author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

text:
    Larry Connell JAMES, alias v. STATE.
    4 Div. 258.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    On Rehearing Nov. 27, 1984.

      Larry C. Jarrell, Troy, for appellant.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty as charged in an indictment as follows:

“... Walter Samuel James and, Larry Connell James, alias Sam Hill whose names are to the Grand Jury otherwise unknown did, in the course of committing a theft of property of Winn Dixie, Inc., a corporation, threaten the imminent use of force against the person of Tony Alcu-ri, with the intent to compel acquiescence to the taking or of escaping with the property, while one of said defendants was armed with a deadly weapon, to-wit: a pistol, in violation of Section 13A-8-41 of the Code of Alabama....”

Prior to the commencement of the trial of the case upon which this appeal is based, there was a severance of the case against this appellant from the case against the other defendant. Neither defendant testified on the trial of the case now under consideration.

The evidence for the State consisted of testimony of the alleged victim, Tony Alcu-ri, an employee of Winn-Dixie, and Mrs. Ruby Lee Potts, another employee of Winn-Dixie, who were both working at Winn-Dixie in Troy Plaza on the evening of April 4, 1983, when the incident under consideration occurred at about 6:30 or 7:00. Both of said witnesses identified this appellant as a person who was in the store, who purchased a package of gum, paid for it at the check-out counter, and left the store at about closing time, 9:00 P.M., or a few moments before the law enforcement authorities were alerted as to what had occurred.

According to the testimony of Tony Alcu-ri, he had two conversations with Walter Samuel James, appellant’s co-defendant, in the store on the evening of April 4, 1983. He testified that the first conversation was about 7:30 P.M. He detailed his first conversation with Walter Samuel James as follows:

“... Most of the incident started around 7:30 when a little short black guy [whom he identified as Walter Samuel James] came in and asked me about his grandmother’s check, that he wanted to pick it up. And that day I had went through the bad checks and he told me the name, but I realized that the check was not in the office. And I told him that, well, to go back home and get the letter that we had sent him and I could probably find out where the check was at or what was going on.”

Immediately after giving the testimony quoted above, the witness testified as to the second conversation he had with Walter Samuel James as follows:

“And so around five minutes to 9:00, right at closing time, he came back in and I was just coming out of the office. And he had fifteen dollars in his hand. And a lot of people will — once they find out they’ve got a check in the office they’ll want to pay the check off before they — you know — before we send it back to the bank or sign a warrant on them. And I thought that was what he was wanting to do. And so I walked over there and when I walked over there he leaned over towards me. He says you see that black guy over there at the register, and I just looked over and I said yeah, I see him. He says, he’s got a .357 magnum, he’ll blow your brains out if you don’t do what he says do and no start no — [vulgar word omitted]. And during the time that he was telling me that he was between two customers who — I would say the ladies were in their forties — and at one register there was some people being checked out. And the customers walked towards me and I stepped out of the customers’ way because I had presumed then that I was fixing to be robbed. And so I just stepped out of the way of the customers and — I thought the little guy was right behind me. I was so scared. And I walked towards the office — well, on Mondays we have a mop crew that comes in, and they are big sized dudes, you know, men. And one of them asked me a question. And as I was walking toward the— you know — past the number one register and past number two register, well the mop men were at the number three register. When the guy asked me a question I was looking at this guy, his appearance and all. And — to get more or less a description of his build and his clothes. And he — I started talking to them. And I noticed out of the corner of my eye, I figured if I ever — if this guy ever saw me looking at him he would know that this little guy — and anyway he would know that I know what was going on. And I didn’t want nobody — .”

Officers of the Troy Police Department testified as to their apprehension of both defendants on April 4, 1983, soon after they left the Winn-Dixie store. Among the officers testifying was Officer Ken Johnson. He said that after he arrived at the store and had been informed as to what had happened, he decided to “check the other businesses in the area,” and he then went to Southland Village Shopping Center. He testified in detail:

“I entered from the northeast driveway area there by the Western Sizzler and proceeded diagonally across the parking lot, at which time I noticed a black male [subsequently identified as Walter Samuel James] in a silver Caprice Chevrolet crunched down behind the driver’s steering wheel. I took note of it because it was parked out there in the middle of the parking lot near no businesses. I proceeded to the far side of the Piggly-Wig-gly Store and observed a black male [subsequently identified as this appellant], tall black male wearing a blue windbreaker, blue jeans, afro haircut, carrying a sack exiting the store. At this time I called down at Officer Clower who had contacted the original complainant and described him to Officer Clower and wanted him to confirm if or not the subject matched the description that he was taking down there at the original scene. In just a moment he came back and advised that the manager of that store said yes, that he matched the description of one of the persons that had entered the store.
“Q. What did you do after that?
“A. I stopped — I stopped the men about halfway across the parking lot and identified myself as a police officer. From reviewing my reports written that night, I identified myself and asked if I might see some identification. Suspect asked why. I replied that I was conducting an investigation involving a person matching his description. Suspect then complied and furnished me with some kind of artificial document resembling a birth certificate.
“Q. Okay. I want to show you what has been previously admitted as State’s Exhibit 1. I ask you, is that the document that he represented to you at that time?
“A. Yes, sir. It is.
“Q. And what name does it have on it?
“A. Sam Hill.
“Q. Is that who he identified himself to be?
“A. The first time, yes, sir.
“Q. All right. And after he gave you that what did you do?
“A. I noticed then that the silver Caprice behind him at this time — we was walking in a line towards it, was starting up and leaving. I advised another car in the area that was transpiring to see if they could get it stopped.”

In continuing his testimony, Officer Ken Johnson said that he talked with the appellant, alias Sam Hill, and with a female by the name of Kitchens, who had been in an automobile parked near the Caprice, the automobile toward which the appellant had been walking. Upon his being questioned as to the conversation among the officer and the appellant and Miss Kitchens, Officer Johnson further testified:

“First of all I asked her for identification and she supplied me a Georgia’s driver’s license, or what appeared to be a Georgia driver’s license. I advised her that we were conducting an investigation and that this man was a possible suspect. I advised her of her constitutional rights. She signed the card. Then I asked her if she would be willing to come to the police department for further investigation and she said yes, that she would.”

Lieutenant Don Brown, of the Troy Police Department, was the next witness for the State. He testified that he interviewed appellant and Agnes Kitchens promptly after they were questioned by Officer Johnson and that they all then went from the parking lot to the police station, where after the Miranda rights and warnings had been given, the appellant gave the officer the following oral account of what had recently transpired:

“... He told me that they were coming to Troy from the south in a car — he said he was in a car with a black female named Agnes. Said he had met her in Atlanta a couple of months ago. Said he got up with her, Saturday night, I believe he said, down in Palm Beach, Florida. That she had picked him up at 808 East Street there in Florida and they came north and they were going to Atlanta and were going to stop in Montgomery to see a girl. They made one stop south of Troy at a gas station. He doesn’t remember exactly where. Then stopped at the Winn-Dixie. That he went in Winn-Dixie by himself to buy some fruit. That inside the store he saw that the fruit didn’t look good so he bought a pack of chewing gum and left. He was there six or seven minutes. He said he left the Winn-Dixie Store with the black female and went to Southland Village. He left the car and went to the Piggly Wiggly and bought two apples. And that when he came out that’s when the police approached him.
“Q. Did you ask him whether he was traveling with anybody else or not?
“A. Yes, sir. I did.
“Q. What did you ask him and what did he say.
“A. He said — were you and this lady traveling with another individual, a black male in another car or anybody else and he said no.
“Q. Said he was not traveling with anybody else or with another car?
“A. That’s true.
“Q. Now, in this investigation, we know that there was a silver Caprice that was later stopped by the Troy Police Department. Do you know the identity of the person who was driving that silver Caprice that was stopped?
“A. Yes, sir. I do.
“Q. Who was that?
“A. A black male named Walter Samuel James.
“Q. Subsequent to this conversation with Mr. Hill, did you have another occasion to talk with him?
“A. Yes, sir. I believe it was the next day. I went upstairs, word was sent by Mr. James through the jailer, I believe, or through the dispatcher, that he requested to see one of the investigators. At which time Sgt. Louis Fanning who works with me spoke with the individual and I walked in as he was finishing reading him his rights.
“Q. And what was said during that conversation?
“A. He told us that his real name was Larry Connell James. And gave us his correct date of birth, et cetera. And he said the reason he didn’t want to tell us his name to start with was because of, I believe Walter Samuel James. It would get him into more trouble, and due to his past record it would get him into trouble, also.”

Officer Louis Fanning testified that he participated in the arrest and imprisonment of Larry Connell James on the evening of the incident under consideration and at the time he was being booked in jail under the name of “Sam Hill.” He further testified that he talked with the appellant a “second time” when the witness “came in one morning and one of the jailers told me that Mr. Hill wanted to talk to a detective.” He further testified:

“Q. What did Mr. Hill or Mr. James say to you during this second meeting?
“A. I — after I had read him his rights and everything I asked him what did he want to talk about. And he said that he wanted to give me his real name.
“Q. Okay. Did he?
“A. Yes, sir.
“Q. What name did he give you?
“A. He gave me Larry Connell James.
“Q. Did he say anything else to you?
“A. Well, I asked him why he had given us the false name to start with and he said that he was trying to protect Walter Samuel. That he had — Mr. Connell James had a criminal record and that he did not want to make Walter look any worse or whatever by his association or whatever with him. And he said that Walter Samuel had told him, don’t worry about me, you know, I’ll take care of myself, just, you know, take care of yourself. So he decided then to just go ahead and tell us the right name.
“Q. Did he mention who he was traveling with?
“A. I asked him about his relationship with Miss Kitchens. And he said that Miss Kitchens was not his girl friend, that she was Walter Samuel’s girl friend.
“Q. Did he say that she was traveling with Walter Samuel?
“A. Yes, sir.”

