it failed to state the name of the agent of the Department of Industrial Relations to whom the statements were allegedly made. The indictment charged that:

“Pierce did wilfully make a false statement or representation to an agent of the Department of Industrial Relations of the State of Alabama to obtain or increase a benefit under the Alabama Unemployment Compensation Law for himself, said false statement or representation consisting of a statement by Extra Pierce on or about the 26th day of July, 1960 that he earned no wages within the period ending on July 23, 1960, against the peace and dignity of the State of Alabama.”

42 Ala.App. at 54, 151 So.2d 793.

The Court of Criminal Appeals recognized that its decision in the present case might be in conflict with a prior opinion of this Court, Bailey v. State, 159 Ala. 4, 48 So. 791 (1909). In Bailey the defendant was charged with obtaining money under false pretenses from the L & N Railroad Company. The issue was the same one presented in Pierce and in the case at bar, viz., whether the indictment was subject to demurrer because it failed to state the name of the person to whom the statements were made. This court ruled that naming the corporation which was defrauded was sufficient. The Court of Criminal Appeals attempted to distinguish Bailey from the present case by this reasoning:

“The Bailey opinion, however, does not contain the indictment that was upheld. For aught that appears, the indictment in Bailey was sufficient to enable the defendant to prepare his defense, even though it did not specify the specific person to whom the false representation was made. We assume, therefore, that it is not in conflict with Pierce or our holding here.”

We disagree. Although the indictment was not reproduced in the Bailey opinion, it is apparent from this Court’s opinion in that case that the indictment did not name the L & N employee in question. Neither the court below nor the defendant suggested what sort of facts the indictment might have contained which would overcome the failure to name the individual. Nor did the defendant persuade us that she was, in fact, hampered in the preparation of her defense by the omission. She acknowledged that during discovery she was furnished with copies of the Department’s documents on which the State intended to rely at trial. We opine that the Court of Criminal Appeals went too far in ruling that, as a matter of law, an indictment charging a defendant with obtaining money by false pretenses from the Department of Pensions and Security must contain the name of the employee with whom the defendant dealt.

In Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973), this Court ruled that an indictment charging the defendant with selling marijuana was not defective because it failed to name the vendee. We see no more reason to require the name of the person with whom this defendant dealt at the Department of Pensions and Security in this case than there was to name the purchaser of the marijuana in Adkins.

The decision of the Court Criminal of Appeals is hereby reversed and the case remanded.

REVERSED AND REMANDED.

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

ALMON, J., concurs in the result.


source: Caselaw Access Project

author: TAYLOR, Judge.

license: Public Domain

text:
    Sidney Michael WADE v. STATE.
    1 Div. 604.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-801.

      Linda S. Perry and Lawrence J. Hallett, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Sidney Michael Wade was convicted of sodomy in the first degree and was sentenced to life imprisonment in the penitentiary. He appeals on several grounds.

The state’s evidence tended to show that appellant was acquainted with the mother of the 12-year-old victim in this case. Appellant told the child, who was eating at the Taco King in Mobile, that he wanted her to go with him to his apartment so that he could change his wet clothes. He assured her that he had secured her mother’s approval for her to go with him.

The alleged victim testified that Wade pulled off into a wooded area off U.S. Highway 90, where he offered her a marijuana cigarette. He then began repeatedly asking her to make love to him, which she refused to do. She became frightened and began crying. The appellant then said, “Well, we’ll have to do it my way.” He grabbed her legs, pulled down her pants and removed them, after pressing down on her throat and neck area with his arm. While holding her down with one arm, he attempted to insert his penis into her vagina but was unsuccessful. In the course of his attempts, his penis “fell down” to her anus. After his attempts at effecting intercourse failed, he began to kiss her pubic region. He again tried to have intercourse and was unsuccessful. Throughout all of this, the child testified, she resisted him by pushing, clawing and biting. She testified that she believed that he had ejaculated because her panties were wet and sticky. Swabs taken from inside the vagina proved negative, but swabs from the general vaginal area were slightly positive for the presence of semen. The crotch area of the panties tested very strongly of semen. Her fingernail scrapings showed the presence of type 0 tissue. The semen stains tested blood type 0. Both the victim and the appellant had type 0 blood. A medical examination hours after the incident revealed an abrasion between the vaginal opening and the rectum.

I

Appellant first argues that penetration is an essential element of sodomy in the first degree and that the court erred in refusing a directed verdict in his favor since the state did not prove penetration. We disagree. Sodomy in the first degree, per § 13A-6-68(a)(1) is defined as follows:

“(a) A person commits the crime of sodomy in the first degree if:
(1) He engages in deviate sexual intercourse with another person by forcible compulsion; ...”

“Deviate sexual intercourse” is defined by § 13A-6-60(2), Code of Alabama 1975, as “Any act of sexual gratification between persons not married to each other, involving the sex organs of one person and the mouth or anus of another.” Penetration is not an element of sodomy under this law. Cases such as Tarrant v. State, 12 Ala.App. 172, 67 So. 626 (1915), refer to an earlier statute which did require penetration.

The court correctly refused to instruct the jury that penetration was an element of the crime of sodomy in the first degree.

II

Appellant next contends that he was subjected to double jeopardy by being prosecuted for sodomy in the first degree, since he earlier had been tried for first degree rape arising out of this same occurrence. First degree rape and first degree sodomy are separate and distinct crimes. They require the proof of different elements. Our Supreme Court stated in Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973):

“A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law.”

To the same effect are Brown v. State, 367 So.2d 557 (Ala.Cr.App.1979), cert. denied, 367 So.2d 559 (Ala.1979), and Hughes v. State, 385 So.2d 1015 (Ala.Cr.App.1980). In addition, neither of these offenses is a lesser included offense of the other. We further find that the doctrine of collateral estoppel has no application in this case.

Ill

Appellant finally contends that the court erred in permitting the director of the Mobile State Toxicology Lab to testify as an expert. This official testified to her credentials; she testified that she had been recognized as an expert witness in Alabama state courts at least five times. She was closely examined at great length on voir dire. The court’s decision to permit the witness to testify as an expert is discretionary. We find no abuse of discretion and hold that the court did not err in accepting the director of the toxicology laboratory as an expert. See Pinkerton v. State, 417 So.2d 606 (Ala.Cr.App.1982); Gullatt v. State, 409 So.2d 466 (Ala.Cr.App.1981); Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), writ quashed, 378 So.2d 1173 (Ala.1979); and Merriweather v. State, 364 So.2d 374 (Ala.Cr.App.), writ denied, 364 So.2d 377 (Ala.1978).

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Kenneth Gerald YOUNG v. STATE.
    1 Div. 719.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-827.
    T. Jefferson Deen, III, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

Kenneth Gerald Young, the appellant, was indicted for rape in the first degree. A jury convicted him of attempted rape in the first degree. The trial judge sentenced him to twenty years’ imprisonment.

On appeal, Young argues that the trial judge erred in instructing the jury on attempted rape in the first degree because the facts were insufficient to support such a verdict. He argues that the crime is either rape in the first degree or sexual abuse in the first degree — but not attempted first degree rape.

“A male commits the crime of rape in the first degree if: * * * (3) He, being 16 years or older, engages in sexual intercourse with a female who is less than 12 years old.” Alabama Code Section 13A-6-61 (a) (3) (1975). The general attempt statute is Section 13A-4-2(a): “A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act toward the commission of such offense.” Therefore, the elements of attempted rape in the first degree are: (1) The intent to have sexual intercourse with a female who is less than 12 years old; (2) an overt act to carry out that intent; and (3) the failure to consummate the commission of the offense.

“A person commits the crime of sexual abuse in the first degree if: * * * (3) He, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.” Section 13A-6-66.

