author: HARRIS, Judge.

text:
    David Larry NELSON v. STATE.
    6 Div. 130.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-930.

      Frederick H. Heffler, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant’s first conviction for the December 31, 1977, robbery and murder of James Dewey Cash was affirmed and remanded for proper sentencing in Nelson v. State, 405 So.2d 392 (Ala.Cr.App.1980). The case was subsequently reversed and remanded for new trial, 405 So.2d 401 (Ala.1981), in accordance with the decisions in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980), construing Alabama’s death penalty statute.

On October 27, 1982, appellant was found guilty of murder in the first degree. He was sentenced to life imprisonment in the state penitentiary.

The facts and circumstances surrounding the crime are set out in detail in Nelson, supra, and need not be repeated here. In addition, several questions raised on this appeal were fully addressed and determined in Nelson, supra, and will not be discussed herein. These questions were the following: whether the failure to grant a preliminary hearing and a second habeas corpus hearing amounted to a denial of appellant’s constitutional rights; whether appellant was denied a fair trial because the trial judge refused to recuse himself; whether the trial court erred in refusing to appoint psychiatric experts; and, whether the murder weapon was validly seized during inventory of a stolen vehicle.

Appellant alleges that the State denied him a fair trial by its failure to provide him, as an indigent defendant, with funds for employment of investigators or expert witnesses.

It is, however, settled law in Alabama that a denial of funds for the employment of investigators and experts does not amount to a deprivation of constitutional rights. Dutton v. State, 434 So.2d 853 (Ala.Cr.App.1983); Thigpen v. State, 372 So.2d 385 (Ala.Cr.App.), cert. denied, 372 So.2d 387 (Ala.1979) (and cases cited therein).

Appellant contends that the indictment against him should have been dismissed on grounds of due process, collateral estoppel and double jeopardy, because his previous conviction was reversed in accord with the decisions in Beck v. Alabama, supra, and Beck v. State, supra.

The United States Supreme Court has held that, where a conviction is reversed because-there was insufficient evidence to convict, the double jeopardy clause of the Fifth Amendment bars a retrial. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). This was not, however, the basis of reversal of appellant’s first conviction, and under Allen v. State, 260 Ala. 324, 70 So.2d 644 (Ala.1954), and McCart v. State, 50 Ala.App. 387, 279 So.2d 558 (Ala.Cr.App.1973), when a judgment is reversed on the basis of an irregularity, not going to the validity of the conviction, an appeal by the defendant causing a reversal does not put the defendant twice in jeopardy. Appellant’s initial conviction was reversed because the jury was not instructed on the lesser-included offenses. Since this error did not concern the sufficiency of the evidence, or the validity of the conviction, appellant was not entitled to dismissal of the indictment on grounds of double jeopardy.

Appellant also argues that his first conviction was under a statute which was struck down in Beck v. Alabama, supra, and that retrying him on the same charge under a new or rewritten statute violated his right to due process and his right to protection against double jeopardy under the Fifth Amendment.

In Ex parte Potts, 426 So.2d 896 (Ala.1983), the Alabama Supreme Court, addressing this issue, held that only that portion of the death penalty statute which precluded the jury from considering a verdict of guilt for a non-capital offense was unconstitutional. This clause was severed from the statute. Appellant was not, therefore, retried under a new statute, as he alleges, but under the same statute sans the preclusion clause.

Appellant next contends that the trial court erred in overruling appellant’s motions for mistrial on two occasions.

The first motion for mistrial was interjected in response to testimony concerning the drawing of blood from appellant. The testimony, objection, and motion for mistrial was as follows:

“Q. Did you ever draw a sample of blood from David Larry Nelson?
“A. 'Yes.
“Q. MR. DAWSON: Judge, for the record, we would object to that. There are constitutional protections, we submit, for which predicate must be laid. We would raise those objections. I will speak more if I need to.
“THE COURT: Anything else?
MR. DAWSON: That’s basically it. But there needs to be a predicate laid and some showing of Fifth Amendment privileges being waived.
“THE COURT: Overruled.
“Q. Did you draw blood from David Larry Nelson?
“A. Under my supervision and in my presence, a sample was drawn and turned over to me at that time, yes.
“Q. Do you recall who withdrew it or what kind of person they were?
“A. It was drawn by part of the medical staff in the jail.
“MR. DAWSON: I would object to that and move for a mistrial.
“THE COURT: Overruled.”

Appellant argues in brief that the State failed both to lay a proper foundation for this evidence, and to show any waiver of appellant’s Fifth Amendment rights. A review of the record reveals that the witness’s qualifications as an expert were established, that he testified regarding facts which were within his personal knowledge, and that these facts were directly relevant to contested issues in the trial. Appellant does not specify what fundamental elements he finds omitted, and we have found none.

Appellant’s contention that his Fifth Amendment privilege not to be compelled to testify against himself was violated by the taking of a blood sample is untenable in light of the decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The court, in Schmer-ber, held that the Fifth Amendment privilege of a defendant in a criminal case to be free from compulsion to testify against himself protects an accused from compulsion to provide the State with testimonial evidence or evidence of a communicative nature. The Court held that admission into evidence of results of analysis of blood, drawn from a defendant, was not violative of the Fifth Amendment privilege, since the evidence was not of a testimonial or communicative nature.

Appellant made a second motion for mistrial when, during closing arguments, the prosecutor alluded to the fact that both of appellant's witnesses had criminal records. One had numerous felony convictions and one had been convicted of murder. The prosecutor stated, “That’s his friends and cronies, people who are in jail.” Appellant said, “I object to that.” His counsel said, “Judge, I’m going to object to that and move for a mistrial.”

At the threshold of consideration, it is clear that these general objections were insufficient to preserve the issue for review. “The trial court must be apprised of the basis for the objection with sufficient particularity to allow an informed decision to be made on the legal issue involved.” Ward v. State, 376 So.2d 1112, 1115 (Ala.Cr.App.), cert. denied, 376 So.2d 1117 (Ala.1979). Notwithstanding this failure to object with particularity, it is clear that the prosecutor was commenting upon facts in evidence, and “[a] prosecutor in argument to the jury may not argue as a fact that which is not in evidence, but he may comment on proper inferences which may be drawn from the evidence and may draw conclusions from the evidence based on his own reasoning.” (Citation omitted.) Andrews v. State, 359 So.2d 1172, 1178 (Ala.Cr.App.1978). Moreover, it is fundamental that the trial judge, who is in the best position to determine when closing arguments are prejudicial and what curative measures are called for, is given wide discretion. Hurst v. State, 397 So.2d 203 (Ala.Cr.App.), cert. denied, 397 So.2d 208 (Ala.1981). We cannot hold, as a matter of law, that the trial judge abused his discretion during the prosecutor’s closing arguments.

Appellant contends that the State failed to prove the essential elements of the offense charged in the indictment, and that the trial court should have granted his motion to exclude the State’s evidence on the basis of the State’s failure to make a prima facie case. Appellant observes that the State’s evidence against him was comprised of circumstantial evidence, such'as ballistics reports and blood analysis reports, and the testimony of Linda Vice. Appellant contends that, because Ms. Vice was an accomplice, her testimony should not have been admitted into evidence.

The burden of proving that a witness was an accomplice, however, is upon the defendant. Andrews v. State, 359 So.2d 1172 (Ala.Cr.App.1978). As appellant points out, Linda Vice was not charged in the case, and no evidence was presented to support the contention that she was an accomplice. In fact, evidence adduced by the defense supported an alibi defense, confuted appellant’s presence at the scene of the crime, and was incompatible with the theory that Linda Vice was an accomplice to the crime. The mere fact that an individual is a witness to a crime does not make him an accomplice, and, except where the State’s evidence indisputably makes a witness an accomplice, the defendant carries the burden of showing the witness’ complicity. Nelson, supra.

On appeal from appellant’s first conviction on virtually the same evidence, all of the elements of robbery and intentional killing were held to be proven through the testimony of Linda Vice. Whether Ms. Vice’s testimony was to be believed in this second conviction was again a jury question. Nelson, supra.

Appellant contends that the trial court erred in refusing to give the written charges he requested. Specifically, appellant alleges that the court erred in refusing to charge the jury on the lesser included offenses of manslaughter in the first and second degree, and in refusing to charge the jury on the effect of uncorroborated testimony of a co-conspirator.

An accused is not entitled to have the jury charged on a lesser included offense unless there is a reasonable theory from the evidence to support the lesser offense. Oglen v. State, 440 So.2d 1172 (Ala.Cr.App.), cert. denied, 440 So.2d 1177 (Ala.1983); Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981). In Ex parte Potts, 426 So.2d 896 (Ala.1983), the court held that refusal to give an instruction of manslaughter was proper in light of the fact that the defense consisted of a denial of the killing, and there was no evidence that the killing was due to recklessness or heat of passion. Appellant’s case is directly analogous to Ex parte Potts. He also denied the killing and there was no evidence that the killing was due to recklessness or heat of passion.

As to appellant’s refused charge on accomplice testimony, this court, in Simmons v. State, 368 So.2d 315, 316 (Ala.Cr. App.1979), held that charges were properly refused when they were “mere statements of legal principles, without instruction as to the effect upon or application to the issues and were not hypothesized on a ‘belief from the evidence.’ ” (Citation omitted.) As discussed above, there was no evidence presented at trial in support of appellant’s present contention that Ms. Vice was an accomplice. The requested charges were, thus, properly denied.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Freddie Joe PETERSON, alias v. STATE.
    6 Div. 705.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-925.

      Mark S. Stephens of Stephens & Gunter, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Freddie Joe Peterson, the appellant herein, was indicted for and convicted of the murder of Bobby Bush, whom he shot twice with a pistol. The appellant was sentenced to fifty years’ imprisonment in the penitentiary.