During cross-examination of Officer Fanning, he testified:

“Q. Did Mr. Larry James give you any explanation as to how they were traveling or where they were coming from?
“A. I believe he told me that the three of them [Miss Kitchens, Walter Samuel James and this appellant] had spent the night in Valdosta, Georgia, the night before, coming to Troy. I would have to cheek the supplement report on that interview.
“Q. Did he say where they were going?
“A. No, sir. I can’t recall that they said what their destination was.
“Q. For the purpose of recollecting, I would like to let you look at this just for a moment. This being a question and answer period with you and you made a statement here what Mr. James told you. Will you read that please?
“A. Are you talking about this answer here?
“Q. Yes, sir.
“A. ‘Yes, sir. Because it says Sam Hill. He told me, Mr. James told me. I cannot remember exactly all of the places that they went to in sequence, but he said they went. But he told me that Walter Samuel told him that he had violated his parole and that the law was looking for. them. And they were planning on going up to Atlanta and having a nice weekend and then he said that Walter Samuel was going to give himself up. — ’ Do you want me to go on?
“Q. Yeah, go on.
“A. And ‘ — he said that they were going to have kind of one last night weekend together. He also stated to me that he has not seen him in six years, I think.’ ”

I.

By the first issue presented in appellant’s brief, it is contended that the trial court erred in not granting the defendant’s motion for judgment of acquittal and in not granting defendant’s motion for a new trial. Appellant’s attorney presents a strong argument in favor of this issue. He commences his argument as follows:

“The case against the appellant, Larry Connell James, is based entirely on circumstantial evidence. Briefly that evidence consists of the following:
“1. The appellant traveled to Troy with Walter Samuel James;
“2. The appellant was seen in the Winn-Dixie store prior to Walter James’ action at the time of Walter James’ action;
“3. The appellant stopped momentarily as if to look for someone when he was departing the Winn-Dixie store;
“4. The appellant’s action in giving a false name and denying association with Walter Samuel James when first arrested.”

We agree with the first sentence that the case against this appellant “is based entirely on circumstantial evidence.” We add to item 2 of the circumstantial evidence summarized in appellant’s brief what Mr. Alcu-rie stated this appellant stated to him, as quoted hereinabove in directing Mr. Alcu-rie’s attention more closely to Walter Samuel James, by saying “He’s got a .357 Magnum, he’ll blow your brains out if you don’t do exactly what he says do.” We are in further accord with the principle of law relied upon by appellant’s counsel, as has been repeatedly held since its pronouncement by Justice Stone in Ex parte Acree, 63 Ala. 234 (1879). However, we are not persuaded by the argument of appellant’s counsel that the circumstances “do not show more than an association with a guilty party, Walter Samuel James,” who is referred to in the brief as a cousin of this appellant. The circumstances strongly indicate that this appellant was working in concert with his cousin in the ensuing conduct of both whereby they were attempting to steal merchandise or other personal property of value in the Winn-Dixie Store.

Although the pistol referred to in the evidence as being in the possession of Walter Samuel James was never observed by Mr. Alcurie or any other employee or agent of the store, the existence and description thereof by the appellant in talking with Mr. Alcurie met the requirement of showing that appellant’s cousin was “armed with a deadly weapon” as set forth in § 13A-8-41 of the Criminal Code as qualified by § 13A-8-41(b) as follows:

“Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or by any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.”

In our opinion, a jury question was presented as to whether this appellant was guilty as a principal, or as an aider or abettor of his cousin, of robbery in the first degree and that the verdict of the jury finding him guilty thereof was not contrary to the great weight of the evidence. Any notion that a “taking” is required to sustain a conviction of the statutory crime of robbery in the first degree, as defined in Alabama Criminal Code, § 13A-8-41, is incorrect, as decided in Grace v. State, per Judge DeCarlo, Ala.Cr.App., 431 So.2d 1331, 1333 (1982), cert. quashed, Ala., 431 So.2d 1331, wherein it is stated:

“The present robbery statutes, however, do not require a ‘taking’ of property, Marvin v. State, 407 So.2d 576 (Ala.Cr.App.1981); Ala.Code §§ 13A-8-40 through 13A-8-44 (1975) (Commentary), .... The operative words of the current robbery statute are ‘in the course of committing a theft,’ which includes an attempted theft, Marvin v. State, supra, rather than the common law element of an actual ‘taking from the person.’ ”

II.

Appellant asserts that “the judge erred in denying appellant’s jury charges, Number 11, Number 12, Number 13, and Number 14.” He sets forth in his brief the language of each charge and the authority relied upon by him in support of his position that the court “erred in denying” such charges which we now quote:

“Defense charge 11:
“ ‘Mere presence of suspect at scene of crime without proof he either participated or encouraged the principal is not sufficient to establish guilt.’ Chapman [Chatom] v. State, 348 So.2d 828.
“Defense charge 12:
“ ‘Knowledge of the commission of a felony, after its commission without aid being rendered to the active felon in the commission of the felony, is not sufficient to authorize that conviction.’ James v. State, 351 So.2d 693.
“Defense charge 13:
“ ‘To make a defendant a principal or an accessory the State must adduce some legal evidence implying that he either recuited [sic], helped or counselled in preparing the theft or took or undertook some part of its commission.’ Pugh v. State, 42 Ala.App. 499.
“Defense charge 14:
‘Crime of aiding and abetting .is one requiring specific intent, and mere association, as opposed to participation is not sufficient to establish guilt, nor is mere presence at scene of crime alone sufficient to sustain the burden of proof the government bears.’ United States v. Kelton, 446 F.2d 669.”

We do not question the correctness of the principle of law asserted in any of the four requested written charges. However, it is to be observed that in none of the cases cited was it decided that the quoted principle of law should have been given as an instruction to the jury.

Defendant’s Charge 11 is both argumentative and misleading. It is argumentative in the use of the adjective “mere” and misleading in the suggestion that the defendant was not a participant in the alleged crime. In the absence of any testimony from either this appellant or his co-defendant, it cannot be determined with reasonable certainty that Walter Samuel James was the sole principal and that this appellant was merely an abettor.

Defendant’s requested Charge 12 is misleading in its tendency to assume incorrectly that there was no evidence of any knowledge by this appellant of the commission of a felony until after the felony was committed. The testimony as to what this appellant said as to what his co-defendant was in the process of threatening to do with a pistol is in conflict with such an assumption.

Defendant’s requested Charge 13 is misleading in its tendency to assume that this appellant did not take any part in the actual commission of the alleged crime.

Defendant’s Charge 14 is argumentative by reason of its employment of the adjective “mere” twice and the adverb “alone” as a modifier of the adjective “sufficient” and is confusing in its tendency to assume that this appellant’s co-defendant was more of a principal than appellant.

The trial court was not in error in refusing any' of defendant’s requested charges, 11, 12, 13 and 14.

III.

In his caption to the third contention for a reversal in appellant’s brief, he says, “The judge erred in his manner of answering the questions of the jury.” His argument in its entirety is as follows:

“In this case the Judge answered the jurors’ questions, about whether a gun was found or not, by reading them the statutes defining robbery and the indictment. In East v. State, 339 So.2d 1104, the court held:
“ ‘When jury calls for additional instructions and clearly delineates area of its request, it is usually better for trial court to remain within such area.’
“In the present case the evidence on which the jury had to deliberate was so little, it was extremely prejudicial to emphasize a portion of the instructions most favorable to the prosecution. To lessen the prejudicial effect it would have required an additional charge on the theory of aiding and abetting, since this was the only theory on which a conviction could support this argument in Flowers v. State, 402 So.2d 1118, by saying [sic]:
“ ‘Trial court should admonish the jury that additional instructions must be regarded with all other instructions given.’
“The court made mention of ‘other principles of law’ but did not place the proper emphasis on them that the facts of this case would require.’ ”

We. have some difficulty in understanding fully the position taken by appellant in his brief argument as to the third contention for a reversal. It is directed at a colloquy between the trial judge and a juror after the jury had retired to the jury room and continued deliberation in the case and was brought back to the courtroom at the request of the jury, where the following occurred:

“THE COURT: Ladies and gentlemen, anything we say to each other has to be done on the record and has to be done back in the courtroom and has to be done in front of everyone. So—
“A JUROR: We wanted some clarification on the weapon. Was there a weapon, and if so, was it found — I mean, who had the weapon, if there was one?
“THE COURT: All right, sir. The only thing I can say to you is that we can’t answer the question for you for this reason. If there was a weapon or if there was not a weapon would be for you to determine from the evidence.
“A JUROR: Well, it wasn’t presented. I mean, it was mentioned, but — why wasn’t it — or if there was one why wasn’t it in these cars and things?
“THE COURT: All right, sir. That would be for you to determine. I’ll go a step further if it will help you any and I would ask you to listen — I mean, if it would help you any, I am not suggesting it, but if it would help you any, I’ll tell you what the charge of robbery says, again. If you would like that done?
“THE JUROR: Are you talking about the indictment?
“THE COURT: Well, no — well, that too, if you want that.
“THE JUROR: Well, let’s hear that.
“THE COURT: I can tell you what the Code Section says, again, on robbery in the 1st degree. If you want that.
“THE JUROR: Well, wasn’t there some mention of a weapon in the testimony? Could we hear that again?
“THE COURT: Well, sir, no, you can’t, because that’s for you to determine based on what you heard and based on what inference you give to the testimony.
“THE JUROR: Could we hear the indictment again?
“THE COURT: Yes, sir. And like I said, if it would help you any I will tell you again what the law says robbery in the 1st degree is. I see some jurors nodding their heads that they would like to hear that. The indictment — and I’ve got to go a step further, too, to say this in order to be fair to everyone, keeping in mind that the indictment itself is not evidence. That is just the manner by which it comes up for trial.”