The State’s evidence presented a conflict as to whether or not penetration occurred. The uncle of the 6-year-old victim testified that Young had already penetrated the victim. The examining physician stated that he did not believe there could have been any penetration. In his confession, Young admitted that he was trying to penetrate the child when her uncle discovered them. Under this testimony, the issue of penetration was for the jury. Under these facts, the jury could have convicted Young of rape or attempted rape in the first degree or sexual abuse in the first degree. “There can be no doubt that it is within the competency of the legislature to create two or more criminal offenses which may be committed by a single act.... In such event, the state may elect to prosecute for either offense, or under either statute.” Coleman v. State, 290 Ala. 346, 348-49, 276 So.2d 589 (1973); Rampey v. State, 415 So.2d 1184 (Ala.Cr.App.1982).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Tyrone THOMAS v. STATE.
    3 Div. 813.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-819.

      Joel S. Rogers, III, Clanton, for appellant.
    Charles A. Graddick, Atty. Gen. and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   HUBERT TAYLOR, Judge.

Appellant, Tyrone Thomas, was convicted of felony possession of marijuana and sentenced to fifteen years in the penitentiary. The only issue raised on appeal is whether the trial court erred by not suppressing the marijuana found on Thomas and a statement he later made to police because of an illegal search and seizure. The facts of the case are summarized below.

Thomas was stopped by Officer Yates of the Montgomery Police Department for an improper headlight. When asked for a driver’s license, Thomas said he did not have one. Yates then asked him to step out of the car so some identification could be obtained.

Yates then saw yellow envelopes in a cloth pouch in Thomas’s pocket, which he immediately seized. Without looking in the envelopes, he placed Thomas under arrest, patted him down, and handcuffed him. Yates testified that he had never seen marijuana in plain view but had seen only the yellow envelopes. Thomas had not consented to any search, and he was not frisked until after the envelopes were pulled from his pocket. Additionally, Yates testified that prior to the seizure of the envelopes, Thomas was facing charges of “improper headlights” and “no driver’s license” but was not arrested until after the seizure of the envelopes. Officer Yates was not in fear of his safety and did not believe Thomas’s pocket contained a weapon. Finally, Yates testified that he had seen marijuana packaged in envelopes on other occasions.

The State contends that Thomas was under arrest at the time he stepped out of the car and that the seizure was the result of a search incident to a lawful arrest. This argument is without merit.

Since the officer had, in reality, only stopped the car and asked for identification, his actions up to that point can only be characterized as a limited investigatory stop or, in the words of Sly v. State, 387 So.2d 913 (Ala.Cr.App.1980), “a mere temporary detention.” The court in that case, citing 61A C.J.S. Motor Vehicles § 593(1) (1970), goes on to say:

“[Tjhis stopping of a motorist by a police officer for a traffic offense does not constitute an arrest. ‘An arrest is to be distinguished from a mere temporary detention, and the stopping of a motorist for ... questioning or investigation after an apparent violation of such laws does not of itself constitute an arrest.’ ” 387 So.2d at 916.

Yates, by asking for identification, was still investigating the case and had not issued any citations prior to seizing the envelopes. He testified that Thomas was not under arrest until after the seizure; under those circumstances, Thomas was temporarily detained.

Even if Thomas had been properly arrested, which he was not, he could not properly be placed under a custodial arrest. See Morton v. State, 452 So.2d 1361 (Ala.Crim.App.1984); Daniels v. State, 416 So.2d 760 (Ala.Crim.App.1982); and § 32-1-4, Code of Alabama 1975. The search-incident-to-arrest exception to the warrant requirement arises only when there is a custodial arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Fortunately, we live in a free society in which individuals are not usually subject to a custodial arrest for the failure to carry identity papers or driver’s license, or failure to keep the bulbs in their headlights from wearing out. For the foregoing reasons, the search in the case sub judice cannot be justified as a search incident to a lawful arrest.

Neither can the search be justified as a “stop and frisk” under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), since the frisk was after the arrest and the officer admitted that he did not believe Thomas was carrying a weapon. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967).

The other possible justification for the search is the plain view exception. After analysis, however, this justification must also be rejected.

Yates never saw marijuana or anything that would reasonably indicate to him that Thomas was engaged in a criminal activity. The envelopes were inside a coat pocket with the flap pulled down. All Yates saw were the envelopes themselves.

The case of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1970), required that it be immediately apparent that an article seized under the plain view exception was contraband or associated with criminal activity. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), has partially repudiated the “immediately apparent” requirement of Coolidge. However, there still must be probable cause to believe that an article is associated with criminal activity before it can be seized under the plain view exception.

In Texas v. Brown, the appellant, after being stopped by police, very gradually pulled his hand out of his pocket. The police officer noticed that there was a balloon tied off at one end between the appellant’s middle fingers which he let drop between the seats. While the appellant was looking in the glove compartment for an I.D., the officer noticed plastic vials, a white powdery substance, and an opened package of balloons. The officer testified that he knew from prior experiences that narcotics were frequently packaged in such a way, and that based on that past experience and what he saw in the glove compartment, he seized the balloon. The Supreme Court found sufficient probable cause for the seizure.

In the case sub judice, however, the facts do not supply the officer with any probable cause. Here the facts are simply that a few yellow envelopes could be seen in Thomas’s pocket and Yates had previously seen marijuana packaged in yellow envelopes.

It is an accepted common practice for individuals to carry yellow envelopes in a coat pocket. The activity in question, without more, is completely innocuous. Marijuana can be placed, packaged, or stored in many things: shoe boxes, match boxes, paper bags, suitcases, gym bags, jewelry boxes, and purses, to list just a few. To affirm this case would be tantamount to condoning the arrest of any individual in possession of a container.

To uphold this case under the plain view doctrine would cause Fourth Amendment protection to approach the evaporation point: Why, we wonder, would there be less probable cause for the police to make an arrest under the following facts? Johnny’s grandmother makes brownies for him on his birthday. After putting them in a bread basket, she puts them in her car and drives off on her way to Johnny’s. Unknown to her, however, is the fact that one of her taillights is not working. She is pulled over by an officer experienced in the ways of marijuana users. Knowing that marijuana is often baked into brownies, he seizes the brownies, which are in plain view, and wrestles Johnny’s grandmother to the ground.

Since we do not believe that type practice to be in the best interest of a free society, the judgment of the lower court is reversed and this cause remanded.

REVERSED AND REMANDED.

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

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


text:
    William Jerome FRANKS v. STATE.
    3 Div. 866.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-816.

      Barry E. Teague, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

William Jerome Franks, the appellant, was charged with first degree burglary in one indictment and with first degree sodomy and first degree rape in a second indictment. The indictments were consolidated for trial, and he was found guilty of all charges. Under each indictment, he was sentenced as a habitual offender and given life without parole. Two issues are raised on appeal.

I

Franks alleges that the trial judge erred and abused his discretion in denying defense counsel “access to the prior written statement of the prosecutrix for use in her cross-examination in a rape ease, where the statement contained evidence exculpatory in nature.” Franks argues that “the prosecution neatly avoided bringing out any statements which (the prosecutrix) had given in her prior written statement which were exculpatory in nature.”

The day of the crime, the victim gave a typewritten and signed statement to Montgomery Police Officer R.S. Grimsley. On direct examination, the prosecutrix neither used nor made any reference to that statement. On cross examination, defense counsel determined that she had given a written statement and requested a copy “for purposes of cross examination.”

Pursuant to the procedure outlined in Pate v. State, 415 So.2d 1140 (Ala.1981), the trial judge examined the statement in camera. Finding that there was not “anything contradictory in it”, the judge refused the request for production but informed defense counsel that “if something else comes out on your cross examination which makes the production necessary, I will do it at that time.” Defense counsel argues on appeal that the victim’s statement should have been produced because it contained exculpatory evidence which the prosecution did not elicit during its direct examination of the prosecutrix. That evidence and its significance are that in her statement the prosecutrix identifies her assailant as having “a little braid of hair near his ear”, when Franks did not have any braids when he appeared in the lineup later that same day. Also in her statement the victim stated that “(o)n one of his hands it looked like where he had some sores and it left little scars”, when defense counsel contends (but never proved) that Franks had no such sores or scars on his arms or wrists.