On Thursday evening, August 21, 1980, the appellant and his girlfriend, Bonnie Fritz, went with Vicki Stephens to the Ramada Inn Lounge “for a drink.” While they were there, Ms. Fritz met Bobby Bush, whom she invited to her table for a drink. Ms. Fritz, Ms. Stephens, Bush and the appellant were together for the remainder of the night until the lounge closed at 1:00 a.m. Fritz then drove Stephens and the appellant back to her apartment.

According to Fritz, after Stephens had left the automobile, just outside Fritz’s apartment, she told the appellant that he could not “come in.” The appellant pulled out a pistol from underneath the front seat of the car and pointed it at her head. Fritz and the appellant walked to Fritz’s apartment where, once inside, she again asked him to leave. According to Fritz, Stephens also pleaded with the appellant to “go home” before she, Stephens, left. When Fritz again asked him to leave, the appellant got mad and knocked her down. As Fritz and the appellant struggled, appellant’s gun discharged twice. The appellant was intoxicated and began cursing and threatening to kill not only Fritz, but also a number of other people just to demonstrate that he was a “mean” person. Shortly thereafter, Bush came to the apartment door looking for Ms. Stephens. While Bush was standing in the doorway, the appellant began cursing again and threatened Bush with the pistol. As Fritz ran toward her bedroom to get a shotgun, she saw the appellant walk toward the door, his pistol still pointed at Bush. She heard the appellant fire the fatal shots at Bush. Bush was unarmed at the time.

Fritz further testified that immediately after the shooting, while she was trying to load her shotgun, the appellant again pointed his pistol at her head and threatened to kill her. After she had called the police, as she was attending to the victim, the appellant looked at the victim and exclaimed, “Die you son-of-a-bitch, die.”

Robert Couch, one of the ambulance attendants, testified that he heard the appellant say, “I should have killed the [S.O.B.] when I had a chance to.”

Dr. Henry Santina testified that the victim was shot twice, once in the right chest and once in the back. The fatal shot was the one to the right chest which penetrated the lung and caused shock from extensive hemorrhaging. The wound in the back was in the left shoulder. The bullet that entered through the victim’s back followed a downward path where it grazed the heart and finally lodged behind the breastbone.

The appellant did not deny that he shot and killed the victim. However, he claimed that he acted in self-defense.

The appellant explained that he lived with Ms. Fritz, and that the argument he had with her after they arrived home that night concerned her desire to “go out” again without him. He testified that he had brought his pistol “in from the car” and still had it in his right hand, as he struggled with Fritz to make her stay home. The pistol was discharged twice, accidentally, during the struggle. He denied ever threatening Fritz with his pistol. He explained that his argument with Fritz had ended and that he and Fritz had both “calmed down,” when the victim came to the door. The victim appeared to be “very mad and upset.” The appellant testified that he warned the victim not to enter the apartment and, then, threatened the victim with his pistol as the victim started toward him. He pleaded with the victim to leave. He shot the victim only after the victim had refused to leave and had “slowly lunged” toward the appellant. The appellant, explained that he feared for his life because he, the appellant, was a small man with certain physical disabilities and the victim was very large, well over 200 pounds, and muscular. The appellant denied threatening Fritz after the shooting and he denied making those statements, as the victim lay dying on the floor, that were attributed to him by Fritz and Couch.

The appellant argues that the state committed reversible error by soliciting, from different witnesses, testimony that imper-missibly referenced a series of events which occurred in February, 1980, when the appellant was, allegedly, evicted from Ms. Fritz’s apartment. The appellant contends that the February incidents were pri- or crimes or specific bad acts, evidence of which was patently inadmissible for any purpose. We disagree.

Ms. Fritz was the key witness for the prosecution. Although she did not witness the shooting itself, she did witness all of the events leading up to and surrounding the shooting. She explained that the appellant had become very angry with her because she had repeatedly asked him to leave her apartment. She described the argument that ensued, including appellant’s threats to kill her, his threats to kill others, generally, in the Tuscaloosa area to demonstrate that he was a “mean son-of-a-biteh from West Virginia,” and the fact that he had fired his pistol twice before the victim arrived. She explained that the appellant was still cursing when the victim arrived, that he continued cursing and directed several threats at the victim, and that he accused the victim of coming to see her. She further explained that after he shot the victim, he again threatened to kill her and then pleaded with the victim to die, and stated that the victim was not “the first son-of-a-bitch I ever killed.”

In light of this testimony, including Ms. Fritz’s statements that the appellant was not living with her at the time of the shooting and that she had repeatedly asked the appellant to leave her apartment before the victim arrived, appellant’s attorney made concerted and understandable attempts to discredit Ms. Fritz as a witness. Appellant’s theory was that Fritz was a jealous and possessive woman who was testifying against him “to get back at him” for “moving out on her” and for “seeing” other women. During cross-examination of Fritz, in his zeal to demonstrate her alleged bias against the appellant, appellant's attorney induced the following exchange:

“Q O.K. Now, now Bonnie [Ms. Fritz], you said you loved Fred [the appellant] at one point, is that right or did you not say that?
“A I said at one time back in ’79 maybe early part of ’80 I thought at one time that I did care for the man.
“Q Then you quit caring, is that correct?
“A Yes, sir, I did.
“Q Did you quit caring because he moved out on you, tried to move away from your apartment?
“A I had him moved.
“Q You had him moved?
“A Yes, I did.”

Despite appellant’s arguments to the contrary, it was this reference to the February incidents that “opened the door” to further inquiry into those matters. The state's solicitation, on redirect examination of Fritz, of additional explanatory facts about those incidents was entirely proper. “On redirect examination the state may examine the witness as to any matter injected into the case on cross examination by defense counsel within the discretion of the trial court.” Chatom v. State, 360 So.2d 1068 (Ala.Cr.App.), cert. denied, 360 So.2d 1074 (Ala.1978); see, Satterwhite v. State, 364 So.2d 345 (Ala.Cr.App.1977), reversed on other grounds, 364 So.2d 359 (Ala.1978); Barton v. State, 376 So.2d 756 (Ala.Cr.App.), cert. denied, 376 So.2d 761 (Ala. 1979). Chatom, Satterwhite, and Barton all involved, as does the instant ease, evidence of a prior, unrelated crime.

The other references to the February incidents, references cited by the appellant as reversible error, came after the examination of Fritz had been completed. None of those subsequent references were made solely to prove appellant’s criminal propensity. “It is well settled that prior offenses committed by the accused are inadmissible when offered solely for the purpose of showing the accused’s criminal propensity.” Jones v. State, 362 So.2d 1303 (Ala.Cr.App.1978), and cases therein cited. Instead, these additional, and more detailed, inquiries into the February incidents were made to rebut statements and inferences made by the appellant while he was testifying either on direct or cross-examination. The appellant had testified that on the few occasions when he had “moved out” of Fritz’s apartment, he did so on his own initiative because she was “hard to live with” at times and often “drank” too much. He stated that whenever he “moved out,” Fritz would become very upset and would beg him to return. He implied that these instances when he would voluntarily “leave her” were part of the reason that Fritz was biased against him at trial.

In light of these statements discrediting Fritz’s testimony, the state further inquired into the February incidents, not to show that they resulted in prior convictions, but rather to show that in February 1980, Fritz had, in fact, evicted the appellant from her apartment. Because appellant insisted that he always moved out of Fritz’s apartment voluntarily, and was never forced to leave, the state was permitted to disclose the details of the eviction, including the fact that the police had to disarm the appellant of a knife before they could forcibly remove him from Fritz’s apartment. Although the trial court, perhaps, permitted a more detailed inquiry into the February incidents than was necessary to rebut appellant’s testimony, none of the trial court’s rulings, nor the actions of the state, constituted reversible error in the contexts in which they occurred. Rebuttal evidence, even evidence of prior crimes, is generally admissible within the sound discretion of the trial court. Vincent v. State, 231 Ala. 657, 165 So. 844 (1936); Jones v. State, supra; Norris v. State, 429 So.2d 649 (Ala.Cr.App.1982). There was no abuse of discretion in this cause. The appellant contended that he always “moved out” voluntarily, the state forced him to admit that he was evicted in February, and the appellant himself was allowed to explain in detail the events surrounding the February eviction. The issue of Fritz’s alleged bias against the appellant was, thusly, properly presented to the jury.

The appellant further challenges the admissibility of evidence of threats communicated by the appellant to Fritz in November 1980, after the shooting incident, and the admissibility of Emil Robinson’s testimony that he had heard the appellant threaten to kill someone. The evidence of the November 1980, threats was permissible rebuttal evidence offered after the issue as to why Fritz had moved out of her apartment in November had already been raised by appellant’s counsel during cross-examination of Fritz. See, Chatom v. State, supra, and Norris v. State, supra. Appellant’s counsel had asked Fritz, on cross-examination, if she had moved out of her apartment in November because she could not afford it without appellant’s support. Likewise, the non-specific reference by Robinson to a threat by the appellant to kill someone was proper rebuttal of appellant’s own testimony that he had never threatened to kill anyone. Norris v. State, supra.

The appellant also contends that the trial court erred by not excluding, as inadmissible hearsay, Ms. Fritz’s testimony that Vicki Stephens had also asked the appellant to leave Fritz’s apartment on the night of the shooting. This evidence was “admissible hearsay” because Stephens’s alleged statement was made to the appellant, i.e., “in the presence and hearing” of the appellant. See, Garrett v. State, 76 Ala. 18, 21 (1884); Beachum v. State, 346 So.2d 531 (Ala.Cr.App.1977). It was also merely eummulative as to what started the argument between Fritz and the appellant, the argument that preceded the shooting of the victim. Therefore, it was not reversible error. See, Love v. State, 377 So.2d 8 (Ala.Cr.App.1979); Wyatt v. State, 419 So.2d 277 (Ala.Cr.App.1982).