The trial court then for almost a page of the transcript recited the language of the indictment, including the words “in violation of Section 13A-8-41 of the Code of Alabama,” and concluded its instructions to the jury as follows:

. It’s for you to determine from the evidence if the defendant had the pistol that you have the question about or what you determine the pistol had to do with it, if anything, under this Code Section. “And I would caution you, ladies and gentlemen, this. What I have just read to you, also keep in mind all of the other principles of law that I gave you earlier. They also bear on the case and are to be considered by you in addition to what I have just given to you again. Fair enough?”

The jury then retired to the jury room for further deliberation, and counsel for the defendant promptly made the following statement:

“The defense objects to the explanation as given by the court upon the request of the jury in that the entire charge was not read again to the jury as presented the first time. That the material was isolated and pointed to particular questions and — which would result in prejudicial emphasis being placed on those particular points of law.”

It is not for us to criticize either the State or the defense for the failure of the evidence to show whether the pistol was ever found upon or about the defendant, and we can understand the inquiry of the jury on the subject, but we are convinced that the trial court was correct and impartial in the language employed by it to answer the inquiry. We find nothing in either of the cases cited by appellant to support his contention that the trial judge was in error “in his manner of answering the questions of the jury” and conclude that appellant’s third contention for reversal is without merit.

IV.

By the final issue presented in appellant’s brief, appellant says, “The Judge erred in using Exhibit 1 as evidence of prior convictions during sentencing of appellant under Alabama Habitual Felony Offender Act.” The State gave due notice that it would proceed against defendant under the Habitual Felony Offenders Act and introduced evidence of two previous felony convictions that occurred in the state of Florida. Alabama Criminal Code § 13A-5-9(b)(3) provides that “In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such conviction has committed another felony,” and that such other conviction is for a Class A felony, he must “be punished by imprisonment for life or for any term of not less than 99 years.” § 13A-5-9(a)(3) provides that on conviction of a Class A felony after the defendant “has committed another felony” the defendant “must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.” Appellant contends that the evidence as to one of the two previous felony convictions fails to show that defendant was represented by counsel and that such fact deprived it of its efficacy as a previous conviction under the Habitual Felony Offenders Act. He is correct as to the legal proposition stated, as shown by the authorities cited of Douglas v. State, Ala.Cr.App., 406 So.2d 1051, 1052 (1981), and Watson v. State, Ala.Cr.App., 392 So.2d 1274, cert. denied, 392 So.2d 1280 (1981). We must now consider whether he is correct as to his factual contention.

The evidence on the sentencing hearing as to the previous conviction challenged by appellant as sufficient to warrant his consideration in enhancement of punishment pursuant to the Habitual Felony Offenders Act consists of certified copies of two documents pertaining to appellant’s conviction of forgery in July 1973 in the Circuit Court of Palm Beach County, Florida. One is a copy, of the judgment of conviction and sentence to imprisonment for one year and placing defendant on probation, which is signed by the judge of the court, which shows that the judgment was rendered on the defendant’s plea of guilty and contains no reference to or information as to an attorney. The other document, also signed by the judge, is on a printed form with a blank for the name of defendant and other blanks therein and which, in the first paragraph thereof, states:

“You, LARRY CONNELL JAMES, [type-wri tten], being now before the Court, attended by your attorney, _, (or knowing and understanding your right to an attorney, privately retained or court-appointed and your having waived your right to be represented by an attorney) and your having been found GUILTY of, or your having PLEADED GUILTY to: FORGERY, as charged in Count One of the Information, [typewritten! now therefore I ADJUDGE you to be GUILTY of the offense (offenses) to which you (were found GUILTY) (PLEADED GUILTY).”

Appellant says:

“There is nothing to indicate that the appellant affirmatively waived his right to an attorney. The mere failure of putting in the attorney’s name could not be construed as affirmative action waiving his right to an attorney. There was no marking, underscoring, or initialing of the portion of the sentence that was enclosed by parentheses that could have been an affirmative action of waiving his right to an attorney.”

Disagreement therewith is expressed in ap-pellee’s brief by an argument that concludes as follows:

“The Appellee contends that the failure to identify who his counsel was does not render void such certified prior conviction. The concerned document states that the Appellant was ‘attended by your attorney.’ ”

We do not agree with the conclusion reached by appellee. We conclude that the evidence does not show that defendant was represented by counsel in the case in which he was convicted of forgery or that he knowingly and understanding^ waived his right to counsel. In our opinion, the evidence indicates that he did not have an attorney and does not show affirmatively that he waived his right to an attorney.

This cause should be remanded to the trial court with instructions that another sentencing hearing be conducted and that a proper and appropriate sentence be then pronounced. The trial court will make a return to this order of remandment with notice to the parties, and either party aggrieved thereby will have fourteen days thereafter within which to file a brief with this court and the opposing party will have seven days thereafter within which to file a reply brief.

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

REMANDED.

All Judges concur.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

Appellant’s application for rehearing is based almost exclusively upon a mistake of the writer in the first paragraph of that part of the opinion dealing with appellant’s Issue I by which appellant urges that the trial court “erred in not granting the defendant’s motion for judgment of acquittal” and in not granting defendant’s “motion for new trial.” The writer confesses the mistake and that the writer is solely to be blamed for the mistake, and he now endeavors to correct it. The core of the mistake is to be found in the following portion of the opinion.

“... We add to item 2 of the circumstantial evidence summarized in appellant’s brief what Mr. Alcuri stated this appellant stated to him, as quoted herein-above in directing Mr. Alcuri’s attention more closely to Walter Samuel James, by saying ‘He’s got a .357 Magnum, he’ll blow your brains out if you don’t do exactly what he says do.’ ”

The mistake regrettably made by the writer was in incorrectly identifying the particular person talking with Mr. Alcuri as the appellant and in incorrectly identifying the particular person to whom Mr. Alcuri’s attention was directed as Walter Samuel James, which was precisely opposite from what the identification of each should have been. The sentence should have been:

“We add to item 2 of the circumstantial evidence summarized in appellant’s brief what Mr. Alcuri stated Walter Samuel James stated to him [Mr. Alcuri], as quoted hereinabove in directing Mr. Alcu-ri’s attention more closely to this appellant by saying ‘He’s got a .357 Magnum, he’ll blow your brains out if you don’t do exactly what he says do.’ ”

The same incorrect factual statement made by the writer as now shown herein-above continued into the next paragraph of the opinion on original submission, which should have been as follows:

“Although the pistol referred to in the evidence as being in the possession of this appellant was never observed by Mr. Alcuri or any other employee or agent of the store, the existence and description thereof by Walter Samuel James in talking with Mr. Alcuri constituted some evidence that appellant was ‘armed with a deadly weapon’ as set forth in § 13A-8-41 of the Criminal Code as qualified by § 13A-8-41(b) as follows:
“ ‘Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or by any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.’ ” »

This writer’s mistake as to the evidence as above-related led to a mistake in the conclusion as to Issue I on appeal, as expressed in the last clause of the first sentence of the last paragraph of the opinion as to Issue I as follows:

“In our opinion, a jury question was presented as to whether this appellant was guilty as a principal, or as an aider or abettor of his cousin, of robbery in the first degree and that the verdict finding him guilty thereof was not contrary to the great weight of the evidence.”

In the light of the corrected statement of the facts, we are now of the opinion that the first sentence of the last paragraph of the opinion on original submission as to Issue I should be as follows:

In our opinion, a jury question was presented as to whether the appellant was guilty as a principal, or as an aider or abettor of his cousin, of robbery in the first degree, but the verdict finding him guilty was contrary to the weight of the evidence.

The application for rehearing should be granted, the judgment of the trial court should be reversed and the cause remanded for another trial.

APPLICATION FOR REHEARING GRANTED; FACTS STATED IN OPINION ON ORIGINAL SUBMISSION CORRECTED AND OPINION MODIFIED; REVERSED AND REMANDED.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Charlotte Grant DeBRUCE v. STATE.
    6 Div. 189.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-117.

      Stephen G. Mahon of Boudreaux, Davis & Mahon, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

Charlotte Grant DeBruce was indicted and convicted for theft of property in the second degree. Alabama Code 1975, § 13A-8-4. She was sentenced as an habitual offender to ten years’ imprisonment. Four issues are raised on appeal.

I

DeBruce contends that there was no competent evidence of the value of the property taken. This is a shoplifting case involving the theft of a silver cup from Rich’s Department Store in Birmingham. The State’s evidence shows that Jimmy Lee Terry placed the cup inside his coat. As Terry and DeBruce walked away from the silver department, Terry placed the cup in DeBruce’s purse. The pair went to the jewelry department where Terry removed various items of jewelry and placed them in his pocket. When Terry was confronted by store security agents, DeBruce walked away. Store Detective Diane Brookins observed DeBruce remove the cup from her purse, place it on a “riser” or display shelf, and exit the store. Brookins recovered the cup, which bore a sticker identifying the cup as the property of Rich’s and listing the purchase price.

At trial, the State’s only witnesses as to the value of the cup were Ms. Brookins and another store detective, Dorothy Godfrey. Neither witness had any personal knowledge of the value of the cup except what was reflected on the price sticker. Over a general objection and one of “improper predicate”, Ms. Godfrey stated her “judgment as to the value of this cup based on the price tag.” Ms. Brookins was never asked her opinion as to the value of the cup but testified to what the price sticker “said as to value.” She also stated that because of the fluctuating price of silver, “(w)e go up and down with mark-ups and markdowns on a daily basis.”

We find that the trial judge erred in allowing Store Detective Godfrey to testify about the value of the cup, that the price sticker was substantial evidence on which the jury could reasonably rely in determining the market value of the stolen cup, and that the error in the testimony of the store detective was harmless. These findings involve issues of first impression in Alabama.

A.