Under Pate, where a prosecution witness has given a statement prior to trial and has testified on direct examination in the trial of a case, the accused, “upon laying a proper predicate, is entitled to have the Court, at least, conduct an in camera inspection” and “determine initially (1) whether the statement made by the witness before trial differed in any respects from statements made to the jury during trial, and (2) whether the statement requested was of such a nature that without it the defendant’s trial would be fundamentally unfair.” Pate, 415 So.2d at 1144.

On appeal, defense counsel admits that at trial he knew of these two particular remarks made by the prosecutrix in her statement due to his own “fortuitous” and “lucky” investigation. His knowledge of the victim’s statement is obvious in his cross examination.

When questioned by defense counsel, the prosecutrix admitted that she told the police that her assailant “had a little-short braid of some kind on the side of his — * * * a braid or something on the side of his head like a little-piglet braid.” In her statement, the prosecutrix never indicated that the braid was hanging down over his ear. She admitted that Franks had no braids in the photograph of the lineup.

With regard to the scars, on cross examination the prosecutrix testified that her assailant had “rough scaly hands as if something was there” and that he had “marks on his hands as if from old scars or from — I don’t remember exactly how I worded it.”

We find no error in the trial judge’s refusal to allow defense counsel to inspect a copy of the statement of the prosecutrix for purposes of cross examination. Deep v. State, 414 So.2d 141 (Ala.Cr.App.1982). The statement made by the victim before trial did not differ in any significant respect from her testimony before the jury. We have compared the victim’s statement with her trial testimony and find no notable differences or distinctions. Defense counsel’s characterizations of the victim’s statements are not completely accurate. Moreover, we find that the refusal to produce the victim’s statement did not render Franks’ trial fundamentally unfair. Counsel actually knew of the victim’s statement and, regardless of how he gained that information, he used it at trial in cross examining the victim. If anything, the statement would have benefited the prosecution by showing exactly what the victim said and that she never said exactly what defense counsel attributed to her at trial.

Although Officer Grimsley testified at trial, on cross examination defense counsel made no inquiry into what the victim told the officer in her statement. We also note that the record does not show that defense counsel made any attempt to subpoena the individual from whom he learned that the victim had given a statement. In conclusion, we find no abuse of the trial judge’s discretion in the denial of the request to examine the statement of the prosecutrix.

II

Franks also argues that the trial judge erred in refusing to allow him to display his hands and wrists to the jury and in refusing to require the prosecutrix to indicate the scars and sores she observed on her assailant’s hands at the time of the assault.

On cross examination of the victim, defense counsel asked “that the defendant be allowed to approach the jury railing and demonstrate his arms.” The trial judge denied that request at that time: “l will not do that at this time, but I will allow you to do it at another time.” The judge stated that he thought that allowing the victim to indicate the sears on Franks’ hands was “outside the permissible perimeters of cross examination. But I will allow you (defense counsel) an opportunity to present me some authority that I could do that.” Defense counsel pursued neither matter, and, although a defense was presented, did not make another request to allow Franks to display his hands to the jury. In this posture, Franks has no valid ground to complain.

The evidence against Franks was overwhelming. The prosecutrix was positive and unwavering in her identification of Franks as her assailant. Scientific examination and analysis of blood and saliva samples revealed that Franks could have committed the crimes. Before the assault, the victim’s telephone cord and power had been cut off. Franks’ fingerprint was found on the power box outside the house. The knife which the victim identified as the one Franks used during the assault was found in a chair in a neighbor’s house where Franks had been sitting on the morning after the attack. So comprehensive is the State’s evidence of guilt that a very convincing argument can be made that, even if Franks’ arguments had merit and error were committed, that error was only harmless.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: BOWEN, Presiding Judge. SAM TAYLOR, Judge,

text:
    William Lester CAINE v. STATE.
    4 Div. 207.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-830.
    Steven K. Brackin of Lewis & Brackin, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

William Lester Caine was indicted and convicted for the first degree robbery of Y.C. Cook. Sentence was thirty years’ imprisonment. We reverse this conviction because the State did not prove a prima facie case of robbery in the first degree.

Mr. Cook was robbed by two black males on the afternoon of December 23, 1982. He could not identify either assailant because they were wearing masks. His two assailants grabbed him from behind, “snatched him down on his back”, and removed a .32 caliber pistol and $350 from his pocket. The two men then ran around the house, jumped a “yard fence” and “went out through the pasture.” The jury found Caine “guilty of Robbery in the First Degree as charged in the indictment.”

The distinguishing element of robbery in the first degree is that the robber was “armed with a deadly weapon or dangerous instrument” or caused “serious physical injury to another.” Alabama Code Sections 13A-8-41(a)(l) and (2) (1975). Here, there was no proof of either of those factors.

“Serious physical injury” is defined by Alabama Code Section 13A-l-2(9) as “(p)hysical 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.” Although there was evidence of “physical injury” as defined by Section 13A-l-2(8), there was no evidence of “serious physical injury.”

Mr. Cook, the victim, testified that the two robbers broke his dentures “aloose” and cut his mouth inside. The crime occurred on a Thursday and for the “rest of the week”, he could not wear his dentures or eat solid food: “It hurt me to drink water they were cut up so bad.” This does not constitute serious physical injury.

Additionally, there is no showing that either of the robbers was armed with a deadly weapon or dangerous instrument. In reaching this conclusion, we fully recognize that the expanded code definition of robbery in the first degree includes being armed with a deadly weapon or dangerous instrument “in the course of committing a theft” which “embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.” Alabama Code Section 13A-8-40(b) (1975).

The general rule is that “the robber need not be armed at all times during the robbery in order to be guilty of robbery in the first degree; he is guilty of robbery in the first degree if he arms himself or becomes armed with a deadly weapon at any time during the progress of the taking or while the robbery is being perpetrated, and in this connection the crime of robbery is not completed the moment the stolen property is in the possession of the robbers, but may be deemed to continue during their attempt to escape.” 77 C.J.S. Robbery, Section 25, p. 465 (1952) (footnotes omitted).

We have found few cases which treat this particular issue. The cases of People v. Rostamo, 249 Cal.App.2d 983, 58 Cal.Rptr. 74 (1967), and People v. Wallace, 36 Cal.App.2d 1, 97 P.2d 256 (1939), are factually distinguishable from the present situation. In Rostamo, the defendant, armed with his own pistol, took a police officer’s revolver and then robbed the officer and another individual. Rostamo followed Wallace, wherein the robbery was committed by three men. One of the robbers had his hand in his coat pocket and said, “All right, doc, let's have it.” The victim and the robbers went to the cash register, where the victim was searched. On finding a revolver on the victim, one of the robbers pulled the hammer back and pointed the weapon at the head of the victim “for a fraction of a minute. About that time the other two appellants were through looting the cash drawer and were on their way out of the (service) station. One of the appellants told the complaining witness to sit on the floor for twenty minutes.” 97 P.2d at 257. The court held:

“From a reading of the facts of this case it is at once apparent that appellants were engaged in the ‘taking’ of the personal property of the victim Weir at the time they became armed with the 38-cali-ber revolver. Appellants being thus armed while they ‘perpetrated’ the robbery, it matters not from what source they obtained the dangerous or deadly weapon in question.” Wallace, 97 P.2d at 257.

The only case we have found to be directly on the issue as presented by the facts in this case is People v. Williams, 63 A.D.2d 1035, 406 N.Y.S.2d 341 (1978). In that case, a police officer was attempting to catch a fleeing suspect when the officer “ran directly” into the suspect. The two men began to “wrestle” and fell to the ground, where the suspect gained possession of the officer’s service revolver. Armed with the weapon, the suspect immediately fled from the scene. The court, in applying a statute substantially identical to Alabama’s , held that the crime did not constitute first degree robbery.

“Under the peculiar circumstances of this case, we conclude that a robbery which consists of the taking of a weapon, and the immediate flight from the location with that weapon, without more, does not constitute robbery in the first degree within the meaning of section 160.15 of the Penal Law. The fact that the stolen property is a deadly weapon does not in and of itself convert the robbery into a robbery in the first degree, i.e., robbery while armed with a deadly weapon (see Penal Law, Section 160.15, subd. 2).” Williams, 406 N.Y.S.2d 342-43.