Additional arguments concern allegedly erroneous statements of law by the trial court in its oral charge to the jury and alleged errors by the trial court in refusing a number of appellant’s requested written charges.

The appellant cites as reversible error several statements made by the trial court during its oral charge.. However, only those statements to which timely objections were raised at trial were properly preserved for our review. We have reviewed the trial court's oral charge in its entirety and have concluded that any isolated, erroneous statements were not harmful to the appellant in light of the entire charge. A.R.A.P. 45.

After the trial court completed its oral charge, it solicited objections from both parties. The appellant made five specific objections to certain oral statements by the trial court. In an effort to cure any errors and to satisfy the appellant, the trial court conducted several bench conferences with the attorneys and gave several curative instructions to the jury. After the trial court had reinstructed the jury on several points of law, the appellant indicated that he was satisfied with the trial court’s instructions. We commend the trial judge for taking the time to discuss the objections to his oral charge and for resolving the problems at that stage of the proceedings. This is precisely the procedure recommended by the Alabama Supreme Court in Ex Parte Allen, 414 So.2d 993 (Ala.1982), affirming, 414 So.2d 989 (Ala.Cr.App.1981), and in A.R.Crim.P.Temp. 14, with respect to refused written charges. The result was that the jury was properly informed on the law applicable to the case, including the critical aspects of appellant’s claim of self-defense and the jury’s option to find the appellant guilty of the lesser offenses of manslaughter and criminally negligent homicide, charges which were included, though not specified, in the indictment. This option to find lesser offenses was included in the final oral instructions given by the trial court and, contrary to appellant’s arguments on appeal, it was clearly explained at that time.

The appellant further cites as reversible error the trial court's refusal to give the jury eight specific written charges that he had requested. The trial court did, however, give nine of appellant’s other requested charges. Any error committed by the trial court in refusing the eight requested written charges cited by the appellant was not properly preserved for our review on appeal. See, Ex parte Allen, supra. As noted by the court in Allen, the automatic exception rule for refused written charges was abandoned when the legislature adopted § 12-16-13, Code of Alabama 1975. Therefore, we are “not required to notice any alleged error or defect ... unless the alleged error or defect was brought to the attention of the trial court.” Ex Parte Allen, 414 So.2d 993, 994, supra. This is the rule applicable to cases, such as the instant case, tried after the adoption of § 12-16-13. At trial below the appellant neither excepted to the trial court’s refusal to give the eight charges argued for on appeal, nor showed any disapproval thereof. In fact, after the trial court had given nine of appellant’s requested charges and had finished instructing the jury, the appellant, in response to the trial court’s inquiry, indicated that he was satisfied that the jury had been properly instructed. Moreover, the applicable legal principles stated in the refused charges appear to have been sufficiently covered by the trial court’s oral charge and the requested written charges that were given.

Appellant’s other arguments raised on appeal need not be addressed herein because they are either unsupported in the record or are totally without merit.

The appellant received a fair trial below and his substantial rights were well protected. He was well represented by counsel both at trial and on this appeal. At trial the jury simply decided the issues against him. On appeal, although appellant’s arguments were well presented, we have determined that there were no errors requiring a reversal of this cause. Appellant’s conviction and sentence are, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Fred DYKES v. STATE.
    6 Div. 874.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-887.

      Hugh C. Henderson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellant, Fred Dykes, was convicted of robbery in the first degree and sentenced to twenty years’ imprisonment in the penitentiary.

Leon Alexander testified at trial that he was employed at Hardee’s Number Two in Jefferson County, Alabama, on the day of the robbery. He was leaving the establishment around 2:00 a.m. when he was approached by two armed men wearing stocking masks. The men forced him at gunpoint to summon the managers of the store.

Eric Agee was the first manager to arrive, but he did not have the current combination to the Hardee’s safe, and so the robbers held Alexander and Agee hostage until a second manager arrived with the combination.

Agee testified that he opened the safe and removed approximately $1200.00, which he gave to the two men. At one point, although Agee had not told the men his name, one of them said to him, “Eric, we’re not out to hurt nobody.” After the two men took the money and fled, Agee sounded an alarm in the cash register drawer.

Toward the conclusion of the ordeal, Agee recognized appellant as someone he had worked with for over a year at Har-dee’s. Agee testified that although it had been approximately a year since he worked with appellant, he observed the robbers under lighted conditions and that he could see through the stockings covering the men’s facial features.

Appellant called no witnesses, nor did he take the stand to testify in his own behalf.

The sole issue presented for consideration on review is whether the trial court erred in denying appellant’s motion to dismiss the indictment on the ground that he was denied a speedy trial.

The facts governing determination of this issue are as follows:

1. December, 1980 — Appellant was indicted for the robbery of Eric Agee.
2. December 12, 1980 — Appellant was arraigned and trial was set for March 30, 1981.
3. March 30, 1981 — A continuance was granted due to the absence of two police officers who were necessary witnesses.
4. June 3, 1981 — Appellant filed a motion for speedy trial.
5. July 13, 1981 — Appellant was convicted of robbery in the first degree and sentenced to twenty years’ imprisonment in a separate case. The venire was deemed to be tainted, and the case sub judice was passed to January 11,1982, in accordance with the policies and procedures in the Tenth Judicial Circuit.
6. August 13, 1981 — Appellant filed a motion to dismiss for failure to receive a speedy trial.
7. September 4, 1981 — The trial court held an evidentiary hearing on appellant’s motion to dismiss. At the conclusion of the hearing the court denied the motion.
8. January 11, 1982 — Appellant came to trial, but a snow and ice storm necessitated the release of the jurors and a mistrial.
9. March 15, 1982 — The trial court overruled appellant’s demurrer to indictment and motion to suppress.
10. March 16, 1982 — The state’s presentation of its case-in-chief began.
11. March 17, 1982 — The jury returned a verdict of guilty of robbery in the first degree.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court held that in determining whether an appellant’s right to a speedy trial has been violated, a balancing test, weighing the conduct of the prosecution against that of the defendant, should be applied. The following four factors were set out to be considered when applying this balancing test: (1) length of delay, (2) defendant’s assertion of his right, (3) reasons for delay, and (4) prejudice to the defendant. A discussion of the latter three factors is not required if the length of delay is not found to be “presumptively prejudicial” or “patently offensive.” Barker, supra; Byrd v. State, 421 So.2d 1344 (Ala.Cr.App.1982); Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980); Corn v. State, 387 So.2d 275 (Ala.Cr.App.), cert. denied, 387 So.2d 280 (Ala.1980).

Because a person’s right to a speedy trial attaches when an indictment is returned against him, Harper v. State, 420 So.2d 835 (Ala.Cr.App.1982) (and cases cited therein), in order to establish the period of delay in this case, we must start from December, 1980 when appellant was indicted and determine whether the delays which occurred were attributable to the defendant, the State or to causes of a neutral nature.

Trial was initially set for March 30, 1981, two months after the indictment. On that date the State announced that it was not ready because two police officers, considered to be necessary witnesses, were unavailable. The case was continued to July 13, 1981, resulting in a four-month delay.

We do not consider the length of this delay to be “presumptively prejudicial” or “patently offensive.” In any ease, it is not clear whether the delay was attributable to the State’s negligence or whether it was justified by exigent circumstances. There is no allegation that it was a deliberate tactic used by the State to enhance its case or to prejudice the defendant.

The delay could have been justified, since even delays which are otherwise excessive may be “tolled" when an essential prosecution witness is unavailable. Wade v. State, 381 So.2d 1057 (Ala.Cr. App.), cert. denied, 381 So.2d 1062 (Ala.1980). If it was caused by the State’s negligence, then this is to be weighed less heavily against the State than a purposeful delay. Barker, supra.

On July 13, 1981, appellant’s trial was again reset for January 11, 1982, in order to avoid the effects of any prejudice against appellant on the venire resulting from his conviction of another offense. This delay inured to appellant’s benefit and should not be weighed against the State.

On January 11, 1982, appellant came to trial, but a snow and ice storm intervened, necessitating release of the jurors and a resultant mistrial. Trial was reset for March 16, 1982. This final delay can of course be weighed against neither side.

Based upon the foregoing sequence of events we cannot find that the delay of some fifteen months between appellant’s indictment and his trial was long enough to be “presumptively prejudicial”, or “patently offensive.”

We have, nevertheless, reviewed the record in light of the remaining Barker factors and we find no violation of appellant’s right to a speedy trial.

Appellant’s chief contention is that since his alibi witness disappeared before July 13, 1981, during the first continuance, he was denied a speedy trial. As in Corn, supra, we must note the lack of evidence to support this contention. There was no evidence, beyond the allegation of appellant, as reported by his attorney to the court, that the alleged witness ever existed, or of the facts to which she was expected to testify. Furthermore, it should be noted, as it was in United States v. MacDonald, 456 U.S. 1, at 8, 102 S.Ct. 1497 at 1502, 71 L.Ed.2d 696 (1982) that:

“The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.”

Although appellant clearly asserted his right to a speedy trial, we find no substantial prejudice to appellant caused by the three delays. In addition, we find that only the first of these delays could be attributed to the action or inaction of the State. Thus, the trial court’s denial of appellant’s motion to dismiss the indictment was proper.

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

AFFIRMED.

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


author: SAM TAYLOR, Judge.

text:
    Alvis Eugene JONES v. TOWN OF COURTLAND.
    8 Div. 55.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied June 12, 1984.