Our finding that Store Detective Godfrey was not qualified to testify to her opinion concerning the value of the cup is based on the undisputed fact that her knowledge of that value was based solely on the price tag.

The only predicate necessary for the receipt of opinion testimony of value is that the witness has had an opportunity to form a correct opinion of the value of the stolen property. State v. Johnson, 268 Ala. 11, 13, 104 So.2d 915 (1958); Tice v. State, 386 So.2d 1180, 1186 (Ala.Cr.App.), cert. denied, Ex parte Tice, 386 So.2d 1187 (Ala.1980); Alabama Code 1975, § 12-21-114. For purposes of offenses involving theft, “value” is defined as “(t)he market value of the property at the time and place of the criminal act.” Alabama Code 1975, § 13A-8-1(14).

“In this case, the testimony of the security guard regarding the value of the stolen goods was not based on her own personal knowledge or experience. Her ‘opinion’ was based solely on the figures stated on the price tags, and as such, should have been excluded as incompetent.” State v. White, 37 Conn.Supp. 796, 437 A.2d 145, 149 (1981). Store security officers are not qualified to testify as to the value of stolen merchandise where their knowledge is based solely on the price ticket. State v. Coleman, 19 Wash.App. 549, 576 P.2d 925, 927 (1978).

“The record does not indicate that the store detective was qualified to testify of her own personal knowledge as to the value of the stolen merchandise. Though she professed that part of her job was to know the price of the more expensive pilferageable goods, she admitted that she was not involved in the pricing of the merchandise, had no access to wholesale or retail price lists, and would not know if the goods were mis-marked. As such, she was not qualified to testify concerning the value of goods as would a shop owner or manager.... Her knowledge was gained exclusively from the price tags on the merchandise.” People v. Codding, 191 Colo. 168, 551 P.2d 192, 193 (1976).

B.

Although Godfrey’s opinion of the value of the stolen cup should not have been admitted, the price sticker on the cup was competent evidence of value. Here, the only objections to the admission of the price sticker were a mere “objection” and that “(a)nybody could have put that tag on there.”

At the outset, we recognize that there is authority that price tags constitute inadmissible hearsay unless properly qualified as a business record exception. Codding, supra; Coleman, supra. However, our research reveals that the weight of authority supports the conclusion that, in a shoplifting case, a price tag constitutes competent evidence of the value of stolen property. In Lacy v. State, 432 So.2d 1205, 1206 (Miss.1983), the Supreme Court of Mississippi rejected the majority opinion in Coleman, supra, and held that where the price tags were attached to the garments when the theft occurred, where there was no sale in the store which would reduce their displayed value, and where the garments came from two public display racks where “high-value” men’s items were kept, the price tags were not inadmissible on the grounds they constituted hearsay. Price tags are competent evidence of the value of stolen goods in a shoplifting prosecution. Calbert v. State, 670 P.2d 576 (Nev.1983); Lauder v. State, 233 Md. 142, 195 A.2d 610 (1963). “Where a defendant is charged with shoplifting, uncontradicted evidence that merchandise was displayed for regular sale at a market retail price may constitute circumstantial evidence on the value of an item.” State v. Tunnell, 99 N.M. 450, 659 P.2d 902 (1982), reversed on other grounds, 99 N.M. 446, 659 P.2d 898, 904 (1983); City of Albuquerque v. Martinez, 93 N.M. 704, 604 P.2d 842, 843 (1979). “In a shoplifting case, evidence that merchandise is offered for sale at a marked price is sufficient circumstantial evidence of value, where totally uncontradicted, to support a conviction grounded upon the marked price of its value.” State v. Harris, 641 S.W.2d 515, 516 (Tenn.Cr.App.1980); Norris v. State, 475 S.W.2d 553, 555 (Tenn.Cr.App.1972).

Like the Supreme Court of Mississippi, we adopt the rejection of the majority opinion in Coleman, supra, and follow the decision of the Superior Court of Connecticut in State v. White, 37 Conn.Supp. 796, 437 A.2d 145, 148 (1981):

“Our consideration of current retail merchandising practices constrains us to reject the majority opinion in Coleman and to follow the reasoning set forth in the minority opinion. ‘In this day and age, items bought at retail are customarily purchased at the price shown on the price tags attached to the merchandise. Although the price listed on the tags was not necessarily conclusive evidence of the market value of the merchandise in this case, it was at least substantial evidence on which a jury could reasonably rely in determining that the market value of the goods stolen was in fact that which was shown on the price tag.’ Id. [19 Wash.App.] 555, 576 P.2d 925 (dissenting opinion).”
* * * * *
“The defendant’s claim that she was denied her right to confrontation is also groundless, since the admissibility of the price tags does not prevent her from presenting rebutting evidence on the issue of value. State v. Tomanelli, supra [153 Conn. 365] 369, 216 A.2d 625 (judicially noted facts are not conclusive, but may be rebutted). The defendant had the right to contend that the price tags did not necessarily reflect the market value of the goods, but it would be incumbent upon her to present evidence to support this contention. State v. Coleman, supra, 556, 576 P.2d 925 (dissenting opinion); People v. Cook, 233 Cal.App.2d 435, 438, 43 Cal.Rptr. 646 (1965); State v. McDonald, 312 Minn. 320, 251 N.W.2d 705 (1977); People v. Irrizari, supra [5 N.Y.2d 142, 179 N.Y.S.2d 102, 156 N.E.2d 69 (1959) ]. The defendant’s failure to introduce evidence on this issue defeats her claim that she was denied her right of confrontation.
“The defendant’s arguments against the admissibility of these tags are without merit. We are unpersuaded by the argument that such tags are technically ex-cludable as hearsay unless qualified under the business records exception; State v. Coleman, supra; Lauder v. State, 233 Md. 142, 195 A.2d 610 (1963); 31A C.J.S., Evidence § 194d; since the inherent unreliability of hearsay is not present in this type of evidence. Rather, the fact that price tags generally reflect market value may be judicially noted, since this fact is both commonly known and capable of ready demonstration. See generally State v. Tomanelli, 153 Conn. 365, 368-69, 216 A.2d 625 (1966). This fact therefore provides the basis for the admissibility of the tags, which were stolen along with the garments.”

We adopt the reasoning in White, Lacy, and Norris and hold that in a shoplifting case, a price tag attached to the stolen property at the time of the theft is sufficient circumstantial evidence of value, where totally uncontradicted, to support a conviction grounded upon the marked price of its value.

Our finding that the price tags are not inadmissible hearsay squares with the general rule that inscriptions or labels placed on packages for the purpose of indicating their contents are competent evidence, strong or weak according to the attendant circumstances, of their actual contents. Kennedy v. State, 182 Ala. 10, 62 So. 49 (1913); Cusimano v. State, 27 Ala.App. 407, 409, 173 So. 490 (1937); Herring v. State, 11 Ala.App. 202, 203, 65 So. 707 (1914); Hodge v. State, 11 Ala.App. 185-86, 65 So. 676 (1914). See also Burks v. Hubbard, 69 Ala. 379, 384 (1881) (The market price of property is “a conclusion which is largely made up of presumptions, and may always be proved by the opinions of witnesses based of necessity, in part at least, on hearsay”).

C.

Although Store Detective Godfrey’s opinion of the value of the stolen cup was incompetent, the price sticker was properly admitted into evidence. The trial judge erred by allowing the jury to consider both competent and incompetent evidence on the issue of value. However, this error is harmless. White, 437 A.2d at 149. “Admissions of incompetent evidence are harmless, where the fact to which that evidence relates is otherwise established by competent evidence.” Smith v. State, 229 Ala. 207, 157 So. 874 (1934). Error in the admission of hearsay testimony is harmless where the testimony is cumulative. Cobern v. State, 273 Ala. 547, 551, 142 So.2d 869 (1962). Error in the admission of opinion testimony is rendered harmless where there is competent evidence to the same conclusion. McPhearson v. State, 271 Ala. 533, 538, 125 So.2d 709 (1961); Holland v. State, 424 So.2d 1387, 1390 (Ala.Cr.App.1982).

For these reasons, we find that there was competent evidence as to the value of the property stolen.

II

The defendant argues that the State presented no evidence of her unlawful intent to deprive the owner of his property.

To sustain a conviction for theft, the prosecution must prove that the accused knowingly obtained or exerted unauthorized control over the property of another, with the intent to deprive the owner of his property. Alabama Code 1975, § 13A-8-2(1). Here, the issue of the defendant’s intent was for the jury. Barbee v. State, 395 So.2d 1128, 1131 (Ala.Cr.App.1981).

The State’s evidence shows that the defendant’s companion placed the cup in the purse the defendant was carrying. The defendant accompanied Terry to another part of the store where he placed assorted items of jewelry in his pocket. After Terry was stopped by store detectives, the defendant walked away, disposed of the cup in another portion of the store, and walked out the door. The facts furnish a sound basis for the element of intent. See Martin v. State, 371 So.2d 460 (Ala.Cr.App.1979).

Here, there was no evidence that the cup was inadvertently placed in the defendant’s purse or that the defendant took the cup merely with the intention of borrowing it temporarily. McMurphy v. State, 358 So.2d 1065, 1066 (Ala.Cr.App.), cert. denied, 358 So.2d 1069 (Ala.1978). Here, the cup was not openly taken with no subsequent attempt of concealment. McMullen v. State, 53 Ala. 531, 534 (1875). The fact that the defendant abandoned the cup after her accomplice was caught does not contradict a finding that at the time of the actual taking she had the intent to permanently deprive the owner of his property. See 50 Am.Jur.2d Larceny § 37 (1970). “Secrecy has been said to be the usual evidence of felonious intent in larceny, and where it is shown that the property was secretly taken, no other motive appearing, the inference is proper that it was taken feloniously.” 50 Am.Jur.2d Larceny at § 157. “Thus, when property is secretly and clandestinely taken and no other motive is shown, the inference naturally arises that it was taken feloniously, and evidence of such a taking warrants a conviction.” 52A C.J.S. Larceny § 136(2)(a) (1968). The evidence of the other acts of shoplifting committed by the defendant’s accomplice was admissible on the issue of the defendant’s intent. Curtis v. State, 78 Ala. 12 (1884).