We find this case persuasive and on authority of Williams, reverse the judgment of the circuit court and remand this cause.

REVERSED AND REMANDED.

TYSON and HARRIS, JJ., concur.

SAM TAYLOR, J., dissents with opinion.

HUBERT TAYLOR, J., dissents.

SAM TAYLOR, Judge,

dissenting.

I respectfully dissent. Both the letter and the spirit of the law are better served by holding that when the robber arms himself with a weapon or dangerous instrument in the course of committing a robbery, the offense is enhanced to the higher offense of robbery I.

      . New York Penal Law, Section 160.15, provides:
      "A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant of the crime: ... 2. Is armed with a deadly weapon.”


text:
    Walter Rudolph HUNT v. STATE.
    6 Div. 773.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-832.

      Carol J. Mullican and R.B. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HUBERT TAYLOR, Judge.

The appellant, Hunt, was indicted and convicted for the capital offense of “[mjurder in the first degree when the killing was done for a pecuniary or other valuable consideration or pursuant to a contract for hire.” Ala.Code § 13A-5-31(a)(7) (1975). Sentence was life imprisonment without parole. The evidence presented at trial established that Hunt and Danny Ray Williams stalked the victim, James A. Taylor, for several months pursuant to a contract for hire made with James Alvin Inzer; that on March 21, 1981, Hunt and Williams, traveling in Williams’s automobile, drove alongside Taylor’s pickup truck and Williams shot Taylor at point-blank range with a sawed-off shotgun; and that the consideration for this murder was $1,500, which was paid.

I

In his first assignment of error, Hunt alleges the testimony of Officer Stuart was illegal; he contends that the officer’s name was not given to him pursuant to his pretrial motion requesting a list of the State’s prospective witnesses. The trial court had granted Hunt’s motion, but had left the method of compliance to the attorneys’ discretion. The attorneys agreed that the list of State’s witnesses was to be provided by the subpoena list or by notice. On the Friday before the trial began on Monday, the State filed a request that a subpoena issue for Stuart; however, Stuart’s name was inadvertently placed on the subpoena list as a witness for the defense rather than as a witness for the State. When Stuart was offered as a witness on Thursday, defense counsel interposed no objection. Defense counsel remained silent during Stuart’s direct examination, and after cross-examining the witness, he moved for a mistrial. The motion was denied.

We need not decide if this inadvertence amounted to a violation of the court’s order, for even assuming such, we conclude that a mistrial was not warranted under the circumstances before us. A high degree of “manifest necessity” for granting of a mistrial must be demonstrated before a mistrial should be granted. Woods v. State, 367 So.2d 982 (Ala.1978); Ala.Code § 12-16-233 (1975). “The entry of a mistrial is not lightly to be undertaken. ... [T]he entry should be only a last resort, as in cases of otherwise ineradicable prejudice.” Thomas v. Ware, 44 Ala.App. 157, 161, 204 So.2d 501 (1967) (emphasis in original).

Furthermore, Hunt’s motion was properly denied because defense counsel knew of the ground for complaint at the moment Stuart was offered as a witness, yet counsel failed to interpose a timely and appropriate objection. See e.g., Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735 (1975), cert. denied, 295 Ala. 414, 327 So.2d 740 (1976) (wherein the court deemed the appellant’s request for mistrial too late when it was made after the appellant sat silent while his full statement was related to the jury). After a question is asked and a responsive answer is given, an objection comes too late and the trial court will not be put in error absent a motion to exclude and an adverse ruling thereon. See e.g., Borden v. State, 444 So.2d 402 (Ala.Cr.App.1983). Hunt’s motion for mistrial was properly denied because it came after Stuart was offered as a witness, after he was examined by the prosecution, and after he was cross-examined.

Moreover, Stuart’s testimony properly remained before the jury for its consideration. A motion for mistrial does not serve the same function as a mere objection or motion to strike; neither does it include a motion to strike or exclude testimony as a lesser prayer for relief. Farley v. State, 437 So.2d 639 (Ala.Cr.App.1983).

II

Hunt seeks reversal on the additional contention that the trial court erroneously allowed co-defendant Williams's notebook into evidence, on the ground that the prosecution failed to timely produce it. Upon review of the discovery motion and the trial court’s order granting such motion, we find, as the trial court found, that the notebook was not among the items ordered to be produced. Hence, the trial court’s order was not violated and the notebook was properly admitted into evidence. See e.g., Lewis v. State, 335 So.2d 426 (Ala.Cr.App.1975), cert. denied, 335 So.2d 429 (Ala.1976).

Ill

Hunt further attacks the admissibility of Williams’s notebook on the ground that it constitutes hearsay. Even if the notebook is hearsay, reversible error cannot be predicated upon its introduction into evidence for the following occurred without objection prior to the State’s offer of the notebook:

“Q. [Prosecutor] I’d like to direct your attention to one specific page in this book, and I’ll ask you, is there a name there in that book?
“A. [Officer Emerson] Yes, sir.
“Q. What’s the name?
“A. Red Hunt.
“Q. And there’s some phone numbers underneath it?
“A. Yes, sir.
“Q. What are the phone numbers?
“A. 595-0589, and it has one that says shop, 595-3660, and then it has 833-8018.
“Q. Was that in there the night you took it in your possession on April 1st?
“A. Yes, sir.
“Q. Is it in the same condition today, or substantially the same condition today as that was at the time you received it from Danny Williams on April 1, 1981?
“A. Yes, sir.”

Subsequently, the exhibit was offered and only then did counsel object. The formal introduction of this notebook, which was preceded by detailed testimony concerning the contents of the notebook, represented no more than the sum of the preceding testimony and, consequently, did not cause reversible error. Ware v. State, 409 So.2d 886, 893 (Ala.Cr.App.1981), cert. dismissed, 409 So.2d 893 (Ala.1982); Hayes v. State, 395 So.2d 127, 147 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981). It is well established that it is not error to allow facts to be shown over objection when they have already been proven without objection. Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583 (1975). Accordingly, we find that the formal introduction of the notebook into evidence was not error.

IV

Hunt contends that the trial court erroneously granted the State’s motion in limine, which prevented the defense from impeaching a State’s witness by the introduction of the witness’s prior adjudication as a youthful offender. Hunt specifically attacks the prosecution’s standing to assert the witness’s prior youthful offender status; however, this assertion is based upon the erroneous assumption that such impeachment would have been proper, if it had been allowed. Section 15-19-7(a), Code of Alabama 1975, expressly provides that youthful offender determination shall not be deemed a conviction of a crime. Accordingly, such adjudication does not fall within the ambit of § 12-21-162(b), Code of Alabama 1975, which provides for the attack on a witness’s credibility by introduction of the witness’s conviction for a crime involving moral turpitude. See generally Daniels v. State, 375 So.2d 523 (Ala.Cr.App.1979). Thus, the witness’s prior status as a youthful offender was properly withheld from the jury’s attention.

This court is well aware of the United States Supreme Court’s opinion in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), wherein that Court held that the accused’s right of confrontation of witnesses requires that the accused be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness’s probationary status as a juvenile delinquent. In the case sub judi-ce, the witness’s probationary status had terminated five years before the trial; hence, unlike the juvenile in Davis, the witness could not have been biased as a probationer in a vulnerable status. The attempted impeachment was a general attack on his credibility, not an attempt to reveal possible bias. Impeaching evidence used to attack credibility generally has considerably less probative value than evidence which suggests false or influenced testimony because of bias resulting from fear of possible jeopardy to the witness’s probation. See id., 94 S.Ct. at 1112-1113 (Stewart, J., concurring). For these reasons, Davis v. Alaska is not controlling in the case before us.

In answer to Hunt’s contention that the prosecution had no standing to assert the protection of § 15-19-7 in favor of a prosecution witness, we note that the Supreme Court in Davis v. Alaska, 415 U.S. at 319, 94 S.Ct. at 1111, recognized the State’s interest in protecting and preserving the anonymity of a juvenile offender. Likewise, this court recognizes such interest in preserving the anonymity of a youthful offender as directed by § 15-19-7; Hunt’s contention is frivolous in light of the statutory mandate and the strong public policy behind the statute’s enactment of protecting those who fall within its ambit from the stigma and practical consequences of a criminal prosecution and conviction. Cf. Raines v. State, 294 Ala. 360, 317 So.2d 559 (1975). Furthermore, a party has an obvious and unquestionable interest in preventing its witness from being improperly impeached.