      Don R. White, Moulton, for appellant.
    David Martin, Moulton, for appellee.
   SAM TAYLOR, Judge.

Appellant, Alvis Eugene Jones was found guilty of reckless driving in the Municipal Court of the Town of Courtland. He appealed that judgment to the Circuit Court for Lawrence County. On October 20, 1983, a jury convicted Jones of reckless driving in violation of Ala.Code § 32-5A-190. He was sentenced to a term of 30 days in the county jail and fined $225.

• Jones moved for judgment notwithstanding the verdict, which the trial court properly considered as a motion for judgment of acquittal. A.R.Crim.P.Temp. 12.3. From denial of that motion, Jones appeals.

I

Appellant’s first contention is that the trial court erred in reopening the case after the conclusion of the evidence to allow the Town of Courtland to offer a certified copy of the ordinance under which he was charged. Introduction and admission of such a document was an essential element of the prosecution’s case in chief, without which no conviction could be had. Maxwell v. City of Mobile, 439 So.2d 715 (Ala.1983); Cooper v. Town of Valley Head, 212 Ala. 125, 101 So. 874 (1924); Hobdy v. City of Florala, 56 Ala.App. 536, 323 So.2d 421 (Ala.Cr.App.), writ denied, Ex parte Hobdy, 295 Ala. 406, 323 So.2d 425 (1975); Jacobs v. City of Prichard, 46 Ala.App. 497, 243 So.2d 769 (1971); Felder v. City of Huntsville, 42 Ala.App. 488, 168 So.2d 490 (1964); Thompson v. City of Sylacauga, 30 Ala.App. 72, 200 So. 795 (1941).

The record on appeal clearly indicates that counsel for the Town of Courtland did not attempt to introduce the ordinance, nor any proof thereof, until both parties had rested their cases. In fact, the evidence was proffered only after defense counsel had initiated a motion for acquittal grounded upon this omission by the prosecution.

The law in Alabama is clear as to the permissibility of reopening a criminal case to receive additional evidence. In Ballenger v. State, 406 So.2d 995 (Ala.Cr.App.), writ denied, 406 So.2d 998 (Ala.1981), cert. denied, 456 U.S. 907, 102 S.Ct. 1754, 72 L.Ed.2d 164 (1982), the court, relying on § 15-14-4, Code of Alabama 1975, held that “the trial court has the discretion to reopen its case and present evidence at any time prior to the close of final arguments.” 406 So.2d at 997. In Ballenger, at the close of the state’s case, the defendant moved to exclude the state’s evidence on the grounds that the prosecutor had failed to prove that Methaqualone was a controlled substance. The trial court allowed the state to reopen its case to introduce documents to make the necessary proof and this court affirmed.

On authority of Ballenger and numerous other cases which uphold the same proposition in various contexts, Ala.Digest, Criminal Law, Key Nos. 686-689, we find no error as to this issue. It was within the discretion of the trial court to reopen the case before summation to receive evidence of the applicable ordinance of the Town of Courtland.

II

Jones further contends that Town of Courtland Ordinance Number 111 under which he was convicted is void; specifically that in adopting the ordinance, the town council failed to comply with Ala.Code § 11-45-2 (1975). That section prescribes the exclusive means by which an ordinance or resolution might be adopted at the same meeting in which it is introduced. Subsection (b) provides:

“(b) No ordinance or resolution intended to be of permanent operation shall be adopted by the council at the same meeting at which it is introduced, unless unanimous consent of those present is . given for the immediate consideration of such ordinance or resolution, such consent to be shown by a vote taken by yeas and nays, and the names of the members voting shall be entered upon the minutes, and no ordinance or resolution intended to be of permanent operation shall become a law unless on its final passage a majority of the members elected to said .council in cities of over 12,000 inhabitants or the mayor and three aldermen or four aldermen in cities of less than 12,-000 inhabitants and in towns shall vote in its favor.”

The record on appeal contains a certified copy of Ordinance Number 111, as well as a record of the meeting at which it was adopted. The minutes of the Town of Courtland council meeting of December 16, 1981, reflect the following:

“December 16, 1981”
“We, the undersigned, were duly notified of a special meeting to adopt an ordinance adopting a state code of the state of Alabama.
/s/ Gerry W. Parker
/s/ Goodwin Dyer
/s/ R.L. Eskridge ”
“Gerry Parker made a motion that the Town of Courtland adopt the State Code of the State of Alabama in ordinance No. 111. Goodwin Dyar seconded. All voted Aye!
/s/ Peggy S. Hazle, City Clerk
/s/ Roy Coffee, Mayor”

We find that these proceedings comply with the requirements of Ala. Code § 11— 45-2 as to the introduction and adoption of a city ordinance in a single meeting. There was unanimous consent of those present for the immediate consideration of the ordinance at the same meeting it was introduced. The names of the members voting appear on the minutes and the mayor and three aldermen voted in favor of adoption.

Based upon our findings and the foregoing authorities, appellant’s conviction is due to be, and hereby is, affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    John Sidney DOVE v. CITY OF MONTGOMERY.
    3 Div. 946.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.

      Kenneth J. Mendelsohn and James W. Traeger, Montgomery, for appellant.
    J. Anthony McLain and James F. Hampton, Montgomery, for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence by the Circuit Court fixing punishment at a fine of $500.00 and imprisonment in the jail of the City of Montgomery for five days, which judgment was on an appeal from a judgment of the Municipal Court of the City of Montgomery adjudging defendant guilty of the violation of an ordinance of the City of Montgomery and imposing a fine and imprisonment in the City Jail substantially in accordance with the punishment thereafter determined in the Circuit Court, as stated.

The hearing in the Circuit Court was on a written complaint by the City, which alleged in pertinent part the following:

“John Sidney Dove ... did, on or about August 9, 1984, at approximately 10:40 p.m., drive or have actual control of a motor vehicle while there was 0.10% percent or more by weight of alcohol in his blood, to-wit: GCI reading .16%.
“In violation of Chapter 1, Section 9 of the Code of the City of Montgomery, Alabama, 1980. Ref. Title 32-5A-191(a) Code of Alabama, 1975.”

The case was set for trial before a jury on November 30, 1983, but there was a pre-trial hearing commenced but not completed November 22, which was resumed on November 30. During the pre-trial hearing, some, if not all, of the issues raised on this appeal were raised in the Circuit Court, during which time defendant withdrew a jury demand, and the trial court, after hearing the stipulations of the parties as to the evidence, adjudged defendant guilty and fixed his punishment as stated above.

Appellant’s attorneys, the same attorneys who represented him in the Circuit Court, have methodically set forth a statement of the issues presented and arguments in support thereof, which we proceed to consider in the numerical and alphabetical order presented in appellant’s brief.

I.

Appellant urges that the trial court “erred in denying Defendant’s Motion to Dismiss the Complaint.” He sets forth three separate reasons for such contention, designating them as A, B, and C, which we now separately consider.

A.

Appellant contends, as he did in the Circuit Court, that Act No. 83-620, Regular Session, 1983, contains more than one subject and is thereby in contravention of the clause of the Constitution of Alabama of 1901, Art. IV, § 45, stating, “Each law shall contain but one subject, which shall be clearly expressed in its title, ...” We now quote in full the Title of Act No. 83-620, Regular Session, 1983:

“To amend Sections 32-5-192, 32-5A-191, 32-6-19, and 11-45-9, Code of Alabama 1975, relating to offenses and penalties for refusal to submit to a chemical test under 32-5-192 (Implied Consent); to generally increase the penalties and deter sanctions for violation of 32-5A-191 (DUI); to clarify the penalty for violation of 32-5A-192 relating to Homicide by Vehicle; to generally increase the penalty for violation of Section 32-6-19 relating to Driving While Revoked; and to allow municipal courts to enforce increased penalties under 32-5A-191 (DUI) by amending 11-45-9, and to provide that any person arrested for violating the provisions of this Act shall not be released from jail under bond or otherwise, until there is less than the same percent by weight of alcohol in his blood as specified in Section 32-5A-191(a)(l).”

We agree with appellant that Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973), is the controlling opinion on the issue now under consideration, but we are of the opinion that it leads to a conclusion opposite to the position taken by appellant. We reach the same result that was reached in Boswell v. State, in holding that the statute under consideration complied with Alabama Constitution, Article 4, § 45, in containing “but one subject” which is “clearly expressed in its title” and apply with great appreciation what was succinctly and clearly stated by Justice Faulkner in Boswell v. State, at 276 So.2d 596:

“The purposes of this constitutional provision that every law contain but one subject, clearly expressed in its title, have been much commented upon in our case law. They are generally stated to be notification to the public of the nature of pending legislation, avoidance of fraud on the legislature by any verdant passage of provisions not related to the title thereof, and prevention of hodgepodge, conglomerate, or ‘logrolling’ legislation. State ex rel Bozeman v. Hester, 260 Ala. 566, 72 So.2d 61 (1954); State ex rel. Bassett v. Nelson, 210 Ala. 663, 98 So. 715 (1923).
“Many years ago, in Ballentyne v. Wickersham, 75 Ala. 533 (1883), we stated the test for determining whether a law violates this constitutional provision:
“ ‘[T]he title of a bill may be very general, and need not specify every clause in the statute. Sufficient if they are all referable, and cognate to the subject expressed. And when this subject is expressed in general terms, everything which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in, and authorized by it.’ 75 Ala. at 536.
“It is clear that the component subjects, marijuana possession, heroin possession, marijuana sale, heroin sale, etc., do combine into the ‘grand and comprehensive’ subject of regulation of controlled substances, and that the title of the Act does include all the component parts.
“All the limbs of this tree belong to the tree. No alien branch is hidden in the foliage. We hold that the Alabama Uniform Controlled Substances Act satisfies the constitutional requirement of having a single subject clearly expressed in its title.”