III

Although the defendant argues that the trial judge’s question of a defense witness was improper and prejudicial, there was no objection raising this issue at trial. Without objection nothing is presented for review. Barbee, 395 So.2d at 1133. We have examined the record and find no impropriety in the judge’s single question of the defense witness. Smith v. State, 447 So.2d 1327, 1330-31 (Ala.Cr.App.1983).

IV

The defendant alleges that the trial court erred in not granting defense counsel’s request to cross examine State’s witness Godfrey with respect to an alleged prior inconsistent statement before the grand jury.

At trial Godfrey testified that she recovered the stolen cup from the riser where the defendant had placed it. Neither her testimony before the grand jury nor her written report of the incident contradicts her trial testimony. Neither contains exculpatory information. The trial judge reviewed tbe reports of the two store detectives and found that “their reports are almost identical with their testimony”: “I am holding it not only exculpatory, it’s almost explicit to what they have testified to.”

“[A] witness may always be impeaehed by showing that he has made a contradictory statement as to material matters before the grand jury.” Mullins v. State, 31 Ala.App. 571, 573, 19 So.2d 845 (1945). Here, the trial judge conduced an in camera inspection of the grand jury notes and the reports. Our independent examination of these documents confirms the trial judge’s finding that they contain no exculpatory evidence and are not inconsistent with the witnesses’ trial testimony. Millican v. State, 423 So.2d 268 (Ala.Cr.App.1982). The defendant’s argument on this issue is not supported by the record.

Our review convinces us that the defendant received a fair trial and that the judgment of the, circuit court should be affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Judge.

text:
    Robert Earl WALTON v. STATE.
    6 Div. 290.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-119.

      Carl E. Chamblee, Jr. of Chamblee & Harris, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

The appellant, Robert Earl Walton, was indicted by the Jefferson County Grand Jury for violating Section 13A-ll-72(a) of the Alabama Criminal Code, which specifically states: “No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control.” Code of Alabama, 1975. The appellant was arraigned, at which time he entered a plea of not guilty.

Subsequently, appellant filed a motion to suppress evidence that the State intended to use at trial which was secured through a warrantless search and seizure of appellant’s van on August 13, 1981.

A review of the facts reveals that the Birmingham Police Department received a call in the early morning hours of August 13, 1981, stating that a black male without a shirt was behind a local fast-food restaurant in a concrete block enclosure.

Officer Lawrence Kornegay testified at the hearing on the motion to suppress which was held prior to the trial and outside the presence of the jury, that he responded to the call. Officer Kornegay stated that he searched the area of the fast-food restaurant by riding around in his patrol car. Approximately one-half block from the restaurant, the officer located a van with tinted windows. Officer Korne-gay testified that as he approached the van he noticed movement in the front of the van and that he observed three individuals in the van, two of whom were black males without shirts. The officer further testified that he observed a syringe on the dash console and saw the two males “taking their hands and placing them under a mattress in the back of the van.” After ordering the individuals to exit the van, Officer Kornegay stated that he stepped into the van to remove the syringe. It was while he was performing this task that he noticed a pill bottle in open view in the compartment console. The bottle appeared to contain a controlled substance commonly called “blues.”

Officer Kornegay, with the assistance of Officer M.S. Paschall, then ran the appellant’s name through the police department and learned of a prior conviction for theft of property and two outstanding warrants on the appellant. One warrant was for riding a motorcycle without a helmet and the other was for failing to report a traffic accident. Appellant was then arrested and taken into custody and the van searched. (The record is somewhat unclear as to the exact sequence of the arrest and search.) A search of the van produced two revolvers; two stockings, each with one end tied; two pairs of gloves; and two toboggans. The revolvers were both loaded and were found under the mattress at the rear of the van.

The trial court overruled appellant’s motion to suppress the pistols found in the van, but ordered that the other evidence, namely the stockings, gloves, and toboggans, not be introduced. However, during the trial the court did allow the admission of the additional evidence.

We must first decide whether the law enforcement official had sufficient probable cause to stop and search the appellant’s van and then decide concurrently whether the trial court properly overruled the appellant's motion to suppress the fruits of the search, namely the two revolvers.

As to the issue of sufficient probable cause for the stop, the instant case is not so unlike a previous case decided by this court. In Butler v. State, 380 So.2d 381 (Ala.Crim.App.1980), law enforcement officers received a telephone call in the early morning hours from a caller who stated that she had seen a small dark shadow run around a service station and that a red automobile was nearby in a “dangerous position.” A law officer then investigated, found the car, and noticed its occupants reacting “suspiciously” in response to the appearance of the law enforcement officer.

The appellant in Butler, supra, asserted that the law enforcement officer did not have probable cause to stop the automobile because the officer did not know that the service station had been burglarized until after the stop was made. Butler, supra, relied on Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), in responding to appellant’s contention. Terry, supra, stated that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry, supra, went on to hold that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot,” a stop is permissible. Furthermore, § 15-5-30, Code of Alabama, 1975, reads:

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

Bagony v. City of Birmingham, 371 So.2d 80, 81 (Ala.Crim.App.1979), also established the principle that a detention for the purpose of investigation may be based upon circumstances falling short of probable cause to make an arrest. See also Vogel v. State, 426 So.2d 863 (Ala.Crim.App.1980).

“ ‘A peace officer may in appropriate circumstances and in an appropriate manner approach or accost a person for the purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. A policeman who lacks the precise level of information necessary for probable cause to arrest is not required simply to shrug his shoulders and allow a crime to occur or a criminal to escape, and a brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time.’ ”
6A C.J.S. Arrests § 38 (1975), as cited in Spradley v. State, 414 So.2d 170, 173 (Ala.Crim.App.1982).

The information available to the officer in the instant case would merit a law enforcement officer’s intrusion into the appellant’s activities. Factors that cast favor on the officer’s actions are the unusual hour, a call about an individual’s suspicious conduct, the proximity of the appellant’s van to the fast-food restaurant, and the actions of the occupants of the van upon the arrival of the law enforcement vehicle. See Racine v. State, 51 Ala.App. 484, 286 So.2d 890 (1973); Luker v. State, 358 So.2d 504 (Ala.Crim.App.1978). All of these factors made the officer’s “investigatory actions” proper and neglect to take those actions would have amounted to poor professional judgment. Butler, supra. Therefore, probable cause existed for the investigatory stop of appellant’s van.

Having determined that there was probable cause for the investigatory stop, we must now consider whether there was sufficient probable cause for the subsequent search, seizure, and arrest.

The Alabama Supreme Court listed six circumstances in Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973), that allow law enforcement officers the authority to conduct a search without the formality of a search warrant. The six circumstances are:

“(1) In ‘plain view’, see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
“(2) (With ‘consent’ voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
“(3) As ‘incident to a lawful arrest,’ see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
“(4) In ‘hot pursuit’ or ‘emergency’ situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
“(5) Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and,
“(6) In ‘stop and frisk’ situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).”
290 Ala. at 318, 276 So.2d at 443-44.

The officer’s “investigatory actions” commenced with his observation of three individuals in a van. As stated earlier, upon closer scrutiny, the officer discovered that two black males were busily placing their hands under a mattress in the rear portion of the van. The officer also noticed a syringe on the dash console in “plain view,” and in an effort to retrieve the syringe from the van, he discovered a bottle containing what he considered to be “blues.”

The “plain view” and the “exigent circumstances ... coincidental with probable cause” exceptions to the general rule requiring a search warrant as set out in Daniels, supra, justified the officer’s action in the case at bar, the action of conducting a warrantless search of the van. Rose v. City of Enterprise, 52 Ala.App. 437, 293 So.2d 862 (1974). The facts in an applicable search case, Jones v. State, 432 So.2d 19 (Ala.Crim.App.1983), were as follows: appellant was stopped for violating a traffic law; as the law enforcement officer approached appellant’s vehicle he could smell the odor of marijuana; through the window the officer observed a hand-rolled cigarette and hand-rolled cigarette butt; and the officer saw appellant placing “something” beneath the car ashtray. The court in Jones, supra, held that probable cause existed to search under the “plain view” and the “exigent circumstances ... coincidental with probable cause” exception detailed in Daniels, supra. Jones, supra, went on to state that it was after these observations by the police officer that the vehicle was searched, the incriminating evidence found, and the appellant arrested.

In the instant case, the syringe and “pills” found in plain view, along with the other observations which justified the stop, merited further investigation and the search of the van for other contraband. The record is silent as to what specifically the officer was searching for when he conducted the search, but we may assume that the officer suspected that other drugs were secreted in the van. Therefore, the pistols were found pursuant to a valid warrantless search and the trial court properly overruled appellant’s motion to suppress.

Secondly, the appellant asserts that the trial court erred in allowing into evidence the two pairs of gloves, two toboggans, and two stockings, over the objections of the appellant. Appellant avers that the above items had no probative value and were highly prejudicial to the appellant when submitted into evidence. We disagree.

It appears from the record that the State did not attempt to introduce the above items into evidence in its case-in-chief. Rather, the items were introduced to rebut the appellant’s ex-wife’s testimony that the van was in her exclusive possession.