V

In his last assignment of error, Hunt contends that the prosecution improperly commented on Hunt’s failure to call his wife and children as witnesses to substantiate his explanation that he was at home on the night of the murder. He maintains that this comment violated the general rule that one party may not comment unfavorably on the other party’s failure to produce a witness supposedly favorable to that party if the witness is equally available to both sides.

The propriety of this comment rests upon the determination of “availability.” In ascertaining such, we make two inquiries: first, we determine if Hunt had a superior means of knowing of the existence and identity of the absent witnesses, and secondly, we determine if the relationship of the absent witnesses with Hunt would reasonably be expected to affect the witnesses’ personal interest in the outcome of Hunt’s trial, thus making it natural to expect that they would testify against the State and in favor of Hunt. Brown v. State, 50 Ala.App. 471, 280 So.2d 177, cert. denied, 291 Ala. 774, 280 So.2d 182 (1973).

In considering our first inquiry, we note that the absent witnesses could not have established an “alibi” for the crime for which Hunt was convicted, since the crime consisted of a conspiracy evolving over several months and terminating with the accomplished murder. However, they are likened to alibi witnesses, since they could have allegedly offered support to Hunt’s alibi for the night of the murder. Consequently, we are guided by reasoning of Henry v. State, 355 So.2d 411 (Ala.Cr.App.1978). In Henry, the court observed that because the accused is not required to notify the prosecution of an alibi defense, the prosecution generally does not know of the existence of an alibi until it is revealed from the witness stand. Upon its observations, the court concluded that the accused is generally in a superior position to know of the existence and identity of alibi witnesses. Consistent with this reasoning, we conclude that Hunt possessed this superior knowledge.

In considering the factor of the relationship of the witnesses with the accused, we observe that the absent witnesses to whom the comment was directed were Hunt’s wife and children. Arising from this familial relationship is the natural assumption that these witnesses would have been hostile to the prosecution and personally interested in the outcome of the trial. Thus, we cannot conclude that they would have been as available to the prosecution as to Hunt. See e.g., Waller v. State, 242 Ala. 1, 4 So.2d 911 (1941) (relationship of father/son); Oliver v. State, 440 So.2d 1180 (Ala.Cr.App.1983) (relationship of girlfriend/boyfriend).

In evaluating these two factors, we conclude that since Hunt’s wife and children were not equally available to the prosecution, but were only available to the defense, it was not error for the prosecutor to comment on Hunt’s failure to produce these witnesses.

We further observe that, although the prosecutor commented specifically on the absence of Hunt’s wife as a witness, this comment is not deemed erroneous by the Alabama Supreme Court’s ruling in Billingsley v. State, 402 So.2d 1060 (Ala.1981). Although the comment before us appears to be in violation of the principle in Billingsley, Hunt failed to enter a proper objection. The portion of the argument specifically directed to the absence of Hunt’s children as witnesses was proper. In objecting to the comment as a whole, Hunt failed to separate the permissible, material matter from the objectionable portion of the prosecutor’s comment calling attention to the absence of Hunt’s spouse. Accordingly, Hunt’s objection was overruled without error. See Emerson v. State, 281 Ala. 29, 198 So.2d 613 (1967); Weeks v. State, 432 So.2d 528 (Ala.Cr.App.1983).

Hunt further asserts the impropriety of the prosecutor’s comment on the ground the comment was made during the prosecutor’s rebuttal summation, and consequently, he had no opportunity to explain the absence of the witnesses. This ground for objection is presented for the first time on appeal. It has long been held that specific grounds of objection waive all grounds not specified, and the trial court will not be put in error on grounds not assigned. Oatsvall, 327 So.2d at 739.

Our consideration of the issues raised on appeal convinces us that the judgment of the circuit court is due to be, and it is hereby, affirmed.

AFFIRMED.

All the Judges concur.

      . See Williams v. State, [Ms. 6 Div. 761, May 31, 1983; extended, July 5, 1983] (Ala.Cr.App.1983), cert. granted (Ala.1983).

      . See Inzer v. State, 447 So.2d 838 (Ala.Cr.App.1983), cert. denied, 447 So.2d 850 (Ala.1984).


text:
    Edwrick V. FOWLER v. STATE.
    6 Div. 935.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-822.

      John A. Bivens of England & Bivens and Ralph I. Knowles, Jr. of Drake, Knowles & Pierce, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Edwrick V. Fowler was convicted of robbery in the first degree and sentenced to 30 years’ imprisonment. His appeal presents a number of legal issues.

The state’s evidence tended to show that the Junior Food Mart No. 40 in the Deer-field section of Northport, Alabama, was robbed just shortly after 9 p.m. on February 12, 1981. The robber was a black man around six feet tall, rather thin, wearing a long greenish-brown army-type coat. He wore a white sweater or vest, disguised himself with a red ski mask with black trim around the eyes and mouth, and was armed with a pistol. Forty or fifty dollars in cash was taken in the robbery. After the attendant at the store, Miss Virginia Ann Spain, triggered an automatic alarm, a general alarm was broadcast. Officers began patrolling the general area where the robbery took place. Shortly thereafter, about 1.5 miles from the convenience store, two officers passed a Pontiac automobile parked on the side of the highway. The officers noticed that the hood was up and a man was putting gas in the car. The officers turned their car around, then turned around again, pulled off the road behind the Pontiac, and stopped. Although contradicted, there is evidence that when they told the man to stop, he proceeded to the door to the driver’s seat instead. He did finally respond to the officers demand that he “Freeze.” The officers approached him and requested some identification. The man, the appellant in this case, could not produce any identification. While the other officer was talking to the appellant, Officer Williams shined his flashlight inside the car and saw a gun lying on a white garment on the console between the front seats of the car.

The officers called their supervisor, Sergeant Simmons, to the scene. Another officer arrived at the scene and removed the pistol and the white sweater from the car and showed them to the shift supervisor. Forty-two dollars in cash was discovered in appellant’s right front pocket. The officers ascertained the appellant’s identity, did a check and discovered there was an outstanding misdemeanor writ against the appellant. They also determined that he was carrying the pistol without a permit. They then took the appellant, the white sweater-vest and the pistol back to the convenience store. Miss Spain identified the sweater and the pistol as being similar to those used and said the man was about the same size.

The officers returned to the automobile with the appellant. Sergeant Simmons, who had noted earlier that the car trunk did not have a lock, unlatched the trunk with a screw driver he found on the floorboard. The officers saw a coat and ski mask matching the description of those used in the robbery and immediately slammed the trunk back shut. They then transported the car to the Northport Police Department where a full-scale inventory search was conducted.

I

Appellant first contends that the officers were not justified in stopping at his car in the first instance and that he was “illegally detained.”

The Alabama Stop and Frisk Law, Code of Alabama 1975, § 15-5-30, provides that:

“A sheriff or other officer acting as sheriff, his deputy or any constable, acting within their respective counties, any marshal, deputy marshal or policeman of any incorporated city or town within the limits of the county or any highway patrolman or state trooper may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions.”

The “stop and frisk,” to pass the constitutional test of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), must be weighed in light of the particular invasion which the stop and frisk involves as against the governmental interest which permits an intrusion on a private citizen’s Fourth Amendment rights.

The standard of “reasonable suspicion” employed in such instances, because of the minimally intrusive nature of the procedure contemplated, justifies a limited stop upon facts which demonstrate something less than full probable cause for arrest. Butler v. State, 380 So.2d 381 (Ala.Cr.App.1980); Bagony v. City of Birmingham, 371 So.2d 80 (Ala.Cr.App.1979).