B.

The caption of this issue presented by appellant is thus stated in his brief:

“Whether Act No. 83-620, Regular Session, 1983, Denied Defendant His Right To Bail As Granted By The Eighth And Fourteenth Amendment To The United States Constitution; Article I, § 16 Of The Alabama Constitution; And Code of Alabama § 15-13-2.”

It was stipulated by the parties “that when Mr. Dove was arrested, he was placed in jail for a period of four hours and was not permitted to make any type of bond or contact for bond” and “only after four hours was he allowed to be released.” It was further stipulated that “he was put in a drunk tank” and that he “was prepared at that time to contact a friend who could have come down and helped him make bond which he did after a four-hour period.”

As to this particular issue, appellee states in its brief that “Appellant cites no case which is expressly on point concerning this issue” and further states in appellee’s brief, “Likewise, the City of Montgomery can find no case either for or against the City which indicates what this Court’s ruling should be.” Neither party suggests, but we note, that Act No. 83-620, Regular Session, 1983, contains a severability clause, providing, “If any part of the Act is declared invalid or unconstitutional such declaration shall not affect the part that remains.” We see no reasonable basis for any contention that the claimed unconstitutionality of the Act, prohibiting the release of the appellant “from jail under bond or otherwise, until there is [was] less than the same percent by weight of alcohol in his blood as specified in Section 32-5A-191(a)(1)” has any material bearing upon the issue of whether defendant was guilty of driving a motor vehicle while under the influence of alcohol. Notwithstanding our view as to the constitutionality of the particular provision of the Act, we think it appropriate not to engage in any further discussion of the question in the instant case, which would have no material bearing on whether reversible error was committed by the trial court.

C.

In the first paragraph of appellant’s brief in support of this particular issue presented by appellant is the following:

“Act number 83-620 required the Director of Public Safety to revoke an individual’s driver’s license for a period of one year upon a second conviction of D.U.I. within a five year period. In accordance with this provision, the Director of the Department of Public Safety has attempted to revoke Defendant’s license for a one year period. Defendant, however, was not represented by an attorney on his first conviction. Moreover, a review of the records will show that the City did not and is unable to prove that Defendant was represented by counsel upon this first conviction.”

We agree with the position taken by appel-lee in response to appellant’s contention as to this particular issue, to the effect that it is not a function of this Court to determine at this time whether the Director of the Department of Public Safety should revoke appellant’s driver’s license. Our function at this time is to review issues raised by appellant as to any errors made by the trial court, not to express an opinion as to the legality of any past, present or future action of the Director of Alabama Department of Public Safety that had not occurred while the instant case was pending in the trial court.

II.

By appellant’s final contention for a reversal, he presents an issue that both parties agree is one “of first impression before this Court.” The issue was raised in the trial court by a motion to suppress evidence of the results of the chemical analysis test of defendant’s breath to determine the percentage of alcohol in his blood, on the ground that “a sample of Defendant’s breath” had not been preserved by the City. The motion to suppress was denied by the trial court. Appellant argues that failure to preserve a sample of defendant’s breath impaired defendant’s opportunity to show by expert witnesses other than the expert witnesses testifying for the City the true results of the test. That appellant’s contention in this respect is not unreasonable is evidenced by the fact that some highly regarded appellate courts in the United States have held that the failure to preserve a sample of the tested matter disentitled the party taking the test to introduce in evidence the results thereof. The last reported case cited by either of the parties in the instant case, is State v. Lee, Fla.App., 422 So.2d 76 (1982), which includes citations of the authorities cited by the parties on this appeal. In State v. Lee, in reversing the trial court for its order suppressing evidence of the results of the test, the court said at 422 So.2d 78:

“Although some courts have held that failure by the State to automatically preserve a breath sample is tantamount to suppression of evidence, those holdings have come where the defendant has shown that the preservation was scientifically possible. Garcia v. District Court, 21st Judicial District, 197 Colo. 38, 589 P.2d 924 (1979); Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979). But see State v. Young, 228 Kan. 355, 614 P.2d 441 (1980). Lee, who was the moving party, had the burden of making a showing on the record that there are recognized scientifically developed means by which a breath sample can be preserved for later testing. He failed to do so when he offered no evidence at the hearing. It is impossible for this court to equate the mere failure by the State to encapsulate and preserve a breath sample to a destruction or suppression of the evidence absent a showing in the record to support a finding that the breath samples could be effectively preserved for later independent testing.”

In the absence of any statutory or judicial authority on the point in Alabama, we apply to the instant case what was said and held in State v. Lee, supra, and hold that the trial court was not in error in overruling the defendant’s motion to suppress evidence of the results of the analysis made of defendant’s breath to determine the percentage of alcohol in his blood.

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: TYSON, Judge.

text:
    Jessie Mae MALONE v. STATE.
    8 Div. 36.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.

      Jerry Knight of Hardwick & Knight, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Jessie Mae Malone was indicted for possession of marijuana for purposes other than for her personal use. The jury found the appellant “guilty as charged in the indictment” and after a sentencing hearing the trial judge sentenced her to two years’ imprisonment.

On February 13, 1982, Sergeant Ed Taylor and Sergeant Frank Debuty of the Decatur Police Department, and Lieutenant Walter Price and Lieutenant James Hudson of the Morgan County Sheriffs Department executed a search warrant at 1301 Sunset Drive in Decatur, Alabama. Such warrant was executed at 7:34 a.m. and its purpose was for marijuana. Upon obtaining entry into this apartment, Sergeant Taylor and Lieutenant Price went upstairs, and Sergeant Debuty and Lieutenant Hudson stayed downstairs. Upstairs, the officers located a black female, the appellant, in one bedroom and a black male and black female in another bedroom. All of the occupants of the apartment were brought together downstairs in the living room. Sergeant Debuty testified that at this point all occupants were read their Miranda rights.

Lieutenant Price testified that he searched the appellant’s bedroom where he found a large plastic bag, which contained marijuana, beneath a chair in the room. Underneath the same chair he found another bag which contained 40 to 50 coin envelopes. Each of these envelopes contained marijuana. He found two sets of gram scales, in plain view, on top of the dresser in the bedroom. He further found two boxes of coin envelopes in one of the dresser drawers.

Sergeant Taylor testified that upon his search of the living room he found more marijuana under the seat cushions on the couch. He also found a box which contained $93.96 in cash under the same couch. He said that he then asked all of the occupants of the apartment who owned the marijuana. He said the appellant spoke up and stated “[i]t’s not theirs, they didn’t have anything to do with it.” Taylor then took the appellant into the kitchen, advised her of her Miranda rights, and asked her who owned the marijuana. He stated that she said it belonged to her.

The appellant was arrested and taken to the Decátur Police Department. Sergeant Taylor read her a form which had her Miranda rights printed on it and also a waiver of those rights. Sergeant Taylor stated that the appellant then read the form and signed the waiver of rights. He stated that the appellant proceeded to make a confession, which he reduced to writing. The appellant read the confession, initialed, and signed this writing.

I

The appellant contends that the trial court committed reversible error in admitting into evidence her confession which included an admission to having committed other crimes.

After the appellant’s arrest she gave the following statement to Sergeant Taylor:

“This statement is being written by Sgt. Taylor, but the words are my own. Nothing has been promised to me for making this statement. Today the police searched my house and found several nickle bags. All the nickle bags of marijuana belonged to me. The large bag of marijuana the police found also belonged to me. I had the marijuana to sell. It should be a little less than a pound. I bagged up the nickles last night before I went to work. The police also found some money in a box. All of that money came from marijuana I sold yesterday. I have been selling marijuana for around two months.” (R. 139-140)

It is the last two sentences of the appellant’s statement that the appellant claims should not have been admitted.

As a general rule, parts of a confession which include admission of offenses separate from those relating to the crime in issue are not admissible. Madison v. State, 40 Ala.App. 62, 109 So.2d 749 (1958); Andrews v. State, 359 So.2d 1172 (Ala. Crim.App.1978); Montgomery v. State, 365 So.2d 374 (Ala.Crim.App.1978); Jordan v. State, 380 So.2d 999 (Ala.Crim.App.1979), cert. denied, 380 So.2d 1003 (Ala.1980). “In a criminal prosecution, any proof which tends to show the accused is guilty of other offenses, even though of a similar nature to the one charged, is incompetent and inadmissible for the purpose of showing the commission of the crime under indictment subject to certain well-delineated exceptions. These exceptions as they bear on the accused’s motive, intent, scienter, identity, pattern, system, and nature are discussed in numerous cases.” McMurtrey v. State, 37 Ala.App. 656, 74 So.2d 528 (1954); Madison v. State, supra; Andrews v. State, supra; Montgomery v. State, supra; Jordan v. State, supra.

In the present case, the appellant’s admission of the prior sale of marijuana was relevant to prove her intent, motive, scheme or on-going business system to engage in illegal drug transactions. See Montgomery v. State, supra; Jordan v. State, supra; Terry v. State, 424 So.2d 710 (Ala.Crim.App.1982); C. Gamble, McElroy’s Alabama Evidence, §§ 69.01(6), 200.-15 (3d ed. 1977).

Moreover, such was relevant and substantial evidence, in addition to the rest of the evidence, that the appellant held such marijuana for other than her personal use as averred in the indictment.'

II

The appellant contends that the trial court erred in admitting into evidence her oral statements to police officers while she was in her home, and her written confession. She argues that the State did not show such statements to be voluntary.