Sprinkle v. State, 368 So.2d 554 (Ala.Crim.App.1978), writ quashed, 368 So.2d 565 (Ala.1979), held that the State may, at the discretion of the trial judge, introduce in rebuttal any competent evidence which explains or which is in-direct reply to, or contradiction of, material evidence introduced by the defendant/appellant. Such is the case at bar. The items introduced contradicted the assertions of one of the appellant’s witnesses. Furthermore, where evidence is admissible for one purpose, the trial court may receive the evidence, despite the fact that there may exist some other purpose for which it is not admissible. When such evidence is admitted against an appellant, it is the appellant’s sole responsibility to request that the court instruct the jury as to the limited and proper purpose for which such evidence is admitted. Failure to make such a request may equal a waiver of the right to the protective instruction. See Miller v. State, 405 So.2d 41 (Ala.Crim.App.1981), and Robinson v. State, 361 So.2d 379 (Ala.Crim.App.), writ denied, 361 So.2d 383 (Ala.1978). A search of the record revealed that the appellant made no such request for the protective instruction. Therefore, the items were properly admitted into evidence at the trial court’s discretion, and error cannot be sustained for the court’s failure to indicate to the jury for what purpose the evidence should be considered.

Finally, we must decide if appellant’s pri- or unclassified felony convictions were properly used to enhance his punishment.

Appellant argues that since his prior felony convictions were not classified as either “A”, “B”, or “C”, they should not have been used pursuant to Section 13A-5-9, Code of Alabama, 1975, to enhance his punishment. Moreover, appellant contends that his convictions prior to 1980 should not have been considered at all.

It is well settled law in Alabama that a felon’s convictions prior to 1980 may be used to enhance punishment for subsequent felony convictions. James v. State, 405 So.2d 71 (Ala.Crim.App.1981), held that the intent of the legislature in passing the Habitual Felony Offender Act was to “authorize the infliction of a more severe penalty on one who is a persistent offender regardless of when the prior convictions occurred and even if they occurred before the enactment of the act.” See also Wilson v. State, 371 So.2d 932 (Ala.Crim.App.1978), and Lidge v. State, 419 So.2d 610 (Ala.Crim.App.1982).

As to the appellant’s contention that “unclassified” felonies should not be used to enhance punishment, we totally disagree. It is obvious that the trial court sentenced the appellant under Section 13A-5-9(c)(1), Code of Alabama, 1975, which reads:

“(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows: (1) On conviction of a Class C felony, he must be punished by imprisonment for life or for any term not more than 99 years but not less than 15 years.” (emphasis added)

Watson v. State, 392 So.2d 1274 (Ala.Crim.App.1980), concluded that while the Habitual Felony Offender Act is mandatory, the trial court has the option of sentencing the appellant to life imprisonment or to any term not more than 99 years. Therefore, the trial judge is accorded discretion in such instances as the case at bar, to consider the appellant’s prior felony convictions and determine the appropriate length of the sentence in compliance with the guidelines detailed in the statutes.

Furthermore, we should point out that all that is required to set the Habitual Felony Offender Act into motion is a previous felony conviction. Section 13A-l-2(4), Code of Alabama, 1975, defines a felony as “[a]n offense for which a sentence to a term of imprisonment in excess of one year is authorized by this title.” The three convictions considered by the trial judge in enhancing our appellant’s conviction were all convictions greater than one year, thus bringing into consideration Section 13A-5-9(c)(1), Code of Alabama, 1975, as cited earlier.

In the present case, the trial court did not abuse its discretion. The appellant’s punishment was within the range prescribed by the applicable statute. Based upon the above facts and principles of law, we are of the opinion that the trial court’s reliance on the three previous unclassified felony convictions to enhance appellant’s punishment, did not violate either the Alabama Constitution or the Constitution of the United States. Accordingly, the Habitual Felony Act was properly invoked.

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none. Therefore, the judgment of the court below is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Edward Eugene BALLARD v. STATE of Alabama.
    6 Div. 595.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-115.

      Arthur Parker and George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas K. Brantley, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Edward Eugene Ballard was charged in separate indictments for sodomy in the first degree and robbery in the first degree. These cases were consolidated for trial and the jury found the appellant “guilty as charged in the indictment” in each case. Following a sentencing hearing the trial judge sentenced appellant to 20 years in the penitentiary for each case, such sentences to run concurrently.

Cynthia Townsend Lane indicated that in January, 1980, she lived with Joe Lane and her three-year-old son in Birmingham, Alabama. She stated that at the time of this incident, she and Joe Lane were not married. She said that Mr. Lane was the manager of Gordon’s Jewelry Store in the Century Plaza Mall. On Friday, January 10, 1980, Mr. Lane went to work at approximately 9:00 a.m. At this time they owned two cars, a 1978 Dodge Colt and a 1978 Plymouth. Mr. Lane drove the Dodge to work. Around 8:00 p.m. that night, she and her son drove to the Century Plaza Mall so she could call her sister. They went to Gordon’s Jewelry and used the phone. She stated that Mr. Lane was with a customer when she finished her telephone conversation, so she walked around the mall for a short while waiting for him to finish. She then returned to the store but Mr. Lane was still working with the customer. She decided to go home and wait for Mr. Lane to get off work.

Mrs. Lane testified that she and her son left the mall at 8:30 p.m. and walked to the Plymouth car, which was parked just outside the Sears store. As she was attempting to back out of the parking space, a man opened the door of her car and told her to move over. She said that he pulled a gun from under his coat. The man told her that if she made a wrong move, she would be a “dead broad”. This man went through her purse and wallet, and then took a diamond necklace from her. The man then drove the car to a secluded spot in the parking lot. She said he slammed on the brakes, and her son hit his nose, causing it to bleed. She cleaned the blood off her son’s face with some socks, then placed him in the back seat at the request of the man. The man then started kissing her and unfastened her bra and pants. He then unfastened his pants and pulled them down a little. At this point the man made her have oral sex with him for just a short time. The man then exited the car and walked back toward Sears. She then drove home. She further stated that she made a complaint to Mr. Lane about the incident, but was afraid to call the police. She said that Mr. Lane drove her to Tennessee to see her sister. She returned on Sunday morning.

She further testified that on Monday morning Mr. Lane found a checkbook in the Plymouth car and called the police. She stated that she had several interviews with Sergeant Howard Miller after the checkbook was found. She described her assailant as wearing a three piece suit, white shirt and sporting a goatee. She identified the appellant as the man who entered the car. She also identified a pistol stating “it appears to be the same gun used that night.”

Joe Lane testified that he was the manager of Gordon’s Jewelry Store in the Century Plaza Mall and in January of 1980 he was living with Cynthia Townsend and her son. He said that he gave her a one-quarter carat diamond pendant for Christmas in 1979. He said that on Friday, January 10, 1980, Cynthia came to the store to make a telephone call to her sister. He said they were going to Tennessee the following day. He said she made the call, then left the store. He closed the store around 9:15 p.m. and went home. After he had been home for approximately 15 minutes, Cynthia and her son arrived. He said she was upset and crying and that there was blood on her pants and on the little boy’s face. They left the apartment and checked with some of his co-workers, then drove to her sister’s home in Tennessee. He left her in Tennessee, then went back and got her on Sunday. He said that on Monday morning, he found a checkbook on the front seat of the Plymouth automobile and then called the police.

Vincent Campanella, Jr. testified that he was the general manager of the store which employed Mr. Lane. On January 10, 1980, he observed Mr. Lane, Cynthia, and her son at approximately 10:30 p.m. He stated that Cynthia appeared pale and that her son had dried blood on his face.

Norman Staff testified that he was an officer with the Birmingham Police Department. He responded to a call, talked with Mr. Lane and Ms. Townsend about a robbery complaint and received a checkbook found in a 1978 Plymouth automobile.

Tony Biskup testified that he was employed by the San Jose, California Police Department. On January 15, 1980, he talked with Howard Miller of the Birmingham Police Department concerning a complaint in Birmingham. He went to the appellant’s home in California and talked with a person who identified herself as the appellant’s wife. He informed her of the Birmingham complaint and she offered to show him some pistols which her husband owned. He stated that he examined and photographed a western style pistol. He talked with the appellant on the telephone while' at the appellant’s residence and the appellant told him he would come see him at the police station. He stated that the appellant did, in fact, come to the police station and that he took a statement from him after informing him of his Miranda rights. This interview took place on January 16, 1980. He made a photographic lineup, which included the appellant’s photo, and sent it to Birmingham.

Sergeant Biskup further stated that he talked to the appellant again on March 11, 1980, and told him to come in to the police station. The appellant asked him if he should bring the pistol with him. At this time the appellant turned himself in to Sergeant Biskup and surrendered the pistol.

Howard Miller testified that he was employed as a detective with the Birmingham Police Department. He had discussed this case with Ms. Townsend (Lane), Sergeant Biskup and Officer Staff. He received a manila folder with photographs in it from Sergeant Biskup. He testified that he showed this photographic lineup to Ms. Townsend (Lane).

The appellant testified in his own behalf. He stated that he was in Birmingham on January 10, 1980, but that he did not have a gun with him. He indicated that he had gone to the Century Plaza Mall looking for an Oriental restaurant. While at the mall he saw Mrs. Lane and asked her if there was such a restaurant in the mall. She told him there was not but that she could show him where one might be. They walked out of the mall together, and Mrs. Lane told him to get in her car and she would point one out. He said he got in her car on the passenger side. He denied having a pistol, driving her car, touching her in any manner, unzipping his pants and making her have oral sex with him. He stated that she wanted to sell him some jewelry and he took out his checkbook. She refused to take a check so he laid the checkbook down on the seat of the car and looked at the jewelry agáin. He stated that she then drove her car to the exit and showed him how to get out of the mall area. She then drove him to his car where he got out. He went back to his hotel. The next morning he made some business calls, then flew back to California.

I

The appellant contends that the trial court erred in overruling his motion to suppress evidence discovered in the appellant’s home. Specifically, he argues that the evidence was the product of an illegal search and seizure. The State argues that the search in question was a valid warrantless search of the appellant’s residence, consented to by the appellant’s wife.