In some situations, a stop and frisk is only a minor inconvenience or a petty indignity compared to the government’s greater interest in detecting or preventing crime. It is certainly not unusual for police officers to check on an automobile stopped along the side of a highway. Such a stop might be made simply to offer assistance to a stranded motorist. In this instance, we find that the rather difficult balancing test required by the Terry case weighs solidly in favor of the investigating officers. See Sterling v. State, 421 So.2d 1375 (Ala.Cr.App.1982).

II

Appellant next contends that the discovery of the pistol and the white sweater-vest in the automobile constituted an unlawful search and seizure. The state contends that the items were plainly visible, justifying their seizure from the automobile without a warrant under the doctrine of “plain view” as set out in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The testimony is clear that the following requirements of the plain view exception have been met: (1) The officer must have prior justification for the intrusion, (2) he must come upon the evidence inadvertently, and (3) he must immediately recognize the object discovered as evidence of wrongdoing. Myers v. State, 431 So.2d 1342 (Ala.Cr.App.1982), writ quashed, 431 So.2d 1346 (Ala.1983). The officer did have a right to be where he was, as considered in detail in I above. The officer obviously had no prior knowledge of the presence of the weapon and sweater-vest in the car. The case of Berryhill v. State, 372 So.2d 355 (Ala.Civ.App.1979) is factually distinguishable and not in point. The officer had no difficulty in determining that the pistol and the sweater-vest were evidence of wrongdoing. He asked the appellant if he had a pistol permit. Appellant admitted he did not, whereupon the officers seized the pistol and the sweater-vest. As appellant admits, a “search” implies probing into secret places for that which is hidden. This was not an unlawful search and seizure.

III

Appellant next contends that the officers were not justified in looking in the trunk of the car where the ski mask and coat were discovered. At the point in time when they looked in the car trunk, it had been established that the appellant was close in time and place to the robbery; that the appellant resembled the robber; that the gun and white sweater-vest, found in the car resembled those used by the robber, as stated by the victim, Miss Spain. The right to search the trunk of an automobile relies in part on the “automobile exception” to the rule prohibiting warrantless searches under the Fourth Amendment. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). With the facts in this posture, the officers had probable cause and were justified in searching the remainder of the vehicle, including the trunk.

IV

Appellant finally contends that the court erred in its charge to the jury. The appellant levels a number of criticisms at the oral charge, but the only one to which he duly objected relates to whether or not the court charged on the elements of robbery. While the court’s charge may be somewhat rambling, and not identical to that charge set forth in the Pattern Jury Instructions, we find that it did not constitute reversible error.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Warren Dean BLAIR v. STATE.
    7 Div. 226.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-808.

      Joseph Michael Maloney, Jacksonville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for the State.
   BOWEN, Presiding Judge.

Warren Dean Blair, the appellant, was indicted and convicted for the unlawful possession of Pentazocine (Talwin). The jury imposed a $25,000 fine and the trial judge sentenced Blair as a habitual offender to twenty-five years’ imprisonment. Three issues are argued on appeal.

I

It is argued that the trial judge erred in not recusing himself because of his personal prejudice against Blair.

On November 29, 1982, Calhoun County Circuit Judge Samuel H. Monk, II, accepted Blair’s guilty plea to the offense. The judge delayed sentencing so that Blair could “get his personal affairs in order.” Blair absconded and failed to appear for sentencing. A warrant was issued for his arrest on December 27, 1982. Blair turned himself in on March 2, 1983. Judge Monk allowed Blair to withdraw his guilty plea in June of 1983.

Prior to trial, defense counsel requested that Judge Monk recuse himself because at the motion to withdraw the guilty plea Judge Monk stated that the District Attorney “would probably want this case at trial again because I could give him as much time as I wanted to give him, or more time.” In denying the motion to recuse, the judge explained that Blair had pled guilty pursuant to a plea bargain for a minimum sentence as a habitual offender (15 years) and that in withdrawing the plea the State had nothing to lose. Judge Monk stated to defense counsel at the hearing on the motion to withdraw “that the Court has no feelings one way or the other about your client or about this case. I don’t know a thing about the facts of this case other than what was presented.” Blair argues that the judge’s remarks at the sentencing hearing contradict this and show that Judge Monk had preconceived notions of guilt.

In order to place the judge’s comments in their proper context, it is necessary to review some of the evidence presented at trial and at the sentencing hearing. At trial, the State’s evidence showed that drugs and drug paraphernalia were found throughout the house in which Blair lived with his mother and brothers. At the sentencing hearing, it was stipulated that Blair had three prior felony convictions: grand larceny, receiving stolen property, and possession of heroin. The pre-sentence report reflected other charges and convictions. In pleading for his client, defense counsel stated, “He has been addicted to drugs and these cases certainly are related to his weakness_ and I feel that he deserves every chance at that to try to overcome his weakness, his addiction and dependency on these drugs.”

In response to this argument of Blair’s attorney, Judge Monk stated:

“Now, I heard the evidence and testimony in this case and my opinion is that your involvement in this criminal activity goes beyond merely being a victim of a drug habit. I don’t live in a shell; I am aware and, of course, the other judges in this circuit are aware that your family are frequent defendants in court for drug related offenses. I don’t guess there’s a one of you now that hasn’t been convicted of a felony offense involving hard narcotic drugs. And this is purely my opinion, based upon your history and my personal knowledge of that history in your coming through court, is that you and the members of your family are involved in one of the most active drug rings in Calhoun County. It’s also this Court’s opinion based upon the evidence and testimony in this case and of your background that you and the members of your family have made your living off of making junkies out of members of the black community. And common sense just tells us when you have people who become dependent upon you for drugs and you sell those drugs and they need money to buy those drugs that you have a direct impact on crime in this area.”

The record contains no objection to these remarks.

Judge Monk sentenced Blair to twenty-five years’ imprisonment. The range of sentence for a habitual offender with three prior felony convictions on conviction of a Class C felony (Peoples v. State, 415 So.2d 1230 (Ala.Cr.App.1982)) is “imprisonment for life or for any term not more than 99 years but not less than 15 years.” Alabama Code Section 13A-5-9(c)(1) (1975).

We find nothing improper in the judge’s comments. The rule was stated in State ex rel. Payne v. Empire Life Ins. Co., 351 So.2d 538, 544 (Ala.1977):

“When bias and prejudice are the stated grounds for recusal, the general rule is:
“ ‘It is actual existence of prejudice on the part of a judge, not the mere apprehension of it by a party which disqualifies. Further, the disqualifying prejudice of a judge does not necessarily comprehend every bias, partiality, or prejudice which he may entertain with reference to the case, but must be of a character calculated to impair seriously his impartiality and sway his judgment, and must be strong enough to overthrow the presumption of his integrity ...’ Duncan v. Sherrill, 341 So.2d 946, 947 (Ala.1977).”

Judge Monk’s remarks simply do not amount to a showing of bias and prejudice necessary to compel recusal. Here, as in Pannell v. State, 356 So.2d 219, 221 (Ala.Cr.App.1977), cert. denied, Ex parte Pannell, 356 So.2d 222 (Ala.1978), “no disqualifying bias or prejudice as to defendant is to be found in the judge’s reference to previous official contact with the party, whether to the party’s discredit or not. Disqualifying prejudice or bias as to a party must be of a personal nature.”

II

The admission of several photographs found at the residence depicting Blair displaying a pistol, a marijuana cigarette, and a large sum of money were properly admitted as tending to show Blair’s residence at the particular address.

Testimony concerning the photographs was initially elicited by defense counsel on cross examination of an investigating officer. The inquiry into the photographs was detailed and defense counsel asked to examine and was given the photographs. Only on redirect examination did the district attorney offer the photographs into evidence. Outside the presence of the jury the prosecutor explained that defense counsel on cross examination “went into great detail about the method used to determine whether that room belonged to the Defendant or was where the Defendant stayed which would be — have very probative value as to whether or not he lived in that house.” The trial judge excluded all but two of the photographs because they depicted people other than Blair and would confuse the jury. However, the judge noted that defense counsel had “probably opened the door for those, too.”