The State must show voluntariness and a Miranda predicate in order for a statement to be deemed admissible. Thomas v. State, 373 So.2d 1149 (Ala.Crim.App.), affirmed, 373 So.2d 1167 (Ala.1979). The record discloses that during the trial of the case, the trial judge entertained testimony of the circumstances surrounding the statements in a voir dire examination outside the presence of the jury. The record further shows that the State brought forth testimony which properly showed that the appellant had been advised of her Miranda rights prior to each statement she made. There was testimony from police officers that the appellant was not threatened, coerced, nor promised any reward or hope of reward for making a statement. The record shows that the appellant signed a waiver of rights form before giving her written confession. The appellant testified that no one read her Miranda rights to her until after she made the oral statements of ownership and she was being transported to the police station. She further stated that she claimed ownership of the marijuana only after Taylor stated that if no one claimed such ownership he would take them all downtown. She stated that she did not read her rights on the printed form, nor the waiver. She stated that Sergeant Taylor did not read them to her. She further stated that she did not give a confession to Sergeant Taylor. She did state, however, that she signed some papers at Sergeant Taylor’s request, but she did not read them. She stated that it was her signature on the waiver of rights form and on the confession.

Generally, it is the province of the trial judge to first determine the voluntariness of a statement in a voir dire examination outside the presence of the jury, and unless there is clear abuse this decision will not be overturned. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Shewey v. State, 48 Ala.App. 730, 267 So.2d 520 (1972); Bills v. State, 49 Ala.App. 726, 275 So.2d 706 (1973); Hardy v. State, 409 So.2d 996 (Ala.Crim.App.1982); Shorts v. State, 412 So.2d 830 (Ala.Crim.App.1981); Snider v. State, 422 So.2d 807 (Ala.Crim.App. 1982). When the evidence on the circumstances surrounding the appellant’s confession is conflicting on voir dire, the trial judge must determine its admissibility. If admitted, then the controverted testimony for the defendant goes to the jury on the confession’s credibility. Where the trial judge finds on conflicting evidence that the confession was voluntarily made, its finding will not be disturbed on appeal unless found to be manifestly contrary to the great weight of the evidence. Taylor v. State, 337 So.2d 1368 (Ala.Crim.App.1976); Balentine v. State, 339 So.2d 1063 (Ala.Crim.App.), cert. denied, 339 So.2d 1070 (Ala.1976); Myers v. State, 401 So.2d 288 (Ala.Crim.App.1981); Harris v. State, 420 So.2d 812 (Ala.Crim.App.1982); Wiggins v. State, 440 So.2d 1164 (Ala.Crim.App.1983).

In this cause the trial judge’s conclusion that the statements were voluntary and admissible was adequately supported by the evidence and this decision will not be overturned.

III

The appellant contends that the trial court committed reversible error in failing to admit into evidence the search warrant affidavit which contained allegations of a confidential and reliable informant.

The appellant’s argument has no merit. The rule in Alabama is precisely the opposite of her argument. “Although the hearsay allegations of a reliable informant may be considered in hearing a motion to suppress, conducted outside the jury’s presence, in determining probable cause for an arrest or search, they have no place in the trial itself.” Small v. State, 348 So.2d 504 (Ala.Crim.App.), affirmed, 348 So.2d 507 (Ala.1977); Tierce v. State, 396 So.2d 1090 (Ala.Crim.App.1981). This court and our Supreme Court have clearly and consistently held that hearsay allegations of a confidential informant may not be placed before the jury in a criminal trial. Reeder v. State, 294 Ala. 260, 314 So.2d 853 (1975); Small v. State, supra; Satterwhite v. State, 364 So.2d 345 (Ala.Crim.App.1977), reversed, 364 So.2d 359 (Ala.1978); Tierce v. State, supra; Bowen v. State, 406 So.2d 1077 (Ala.Crim.App.1981); Irwin v. State, 421 So.2d 1371 (Ala.Crim.App.1982); Waldrop v. State, 424 So.2d 1345 (Ala.Crim. App.1982).

The trial court did not err in not allowing the search warrant affidavit into evidence. If he had admitted the affidavit which contained hearsay allegations of a confidential informer, he would have been in error.

IV

The appellant argues that the trial court committed reversible error by denying her motion to require the State to reveal the identity of their confidential informer.

The general rule is that the prosecution is privileged to withhold from the accused disclosure of the identity of an informant, unless it is essential to the defense set up by the accused and necessary to show their innocence. Hood v. State, 47 Ala.App. 192, 252 So.2d 117 (1971); Davenport v. State, 50 Ala.App. 321, 278 So.2d 769 (1973); Hatton v. State, 359 So.2d 822 (Ala.Crim.App.1977); Murphy v. State, 367 So.2d 584 (Ala.Crim.App.), cert. denied, 367 So.2d 587 (Ala.1978); Thornton v. State, 390 So.2d 1093 (Ala.Crim.App.), cert. denied, 390 So.2d 1098 (Ala.1980), cert. denied, 450 U.S. 998, 101 S.Ct. 1704, 68 L.Ed.2d 200 (1981). In such a case, the burden is on the accused to show why disclosure of the informant’s identity was necessary to show her innocence. Hatton v. State, supra; Thornton v. State, supra. Furthermore, “mere supposition or conjecture about the possible relevancy of the informant's testimony is insufficient to warrant disclosure.” U.S. v. Hare, 589 F.2d 242 (5th Cir.1979); Gambrel v. State, 405 So.2d 954 (Ala.Crim.App.), cert. denied, 405 So.2d 957 (Ala.1981).

In this case, the confidential informant was not an active participant with the appellant in possession of the marijuana found in her home. The informant merely supplied police officers with information to establish probable cause for a search of the appellant’s residence. In cases such as the one sub judice, a prosecution for possession and not for sale, this court has held that such disclosure is not necessary to the defense or necessary to show the accused’s innocence. See Dixon v. State, 39 Ala. App. 575, 105 So.2d 354 (1958); Murphy v. State, supra; Thornton v. State, supra; Dannelley v. State, 397 So.2d 555 (Ala.Crim.App.), cert. denied, 397 So.2d 577 (Ala.1981). Therefore, after a thorough review of the affidavit and the record, we can not hold that the trial court was in error for not requiring disclosure in this case. Thus, there is no violation of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

V

The appellant’s last contention is that the trial court erred in denying her motion to dismiss and motion to strike. Specifically, the appellant argues that the indictment contained unnecessary and surplus aver-ments to charge her for a felony. She further argues that such averments, i.e. that the marijuana was for other than her personal use, were prejudicial to her.

In a prosecution for illegal possession of marijuana, there is a presumption that the possession is for other than personal use. The showing of possession for personal use is a defensive matter and the burden of adducing evidence on this issue is upon the accused. Corbin v. State, 55 Ala.App. 33, 312 So.2d 604 (1975); Burns v. State, 57 Ala.App. 281, 327 So.2d 920, cert. denied, 295 Ala. 423, 327 So.2d 927 (1976); Roberts v. State, 349 So.2d 89 (Ala.Crim.App.), cert. denied, 349 So.2d 94 (Ala.1977); Lee v. State, 350 So.2d 743 (Ala.Crim.App.1977); Barnett v. State, 373 So.2d 1226 (Ala.Crim.App.1979); Sturdivant v. State, 439 So.2d 184 (Ala.Crim.App.1983). The State need not prove that the possession of marijuana was not for personal use. Corbin v. State, supra; Burns v. State, supra; Roberts v. State, supra; Barnett v. State, supra; Taylor v. State, 443 So.2d 1292 (Ala.Crim.App.1983). Where the indictment charges mere possession of marijuana, the State is not required to prove that marijuana is possessed for purpose of sale. Roberts v. State, supra.

Although it is not necessary for the State to prove that possession of marijuana was not for personal use, they assumed the burden of so doing by the wording of the indictment. “[I]t is axiomatic that some indicia of [her] intent would have to come out in the prosecutor’s proof to support this averment.” Corbin v. State, supra. In this cause the State assumed this burden and the evidence was sufficient to support such averment. Moreover, in light of the evidence in this cause, the appellant was in no way prejudiced by such averments. Therefore, we find no error in the trial court’s denial of appellant’s motions.

We have carefully reviewed the record in this cause and can find no error therein.

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

AFFIRMED.

All the Judges concur.


author: GAUDIN, Judge.

text:
    Joyce S. MABRY v. Aubon L. MABRY.
    No. 83-CA-657.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.

      Roy S. Lilley, Metairie, for plaintiff-ap-pellee.
    Samuel W. Ethridge, Kenner, for defendant-appellant.
    Before BOUTALL, C.J., and KLIEBERT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant is Aubon L. Mabry, whose July 6, 1976 marriage to Joyce S. Mabry was declared null and void by an April 12, 1983 judgment of the 24th Judicial District Court. The decree went on to state that both parties had been in good faith and it recognized Joyce as a putative wife, awarding to her permanent alimony.

Mr. Mabry contends that the trial judge erred in finding Joyce in good faith. However, the record supports this finding, and we will not disturb it.

Prior to his marriage to Joyce, Mr. Ma-bry was married two other times. His first marriage was to Marrietta Austin in 1943, and it ended in divorce on June 4,1970. On June 25,1970, Mr. Mabry married Mayzelle Smith, and they separated in December of 1975. On June 11, 1976, Mr. Mabry obtained a divorce from Mayzelle in the Dominican Republic, and he and Joyce were married the following month.

Subsequently, Mr. Mabry filed suit in the 24th Judicial District Court to have his Dominican Republic divorce recognized. However, this judgment of divorce was declared null and void on June 8, 1978.

When Joyce first started dating Mr. Ma-bry, and later when she began living with him, she no doubt knew that he was married to Mayzelle. She went with him to the Dominican Republic where they saw an attorney relative to Mr. Mabry’s efforts to secure a divorce. Mr. Mabry executed various documents, and on June 11, 1976 the Dominican Republic issued a judgment of divorce. Mr. Mabry and Joyce were then married.