Under the Fourth and Fourteenth Amendments, a search without a warrant not based upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions: (1) in plain view; (2) with consent voluntarily, intelligently and knowingly given; (3) as incident to a lawful arrest; (4) in “hot pursuit” or emergency situation; (5) where exigent circumstances exist coincidental with probable cause; and (6) in “stop and frisk” situations. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973); Scott v. State, 337 So.2d 1342 (Ala.Crim.App.1976); Baker v. State, 340 So.2d 854 (Ala.Crim.App.), cert. denied, 340 So.2d 860 (Ala.1976).

The State contends that the search in this case was upheld under the consent exception to such warrantless searches. It is well recognized that some third parties may validly consent to a search of premises or the effects of an absent defendant, if such third party shares with the defendant “common authority over or other sufficient relationship to the premises or effect sought to be inspected.” United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Myers v. State, 55 Ala.App. 404, 316 So.2d 235 (1975); Scott, supra. Further, this court has held on numerous occasions that the wife of an absent defendant can validly consent to a search of the premises or effects of the defendant. Cobb v. State, 355 So.2d 741 (Ala.Crim.App.1978); Liptroth v. State, 342 So.2d 959 (Ala.Crim.App.), cert. denied, 342 So.2d 961 (Ala.1977), cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977); Mickens v. State, 428 So.2d 202 (Ala.Crim.App.1983). See also, Jackson v. State, 414 So.2d 1014 (Ala.Crim.App.1982); Bartlett v. State, 387 So.2d 886 (Ala.Crim.App.), cert. denied, 387 So.2d 890 (Ala.1980), cert. denied, 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 388 (1980); Cobb, supra.

In this case the transcript shows that the appellant’s wife gave her consent to Officer Biskup for his search of their residence. There was testimony that the house was the residence of the appellant and his wife. Under the evidence in this cause, the appellant’s wife had the authority to waive the warrant requirement and consent to the search. The evidence sufficiently reveals that she did so voluntarily, intelligently and knowingly, as required. Therefore, we find no error in the trial court’s overruling appellant’s motion to suppress.

II

Appellant contends that the pistol allegedly used in committing this crime was inadmissible because proper Miranda warnings were not given at the time he brought the pistol to the police. A careful reading of the transcript in this cause reveals, however, that proper Miranda warnings were administered to appellant when he consented to bring the gun in to the police.

Consent to a search is voluntarily given where the defendant is not only informed of his Miranda rights, but is also informed of the object of the search before he consents. Further, “where Miranda warnings have once been given, repeated specific warnings of Fourth Amendment rights are not necessary to obtain a valid consent to search.” United States v. Jones, 475 F.2d 723 (5th Cir.), cert. denied, 414 U.S. 841, 94 S.Ct. 96, 38 L.Ed.2d 77 (1973); Behel v. State, 390 So.2d 662 (Ala.Crim.App.1979), cert. denied, 390 So.2d 671 (Ala.1980); Hollander v. State, 418 So.2d 970 (Ala.Crim.App.1982). This search was validly consented to by the appellant, after proper Miranda warnings, and was therefore legal. Since the search was legal, the subsequent admission of this pistol into evidence was not error.

Ill

The appellant argues that the evidence was not sufficient to sustain a conviction for sodomy in the first degree. Specifically he argues that proof of penetration is required for such an offense and he contends the State failed to prove such.

The victim of the offense in question testified to the following: (R. 138, 141).

“Q. Okay, When he opened the car door, what did he say, if anything?
“A. He told me to move over. ’ He took a gun out from in his coat and told me to move over.
“Q. And then what happened?
“A. He said since you don’t have any money or credit cards, or credit cards, I guess you know what I will have to do. And I said no. And he said you know. And so, then he backed the car out and drove around by the Mall out to the side of what was Loveman’s at that time, out to the side of the parking lot where there wasn’t any cars. And he slammed on the brakes and my son went into the windshield and busted his nose. And I was saying please don’t hurt us. And he was saying take care of the kid. And I took a pair of socks that was in the car and cleaned his face up. And then he made him get in the back seat after his nose stopped bleeding. And then he started kissing me and unfastened my bra and my pants. And then he unfastened his pants and pulled them down just a little. And he made me have oral sex with him for just a very short time. And — ”

This testimony was the only evidence of the crime elicited during the course of the trial. It is obvious from a careful reading of the transcript that the State presented sufficient evidence of a crime of this nature.

The appellant argues that the applicable statutes in this cause, §§ 13A-6-63(a)(l), 13A-6-60(2), Code of Alabama 1975, require penetration as an element of the offense charged. However, examination of these statutes reveal no such requirement.

Section 13A-6-63(a)(l) states that a person commits the crime of sodomy in the first degree if he engages in deviate sexual intercourse with another person by forcible compulsion. Section 13A-6-60 defines deviate sexual intercourse. Such section states that deviate sexual intercourse is any act of sexual gratification between persons not married to each other, involving the sex organs of one person and the mouth or anus of another. A careful reading of these statutes reveals that the term “oral sex”, as used by the victim in her testimony, is sufficient under the statute. Furthermore, the “testimony of an unwilling victim of a crime of this nature is sufficient to make out the corpus delicti and sustain the conviction.” LaBryer v. State, 45 Ala.App. 33, 222 So.2d 361 (1969); Stevens v. State, 333 So.2d 852 (Ala.Crim.App.1975), cert. denied, 333 So.2d 855 (Ala.1976); Jackson v. State, 375 So.2d 558 (Ala.Crim.App.1979). See also, Hutcherson v. State, 441 So.2d 1048 (Ala.Crim.App.1983); Turbyfill v. State, 356 So.2d 775 (Ala.Crim.App.1978).

IV

The appellant also contends that the trial judge failed to charge an element of the offense of sodomy in the first degree in his oral charge to the jury and therefore his cause should be reversed.

It should be noted that “if a party objects to that which is stated in the oral charge of the court, that party’s remedy is only by proper exception thereto, but, if the objection is to the court’s refusal or omission to charge on a particular subject applicable under the evidence or under the law applicable in the case, the appropriate procedure is to request a written charge” covering the matter. Hall v. State, 375 So.2d 536 (Ala.Crim.App.1979). Upon the refusal of the trial court to so charge, the party must “call the trial court’s attention to the specific refused written charge and set out a specific ground for his objection to the refusal of that charge.” McCormack v. State, 431 So.2d 1336 (Ala.Crim.App.1982), reversed, 431 So.2d 1340 (Ala.1983), on remand, 431 So.2d 1341 (Ala.Crim.App.1983). “A failure to pursue one of these remedies, if proper and applicable to the case, is a waiver of a review by this court as to the matters in question.” Wells v. State, 378 So.2d 747 (Ala.Crim.App.), writ denied, 378 So.2d 756 (Ala.1979).

The record reveals that appellant’s counsel properly excepted to the court’s oral charge, but he did not thereafter tender a written request. Therefore, this issue is not properly before the court for review. Allen v. State, 414 So.2d 989 (Ala.Crim.App.1982), affirmed Allen v. State, 414 So.2d 993 (Ala.1982).

V

The appellant contends that the trial court erred in refusing to charge the jury on lesser included offenses under robbery in the first degree. He specifically argues that, since he denies ever having a pistol and robbing the victim in this case, the trial court should have charged the jury on robbery in the third degree, harassment and menacing, as requested.

It should be noted initially that an exception to an oral charge reaches only that on which the trial court actually charges. “When there is an objection to the trial court’s refusal or omission to charge on any particular subject, including a lesser included offense applicable under the evidence, the proper procedure is by way of a requested written charge.” Hollis v. State, 399 So.2d 935 (Ala.Crim.App.1981); Summerville v. State, 429 So.2d 651 (Ala.Crim.App.1983).

In the case at bar there was a charge conference in which the trial judge relieved the appellant’s counsel of this duty. The appellant properly excepted to the oral charge given, and reminded the court of their prior agreement. In this case, because of the charge conference agreement, the appellant has properly preserved this issue for review.

However, a careful review of the transcript in this case reveals that such requested charges are not applicable under the evidence elicited during this trial. Therefore, the trial judge acted properly in refusing such requested charges.

Moreover, the evidence was sufficient for the jury to convict the appellant of robbery in the first degree. Summerville, supra; Browning v. State, 429 So.2d 653 (Ala.Crim.App.1983); Agee v. State, 429 So.2d 654 (Ala.Crim.App.1982).

VI

The appellant contends that the trial court erred in sustaifaing objection to a question asked of a -Co-employee of appellant. He contends that the witness should have been allowed to testify to the amount of the appellant’s salary. He further argues that such testimony was relevant to the prosecution, since the State had introduced into evidence the appellant’s checkbook.

It should be noted initially that a determination of admissibility of evidence rests within the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of an abuse of discretion. United States v. Dothard, 666 F.2d 498 (11th Cir.1982); United States v. Penn, 721 F.2d 762 (11th Cir.1983); Ward v. State, 440 So.2d 1227 (Ala.Crim.App.1983). “To be admissible, the proffered evidence must tend to prove or disprove the main inquiry of the case.” Hill v. State, 366 So.2d 296 (Ala.Crim.App.1978), affirmed, 366 So.2d 318 (Ala.1979); McLeod v. State, 383 So.2d 207 (Ala.Crim.App.1980). This court has further held that the determination of relevancy of evidence is left to the sound discretion of the trial judge and this court will not reverse unless discretion has been grossly abused. McCowan v. State, 412 So.2d 847 (Ala.Crim.App.1982); Payne v. State, 419 So.2d 286 (Ala.Crim.App.1982); Wicker v. State, 433 So.2d 1190 (Ala.Crim.App.1983). Moreover, the trial court may exclude evidence, “when it is such as to furnish a basis for nothing more than mere conjecture, or remote inferences in reference to the transaction under investigation.” Trawick v. State, 431 So.2d 574 (Ala.Crim.App.1983) and cases cited therein.