We find no error in the admission of the photographs for three reasons. First, the photographs were properly admitted. “Where the defendant is charged with the possession, sale or use of drugs, other controlled substances found at the time and scene of the crime may be admissible to show the ‘complete story’.” Mauldin v. State, 402 So.2d 1106, 1110 (Ala.Cr.App.1981). The State had to prove that Blair knew that the marijuana was in the house and exercised some control over the premises. Mitchell v. State, 395 So.2d 124, 126 (Ala.Cr.App.1980), cert. denied, Ex parte Mitchell, 395 So.2d 127 (Ala.1981); Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978). Mere proximity to contraband is not enough to establish constructive possession. Story v. State, 435 So.2d 1365 (Ala.1983); German v. State, 429 So.2d 1138, 1142 (Ala.Cr.App.1982). Here, the photographs were relevant on the issues of intent and knowledge and were properly admitted. Blaine v. State, 366 So.2d 353 (Ala.Cr.App.1978). Photographs are admissible in evidence if they tend “to prove or disprove some disputed issue, ... illustrate or elucidate some relevant fact or ... corroborate or disprove some other evidence offered or to be offered.” C. Gamble, McElroy’s Alabama Evidence, Section 123.03(1) (3rd ed. 1977). “If a photograph illuminates issues in any way and is relevant, it is admissible in a criminal proceeding, though the photograph would have a tendency to inflame the minds of the jury.” Lawrence v. State, 409 So.2d 987, 990 (Ala.Cr.App.1982).

Second, the photographs were properly admitted because the defense had “opened the door” for their admission. Bickerstaff v. State, 369 So.2d 315, 317 (Ala.Cr.App.1979).

Third, by withdrawing his objection, defense counsel has waived any alleged error. The record shows that over defense counsel’s objection the trial judge stated he would admit two photographs of Blair. At that time defense counsel stated, “I’ll withdraw my objection on holding them out, Judge”, and answered “Yes” when botk the judge and the prosecutor asked, “Do you want them to go in?” By withdrawing his objection and indicating that he wanted the photographs admitted into evidence, defense counsel waived any objection he had previously made.

Ill

Here, the indictment was not due to be dismissed because the contraband had been destroyed. Two months after Blair had withdrawn his guilty plea, defense counsel filed a motion to produce, which Judge Monk granted. Among other items, the motion sought the production of a sufficient sample of the contraband for independent analysis and examination. However, the contraband had been destroyed according to routine operating procedure after Blair had pled guilty. We agree with the trial judge that Blair has no cause to complain about the destruction of evidence occasioned by his own actions.

“THE COURT: ... All right then, the Court finds that the destruction of the alleged controlled substances or substance in this case was brought about by the Defendant’s plea of guilty and the State’s subsequent notification of the plea of guilty to the police department, the prosecuting agency — or the arresting agency.”
“I’m going to find that the destruction of the evidence was brought about by an event or a series of events which were within the Defendant’s control and were placed into operation by the Defendant’s own acts. And therefore he cannot complain or has no legal complaint about the evidence being destroyed — the contraband being destroyed by the arresting agency following routine procedure. I’m going to grant the State’s motion to relieve them of the motion to produce the contraband.”

In a criminal prosecution for the possession or sale of a controlled substance, the accused has a right to inspect a sample of the substance and to have it inspected by his own experts. Warren v. State, 292 Ala. 71, 77, 288 So.2d 826 (1973); Etheridge v. State, 414 So.2d 157 (Ala.Cr.App.1982).

Here, the State could not comply with the motion to produce. The contraband had been destroyed after Blair had pled guilty and before he had withdrawn his guilty plea and filed his motion to produce. The prosecution was entitled to rely on Blair’s plea of guilty. Blair should not be allowed to profit by his own actions which either directly or at least indirectly resulted in the destruction of the evidence.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: PATTERSON, Judge.

text:
    Walter Lee CHILDERS, Jr. v. STATE.
    6 Div. 398.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Walter Lee Childers, Jr., pro se.
    Charles A. Graddick, Atty. Gen. and J. Callen Sparrow, Asst. Atty. Gen., for appel-lee.
   PATTERSON, Judge.

Childers appeals the summary dismissal of his pro se petition for writ of habeas corpus claiming that he is being illegally incarcerated in the West Jefferson Correctional Center, a branch of the Alabama prison system. The record reflects that he is serving a twenty-three year sentence for robbery and assault with intent to rob. He alleges that he has served more than his twnety-three year sentence, and that due to a miscalculation by the prison officials of the time served, he is being illegally detained. He claims that if he were properly credited with the time he has served he would be entitled to his immediate release. The State filed a motion to dismiss, avering, inter alia, that the petition for writ of habeas corpus was not properly verified by oath. The trial court granted the motion to dismiss on the grounds that the petition was not verified by oath as required by law. Section 15-21-4, Code of Alabama 1975, provides that the petition “[m]ust be verified by the oath of the applicant to the effect that the statements therein contained are true to the best of his knowledge, information and belief .... ” Childers apparently signed his petition before a notary public, and beneath his signature is the following acknowledgement: “Subscribed and Sworn to before me this 31st day of October, 1983. Signed Betty J. Rogers Notary Public.” The notary public’s seal is affixed. Does this acknowl-edgement satisfy the requirements of § 15-21-4? We think so. Niceties of pleading are not favored in habeas corpus proceedings. A petition which substantially complies with the provisions of § 15-21-4, and its corollary statutes is all that is necessary to secure the writ and bring before the judge the petitioner and his cause of detention. Rice v. State. [Ms. 5 Div. 885, June 5, 1984] (Ala.Crim.App.1984); Ex parte Thomas, 270 Ala. 411, 118 So.2d 738, cert. denied, 363 U.S. 822, 80 S.Ct. 1263, 4 L.Ed.2d 1521 (1960); Ex parte Rockholt, 271 Ala. 68, 122 So.2d 162 (1960), cert. denied 364 U.S. 935, 81 S.Ct. 384, 5 L.Ed.2d 368 (1961); State v. Thurman, 17 Ala.App. 656, 88 So. 61 (1921). In Powers v. Bryant’s Adm’r., 7 Port. 9 (Ala.1838), the Alabama Supreme Court, in considering the proper verification for a plea in abatement, stated:

“The verification at the foot of the plea, stating it to have been sworn to, and subscribed in open court, (as certified by the Clerk,) is certainly a sufficient compliance with the statute, which requires such pleas to be accompanied with an affidavit of their truth.
“The words ‘sworn to’ clearly refer to the plea, and must be taken to mean, that the testator declared on oath, the facts it set forth were true.”

The words “sworn to” at the foot of Childers’s petition must be taken to mean that he declared on oath that the allegations set forth in his petition were true, and we are of the opinion that this satisfied the requirements of verification in § 15-21-4.

The case of O’Such v. State, 423 So.2d 317 (Ala.Crim.App.1982), relied upon by the Appellee to support its contention that the petition was not properly verified, is distinguishable from the instant case. In that case the petition was not notarized and there was no jurat of any kind.

The circuit court erred in summarily granting the State’s motion to dismiss.

Therefore, the trial court’s judgment dismissing Childers’s petition for writ of habe-as corpus is hereby set aside and vacated and this cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All the Judges concur.


text:
    George BRUMFIELD v. STATE.
    6 Div. 724, 6 Div. 737.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.

      Michael C. Cornwell, Tuscaloosa, for appellant.
    Charles A. Graddick, Att. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TAYLOR, Judge.

Appellant George Brumfield was convicted of rape in case number 6 Div. 724 by a Tuscaloosa County jury and was sentenced to twenty years’ imprisonment in the penitentiary. He was convicted by another Tuscaloosa County jury of rape in case number 6 Div. 737 and was sentenced to 150 years’ imprisonment in the penitentiary. Counsel for appellant Brumfield has moved that he be allowed to consolidate the briefs in the two cases, showing that the victim in each case testified in the other case. The single issue on which both cases are appealed is: should the victim in the other case have been allowed to testify? The motion to consolidate was granted by Presiding Judge Bowen of this court.

Appellant contends on appeal that neither victim’s testimony in the other’s trial was probative. He contends that the testimony should not have been admitted into evidence under any exception to the rule prohibiting proof of crimes other than the one charged.