LSA-C.C. art. 117 reads:

“The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.”

“Good faith” is an honest and reasonable belief that the marriage is valid and that no legal impediments exist. Whether a party is or is not in good faith depends on the facts and circumstances of each case. Schaefer v. Schaefer, 379 So.2d 864 (La.App. 4th Cir.1980), writs denied by the Supreme Court of Louisiana at 383 So.2d 13.

Here, Joyce testified that she considered Mr. Mabry’s Dominican Republic divorce valid. Mr. Mabry’s actions, in marrying Joyce and taking her overseas as his wife and in hiring an attorney to have Louisiana courts recognize the Dominican Republic divorce, suggest that he, too, thought the foreign divorce to be legal and that there were no impediments preventing his marriage to Joyce.

Findings of fact by a trial judge, based on credibility of witnesses, will not be changed on appeal unless manifestly wrong. The finding of good faith on Joyce’s part — and also, incidentally, on Mr. Mabry’s part as well — is substantiated by the record.

For these reasons, we affirm the judgment declaring Joyce to be a putative wife and therefore entitled to civil effects. Appellant is to bear all costs of this appeal.

AFFIRMED.

      . Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).


text:
    Danny Lamar PACK v. STATE.
    6 Div. 262.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 88-802.
    Daniel W. Wainscott, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant Danny Lamar Pack was charged with attempted theft of a car, in violation of § 13A-4-2, Code of Alabama 1975. His first trial resulted in a hung jury. Thereafter, the appellant pleaded guilty before the Honorable Charles R. Crowder, Circuit Judge. He was sentenced to 15 years’ imprisonment in the penitentiary, to be served concurrently with other sentences already being served. He then moved for a new trial and to set aside his guilty plea. Testimony was taken on his motions and they were denied. This appeal ensued.

Appellant contends that his plea of guilty was involuntary. The record indicates that the appellant consulted with his attorney, his father and his wife on the issue of whether or not he should plead guilty. They all advised him to plead guilty in order to receive a concurrent sentence. He contends that he received faulty advice from trial counsel, but we do not believe the record bears out this statement to any extent whatsoever. The appellant filled out an Ireland form, which is referred to as an “Exhibit A”. He was advised of his constitutional rights by his trial counsel and by the trial court. The appellant, just before entering his plea, advised the court that he desired to represent himself. This request, coming 14 months after indictment and after his case had been tried once, resulting in a hung jury, appears to have been frivolous. The court then told the appellant he had only a moment to decide whether to plead guilty or not guilty. In truth, the appellant had that moment plus the preceding 14 months in which to arrive at that decision.

It is dear that the plea was voluntary and that appellant’s rights were in no way violated. The only reason we have made this unnecessary case the subject of an opinion is to discourage other such frivolous appeals.

AFFIRMED.

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


text:
    Theodore T. FISHER v. STATE.
    6 Div. 845.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-834.
    J.T. Simonetti, Jr., Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Theodore T. Fisher was convicted by a Jefferson County jury of possession of a forged instrument in the second degree and sentenced to the minimum of 15 years’ imprisonment in the penitentiary under the Habitual Felony Offenders Act. On appeal he assigns two errors.

I

Appellant first contends that the court erred in denying his oral motion to quash the indictment on the grounds that the indictment was at variance with the facts. The appellant claims he has no middle name or initial but the indictment charged “Theodore T. Fisher”. On July 31, 1981, approximately 6 months before the trial date, the appellant entered his plea of not guilty to the indictment. His oral motion to quash the indictment was made on the morning of trial.

We have held in Pinkard v. State, 405 So.2d 411 (Ala.Cr.App.1981), that a plea to the merits of an indictment waives the opportunity to plead to the indictment itself. This court stated in Edwards v. State, 379 So.2d 336 (Ala.Cr.App.1979), cert. denied, 379 So.2d 339 (Ala.1980), that:

“Generally, a demurrer is the proper procedure to raise defects in an indictment. Since a plea to the merits admits the validity of an indictment, a demurrer filed after arraignment and after a plea of not guilty is properly stricken... The right to file a demurrer is waived unless the demurrer is filed before a plea to the merits.” Quoted in Flowers v. State, 402 So.2d 1088 (Ala.Cr.App.), writ denied, 402 So.2d 1094 (Ala.1981).

The plea being untimely, we are left with nothing to review. See Edwards, supra. Even if the pleading to the indictment, by whatever name called, was timely made, the substantial rights of the accused would not have been affected by the error or variance charged. A variance must be material and it must mislead the accused or be substantially injurious to him in the preparation of his defense. Coker v. State, 396 So.2d 1094 (Ala.Cr.App.1981). The court did not err in denying this motion.

II

Appellant next contends that the sentencing court should not have considered one of his three prior convictions. In giving appellant notice of the convictions which would be relied on under the Habitual Felony Offenders Act, the state listed one of the convictions as grand larceny rather than buying, receiving and concealing stolen property. It is uncontested that appellant had two other prior convictions, including one. for forgery and one for grand larceny. The appellant was informed of the correct number for the misnamed case, the date of conviction, and the jurisdiction of the conviction. We find, however, that the appellant himself testified at his trial to the previous convictions. An accused’s testimony that he has been previously convicted of a felony is proper. See Lyner v. State, 398 So.2d 420 (Ala.Cr.App.1981).

Where the accused admits the prior convictions at trial, there is no legal requirement for notice. Thompson v. State, 405 So.2d 717 (Ala.Cr.App.), writ denied, 405 So.2d 721 (Ala.1981).

Appellant Fisher was therefore not injured by the scrivener’s error and the same will not serve as a basis for remand.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Amelia MOORE, alias v. STATE of Alabama.
    3 Div. 726.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    William W. Gobrecht of Skinner & Go-brecht, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

On March 20,1984, this court unanimously, with opinion, affirmed this cause, Moore v. State, 447 So.2d 1321 (Ala.Crim.App. 1984), but remanded this cause for proper sentence under this court’s opinion in Smith v. State, 447 So.2d 1327 (Ala.Crim.App.1983).

A proper return having been filed in this court showing sentence in this cause to be set at 10 years’ imprisonment in the penitentiary, this cause is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


author:
EHRLICH, Justice.
      SHAW, Justice,

text:
    HERTZ CORPORATION, Petitioner, v. Frank P. PICCOLO, and wife, Myrtice Piccolo, Respondents.
    No. 62998.
    Supreme Court of Florida.
    April 5, 1984.
    Rehearing Denied July 27, 1984.
    Benjamin W. Redding and Thomas F. Welch of Barron, Redding, Boggs, Hughes, Fite, Bassett & Fensom, Panama City, for petitioner.
    Michel L. Stone of Urquhart, Pittman & Stone, Panama City, for respondents.
   EHRLICH, Justice.

The issue before us is whether an alleged tortfeasor is an indispensable party in a suit against the tortfeasor’s insurer based on a Louisiana direct action statute. The decision of the district court conflicts with Lee v. Puleston, 102 Fla. 1079, 137 So. 709 (1931). We have jurisdiction. Art. Y, § 3(b)(3), Fla. Const. We approve the district court decision.

Frank Piccolo was injured in a motor vehicle accident in Louisiana. The truck which struck Piccolo’s car had been rented from Hertz in Louisiana, and was driven by John Kiern. Piccolo and his wife sued in Florida for damages incurred in the accident, naming Hertz as sole defendant. Ultimately, the trial court dismissed the suit, holding that the Piccolos could not sue Hertz, as insurer of the truck, without also joining the alleged tortfeasor, Kiern.

The Piccolos based their action against Hertz on Louisiana’s direct action statute which allows suit against an insurer without joinder of the insured tort-feasor. The trial court held that joinder of the tortfeasor was a procedural issue, and that procedural issues, under Florida conflict of laws jurisprudence, are controlled by the law of the forum. In Florida procedure, the insured is an indispensable party in a suit grounded on the alleged negligence of the insured. Kephart v. Pickens, 271 So.2d 163, 164-65 (Fla. 4th DCA 1972), cert. denied, 276 So.2d 168 (Fla.1973). Therefore, the trial court dismissed the amended complaint. The First District Court of Appeal reversed, holding that the Louisiana direct action statute was substantive, controlled the case, and thus allowed a suit to be maintained against Hertz without joining driver Kiern. Piccolo v. Hertz Corp., 421 So.2d 535 (Fla. 1st DCA 1982).

Petitioner Hertz argues that the alleged tortfeasor is an indispensable party, relying on a statement in Puleston: “The question of necessary parties to a suit is governed by the law of the forum in which the suit is brought.” 102 Fla. at 1080, 137 So. at 710. However, we find that Puleston is not a complete statement of the subject. The Restatement (Second) of Conflict of Laws § 125 (1969) offers what we perceive to be the correct statement of the law, which we adopt: “The local law of the forum determines who may and who must be parties to a proceeding unless the substantial rights and duties of the parties would be affected by the determination of this issue.”

If “substantial rights and duties” are affected, in other words, if substantive law be an issue, the rule adopted by this court in Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980), applies: “[T]he local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship .... ” (quoting Restatement (Second) of Conflict of Laws § 146 (1971) (emphasis omitted)).

Based on the “significant relationship” test of Bishop, it would be possible for Florida law to apply even if the Louisiana statute were substantive, if Florida had a more significant relationship to the issue than Louisiana. However, clearly in the instant case Louisiana has a more significant relationship to the issue than Florida. The controlling question therefore is whether the Louisiana direct action statute is substantive. If it is, then the Bishop rule dictates that the Louisiana statute controls the question of indispensable parties. If the Louisiana statute is procedural, then Florida law controls. Strauss v. Sillin, 393 So.2d 1205, 1206 (Fla. 2d DCA 1981). For the reasons discussed below, we find the statute in question is substantive.