A review of the evidence in this case reveals that such testimony had no probative value to the trial at hand. The trial judge acted properly in sustaining the State’s objection.

The remaining issues presented for review by the appellant are wholly without merit.

We have carefully reviewed the record for errors injurious to appellant and have found none therein.

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

AFFIRMED.

All the Judges concur.


text:
    Lloyd DUNCAN v. STATE.
    8 Div. 84.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-100.

      T.J. Carnes and William C. Gullahorn, Jr., Albertville, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

This is an appeal from the denial of a pro se petition for writ of error coram nobis. In Duncan v. State, 355 So.2d 745 (Ala.Cr.App.1978), this Court affirmed Lloyd Duncan’s 1977 conviction for rape. Subsequently, Duncan filed a petition for writ of error coram nobis alleging that he was “denied adequate legal representation by his appointed counsel in that said counsel failed and refused to subpoena and question certain witness.” Counsel was appointed and a hearing was held, after which the circuit judge denied the petition.

I

We affirm the judgment denying the petition. In denying the petition the judge issued the following order which is supported by the record:

JUDGMENT
“This Coram Nobis proceeding coming on to be heard was submitted to the court upon the Petition for Writ of Error Cor-am Nobis, on behalf of Lloyd Duncan, a state prisoner, the answer of the State of Alabama, and testimony ore tenus.
“The petitioner was claiming that he was innocent of the crime of rape, for which he was convicted in this court in Case No. CC-77-200071, and that he was denied adequate legal representation by his attorney.
“The evidence in the case fails to demonstrate the petitioner’s innocence, and the defendant has wholly failed to meet the burden cast upon him in this regard. The only evidence offered, if believed, might tend to show that several years before the events on which the state’s case was based, the prosecuting witness and the petitioner were involved in a romantic affair. The evidence consisted of the testimony of relatives and close friends of the E anean family. There was no evidence as to the events which occurred on the night of the incident on which the state's case was based. The evidence of the door being broken open, tires slashed, and telephone wires being cut, remain unimpeached. It was these facts, which corroborated the prosecuting witness’s testimony, which led to the conviction of the petitioner in said case, and it is the opinion of the court, and the court so finds that the other aspects of the case were of little importance. It also appears that the petitioner knew of the omitted testimony. The court further notes that merely producing evidence which might tend to cause a different result is clearly insufficient in a Cor-am Nobis matter.
“As to the contention of the petitioner, that he did not have effective counsel, the court finds that he did in fact have effective counsel and that, although another attorney might make different choices or choose different tactics, that petitioner was well-represented. Petitioner’s counsel was employed and, in the opinion of the court, properly represented the petitioner.
“As to the failure of the court to grant a continuance in the original case, this matter was thoroughly reviewed by the Appellate Courts of this state in Duncan v. State, 355 So.2d 745. Also, please note that the undersigned judge was the trial judge in that case, although the head-notes in the Reporter show that my eo-llegue, Hon. Edward N. Scruggs, was the trial judge. This court also notes that after being released from prison, on parole, the petitioner was convicted of Capital Murder for the slaying of Eva Sims, the prosecuting witness, which case was also reviewed by the Appellate Courts of this state. See Duncan v. State, 436 So.2d 883 [ (Ala.Cr.App.1983) ].
“After carefully reviewing the petition, evidence and all the contentions of the petitioner, the court is of the opinion that the petitioner’s petition should be denied. It is, therefore, CONSIDERED and ADJUDGED by the court as follows:
“1. That the petitioner’s Petition for Writ of Error Coram Nobis is denied.
“2. That costs herein accrued are taxed to the petitioner, Lloyd Duncan. “Done this 30th day of January, 1984.”

At Duncan’s rape trial, the defense was that the prosecutrix, Eva Sims, had previously had sexual relations with Duncan and consented to the sexual intercourse on the date in question. Defense counsel, Chuck Ogden, expected James Dobbins and Virgil Winkles to testify that “they had observed ... Eva Sims and Lloyd Duncan at a trailer some years prior to the alleged rape and that they had had intercourse at that trailer.” Their testimony would establish the prior sexual relationship between Sims and Duncan and impeach Sims’ testimony denying this allegation. Dobbins and Winkles were not called to testify at trial.

The defense portion of the rape trial began on the second day of trial. On the night of the first day, Ogden first learned of the existence of Alabama’s then newly adopted “Rape Shield Law”. Trial began on July 26, 1977. This law, codified as Alabama Code 1975, § 12-21-203 (Supp.1983), became effective on April 21, 1977. 1977 Ala.Acts 328, No. 251. Duncan asserts that Ogden “misunderstood the law” and “obviously became rattled and failed to use the ammunition he had.” However, the trial record shows that, although the discovery of the Rape Shield Law “surprised” Ogden, this matter was discussed with the trial judge, who specifically ruled that defense counsel would be allowed to present testimony about the prior relationship between the prosecutrix and the defendant.

Although Ogden testified at the eoram nobis hearing, he was never asked and never stated why he failed to call witnesses Dobbins and Winkles. As the Attorney General argues, this failure may very well have been a strategy decision made at trial because “both witnesses were ripe for impeachment.” Dobbins is Duncan’s maternal uncle and was harboring a fugitive at the time he allegedly learned of the relationship between Duncan and Sims. Winkles was the escapee Dobbins was harboring when Winkles allegedly saw Duncan and Sims together. See Duncan v. State, 436 So.2d 883, 894 (Ala.Cr.App.1983), cert. denied, _ U.S. _, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984), for the testimony of both Dobbins and Winkles in Duncan’s trial for the capital murder of Ms. Sims.

We affirm the finding of the circuit judge that Duncan was well represented at his trial “although another attorney might make different choices or choose different tactics.” In Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984), the United States Supreme Court held that “the proper standard for attorney performance is that of reasonably effective assistance.” In our opinion, Duncan has failed to show that Attorney Ogden’s performance was deficient or unreasonable considering all the circumstances. “The Sixth Amendment does not require errorless counsel or counsel judged ineffective by hindsight.” Hoppins v. State, 440 So.2d 1125, 1127 (Ala.Cr.App.1983). “An adequate defense in the context of the constitutional right to counsel does not mean that counsel will not commit what may later prove to be tactical errors, and matters of trial strategy, in the absence of a clear showing of improper or inadequate representation, will be left to the judgment of trial counsel.” Bridges v. State, 391 So.2d 1086, 1091 (Ala.Cr.App.1980). “The decision not to call a particular witness is usually a tactical decision not constituting ineffective assistance of counsel.” Oliver v. State, 435 So.2d 207, 208-209 (Ala.Cr.App.1983). “[Cjomplaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978). “This Court will not second-guess tactical decisions of counsel in deciding whether to call certain witnesses.” United States v. Long, 674 F.2d 848, 855 (11th Cir.1982). “Defense counsel’s failure to call certain witnesses is not sufficient grounds for a Sixth Amendment claim.” United States v. Caucci, 635 F.2d 441, 453 (5th Cir.), cert. denied, 454 U.S. 831, 102 S.Ct. 128, 70 L.Ed.2d 108 (1981).

Additionally, Duncan has failed to show that the alleged deficient performance prejudiced his defense. The appropriate test for prejudice is stated in Strickland, 104 S.Ct. at 2068: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” In making a determination of prejudice, this Court must consider “the totality of the evidence before the judge or jury.” Strickland, 104 S.Ct. at 2069.

The State presented a strong case of eyewitness identification. Eva Sims testified that Duncan raped her. The import of her testimony was that she had no prior sexual relationship with Duncan. Her testimony was bolstered by a complaint made very soon after the assault that Duncan had raped her. See Duncan v. State, 436 So.2d 883.

Our review of the testimony at the coram nobis hearing and at trial convinces us that defense counsel’s performance was reasonable under prevailing professional norms. Strickland, 104 S.Ct. at 2065. There is no reason for this Court to believe that “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result” — the “benchmark for judging any claim of ineffectiveness.” Strickland, 104 S.Ct. at 2064.

II

In this case, there is a second equally if not more important reason why the petition for writ of error coram nobis was properly denied.

Eva Sims was raped in May of 1977. Duncan was convicted for this offense in July of 1977. After serving 22 months of his ten-year sentence, he was placed on parole in January of 1980. On February 13, 1980, Duncan killed Eva Sims and her four-year-old son and wounded her eight-year-old son. See Duncan v. State, 436 So.2d 883 (Ala.Cr.App.1983). Duncan then filed his coram nobis petition in February of 1981. In this petition he seeks “a new trial ... and such other relief as may be proper.”

In the opinion of this Court, public policy and fundamental justice demand that Duncan’s petition be denied. Duncan is seeking a new trial after murdering the very person who would be the prosecuting witness in that retrial he now seeks. His own actions have jeopardized the State’s ability to prosecute him on any retrial. See Hamilton v. State, 283 Ala. 660, 220 So.2d 267 (1969) (involving a “state claim” made “with complete abandon of due diligence”). In killing Eva Sims, Duncan has destroyed “evidence” essential to his reprosecution. His petition is a gross abuse of one of the oldest remedies at common law.

Duncan should not be allowed to cry foul when his hands are “red with blood and his guilt ... shriek[s] to high heaven.” Wiman v. Powell, 293 F.2d 605, 609 (5th Cir.1961), quoted in Warden v. State, 41 Ala.App. 449, 451, 134 So.2d 783 (1961). “Society, too, has a strong social interest in the protection of its law-abiding citizens from rapacities of the criminally inclined.” Warden, 41 Ala.App. at 451, 134 So.2d 783. See also Cooper v. Wiman, 273 Ala. 699, 700-701, 145 So.2d 216 (1962).

The judgment of the circuit court denying the petition for writ of coram nobis is affirmed. Any other result would constitute a mockery of our criminal justice system.

AFFIRMED.

All Judges concur.