The state’s evidence in one case tended to show that the victim in that case was a licensed practical nurse, who arrived home around 11:30 at night after working the 3 to 11 shift. She changed clothes to go out with friends. As she left her parents’ home in Northport, Tuscaloosa County, Alabama, she saw the appellant, George Brumfield, holding a gun on her. He forced her to get into her car. They drove out to a subdivision where some houses were under construction. They got out of the car and the appellant told her to take her clothes off. The appellant laid a towel down on the pavement at the side of the road and they there engaged in sexual intercourse. As they were getting dressed, she had to ask him to give her her panties back. At his direction, she drove back to town by the same route and he got out of the car at the Five Points Baptist Church. The victim was uncertain whether to report the incident to the police or not. She spent that night at a girl friend’s house and reported the rape incident the next morning. She went to a hospital and was examined by a physician.

She testified at trial that she was able to see the appellant by the dome light in the car when they got out of the car, although there were no street lights in the new subdivision. She testified that the appellant had a moustache. They lay on the pavement behind the car for about thirty minutes. The victim identified the appellant as the man who raped her, both from photographs and in court at trial.

The state’s second witness in that case was a woman who had been raped four days before the nurse was raped. She testified that she was at the time of the rape a Tuscaloosa police officer, and that she had gotten home in the Woodland Park area of Tuscaloosa around 12:30 a.m. and had taken one of her dogs for a walk. Returning home about 1:00 a.m., she heard someone running behind her. It was a man who told her that he jogged every night. He pulled a gun on her and forced her to proceed into a wooded area in the residential neighborhood where they were. There he forced her to have sexual intercourse with him. She testified that later he handed her shorts and shirt to her. She identified George Brumfield as her attacker. She testified that she also learned later that he was staying in a Sheraton Inn near her walking route on the night of the rape.

There was other testimony that the appellant confessed to these crimes while in a Louisiana jail. Chief Deputy Sheriff Warren Miller of Tuscaloosa County, Alabama, went to Louisiana and took a statement from Brumfield about thirteen months after these rapes. Brumfield had, in the meantime, been working on an oil rig in Southeast Asia.

Should the victim in each case have been allowed to testify in the other case?

' The distinguishing feature of the identity exception which justifies admission of evidence of other crimes is that the witness’s positive identification of an assailant is probative of the perpetrator’s identity in the case being tried. Otherwise, the evidence would tend to show only a propensity to commit crimes, or bad character. Such an identification only tends to prove identity if it provides an inference that the person who committed the first crime is also the one who committed the second. The manner of commission, or circumstances surrounding the commission, of the two incidents must bear some similarity or “novel and peculiar” features in order to provide the necessary inference.

Two statements of the general rule as to the identity exception have been relied on by this court. One is Wigmore’s explanation of the source of the inference:

“For simplicity’s sake, the evidential circumstance may thus be spoken of as ‘a mark.’ But in practice it rarely occurs that the evidential mark is a single circumstance. The evidencing feature is usually a group of circumstances, which as a whole constitute a feature capable of being associated with a single object. Rarely can one circumstance alone be so inherently peculiar to a single object. It is by adding circumstance to circumstance that we obtain a composite feature or mark which as a whole cannot be supposed to be associated with more than a single object.
“The process of construing an inference of identity thus usually consists in adding together a number of circumstances, each of which by itself might be a feature of many objects, but all of which together make it more probable than they coexist in a single object only.” 2 Wigmore, Evidence, § 411 (Chadbourn rev. 1979) (Emphasis in original.)

The other is Judge McElroy’s statement:

“[T]he identity exception to the general exclusionary rule ... contemplates the situation where the now-charged crime was committed in a novel and peculiar manner and the state is allowed to show that the accused has committed other similar offenses, in the same novel and peculiar manner, in order to show him the perpetrator of the now charged crime.” C. Gamble, McElroy’s Alabama Evidence, § 69.01(8) (3d ed. 1977).

In some cases, the degree of similarity eliminates the requirement that there be an unusual modus operandi. In Thomas v. State, 409 So.2d 955 (Ala.Crim.App.1981), we held that the robberies at issue were not “novel and peculiar” in the usual sense, but so resembled each other as to fall within the identity exception. There, the totality of the circumstances indicated “[t]he defendant had placed his mark or signature on each offense.” Thomas, 409 So.2d at 956.

The identity exception may be used only when the defendant’s identity has been put in issue (McElroy, id.). However, this issue can be injected in several ways. It is not necessary that a special plea be entered, nor that defense witnesses be called, to raise the issue of identity. Identity of the perpetrator is placed in issue when counsel for the defendant cross-examines a witness so as to challenge the witness’s identification of the perpetrator. See Thomas, id. at 957, quoting Scott v. State, 150 Ala. 59, 43 So. 181 (1907). We find that the issue of identity was presented by the defendant by cross examination in this case.

How strong a similarity must there be, or how “novel” must the common modus operandi be, in order for evidence of the other crime(s) to be probative of identity? In Brewer v. State, 440 So.2d 1155 (Ala.Crim.App.1983), we reversed the appellant’s conviction because the evidence of an attempted strangulation seven years earlier showed quite different circumstances. There, the victim’s body was found under a bridge, bound and strangled. The victim of the earlier crime, however, was sitting in her car talking to appellant when he attacked and tried to choke her. In Nichols v. State, 422 So.2d 804 (Ala.Crim.App.1982), the prosecutrix and the prior victims all positively identified the appellant’s voice, and all were either blindfolded or told not to look at the rapist as he raped them. We found the similarities justified admitting the evidence. In Smith v. State, 409 So.2d 455 (Ala.Crim.App.1982), the defendant returned his rape victims home and apologized for raping them; the other incidents, first testified to by the defendant himself, were admitted.

In Bighames v. State, 440 So.2d 1231 (Ala.Crim.App.1983), we noted the propriety of admitting evidence of prior crimes under the identity exception in a case where the abduction/rapes of UAB coeds showed the same methodology. The charged and prior abductions were so similar as to constitute, per Judge Bowen, “ ‘signature crimes’, having the accused’s mark and the peculiarly distinctive modus operandi so that they may be said to be the work of the same person,” Bighames, id. at 1233.

For example, in Mitchell v. State, 45 Ala.App. 668, 235 So.2d 917 (Ala.Crim.App.1970), the appellant was charged with carnal knowledge of a female under twelve years of age. All the witnesses were pre-teenage girls who had been walking to school when appellant approached them, but no sexual contact had occurred with the witnesses. The court allowed evidence of prior incidents involving two other girls as “sufficiently similar” to the one prosecuted.

In Hayes v. State, 384 So.2d 623 (Ala.Crim.App.1980), an assault with intent to murder case, the appellant suddenly reached around the female victim’s back and applied pressure to her neck. He had done the same thing in an earlier assault on the witness. Both attacks occurred around 3:00 a.m. in the women’s apartments. The similarity was held sufficient to admit the evidence of the earlier incident.

In Humphrey v. State, 54 Ala.App. 62, 304 So.2d 617 (Ala.Crim.App.1974), anno. 2 A.L.R.4th 330, two of the three victims of Humphrey’s assaults positively identified him. The only noteworthy “mark” or similarity linking the two rapes and one attempted rape was that the attacker walked unarmed into the victims’ bedrooms to attack or rape them. The similarity was found sufficient to admit the evidence. Details of the crimes varied considerably.

The two Brumfield cases are well within the confines of the “sufficiently similar” and “novel and peculiar” category. It has been suggested, and with good reason, that the identity exception seems to have taken on a more liberal definition when the defendant is charged with a sex crime. The act of rape itself is more nearly an act of assault than a sexual act. To accost a strange woman and use a gun to force her to submit to sexual intercourse is in itself an unusual and extraordinary act. Brewer, supra, is factually distinguishable because of the seven year lapse of time between the incidents. The court in the present cases did not err in permitting each of the victims to testify in the case of the other.

Accordingly, these cases are due to be affirmed.

AFFIRMED.

All the Judges concur.