The Louisiana Supreme Court has repeatedly held that the statute affects substantial rights and duties. In West v. Monroe Bakery, 217 La. 189, 46 So.2d 122 (1950), the court held the direct action statute

gives the injured party an immediate right of direct action against the insurer of the party responsible for the injuries. The statute expresses the public policy of this State that an insurance policy against liability is not issued primarily for the protection of the insured but for the protection of the public. Frequently the insured is financially irresponsible and the only recourse of a person injured by the negligence of the insured is against his insurance carrier.

Id. at 209-10, 46 So.2d at 129-30 (quoting Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351 (1942) (emphasis in original)).

The United States Supreme Court relied on the West decision when it interpreted the Louisiana direct action statute:

[T]he Louisiana courts have differentiated between actions brought by an injured party against the insurer alone and those brought against either the tortfeasor alone or together with the insurer. In the former action, the insurer is foreclosed from asserting defenses such as cov-erture, normally available to the tort-feasor. Similarly, the insurer is severely restricted in advancing technical defenses based upon the terms of the policy, such as a failure of notice, when the injured party brings a direct action. While either type of action encompasses proof of the tortfeasor’s negligence, in the separate suit against the insurer a plaintiff must also establish liability under the policy. The Louisiana courts have characterized the statute as creating a separate and distinct cause of action against the insurer which an injured party may elect in lieu of his action against the tortfeasor.
Petitioner [a defendant insurer sued without joinder of the insured tortfeasor] is therefore not merely a nominal defendant but is the real party in interest here....
Petitioner next asserts that the tort-feasor is an indispensable party to this litigation_ Clearly under the Louisiana statute and practice the argument has no merit.... The state has created an optional right to proceed directly against the insurer; by bringing the action against petitioner, respondent [plaintiff] has apparently abandoned her action against the tortfeasor. Thus a complete disposition of the entire claim may be made in this one action, without injustice to any of the participants.

Lumbermen’s Mutual Casualty Co. v. Elbert, 348 U.S. 48, 51-52, 75 S.Ct. 151, 153, 99 L.Ed. 59 (1954) (citations and footnote omitted).

While not binding on this Court in a conflict of laws situation such as this, the reasoning of the United States and Louisiana Supreme Courts is persuasive. Clearly, the election of remedies available to the Piccolos, the foreclosure of certain defenses available to Hertz, and the added burden on the Piccolos to establish liability under the policy constitute a separate and distinct cause of action, which is substantive law of the state of Louisiana. We therefore hold that when a party sues in a Florida court under Louisiana’s direct action statute, the suit may be maintained solely against the insurer.

Hertz argues that to find the Louisiana statute applicable in Florida would conflict with the decisions of the courts of this state regarding joinder of insurers. In Markert v. Johnston, 367 So.2d 1003 (Fla. 1978) and Cozine v. Tullo, 394 So.2d 115 (Fla.1981), this Court held that joinder of an insurer was a procedural matter, and not within the province of the legislature to control. However, in those cases the distinguishing factor has been that the legislation under review governed the timing of joinder, and did not affect the question of whether an insurer was a proper party. This distinction is further illustrated by our decision in Vanbibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983), where we upheld the constitutionality of a statute barring direct action against the insurer because it was substantive.

The second issue addressed by the district court — whether the insured is an indispensable party — requires little comment. The essential nature of the Louisiana statute, the factor which makes the statute substantive, is that suit may be maintained against the insurer alone. The insured therefore is not indispensable. Lumbermen’s, 348 U.S. at 52, 75 S.Ct. at 154.

Accordingly, we approve the decision of the district court and we recede from Pule-ston to the extent that it conflicts with this decision.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD and OVERTON, JJ., concur.

SHAW, J., dissents with an opinion.

McDONALD, J., dissents.

SHAW, Justice,

dissenting.

I disagree with the majority in their identification of the issue. We have more than a conflict of laws involved here; we have a conflict of important public policies. I see the issue as whether comity requires that we follow the public policy of Louisiana, as determined by the Louisiana legislature and courts, even though the public policy of Florida, as determined by the Florida legislature and this Court, is directly contrary to the Louisiana policy. My answer is no.

Comity has been described as the principle under which courts of one jurisdiction give effect to law and judicial decisions of another out of deference and respect, not obligation. While Florida courts as a matter of comity will generally recognize the legislative and judicial acts of another state, they will depart from the rule of comity for the purpose of protecting the citizens of this state or enforcing paramount rules of Florida public policy. See 10 Fla.Jur.2d Conflict of Laws §§ 3-4 (1979). Both reasons are implicated here. Further, as Justice Adkins, speaking for this Court, succinctly put it: “While comity is in theory a beneficial exercise in interstate harmony, it may not be used for an improper purpose. The goal of comity is institutional cooperation, not private enrichment.” Gillen v. United Services Automobile Ass’n, 300 So.2d 3, 6 (Fla.1974).

Louisiana grants an injured party the right to bring a direct action against the insurer alone. In direct contradiction, Florida grants an insurer the right to require that a judgment first be obtained against an insured tortfeasor before the insurer can be brought to court. § 627.7262, Fla. Stat. (Supp.1982); Vanbibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983). The Vanbibber decision culminated some fourteen years of effort by this Court and the legislature to resolve the issue of whether an injured party could concurrently sue both the insurer and the insured. Our jurisdiction in Vanbibber was based on the question being one of great public importance. We upheld section 627.7262 as being a valid legislative pronouncement of public policy. I dissented from the Vanbibber decision because I am convinced that an injured party has a constitutional right to concurrently sue both an alleged tortfeasor and his insurer. This does not mean, however, that I see any merit in permitting an injured party to sue an insurer without joining the tortfeasor. Indeed, suing the insurer alone has much the same defects as suing the tortfeasor alone. We will now have the worst of both worlds. The majority decision opens up liability insurers in Florida to direct action suits in Florida courts for liability which they might incur in any other state or nation where a direct cause of action against insurers alone is permitted. Judicial economy is not furthered by enlarging the body of law under which Florida courts are required to apply unfamiliar foreign law, particularly where the cases involve proof of torts which occurred in distant jurisdictions. I am unable to join the majority in holding, only months after Vanbibber decided this question of great public importance, that courts of this state should apply foreign law which so directly contradicts a strong and distinctive public policy of this state. For that reason, I would depart from the rule of comity and apply the public policy of this state. I also consider it of at least marginal importance that the majority approach condones what is generally condemned: forum shopping.

      . The Piccolos’ initial complaint sought to hold Hertz solely liable as owner of the vehicle. The trial court granted summary judgment to Hertz, finding Louisiana law did not hold an owner liable in this situation. The trial court then granted leave to amend the complaint, to consider the issue now before us.

      . The statute reads:
      No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person, or his or her survivors mentioned in Revised Civil Code Article 2315, or heirs against the insurer. The injured person or his or her survivors or heirs hereinabove referred to, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Art. 42, Code of Civil Procedure. This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the State of Louisiana. Nothing contained in this Section shall be construed to affect the provisions of the policy or contract if the same are not in violation of the laws of this State. It is the intent of this Section that any action brought hereunder shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this State.
      It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-fea-sor within the terms and limits of said policy.
      La.Rev.Stat.Ann. § 22:655 (West 1978). The venue provisions are, of course, procedural, and therefore inapplicable in an action in Florida.

      . Indispensable parties are necessary parties so essential to a suit that no final decision can be rendered without their joinder. This is in contrast to other necessary parties, who have an interest in a suit and ought to be made parties, but who do not have to be joined before a final decision may be rendered. A final decision will bind those parties joined in the suit, but will have no effect on the rights of necessary but unjoined parties. Alger v. Peters, 88 So.2d 903, 908 (Fla.1956). See also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118-25, 88 S.Ct. 733, 742-46, 19 L.Ed.2d 936 (1968); 17 FlaJur.2d Parties § 7 (1982). Pule-ston 's reference to necessary parties thus includes indispensable parties, giving rise to the conflict we resolve in this decision.

      . The comment to the section states “the local law of the forum will not be applied to deter-miné whether a direct action can be maintained against an insurance company without the need of first obtaining a judgment against the insured." Restatement (Second) of Conflict of Laws § 125 Comment (1969).

      . Until 1969, case law barred either joinder or mention of insurers in tort suits. Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), and Beta Eta Home Corp. v. Gregory, 237 So.2d 163 (Fla.1970), as a matter of public policy, authorized a right of concurrent direct action against liability insurers. Section 627.7262, Florida Statutes (1977), overrode Shingleton by prohibiting join-der of motor vehicle liability insurers except when the insurer asserted a policy or coverage defense. We, in turn, invalidated the statute on the ground that it was an unconstitutional invasion of this Court’s exclusive constitutional rule-making authority. Markert v. Johnson, 367 So.2d 1003 (Fla.1978). The legislature riposted with chapter 82-243, § 542, Laws of Florida, which substantially reworded section 627.7262 to avoid invasion of this Court’s rule-making authority. We then upheld the constitutionality of the reworded statute because the statute was substantive and contained a valid legislative pronouncement of public policy that a liability insurer cannot be sued by a third party until a judgment is obtained against an insured tort-feasor.

      . In view of its background, Vanbibber certainly warrants description as a strong and distinctive public policy. Cf. Continental Mortgage Investors v. Sailboat Key, Inc., 395 So.2d 507, 509 (Fla.1981) (Florida usury statute prohibiting certain interest rates does not establish a strong public policy which warrants rejection of provisions in interstate loan contract).